Communications Bill

HL Deb 08 July 2003 vol 651 cc220-62

Proceedings after Third Reading resumed on Clause 268.

Lord McIntosh of Haringey moved Amendment No. 32:

Page 242. line 23, leave out subsection (11 ).

On Question, amendment agreed to.

Clause 278 [Appointed news providers.for Channel 3]:

Lord McIntosh of Haringey moved Amendment No. 33:

Page 252, line 45. leave out paragraphs (a) and (b).

The noble Lord said: My Lords, I speak also to Amendments Nos. 34 to 45. 72, 80, 117, 119, 122, 126 and 145 to 147.

During Committee we listened with interest to very considerable debate on the nomination and ownership rules for the Channel 3 news provider. We were convinced by the arguments in favour of their removal. I indicated on Report that I would be tabling amendments to make changes to the Bill. These amendments lift most of the ownership restrictions of the Channel 3 news provider and remove the obligation that the news provider be selected from bodies nominated by Ofcom.

The Bill will still require that national news on regional Channel 3 programmes is provided by a single body corporate, but removes the system that requires that body to be nominated by Ofcom.

The amendments will remove the rules restricting anyone from owning more than 20 per cent of the appointed news provider, which prevented ITV from owning its own news provider.

Ownership restrictions will still apply so that any body which is prevented from holding a Channel 3 licence by Part 2 of Schedule 2 to the 1990 Act faces equivalent restrictions as regards being. or having an interest in, the Channel 3 news provider. For example, political bodies would not be able to be, control, or own more than a 5 per cent interest in, the news provider.

In addition, ownership restrictions that apply to a Channel 3 licence also apply to the news provider so that, for example, a national or local newspaper with 20 per cent or more of the market cannot be the Channel 3 news provider. A national newspaper with 20 per cent or more of the market cannot have more than a 20 per cent share in the news provider and the news provider cannot have more than a 20 per cent interest in such a newspaper.

We believe that these rules are fair. It would be odd, to say the least, to allow a body that could not hold a Channel 3 licence to provide the news for it. The current rules prevent anyone from holding more than a 20 per cent interest in the news provider, so the new rules leave those affected in the same position as everyone is under current rules.

We have been careful to maintain the quality regulation applied to the news provider contract. There will continue to he provisions requiring that Channel 3's national news is able to compete with other national news services. The requirements for Ofcom to approve the contract for the appointed news provider to ensure that it is adequately funded will also remain.

We have also included provisions so that Ofcom will be able to obtain all the information it needs from ITV or the appointed news provider to assure itself that the necessary arrangements are in place and working properly. We are grateful to both ITN and ITV, whom we have consulted on the transitional provisions.

The Bill as amended will also allow for the creation of a Channel 5 scheme comparable to the appointed news provider system for Channel 3 and we will be able to modify by order the quality and ownership aspects of the Channel 3 scheme and any Channel 5 scheme. I beg to move.

Baroness Buscombe

My Lords, I thank the Minister for his helpful explanation of the purpose and effect of these amendments. He made a fulsome statement at the Report stage in which he signalled that the Government had been persuaded by the case for change and he has been true to his word.

These amendments are good news for ITN and will help to ensure that there is strong competition in the news supply market between ITN, the BBC and Sky News in the years to come.

In removing unnecessary ownership regulation and the arcane nominated news provider arrangements, these amendments bring the Bill closer to the Government's original intention. But, importantly, as the Minister has said, they also retain the quality aspects of Clause 278 that require ITV to supply a news programme that is competitive with other national news programmes and that give Ofcom the power to approve the terms of any future contract as adequate to deliver ITV's news obligations.

I understand from discussions with ITN and ITV that the amendments in no way affect the status of the current ITV news contract, which will run unchanged until 2008, and that they will have no effect on other important ITN contracts such as that for Channel 4. That is good news.

Finally, I thank the Minister once again for bringing forward these amendments and for being persuaded of the case for change that was made so eloquently by distinguished Members on all sides of your Lordships' House. We support the amendments.

Lord McNally

My Lords, I echo what has been said by the noble Baroness, Lady Buscombe. I had great pleasure in working with her on these matters at an earlier stage of the Bill. Would that we could have worked together on some other aspects—but there it is.

It was touching to find that the 20:20 rules, which at four o'clock today were part of yesterday's legislation, appear back spanking new. I am pleased that the noble Lord, Lord Borrie, is not present to hear that. But as the noble Baroness, Lady Buscombe, said, this is good news; it is a win-win situation.

It is good news for the British people because they have a chance of getting ITN back to its glory days. One of the interesting issues about the Iraq war was that when ITN was given the extra resources during the war, it showed that it had lost none of its old élan, skills and zip. That is only to the good.

Whatever happens as regards the ownership of ITV, surely the lesson is that a news provider which is an integral part of the organisation, as BBC news is with BBC and Sky News is with Sky, is better cared for and a better organisation. That gives us genuine competition, quality and diversity, which is to he welcomed.

I welcome the positive way in which the Minister has approached the matter and we fully support the amendments.

8.45 p.m.

Baroness Howe of ldlicote

My Lords, I was one of the signatories on the previous occasion. I should also like to thank the Minister for seeing the sense of what was proposed and coming forward with these amendments. I know how happy everyone concerned is.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendments Nos. 34 to 40:

Page 253, line 3, leave out "such an appointment is made" and insert "a body is appointed as the appointed news provider"

Page 253, line 5, leave out from beginning to "appointment" in line 6 and insert "body's finances are adequate, throughout the period of its"

Page 253, line 9, leave out "such"

Page 253, line 9, at end insert— (3A) The conditions imposed under this section must include the conditions that OFCOM consider appropriate for securing that arrangements maintained between—

1. (a) the holders of regional Channel 3 licences, and
2. (b) the body which is the appointed the news provider,

ensure that that body is subject to an obligation. enforceable by OFCOM, to provide OFCOM with all such information as they may require for the purpose of carrying out their functions."

Page 253, line 12, leave out "person who" and insert "body which"

Page 253, line 36, after "(d)" insert "or (3A)"

Page 253, line 37, at end insert?— () Section 32 of the 1990 Act (nomination of bodies eligible for appointment as news providers) shall cease to have effect.

On Question, amendments agreed to.

Lord McIntosh of Haringey moved Amendment No. 41:

After Clause 278, insert the following new clause—

"DISQUALIFICATION FROM APPOINTMENT AS NEWS PROVIDER

1. (1) The regulatory regime for every regional Channel 3 service includes the conditions that OFCOM consider appropriate for securing—
1. (a) that a body is not appointed as the appointed news provider if it falls within subsection (2); and
223
2. (b) that the appointment of a body as the appointed news provider ceases to have effect if it becomes a body falling within that subsection.
2. (2) A body falls within this subsection if—
1. (a) it is a disqualified person under Part 2 of Schedule 2 to the 1990 Act in relation to a Channel 3 licence; or
2. (b) there would be a contravention of Part 1 of Schedule 14 to this Act (whether by that body or by another person) if that body held a licence to provide a Channel 3 service, or held a licence to provide such a service for a particular area for which such a service is provided."

On Question, amendment agreed to.

Clause 279 [Power to repeal Channel 3 news provider provisions]:

Lord McIntosh of Haringey moved Amendment No. 42:

Page 253, line 40, leave out from "repeal" to end of line and insert "or otherwise modify any of the provisions of section 278 or (Disqualification from appointment as news provider)"

On Question, amendment agreed to.

Clause 280 [News providers for Channel 5]:

Lord McIntosh of Haringey moved Amendments Nos. 43 to 45:

Page 254. line 11, leave out from "278" to end of line 12 and insert "or (Disqualification from appointment as news provider)"

Page 254, line 14, leave out from "278" to end and insert "or (Disqualification from appointment as news provider)"

Page 254, line 19, leave out "person" and insert "body"

On Question, amendments agreed to.

Clause 283 [Regional programme-making for Channels 3 and 5]:

Lord McIntosh of Haringey moved Amendment No. 46:

Page 257, line 22, at end insert— () A proportion is not to be regarded by OFCOM as suitable for the purposes of a provision of this section if it constitutes less than a significant proportion of the programmes or expenditure in question.

The noble Lord said: My Lords, in the previous stages, we had a debate which I thought was rather theological at times on the words "suitable and sufficient". My noble friend Lord Puttnam accused me of missing a slam dunk opportunity—whatever that means—to make a meaningful concession. We are not missing the slam dunk opportunity now. We felt that the words then proposed were too loose and might not provide Ofcom with the tools necessary to ensure that levels of regional production and programming are sustained in the future. However, we recognised the strength of feeling and we undertook to do what we could to address the concerns expressed. This could be by incorporating the word "significant" along with a qualification—which we believe is immensely important—to ensure that Ofcom retains the flexibility it needs to treat different services differently.

We undertook to come back with suggestions on Third Reading, which is what we have done. Amendment No. 46 provides that in determining what is a suitable proportion for the purpose of Clause 283, Ofcom must not regard a proportion as suitable if it constitutes less than a significant proportion of the programmes or expenditure in question. The suitable proportions in question are the proportion of Channel 3 or Channel 4 programmes to be made in the United Kingdom outside the M25 area. We also detail the proportion of expenditure by the providers of Channel 3 services or the Channel 5 service on programme production at different production centres outside the M25 area.

Amendment No. 48 makes similar provision to Clause 285, which deals with Channel 4. Although the amendments tabled on Report did not cover Channel 4, we think that equivalent changes should be made in the interests of consistency.

Amendment No. 47 provides that in determining what is a suitable proportion for the purpose of Clause 284, Ofcom must not regard a proportion as suitable if it constitutes less than a significant proportion of the programmes in question. The suitable programmes in question here are the proportion of regional local programmes to be made in the area for which the service is provided and the proportion of regional programmes, other than news, to be shown at or adjacent to peak time.

We believe that these amendments deal with the points of concern expressed in this House while preserving the essential flexibility for Ofcom and avoiding undue interference in broadcasters' commissioning and scheduling decisions. I beg to move.

Baroness Buscombe

My Lords, we support Amendments Nos. 46, 47 and 48. The noble Lord, Lord Puttnam, said on Report that it is important that we get this matter right so that the production of television programmes in the regions is nurtured and sustained. But as the Minister pointed out, it is also important that Ofcom retains sufficient flexibility. It must be able to take account of the differences between smaller ITV licensees such as Border Television and the larger areas such as Granada, as well as the differences between Channels 3, 4, and 5. My noble friend Lord Crickhowell requested on Report that the Government meet the proponents of this cause half way. The noble Lord, Lord Puttnam, said that he would, settle comfortably on the word 'significant"'.—[Official Report, 1/7/03; col. 837.] rather than "substantial". These amendments do precisely that and I therefore support the Minister.

Lord McNally

My Lords, if the Minister does not think it frivolous or light-hearted, I wish to say that these are slam-dunk amendments.

On Question, amendment agreed to.

Clause 284 [Regional programmes on Channel 3]:

Lord McIntosh of Haringey moved Amendment No. 47:

Page 259, line 18, at end insert— () A proportion is not to be regarded by OFCOM as suitable for the purposes of a provision of this section if it constitutes less than a significant proportion of the programmes in question.

On Question, amendment agreed to.

Clause 285 [Regional programme-making for Channel 4]:

Lord McIntosh of Haringey moved Amendment No. 48:

Page 260, line 15, at end insert— () A proportion is not to be regarded by OFCOM as suitable for the purposes of a provision of this section if it constitutes less than a significant proportion of the programmes or expenditure in question.

On Question, amendment agreed to.

Clause 300 [Code relating to provision for the deaf and visually impaired]:

Lord McNally moved Amendment No. 49:

Page 268, line 26, at end insert "and (iii) persons with a dual sensory impairment.

On Question, amendment agreed to.

[Amendment No. 50 not moved.]

Clause 306 [Code of practice for electronic programme guides]:

Lord Davies of Oldham moved Amendments No. 51 and 52:

Page 273, line 9, leave out from second "promotion" to end of line 11 and insert ", for members of its intended audience, of the programmes included in each public service channel; and (b) the facilities, in the case of each such channel, for members of its intended audience to select or access the programmes included in it.

Page 273. line 34, at end insert— () In this section "intended audience", in relation to a service of any description, means

1. (a) if the service is provided only for a particular area or locality of the United Kingdom, members of the public in that area or locality;
2. (b) if it is provided for members of a particular community, members of that community; and
3. (c) in any other case, members of the public in the United Kingdom."

The noble Lord said: My Lords, throughout Committee and Report stages, there was general agreement that the obligation to give due prominence to the listing of public service channels on EPGs should apply to the national or regional variation of those channels provided for the area in which the channel was being watched; for example, BBC Wales in Wales or Granada in the North West. There were also concerns that we should find a form of words that gave the clearest possible indication of our public policy objective without predicting the outcome of any commercial negotiations that operators would need to conclude if we were to see the objective delivered.

The amendments reconcile those different aims. Their effect would be that, where a public service channel is provided in different versions for different regions or areas, a viewer watching the channel in one of those areas could access the relevant version of the channel through the channel's primary EPG listing.

To make it crystal clear, it is a matter of public policy that all regional variations of a public service channel should benefit from due prominence to the same extent. How that is achieved is a matter that should be determined through commercial negotiations under Ofcom's supervision.

I hope that that statement will reassure both those who want regional versions of public service channels to be given due prominence, and those who want to make it clear that, in order to achieve that objective, broadcasters would pay, on fair, reasonable and nondiscriminatory terms, for access to EPG and conditional access systems in so far as that was needed to secure regionalisation. I beg to move.

Baroness Buscombe

My Lords, we support the amendments. We welcome the Minister's statement.

On Question, amendments agreed to.

Clause 309 [Consultation about change of character of local services]:

Lord Davies of Oldham moved Amendment No. 53:

Page 275, line 15, leave out "section 106(1A)" and insert "subsection (1A) of section 106"

The noble Lord said: My Lords, in moving this amendment, I shall speak to Amendment No. 55. I shall also speak to Amendments Nos. 54 and 56, which we reject. It is right to require Ofcom to consult on a request for a departure from the character of a station. However, I do not accept that a requirement to consult places significant additional burdens on the industry. The process of requesting a change is no different from current arrangements, and there is no requirement on a radio station to do anything different or additional to what is currently required.

The clause does not require radio stations to incur any expenditure. Any costs incurred by the radio industry will be those that they have chosen to incur, and entirely at their discretion. Some additional costs may be incurred by Ofcom in considering representations, but those are likely to be minimal and are justified by a more accountable and more transparent process.

I am also confident that Ofcom, mindful of its general duties, will exercise this duty in a way that minimises the costs to the radio industry. I am therefore satisfied that it should be Ofcom's duty to consult. We have included the provision because it is important that, where appropriate, Ofcom should seek the views of others before allowing a departure from the character of a station.

I understand that my noble friend Lord Eatwell, who is unable to attend this evening, sees merit in the government amendments. I am very grateful for that. I am in some ways sympathetic to the idea that Ofcom need only consult where the departure is significant, as set out in Amendment No. 54. However, unfortunately, the amendment as drafted would create an unwelcome clash of language between the new consultation provision that would apply when the departure was significant and the language of new subsection (1A), which allows Ofcom to make a departure where it is satisfied that it would not substantially alter the character of the service.

I am pleased to report that I seem to have succeeded in persuading my noble friend Lord Eatwell of the merits of that case. He would not press his amendment if he were present, as he would be supporting the government amendments. I beg to move.

Lord McNally

My Lords, I have good news for the Minister because we support his amendment and would have opposed the amendment tabled by the noble Lord, Lord Eatwell.

Baroness Buscombe

My Lords, the noble Lord, Lord McNally, took the words right out of my mouth.

Lord Davies of Oldham

My Lords, to have the approval of the noble Lord, Lord Eatwell, and the plaudits of the noble Lord, Lord McNally, supported by the noble Baroness, Lady Buscombe, are rewards above and beyond anything I have ever deserved. I commend the amendment to the House.

On Question, amendment agreed to.

[Amendment No. 54 not moved.]

Lord Davies of Oldham moved Amendment No. 55:

Page 275, line 17, after "licence" insert "on any of the grounds mentioned in paragraphs (b) to (d) of that subsection"

On Question, amendment agreed to.

[Amendment No. 56 not moved.]

Clause 313 [Exercise of Broadcasting Act powers for a competition purpose]:

Baroness Buscombe moved Amendment No.57:

Page 278, line 14, leave out "and"

The noble Baroness said: My Lords, I speak to Amendments Nos. 57 to 69, which concern economic regulation and appeal.

I return to an issue that we debated extensively in Committee, and again on Report, and which I seek again to address through my amendments. It is an extremely important issue that concerns the scope of broadcasters' rights to appeal regulatory decisions of an economic nature to the Competition Appeals Tribunal. I am disappointed that we made no further progress on this matter on Report, and I believe that the Government's answers so far have failed to address all the concerns that I have raised.

Under Ofcom's Competition Act powers or its sector-specific competition powers, 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. Regulation of broadcasters through their licences "for a competition purpose" is also subject to full rights of appeal to the CAT, when that is the only or main reason for the decision.

My concern, however, lies with the very real possibility that Ofcom may decide to undertake economic regulation of broadcasters—their pricing or packaging of channels, for example—for reasons that have nothing to do with competition. Ofcom could, for example, use its duties under Clause 3 of the Bill to undertake such regulation—either, as I have said before, using its duties to further the interests of citizens or consumers in relevant markets or—and this is important—to secure the availability of a wide range of TV and radio services.

In such instances, the Bill would provide no right of appeal to the CAT, and instead would allow only for the more limited route of judicial review, which looks at the decision-making process only and not the merits of the decision. That contrasts with the economic regulation of, for example, telephony providers under Part 2 of the Bill, in which all decisions are subject to appeal to the CAT.

In Committee and on Report, the Minister sought to reassure me on this matter. He argued that, because the duty in Clause 3 to promote the interests of consumers is limited by the parameter, where appropriate by promoting competition",

it would be, hard to imagine a situation where any intervention in pricing and packaging of channels … would not be undertaken using Ofcom's competition powers".

It therefore follows that I get the result that I desire that, Such an intervention would have a route of appeal to the CAT".—[Official Report, 1/7/03; col. 867]

As far as it goes, that is a welcome reassurance. At least now, in the case of the duty to promote the interests of citizens and consumers in relevant markets, we have an indication from the Minister that, in practice, any economic regulation relating to the pricing and packaging under this duty will be appealable to the CAT. However, I am afraid that this is only a partial answer. As I have said, economic regulation of broadcasters could also take place under the Clause 3 duty to secure, the availability throughout the UK of a wide range of television and radio services".

My concern, therefore, does not just lie with the duty to further the interests of citizens. In his answers on Report and in Committee, the Minister appeared to misunderstand that point. On Report, he said: The amendment…stems from her concern…that if Ofcom undertakes economic regulation other than for a competition purpose…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".—[Official Report. 1/7/03; col. 868.]

That is not my argument. It goes wider than that, as I have just explained and as I explained in Committee and on Report. I am mystified as to why the Minister's answers fail to address the wider concerns that I have outlined and continue to focus on just one part of them.

I have been brief in my comments, given the time already taken up by the matter. I hope that, even at this late stage in our deliberations, the Government will see the merits of the arguments that I have put forward in this and other debates and will accept my amendment. I beg to move.

9 P.m.

Lord Davies of Oldham

My Lords, as the noble Baroness, Lady Buscombe, emphasised, we have debated the issues at some length. I am sorry that I have not been able to reassure her sufficiently for her not to have tabled the amendments at this stage.

We must be clear about the issues contained in the amendment. It is important to understand the consequences of accepting the amendments. We believe that they have been prompted by a particular broadcaster, a point that noble Lords will wish to bear in mind. Accepting the amendments would risk opening the door to a regulatory regime that is very different from that contained in the Bill. The amendments would seriously damage Ofcom's ability to regulate effectively and flexibly. In particular, they would prevent Ofcom from taking proper account, alongside the important economic and competition issues, of the wider public and consumer issues that we have been pressed to include in the Bill, as we always intended.

Several noble Lords and others have expressed a strong desire to see such interests properly protected. The draft Bill contained many references to that necessity. However, we have also made changes to the Bill as a result of pressure from all parts of the House. We have explained in detail the many procedural and other safeguards against misuse by Ofcom of powers in that area. It is vital that Ofcom is not made subject to further unnecessary handicaps such as the amendments would create.

The noble Baroness will appreciate that I could go on at considerable length about the Government's case. I had great difficulty engaging the attention of noble Lords on the issues in Committee and on Report. Regrettably, we have not reached the agreement that I should have liked. At this late hour, I have no intention of reiterating all the arguments that I have presented in the past. Suffice it to say that we understand that there is at least one broadcaster who is anxious about the provision. I have tried to indicate that, if we met those representations, we would recast the regulatory structure of the Bill. In particular, we would reduce the impact and the effectiveness of the structure that is being created by due deliberation in the House of propositions that we have accepted.

On that basis, I hope that the noble Baroness, having moved the amendment with her usual acumen, will think that I have a strong enough case to prevent her from pressing it.

Baroness Buscombe

My Lords, I thank the Minister for his response. He will not be surprised to hear that I am disappointed by it. It is an important issue, and we have raised it repeatedly.

I hear what the Minister says. I hear his concerns that the amendment could seriously damage Ofcom's power to regulate effectively and flexibly. Obviously, we must seek to avoid that. I shall not press the amendments; it would not be appropriate to do so at this late stage. However, I hope that Ofcom will take on board some of the issues that we raised in the debates and address some of them head-to-head—if I may put it that way—with the broadcasters who are particularly concerned about them. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 58 to 65 not moved.]

Clause 314 [Review of powers exercised for competition purposes]:

[Amendments Nos. 66 to 69 not moved.]

Clause 333 [Promotion of equal opportunities and training]:

Lord McIntosh of Haringey moved Amendment No. 70:

Page 295, line 3, leave out "fair treatment of" and insert "equalisation of opportunities for"

On Question, amendment agreed to.

Clause 344 [Modification of disqualification provisions]:

Lord Fowler moved Amendment No. 71:

Page 301, line 28, at end insert "only in relation to individuals and bodies corporate domiciled in countries which offer full reciprocal arrangements for British individuals and bodies corporate to own radio and television services"

The noble Lord said: My Lords, in moving Amendment No. 71, I recall that earlier today the noble Lord, Lord McIntosh, said of another amendment that it was better to be late than inflexible. Although it is late in the day, I very much hope that he will not prove to be inflexible on this issue.

The intention of the amendment is straightforward. It is that there should be reciprocal arrangements between one country and another on the ownership of radio and television services. The essential proposition is that if the rules in Britain allow a company in another country to take over a broadcasting organisation, such as ITV, British media companies should have the same rights in that other country. It would allow free trade on the basis of equal rights on a level playing field. It would bring the law into line with the position inside the European Union, where there are full reciprocal arrangements.

The Government's position is significantly different from that. For example, they would certainly allow American media companies to take over ITV, but they are content that there are no reciprocal arrangements with the United States. We would therefore give complete freedom to an American company to own a British television company, but British companies would face a ban on ownership in the United States. It is not a question of being anti-American or protectionist. As it happens, I am passionately pro-American, and frankly I doubt whether any American administration that I can remember would have been daft enough to contemplate the one-sided arrangement that apparently the British Government are to go along with. Nor do I think that it is protectionist to allow access to our market but to insist that we should have equal rights. It seems self-evident business common sense. If the Government's aim is to negotiate reciprocal arrangements, I cannot see what will have been gained by throwing away our strongest negotiating card.

When the noble Lord, Lord Gordon of Strathblane, proposed a similar amendment at Report stage, the Minister sought to dismiss these arguments as of no consequence. Let us examine the Government's case. It will be noted that the legislation that the Government seek to change is the Broadcasting Act 1990, in which, I remember only too well, my noble friend Lady Thatcher took a very close personal interest, to which I and others in this House can testify. She saw no reason to change the law, and she can hardly be described as either protectionist or anti-American.

Even more to the point is the fact that up to 18 months ago the present Government saw no reason to change the law either. In November 2001, the Government said: Without reciprocal arrangements with other nations that will allow our own companies to expand into their markets, we do not feel that we could justify lifting our ban at the present time". That was the present Government's position only 18 months ago. Therefore, I think that we can agree, if on nothing else, to dismiss the argument that this amendment and the amendment proposed earlier by the noble Lord, Lord Gordon, are of no consequence. Until a very short time ago, that was the policy of both major parties in this House.

The Minister had additional arguments. First, he said on Report that the United States were not imposing a full ban. A British company could invest 20 per cent, even at times 25 per cent, in an American broadcasting company. Therefore, the proposition is that one party can take full control and full ownership, while British companies can take 20 per cent. It is precisely because that position is so inherently unsatisfactory that in another part of the Bill we are changing the ownership regulations relating to ITV and ITN.

Secondly, he said that we are not unique and that other countries have no reciprocal arrangements either—namely, Finland, Belgium, the Netherlands, as well as Germany, Spain and New Zealand. In practice, I think that in some of those countries a would-be investor from overseas might find himself in some practical difficulties when it comes to it. But leave that as it may.

What is beyond doubt is that the issue of direct concern is of much greater concern to Britain than to any other country. There is no conceivable doubt about that. For the chairman of a big United States media company, the prize would not be Finland or Belgium, it would be ITV in Britain, which under this Bill will have the right to own ITN. There is a big population in this country; there is no difficulty in language; and there is the opportunity to distribute programmes and share news services. It is a natural target as far as an American company is concerned.

Why therefore have the Government changed their mind? The Minister says that the reason is that they have listened to everyone who has taken part in the debate, including the Joint Committee—well, Up to a point, Lord Copper".

The fact is that they have listened to some. The noble Lord, Lord Crickhowell, who has added his name to this amendment, can speak for himself. But I observe that the Joint Committee's point was not that this was irrelevant, it was a rather different and rather longer point than that. I hope that noble Lords will bear with me while I read it. The Joint Committee stated that, as matters stand, we do not view the argument on reciprocity as pivotal. If the economic case for permitting US investment emerged as compelling, we would see no impediment in principle in the form of waiting for reciprocal developments. But that case has yet to be established. OFCOM will face an enormous range of challenges immediately after it assumes its regulatory functions. We do not feel that it should face the additional pressure that would arise from the lifting of restrictions on non-EEA ownership until it has established itself as an effective regulator that commands market and public confidence".

It went on, of course, to make a detailed proposition.

The fact is that it is not just that the Government did not go along with my proposal; the Government did not go along with the Joint Committee's proposal either, which was the proposal that they voted down last week. They can hardly claim that they have been listening to what the Joint Committee said. The Minister's arguments would be stronger had not the Government's listening process led not only to the rejection of the reciprocal arrangement solution but also of the solution put forward by the Joint Committee.

I have no doubt that the Government have been listening to some on this issue, but on the issue of foreign ownership I do not think that it was the Joint Committee that they were listening to mainly. The Minister says that we should not be diverted by the issue of reciprocity. Indeed, he sets out a rather wider proposition than that. Again, I quote from the debate on Report: I really do not think, when we are considering an issue of such importance as the liberalisation of world trade, that we should be diverted by the issue of reciprocity".—[Official Report, 2/7/03; col. 935.] That is a pretty extreme statement for the Government to make. Is that actually the Government's position? If the position was, for example, that we already had full reciprocal arrangements with the United States but not with France and Germany, would they be introducing this change to the law which would give France and Germany rights without any equality in return? I dare say that one or two newspapers might be challenging such a policy; I dare say that my party would be challenging such a policy; and I dare say that the Government would not be risking the collective wrath by introducing such a policy.

There are some in this House who would impose a full ban on foreign ownership and for whom the amendment does not go far enough. I agree with them to the extent that the issues raised by the ownership of media companies are different in kind from those surrounding ownership of a normal commercial company. They are different not because media companies are better than normal companies, but because media companies are an integral part of the democratic process.

The decision on whether there can be foreign ownership has now effectively been taken. That cannot be undone. The amendment is designed to recognise the new world in respect of that issue and to say quite simply, and fairly moderately, that British companies should have equal rights to build up their own media businesses to those we are giving to people overseas. That is our proposition, and it is not an extreme one. It is the kind of proposition that both Conservative and Labour Governments ascribed to up until a few months ago. I very much hope that, even at this stage, the Government will reverse their position. I beg to move.

9.15 p.m.

Lord Crickhowell

My Lords, I put my name to this amendment with some enthusiasm. I made most of the points that needed to be made during the debate on non-EEA ownership. My task has been simplified by the speech of my noble friend Lord Fowler, because he has taken up two points that I was going to comment on.

The Minister on Report uncharacteristically misrepresented the position of the Joint Committee. He said that our position, which was given in detail by my noble friend Lord Fowler, was a politer way of saying that the issue was a red herring. I do not think that that was the Committee's position, and my noble friend Lord Fowler has explained why that was a misrepresentation.

In that debate, the Minister spoke about the importance of opening up our industry to inward investment, and said that that was the compelling argument. I spent a large part of my ministerial career in encouraging, with some success, inward investment into this country. I doubt if there was any Minister who undertook quite so many overseas foreign investment missions to the United States, the Far East and parts of Europe, all with great success, so I do not need to be told why we need foreign investment. However, the overriding reason why we sought to attract that inward investment was that it gave us a base from which we could take our industrial production into Europe and other parts of the world. That is why we did it. In this case, we are talking about our industry's ability to export its products into the greatest available markets, of which the United States is by far the most important.

The Minister said on Report that when dealing with an issue of such importance as the liberalisation of world trade we should not be diverted by the issue of reciprocity. That is an odd way to enter into a negotiation about reciprocity—to throw away one's cards. It does not appear that all members of the Government feel that the issue is entirely irrelevant and should be discarded. The Secretary of' State for Culture, Media and Sport, when giving evidence to the Joint Committee, did not put that argument to us. Indeed, she told us that the decision to lift restrictions was being used as a negotiating tool in discussions with US authorities. It is a rather odd negotiating tool—to say that we will give everything away. She clearly thought that it was not entirely convincing herself, as she then said that there was no case for holding out for a reciprocal agreement because no change in US policy appeared in prospect.

It is extraordinary to argue that we should not attempt to get reciprocation because we do not believe that there is much chance of winning the argument. As the noble Lord, Lord Gordon, said, it is particularly perverse given that we are getting quite deep into GATT discussions on that very issue. To surrender our negotiating position in such a way is very odd indeed.

The hour is now late and the arguments have been advanced. This discussion is all part of the wider debate that we have had about the good sense of allowing overseas investment without some control and protection. I warmly support the amendment moved by my noble friend.

Lord McNally

My Lords, not for the first time in this journey, it is a pleasure to follow the noble Lord. Lord Crickhowell. I should make it clear that we on these Benches have never been hostile to foreign ownership or production in our media industries. However, from the start of this exercise there have been two curious contradictions.

The noble Lords, Lord Crickhowell and Lord Fowler. referred to the rum way of conducting trade negotiations, in which one throws in one's hand before the negotiations start. That ties in with another aspect—how far we have retreated in recent years. I started this exercise in the belief that we had in ITV, particularly a unified ITV with its own news provider, the basis of a company that could be a world player. It has always seemed odd to me that we should put that company in play at the most vulnerable time of its existence, rather than that it should be given the opportunity to regroup and find its real worth, as the Joint Committee suggested.

ITV was never given that chance, owing to what I can only call an animosity towards it from within the Government that has almost reached the stage of a vendetta. There appears to be .a belief that existing ITV management had somehow betrayed and let down the Government and that it was so worthless that almost anyone would do better at running ITV. I have never really got to the bottom of that, but it is true. I have spent the past two years attending seminars, round tables and conferences, and I have heard things at the margin from very involved people working at No. 10 and in departments. That animosity is not a figment of my imagination. The Minister must know as well as anyone else the contempt with which ITV has been referred to by people who have had a hand in drafting the strategy. It is both unfair and quite barmy, and it has produced a strange policy whereby we give away our negotiating hand in advance and then go forward on what can only be called a wing and a prayer.

I went to a Royal Television Society seminar address by Tessa Jowell. This takes us right back to Second Reading. She said that this was a magnificent win-win situation in which we would get American management, skills and money while retaining the power to make our own programmes and sustain our own creative industries. It would be a wonderful win-win situation, but there is not one shred of evidence to support that possibility.

All of the pre-legislative committee's demands to give Ofcom the time to turn its expert eyes to this matter have been steadfastly refused. Instead, our approach continues to be that of a wing and a prayer. It is astonishing that some of the very successful names which might have sprung to mind a few years ago as welcome buyers of ITV have been responsible for some of the most massive losses and most astounding mismanagement in world corporate history. Again we see the danger.

In this part of the Bill, as in so many other parts, I think that the Government are mounting a tiger. I truly wonder where they will end up in that rather exciting ride.

Lord Gordon of Strathblane

My Lords, I, too, support the amendment. As I said at the previous stage, it is almost unbelievable that we should be giving away our rights without demanding something in return. The man in the street will find it even more unbelievable that the House of Commons did not debate this issue at all, and still more unbelievable that the House to which he must turn to serve as custodian of the nation's interests is liable to give in on it.

It has already been stated that, until quite recently, it was government policy and opposition policy that we do not give anything without getting something in return. The Government's response has been, "We have listened to representations"—but representations from whom? Have they come from the BBC? The BBC is against foreign ownership without reciprocity. Have they come from ITV? It is against foreign ownership without reciprocity. Have they come from Channel 4? Channel 4 is against foreign ownership without reciprocity. From whom have they come? Send your answers on a postcard, please. The only bodies that have offered any evidence to the Government in favour of foreign ownership without reciprocity is Sky and the allies of Sky. No one else is in favour.

We have heard claims at various times in the Bill's passage that we have the finest broadcasting system in the world and we must protect it. Do we really believe that? If we believe it, why do we deny our broadcasting system access to the biggest market in the world—to the United States, with which we share a common language? Why do we make it less likely that our broadcasting interests can achieve reciprocity in the United States by giving away our strongest card?

When the Government published the White Paper they shocked many by saying that they favoured a unified ITV. What was their justification? It was that such an organisation could play a part on the world stage. But would it be the world stage? We would have to forget America because America will not let us in. Perhaps it could be called the world second-stage stage. It is just a nonsense.

If we believe that reciprocity is desirable, as some Ministers have said it is, then surely we should play our cards to try to achieve that end. The way to do that is to refuse America entry into the UK until we get entry into America. I fully concede that the economies of scale are such that it is unlikely that a British company will take over one of the American networks, but it could at least take over individual television stations or radio stations in major city outlets in the United States. That would be a beginning. If we truly believe that we are better at this than the United States, then that is something in which we should have confidence. We should not be virtually ruling that out by giving the Americans what they want without their having to give anything in return.

It is worth remembering that America is the most powerful nation in the world with huge internal market power and yet it considers it appropriate to impose a limit that no foreigner can own more than 20 per cent of the American media. Why does it consider that appropriate? Why is it so afraid of competition from anywhere else in the world? Are there not perhaps lessons for us in that? Why should we give in so easily?

On Report it was said that all this was really covered by the plurality test. It is not. It is a totally separate issue. I have never met Signor Berlusconi and I do not know whether he is a nice man or not. He may well be a lot nicer than the British media portray him to be. If he applied to take over ITV, he would not fall foul of any nationality interests because he is an EU citizen, but under the public interest test one might wish at least to examine whether it was desirable that he should own our media. The two issues are totally separate. What would happen if an American media company tried to acquire British media? If we had reciprocity with the United States, that company would be allowed in. It would then pass or fail the public interest test, but without nationality being taken into account. It would stand or fall according to how it met the other tests to which Ofcom would subject it. But if it did not grant Britain reciprocity in the United States, it would not even reach that stage. It would not be considered.

It is honestly incredible that we are giving away something that we regard as one of Britain's finest achievements without a fight. I am extremely sad that the Government should have thought of this admittedly quite late in the day. It was not in the White Paper. It was only about a year ago that they dreamt up the idea of allowing foreign interests to come in without demanding reciprocity. I hope that even at this late stage the Government will change their mind.

9.30 p.m.

Baroness Howe of Idlicote

My Lords, I, too, support the amendment moved by the noble Lord, Lord Fowler. On the previous occasion the matter was debated I was completely convinced by the arguments. Having listened particularly to the noble Lord, Lord Gordon, again I am even more convinced than I was on the previous occasion. It seems such an obvious first step that one should expect reciprocity between countries on ownership of such an important asset as our broadcasting system, or part of it.

The other advantage of the measure is that it would give Ofcom time to settle in before any reciprocity was arrived at and give the Government time to negotiate with the USA and come to a satisfactory conclusion. We heard it rumoured that that was exactly what was going on. In that case, why not wail until that moment? I very much hope that the Government will think again. We have heard some very important speeches this evening. They could not have been better put. I hope that they will carry the day.

Lord McIntosh of Haringey

My Lords, I think that I have heard all this before. It has been interspersed with flattering quotes from my speech on Report, but otherwise the arguments have not moved on at all as regards the point of view of the noble Lord, Lord Fowler, and his supporters. We voted on foreign ownership amendments on Report and the Government's policy was supported on a Vote in this House. The aim of these amendments—leaving aside whether they will succeed—is to overturn on Third Reading the Vote of this House on Report. That is the truth of the matter. They are aimed at ensuring that television channels in this country will not be opened up to foreign ownership.

The noble Lord, Lord Fowler, argues that the Government should negotiate reciprocity on foreign ownership. Generally. the United Kingdom does just that. The Government are strongly committed to trade liberalisation and work hard with their EU partners and key world trade organizations—I was fascinated to hear about GATT negotiations going on, because my officials and DTI officials know nothing about them!—to remove the barriers which currently block so many potential trading opportunities. However, we do not always work multilaterally if we see something in our interest.

The benefits of opening up markets to foreign investment, as I made clear on Report—and no one has sought to contradict that—are proven. A more liberal investment environment has facilitated increased overseas investment. I congratulate the noble Lord, Lord Crickhowell. I am glad to hear again of his success as Secretary of State for Wales in encouraging inward investment. By 2001, the world stock of foreign direct investment was equivalent to 21 per cent of world gross domestic product, compared with less than 6 per cent in 1982. It is that investment that we want in this country, and it is those opportunities that we want to have overseas.

Some people argue that we are undermining a common European Union position, and that the United States is on the brink of moving on this. Let me reassure the House. There is no common European Union position to undermine. A large number of EU and EEA countries have unilaterally liberalised: Germany, the Netherlands, Portugal. Spain, Denmark, Finland, Belgium and Luxembourg and the only other native English speaker—Ireland.

In the World Trade Organisation, the European Union negotiates on a common position under Article 133 of the Treaty of Rome. As many noble Lords will know, France effectively maintains a veto on cultural matters and did so at Doha and in Seattle. Unless France has a drastic change of heart, there will he no negotiations on this topic. In other words, it is a matter for individual member states.

So we could enter a long dialogue with the United States about some form of bilateral deal, because that is all that is open to us. We could spend years on this. However, considering the comparative gain for the United States against the comparative gain for this country, I do not somehow think that it will be top of the Federal Communications Commission's priorities.

It is important to remember that some investment is already possible in the United States. The noble Lord, Lord Fowler, acknowledged that. A United Kingdom company could own up to 20 per cent of a US company with a broadcast licence, or 25 per cent of a company whose subsidiary company comes with a broadcast licence.

In reality, the restrictions in place are unlikely in practice to hinder UK investment in US communications. It is doubtful that any British company would be in a position to take a stake larger than what is permitted anyway. As I said on Report, would a company such as Granada, with advertising revenues of £440 million, be likely to try to buy an NBC or a CBS, which share £3.2 billion of advertising revenue between them? If the noble Lord, Lord Gordon, thinks that we can buy individual TV companies in the United States without involving NBC, CBS or the other companies, I do not think he understands very much about the structure of television in the United States.

Perhaps I may remind the House that it is not only the Government who do not think that reciprocity is a key issue. The Puttnam committee has been mentioned on a number of occasions. I remind the House that this is one of the few issues on which the Puttnam committee was divided; and, as I understand it—I do not know about majority or minority views—the conclusion of the committee was that the issue of reciprocity was not "pivotal". It had some reservations about foreign ownership more generally, but it stated: we do not view the argument on reciprocity as pivotal". The noble Baroness, Lady Cohen of Pimlico, made a similar point in more demotic terms.

The fact is that we do not want to wait for the potential benefits for the viewer. Our critics, the noble Lord, Lord Fowler, and others will say, "But it won't be better for the viewer; investors will just dump their programmes here". The remarks of the noble Lord. Lord Gordon, about Berlusconi absolutely proved my point on this issue. He said that Signor Berlusconi could not come to this country and flout all our rules. The same applies to any potential investor from outside the European Economic Area. The system protecting content is such that any investor. including those—

Lord Gordon of Strathblane

My Lords, I thank the Minister for giving way. There is a fundamental difference which is that Signor Berlusconi owns Italian media which do not broadcast in the same language as we do. The American media do and therefore they have the opportunity of vertical integration, which I have previously said is often called "dumping" by the noble Lord, Lord Puttnam, and his committee, in terms of the British media. That is the fundamental difference.

Lord McIntosh of Haringey

My Lords, my noble friend did not make that argument at all in his speech. Also he did not wait for me to make the opposing point that I now propose to make. My point is that investors, including those who would be allowed in by the amendment that was tabled and defeated on Report, must abide by our system. That includes quotas for original production, European Union production, regional and independent production, and it also includes the power of Ofcom to be able to review licence commitments on change of control to ensure that new owners maintain the standards of the old. How does that allow for dumping?

There are provisions allowing Ofcom to review licence obligations for regional programming and production, and original production, and news and current affairs programmes at any time and, after consultation, change the licence. Ofcom will also have to protect the local content of radio. Ofcom will also be able to vary the licence conditions when local licences change control in order to preserve the local character of the station, and to maintain the quality and range of the service.

Unlike the United States—the debate has been very much about the United States—we also have rules preventing broadcasters from using their companies to further their own political agenda. Broadcast news must be accurate and impartial and companies must not use television or radio in order to express their own views on politics or current public or industrial policy. Ofcom will have the power to regulate these provisions, imposing fines where necessary, and ultimately, revoking licences of broadcasters who do not fulfil their licence obligations. All those powers will be available to Ofcom to ensure that the quality of our broadcast media will be retained, regardless of the nationality of its owners.

Again, the noble Lord, Lord Fowler, does not choose to recognise the fact, but we shall also have the protection of the new plurality test. We can intervene and investigate an acquisition even if it serves only to replace a significant player rather than consolidating. In those circumstances we can look at the need for the availability throughout the United Kingdom of a wide range of broadcasting which (taken as a whole) is both of high quality and calculated to appeal to a wide variety of tastes and interests; and the need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to the attainment in relation to broadcasting of standards objectives set out in the Bill.

I recognise that the noble Lord, Lord Fowler, and my noble friend Lord Gordon and others have argued honourably and consistently for the amendment. I recognise their sincerity although I believe that they have failed to keep up with the changes that have taken place in the Bill, particularly the changes that took place on Report as regards foreign ownership and today on plurality.

I believe that this is an opportunistic amendment. Bearing in mind that the House voted last week at Report stage for opening up to foreign investment, to attempt to frustrate and to reverse that decision of the House at Third Reading is an undesirable proposition. If the amendment is moved to a Division I hope that it will be defeated.

9.45 p.m.

Lord Fowler

My Lords, I thank my noble friend Lord Crickhowell, the noble Lord, Lord McNally, the noble Baroness, Lady Howe, and the noble Lord, Lord Gordon, for their support. All the Back-Bench speakers who have spoken in this debate have supported my proposition. The only person who has spoken against it is the Minister.

In particular, I agree with the noble Lord, Lord Gordon, that the man in the street will regard it as unbelievable that we should be giving away our rights in this way. Clearly, that will be the view of many people in this country. The Minister at one stage slightly criticised the media knowledge of the noble Lord, Lord Gordon. Perhaps I may say to him that I suspect that the noble Lord's knowledge of the media is rather deeper than that of many on the Government's Front Bench.

The noble Lord. Lord McIntosh, is also wrong in saying that I am arguing against foreign ownership. I am not; I am saying that if there is to be foreign ownership, there should be reciprocal arrangements. That is the argument. It is fairly simple and straightforward. It is not being put opportunistically, as he says; it is the argument that I and my colleagues have been putting consistently during the passage of the Bill.

I shall not repeat all our arguments. I want to make two points. In no way is this an anti-United States amendment. As I have made clear at every stage. I am strongly pro-American. In no way is this anti-free trade. I am also strongly in favour of free trade: businesses competing with one another on a level playing field. But in the case of television and broadcasting, the playing field will be anything but level. Basically, the Bill allows United States' companies to buy ITV in Britain, and now ITN with it—so ITV and ITN, quite a purchase—without any reciprocal arrangements for British companies. That is what the public will find when they understand the implications of the Bill—and that is what they will find so hard to understand. They will also find it hard to understand why this House and both Front Benches back that particular proposition.

That arrangement is neither sensible nor in our national interests and, frankly, I have found few people who think it is. The hour is late. I have absolutely no illusions. I know perfectly well that many will have gone home. As I look around the House I see many noble Lords I have not seen at earlier stages in the Bill. The Whips on both sides appear to have done their jobs. So I am under no illusions. But I also say this: there is an important principle here. The position of both Front Benches is, frankly, disastrous and they will both come to regret it. So I believe that that opposition, however small, should be expressed and should be on the record. I want to take the view of the House on the subject.

9.47 p.m.

On Question, Whether the said amendment (No. 71) shall he agreed to?

Their Lordships divided: Contents, 37; Not-Contents, 121.

Division No. 3
CONTENTS
Brooke of Sutton Mandeville, L.	MacGregor of Pulham Market, L.
Brougham and Vaux. L.
Carnegy of Lour, B.	McNally, L.
Cohen of Pimlico B.	Miller of Chilthorne Domer, B.
Crickhowell, L. [Teller]	Monro of Langholm, L.
	Monson, L.
Elder, L.	Northbrook, L.
Elliott of Morpeth, L.	Northesk, E.
Falkland, V.	Norton of Louth, L.
Fowler, L. [Teller]	O'Cathain, B.
Geddes, L.	O'Neill of Bengarve, B.
Gordon of Strathblane. L.	Phillips of Sudbury, L.
Greenway, L.	Russell, E.
Harris of Richmond, B.	Scott of Needham Market, B.
Henley, L.	Shutt of Greetland, L.
	Smith of Clifton, L.
Howe of Aberavon, L.	Sutherland of Houndwood, L.
Howe of Idlicote, B.	Thomson of Monifieth, L.
King of Bridgwater, L.	Tope, L.
Laird, L.	Williams of Crosby, B.

NOT-CONTENTS
Acton, L.	Clinton-Davis, L.
Andrews, B.	Cope of Berkeley, L.
Archer of Sandwell, L.	Corbett of Castle Vale, L.
Ashton of Upholland, B.	Crawley, B.
Astor of Hever, L.	Davies of Coity, L.
Attlee, E.	Davies of Oldham, L. [Teller]
Bach, L.	Dean of Thornton-le-Fylde, B.
Bassam of Brighton, L.	Desai, L.
Billingham, B.	Dixon, L.
Blackstone, B.	Dixon-Smith, L.
Blatch, B.	Dubs, L.
Borrie, L.	Evans of Parkside, L.
Bragg. L.	Evans of Temple Guiting, L.
Brett, L.	Farrington of Ribbleton, B.
Bridgeman, V.	Faulkner of Worcester, L.
Brigstocke, B.	Fyfe of Fairfield, L.
Brooke of Alverthorpe, L.	Gale, B.
Brookman, L.	Gibson of Market Rasen, B.
Burlison, L.	Gilbert, L.
Buscombe, B.	Glentoran, L.
Byford, B.	Golding, B.
Campbell-Savours, L.	Goudie, B.
Carter, L.	Gould of Potternewton, B.
Chandos, V.	Grocott, L. [Teller]
Chester, Bp.	Hanningfield, L.
Clark of Windermere, L.	Hardy of Wath, L.

Harris of Haringey, L.	Patel, L.
Harrison, L.	Pendry, L.
Haskel, L.	Pitkeathley, B.
Hayman, B.	Radice, L.
Higgins, L.	Ramsay of Cartvale, B.
Hogg of Cumbernauld, L.	Randall of St. Budeaux, L.
Hollis of Heigham, B.	Rawlings, B.
Howe, E.	Rendell of Babergh, B.
Howells of St. Davids, B.	Renton, L.
Hughes of Woodside, L.	Rooker, L.
Hunt of Wirral, L.	Saatchi. L.
Irvine of Lairg, L.	Sainsbury of Turville. L.
Jay of Paddington, B.	Sawyer, L.
Jones, L.	Scotland of Asthal, B.
Kimball, L.	Seccombe, B.
Kirkhill, L.	Simon, V.
Layard, L.	Smith of Leigh. L.
Lea of Crondall, L.	Soulsby of Swaffham Prior, L.
Lockwood, B.	Stone of Blackheath, L.
Lofthouse of Pontefract, L.	Strathclyde, L.
Luke, L.	Taylor of Blackburn, L.
Macdonald of Tradeston, L.	Taylor of Warwick, L.
McIntosh of Haringey, L.	Thornton, B.
McIntosh of Hudnall, B.	Vivian, L.
MacKenzie of Culkein, L.	Waddington, L.
Manchester, Bp.	Wakeham, L.
Mancroft, L.	Warner, L.
Mar, C.	Warwick of Undercliffe, B.
Masham of Ilton, B.	Watson of Invergowrie, L.
Massey of Darwen, B.	Whitaker, B.
Mayhew of Twysden, L.	Whitty, L.
Miller of Hendon, B.	Wilcox, B.
Mitchell, L.	Williams of Mostyn, L.(Lord President of the Council)
Montrose, D.
Noakes, B.	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

9.58 p.m.

Clause 347 [Restrictions relating to nominated news providers]:

Lord McIntosh of Haringey moved Amendment No. 72:

Leave out Clause 347.

On Question, amendment agreed to.

Clause 356 [Grants to access radio providers]:

Lord Evans of Temple Guiting moved Amendment No. 73:

Page 313, line 44, at end insert— () The Secretary of State may by order provide that OFCOM may also make such grants as they consider appropriate to the provider of any service of a description of service in relation to which provision is for the time being in force under section 242.

The noble Lord said: My Lords, in moving Amendment No. 73, I shall speak also to Amendments Nos. 75 to 77 and 79 and to Amendments Nos. 74 and 78 in the names of the noble Lord, Lord McNally, and the noble Viscount, Lord Falkland.

Amendments Nos. 74 and 78 would enable the Secretary of State by order to extend the grant-making power in the Bill to cover local digital television services. We are prepared to accept the intention behind these amendments and have therefore tabled government amendments which will allow access radio grants to be extended by order to cover local digital television services.

We would, however, stress that this should not be taken as a sign that we propose to extend grants to local television in the near future. We do not want to raise unrealistic expectations. It will be difficult to secure any resources for access radio services, never mind having sufficient resources to support local TV as well.

However, if circumstances change in the future, it may be possible to provide support for local TV services, and it makes sense to "future proof" the Bill in the way proposed by these amendments.

We think it is unlikely that grants would be given to for-profit organisations, but do not believe that we should absolutely rule it out in advance. This is consistent with the approach in Clause 260, which refers to access radio services being "primarily" for the good of the public rather than for commercial reasons. I beg to move.

10 p.m.

Viscount of Falkland

My Lords, I rose from these Benches at Report to talk about the importance of community radio and television. We are grateful that the Government have seen fit to table their own amendments which concede provision for Clause 356 to be extended to cover the possibility of supporting future community television. This is perhaps the minimum necessary for the Bill to recognise the increasingly converging nature of community media. With regard to our Amendments Nos. 74 and 77, I would like to make a couple of points. Amendment No. 74 specifies that in extending the fund to cover local digital television, it should be limited to services not run for commercial purposes". We do not consider it necessary or appropriate for the fund to be used to subsidise services whose purposes are primarily commercial. The government amendment does not make that distinction clear, although it would be in the power of the Secretary of State to act later should he see fit to do so by order in Parliament.

Amendment No. 78 and the government Amendment No. 77 both have the effect of removing the words "access radio" from the face of the Bill. We welcome this development. Access radio as a term is problematical and, in the firmly held view of the Community Media Association in particular, its use would be detrimental to the viability and success of community radio in the United Kingdom. The government proposals for access radio are broadly fully in line with the understood concepts and practice of community radio. Only the name "access radio" is new.

This is confusing to funding agencies, as well as policy and opinion formers and others whose support of community radio is important. It sends a message about government commitment to and understanding of the sector. Supporters and practitioners of community radio have been seeking recognition for 20 years. To those in today's converging community media sector, it seems perverse finally to recognise the demand for appropriate legislation but not to call the sector what it calls itself.

I do not think that I need to dwell on this any further. The point has been well made and recognised by the Government. Access radio is a weak brand name and community radio a strong one. I do not think that I need to add anything further. I thank the Government yet again for tabling their amendment.

Lord Evans of Temple Guiting

My Lords, I shall speak very briefly.

Noble Lords

Hear, hear!

Lord Evans of Temple Guiting

My Lords, I shall demonstrate to your Lordships what very briefly means. All listen. The purpose of these amendments is to future proof the Bill to give Ofcom the flexibility that we need.

On Question, amendment agreed to.

[Amendment No. 74 not moved.]

Lord McIntosh of Haringey moved Amendments Nos. 75 to 77:

Page 313, line 45, leave out "under" and insert "by virtue of"

Page 314, line 2, leave out "under" and insert "by virtue of"

Page 314, line 6, leave out from "to" to "a" in line 7 and insert "a licence mentioned in subsection (4). (4) Those licences are—

1. (a) a licence under Part 1 of the 1990 Act, or under Part 1 of the 1996 Act, which is granted in accordance with any provision made by an order under section 242 of this Act; and"

On Question, amendments agreed to.

[Amendment No. 78 not moved.]

Lord McIntosh of Haringey moved Amendment No. 79:

Page 314, line 9. at end insert— () No order is to be made containing provision authorised by this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

On Question, amendment agreed to.

Clause 359 [Interpretation of Part 3]:

Lord McIntosh of Haringey moved Amendment No. 80:

Page 316, line 43, at end insert— "Channel 3 licence" means a licence to provide a Channel 3 service:

On Question, amendment agreed to.

Clause 367 [OFCOM's functions under Part 4 of the Enterprise Act 2002]:

Lord McIntosh of Haringey moved Amendment No. 81:

Page 326, line 45, leave out "or (4)" and insert "to (4A)".

On Question, amendment agreed to.

Clause 368 [OFCOM's functions under the Competition Act 1998]:

Lord McIntosh of Haringey moved Amendment No. 82:

Page 328, line 11, leave out "or (4)" and insert "to (4A)".

On Question, amendment agreed to.

Clause 372 [Newspaper public interest considerations]:

Lord McIntosh of Haringey moved Amendments Nos. 83 to 85:

Page 329, line 17, leave out "section 58(2)" and insert "subsection (2) of section 58"

Page 329. line 24, after "a" insert "sufficient"

Page 329. line 27, at end insert—

"(2C) The following are specified in this section—

1. (a) the need, in relation to every different audience in the United Kingdom or in a particular area or. locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience;
2. (b) the need for the availability throughout the United Kingdom of a wide range of broadcasting which (taken as a whole) is both of high quality and calculated to appeal to a wide variety of tastes and interests; and
3. (c) the need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in section 315 of the Communications Act 2003."

(2) After that section there shall be inserted, in Chapter 2 of Part 3—

"58A CONSTRUCTION OF CONSIDERATION SPECIFIED IN SECTION 58(2C)

1. (1) For the purposes of section 58 and this section an enterprise is a media enterprise if it consists in or involves broadcasting.
2. (2) In the case of a merger situation in which at least one of the enterprises ceasing to be distinct consists in or involves broadcasting, the references in section 58(2C)(a) or this section to media enterprises include references to newspaper enterprises.
3. (3) In this Part "newspaper enterprise" means an enterprise consisting in or involving the supply of newspapers.
4. (4) Wherever in a merger situation two media enterprises serving the same audience cease to be distinct the number of such enterprises serving that audience shall be assumed to be more immediately before they cease to be distinct than it is afterwards.
5. (5) For the purposes of section 58 where two or more media enterprises—
   1. (a) would fall to be treated as under common ownership or common control for the purposes of section 26, or
   2. (b) are otherwise in the same ownership or under the same control,

they shall be treated (subject to subsection (4)) as all under the control of only one person.

(6) A reference in section 58 or this section to an audience shall be construed in relation to a media enterprise in whichever of the following ways the decision-making authority considers appropriate—

1. (a) as a reference to any one of the audiences served by that enterprise, taking them separately;
2. (b) as a reference to all the audiences served by that enterprise, taking them together;
3. (c) as a reference to a number of those audiences taken together in such group as the decision-making authority considers appropriate; or
4. (d) as a reference to a part of anything that could be taken to be an audience under any of paragraphs (a) to (c) above.

1. (7) The criteria for deciding who can be treated for the purposes of this section as comprised in an audience, or as comprised in an audience served by a particular service—
   1. (a) shall be such as the decision-making authority considers appropriate in the circumstances of the case; and
   2. (b) may allow for persons to be treated as members of an audience if they are only potentially members of it.
2. (8) In this section "audience" includes readership.
3. (9) The power under subsection (3) of section 58 to modify that section includes power to modify this section."

(2) In section 127(1) of that Act (associated persons to be treated as one person), for the word "and" at the end of paragraph (a) there shall be substituted— (aa) for the purposes of section 58(2C); and".

On Question, amendments agreed to.

Clause 373 [Adaptation of role of OFT in initial investigations and reports]:

Lord McIntosh of Haringey moved Amendments Nos. 86 to 92:

Page 329, line 32, leave out "newspaper" and insert "media"

Page 329, line 36, leave out "newspaper" and insert "media"

Page 330, line 4, leave out "newspaper" and insert "media"

Page 330, line 7, leave out "or (2B)" and insert "to (2C)"

Page 330, line 8, at end insert "broadcasting or"

Page 330, line 9, at end insert— (8A) In this Part "broadcasting" means the provision of services the provision of which—

1. (a) is required to be licensed under Part 1 or 3 of the Broadcasting Act 1990 or Part I or 2 of the Broadcasting Act 1996; or
2. (b) would be required to be so licensed if provided by a person subject to licensing under the Part in question."

Page 330, line 13, leave out "subsection" and insert "subsect ions (8A) and"

On Question, amendments agreed to.

Clause 374 [Additional investigation and report hr OFCOM ]:

Lord McIntosh of Haringey moved Amendments Nos. 93 and 94:

Page 330, line 21, leave out "newspaper" and insert "media"

Page 330, line 27, leave out "newspaper" and insert "media"

On Question, amendments agreed to.

Clause 375 [Extension of special public interest regime for certain newspaper mergers]:

Lord McIntosh of Haringey moved Amendments Nos. 95 to 102:

Page 330, line 38, at beginning insert "In"

Page 330, line 39, leave out from "cases)" to "subsections" in line 40 and insert ", for"

Page 331, line 6, leave out "either"

Page 331, line 8, leave out "or"

Page 331, line 10, at end insert "or (iii) the condition mentioned in subsection (3D) was satisfied.

Page 331, line 27, at end insert— (3D) The condition mentioned in this subsection is that, in relation to the provision of broadcasting of any description, at least one-quarter of all broadcasting of that description provided in the United Kingdom, or in a substantial part of the United Kingdom, was provided by the person or persons by whom one of the enterprises concerned was carried on."

Page 331, line 28, after "(6)" insert "of that section"

Page 331, line 29, leave out from "(6A)" to first "The" in line 8 on page 332. () After that section there shall be inserted—

"59A CONSTRUCTION OF CONDITIONS IN SECTION 59(3C) AND (3D)

1. (1) For the purpose of deciding whether the proportion of one-quarter mentioned in section 59(3C) or (3D) is fulfilled with respect to—
   1. (a) newspapers of any description, or
   2. (b) broadcasting of any description,

the decision-making authority shall apply such criterion (whether value, cost, price, quantity, capacity, number of workers employed or some other criterion, of whatever nature), or such combination of criteria, as the decision-making authority considers appropriate.

1. (2) References in section 59(3C) to the supply of newspapers shall, in relation to newspapers of any description which are the subject of different forms of supply, be construed in whichever of the following ways the decision-making authority considers appropriate—
   1. (a) as references to any of those forms of supply taken separately;
   2. (b) as references to all those forms of supply taken together; or
   3. (c) as references to any of those forms of supply taken in groups.

1. (3) For the purposes of subsection (2) the decision-making authority may treat newspapers as being the subject of different forms of supply whenever—
   1. (a) the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and
   2. (b) the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference.

1. (4) References in section 59(3D) to the provision of broadcasting shall, in relation to broadcasting of any description which is the subject of different forms of provision, be construed in whichever of the following ways the decision-making authority considers appropriate—
   1. (a) as references to any of those forms of provision taken separately;
   2. (b) as references to all those forms of provision taken together; or
   3. (c) as references to any of those forms of provision taken in groups.

1. (5) For the purposes of subsection (4) the decision-making authority may treat broadcasting as being the subject of different forms of provision whenever—
   1. (a) the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and
   2. (b) the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference.

1. (6) The criteria for deciding when newspapers or broadcasting can be treated, for the purposes of section 59, as newspapers or broadcasting of a separate description shall be such as in any particular case the decision-making authority considers appropriate in the circumstances of that case.

1. (7) In section 59 and this section "provision" and cognate expressions have the same meaning in relation to broadcasting as in Part 3 of the Communications Act 2003; but this subsection is subject to subsections (3) and (4) of this section.""

On Question, amendments agreed to.

Clause 376 [Adaptation of role of OFT in special public interest regime]:

Lord McIntosh of Haringey moved Amendments Nos. 103 and 104:

Page 332, line 16, leave out "or (2B)" and insert "to (2C)"

Page 332, line 24, leave out "or (2B)" and insert "to (2C)"

On Question, amendments agreed to.

Clause 377 [Additional investigation and report by OFCOM: special public interest cases]:

Lord McIntosh of Haringey moved Amendments Nos. 105 and 106:

Page 332, line 37, leave out "or (2B)" and insert "to (2C)"

Page 333, line 3, leave out "or (2B)" and insert "to (2C)"

On Question, amendments agreed to.

Clause 378 [Public consultation in relation to newspaper mergers]:

Lord McIntosh of Haringey moved Amendments Nos. 107 and 108:

Page 333, line 18, leave out "newspaper" and insert "media"

Page 333, line 20, leave out "or (2B)" and insert "to (2C)"

On Question, amendments agreed to.

Clause 380 [Advice and information in relation to newspaper mergers]:

Lord McIntosh of Haringey moved Amendments Nos. 109 and 110:

Page 335, line 5, leave out "and (2B)" and insert "to (2C)"

Page 335, line II, leave out "and (2B)" and insert "to (2C)"

On Question, amendments agreed to.

Clause 383 [Monitoring role for OFT in relation to newspaper mergers]:

Lord McIntosh of Haringey moved Amendments Nos. 111 and 112:

Page 336, line 21, leave out "or (2B)" and insert "to (2C)"

Page 336, line 28, leave out "or (2B)" and insert "to (2C)"

On Question, amendments agreed to.

Clause 384 [Enforcement powers in relation to newspaper mergers]:

Lord McIntosh of Haringey moved Amendments Nos. 113 to 115:

Page 336, line 37, leave out "or" and insert— () an intervention notice which mentions any other media public interest consideration in relation to a relevant merger situation in which one of the enterprises ceasing to be distinct is a newspaper enterprise;

Page 336, line 39, after "(2B);" insert "or () a special intervention notice which, in relation to a special merger situation in which one of the enterprises ceasing to be distinct is a newspaper enterprise, mentions a consideration specified in section 58(2C);

Page 337, line 17, at end insert— () In this paragraph "newspaper public interest consideration" means a media public interest consideration other than one which is such a consideration—

1. (a) by virtue of section 58(2C); or
249
2. (b) by virtue of having been, in the opinion of the Secretary of State, concerned with broadcasting and a consideration that ought to have been specified in section 58."

On Question, amendments agreed to.

Clause 385 [Alterations concerning newspaper panel of Competition Commission]:

Lord McIntosh of Haringey moved Amendment No. 116:

Page 337, line 26, leave out "Part 3 of" and insert "paragraph 20A of Schedule 8 to"

On Question, amendment agreed to

Clause 388 [Review of media ownership]:

Lord McIntosh of Haringey moved Amendments Nos. 117 to 122:

Page 338, line 39, leave out "section 278 of this Act and section 32 of the 1990 Act" and insert "sections 278 and (Disqualification from appointment as news provider)"

Page 339, line 3, at end insert "or other media enterprises"

Page 339, line 12, leave out "in relation to news provision" and insert "under sections 279 and 280"

Page 339, line 13, leave out "59(6E)" and insert "59(6A)"

Page 339, line 14, leave out "newspaper" and insert "media"

Page 339, line 15, leave out subsection (5).

On Question. amendments agreed to.

Clause 402 [General interpretation]:

Lord McIntosh of Haringey moved Amendment No. 123:

Page 352, line 42. at end insert— "purposes of public service television broadcasting in the United Kingdom" shall be construed in accordance with subsection (4) of section 262 and subsections (5) and (6) of that section shall apply for the purposes of any provision of this Act referring to such purposes as they apply for the purposes of a report under that section:

On Question, amendment agreed to.

The Countess of Mar

My Lords, Perhaps I may ask the noble Lord the Chief Whip how long he believes the House should continue sitting.

Lord Grocott

My Lords, we shall continue until we finish, but the intervention has delayed proceedings by another 20 seconds.

Lord McIntosh of Haringey moved Amendment No. 124:

After Clause 405, insert the following new clause—

"MODIFICATIONS CONSEQUENTIAL ON REGULATIONS IMPLEMENTING DIRECTIVES

1. (1) This section applies if it appears to the Secretary of State that regulations under section 2 of the European Communities Act 1972 (c. 68) for giving effect to Community obligations imposed by the Communications Directives have come into force before the passing of this Act.
2. (2) The Secretary of State may by order—
   1. (a) repeal any relevant provision of this Act which appears to him to be unnecessary, or to have become spent, in consequence of the regulations;
   2. (b) make such other modifications of the relevant provisions of this Act as he considers appropriate in consequence of the regulations;
   3. (c) revoke provision made by the regulations; and
   250
   4. (d) make transitory or transitional provision in relation to anything done by or under the regulations.
3. (3) The Secretary of State's power under this section includes power to make consequential amendments of enactments not contained in this Act.

(4) In this section— the Communications Directives" means—

1. (a) the Access Directive, that is to say, Directive 2002/19/EC of the European Parliament and of the Council on access to, and interconnection of, electronic communications networks and associated facilities;
2. (b) the Authorisation Directive, that is to say, Directive 2002/20/EC of the European Parliament and of the Council on the authorisation of electronic communications networks and services;
3. (c) the Framework Directive, that is to say, Directive 2002/ 21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services;
4. (d) the Universal Service Directive, that is to say, Directive 2002/22/EC of the European Parliament and of the Council on universal service and users' rights relating to electronic communications networks and services;

relevant provision of this Act" means a provision contained in—

1. (a) Part 1, 2 or 6; or
2. (b) Chapter 1 of Part 5.

(5) No order is to be made containing provision authorised by this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House."

The noble Lord said

My Lords, I am in the unusual position of moving an amendment that I hope is unnecessary. The fact that I am moving it does not mean that the Government believe that the Bill will not receive Royal Assent before the Summer Recess, nor that the European Community directives will not he implemented through the Act and the instruments made under it. However, it would be irresponsible of us not to have a contingency plan.

The plan has been in the public domain since March. It consists of a set of regulations to be made under the European Communities Act 1972, which would enable us to fulfil our Community obligations for the interim period between 25th July and the date on which the relevant provisions of the Bill could be eventually commenced. The DTI has consulted on those interim regulations. The response to the consultation, together with the revised draft of the regulations, is about to be published.

The substance of the interim regime would be the same as the regulatory regime that will be established once the Bill is passed. But the effect of making such interim regulations would be that the regulatory framework that would exist when the Bill was passed would not be the same as that which it had been drafted to replace. That would, for example, make redundant a number of the amendments contained in Schedule 17 to the Bill and a number of the repeals and revocations contained in Schedule 19.

The power proposed in the new plans would enable the raft of technical and legal modifications that would have to be made to the Bill once enacted, as a result of the making of the interim regulations, to be effected in the most efficient manner. It would enable the foundation of the new regime to be shifted to the new Act with a minimum of delay.

I hope that the new clause proves unnecessary, but it would be irresponsible of the Government not to provide for the possibility. I beg to move.

The Earl of Northesk

My Lords, I am gratified by the Minister's introduction of the amendment. It is intriguing to find this curious way of getting around a problem. None the less, I am delighted that it is there. I simply ask the Minister to explain how, under this procedure, the Bill remains substantially amendable. That is how the regulations that it seeks to circumvent need to be resolved.

Lord McIntosh of Haringey

My Lords, however we implement the legislation, ultimately it must be done through the Bill—it must be done through primary legislation. We have the power under the European Communities Act to make interim provision. That involves certain changes in transitional provisions. However, fundamentally, we must implement the directives, and we will do so.

On Question, amendment agreed to.

Clause 407 [Short title, commencement and extent]:

Lord Fowler moved Amendment No. 125:

Page 359, line 14, at end insert— () This Act shall cease to have effect at the expiry of five years after it receives Royal Assent, unless before that time a joint committee of both Houses of Parliament has reported on the operation of this Act, and the report has been debated in both Houses.

The noble Lord said: My Lords, I gather that there is some speculation that I may divide the House on this amendment. For the benefit of those below the gangway, I give the assurance that I will not divide the House. I hope that that improves their arrangements. For old time's sake, in the case of the former Minister for Transport, I hope that that helps him.

The point of this amendment is very simple. It may seem draconian that the Act should fall in five years, given the time and effort expended on it. It may just he that not everyone would welcome a long debate on a new Act. That fate is easily avoided by setting up a committee of both Houses to scrutinise the effects of the Act in practice and to see how it has worked out.

The aim is not to reopen old debates, but to examine whether the intention of the Bill has been realised; in other words—if I could have the Minister's attention for just 30 seconds—I propose a post-legislative scrutiny committee. The Bill has benefited enormously from pre-legislative scrutiny. Again, I pay tribute to the committee, its chairman, the noble Lord, Lord Puttnam, and my noble friend Lord Crickhowell.

I know that the business managers grumbled about the delay. Indeed, the present Leader of the Commons called the proceedings a "filibuster". I do not believe that there was a filibuster. The choice is whether you want speedy legislation or good legislation. To my mind, the pre-legislative scrutiny strengthened the Bill immensely. I hope that that example will be followed with other legislation.

In my experience as a Minister, some of the worst errors are made after the Bill becomes an Act, not because the Bill is not clear or that Ministers intentions have not been set out, but because those intentions have not been acted upon. Ministers move on to other departments, so they are not there to check. New Ministers and civil servants do not give the same priority as their predecessors.

I remember that when I was Social Services Secretary, my then Minister of State, John Major, gave the clearest commitment to the Standing Committee examining the social security reform Bill that the change in the position of widows, and their rights under the state earnings related pension scheme would be the subject of a publicity campaign. Ministers moved on, there was no such campaign and civil servants gave the wrong advice in leaflets. It is inconceivable that errors of that kind would take place if there had been post-legislative scrutiny.

The only argument that could be made against such a proposal is that we could have a communications Select Committee. However, my experience of Select Committees is that they are not accustomed to, nor do they want to go through, the sort of line by line examination that I have in mind. I also think that the advantage of a post-legislative scrutiny committee, which should become standard for major Bills, is that if civil servants know that the implementation of the Bill will be subject to scrutiny, their priority will be to ensure that they are meticulous in carrying out the intentions of the Bill and in fulfilling all pledges that are given.

This Bill is very long and much depends on whether Ofcom has the right powers. The Government have introduced new measures such as the plurality test, which may or may not prove significant. However, at some stage during the five years after this Bill becomes an Act, a post-legislative scrutiny committee should be set up to consider how well the legislation has worked in practice. That would he to the benefit of this House and, above all, to the benefit of the public. I beg to move.

Lord McNally

My Lords, I support this proposal. I do not think that it cuts across the idea of a media Select Committee. However, the idea of "Puttnam II—The Sequel" has many attractions. Next time round, I will try to work out how to get publicity in the newspapers for what I am trying to do with the Bill without every story being accompanied by the most wonderful photograph of the noble Lord, Lord Puttnam. Regardless of what the story is about or the origins of the story, newspapers still get the same wonderful picture from their libraries.

Lord McIntosh of Haringey

He should grow a beard, my Lords.

Lord McNally

My Lords, I think not.

The idea proposed by the noble Lord, Lord Fowler, gives us an opportunity. Governments that stay in office for a while lose their desire for danger, and pre-legislative scrutiny has proved a dangerous exercise. However, I believe that it brings better legislation. It has been a great exercise, although, in the corridors of Whitehall there will be those who say, "Don't try it again, or if you do, don't put somebody as assiduous as the noble Lord, Lord Puttnam, in charge of the committee". The idea of post-legislative scrutiny is one which, in one of the Government's more radical moments, they should consider favourably.

10.15 p.m.

Lord McIntosh of Haringey

My Lords, having heard his speech, I absolve the noble Lord, Lord Fowler, of any intention to kill the Bill after five years. He did not make that suggestion, and I am grateful for that.

This is the last Bill that wants post-legislative scrutiny. It has been a long and, some people would say, tortuous procedure. We started with the publication of the communications White Paper in December 2000; we had consultation on the White Paper; we had further consultation on media ownership in January 2002; we published the Bill in May 2002; and we had pre-legislative scrutiny under the able chairmanship of the noble Lord, Lord Puttnam. By the time that Ofcorm is up and running, the process will have taken three years from start to finish.

I recognise that it is not the noble Lord's intention that we should start all over again in five years' time, but even the threat of post-legislative scrutiny of the kind that he proposes—I assume that he means it seriously; I do not think that he means it to be a paper exercise—would wreak havoc on the communications industry. The provision that he proposes would mean that everything that Ofcom did, everything that the industry did and everything that is done on behalf of consumers—all of those things—would be put into the melting-pot. It does not say anywhere in the amendment what would happen if the Government had to give effect to the post-legislative scrutiny and there had to be amendments to the Bill. None of those things is in the amendment; it is only the beginning of an idea of an amendment. It is the nucleus of an amendment, but it has not been thought through.

It is not within the Government's gift to set up committees of Parliament anyway. We could not accept the amendment even if we wanted to. I can tell the noble Lord, Lord McNally, that we are not giving up on the idea of pre-legislative scrutiny. As he knows, we have just proposed the setting up of a Joint Committee of both Houses for pre-legislative scrutiny of the gambling Bill for which I will be responsible. I look forward very much to that. We are in favour of pre-legislative scrutiny; we are not afraid of it. We recognise that there are dangers, but we think that there are huge opportunities.

In any case, there are plenty of procedures for reporting to Parliament. The Secretary of State and Ofcom must report on the carrying out of their functions by virtue, respectively, of Clause 387 and paragraph 12 of the schedule to the Office of Communications Act 2002. They will have to report annually. Both reports will be laid before Parliament, and the usual channels can provide for debate. It is then for Parliament to decide whether and how to scrutinise and debate the reports. I am sure that there will he plenty of interest in this Chamber and in another place, when that time comes.

I do not oppose in principle and in all circumstances the idea of post-legislative scrutiny, but we should give the industry, Ofcom and everybody concerned an opportunity to settle down and implement the provisions of the Bill. Above all, we should not introduce post-legislative scrutiny for a Bill that has already had such a degree of pre-legislative scrutiny.

Lord Fowler

My Lords, I guess that that is the nearest that I shall get to agreement with anything that I have said during the passage of the Bill, albeit in the very mild form in which the noble Lord put it at the end of his speech. I shall do as I said, and I shall not seek to divide the House.

There is a serious question to be considered by Parliament. I stand by what I said: many of the problems with legislation are due not to the drafting of an Act but to its implementation. I make no complaint about the pre-legislative scrutiny that the Bill has had. It has been a model of that. However, I guarantee that problems, issues and faults in the legislation, which none of us can forecast at the moment, will become apparent. Governments generally would he wise to think of the post-legislative stage in a way that they have not done previously.

The Minister has been almost helpful to me, and I thank him for that. As this is the last word that I shall say in the debate, I also thank him for his courtesy during the Bill's passage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 [Functions transferred to OFCOM]:

Lord McIntosh of Haringey moved Amendment No. 126:

Page 361, line 10, leave out paragraph (e).

On Question, amendment agreed to.

Schedule 11 [Approval, imposition and modification of networking arrangements]:

Lord Evans of Temple Guiting moved Amendment No. 127:

Page 406, line 37, at end insert— () Where the defaulter is a partnership constituted under the law of Scotland, the power of the court to punish the defaulter includes power to punish a member of the partnership.

The noble Lord said: My Lords, this is a minor amendment to paragraph 13 of Schedule 11 to the Bill. Under paragraph 12 of that schedule, Ofcom may by notice require a person to produce such information and documents as they consider necessary to determine for the purposes of Section 290 or that schedule whether the competition tests have been satisfied. Those information provisions are enforced by the contempt of court provisions in paragraph 13 of Schedule 11. The amendment reflects the special legal nature of Scottish partnerships by stating that where a defaulter—that is, a person who has failed to comply with an information notice—is a partnership constituted under the law of Scotland, the power of the court to punish the defaulter includes the power to punish a member of the partnership. I beg to move.

On Question, amendment agreed to.

Schedule 12 [Corresponding obligations of the BBC and Welsh Authority]:

Lord McIntosh of Haringey moved Amendment No. 128:

Page 423, line 8, leave out "fair treatment of" and insert "equalisation of opportunities for"

On Question, amendment agreed to.

Schedule 13 [Financial penalties under the Broadcasting Acts]:

Lord Davies of Oldham moved Amendments Nos. 129 and 130:

Page 433, line 2, leave out "and" and insert— (5B) A determination or estimate for the purposes of subsection (2A) or (5) above of the share of multiplex revenue

Page 433, line 36, leave out "and" and insert— (6B) A determination or estimate for the purposes of subsection (2A) or (6) above of the share of multiplex revenue

The noble Lord said: My Lords, as probably my last contribution to this Bill from the Dispatch Box, I have been given the opportunity to make a virtuoso performance to a crowded Chamber. Accordingly, I beg to move.

On Question, amendments agreed to.

Schedule 14 [Media ownership rules]:

[Amendment No. 131 not moved.]

Schedule 15 [Amendments of Broadcasting Acts]:

Lord McIntosh of Haringey moved Amendment No. 132:

Page 447, line 15, leave out paragraph 17.

On Question, amendment agreed to.

Schedule 16 [Further amendments in connection with newspaper mergers]:

Lord McIntosh of Haringey moved Amendments Nos. 133 to 136:

Page 491, line 24, leave out "59(6E)" and insert "59(6A)"

Page 491, line 26, leave out -59(6E1" and insert "59(6A)"

Page 491, line 28, at end insert— () After the entry relating to "Anti-competitive outcome" there shall be inserted— Broadcasting Section 44(8A) () After the entry relating to "Market in the United Kingdom" there shall be inserted— Media public interest Section 44(8)" consideration

Page 491, leave out lines 31 and 32 and insert—" Newspaper enterprise Section 58A(3)"

On Question, amendments agreed to.

Schedule 18 [Transitional Provisions]:

Lord Evans of Temple Guiting moved Amendment No. 137:

Page 538, line 19, after first "a" insert "person (whether or not a"

The noble Lord said: My Lords, paragraphs 3 and 4 of this schedule, which were inserted on Report, provide a wider range of savings for agreements that are in some sense conditional on the holding of licences under the 1984 Act. However, the noble Lord, Lord Avebury, questioned whether they would be effective to save certain rights of Crown Castle, the transmission services company, which are expressed by references to licences held by other persons. Officials have discussed the situation with Crown Castle, and I am happy to table amendments that the company confirm will resolve their concern.

These amendments broaden the references to licence under the 1984 Act, so that licences can be held by any person. That will effectively save any rights or obligations expressed by reference to licences held by persons who are not party to the agreements. The consequential amendments clarify the rights and obligations in question for a person who is a party to the agreement. I should also like to move three small amendments correcting minor errors and omissions in these paragraphs. I beg to move Amendments Nos. 137 to 144.

The Countess of Mar

My Lords, perhaps I may point out to the noble Lord that he can move only the first amendment, Amendment No. 137, and that he speaks to the rest of the amendments.

Lord Evans of Temple Guiting

My Lords, I am grateful to the noble Countess. That was pointed out by my noble friend Lord McIntosh as I sat down.On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendments Nos. 138 to 145:

Page 538, line 40, at end insert "or electronic communications service"

Page 539, line 27, after "person" insert "("the contracting party")" .

Page 539, line 28, at end insert "or another person (whether or not a party to the agreement)"

Page 539, line 34, leave out "that person" and insert "the contracting party"

Page 539, line 36, leave out "the case of a person who" and insert "relation to a case in which the person in question".

Page 539, line 46, at end insert "or electronic communications service"

Page 550, line 21, leave out "or electronic communications service"

Page 558, line 42, leave out paragraph 35 and insert—

"Continuity in relation to appointed news provider

35 Where a body holds an appointment for the purposes of section 31(2) of the 1990 Act immediately before the date of the commencement of section 278 of this Act—

1. (a) that appointment shall have effect in relation to times on and after that date as an appointment for the purposes of arrangements entered into in accordance with conditions imposed under section 278 of this Act;
257
2. (b) the arrangements under which that appointment was made shall have effect in relation to such times as arrangements so entered into; and
3. (c) so much of the appointment or arrangements, or of any agreement to which the body is a party, as makes provision by reference to the body's ceasing to be nominated under section 32 of the 1990 Act shall have effect in relation to such times as if references to ceasing to be so nominated were references to becoming a body falling within section (Disqualification from appointment as news provider)(2) of this Act."

On Question, amendments agreed to.

Schedule 19 [Repeals]:

Lord McIntosh of Haringey moved Amendments Nos. 146 and 147:

Page 574, column 2, leave out lines 29 and 30 and insert— Sections 30 to 36.

Page 580, line 7, leave out "and 75" and insert "to 76"

On Question, amendments agreed to.

In the Title:

Lord McIntosh of Haringey moved Amendment No. 148: Line 5, leave out "newspaper mergers" and insert "mergers involving newspaper and other media enterprises

On Question, amendment agreed to.

Lord McIntosh of Haringey

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

Moved, That the Bill do now pass.—(Lord McIntosh of Haringey.)

Lord Puttnam

My Lords, the hour is late. However, as I have spent two years of my life and other members of the House have spent significant periods of their lives on this Bill, it is important to make one or two small points before the Bill passes. I believe that the noble Lord, Lord Fowler, did the House a favour in raising the issues that he did. I want to speak very briefly about the principle of pre-legislative scrutiny—about what I and, I am sure, the noble Lord, Lord McNally, have learned from it—and offer the Government a few observations.

I was delighted to hear the noble Lord, Lord McIntosh, say that there was no question about the future of pre-legislative scrutiny, but that was not the story that we were being told two or three months ago, when the general word around my party was that we were seriously damaging the future of pre-legislative scrutiny by appearing to be so pernickety.

The Government would do well to look again at the report of the committee and reflect on the way in which they reacted to the initial recommendations a year ago. Hours and hours of legislative time could have been saved had the Government been more moderate and more thoughtful in their response. We have made enormous progress on the Bill, but a great deal of that progress could have been made by a more thoughtful response in the first place. I take some blame for that. It is important for me to say that I think I allowed an over-adversarial relationship to be created between the pre-legislative scrutiny committee and the Bill team. The lesson that I would offer to anyone chairing a prelegislative scrutiny committee in future is not to allow that division to occur. It was unnecessary, but it has, I stress, caused this House many unnecessary hours of debate and dissent.

I have learnt an extraordinary lesson about the parliamentary process. It is fundamental that in any forthcoming discussions in this Chamber about the future of the House of Lords, someone must take into account who will do the job of scrutinising legislation. If one thing has been absolutely apparent, it is that no form of adequate scrutiny took place before the Bill came to this House. It has been a total disgrace. No one yet has been able to explain adequately why no proper scrutiny currently takes place in another place. That is a very serious issue. I hope that someone somewhere will read these remarks and address them in a serious way.

I would also suggest that any government tie pre-legislative scrutiny to a commitment to take Committee stage out of the Chamber. It would free up time in this Chamber; it would move governrnent business along; and I do not believe that any damage would occur in the process. I pass that on as serious advice because, again, hours and hours of time could have been advantageously saved.

I shall leave the last word to a man I admire very much—the founder of CNN, Ted Turner. Why Ted Turner? Ted Turner is exactly the type of media entrepreneur that I think this Bill was intended to encourage into a possible interest in this country. On 30th May, he wrote in the Washington Post: the Federal Communications Commission (FCC) is expected to adopt dramatic rule changes that will extend the market dominance of the five media corporations that control most of what Americans read, see and hear. I"— Mr Turner, and not me, sadly— am a major shareholder in the largest of those five corporations, yet—speaking only for myself, and not for AOL Time Warner—I oppose these rules. They will stifle debate, inhibit new ideas and shut out smaller businesses trying to compete.…When the smaller businesses are gone, where will the new ideas come from? Nor does this trend bode well for new ideas in our democracy—ideas that only come from diverse news and vigorous reporting". He continued: Even more troubling are the warning signs that large media corporations—with massive market power—could abuse that power by slanting news coverage in ways that serve their political or financial interests. There is always the danger that news organizations can push positive stories to gain friends in government, or unleash negative stories on artists, activists or politicians who cross them, or tell their audiences only the news that confirms entrenched views. But the danger is greater when there are no competitors to air the side of the story that the corporation wishes to ignore".

Anyone looking at the news coverage of this Bill as it has gone through Parliament would have seen a marked difference between the coverage it got in certain publications and the almost complete blank it received from others. Ted Turner went on to say: Naturally, corporations say they would never suppress speech. That may be true. But it's not their intentions that matter. It's their capabilities. The new FCC rules would give them more power to cut important ideas out of the public debate, and it's precisely that power that rules should prevent". I hope that through the amendments that we have recently attached to this genuinely excellent Bill, we have precisely addressed Ted Turner's worst fears, and as a consequence we may continue to enjoy the best and most plural broadcast environment in the world. We are handing the Bill on to the noble Lord, Lord Currie, and I am reminded very much of when my father taught me to ride a bicycle. He spent many hours running up and down the street, holding the saddle of my bike, until one day I turned around and realised that he had let go and was not there.

Tonight we have let go of the bike. The noble Lord, Lord Currie, will be asked to pedal away and all our best wishes and—speaking for myself—our dearest hopes go with him and with Ofcom. I am grateful to all noble Lords who have taken part in this debate. The Bill has been important. We have covered very interesting and important areas in a remarkably good spirit, albeit at great length.

Lord McNally

My Lords, I know that the Minister will groan inwardly, but there are two points that I want to make. I wish that I could wish the Bill Godspeed with the same confidence as the noble Lord, Lord Puttnam, but the more I have looked at the issue, the more I have seen large global forces at work that will not go away. I said that the Government have mounted a tiger, and I wonder how many in a few years' time will be making mea culpas similar to that made by the noble Lord, Lord Renton, about the 1990 Broadcasting Bill.

The other thing that I have been left with, apart from the wonderful experience of serving under the noble Lord, Lord Puttnam, on the pre-legislative committee, is a determination that the next stage of this matter—the defence of the BBC and the BBC Charter—is a battle that has to be won. I send the Bill on with that in mind.

Baroness Buscombe

My Lords, this has been an amazing experience for all of us. I want to thank all noble Lords for the great courtesy that they have shown throughout the debates and I wish the Bill well.

Lord Currie of Marylebone

My Lords, as chairman of Ofcom, I express my thanks for the enormous care and thoroughness with which your Lordships have considered this Bill. The House has lived up to its fine reputation as an effective revising chamber. In many respects, the Bill leaves the House in a much better shape than when it arrived. I pay tribute to noble Lords from all parts of the House for the care and consideration that they have given to it.

Ofcom is very much the servant of statute, and my colleagues and I have been aware that it is for Parliament to determine Ofcom's duties, responsibilities and powers and for us to make that work to best effect. That is why I have intervened sparingly in the debates. However, I have listened carefully and read all those contributions that I have been unable to hear in person. The debates that we have had will inform how Ofcom moves—or cycles—forward, and they will certainly inform the way that we set up and proceed to carry out the duties that Parliament has laid upon us.

As a result of the successful amendment of the noble Lord, Lord Puttnam, on Report, Ofcom now has the word "citizen" as part of its principal general duty. I, for one, would be delighted if that word remains firmly in the principal duty of Ofcom when the Bill finally emerges from the parliamentary process, which it has not yet quite done. That would provide welcome clarity.

We have struck a good balance, giving Ofcom clear instructions but also flexibility to deal with the unforeseen—to strike the best balance for the public interest in each individual circumstance. However, there is one issue that I must flag up. The amendment of the noble Lord, Lord Puttnam, had a second impact, which was to put the citizen's interest above that of the consumer in the area of broadcasting and spectrum, but not in that of telecoms. That creates different duties in different parts of Ofcom's activities, which will cause difficulty. It will make Ofcom subject to judicial review and may reduce the effectiveness of Ofcom. It will be the big players, not the small players, who will take advantage of that.

I hope that the Bill in its final form will cast Ofcom's general duties in terms that put the citizen and consumer interest in parity. I emphasise that point, because some noble Lords said that they were not altogether clear where I stood at Report. The citizen's interest is very much at the heart of what Ofcom wants to achieve. My fellow members are in no doubt about the deep concern that the House has for the interests of citizens.

The communications industry is not like any other industry; it is central to our society and our democracy. That is something that the Ofcom board feels with both its head and its heart. However, we believe that if Parliament defines Ofcom's general duty in terms of parity, we are confident that in all circumstances—both those we can foresee and those we cannot—we will be able to reach the best solutions in the public interest. Those solutions should properly reflect the keen concern for citizens that have been expressed in this House.

If we are able at the end of the parliamentary process to have both clarity and parity in Ofcom's general duties, we will have a truly excellent Bill that will serve the public interest and enable Ofcom to pursue it to best effect.

The Lord Bishop of Manchester

My Lords, I am sure that all these speeches have been slightly out of order, but I cannot allow the Bishops' Benches not to be included in these final remarks. God speed the working out of the Bill and the job of Ofcom.

Lord McIntosh of Haringey

My Lords, I do not believe in speeches on the Motion that the Bill do now pass, and I try to avoid them, but they have been made. Therefore, the very least that I can do for the sake of courtesy is to express my gratitude to all noble Lords who have taken part in proceedings on the Bill. I hope that they listened very carefully to the wise words of the noble Lord, Lord Currie, a minute or two ago.

Above all, I want to pay tribute to the work of the members of the Bill team who have been fantastic, both in the quality of the advice that they have given and the way in which they have taken up the challenges that have been brought to the Bill in this House, which, as has been said, is rather different from the way in which matters are considered in another place Having said that, once again I commend the Bill to the House.

On Question, Bill passed, and returned to the Commons with amendments.

House adjourned at twenty-two minutes before eleven o'clock.