1 Clause 3, page 3, line 3, leave out subsection (1) and insert—
(1) It shall be the principal duty of OFCOM, in carrying out their functions—
- (a) to further the interests of citizens in relation to communications matters; and
- (b) in that Context, to further the interests of consumers in relevant markets; and to do so where appropriate by promoting competition.
§ (1A) Where it appears to OFCOM, in relation to the carrying out of any of their functions under Chapter 1 of Part 2, that the requirement specified in subsection (1)(a) conflicts with the requirement specified in subsection (1)(b), they may give priority to the requirement specified in subsection (1)(b)."
§ The Commons disagree to this amendment but propose the following amendments in lieu thereof—
1A Page 3, line 3, leave out subsection (1) and insert—
(1) It shall be the principal duty of OFCOM, in carrying out their functions—
1B Page 4, line 22, at end insert—
(6A) Where OFCOM resolve a conflict in an important case between their duties under paragraphs (a) and (b) of subsection (1), they must publish a statement setting out—
(6B) Where OFCOM are required to publish a statement under subsection (6A), they must—
1C Page 4, line 27, after "subsection", insert "(6A) or
§ Lord McIntosh of Haringey
My Lords, I beg to move that the House do not insist on their Amendment No. 1 to which the Commons have disagreed but do agree with the Commons in their Amendments Nos. 1A to 1C in lieu thereof.
As we come, thankfully, close to the end of parliamentary scrutiny of this Bill, we return to an issue that has produced some of the most interesting debates. It is entirely appropriate that we are debating duties that will set the scene for Ofcom's work. I am sure we will do so in the positive spirit which has carried the Bill since its introduction into the Chamber over four months—and, I understand, 83 hours on the Floor—ago.
In introducing these amendments, it is important to repeat what the Secretary of State for Culture, Media and Sport said in another place. When this House considered Ofcom's general duties, we decided that Ofcom should be given a principal duty to the citizen and consumer, and within that duty, citizen interest should take precedence. We also decided that Ofcom should discharge its duty to the consumer and citizen where appropriate by promoting competition.
The Government are keen to reflect the spirit of the amendment carried in this House. Having listened to what has been said throughout the debate about putting the word "citizen" on the face of the legislation, we recognise that we explained our concerns about using this as a legislative term because of the fear of confusion with legislation concerning nationality. But it is clear that the House of Lords believes that this is the right term. We think that the courts will understand that the phrase "citizen interest" runs through the Bill in a civic sense, applying to such areas as high standards in television and radio, public service broadcasting, universal service for telecommunications and the optimal allocation of spectrum. So the Commons Amendment No. 1A retains the word "citizen".
We want to be sure that the general duties will actually work and there are potential difficulties, which I pointed out at the time, in Lords Amendment No. 1. The noble Lord, Lord Currie, explained on proceedings after Third Reading that the amendment created,different duties in different parts of Ofcom's activities, which will cause difficulty. It will make Ofcom subject to judicial review . It will be the big players, not the small players, who will take advantage of that".—[Official Report, 8/7/03; col. 260.]861 The Government agree with the noble Lord, Lord Currie. By introducing a hierarchy of duties, the Lords amendment would introduce increasing risk of judicial review. Like existing broadcasters, Ofcom must strive to further the interests of both consumers and citizens, as appropriate, and with equal vigour. Ofcom needs the flexibility to achieve the objectives that Parliament is giving it. We absolutely believe that the consumer interest is normally best served by competition, but in citizen interest issues, competition is not the only solution. More often than not, Ofcom will need to act under licensing powers. The Commons amendments seek to remove the potential for legal challenge against Ofcom.
I can assure the House that the Government understand the difference between the interests of the consumer and the interests of providers, an issue that was debated. I want to make it clear that we are not in any way equating the interests of consumers with the interests of the market, nor are we equating the application of competition with an unchecked free market. Ofcom will act for consumers and citizens.
The Commons amendments remove potential dangers contained in differing interpretations of the amendments carried by this House. As well as keeping the word "citizen", we are keeping the concept of a principal duty to further the interests of both citizens and consumers, and these interests shall be equal.
In addition, the Commons amendments bring further measures of transparency and accountability. Where the duty to consumer and citizen come into conflict in important cases, Ofcom will publish a reasoned statement as soon as possible after any decision explaining how the duties came into conflict, how Ofcom resolved the conflict and the reasons behind its decision.
Your Lordships have rightly said time and again that the communications industry is not like any other industry. We believe that our amendments will ensure that communications continue to contribute to a strong and healthy society and democracy.
We are grateful to the noble Lords, Lord Puttnam and Lord Currie, who helped to frame these amendments. Their support has been invaluable in this, as it has been throughout the passage of the Bill, because we welcome the knowledge and experience which comes from the Joint Committee and from the experience of the chairmanship of Ofcom. Also, because of their positive approach, I believe that we have before us amendments that will protect the interests of the citizen and the consumer from the beginning to the very end of the Bill. I believe that these amendments reflect the strong feelings expressed in this Chamber, and I commend them to the House.
Moved, That the House do not insist on their Amendment No. 1 to which the Commons have disagreed but do agree with the Commons in their Amendments Nos. 1 A to 1C in lieu thereof.—(Lord McIntosh of Haringey.)
§ 3.15 p.m.
§ Lord McNally
My Lords, I should say at the outset that these Benches will be supporting the Government's amendments. The Minister mentioned the long journey that we have travelled. I urge people to look at some of the ministerial language that was used at the start of that journey, particularly by Dr Kim Howells and Tessa Jowell, and then study tomorrow the Minister's comments in Hansard. They will then understand just what a journey this has been. We believe it has been very welcome in tilting the Bill back towards public interest and citizens' interest.
Sometimes when the House of Lords passes an amendment, we wonder whether we have done the right thing. Our original amendment, which was carried with such a fine majority and had support from all Members of the House, was the direct precursor to the Government suddenly finding the will and the imagination to concede the Puttnam amendment. If they had not, they would have lost another three votes in this House. I have no quarrel with that, but it shows how sometimes letting the Government know the will of this House early in a Bill's proceedings affects the seriousness with which they listen to subsequent arguments.
We also appreciate the intervention of the noble Lord, Lord Currie. I echo a comment that was made yesterday about the self-regulatory nature of this House. If we had had too firm a Chair on the relevant evening, the noble Lord, Lord Currie, would not have been able to make the helpful statement that he did. But because this House has the common sense to listen when someone has something worth saying and not to stick too closely to the rule book, we received sound advice about the faults in the original amendment. The noble Lord, Lord Puttnam, circulated a letter—he is becoming quite a letter writer—to supporters of the original amendment which states:I believe the Government has understood and taken on board the spirit of our amendments, and in one substantial respect has even improved them. The drafting changes mean that OFCOM will be better equipped to deal with a legal challenge to its decisions".We welcome that.
The dangers are still out there. I read today on the Internet a speech of Howard Dean, the leading Democrat presidential candidate, who is making the kind of speeches in the United States that Tony Blair used to make in the United Kingdom. Howard Dean said:The media conglomerates now dominate almost half of the markets around the country, meaning Americans get less independent and frequently less dependable news, views and information".That is the nature of the task ahead for the noble Lord, Lord Currie, and his colleagues. Despite what the Minister said at Third Reading, this is an untried and untested regulator. We do not know whether we are getting Elliot Ness and The Untouchables or Willy Wonka and the chocolate factory. Only time will tell. I say for the Minister's benefit that that was a joke. I know how he loves to store my jokes.
863 The hopeful point about the legislation is that the reputation that is first on the line is that of the noble Lord, Lord Currie, in regard to the powers he will have and the firmness with which he will use them. We on these Benches have every confidence in him. The amendment is acceptable in that context.
§ Baroness Cohen of Pimlico
My Lords, my noble friend Lord Puttnam is absent as he is undertaking duties as Chancellor of the University of Sunderland. At his request I should make it clear—it appears to me that this message has been passed round the entire Joint Scrutiny Committee—that this amendment has his full support. Indeed, he had a heavy hand in its drafting.
§ Lord Phillips of Sudbury
My Lords, I wish to add one point to what has been said. I join in the happiness at the unanimous agreement. I slightly take issue with what the Minister reported of the views of the noble Lord, Lord Currie. The Minister did not misreport the noble Lord, Lord Currie, but I slightly take issue with the purport of his remarks; namely, that the Commons amendment will make life easier from a legal point of view. Be that as it may, whatever has been lost—here I speak as one who doubts the cultural efficacy of markets, if I can put it that way—by taking citizens' interests from a position where they were, so to speak, prior to consumer interests to the position we now have, I believe has been made up for by the fact that the furtherance of the interests of citizens is no longer to be subject to the qualification to do so.where appropriate by promoting competition".It seems to me that we have a clearer separation of consumer interests, which are now not hitched to promotion of competition at all, whereas under the Puttnam amendment they were. As I say, I think that we gain with one hand whatever we may have lost with the other.
§ Lord Ashley of Stoke
My Lords, I am pleased that the amendments of my noble friend Lord Puttnam have been accepted by the Government in principle. I know that he is also delighted. He is especially delighted with the statement by the Secretary of State which accompanied the moving of the government amendments. The guiding principle of my noble friend Lord Puttnam is that the citizen should have equal rights and equal consideration with the consumer. I congratulate my noble friend on his enormous achievements in the Bill. I congratulate my noble friend Lord McIntosh on his magnificent input into the Bill. I also thank Tessa Jowell for accepting the amendments.
§ Baroness Howe of Idlicote
My Lords, I read carefully what was said in the other place. It is clear from that and from what your Lordships have said today that these amendments, even if not entirely satisfactory to everyone, are workable.
864 I confess to being one of those who retain some doubts, for example, about how potential conflicts of interest between citizens and consumers will be satisfactorily resolved. It may well be that placing such inherently conflicting issues under one regulatory roof makes that inevitable.
However, as others have said—this is crucially important—the word as well as the concept of "citizen" and "citizen's interest"—which is often very different from that of consumers—is now firmly on the face of the Bill. Here I rather share the view of Brian White in the other place who suggested that perhaps an alternative parliamentary legal view is required when disputes about the meanings of words such as "citizen" occur.
So, I confess to being a sufficient "groupie" of the noble Lord, Lord Puttnam, to put my remaining doubts about these clauses to one side!
§ On Question, Motion agreed to.