Lords Sitting of 23 June 2003

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

Carers
Baroness Pitkeathleyasked Her Majesty's Government:
What measures are being taken to improve carers' opportunities for employment and learning, for maintaining their own health and well-being, and for accessing information to help them in caring.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, the Government are working with Carers UK to tackle barriers to carers who wish to stay in work or return to work. The Government's work-life balance initiative encourages greater flexibility by employers for people with caring responsibilities. The carers grant supports local councils in providing short breaks to carers to enable them to maintain their own health and wellbeing. By 2005–06, the grant will have doubled to £180 million per year that councils should use to provide services and 130,000 further breaks to carers. The new flexibility in the grant will enable it to be used for a wide variety of training opportunities. We shall continue to work to improve quality and accessibility of information for carers and the new carers online website is an example of improvements that can be made.
Baroness Pitkeathley: My Lords, I thank my noble friend for that reply. I am very happy to acknowledge the huge progress made for carers under this Government. My noble friend will perhaps remember
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some of the reports which he wrote for Carers UK and that the changes and improvements for which he called have largely happened. Does he agree that the latest report from Carers UK, Missed Opportunities, shows a worrying and disappointing picture of the impact that new carers' rights have had on the accessibility of services? Does he further agree that moving towards a system of measuring outcomes for carers in terms of services, which I believe the Government are considering, would be an effective way of bringing about much needed improvements?
Lord Warner: My Lords, I thank my noble friend for reminding me of my previous work in connection with what was then the Carers National Association. It shows that the Government have not only talked the talk but walked the walk in this particular area. I share my noble friend's disappointment that the Carers UK report, Missed Opportunities, suggests that we have not progressed as fast as we would like. However, in the report carers recognise that waiting times for assessments have decreased. The carers grant increases and the new flexibility in use of the grant were seen by many carers as very helpful, as were direct payments.
We are reviewing the findings of that report with stakeholders. As my noble friend will know, the Government are increasing funding for social care by an average of 6 per cent over this and the next two years—that is, an extra £1 billion. We expect to see better outcomes for carers as councils use those additional resources to improve services.
Lord Campbell of Croy: My Lords, as carers often have to be on their own when looking after their charges, does the Minister think that enough is being done to support carers in those situations?
Lord Warner: My Lords, it has always been the case that carers are a difficult group to reach to help them get access to services. They are often isolated and it is important to bring them together to share news and experience and to provide mutual support. To this end we are helping to fund what is called the "Ring Around

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Carers" scheme which reaches out to hidden carers. This project uses the power of local radio to help people identify themselves as carers and uses telephone conferencing as a way of bringing carers together to discuss their experiences.
Lord Chan: My Lords, while on the subject of hidden carers, what is being done for carers who are looking after people who are not fluent in English and therefore have an added disadvantage, particularly if they happen to be their children?
Lord Warner: My Lords, there are issues particularly around black and minority ethnic carers. The department continues to work towards achieving better services for people in this category and those whose first language is not English. We funded a good practice guide for practitioners working with black carers, developed by the National Black Carers Workers Network. We shall continue to study this area carefully and try to make further improvements.
Lord Northbourne: My Lords, does the Minister agree that one of the most important things which can be done to help carers is to provide adequate respite care? Are the initiatives which the Government have brought forward working to that effect?
Lord Warner: My Lords, the assessments for carers and the work that the Government have done, particularly in areas such as direct payments and the carers grant, all work towards giving carers not only more access to respite care but also more choice over the way they access that particular care and greater capacity to buy that extra support for themselves.
Baroness Barker: My Lords, in the report the carers cite the 21-hour study rule as a barrier to returning to education and work. What do the Government intend to do about that?
Lord Warner: My Lords, this is an area where I shall have to confer with the other Ministers concerned and write to the noble Baroness.
Baroness Noakes: My Lords, the Minister said that choice in respite care is important. That is all very well if carers are aware that respite care is available. For example, the Motor Neurone Disease Association has estimated that only a quarter of carers for people suffering from that disease are even offered respite care? What are the Government going to do about that?
Lord Warner: My Lords, we know that there is a problem for some carers in getting access to information. That is why in my Answer I referred to the improvements in gaining access to information on which the Government are working. The new website is one such example. This is always a difficult subject.
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In many places, local authorities are making a better job of providing information to carers on how to access those kinds of services.
The Earl of Listowel: My Lords, how many children act as carers to their parents or siblings? How are schools being equipped to meet the particular needs of those children?
Lord Warner: My Lords, the issue of young carers has been with us for a long time. I do not carry the numbers in my head. I shall write to the noble Earl on this issue. It is a long-standing area of concern. The Government have taken a number of initiatives to improve the lot of young carers.

Iraq: Women and Children
2.44 p.m.
Baroness Rawlingsasked Her Majesty's Government:
What actions they are taking to protect the security of women and children in Iraq.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, while coalition forces currently conduct more than 2,000 security patrols every day, the key to improving the security situation in Iraq lies primarily in reestablishing the Iraqi police and judicial system. This will benefit the whole population, especially women and children.
United Kingdom forces in southern Iraq have been working with local police chiefs and community leaders to improve the security situation since the earliest days of the conflict. Thousands of police are now back at work in our area of operations and local courts and prisons are beginning to function again.
Baroness Rawlings: My Lords, I thank the Minister for that Answer. In an interview with the Financial Times last week, the Secretary of State for International Development, the noble Baroness, Lady Amos, admitted that she had to cancel her trip to Baghdad because of a fear of being assassinated. This will no doubt bring home to everyone how bad the law and order situation in Iraq has become. We have heard numerous reports from charities working in Iraq of women and children being raped and abducted, possibly to be sold into slavery or prostitution. What is being done to further improve security in Iraq? More specifically, what is being done to bring those responsible for crimes against women and children to justice?
Lord Bach: My Lords, I am grateful to the noble Baroness. She should not confuse what the noble Baroness, Lady Amos, said in her interview last week with the position of ordinary Iraqi women and children. The noble Baroness, Lady Amos, was very

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disappointed to have to postpone her planned visit to Baghdad and Basra at short notice but, as far as she was concerned, the security situation did not allow for it. She would have been a prominent figure in a country with which we were at war recently. She has made exactly the right decision. She hopes, of course, to visit as soon as circumstances allow.
As to the separate question of security in Iraq and the effect on women and children, the crucial factor is that law and order is improving on the ground. It must be remembered that it was only at the end of last year that Saddam Hussein released all criminals from his prisons. That in itself has made the position of women and children much more difficult. The fact that a great deal of policing is now going on and the court system is being resurrected is, in many ways, the best protection there can be for vulnerable groups in society.
Baroness Gardner of Parkes: My Lords, is the Minister aware that the UK has made many firm commitments since 1991 to the specific inclusion of women in appointments for post-conflict recovery. We believe that women should be appointed to take part in this process. From the Minister's reference to the police, I imagine that it is a largely masculine force. It is considered desirable that 30 per cent of those involved in resolving conflict and restoring peace afterwards should be women. What is being done to help women to have influence directly in Iraq.
Lord Bach: My Lords, led by the coalition, a large amount is being done in Iraq. The UK is committed to including women in all phases and at all levels in the reconstruction. Indeed, the Prime Minister's special representative and his team, working closely with the Americans, have been discussing the issue of engaging Iraqi women in the reconstruction process. A consultative meeting took place between the coalition provisional authority and 40 Iraqi women on 29th May to discuss the very point the noble Baroness makes about the inclusion of women in Iraq's reconstruction. A steering group has been formed to take forward this very important process. The proposal to hold a women's conference and the issue of women's participation in the political process, which is of crucial importance to the future of Iraq, are gathering strength.
Baroness Turner of Camden: My Lords, does my noble friend agree that children are particularly at risk from unexploded cluster bombs? What steps are being taken to protect children in such circumstances and to ensure that they are properly cared for and receive appropriate treatment if they are injured?
Lord Bach: My Lords, every effort is being made by the coalition to ensure that the kind of accident/ tragedy that my noble friend mentions does not occur. We are providing information to clearance organisations on munitions used, and locations, so
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that clearance of all types of unexploded ordnance that might pose a risk to civilians can be achieved quickly and effectively. We very much hope that we are on top of the situation.
Baroness Northover: My Lords, has the Minister seen the report from the United Nations? It is very concerned that religious extremists are intimidating women and girls into wearing the veil, even if they are Christian. Obviously this is a symbolic sign of oppression rather than the kind of disastrous events we have just been talking about. But one Iraqi UN staff member, we hear, recently received a handwritten letter at home saying she would be killed unless she started covering her hair. Are the UK Government encountering similar problems in southern Iraq and how are they dealing with that human rights situation?
Lord Bach: My Lords, I am grateful to the noble Baroness. No, so far as we know—and we will of course investigate and correct ourselves if we are wrong—there is not that particular problem in southern Iraq. The issue is extremely important. In reestablishing the Iraqi police and judicial system, an amendment to the criminal code effected recently means that it is illegal for a man physically to chastise his wife, and courts can enforce maintenance payments to wives. Those may be seen as small matters, but in my view, if that is to be the basis of a criminal code beginning at this stage, it is a good sign for the future. We must remember that even though a wicked tyranny operated in Iraq, women were not treated as badly there compared with what has occurred in the past in some other countries.
Lord Forsyth of Drumlean: My Lords, does the Minister recall his previous Answer to a Question I asked about weapons of mass destruction falling into the hands of looters? Is he aware of any cases of ordinary citizens suffering from radiation sickness?
Lord Bach: My Lords, I recall the noble Lord's Question, but I do not have an answer for him today. I have no brief to suggest that radiation sickness is being caused. I shall of course look into the matter and write to the noble Lord if I am wrong.
Lord Phillips of Sudbury: My Lords, will the Minister tell the House whether any children have so far been killed or injured by exploding cluster bombs, and how many such bombs were dropped by the allied forces?
Lord Bach: My Lords, I cannot give the noble Lord the figures he seeks. He will know that cluster bombs are lawful weapons that provide a unique capability against certain legitimate military targets and that it was necessary to use them during the war. Some 2,000 artillery-delivered L20 bomblet munitions, called extended range bomblet shells, were used, mainly on targets around Basra. These have secondary fuses that ensure far fewer unexploded bomblets are left behind than with older-generation bombs.

Driving without Insurance
2.53 p.m.
Lord Beaumont of Whitleyasked Her Majesty's Government:
Why motorists driving without insurance no longer face the risk of disqualification for a first offence.
Lord Davies of Oldham: My Lords, under Section 143 of the Road Traffic Act 1988, a person must be insured against third-party risks if using a motor vehicle on a road or other public place. Not to do so is an offence punishable either summarily with a fine of up to £5,000, six to eight penalty points and discretionary disqualification, or by a fixed penalty of £200 and six penalty points. Magistrates may disqualify for a first offence if the severity of the offence merits it.
Lord Beaumont of Whitley: My Lords, I am glad to hear that reply. It deserves wider circulation, because on 9th June, the home affairs editor of the Daily Telegraph said:
"Thousands of motorists caught without insurance will escape a driving ban for a first offence under new rules.
"Offenders will face an automatic £200 fine and six penalty points instead of a court appearance at which they could be disqualified".
A spokesman for the Magistrates' Association said:
"Youngsters paying well over £1,000 now know that if they do not bother with insurance they face only a £200 fine".
Will the Minister confirm, following his first sentence, that those two reports are inaccurate? If they are, will he see that the world gets to know that?
Lord Davies of Oldham: My Lords, I certainly would be a busy Minister if I sought to correct every inaccuracy in the national press. Even the Daily Telegraph can get things wrong on occasion.
The headline of the article that the noble Lord mentions reads:
"Let-off for car insurance dodgers"
when both he and the House will recognise that the intention is to make sure that car insurance dodgers who get off at present will be successfully prosecuted. Through the system of automatic number-plate recognition, the police are in a position to take note of a car which does not have valid insurance and to act accordingly. Therefore, the issue is not the severity of the punishment but the certainty of detection.
Baroness Oppenheim-Barnes: My Lords, could the Minister say how severity is determined? Either they have insurance or they do not—there is nothing but black and white in that particular case. Does he agree that it is time that people purchasing insurance for their cars should at the same time obtain a disc that they can display in their cars—the same as the road tax disc? It would make enforcement very much easier, as police could look at parked cars and see which cars
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were insured and which were not. That is currently being done in most European countries which, for once, are doing something better than us.
Lord Davies of Oldham: My Lords, I notice the noble Baroness's constructive suggestion. As I have indicated, we take this offence seriously. The number of prosecutions has been fairly constant over the past four years. The number is quite high, at 182,000 cases a year. So this is an offence that we need to tackle with rigour. Our chosen method with regard to first-time offenders, is to guarantee that everyone becomes aware of the fact that if they drive a motor car on the public road, detection equipment can identify the number of the car, whether that car has been insured and, if not, suitable action will inevitably be taken.
Lord Forsyth of Drumlean: My Lords, is the Minister aware of the increasing concern expressed about reliance on speed cameras for detection of offences, resulting in motorway patrol cars and others being reduced so that dangerous driving, tailgating and other offences are being allowed to go scot-free?
Lord Davies of Oldham: My Lords, I am not sure that the noble Lord is right in his proposition that this evidence is unreliable. I think what has happened—and I believe most noble Lords would bear testimony to this—is that the introduction of speed cameras has significantly affected road behaviour in this country. We cannot guarantee that everyone stays within the limits all the time, but it is certainly clear that the levels by which those who break the law and exceed the speed limits have been moderating significantly in recent years, a reflection of the fact that the system of cameras works.
Lord Davies of Coity: My Lords, can my noble friend confirm that it is still the case that before you can receive or obtain a road fund tax disc, you have to provide a certificate of insurance? If people do not have a road fund tax disc on their car, the chances are that they have no insurance either, which is one means of identifying them.
Lord Davies of Oldham: My Lords, my noble friend is right that often more than one offence is committed in the circumstances, and that several pieces of documentation are not valid for the car. As I have indicated, magistrates will take strong action when they regard the offence to be a multiple one and of a serious nature. My noble friend is reflecting the fact that compliance with the vehicle registration requirements also needs to be pursued with vigour. I can assure him that it is.
Earl Russell: My Lords, does the Minister agree that the penalty of disqualification from driving should remain available in cases where it is appropriate; that it is not in the public interest thereby to increase the number of those who are unemployable; and that it is

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therefore an important object of public policy that as many people as possible should remain able to go to work without the use of a motor car?
Lord Davies of Oldham: My Lords, I understand the noble Earl's point. I am seeking to assure him—as I hope I did in my initial Answer—that magistrates have the choice of whether to try a case and insist on disqualification when that is merited by the seriousness of the offence. However, in more orthodox cases where a first-time offender does not have the appropriate insurance, the penalty will not be disqualification but a fixed-penalty fine and six penalty points—a serious penalty which will affect the driver, but will not disqualify him for his first offence.

Genetically Modified Organisms: Labelling
3.1 p.m.
Lord Clement-Jonesasked Her Majesty's Government:
On what basis they are opposing the proposal for a European Union regulation concerning the traceability and labelling of genetically modified organisms.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, the Government support mandatory traceability and labelling of GMOs. We welcome many aspects of the EU proposals, but we are concerned that others are not sufficient [y firmly based on evidence, not practically enforceable or not consistent with the Cartagena protocol.
Lord Clement-Jones: My Lords, I thank the Minister for that reply. For the record—despite his slightly equivocal reply—the Government clearly opposed the common position adopted by the Council of Ministers in March 2003. Only yesterday, Michael Meacher, until 10 days ago the Environment Minister, talked about the health uncertainties surrounding GM food and the lack of research. Consumers overwhelmingly support the GM labelling directive, as do the supermarkets, at the level proposed by the EU. Why do the Government not accept the necessity for the directive in that form? Is it because of US pressure?
Lord Whitty: My Lords, I totally reject the view that my reply was equivocal. We strongly support labelling and, therefore, should GMOs be allowed, the ability of consumers to make the choice. Our objections to some of the details of the proposals were that the labelling requirements would be unenforceable, thereby making bad law, and would in one respect be contrary to the provisions of the Cartagena protocol. As the House will know, the Government are looking at all aspects of GMOs, including the health aspects, and will make decisions in the light of the evidence, taking into
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account public opinion. The Government will not be rolled over by pressure from the United States, from Monsanto or, for that matter, from Greenpeace.
Baroness Hayman: My Lords, does my noble friend accept that the suggested labelling regime is being introduced, quite rightly, to facilitate consumer choice and not because of any known health hazard of any approved GM food? Of course that is not the situation that exists with many conventional foods; one thinks of nut allergies, for example. In those circumstances, given the subtleties and complexities involved, is it not absolutely right that we get an interstate regime that commands confidence because it is appropriate and can be enforced to the same standards across the whole of the European Union?
Lord Whitty: My Lords, that is exactly right. The enforceability of regulations in this field, as in others, is vital. Given the levels of concern and the differences in view, it is particularly vital in this field. It was necessary to have European labelling regulations. However, it is also desirable that those regulations are absolutely and clearly enforceable.
Lord Dixon-Smith: My Lords, given the international nature of the food trade and the fact that manufactured foods in particular come from all over the world, are the Government satisfied that the international arrangements outside Europe for segregation of GM and non-GM foods, and therefore for traceability, are in place to make the EU regulations work if they are put in place?
Lord Whitty: My Lords, the European regulations can deal only with products imported into the EU. We believe that the bulk of the regulations proposed by the Council of Ministers will be enforceable on imports as well as on anything produced within the EU. Clearly I cannot answer for the regimes in other countries for products not imported into the EU. I have already pointed out the deficiencies in enforceability of some of the regulations, which I regret. However, I again stress the importance of labelling requirements which can enable European consumers to make a choice.
Lord Hughes of Woodside: My Lords, will the new labelling be similar to that for food currently displayed in supermarkets and elsewhere? Huge signs everywhere proclaim "organic this" and "organic that". However, looking very closely at the list of ingredients, one often sees a little asterisk which says that it contains "permitted non-organic products". Surely a product cannot be organic if it contains non-organic products. How will that be checked and traced in the new GM food labelling?
Lord Whitty: My Lords, the organic standards allow a minimum level of certain non-organic presence. In the case of the proposed GM rules, there will be a threshold for GM allowed in products advertised as not being GM products. That is primarily on the basis of traceability and enforceability of those rules and

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regulations. It is not an attempt to undermine the status of organic or non-GM products; nor is it an attempt to allow such products in by the backdoor.

Business
Lord Grocott: My Lords, with the leave of the House, at a convenient time after 3.30 p.m. my noble and learned friend Lord Williams of Mostyn will repeat a Statement from another place on the EU summit.
National Lottery (Funding of Endowments) Bill
Brought from the Commons; read a first time, and ordered to be printed.

Communications Bill
3.7 p.m.
Report received.
Clause 3 [General duties of OFCOM]:
Lord Puttnammoved Amendment No. 1:
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 noble Lord said: My Lords, in moving Amendment No. 1 I shall also speak to Amendment No. 14. In doing so, I should like to congratulate the noble Lord, Lord McIntosh, on his arrival as a solo act on the Front Bench.
Following constructive discussions with Ministers and officials, the precise wording of the original amendment has been somewhat adapted to accommodate legitimate concerns relating to connectivity. I am personally satisfied that this revised amendment represents no diminution whatever in the principle of a clear hierarchy of duties favouring the concerns of the citizen when at variance with the imperatives of the market place. We have all worked hard to future-proof this legislation. I believe that the amendment will help to safeguard the interests of the citizen irrespective of changes in market power in the years to come. Read in conjunction with the public interest plurality test, the subject of an amendment likely to be debated next week, this amendment represents the closest I believe we can come to achieving
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reform of a regulated market environment—which, as I read it, was the all but unanimous view expressed on all sides in Committee.
As for Amendment No. 14, it is fair to say that the broad view of the Committee was that we should hold the feet to the fire of those legal experts who believe that there is no place for "citizen" in the legislation. I have no idea what the outcome of that element of debate is likely to be, but the Romans discovered two thousand years ago that it is a valuable word. We should cling on to it as long as we can. I sincerely hope that the Minister, in his reply, will do all in his power to find room for a word that far and away best expresses the community of interests that we discussed in Committee. I beg to move.
The Chairman of Committees (Lord Brabazon of Tara): My Lords, I should point out that if the amendment is agreed to, I cannot call Amendment No. 2.
Lord McNally: My Lords, I support the amendment. I also associate myself with the general welcome to the noble Lord, Lord McIntosh, in his new role. It comes as something of a culture shock after dealing with the noble Baroness, Lady Blackstone; it is a little like being invited to tea by Lady Penelope and finding Tony Soprano waiting for you when you arrive. Nevertheless, I am sure that the Minister will address himself to his new task with the open-minded flexibility for which we have come to know him in his long-standing role in the Whips' Office.
The amendment is deep in the philosophy of the Bill. The pre-legislative scrutiny committee came to the conclusion that, although many of the Bill's proposals to inject vigorous competition into the industry were welcome, there was a need for balance that did not and would not exist unless responsibilities were laid down in the specific duties of Ofcom to protect the rights of the citizen.
The amendment would take nothing away from the desired objective of the Prime Minister and the No. 10 policy unit to create a dynamic regime for the communications industry, but it would remind us that the very reason we have a Communications Bill rather than leaving matters simply to competition and enterprise legislation is that communications is different. It properly redresses the balance that makes communications different, and so would make the Bill all the better for its insertion.
Lord Crickhowell: My Lords, I support the amendment. Those of us who served on the Joint Committee tabled a considerable number of amendments in Committee that really covered all the matters we felt had not previously been dealt with adequately by the Government. I am sure that the Minister, whom I too welcome to his new position, will be glad to see that on this occasion far fewer amendments have been tabled in the names of the group that has been described as the "Gang of Four"—those of us from different parts of the House serving on the Joint Committee.

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The amendments that remain are those that we all feel are still important. The fact that we are narrowing our field of fire may indicate to other Members of the House who have not followed the Bill in quite so much detail that there are still a number—quite a small number—of major issues to which we attach importance. It is on that basis that support the amendment.
I want to make a couple of other points with reference to what was said by the noble Baroness, Lady Blackstone, who spoke in Committee on the relevant group of amendments; at that stage, the amendment was grouped with others. She said that accepting the amendment would make "no legal difference whatever", and went on:
"I will resist it, because it would only confuse and not simplify".
If it was going to make no legal difference, I am not quite sure why she was so determined on that occasion to resist it. Almost everyone else who spoke felt that, far from causing confusion, the amendment would make much clearer what Parliament thought were the principal objectives, and would therefore be helpful.
The noble Baroness also suggested that "citizens" should not be used because it was,
"invariably bound up with the concept of nationality".—[Official Report, 29/4/03; cols. 594–95.]
Again, that argument was questioned. Amendment No. 14 today clarifies exactly what "citizen" means in the context of the Bill. Therefore I do not think that that can be a serious argument.
Bearing in mind the strongly held views of those of us who served on the Joint Committee, the widely held views expressed on the previous occasion by Members from all parts of the Committee, and the amendments that have now been made to try to deal with at least one of the points made, I hope that the Minister will feel able to accept the amendment.
3.15 p.m.
Baroness Howe of Idlicote: My Lords, the situation is very hopeful. What stands out in my mind from Committee is that comments made in the first two debates—the second was on an amendment tabled by the noble Lord, Lord Phillips of Sudbury, on public service broadcasting—were crucial to the success—indeed, I would argue the actual viability—of the legislation.
Three issues predominated: first, the impossibility of co-equality, which is not mentioned in the Bill but is nevertheless glaringly implicit in the Government's previously revised Clause 3(1); secondly, the crucial importance of giving Ofcom a principal duty, right up front, to consider the "public (the citizen) interest"; and. thirdly, the growing recognition that what is distinctive about British broadcasting, contributing to its original and continuing pre-eminence globally, is the enshrined concept of public service broadcasting. I hope that what I have heard—that we are not able to vote on the amendment—is wrong. That would be a great disappointment to many noble Lords. We very much want Amendment No. 1 to be agreed to.
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This time, the noble Lord, Lord Puttnam, and his colleagues have tabled an amendment of even more compelling substance. I am sure that it will get even greater support from both sides of the House. He and his colleagues from the pre-legislative committee—I say this not as one of them, but as a groupie for that system and what it has produced—are to be warmly congratulated on the considerable efforts they have put into arguing the case for this and other changes to the Bill prior to Report. I have very little doubt that we shall all have cause to be grateful to the noble Lord in the years ahead. I wholeheartedly support the amendment.
Lord Borrie: My Lords, I have a great deal of sympathy with the amendment before us today, as, indeed, I did when it was discussed in Committee. However, I did not speak on this amendment at that stage because I was not sure whether or not it was unnecessary.
The amendments have, as it were, been improved by Amendment No. 14, which is, as the noble Lord, Lord Crickhowell, said, meant to deal with the then Minister's objection to the use of the word "citizen". But I understand that the main argument for these amendments combined is to ensure that Ofcom will have concern not only for the economic considerations of the interests of the consumer and the way that competition can assist the consumer but also for the interests of the individual—the citizen, if one likes to call him that—in terms of the quality of what is provided and especially in terms of the public service obligations, which were emphasised by my noble friend Lord Puttnam and others elsewhere in the debates on the Committee stage.
However, I am torn between supporting the amendment and, on the other hand, feeling that perhaps it is not necessary. Clause 3(1) sets out two duties. The first comes before the second because, of course, one must come before the other if two duties are set forth. But no distinction is made between the duty to further the interests of consumers and so on, which happens to be in Clause 3(1)(a), and the duty to further the interests of the community as a whole in relation to communication matters. I do not know what the second one means unless it is to favour quality and public service obligations. Therefore, I believe that, as the Bill stands, the obligations of Ofcom go beyond that of economic concerns, and I rather doubt whether the persistence of my noble friend Lord Puttnam and others on this matter is really necessary.
Lord Peyton of Yeovil: My Lords, I, for one, could not disagree more strongly with what the noble Lord, Lord Borrie, has just said. Before I start my intervention, which will be very short, I want to say that I was not sure what prompted the noble Baroness, Lady Howe, to find herself in a hopeful position. If it is a hopeful position, I do not share it with her at present and I have no prospect of doing so unless or until I hear that the Government are prepared to move on this amendment.

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I, for one, regard the amendment as being of paramount importance. I do not really mind about the verbiage attaching to it—whether one is talking about the "customer" or the "consumer" or about the "market" or the other word for it. I have been persuaded as to the importance of the amendment by two speakers on the far side of the House. The first is the noble Lord, Lord Puttnam, who wishes to provide Ofcom with an unambiguous basis from which to address even the most complicated issues which will come within its remit. I do not believe that it can be put more clearly than that and I accept it entirely.
The other source which persuaded me to see the light was, oddly enough, the noble Baroness, Lady Blackstone, who explained in words that I fully understood just how difficult the position of Ofcom would be. She said:
"The Bill in its totality delivers for both consumers and citizens".—[Official Report. 29/4/03; col. 594.]
Some people prefer the word "markets" to "consumers"; I do not mind which it is. She then went on to admit that balancing and reconciling the duties might well leave Ofcom with a very difficult task. I have no doubt about the truth of that. She made it very clear. She was able to offer to Ofcom only what she called "overarching principles". I am not sufficiently familiar with what "overarching principles" are to be sure that they would be of any great comfort or help to Ofcom when meeting these difficult problems. I believe that the position of Ofcom would be not unlike that of those rather odd gymnasts who nowadays precede all BBC news programmes, cavorting about on our screens without any particular purpose and from time to time finding themselves in what seem to me to be extremely uncomfortable positions. However, I do not believe that we should even consider the possibility of leaving Ofcom in such an appalling, distorting and uncomfortable situation.
In reality, such a balancing act, if it can be called that, by the Government is itself a slight deception. I believe the Government must be well aware that the forces of the market are such that 99 times out of 100 the real pressure of short-term demands, with the full support of the media moguls, would be more than sufficient to win the day. Supporters of the amendment fear that that position will be infinitely weakened by the pressures that the market and those who control the media—the moguls of television and other media—will be able to marshal against it.
The consumer and the citizen are two sides of the same coin. All of us are both from time to time, but the consumer will almost always take a short-term point of view. In our time, we badly need reinforcement for the long-term view. I submit that the amendment would give Ofcom the necessary basis from which to view its and our problems. I very much hope that the amendment will be accepted. If the Government do not accept it or move substantially towards it and if the noble Lord, Lord Puttnam—once again, I acknowledge readily our indebtedness to him—is not satisfied, I hope that he will
16
support the amendment in the Lobby. I shall certainly follow him with the absolute certainty that I am right to do so.
Lord Bragg: My Lords, I rise to support the amendment of my noble friend Lord Puttnam. The word "ambiguity" lies at the heart of our concerns—and not only of the famous "Gang of Four". Nine Peers from all sides of the House spoke during the Committee stage and all were convinced that the original formulation was mined with ambiguity. I believe that there is now a great opportunity to exorcise this legitimate anxiety and to rid ourselves of it once and for all.
Secondly, I hope that your Lordships will fully support and champion that fine word and state of "citizen". It has a lengthy and distinguished pedigree.
Baroness Buscombe: My Lords, as all your Lordships are now fully aware, Clause 3 goes to the heart of the operation of Ofcom. I want to take us back to something that the noble Lord, Lord Currie, said at Second Reading:
"Ofcom needs some freedom of manoeuvre to carry out its duties in the interests of all consumers and citizens, in a proportionate way".—[Official Report, 25/3/03; col. 683.]
That said, there is a need for clarity, and some considerable debate took place in Committee in your Lordships' House concerning the fact that this part of Clause 3 was riddled with ambiguity.
We support the amendment because we believe that it gives clarity to the Bill. I refer briefly to another place, where my honourable friend the Shadow Secretary of State for Culture, Mr John Whittingdale, questioned whether only the interests of consumers should be given primacy or whether that should be extended further to cover the interests of citizens more generally. He gave the example of public service broadcasting, which, as he noted, is in the national interest, although only some may wish to consume it.
The amendment does not diffuse the need to promote competition, where appropriate. The noble Baroness, Lady Blackstone, said that the amendment makes no legal difference. Nevertheless, I believe that it negates ambiguity, simplifying and clarifying the principal objectives.
As to the definition of the word citizen, I agree with my honourable friend John Whittingdale, who said in another place that when we are talking about promoting the interests of citizens, we are talking about the national interest. The Minister was concerned about the use of the word citizen, when it was debated in Committee. I refer him to a speech, "Progressive Politics Maturing", made by the Prime Minister last week to the Fabian Society. The Prime Minister made several references to the citizen; I will quote only two. He referred to
"rebuild[ing] civil society around a new contract between citizen and state based on responsibilities as well as rights",
but also to public services as
"bind[ing] society together in collective action, citizens as well as consumers".

17
The word citizen is very much a part of our vocabulary; it is time we accepted it into our law. Amendment No. 14 does just that.
3.30 p.m.
Lord Currie of Marylebone: My Lords, I declare an interest as Chairman of Ofcom, and I should like to speak from that perspective. I was appointed just under a year ago to this position. We have been preparing Ofcom over this period, and have consulted widely with organisations that represent the public interest and with companies regulated by Ofcom in the telecoms and broadcasting fields—all of whom have expressed support for the concept of the consumer/ citizenship duality at the heart of the Bill as currently drafted. Ofcom has spoken little about the substance of the Bill, and that is because it is for Parliament to decide what Ofcom is to do and how that is to be done. We will seek to work within whatever remit Parliament decides to give us.
I made only one contribution on Second Reading, but I speak of these general duties today, because they can fundamentally determine the nature of Ofcom's duties and operations. This clause has been debated much more than others, and rightly so. It sets the fundamental architecture. During the debate the clause has changed significantly, and for the better. The general duties have been simplified—as the joint scrutiny committee recommended—from 15 separate duties to an overarching one. The Government's draftsmen have helped to reflect in those general duties what we as lay people refer to as the citizen interest, although not expressed in those words.
The dual concept of the citizen/consumer has been at the heart of the appointments to the Ofcom board, in the selection of its senior management, and in the nascent processes that we are putting in place. The Ofcom board reflects a wide and appropriate range of experience, to regulate in the interest of both the consumer and the citizen. Although I am best known as an economist and dean of a business school, I also believe passionately in the interests of citizens and the role of the community as a whole. My work as a trustee of the Joseph Rowntree Reform Trust and its commitment to diversity and plurality attest to that. These issues are fundamental to the role of the citizen: plurality, impartiality, high quality, diversity, and effective support for democratic discourse are critical outputs of our society.
I and the rest of my board regard it as a crucial part of our remit to nurture and cherish those values. We are confident that we can work well within the general duties that the Bill now gives us. If the Bill is passed, one of our first tasks will be to undertake a major statutory review of public service broadcasting with a view, as the Bill puts it,
"to maintaining and strengthening the quality of public service television broadcasting in the United Kingdom".
That is an immense responsibility; we shall discharge it with the utmost seriousness.
I do not presume to comment on the technical or legal drafting merits of the amendments moved by the noble Lords, Lord Puttnam, Lord Crickhowell,
18
Lord Hussey, and Lord McNally. I will say, but only as a compliment, that between them, they have many parliamentary miles on the clock. Their amendments allow us to have a good debate about this vital issue.
It is essential that the Government listen carefully to the points made this afternoon. I am sure that they will. I also hope that in responding, the Government do not so far change matters as to distort the fundamental architecture of Ofcom. That architecture has been two and a half years in the preparation. No doubt, there is room for some changes. but it is not the time to pull out foundation stones when the Bill is almost complete—otherwise, the law of unintended consequences might kick in with a vengeance. 1 hope, therefore, that the Government can strike that balance, for this clause sets the fundamentals that drive all from this point forward.
Lord Peston: My Lords, before the noble Lord sits down, could he put on his economist's hat rather than his Ofcom hat, and agree that the concept of citizen is fundamentally different from that of consumer?
Lord Currie of Marylebone: My Lords, I fully accept that, and that distinction is fully reflected in the drafting of the Bill.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, I must start by acknowledging the care that has gone into the preparation of these amendments. I also acknowledge the strong feelings that have been expressed in the House, both in Committee and today. I intend to respond in a positive spirit to the thinking behind the amendment.
We could be led a bit astray if we were to spend too much time talking about the words "citizen", "consumer" and "community". The noble Lord, Lord Peyton, started off badly by saying that he was indifferent as to whether we talked about consumers or markets, and then, interestingly, said something with which I agree:
"the consumer and the citizen are two sides of the same coin".
It is not our intention—nor is it in the English language—to equate consumers with markets. The word that I have always used, in 50 years with the Labour Party, is that we have to be on the side of the "punters". I think everyone understands that. However, "consumers" is not the same as businesses in the market.
I will continue to refer to the noble Lord, Lord Peyton's speech, much of which I agree with, so that he may intervene on all that I say. Certainly, "consumers" is not the same as the market, in the sense that it is not the same as the businesses in the market "those who control the media", or, as he went on to say "the moguls". "Consumers" is not a doppelgänger for the wicked and self-seeking market, which some people in the Chamber seem to fear.
Lord Peyton of Yeovil: My Lords, I am obliged to the noble Lord, Lord McIntosh, for his courtesy. I will

19
briefly explain myself. The point I had in mind, even if I did not make it clearly, was the habit of the market to pinch or annexe the position of consumers, which is often taken, quite wrongly, to speak for the bulk of consumers.
Lord McIntosh of Haringey: My Lords, I agree with that, in particular with the words "quite wrongly". There is no sense in which our division between the phrase "community as a whole" and the word "consumer" should be taken to imply a subtle take-over by the market of the regulation which Ofcom is to undertake.
Let me respond to what I believe to be the thrust behind the amendment as well as to the wording of the amendment. We have always said that we want Ofcom to be a strong regulator. Its actions will be governed by the principles of good regulation and that is spelt out. But we should have no doubt that where intervention is necessary to further the interests of consumers and the community as a whole, Ofcom will have strong powers to act decisively. It will have powers to address market failures and it will have specific and well spelt-out powers in the Bill to deal with consumer issues. It will have the responsibility to uphold diversity and plurality and the powers to do so. It will also have the responsibility to preserve standards and the powers to do so.
In the past few days, I have read a great deal in the press about the dangers of dumbing down to American television standards. I have read in particular a vivid article by Professor Michael Tracey, which seeks to make the point about the Communications Bill. The difference between us and the United States relates not so much to ownership rules, but to the fact that they do not have content regulation. Content regulation is at the heart of what has been the feature of British broadcasting and it is maintained in this Bill.
However, I do not believe that anyone can say that because in some senses the Bill is deregulatory it is also soft. Where consumer interests and citizen interests—and I use that phrase in the widest sense that the Prime Minister was able to use it in his Fabian Society lecture—need to be protected, safeguarded and furthered, the Bill gives Ofcom very strong powers indeed. It will have concurrent powers with the Office of Fair Trading in respect of competition. It will uphold tough content requirements, including radio formats which ensure "localness" and quotas which will deliver regional and independent television production.
I turn to the difficult part about citizens. In daily life, we all use the word "citizens" in the way the amendment uses it. The Prime Minister used it last week and the noble Baroness, Lady O'Neill, used it in her Reith lectures and in her speech at Second Reading. It is entirely legitimate that we should do so, but it is unfortunate that legislation cannot. In legislation, the word has a more restricted meaning which is confined to that of nationality. If we were to start to use "citizens" here, even if we define it as is done in Amendment No. 14, the definition is in conflict with all of the undefined uses of citizenship in all other legislation.
20
It is a trivial point, I hope, because surely when philosophers, the Prime Minister and everyone else are talking in ordinary life about citizens, they are talking about the community as a whole. And that is the phrase that we use in the Bill. I cannot for the life of me see what is lost by avoiding the difficulties of legislative language and using the phrase "community as a whole". Politically, it means the same as "citizen" is often taken to mean in non-legal contexts.
I understand that there are calls to give Ofcom stronger direction about when the interests of the community as a whole—or the interests in non-legal terms of citizens—should take precedence. I understand that unless we give it a clear and unambiguous steer, there are worries that we could lose all the things that all of us want to protect. Let us be clear that at the heart of today's debate is the broadcasting tradition with which we have grown up, which is admired across the world and of which we are proud. We are protecting that in this legislation.
We are not being stubborn on this point. We are open to proposals but we have to recognise that we do not want to cause more difficulties than we are trying to solve. On that point, we have to listen to what is said by the noble Lord, Lord Currie. So let us all agree that this is a matter of crucial importance, but we are concerned that we are trying to amend general duties to address a specific concern about one aspect of the Bill. We have to consider those general duties across the full range of Ofcom's responsibilities.
We need to strike a balance between giving direction to Ofcom in legislation and giving it flexibility to make some very complex decisions. We are trying to put into place a Bill that will last. That means that we can anticipate issues that will arise in the future.
The principle of saying that in some instances or in some parts of the Bill Ofcom should give precedence to the interests of the "community as a whole" has its attractions. In practice, it sets out in the most public way at the very beginning of the Bill that we are expecting Ofcom to act differently depending on the matters with which it is dealing. Consumer interests do not cover the whole range of Ofcom's activities. But I wonder whether that is what we really want. It does not meet our aim of having a converged regulator.
There are already occasions when issues are regulated across more than one part of the Bill; for example, conditional access or electronic programme guides. How can we give definitive guidance to deal with those issues? We cannot predict what others will arise, so I urge the House to be cautious about trying to put in place different overarching principles in the general duties.
I am not saying that we do not recognise the concerns expressed today and in Committee. But when we have analysed them, we believe that they concentrate on the issues that will rest not so much with Ofcom's board but with the content board. It is here that we need to put beyond doubt that the content

21
board will act in the interests of the community as a whole. I want to respond to the noble Lord, Lord Puttnam, by saying—
Lord Peston: My Lords—
3.45 p.m.
Lord McIntosh of Haringey: My Lords, if I may finish the sentence because it is a rather important sentence. I want to say to the noble Lord, Lord Puttnam, that I am willing and happy to take away the issue of how to give effect to what I know he wants by thinking again about the remit of the content board.
Lord Peston: My Lords, I am sorry to interrupt my noble friend when he is winding up, particularly given the remark that he has made. I found it most encouraging. However, for the sake of those of us who may be involved with all kinds of legislation from time to time, is he saying that we all know what "citizen" means and we all know what we want to achieve, but it happens to be the case that when legislating we are not allowed to use the word "citizen" in our Acts of Parliament? Is that what he is trying to tell us? If so, I find it mystifying. given that the word and, as he said, the objective are perfectly clear. I do not want that to get in the way of what sounded like a positive response to my noble friend.
Lord McIntosh of Haringey: My Lords, no, I did not say that we cannot use the word in legislation; I said that we use it frequently in legislation in the context of nationality. To introduce the word "citizen" here to mean,
"all members of the public in the United Kingdom",
as in Amendment No. 14, sounds legitimate for this Bill, but it would conflict with the undefined use of "citizen" in all other legislation where its usage is restricted to nationality. It would cause all kinds of difficulty with other legislation.
Lord Wedderburn of Charlton: My Lords, is my noble friend therefore saying that what one Parliament does with the word "citizen" binds the hands of future Parliaments in respect of a particular Bill?
Lord McIntosh of Haringey: My Lords, it is not a question of one Parliament or future Parliaments—no Parliament can bind its successors—it is a matter of consistency in the usage of language in legislation.
Lord Pilkington of Oxenford: My Lords, is the Minister aware that some of us who were on the pre-legislative scrutiny committee are not wholly happy about the power of the content board and the way in which it is weakened in some way? The idea of putting in a fundamental principle is related to future workings of the content board.
I congratulate the noble Lord, Lord McIntosh, on his ministerial office. I am delighted to see him in his place. However, he seems to have omitted the concerns
22
of the pre-legislative scrutiny committee and of the many amendments tabled in Committee about the content board. He is handing it all over to the content board.
Lord McIntosh of Haringey: My Lords, that is exactly why I am saying that, regarding these two amendments, we shall return to look at the remit of the content board. The intention is that there should be primary legislation—in other words that there should be government amendments at Third Reading. Without being drawn into the wider issues of the perceived weakness of the content board—and I recognise the Joint Committee's comments about that—we recognise that there needs to be some change in the remit of the content board, and that needs to be protected by primary legislation.
Lord Peyton of Yeovil: My Lords, I am concerned over two matters that were referred to by the Minister: first, the converged regulator, which is not as important as he believes, and secondly. the fact that if we use the term "citizen" we shall put a particular burden on the board of Ofcom, as opposed to the content machinery. That is welcome. I want the board to have a responsibility there.
Lord McIntosh of Haringey: My Lords, that is exactly what we shall take away to consider. If the noble Lord, Lord Peyton, is now questioning the concept of a converged regulator, he is going back, not just to the beginnings of the Bill, but for at least two and a half years, and questioning the basis of Ofcom itself. As soon as one recognises the concept of a converged regulator, one has also to recognise that its responsibilities to protect the interests of the community as a whole have a subset. Although all consumers are members of the community as a whole, not all members of the community as a whole are consumers of telecommunications services. For that reason, one has to cover both.
The noble Lord, Lord Currie, was fair in his description of Clause 3(1). That should be read again. It gives due weight to both of those concepts. If further protection is required, then statutory amendments to the provisions for the remit of the content board—and I hope that my noble friend Lord Puttnam will agree, and take part in discussions—will be a good way to proceed. I hope that that point will influence the House. It represents much more important concerns than any difference that there might be between the "citizen" and the community as a whole.
Lord Puttnam: My Lords, I do not wish to quibble with the Minister over words. However, the word "citizen" can define both the individual and the collective—whereas the phrase "community as a whole" could simply be a majority of the collective. They are quite different, both in law and as far as concerns Parliament.
Before making a final decision as to whether to divide the House, am I hearing a categorical affirmation from the Minister that the concerns that he

23
has listened to during Second Reading and the whole of the Committee Stage will be met by the statutory use of the content board to enforce the intent of the present amendment?
Lord McIntosh of Haringey: My Lords, the noble Lord is asking for an "absolute assurance". Nobody ever asks for an assurance from Ministers, they always ask for an "absolute assurance". A number of different views have properly been expressed in debate this afternoon and in Committee. I cannot give an absolute assurance that all of those views will be accurately and fully reflected in any changes that we make to the remit of the content board. If we put our heads together and try, we could approach that nirvana.
Lord Puttnam: My Lords, in order to strengthen the Government's will, and to take account of the fact that the issue is important—given the very strongly held views here—I beg to test the opinion of the House.
3.54 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
*Their Lordships divided: Contents, 179; Not-Contents, 75.

Division No. 1

CONTENTS

Aberdare, L.

Craigavon, V.

Addington, L.

Crickhowell, L. [Teller]

Alexander of Weedon, L.

Dahrendorf, L.

Allenby of Megiddo, V.

Darcy de Knayth, B.

Anelay of St Johns, B.

David, B.

Ashcroft, L.

Davies of Coity, L.

Ashley of Stoke, L.

Denham, L.

Astor, V.

Desai, L.

Astor of Hever, L.

Dholakia, L.

Avebury, L.

Dixon-Smith, L.

Barker, B.

Donoughue, L.

Barnett, L.

Eden of Winton, L.

Bernstein of Craigweil, L.

Elder, L.

Blaker, L.

Elis-Thomas, L.

Blatch, B.

Elliott of Morpeth, L.

Blood, B.

Elton, L.

Bowness, L.

Erroll, E.

Bradshaw, L.

Evans of Watford, L.

Bragg, L.

Ezra, L.

Brookman, L.

Falkland, V.

Brougham and Vaux, L.

Fearn, L.

Bruce of Donington, L.

Fookes, B.

Burnham, L.

Fowler, L.

Buscombe, B.

Freeman, L.

Byford, B.

Gardner of Parkes, B.

Campbell of Alloway, L.

Garel-Jones, L.

Carnegy of Lour, B.

Gavron, L.

Chalfont, L.

Geddes, L.

Chan, L.

Glentoran, L.

Chorley, L.

Goodhart, L.

Clarke of Hampstead, L.

Gordon of Strathblane, L.

Clement-Jones, L.

Gray of Contin, L.

Clinton-Davis, L.

Hamwee, B.

Cohen of Pimlico, B.

Hanham, B.

Cope of Berkeley, L.

Harris of Richmond, B.

Craig of Radley, L.

Hayhoe, L.

24

Hilton of Eggardon, B.

Phillips of Sudbury, L.

Hodgson of Astley Abbotts, L.

Pilkington of Oxenford, L.

Hogg of Cumbernauld, L.

Plant of Highfield, L.

Holme of Cheltenham, L.

Plumb, L.

Howarth of Breckland, B.

Prashar, B.

Howe of Aberavon, L.

Puttnam, L. [Teller]

Howe of Idlicote, B.

Quinton, L.

Howell of Guildford, L.

Rawlings, B.

Hurd of Westwell, L.

Razzall, L.

Hylton, L.

Redesdale, L.

Jay of Paddington, B.

Rees, L.

Jellicoe, E.

RendellofBabergh, B.

Jenkin of Roding, L.

Rennard, L.

Jordan, L.

Roberts of Conwy, L.

Kimball, L.

Rodgers of Quarry Bank, L.

Knight of Collingtree, B.

Rogan, L.

Laming, L.

Roll of Ipsden, L.

Lane of Horsell.L.

Roper, L.

Liverpool, E.

Russell, E.

Luke, L.

St.John of Bletso, L.

Lyell, L.

Saltoun of Abernethy, Ly.

McColl of Dulwich, L.

Sandberg, L.

McIntosh of Hudnall, B.

Scott of Needham Market, B.

Mackie of Benshie, L.

Seccombe, B.

Maclennan of Rogart, L

Selsdon, L.

McNally, L

Sharp of Guildford, B.

Maddock, B

Sharples, B.

Mallalieu, B.

Sheldon, L.

Manchester, Bp.

Shutt of Greetland, L.

Masham of Ilton B

Skelmersdale, L.

Miller of Chilthorne Domer, B

Slim, V.

Miller of Hendon, B

Smith of Clifton, L.

Mitchell, L.

Soulsby of Swaffham Prior, L

Monro of Langholm, L.

Steel of Aikwood, L.

Monson, L.

Stoddart of Swindon, L.

Morgan, L.

Strathclyde, L.

Moser, L.

Swinfen, L.

Murray of Epping Forest, L.

Tanlaw, L.

Newby, L.

Thomson of Monifieth, L.

Tope, L.

Noakes, B.

Tordoff, L.

Northbrook, L.

Trumpington, B.

Northesk, E.

Turner of Camden, B.

Northover, B.

Vivian, L.

Norton of Louth, L.

Waddington, L.

O'Cathain, B.

Wade of Chorlton, L.

Oppenheim-Barnes, B.

Walmsley. B.

Palmer, L.

Warnock, B.

Park of Monmouth, B.

Weatherill, L.

Patel, L.

Wedderbum of Charlton, L.

Pearson of Rannoch, L.

Wigoder, L.

Peston, L.

Wilcox, B.

Peterborough, Bp.

Williams of Crosby, B.

Peyton of Yeovil, L.

Williamson of Horton, L.

NOT-CONTENTS

Acton, L.

Faulkner of Worcester, L.

Ahmed, L.

Filkin, L.

Andrews, B.

Fyfe of Fairfield, L.

Bach, L.

Gale, B.

Bassam of Brighton, L.

Golding, B.

Blackstone, B.

Goldsmith, L.

Borrie, L.

Goudie, B.

Carter, L.

Gould of Pottemewton, B

Clark of Windermere, L.

Graham of Edmonton, L.

Corbett of Castle Vale, L.

Gregson, L.

Crawley, B.

Grocott, L. [Teller]

Davies of Oldham, L. [Teller]

Hardy of Wath, L.

Dixon, L.

Harrison, L.

Dormand of Easington, L.

Hayman, B.

Dubs, L.

Hollis of Heigham, B.

Evans of Temple Guiting, L.

Howells of St, Davids, B.

Falconer of Thoroton, L. (Lord Chancellor)

Howie of Troon, L.

Hughes of Woodside, L.

Farrington of Ribbleton, B.

Hunt of Kings Heath, L.

25

Irvine of Lairg, L.

Radice, L.

Janner of Braunstone, L.

Ramsay of Cartvale, B.

King of West Bromwich, L.

Randall of St, Budeaux, L.

Kirkhill, L.

Richard, L.

Lipsey, L.

Rooker, L.

Lofthouseof Pontefract, L.

Scotland of Asthal, B.

Macdonald of Tradeston, L.

Simon, V.

Mclntosh of Haringey, L.

Smith of Gilmorehill, B.

MacKenzie of Culkein, L.

Stone of Blackheath, L.

Mackenzie of Framwellgate, L.

Strabolgi, L.

Marsh, L.

Symonsof Verriham Dean, B.

Mason of Barnsley, L.

Taylor of Blackburn, L.

Merlyn-Rees, L.

Temple-Morris, L.

Milner of Leeds, L.

Uddin, B.

Morris of Manchester, L.

Warner, L.

Orme, L.

Whitty, L.

Parekh, L.

Williams of Mostyn, L. (Lord President of the Council)

Patel of Blackburn, L.

Ponsonby of Shulbrede, L.

Woolmer of Leeds, L.

*[See col. 70]
Resolved in the affirmative, and amendment agreed to accordingly.

European Council, Greece
4.6 p.m.
The Lord President of the Council (Lord Williams of Mostyn): My Lords, with your Lordships' leave, I shall now repeat a Statement made in another place by my right honourable friend the Prime Minister. The Statement is as follows:
"With permission, Mr Speaker, I shall make a statement on the European Council, which I attended in Greece on 19th and 20th. tune.
"I should like to offer my thanks to Prime Minister Simitis and the Greek Government, who have conducted an effective presidency in a particularly difficult period.
"The European Council took delivery of the draft constitutional treaty prepared by the European convention under the expert chairmanship of Valery Giscard d'Estaing. We agreed that the draft is a good basis for starting the intergovernmental conference in October. The 10 countries joining the European Council will participate fully alongside the existing member governments. The aim is to conclude it in time for a new treaty to be signed after 1st May next year.
"The convention sets out clearly what Europe is for: its aims and objectives; the rights of its citizens; the powers and responsibilities of its institutions; and the way it takes forward its policies. It recognises expressly that what we want is a Europe of nations, not a federal super-state, and that issues to do with taxation, foreign policy, defence policy and our British borders will remain the prerogative of our national government and Parliament.
"The draft makes clear in the very first article that the Union has only those powers that the member states give it. It introduces a chair of the European Council to prepare and follow through the European Council agenda. It will bring an end to the present system of six-monthly presidencies, which is
26
no longer feasible in a Union of 25. It will provide a greater role for national parliaments, which will be able to vet all new legislation and make the principle of subsidiarity work at the political level.
"There are of course areas where there is continuing negotiation: for example over enhanced co-operation; the structure of the presidency; and the role of qualified majority voting. But, above all, the new draft treaty offers the prospect of stability in the way that Europe works.
"I should like to pay tribute to the work done by Government Ministers and to other honourable Members for the contribution that they made to the work of the convention.
"In addition to the convention outcome, reflecting the work of its 200 members, Mr Giscard d'Estaing also referred to a minority report advanced in the convention, including by the right honourable Member for Wells, the representative of the Conservative Party. That report would turn the existing treaties into an association of states which would replace, and dismantle, the existing European Union.
"The European Council agreed a range of actions to secure our frontiers, to ensure better co-operation with third countries on migration issues and to enable us to take the action that we need to deal more effectively with asylum claims. Among the issues that we discussed is one on which we have been working closely with the European Commission and the United Nations High Commissioner for Refugees. The aim is to strengthen the protection of refugees in their regions of origin so that, in a crisis, it is possible to offer effective, accessible sanctuary to refugees closer to their homes.
"To test whether such a scheme can work we, with the support of the Commission, proposed pilot projects. These had widespread support. While the unanimity requirement in the Council prevented the idea from being specifically endorsed, this will not prevent the pilot projects from being taken forward by a number of member states, and the Commission will report back on them within the year.
"The Council discussed a paper by the EU's High Representative, Javier Solana, for an overall strategy in the field of foreign and security policy. He proposed a comprehensive approach to dealing with the global problems of poverty, terrorism, and weapons of mass destruction, stressing the importance of the relationship with the United States, the need to improve our military capability and the necessity in the last resort for pre-emptive military action.
"The Council endorsed a comprehensive plan for tackling the spread of weapons of mass destruction. This will be a particular theme of this week's ELI-US summit as we take forward our joint work on curbing the export of WMD. The summit will also focus on the trade and economic agenda, especially

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the need for a successful meeting of the WTO in Cancun, and foreign policy co-operation notably in the Middle East.
"President Chirac and I had proposed, following the G8 summit, that the EU should match the US by contributing up to one billion euros in 2004 to the Global Health Fund to combat HIV/AIDS, tuberculosis and malaria. Although this had majority support, some member states objected and, because of the unanimity requirement, we could not secure agreement to this sum at the Council, but did agree that the European Union would determine the extent of its contribution at the pledging conference on 16th July.
"There was a strong focus at the meeting on the EU's relations with the wider world. Putting our support behind the Middle East peace process, we called on Hamas and other groups to declare a ceasefire and endorsed an urgent examination of the case for wider action against Hamas fund raising. We expressed serious concerns at aspects of the Iranian nuclear programme and our full support for the International Atomic Energy Authority in its effort to conduct a comprehensive examination of Iran's nuclear programme. We made clear that how Iran behaves on human rights, terrorism and the Middle East peace process is crucial to the future development of EU-Iran relations.
"Finally, we held a positive discussion about Iraq. The European Council affirmed the European Union's readiness to take part in the reconstruction of Iraq within the framework of UN Security Council Resolution 1483. We commissioned further work on the details of the help that the EU can provide.
"The Council took stock of the economic situation following the spring summit on economic reform. It set a clear agenda for action in line with the objectives, which Britain and a number of other member states have been advocating. The Council also endorsed the appointment of Jean-Claude Trichet as the next president of the European Central Bank, in accordance with the agreement reached during the last UK presidency.
"What is clear is that Europe at 25 nations will be very different from Europe at 15. In the coming years Europe will expand still further to welcome in Romania, Bulgaria, Turkey and possibly others. Plainly, this means Europe must change the way it works. There are several areas where the convention proposes moving to qualified majority voting including on trade in services and the fight against terrorism, drugs and illegal immigration.
"However, we should not fear every extension of qualified majority voting as hostile to Britain. In some areas, we need QMV. The only reason we have any hope of achieving reform in the common agricultural policy is that decisions in the Agriculture Council are determined by QMV. It was thanks to QMV that we have opened up energy markets. If we want to drive through economic
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reform, liberalise markets and break down state subsidies, then in a Europe of 25 QMV on issues such as trade in services and mutual recognition of qualifications is essential for the British national interest. Britain needs Europe to work and, for Europe to work, it needs to change.
"However, that is not all that is different in a Europe of 25 or 30. These new nations joining the EU share, in many ways, the British perspective. They are firmly in favour of the transatlantic alliance. Freed from communism, they do not fear economic reform; they welcome it. Freed from subjugation by the former Soviet Union, central and eastern Europeans have no intention or desire to yield up the nationhood for which they have fought so hard. It is no surprise, therefore, that the convention so explicitly ruled out a European federal super-state.
"It is not only the new members that sign up to this vision of Europe. Increasingly, Europe knows that the focus for its economy and for its security must be outward, not inward. The danger for Britain is that, at the very time when Europe is moving closer to the view of Europe with which we are most comfortable, and which we can advocate so well, we lose the chance to take our proper place in Europe by fighting battles long since over and by turning away at the very point Europe is turning towards us. There are real battles of course: for example, over tax or defence. But they are battles that we can win.
"At this point in time, with Europe at a crucial point of evolution, this nation, Britain, has to have the confidence to stride forward. The next year will determine the shape of Europe, of which we are a member. There will be critical alliances to be made and choices to be faced. But I have no doubt that a Europe that now stretches from Finland and the Baltic states to the shores of the Aegean Sea, Cyprus and Malta is a Europe that should have Britain at its heart.
My Lords, that concludes the Statement.
4.15 p.m.
Lord Strathclyde: My Lords, I thank the noble and learned Lord, the Leader of the House. for repeating the Statement. Like him, I congratulate the Greek Government for their hard work in leading what was, by all accounts, a difficult summit. There were things to welcome: a renewed recognition of the transatlantic relationship; an admission that the fall of Saddam Hussein, in which the EU played no effective role, has paved the way to a better future for the Iraqi people; the acknowledgement—something not seen before in an EU communiqué—that coercive action may be needed in the case of nations seeking weapons of mass destruction; and support for the Aqaba declaration and the Middle East road map for peace. All this must give much satisfaction to the Prime Minister.
No doubt he and the noble and learned Lord also warmly share the endorsement in the communiqué of the personal commitment by President Bush to the search

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for peace in the Middle East. We share the concerns expressed about the threats posed by the nuclear programmes of Iran and North Korea. Do the Government support the current stand of the demonstrators in Iran against the Khatami regime?
Staying on international matters, will the noble and learned Lord explain why, in eight detailed pages of presidency conclusions pointing to a common European policy on asylum—something on which many on this side of the House have severe doubts—there is no mention of the Prime Minister's proposals for safe haven camps in third countries or transit camps in Europe outside the EU? Despite that, the Statement makes a virtue of qualified majority voting on illegal immigrants and suggests that that is the way to go.
Have those ideas now been dropped as the basis of EU action? Does that explain the candour of the Prime Minster's official spokesman, quoted in a newspaper this morning as saying,
"We've got ourselves into a bit of a bind on this one"?
Wherever we look at policy, the truth is becoming increasingly clear that the Prime Minister is making an embarrassing habit of "getting himself into a bind", particularly on European issues.
The signing of the accession treaty was historic, and the commitment to a wider accession process, involving Romania, Bulgaria and, in time, Turkey, is welcome. This subject will require detailed debate in your Lordships' House. I hope that the noble and learned Lord will indicate that he is keen that adequate time should be provided for this purpose.
Will the noble and learned Lord explain why common agricultural policy reform was. not on the summit agenda? Is it true that President Chirac threatened to invoke the Luxembourg compromise if ideas for reform were pressed? Do the Government agree that CAP reform is vital if Europe is going to give a fair deal to third world farmers? It is bitterly disappointing that yet another European summit has passed without any commitment to real reform of the CAP.
Let me turn now to the proposed European constitution. The presidency conclusions say that this was,
"a historic step in the direction of furthering the objectives of European integration."
However, the Government claim that it is just a "tidying-up exercise". Which is it? Since when does a "tidying-up exercise" set up a European president, transfer asylum and immigration policy to Brussels, establish a binding charter of fundamental rights, and open up new areas for the EU to expand its power without the approval of national parliaments? Does the noble and learned Lord accept that the constitution will change the way in which Britain is governed more fundamentally than a regional assembly in Humberside on which we have been promised a referendum? Can he confirm that, in the drafting of the constitution, most of the United Kingdom's proposed amendments were rejected? What does that say about the influence of the Prime
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Minister? Can the noble and learned Lord tell us whether the UK has dropped its objection to a European foreign minister? Can he say in what areas it has been decided to accept the abolition of national vetoes?
There is much that we on this side of the House want to see a positive EU do. We want to see the CAP reformed, as I said, and wider free trade. We want more progress on aviation and freedom in services such as insurance. We want a reversal of the tide of regulation that grinds down Europe's competitiveness. We want a Europe flexible enough to deal with enlargement and able to face the challenges of high unemployment, stagnant manufacturing and ageing populations let down by failed policies on pensions. That is our vision of where the European agenda should lie. Driving further integration will do nothing to advance that agenda, but it will further dilute the voice of the United Kingdom in arguing for reform.
The Prime Minister has achieved all too little in Europe in the past six years. If he weakens Britain's voice, he will achieve even less. Adoption of a new European constitution is seen as a major event by every government in Europe. It could be a turning point in our nation's history. Fatuous spin that it is all a minor tidying-up exercise fools no-one. On this great question, whatever our conflicting views may be, surely we can agree that the Government should have the courage of their convictions and put their case to a referendum.
At Maastricht Mr John Major, as Prime Minister, secured an inalienable right for the British people to vote on the question of the euro. Is the Prime Minister incapable of matching the influence of Mr Major, or is it the case that the Prime Minister believes that the British people cannot be trusted to decide the issues for themselves?
4.22 p.m.
Baroness Williams of Crosby: My Lords, I too thank the noble and learned Lord the Leader of the House for repeating the Statement made in another place. I echo what he said about the Greek Government's effective handling of the summit. I add the thanks of noble Lords in many parts of the House for the remarkable work done by Members of this House on the constitutional convention, as well as for that done by Members of another place. We have great reason to be grateful to the noble Lord, Lord Tomlinson, and my noble friend, Lord Maclennan of Rogart, for the distinguished role they played. We are grateful to them.
It is rather a pity that the Government did not express their appreciation of the remarkable achievement represented by the draft constitutional treaty, whether or not one agrees with every line in it. To bring 15 member states and another 10 candidate states to agreement on such a detailed document and produce agreement that it should be presented as the draft upon which the IGC will base its negotiations is, by any standard, a remarkable achievement. I also

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regret that the Prime Minister did not think it right to mention the substantial deepening of democracy in the EU represented by the draft constitution.
For lack of time, I shall not go through it all. I shall mention a couple of remarkable examples. One is the great extension of co-decision making in the European Parliament to another 35 areas currently dominated by the Council. The second is the substantial proposal to open up the legislative General Affairs Council, something for which many Members of this House and of another place have asked for over 30 years. It is worth mentioning that acceptance of the idea of open public discussion in the European Council in its legislative mode is something for which we have waited a long time. It represents a step forward in democracy. Finally, in that context, I must say that many of us are pleased to see that there is now a voluntary exit clause. That means that Euro-sceptics can come out into the open and declare their true position, represented by the minority report at the convention, which is that they want to get out of the European Union and have nothing more to do with it. It is high time that people stopped disguising that view and expressed it clearly and firmly as an alternative to be put to the British people.
In that context, I shall say a couple of things about the broader international issues in the Statement, which brings together many aspects of policy, not just the draft constitution. On these Benches, we are glad to see that the Government's pilot project for asylum did not receive unanimous support from the rest of the European Union. It was always an extremely troublesome proposal. It had about it all the hallmarks of the dangerous "safe havens" policy of the 1990s, which, as we know, led to disastrous outcomes at Srebrenica and elsewhere. To many of us, it also represented a serious invasion of the human liberties of many of our fellow citizens. We are glad that it has been reduced to a pilot project, and many of us hope that the pilot project will not get off the ground.
I must also ask a question about the Middle East. I welcome what the noble and learned Lord the Leader of the House said about EU co-operation in the Middle East road map, which is crucial. We fully support the argument that there should be a serious investigation of the financing of Hamas. Will the Prime Minister and the noble and learned Lord the Leader of the House echo the statement made this morning by Colin Powell, the Secretary of State, that, alongside attempts to deal directly with Hamas and bring it into negotiations, there is the question of whether targeted assassination is a sensible policy?
I have further questions for the noble and learned Lord the Lord President of the Council. Given the relative sketchiness of the report and the Government's decision up to now that they do not want a referendum on the constitutional convention, will the Government consider publishing a White Paper, setting out their position on the clauses in the draft constitution that they do not fully accept and explaining why they took that
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decision? That would enable all of us to have a more informed and intelligent discussion than we can have without either a referendum or a White Paper.
The Statement is marked by a great deal of timidity towards the Euro-sceptics. Those of us who are Euro-enthusiasts—we make no bones about that on these Benches—desperately want the information that will enable us to conduct a full and proper discussion with our fellow citizens. We believe that that will show that there is much more support for the European Union than is exemplified by many of our newspapers. We cannot have that unless we have the information from the Government and willingness on the part of the Government to engage openly in the discussion.
I conclude with two other questions. The appointment of a foreign minister brings together the present roles of the High Representative and the Commissioner for External Relations. What is the Government's view about that? Do they recognise that it should give the EU a substantially more influential voice in world affairs? Will the noble and learned Lord the Leader of the House agree to support strongly the proposal for transparency in the Council of Ministers when it meets to discuss legislative matters and the extension of co-decision making to the European Parliament on the whole range of European legislation?
4.28 p.m.
Lord Williams of Mostyn: My Lords, I am grateful in substantial part for what was said by the noble Lord, Lord Strathclyde, and by the noble Baroness, Lady Williams of Crosby.
The noble Lord was right to draw to our attention the importance attached to the continuance of the transatlantic relationship, to which the Government are firmly committed. He was right to point out that, despite a good deal of questioning, a good deal of cynicism and a good deal of scepticism, many people believe that the action in Iraq, in which our Government were fully involved, was fully justified. I take the noble Lord's point about coercive action, subject always, of course, to the norms of international law, about which he and I agree. I agree with him on the importance—the absolute necessity—of President Bush's personal commitment to the Middle East peace process. Again, there were those who scoffed when the announcement was made at Hillsborough, but I must say that, considering what Secretary Powell and President Bush have delivered so far, no one, I think, could fairly accuse them of lack of commitment and energetic effort.
The noble Lord asked me for the Government's view on the demonstrations in Iran. One must be careful in appearing to interfere in the affairs of other states. Sometimes, it is counter-productive. I think it is fair to say that there is a distinct reform movement among younger people in Iran. Many of us would welcome that. It is foolish to think of any society, least of all Iran, as a monolith. If there are optimistic signs, a tactful approach is more likely to succour them than undue use of the megaphone.

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The pilots have not been dropped. We hope to get agreement on safeguarding refugees nearer to their home countries. Most refugees do not wish to be thousands of miles away in countries where the culture, the language. the traditions, the history, are different.
We want CAP reform. The wheel of history turns quite slowly. I remember the noble Lord, Lord Strathclyde, frequently, on this side of the Despatch Box, saying how keen his government were to have CAP reform, and we have not brought it about. The important point is that had CAP reform been on the agenda, because of the unanimity rule, we would have got nowhere. There is a significant prospect—I would describe it as an imperative—that at the Agriculture Council we can take this forward. I agree entirely with what was said about poorer countries. They will never manage to improve themselves significantly without CAP reform. But of course in the Agriculture Council, it is QMV not unanimity.
The noble Lord referred to "tidying up". I am not quite sure where he got that from. If one looks at the text, 75 per cent is drawn from existing documents and plainly, in the nature of things, if we expand by 10 from 15 to 25 members, there will need to be some modification of arrangements.
The noble Baroness paid well-deserved tribute to the noble Lord, Lord Maclennan of Rogart, and the noble Lord, Lord Tomlinson. I hope it does not seem patronising but I know that the Prime Minister has been extremely appreciative and congratulatory of the role they have played. As the noble Baroness pointed out, this offers us a deepening of democracy. There should be greater national parliamentary scrutiny of legislation. We have debated this issue to general unanimity in your Lordships' House.
On the Middle East peace process, it is essential that we pursue those who finance Hamas. I do not believe there is any difference between Her Majesty's Government and the comments made by US Secretary of State Powell this morning. The noble Baroness also put asked a question about a White Paper, which I am not authorised to answer directly. I shall simply indicate that I will take that forward to see whether it finds favour elsewhere. There is some virtue in going through the articles, finding out what type objections might be and seeing what support there may be for some of them.
On the question of a foreign minister, the terminology has been rather abused. There is no suggestion that there should be an EU state at the United Nations. But there are prospects for enhancing EU representations—not representation—at the UN. That will depend on the rules of the United Nations. There is no question of a foreign minister for the EU or an EU state in the Security Council.
I should like to conclude with one general point. This was welcomed by the Prime Minister as a basis for further activity. There is going to be an inter-governmental council. That will take the best part of a year. What we are dealing with here is not a mosaic text inscribed on tablets of stone. We are dealing with proposals for the way forward.
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The noble Baroness lastly said that this was a rather timid approach. I do not believe it is. The next year will determine the shape of Europe of which we are a member.
"I have no doubt that a Europe that stretches from Finland and the Baltic States to the shores of the Aegean Sea, Cyprus and Malta, is a Europe which should have Britain at its heart."
I do not see any timidity in that direct quotation from the final paragraph of the Prime Minister's Statement.
4.35 p.m.
Lord Dubs: My Lords, I wonder whether I might just press my noble friend a little more about his reference to pilot projects on asylum. As I understand it, there were two different proposals which might conic under that description.
The first is that there should be centres near asylum seekers' countries of origin, where people fleeing persecution could find safety, pending a decision by the UNHCR as to whether they qualify under the Geneva Convention and pending help by UN FICR to enable them to settle in other countries, possibly even in western Europe. The second proposal was that asylum seekers reaching western Europe would be sent to a holding centre back in the area they came from and that a decision would then be made.
Those are two rather different proposals. One is finding safety near the country from which they are fleeing. The other is being sent back from western Europe to a distant region, so they are shuttled backwards and forwards. Would my noble friend say a little more about which of those two proposals would be subject to a pilot project? Also, what was the feeling of the summit in terms of supporting one or other of them?
Lord Williams of Mostyn: My Lords, I am grateful to my noble friend. We did make progress on our initiative on zones of protection for refugees. It was agreed that member states should work on proposals for better protection of refugees near their regions of origin. I have to say to my noble friend that we are at the very early stages of dialogue. This dialogue will be with the commission, UNHCR, as he correctly referred to it, and other member states, to establish pilot projects in the autumn. Therefore I cannot give my noble friend any further details on that at present.
Lord Hylton: My Lords, on the common agricultural policy, can the noble and learned Lord say whether the Government have in mind a timetable for the ending of export subsidies from Europe? This has been dragging on for many years. Surely it is urgent to bring it to a conclusion.
As regards the Middle East peace process, will the European Union use its collective weight to help to break the cycle of atrocities and reprisals of which we

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have seen too much? Secondly, will the EU pay attention to the fine details of monitoring progress towards the road map and removing obstacles to it?
Lord Williams of Mostyn: My Lords, I cannot give a finite timetable for the ending of the CAP or any particular part of it. I wish I could but I have to be candid with the noble Lord, Lord Hylton.
I believe the European Union is fully committed to the Middle East peace process. It is a member of the quartet which was the author of the road map. I have no doubt that monitoring of progress will be essential. The difficulty is that, as we found in other contexts closer to home, one party says they will not do something unless the other party does something first. That party then says exactly the same thing. That is not tolerable. It is grossly irresponsible to the people who live in that part of the world. They all want what we want: an opportunity for a decent and ordered life and the hope that their children will have a better one.
Lord Maclennan of Rogart: My Lords, I thank the Lord President both for his Statement and for his personal remarks about me and my noble friend Lord Tomlinson. The noble and learned Lord says that the new member countries in the enlarged union are not ready to give up their nationality. As Scots and Welsh we know that even quite close relationships with other unions may keep alive a sense of nationality for centuries. Does he recognise that they are as little anxious as we are to give up democracy in joining the European Union? The members of the convention felt that the strengthening of the democratic basis and legitimacy of the Union are a vital part of the advancement of the effectiveness of the European Union. This is not just by national parliaments holding governments to account, but through proposals to elect the President of the Commission, the openness of the legislation council and the greater authority and involvement of the European Parliament. In the consent of the peoples of Europe must lie the key to ensuring that it can speak with one voice, both in purely domestic European affairs and in regard to third countries.
Lord Williams of Mostyn: My Lords, I am grateful to the noble Lord. He is absolutely right. I take perhaps an example that might chime in both our minds—that is, the Czech Republic, which before 1939 was a democratic, highly successful, well-industrialised country. After 1945, until very recently, it had no experience of domestic democracy at all. What the noble Lord said entirely coincides with the theme of the Prime Minister's observations. Those who have struggled for so long domestically in conditions that we can hardly guess at are hardly likely then to give up voluntarily and willingly their hard-earned freedoms. The noble Lord is absolutely right in that context.
Lord Waddington: My Lords, does the noble and learned Lord the Leader of the House agree that both this meeting and the convention were opportunities to
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look at what powers, now in the hands of the EU, could be handed back to member states? Has that opportunity been taken in any single respect? If not, are we not faced with a situation where at every meeting there is further integration and the powers of this Parliament are further eroded? Sooner or later, if we go on in this direction we shall cease, in any meaningful sense, to be an independent country.
Lord Williams of Mostyn: My Lords, I disagree with what the noble Lord said. That will not come as a surprise to him. Ultimately, one gets to a stage where one has a deep, even philosophical, certainly political, divide. There are many here—I echo the noble Baroness, Lady Williams of Crosby—who believe, not that we should drift with the tide of European history, but that we should be controlling as far as we can the way the boat goes.
If one has that view, if one welcomes the accession of the further 10 countries—I believe that the noble Lord, Lord Strathclyde, gave some of their names—it is a roll-call of 20th century history for people who had virtually no democracy, which is their right. I believe that we have many virtues in this country—one of them occasionally may be found to be compromised; I hope so—that we can offer. As many of us travel around Europe and talk to foreign Ministers and parliamentarians, they wish us to be there. They envy us our arrangements. They want to learn from them. I return to the comments made by the noble Lord, Lord Maclennan: there are opportunities here for a reinvigoration of the European institutions because of a two-way transfusion of increased democracy internally in the institutions and increased parliamentary scrutiny domestically. I have no fears about that and I hope that the rest of the country shares that confidence.
Lord Stoddart of Swindon: My Lords, I should like to thank the noble and learned Lord the Lord Privy Seal for making the Statement. Is he aware that some people—indeed, perhaps many people—believe that the draft constitutional treaty smacks not of a federal constitution but of a unitary constitution? Will he comment on that?
In relation to the chair of the European Council, which the Statement says is to prepare and follow through the European Council agenda, will he or she be a chairman or a president? If he or she is to be a chairman, how will that relate to the president of the Commission? Will the president of the Commission be senior to the chairman of the Council or what? How will this new appointment of permanent full-time president square with the Prime Minister's Cardiff speech in which he called for a strong, full-time president? Mr Hain said that we wanted a president of the Union to be someone who could speak to the United States for Europe on equal terms. That does not seem to be borne out in the Statement made by the Prime Minister today.
What is likely to be the status of the European Charter of Fundamental Rights which at Nice the British Government said—indeed, it was laughed out

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of court by the British Government—would not form part of any treaty. Indeed, it was described by Mr Vaz as having no more relevance than the Beano. Can the noble and learned Lord, the Lord President of the Council, say what will really happen because it is now part of the proposed treaty? Have we got or will we have a Beano as a part of the new constitution? Finally, will there he debates in this House and in another place in advance of the intergovernmental conference in October and in the future?
Lord Williams of Mostyn: My Lords, taking the last point first, obviously my noble friend Lord Stoddart, having much more parliamentary experience than I, will recognise that it is not for me to determine that. It is for the usual channels. When the noble Baroness, Lady Williams, asked me a similar question, I indicated that these are very important issues. We are an important House of Parliament, although we are not the superior one. Other things being equal, it seems to me that as a matter of principle we ought to seek to get decent time for these debates.
Although I do not have the text before me, I think that Mr Vaz said that—
Lord Strathclyde: He spoke about the Beano.
Lord Williams of Mostyn: I know what he said. I am just about to explain it to your Lordships' entire satisfaction. Without incorporation of the charter as part of our own domestic law, I think Mr Vaz was seeking to say that it would have no more legislative or legal power than a copy of the Beano. Perhaps I would not necessarily have used quite that phrase myself, but there we are.
My noble friend Lord Stoddart asked about the president. Monsieur Giscard d'Estaing explained on innumerable occasions—once to me personally—that there is no French word for "chairman". There is one in Welsh, which proves that it is an infinitely more civilised language—"cadeirydd". At the moment, it is not possible to have the rotating presidency. I am bound to say—with one bound being free at last—that it always seemed rather strange that one had a rotating presidency with a country, not an individual, taking over the presidency every six months. Most organisations would find it difficult to run in that way and, as the Prime Minister said in his Statement, for 25 it is quite impossible. Therefore, it is prudent to have a presiding office—that is the word It am looking for—to preside over the deliberations.
Lord Barnett: Or a speaker.
Lord Williams of Mostyn: My Lords, I hear my noble friend Lord Barnett as always helping me by urging that they might call the position a speaker or a Lord President or even a Lord Chancellor. I know that he is just being mischievous.
A noble Lord: Or even a Wolsey.
Lord Williams of Mostyn: My Lords, or even a Wolsey. To return to my earlier point, this is a possible way forward. It is a basis for the IGC, which will not report for a year. In the nature of things, if we are to have intensive deliberations for virtually a year, many of these questions will not be answered until that time.
Lord Bruce of Donington: My Lords, can my noble and learned friend give some indication as to whether any progress has been made and, if so, how much and in specific terms what, on the matter of the acquis communautaire? My noble and learned friend will be as aware as I am, or possibly even more so, that until the recent conference, the position has been that new joiners to the Community have been required to accede to the whole question of acquis communautaire. For example, countries such as Poland would undertake not to disturb existing arrangements by virtue of which the new member states assume all the responsibilities agreed up to that time by the remainder of the Community. That is my first point.
My second point concerns more particularly the common agricultural policy. Is there any firm undertaking, or any glimmer of hope that the proceedings between now and the next conference will result in drastic changes to the common agricultural policy? The continued imposition of that policy means that this country, among others, pays far more into Community funds than it really needs. It may well be that these issues have been solved. The House would be much obliged if my noble and learned friend could give an indication that, even if they have not been solved, specific steps are being taken between now and the intergovernmental conference to alleviate them. Otherwise, there is bound to be a profound scepticism that anything—but anything—at all will change.
Lord Williams of Mostyn: My Lords, on my friend's second point, as I indicated to the noble Lord, Lord Hylton, I cannot give a categorical assurance or a timetable about the changes that are required. I do not think that there is a single Member of your Lordships' House who does not dissent from the proposition that change is long overdue. I come back to my point: if the issue is dealt with in the agriculture council there is much more hope—because of QMV—than the unanimity rule would have offered in the present session, which has just finished.
On acquis communautaire, of course any new country joining the European Union looks for transitional arrangements where appropriate. I do not see any difficulty in that. After all, Turkey, which at the moment is simply a candidate country and not an accession candidate, has made quite significant changes to its own domestic arrangements to meet EU standards.
Lord Williamson of Horton: My Lords, as regards the constitutional treaty, which will of course replace a whole clutch of other treaties that are going on the bonfire, is it not important to stress in the public debate that this new constitutional treaty arises from a convention on which we have a large input from

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national Parliaments; that is, from the voice of the public in Europe. That is a quite different situation from the past. It may be fully understood in Westminster, but I really doubt whether it is fully comprehended in the country.
Lord Williams of Mostyn: My Lords, that is an extremely important point and one with which I perhaps did not deal sufficiently when I was speaking in answer to the noble Lord, Lord Maclennan, about the reinvigoration of domestic parliaments as well as the reinvigoration of the institutions of the community. There has been a substantial input, not least from two Members of our own House. There has been a significant change of thinking. The final outcome so far, which is only a basis for the IGC, has benefited enormously and demonstrably by the input not least from parliamentarians from Westminster.
Lord Phillips of Sudbury: My Lords, perhaps I could briefly commend what the noble and learned Lord said vis-à-vis Iran. Our policy of critical but constructive support for major advances in democracy which have taken place there in the past eight years are in marked contrast to the American policy, which seems wholly counterproductive.
Briefly, building on what the noble Lord, Lord Williamson, just said, does the Minister accept that—and I go a good deal further than the noble Lord—for the vast majority of the people of this country the EU and all its works is a closed book—actually, no, it is a closed library of books.
The Minister talked about us having the confidence to stride forward. That sentiment rings here, in Whitehall, Westminster and among the chattering classes, but, for the vast majority of people, there is no confidence about striding forward. They are fearful of yielding sovereignty. There is a sense of going deeper and deeper into a mire from which we will never emerge with our traditional democracy attached.
So I simply say: either we have, as my noble friend Lady Williams says, a referendum, or—and I think second best—the Government really do try and communicate with the very ordinary citizen, not in the language of a traditional White Paper but in a studious attempt to present in language that he will understand and want to read, what are the key issues around this crucial turning point—as I think it is—in the history of European Union development.
Lord Williams of Mostyn: My Lords, I am grateful for the noble Lord's remarks about Iran. I was responding to the noble Baroness's particular proposition that there should be a White Paper. I think I answered appropriately by saying that I would take that idea forward to my colleagues. That does not exclude the national debate. The national debate is very important indeed. I could not agree more. The noble Lord spoke about a referendum being his first choice. There has only ever been one national
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referendum, which was in 1975. If we cherish parliamentary democracy, I think that we should be quite sparing in the use of referendums.
Lord Jenkin of Roding: My Lords, could I—
Baroness Crawley: My Lords, I am afraid that we have run out of time.

Communications Bill
4.53 p.m.
Consideration of amendments on Report resumed on Clause 3.
[Amendment No. 2 not moved.]
Lord Phillips of Sudburymoved Amendment No. 2A:
Page 3, line 7, at end insert—
"( ) It shall be a further principal duty of OFCOM, in carrying out their functions, to further the purposes of public service broadcasting where relevant."
The noble Lord said: My Lords, I am most grateful to the Deputy Speaker and to the Officers of the House for allowing me to rescue Amendment No. 2 on the Marshalled List in the form of what is now Amendment No. 2A. It was my own inadvertence—or lack of competence perhaps it is more truthful to say—which meant that Amendment No. 2 would fall because of its language if Amendment No. I was duly passed. The wording of manuscript Amendment No. 2A is indistinguishable, but, none the less, technically it means that the amendment survives; it can be debated; and, if necessary, voted upon.
I shall not keep your Lordships long because in Committee we had a debate of over an hour's length on a similar amendment also tabled in the names of the noble Baronesses, Lady O'Neill and Lady Howe, my noble friend Lord McNally and myself. The House will remember that a dozen or so of your Lordships spoke, and all were in support of the amendment.
I think that the reason can be put quite briefly. The Government passed the Competition Act in 1998 and the Enterprise Act in 2002. This massive piece of legislation provides a very fulsome competition set of arrangements and provisions which, I would say, rather dominate the Bill. It is the wish of those who spoke in Committee—and I would like to think that it is still their wish—that we should retain a balance in this keystone clause, Clause 3. between the commercial and the competition considerations and what one might call the "cultural" considerations. My amendment is based upon a common-sense proposition; namely, that these non-competition aspirations and considerations should firmly underpin the Bill no less than the competition ones.
Lord Dubs: My Lords, I have no idea what amendment this is. Perhaps the noble Lord can tell us.
5 p.m.
Lord Phillips of Sudbury: My Lords, I am most grateful to the noble Lord, Lord Dubs, for saving me confusing everyone. Amendment No. 2A is effectively the same as Amendment No. 2 on the Marshalled List. I was trying to explain that, for technical reasons, Amendment No. 2 fell when Amendment No. 1 was voted upon and passed, so the amendment is in effect reconstituted. I shall read it in its reconstituted form. It states:
"It shall be a further principal duty of OFCOM, in carrying out their functions, to further the purposes of public service broadcasting where relevant".
I hope that that is now clear.
The cultural goods at the heart of the Bill, which go beyond the economic goods, need to be reflected at the commencement of the Bill in the same way as the competition and citizen elements are reflected. I hope that the Government will give the amendment their full-hearted support because it swims with the tide of their own intentions.
Clause 260(4) defines "the purposes of public service television broadcasting". I have used that phrase in my amendment. The following Clauses 260 to 266 expand on the duties of licensed public service broadcasters in that regard as well as providing powers to Ofcom if any of those broadcasters fail to live up to the requirements of Clauses 260 and 261. Ofcom will have powers of enforcement, although I remind the House—and this underpins what I said earlier about the dominance of the Bill being in competitive terms—that Clause 266, the enforcement clause, sounds at best an uncertain note in that regard and explicitly puts economic and market considerations on a pedestal above all other factors.
At Committee stage, in responding to the hour-long debate on an equivalent amendment, the noble Lord, Lord McIntosh, made two principal points. His first point was that there was no definition in my amendment of what is meant by "public service broadcasting standards". I said then and I say now that the language I am using refers directly across to the language in Clause 260, which is very well defined. It contrasts markedly in terms of interpretation with the other language in Clause 3, which refers to the interests of consumers in relevant markets, which is very vague, and the interests of the community as a whole, which is also very vague.
The second objection raised by the noble Lord, Lord McIntosh, was that Part 1 of the Bill is not only about broadcasting but telecommunications generally. That point is covered by reference in my amendment to its application being "where relevant". That is a more suitable phrase than "where appropriate". Your Lordships will note that the word "relevant" already finds a place in Clause 3 and cross-refers directly to Clause 260(11), which describes "relevant television services" to include Channels 3, 4 and 5, public teletext, Welsh services and the BBC.
Some have wondered why the amendment does not embrace the whole of broadcasting beyond the six prescribed services and channels. The answer is that it
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would have been much too ambitious to have sought to drag in the whole of broadcasting. But, given that Clause 260 requires those outlets to subscribe to the standards laid down in Clauses 260 and 261, it is wholly appropriate that this provision should be in the landmark or keystone clause, Clause 3.
Incidentally, Clause 3(6) gives Ofcom discretion to resolve any clash between its general duties under Clause 3 as it thinks fit. So, again, there cannot be any objection on that ground.
Without this amendment the balance of interests that the Bill should preserve between commercial and cultural matters will be tilted too far in the direction of mere competition. To use the phrase used by the noble Lord, Lord Puttnam, in Committee, we really must embed and make explicit at the start of this vital legislation,
"which moral universe this Bill is intended to inhabit".—[Official Report, 29/3/03; col. 583.]
The amendment will go some considerable way towards achieving that. I beg to move.
Baroness Howe of Idlicote: My Lords, I support the amendment of the noble Lord, Lord Phillips. My only regret is that the additional words which seek to spell out Ofcom's public service duty have not been added as a further subsection to the amendment of the noble Lord, Lord Puttnam.
As the noble Lord, Lord Phillips, said, there is some concern that this would appear to favour one particular public service broadcaster—that is, the BBC. To say that I find it a little puzzling is an understatement. As the noble Lord, Lord Phillips, pointed out, Clauses 260 and 261 make it abundantly clear that the commercial terrestrial channels also have public service broadcasting responsibilities, even though they may be of a lesser nature.
As the noble Lord, Lord Phillips, said, the debate at Committee stage illustrated the crucial importance that every noble Lord who spoke—it was a very passionate debate—attached to the need to continue to uphold public service broadcasting in today's increasingly competitive communications world. It was quite clear that the Committee—like most UK citizens—knew what public service broadcasting was, recognised it when it saw it and equally recognised when it was absent. It also wanted it spelt out up-front, right there at the top of Clause 3.
We now have another opportunity. The Government have listened and made changes on other issues raised. I salute the Minister for the number of new clauses he intends to introduce on Report. I hope, therefore, that he will accept what is proposed. Even better, I hope that he will find a way to add this amendment to the amendment brought forward by the noble Lord, Lord Puttnam, which has just been agreed.
Lord Crickhowell: My Lords, I have difficulty with this. I am sorry to say that because one of the most important objectives of the Bill ought to be to protect one of the great glories of British broadcasting—that

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is, public service broadcasting. I attach the highest importance to Clause 260 in which, for the first time in legislation, that is comprehensively defined.
The noble Lord, Lord Phillips of Sudbury, will know that after our last debate I suggested to him that perhaps the thing to do was to insert his amendment under Clause 3(2). He subsequently argued against that solution and produced the amendment printed on the Marshalled List, not the manuscript amendment. I would have been very happy indeed to support that amendment. I felt that by inserting the words "where relevant" he had dealt with the objections made by the Government Front Bench.
I wholly endorse the noble Lord's desire to have public service broadcasting referred to in Clause 3. I should like to see it there; I wish it could be there. I note that the Minister said on a previous occasion that we shall come to it in Clause 260 and other clauses and that that is where it needs to be. I do not agree with him. We need a reference in Clause 3.
A genuine difficulty is that we have just passed Amendment No. 1. This has led the noble Lord, Lord Phillips of Sudbury, for understandable reasons, to put down a manuscript amendment. But, having produced a principal duty of Ofcom in a balanced way—we had an interesting and powerful speech from the chairman of Ofcom about the importance of balance in these matters—to add another principal duty at this point seems to make life rather difficult for the chair of Ofcom. It does not provide clarity.
I wish that the noble Lord, Lord Phillips of Sudbury, had been content to get this reference, which I would love to see in Clause 3, into the second part of the Bill. But unless he has an easy explanation as to how it will work in simple terms when he responds to the debate, I have genuine difficulty in supporting the manuscript amendment despite the fact that I promised to support the original amendment when he first put it down.
Baroness Buscombe: My Lords, I support what my noble friend Lord Crickhowell has just said. Although I was fully supportive of the amendment of the noble Lord, Lord Phillips of Sudbury, in Committee, I have thought about it a lot since then. I have a concern about placing this duty on Ofcom, particularly in Clause 3(1). There is a clear conflict with the amendment which has just been passed. More than that, given that Clause 3 sets out the duties and parameters for the whole of the media industry, to include broadcasting and telecommunications, and given that the Bill is to liberalise ownership of the media, surely it should be a primary duty of Ofcom to consider all broadcasting—public service and otherwise—to ensure that we retain and maintain high quality programming.
In other words, Ofcom must keep a watchful eye over all programming to further the purposes of good and diverse programming for the viewer and listener. I say that, particularly given the words of comfort
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from the noble Lord, Lord Currie, who said today that Ofcom had taken on board the need, as one of its first key aims, to review, with a view to monitoring and strengthening, public service broadcasting, which would be under Clause 260.
Lord Fowler: My Lords, I support the amendment of the noble Lord, Lord Phillips. I say in parenthesis that I hope it is recognised that in the proceedings of this legislation I now speak with a new authority. Referring to an amendment which will come before us later, the Guardian said last week:
"The amendment has the support of the influential Labour backbenchers Lord Bragg, Lady Jay, Lord Fowler and Lord Borrie".
Rumours of my defection are slightly exaggerated—indeed, they are much exaggerated. But I hope that the Minister will now listen to me with an attention I am not sure I enjoyed previously.
I have two comments on the amendment, the first of which is the more general. The discussion on the Bill has been criticised, not least by the new Leader of the House of Commons, who has said that some kind of filibuster has been taking place. I deny that entirely—I simply do not recognise it. So I was fascinated to hear the chairman of Ofcom, the noble Lord, Lord Currie, say how this discussion had strengthened the legislation—a total justification.
My second point, using the small influence I now appear to have, is to urge the Minister to accept the amendment. I believe that the principles of public service broadcasting should be absolutely fundamental to broadcasting in this country. It sets us apart from what happens in so many other countries. We would be very foolish to weaken our stance in any way. We should do everything in our power permanently to embed the principles of public service broadcasting in our system. Obviously, the BBC is seen as the best upholder of public service broadcasting standards, and I think that it is. Noble Lords have mentioned the example of the World Service. But, as the noble Baroness, Lady Howe, said, the BBC is not the only upholder of public service standards; nor should it be.
My view is that the most important public service broadcasting standards apply to the reporting of news. In an age when so much reporting is slanted, when some papers advocate particular policies to the exclusion of all other arguments, it is important to have balanced and objective reporting. We should allow the public to make up their mind rather than be led by the nose. I am not saying that the standards of balance and objectivity will always be achieved. For example, there was great controversy during the reporting of the Iraq war, but at least the aim is to achieve balance. I believe that aims such as that are, and should be, absolutely fundamental in our broadcasting system. They are worth fighting for and, for my money, I agree with what the noble Lord, Lord Phillips, said. His aspirations are set out well in the amendment.
5.15 p.m.
Lord Thomson of Monifieth: My Lords, I hope I do not embarrass the noble Lord, Lord Fowler, too much, after his accolade in the Guardian, if I now rise in warm support of the passionate speech he has just made upholding the concept of public service broadcasting. His argument is absolutely right. In many ways, this Communications Bill is historic because it seeks to reconcile the separate worlds of telecommunications and broadcasting. The public service tradition is Britain's particular contribution to quality in broadcasting. The role of public service broadcasting within that totality, within the balancing operation that the new Ofcom has to take on, is better spelt out right at the beginning of the Bill instead of in Clause 260. For that reason alone, I warmly support the amendment.
Lord McIntosh of Haringey: My Lords, just to show that I listened to the noble Lord, Lord Fowler, with the same undivided attention I give to my own Back Benchers, let me say that I agree entirely with what he says about the importance of public service broadcasting. So does the noble Baroness, Lady Buscombe; so does the noble Lord, Lord Thomson; so do we all. The Bill enshrines that concern for public service broadcasting. It is suffused with support for public service broadcasting.
In Clause 260, which is none the less important, I say to the noble Lord, Lord Thomson, because it is in Part 3 rather than Part 1, the Bill gives the best, most detailed, description of public service broadcasting that has ever appeared in legislation. In the clauses which follow, the Bill gives Ofcom teeth to enforce the achievement of those standards. I know that the noble Lord, Lord Phillips, has a caveat about a particular part of Clause 266. It is, I think, a misunderstanding on his part. I shall be glad to discuss it in its place.
To put a generalised expression of support for public service broadcasting in Part 1 is unnecessary. It is not simply unnecessary; it is unnecessary and undesirable. In 14 years of opposition I always enjoyed being told by the government that the amendments I put forward were either unnecessary or undesirable or, more frequently, both. This is both. It is unnecessary because Clause 3 specifies the duties of furthering the interests of consumers and the community as a whole. The purposes of public broadcasting are directed principally to the community as a whole and should not be ends in themselves. Similarly, Public service broadcasting is one element of the mix which assures the availability of a wide range of high quality broadcasting which meets a variety of tastes and interests, as required under Clause 3(2)(c). However, it is one means, not an end in itself. As I said, Clause 260 gives the best and strongest defence of public service broadcasting in legislation that there has ever been. That was recognised, I believe, in Committee.
Despite the qualification "where relevant", where it is relevant is in relation to Part 3 functions, which contains detailed provision to ensure the delivery of public service broadcasting objectives. I will not make much of it being harmful. However, the amendment suggests that, having
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secured the place of public service broadcasting, Ofcom should be required, say, to assess its spectrum policy against the interests of the consumer and the community and then skew any decision in favour of public service broadcasting purposes. That cannot be right. If furthering the purposes of public service broadcasting had been the foremost broadcasting objective of current and previous regulators we would not have had the growth of the new platforms and channels that have led to extra choice and innovation for the benefit of viewers and listeners.
The spirit and intention behind the amendment are admirable. However, it cuts across the balance we have sought to strike in this Bill and I hope that it will not be pressed.
Lord Phillips of Sudbury: My Lords, I am grateful to the Minister and to all who have spoken. The noble Baroness, Lady Buscombe, suggested that this amendment does not clarify Ofcom's keystone obligations. However, Amendment No. 1, which we have just passed, deals with,
"the interests of citizens in relation to communications matters; and … the interests of consumers in relevant markets".
In my view, that does not extend head on to issues of public service broadcasting. A detailed examination of the provisions on general duties in Clause 3—and I refer the noble Lord, Lord Crickhowell, to this, as he raised the question—reveals, in Clause 3(3)(a), a further specific reference to,
"the desirability of promoting competition in relevant markets".
There is no reference anywhere else in Clause 3 to public service broadcasting standards. Although the noble Lord, Lord McIntosh, talks of unbalancing the Bill by including this reference at the front of the Bill, at the beginning of Clause 3, my proposition, which I think is supported by all who spoke, is that the reverse is the case. There is a superfluity of reference in the Bill to competition and a paucity of reference to public service broadcasting standards. As many have said, public service broadcasting standards do not even get a mention until Clause 260.
I listened particularly carefully to the reservations expressed by the noble Baroness, Lady Buscombe, and the noble Lord, Lord Crickhowell. I am anxious to carry them with me to a vote if to a vote it has to go. So I would now propose to withdraw the amendment, to speak with them further and, I hope, to bring back an amendment that will have their approval at the next and final stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Buscombemoved Amendment No. 3:
Page 3, line 16, after "services" insert "(and in particular the diversity of elements within such services)"
The noble Baroness said: My Lords, the key purpose of this amendment is to address the need for Ofcom to secure in carrying out its functions the availability throughout the United Kingdom of a wide range of TV and radio services,
"and in particular the diversity of elements within such services".

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In essence we are seeking to ensure that, in addition to there being a wide range of services which are both of high quality and calculated to appeal to a variety of tastes and interests, there is sufficient diversity of all forms of creativity within those services. In contrast with the previous amendment, we believe that this amendment addresses all programming, public service broadcasting or otherwise.
The amendment is designed to ensure that Ofcom is required to take specific account of the different component parts of television and radio services when making an assessment of whether such services taken as a whole are both of high quality and calculated to appeal to a variety of tastes and interests. Without such clarification on radio services, for example, Ofcom could conceivably make a judgment on overall quality and diversity as long as it was demonstrated by, for example, news, sport and light entertainment programmes, without giving specific or sufficient regard to music and the performing arts.
The amendment was proposed by the music industry. We are pleased to support it, and encourage the Government to support it, because it is addressing the need for diversity of all forms of creativity. The importance of creative diversity—including music diversity—together with the absence of any provision in this entire Bill to require and enable Ofcom to act effectively on this issue has led us to conclude that this deficiency could be addressed by amending Clause 3. Our amendment would furnish Ofcom with an overarching responsibility to ensure that this vital element is given due regard when making its regulatory decisions.
While we understand that the Government are reviewing this important issue, we are keen to support that process by putting forward several amendments—we have later amendments on Report for scrutiny by your Lordships—aimed at bringing greater regulatory clarity for British music creators and audiences, and indeed in the wider public interest. I should like to thank the noble Lord, Lord McNally, and the noble Baronesses, Lady Warnock and Lady Howe, for their ongoing support on this issue and those respected voices from the Government's own Benches who sounded the alarm during earlier debates. I beg to move.
Lord McNally: My Lords—
Lord McIntosh of Haringey: My Lords, I do not want to curtail debate, and if others wish to speak after me, that is fine, but I hope that I can help the House. We said in Committee that we would table amendments on Report that would address the main area of concern, which is about music on local radio. We expect to table amendments this week for debate next week. I hope that those will meet the concerns of the music industry. I think that I should add that this amendment seems to require diversity not only across services but within services. That would seem to me to mean that Classic FM would have to carry jazz and
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pop, and that pop stations might have to include Stockhausen or Berio. I do not think that that is what is meant.
Baroness Buscombe: My Lords, far be it from me to inflict the wrong music on the wrong audience. I shall be brief in my reply. I am very grateful to the Minister, who is clearly taking this issue on board. In that well known phrase, let us watch this space and see what comes before us next week in our further deliberation on Report. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Northeskmoved Amendment No. 4:
Page 3, line 29, at end insert—
"( ) the application, in the case of electronic communications network services, of standards that provide adequate protection to members of the public and all other persons from unwarranted infringements of privacy resulting from activities carried on for the purposes of such services;"
The noble Earl said: My Lords, if I may, like other noble Lords, I should like to take this opportunity to welcome the Minister to his new position and congratulate him on it.
I turn to the amendment. The Bill requires that appropriate privacy standards be secured in respect of all television and radio services. That is of course welcome. The effect of the amendment is to extend that requirement to "electronic communications network services". The substantive point is that, if it is sensible that the radio and television arms of media enterprises should be subject to appropriate privacy standards, it necessarily follows that their Internet or web-based arms should be too. A failure so to do not only creates a gaping hole on the face of the Bill, it also creates what the noble Lord, Lord Avebury, so eloquently described as a "philosophical inconsistency" in the Government's approach and attitude towards both this Bill and technological convergence more generally.
What was evident from our debates in Committee is that we are all, even the Government, agreed that this is a hugely important issue that needs to be addressed. As the Minister, put it:
"I do not disagree at all … if we have provision in Clause 3(2)(f) in respect of radio and television services, there ought to be comparable provision for electronic communication network service users—there is no doubt about that".
So we are all agreed. This is an amendment of substance which it could be fairly said would improve the Bill. Yet, on the evidence of the Committee, the Minister will in due course reject the amendment. The grounds for so doing are outwardly reasonable. As he explained in Committee, and I have no doubt that the same argument will be deployed again today,
"any standards imposed by Ofcom would have to be consistent with the new European regulatory regime for electronic communications, including the new directive on privacy and electronic communications".—[Official Report, 29/4/03; col. 646.]
I do not dissent from that. But perhaps the Minister will explain in what ways the amendment is inconsistent with the relevant directives? I do not

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believe it is. Indeed, there are not inconsiderable advantages in adopting what could be called an anticipatory approach in this matter rather than leaving it in abeyance.
I acknowledge too the Government's commitment as expressed by the Minister:
"We intend to implement the directive in the UK by means of separate regulations under the European Communities Act 1972".—[0fficial Report, 29/4/03; col. 647]
Again, that is eminently reasonable. What need of the amendment is there when the Government are going to legislate in the future by a different route? I have a number of concerns here. Self-evidently the Government are content to legislate on this matter as it relates to radio and television by means of primary legislation. As I say, that is welcome. Indeed it is wholly unsurprising. But when it comes to the electronic communications network services aspect of the problem, they are content to deal with it by secondary legislation. There are shades here of the "philosophical inconsistency" identified by the noble Lord, Lord Avebury. I return to the central tenet of my argument: if it is right to legislate in this area for radio and television services by primary legislation, then it must be right to adopt the same approach for electronic communications network services. After all, what is at issue here, far from being a matter of administrative detail, and thereby an appropriate candidate for secondary legislation, is a fundamental principle, the essential human right that an individual's privacy should not be infringed.
Nor should we lose sight of the problems associated with consigning these matters to secondary legislation. Your Lordships will be aware of the gestation periods of, for example, the code of practice for voluntary retention of communications data required under the Anti-terrorism, Crime and Security Act 2001, or the Information Commissioner's employment practices data protection code. The latter was three years in the making, while the former runs the risk of failing to meet its two-year deadline for implementation on 13th December this year. This begs the question of whether it would be sensible to run the risk of leaving this issue in limbo for such a long period. I do not believe that that is sensible. As I said, there is virtue in the amendment in the sense that it anticipates and preempts this risk.
There is the seductive argument that when it comes to information technology issues it is unwise to legislate unilaterally. As the Minister put it:
"We shall implement the directive and put in place a set of controls that will have the enormous virtue of covering Europe. It is not a UK matter, it is an international one."—[Official Report, 29/4/03, col. 647]
How very true. It is a sound analysis, so far as it goes. The key here is the noble Lord's use of the word "international". The reality is that this is not an exclusively European matter either. It is global. So, if we are to be tempted into accepting the thrust of this argument, logic dictates that legislation should wait until such time as some form of global agreement is in place. However desirable, that prospect is some way off. Quite rightly, the Government are not advocating
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that the matter should rest in abeyance as a result. In other words, the enormous virtue to which the Minister referred is but a glass half-full. None the less, if the amendment were inimical to the forthcoming directives, I would be the first to concede that it was an inappropriate addition to the Bill. But it is not. It has the virtue of anticipating the directives rather than preempting or compromising them.
So, as I observed in Committee, I find myself in a somewhat curious position. None of your Lordships has thus far dissented from the amendment's underlying principle. None of your Lordships has suggested that it is in any way defective or indeed inconsistent with forthcoming European legislation. In the circumstances, I find the Government's obduracy in resisting the amendment difficult to understand. I look forward to the Minister's reply in the, perhaps vain, hope that at least some light can be shone on the impenetrability of the Government's position. I beg to move.
Baroness Buscombe: My Lords, we support my noble friend's amendment.
Baroness Howe of Idlicote: My Lords, in supporting the amendment of the noble Earl, Lord Northesk, I shall try and be brief. I could not, in any event, argue a case as effectively and expertly as the noble Earl.
It is indeed a strange anomaly, as the noble Earl pointed out both today and in Committee, that something broadcast via the Internet should not be subject to Ofcom regulation while the same broadcast received by the more traditional methods of television and radio sets is. Issues about human rights and privacy are surely possible here.
Everyone is keen to keep the Internet free of regulation but I wonder whether it remains feasible in the long run. The noble Lord, Lord Puttnam, said in Committee that a globally agreed solution was needed. In the long term that clearly must be right. The interim problem remains. The Internet Watch Foundation does its best, but most of us have a growing feeling of unease about the kind of damaging material that can easily be accessed by an increasing range of receivers, not least 3G mobile telephones, which an increasing number of young people already possess or to which they aspire. The Minister told us in Committee that consultations had begun and that powers would be brought in via the European Communications Act 1972. Giving additional powers to Ofcom would therefore not be helpful or necessary. As I said in Committee, it may not be possible or everybody's wish to regulate the Internet but citizens' concerns about whether voluntary regulation is likely to remain sufficient are increasing, given the material that is easily accessed on the Internet. If only to future proof this legislation, which we are told will not be outdated for many years, it would make sense for Ofcom, which is to be responsible for regulating almost every other form of electronic communication network, to be given some role in setting standards at least for the

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Internet if only to give the regulator powers to promote, oversee and agree codes of practice. I hope that the Government will support the amendment.
Lord Avebury: My Lords, having looked carefully at what the Minister said in Committee on 29th April I still do not understand how this is going to work. As the noble Earl, Lord Northesk, explained, we have one system of regulation of privacy when we are dealing with radio and television. Another system, as the Minister explained in Committee, is going to come into effect at some time in the future under the European Communities Act 1972. The Minister said that this was necessary because the regulations that are to be introduced under that Act would go beyond the remit of Ofcom. It would be useful if the Minister explained what is happening in the consultations which he spoke of in Committee. These started at the end of March and are still under way. What sort of solution does he think will be produced at the end of the day? Will the European regulations that he mentioned feed back into Ofcom's remit? Will they require Ofcom to apply the European directive into radio and television so that a uniform system applies across the board of electronic communications? Or are we going to have two completely different systems of dealing with privacy, one for radio and television and another for other forms of electronic communication?
Perhaps the Minister will also explain something that I find mysterious. We all agreed it was impossible to regulate the Internet, but at col. 647 of the Official Report of 29th April 2003 the Minister spoke about the directive introducing new e-mail and Internet controls. I am sure your Lordships would like to know more about that, and whether it is being dealt with under these consultations.
Lord St John of Bletso: My Lords, I support this amendment. My concern is the ever-increasing scourge of spamming. Certainly, the noble Earl, Lord Northesk, has spoken about the forthcoming European legislation, but there does need to be a standard to control abuses of the Internet. I am not referring only to spamming, but to distribution of malicious viruses, hacking and, of course, the proliferation of unsolicited pornography. I do not call for Internet regulation, as mentioned by my noble friend Lady Howe, but more a light-touch approach.
It is a commonly held view that the Internet was included in the Bill as an afterthought. I hope that the Minister, who has an excellent grasp of the exigencies of the world wide web, will look with some sympathy on the amendment.
Lord Lucas: My Lords, I wish to support the amendment, too. There is now no boundary between the Internet and radio and television. I spend more time listening to the radio on the Internet than over the airwaves now, as it is so easy simply to have it running in the background once one has a broadband connection. We are about to have parliamentary broadcasting over the web. Doubtless other broadcasters will follow as we start to get decent broadband connections.
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The Internet is another extension of radio and television. Already services have started up that are available only over the Internet. Why start a pirate radio programme now, with all the difficulties of legislation and people trying to close it down, when the same thing can be done over the Internet with the same quality of reception? It is all one, and it is ridiculous that half should be in and half out.
The Earl of Liverpool: My Lords, I support the amendment tabled by my noble friend Lord Northesk, who spoke with much more authority than I am able to on the subject. The words that rang in my ear when he spoke were that an independent liberty should not be infringed. I support him. If he presses the amendment, I shall be with him in the Lobby.
Baroness Howarth of Breckland: My Lords, I want to ask a question rather than make a long speech. For 10 years I was a regulator in the premium-rate industry. At the end of that time in ICSTIS, we talked a great deal about convergence, rather as the noble Lord, Lord Lucas, just described. I thought that the Bill would look across the horizon to the future when all the services would converge. Indeed, since I left ICSTIS, there seems to have been even greater integration of services. Will the Bill look towards that integration, or will we have two kinds of regulation in future?
5.45 p.m.
Lord McIntosh of Haringey: My Lords, in introducing the amendment, the noble Earl, Lord Northesk, very properly gave my reasons for resisting it last time. I am very grateful to him for that, and those reasons still stand. He described them as outwardly reasonable, but I think that I can show that they are both outwardly and inwardly reasonable. He asked me a number of questions, and other noble Lords have also asked questions, about what we propose to do. I had better repeat it—I caught myself almost saying "very briefly". If I do. I shall leave the Chamber. I am getting so angry with that phrase, which is followed by long speeches, so I stopped myself in time.
When we debated the amendment in April, we said that the use of the electronic communications networks was subject to a separate European directive on privacy and electronic communications, which will be implemented by 31st October this year using the provisions of the European Communities Act 1972 instead of other primary legislation. I shall answer all the points made about that, and why we consider it better to act that way.
The noble Earl, Lord Northesk, asked how his amendment was inconsistent with the provisions of the privacy and electronic communications directive. There are a number of detailed inconsistencies, but one of very great importance is that Ofcom is not the appropriate body to enforce privacy standards in networks and services. That role is to be performed by the Information Commissioner, who is of course the successor in role to the Data Protection Registrar. He

53
or she is a UK independent supervisory body reporting directly to the UK Parliament. He oversees and enforces the Data Protection Act 1998 and the Freedom of Information Act 2000.
The Information Commissioner has a wider range of duties including the promotion of good information handling and the encouragement of codes of practice for data controllers—that is, anyone who decides how and why personal data about identifiable living individuals are processed. He is responsible for the current regulations, and will be for the regulations that we shall introduce this year. That answers nearly all the points made by other noble Lords about the need for effective regulation. Regulation is much more effective if done by the Information Commissioner than by Ofcom, which has a different range of responsibilities.
The noble Earl, Lord Northesk, then said that the provisions by secondary legislation would be in abeyance, and that they would not meet the deadline of 13th December. The answer to that is that they will be in force by 31st October. They will meet the deadline; there will be no delay in implementing what he and other noble Lords want. He criticised the difference between primary and secondary legislation. We use secondary legislation when we are able to do so in law. There is no difference in effect between primary and secondary legislation. It is still the law of the land; however, we did not need to burden the Bill with that element of relatively uncontroversial primary legislation.
The noble Earl raised the issue of global agreement, because he thought that I was too welcoming of the idea that regulation through the European directive on privacy and electronic communications was to come into force throughout Europe. I think that he recognises that that is better than its doing so only for the UK. He is right, of course, in saying that the search for global agreement is rather further off, but I do not think that that supports his amendment.
We are doing everything that the noble Earl, Lord Northesk, wants with equal effect, and much more effectively in terms of the responsibility being with the Information Commissioner. We are also doing it on time. What more do we want?
The Earl of Northesk: My Lords, I am of course grateful to the Minister for that reply. Although he fleshed out what was said in Committee, I still find it slightly dispiriting that much the same arguments were deployed. However, as I concede, at least they were fleshed out.
The noble Lord, Lord St John of Bletso, rightly raised the issue of spam, and I was extremely grateful to him for that. I was grateful, too, for the contribution of the noble Baroness, Lady Howe. However, I should counsel her that, so far as I am concerned, the amendment does not bite in any way on content but solely on the issue of privacy.
I hear what the Minister says about the role of the Information Commissioner in respect of regulating privacy. But, to my mind, the amendment does not
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seek to regulate; it seeks to impose a base standard in respect of infringement of privacy over which Ofcom could and should perhaps have oversight. Therefore, on that point I do not believe in truth that the amendment is as deficient as the Minister would like me to believe.
Ultimately, the privacy of the individual and his protection against unwarranted infringement is no small thing. If the amendment were attempting to ratchet up that protection or, indeed, to introduce a system of regulation in its own right, I could attach some credibility to the Minister's position. But I do not believe that it does; it merely seeks to replicate a regime that the Government believe to be fit for purpose for radio and television services and to apply it equally to electronic communications network services—as I said, not in the form of regulation but as a simple standard.
The Minister—indeed, all noble Lords who have spoken in this debate—agree that the issue is important and that doing something about it is right and sensible. I suspect that our only point of difference is one of methodology and of bridging the gap between Royal Assent for the Bill and whenever—the noble Lord says 31st October—the relevant provisions come in under the European directive.
However, I regret to say that, in so far as the Government persist in failing to understand that the Bill should also be about technological convergence, I remain unconvinced by the arguments advanced by the Minister. On that basis, I wish to seek the opinion of the House.
5.50 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 99; Not-Contents, 160.

Division No. 2

CONTENTS

Ampthill, L.

Craigavon, V.

Anelay of St Johns, B.

Crickhowell, L.

Ashcroft, L.

Denham, L.

Astor of Hever, L.

Dixon-Smith, L.

Baker of Dorking, L.

Eden of Winton. L.

Biffen, L.

Elliott of Morpeth, L.

Blaker, L.

Elton, L.

Blatch, B.

Erroll, E.

Bowness, L.

Ferrers, E.

Bridgeman, V.

Fookes, B.

Brougham and Vaux, L.

Fowler, L.

Burnham, L.

Gardner of Parkes, B.

Buscombe, B.

Garel-Jones, L.

Byford, B.

Geddes, L.

Caithness, E.

Glentoran, L.

Campbell of Alloway, L.

Gray of Contin, L.

Camegy of Lour, B.

Hanham, B.

Chalker of Wallasey, B.

Howe, E.

Chan, L.

Howe of Aberavon, L.

Colwyn, L.

Howe of Idlicote, B.

Cope of Berkeley, L.

Howell of Guildford, L.

Cox, B.

Hurd of Westwell, L.

55

Jenkin of Roding, L.

Park of Monmouth, B.

Knight of Collingtree, B.

Pearson of Rannoch, L.

Laird, L.

Pilkington of Oxenford, L.

Lane of Horsell, L.

Quinton, L.

Liverpool, E.

Rees, L.

Lucas, L.

Renton, L.

Luke, L.

Roberts of Conwy, L.

Lyell, L.

St.John of Bletso, L.

McColl of Dulwich, L.

Saltoun of Abemethy, Ly.

Mancroft, L.

Seccombe, B.

Mar, C.

Selborne, E.

Marsh, L.

Selsdon, L.

Masham of Ilton, B.

Sharples, B.

Mayhew of Twysden, L.

Skelmersdale, L. 51im V

Monro of Langholm, L.

Stoddart of Swindon, L.

Monson, L.

Soulsby of Swaflham Prior, L.

Mowbray and Stourton, L.

Stewartby, L.

Murton of Lindisfarne, L.

Stpddart of Swindon, L.

Strathclyde, L.

Nicholson of Winterbourne, B.

Swinfen, L.

Noakes, B.

Taylor of Warwick, L.

Northbrook, L. [Teller]

Trefgarne, L.

Northesk, E. [Teller]

Trumpington, B.

Norton of Louth, L.

Vivian, L.

O'Cathain, B.

Waddington, L.

O'Neill of Bengarve, B.

Weatherill, L.

Onslow, E.

Wilcox, B.

Palmer, L.

Williamson of Horton, L.

NOT-CONTENTS

Acton, L.

Falkland, V.

Addington, L.

Farrington of Ribbleton, B.

Ahmed, L.

Faulkner of Worcester, L.

Amos, B.

Fearn, L.

Andrews, B.

Filkin, L.

Ashley of Stoke, L.

Fitt, L.

Avebury, L.

Fyfe of Fairfield, L.

Barker, B.

Gale, B.

Barnett, L.

Gavron, L.

Bassam of Brighton, L.

Gibson of Market Rasen, B.

Berkeley, L.

Golding, B.

Bernstein of Craigweil, L.

Goldsmith, L.

Billingham, B.

Goodhart, L.

Blackstone, B.

Gordon of Strathblane, L.

Boothroyd, B.

Goudie, B.

Borrie, L.

Gould of Potternewton, B.

Bradshaw, L.

Grocott, L. [Teller]

Bragg, L.

Hamwee, B.

Brennan, L.

Hardy of Wath, L.

Brooke of Alverthorpe, L.

Harris of Haringey, L.

Brookman, L.

Harris of Richmond, B.

Brooks of Tremorfa, L.

Harrison, L.

Campbell-Savours, L.

Haskel, L.

Carter, L.

Hayman, B.

Christopher, L.

Hilton of Eggardon, B.

Clark of Windermere, L.

Hogg of Cumbernauld, L.

Clarke of Hampstead, L.

HoUis of Heigham, B.

Clement-Jones, L.

Holme of Cheltenham, L.

Clinton-Davis, L.

Howarth of Breckland, B.

Cohen of Pimlico, B.

Howellsof St, Davids, B.

Corbett of Castle Vale, L.

Hughes of Woodside, L.

Crawley, B.

Hunt of Chesterton, L.

David, B.

Hunt of Kings Heath, L.

Davies of Coity, L.

Irvine of Lairg, L.

Davies of Oldham, L. [Teller]

Janner of Braunstone, L.

Dean of Thornton-le-Fylde, B.

Jay of Paddington, B.

Desai, L.

Jeger, B.

Dixon, L.

Jones, L.

Dormand of Easington, L.

Jordan, L.

Dubs, L.

King of West Bromwich, L.

Evans of Parkside, L.

Kirkhill, L.

Evans of Temple Guiting, L.

Lea of Crondall, L.

Evans of Watford, L.

Lipsey, L.

Falconer of Thoroton, L. (Lord Chancellor)

Livsey of Talgarth, L.

Lofthouse of Pontefract, L.

56

Macdonald of Tradeston, L.

Rennard, L.

McIntosh of Haringey, L.

Richard, L.

McIntosh of Hudnall, B.

Rodgers of Quarry Bank, L.

MacKenzie of Culkein, L.

Roll of Ipsden, L.

Mackenzie of Framwellgate, L.

Rooker, L.

Mackie of Benshie, L.

Russell, E.

McNally.L.

Sandberg, L.

Maddock, B.

Sawyer, L.

Mallalieu, B.

Scotland of Asthal, B.

Manchester, Bp.

Scott of Needham Market, B.

Mason of Barnsley, L.

Sharp of Guildford, B.

Massey of Darwen, B.

Sheldon, L.

Merlyn-Rees, L.

Shutt of Greetland, L.

Michie of Gallanach, B.

Simon, V.

Miller of Chilthorne Domer, B.

Smith of Clifton, L.

Milner of Leeds, L.

Smith of Gilmorehill, B.

Mitchell, L.

Steel of Aikwood, L.

Morgan, L.

Stone of Blackheath, L.

Moser, L.

Strabolgi, L.

Murray of Epping Forest, L.

Symons of Vernham Dean, B.

Newby, L.

Taylor of Blackburn, L.

Northover, B.

Temple-Morris, L.

Parckh, L.

Thomson of Monifieth, L.

Patel of Blackburn, L.

Tordoff, L.

Pendry, L.

Turner of Camden, B.

Perry of Walton, L.

Uddin, B.

Peterborough, Bp.

Walker of Doncaster, L.

Pitkeathley, B.

Walmsley, B.

Plant of Highfield, L.

Warner, L.

Puttnam, L.

Warwick of Undercliffe, B.

Radice, L.

Whitaker, B.

Ramsay of Cartvale, B.

Whitty, L.

Randall of St. Budeaux, L.

Wilkins, B.

RazzalLL.

Williams of Mostyn, L. (Lord President of the Council)

Rea, L.

Rendell of Babergh, B.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.1 p.m.
The Earl of Northesk The Earl of Northesk moved Amendment No. 5:
Page 3, line 29, at end insert—
"( ) the desirability of encouraging the best means of access to systems of delivery of high speed data transfer throughout the United Kingdom, and, as appropriate, encouraging competitive markets in such systems;"
The noble Earl said: My Lords, as with the previous amendment, my purpose here is straightforward. The aim is to widen Ofcom's remit so that it has a specific role to play in respect of the roll-out and take-up of broadband. All of us, from the Prime Minister down, accept the huge importance of that in terms of the economic health of our nation and, indeed, in terms of the potential for social good of the new technology.
So far as concerns the amendment, I have tried to reflect the very helpful comments of your Lordships during Committee. First, I have substituted the word "broadband" with the words "high speed data transfer". After all, it is that rather than any generic term that will unlock the full potential of the new technology and is therefore the desired outcome. I hope your Lordships will agree that it gives the amendment that much more technological neutrality and flexibility.
I should advertise my particular gratitude to the noble Lord, Lord Gordon of Strathblane, and my noble friend Lady Buscombe for their contributions in Committee.

57
The noble Lord, Lord Gordon, emphasised how important it is that we realise that competition-driven solutions will not always afford the appropriate remedy to the problems facing the broadband market. That is especially pertinent to the "digital divide" between rural and urban broadband, but more of that later. As my noble friend Lady Buscombe and the noble Lord, Lord Gordon, pointed out, take-up is as important an issue here as roll-out. Again, I hope that your Lordships will agree that the current drafting of the amendment adequately reflects those concerns.
I should perhaps explain the purpose of the amendment in more detail. I do not underestimate the importance and virtues of the Bill's hierarchy. The observations of the noble Lord, Lord Currie, about that earlier were especially pertinent. Therefore, I can accept the logic of the Government's position, as expressed by the Minister:
"It would he inappropriate to seek to define broadband as being one of the specific and particular objectives of Ofcom in the Bill".—[Official Report, 29/4/03; col. 669.]
I do riot believe that that is what the amendment does. It is correct that broadband is but one element of the new technology—but as expressed in the phrase "high-speed data transfer" it is also one element upon which many other technological developments are dependent. It follows that in acquitting its responsibilities Ofcom's decision-making process should be informed by appropriate and sensible judgments about the roll-out and take-up of broadband, not so much in its own right, but because of its knock-on effect on other emerging technology. To my judgment, the Bill currently contains no such provision, and the amendment will rectify this.
So far, the Government have sought to rely on the sense of Clause 3(3)(a) to excuse this lacuna. As the Minister put it in Committee,
"We have a perfectly good provision in Clause 3(3)(a), which sets out that Ofcom must have regard to the desirability of promoting competition in relevant markets".—[Official Report, 29/4/03; col. 669.]
This strikes me as a case of the Government falling into much the same trap as myself with my Committee stage amendment, on which the noble Lord, Lord Gordon, quite rightly, if gently, chided me. Implicit in the Government's position, not only in respect to the Bill, but to their policy approach more generally, is the presumption that most—if not all—the problems of broadband can be solved by market-driven solutions.
We should not underestimate the role of competition. For example, the respective positions of near-dominance by BT in the ADSL market, with the associated, woeful position in respect of local loop unbundling, and Ntl and Telewest in the cable market are indicative of how important competition issues continue to be in the sector. Nevertheless, while we might wish that all that is desirable in respect to broadband could be achieved by reliance on competition alone, that is not so at the moment.
This can be demonstrated in several ways. The noble Baroness, Lady Gibson of Market Rasen, advanced the proposition in Committee that high-speed data transfer services should be a universal service
58
obligation. The Government, to my mind quite rightly, resisted this. The aspiration is desirable, but at the moment the market is not sufficiently developed for this to be deliverable. Nor, indeed, is it simply a matter of the means of access to delivery of high-speed data transfer services. A host of other factors are at work—such as the affordability of hardware, the psychology of new technology use, and so on.
In other words, the problem is how to invigorate and develop the market to ensure that it reaches a position in which a universal service obligation is feasible. To my mind, a "mentorship" role for Ofcom should he in the Bill, an acknowledgement of its role as a champion of the cause of high-speed data transfer, so that the virtues of competition could march in step with the needs of consumers. There are echoes here of our first debate today. Hence the amendment. In this way the market should be able to achieve a situation in which a universal service obligation would be viable rather sooner than might otherwise have been the case.
The digital divide also creates huge difficulty. On the Countryside Agency's most recent figures, 95 per cent of urban households have access to a broadband connection, as compared with seven per cent for rural households. The technological constraints that have so far placed the regions and rural areas at disadvantage are well known, but we should not lose sight of the fact that for reasons such as those I have outlined, the divide—as expressed in terms of take-up rather than access—extends to many urban and inner-city areas.
The Government may have high hopes that the recent 3.4GHz spectrum auction, by enabling delivery of fixed-wireless access, will address the problem in rural areas and the regions. I am less certain. On the one hand, there is no obligation in the licence terms for successful bidders to roll out any service, let alone a broadband one; on the other it is likely that back-haul services for mobile telephony, or even sitting on the licences as an asset, offer a more attractive and commercially viable route to a return on the investment. Whatever the eventual outcome for the 3.4GHz spectrum, what matters is the real prospect that the divide will be perpetuated for some time to come—in terms of both roll-out and take-up.
I acknowledge the impetus that the Government have sought to give to broadband, particularly in recent months: Oftel's broadband market review listing of criteria for broadband service; Stephen Speed's appointment as director of broadband; the 3.4 auction, and so on. I pay tribute to the e-commerce Minister for the way in which he has brought technological expertise and clarity of purpose to his brief.
However, I remain firmly convinced that Ofcom can and should play a hugely important role in assisting the Government to achieve their policy goals. As John Wilson, a founder member of the "Access to Broadband" campaign has put it:
"the UK has a real opportunity to take a European lead".
In passing, I point out that this is the oft-stated aim of the Government's targets in the area. He goes on to say that,
"a proactive approach is needed to remove obstacles, bring all of this energy together, and allow new partnerships to move ahead positively".

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In other words, Ofcom needs to have a specific focus on broadband issues, so that "all of this energy" and "new partnerships" can coalesce to drive the whole of the broadband agenda forward positively. I beg to move.
Lord Gordon of Strathblane: My Lords, I support the amendment. It is a better one than the noble Earl moved in Committee not least because it has changed "broadband" into "high speed data transfer". He is right to call for a proactive role for Ofcom in this field. There is a tendency for Acts of Parliament to be drafted by people who live in cities and competition crops up in this Bill every second line.
The real problem with high speed data transfer is not regulating competition but getting anyone to provide the service at all outwith urban areas. Let me again remind the House that one-third of the British public does not have the opportunity of taking up broadband—or high speed data transfer. I must confess that the shorthand of "broadband" trips off the tongue more easily. Let us forget the business of urban deprivation and so forth for the moment. No matter how well off you are, you will not receive broadband in rural areas. Are we just going to sit back and allow Ministers to talk about their higher take-up in some urban areas in order to keep everyone quiet or are we going to do something about it? If so, which body should be doing something about it? In my view, it should be Ofcom. Regulation is not a negative act; it is a positive act. It tries to bring about a better good. To that extent, it is a sound idea to give Ofcom a proactive role in bringing about the wider access to high speed data transfer.
I am therefore pleased that the noble Earl, while retaining his legitimate enthusiasm for competition, has inserted the words "as appropriate", recognising that it is not a universal system. He has also included the words "throughout the United Kingdom", emphasising the importance of universality of provision, which is a fundamental tenet of public service broadcasting.
There is a grave danger that we shall end up with urban competition and rural deprivation. We need to do something about that and I support the amendment.
Lord St John of Bletso: My Lords, in supporting the amendment, I want to raise three issues. One is that of definition. The noble Earl mentioned the delivery of high speed data transfer. There has been confusion about where narrow band ends and broadband starts. The Government appear to be using 128 kilobytes as the starting point, but most consumers expect broadband to be 500 kilobytes or more. What is the Government's definition of broadband speed?
I should declare an interest as chairman of the trustees of Citizens Online, which is a UK charity committed to universal, affordable access—and that by 2005. Broadband rollout in the UK is in its comparative infancy. While 45 per cent of UK households have access
60
to the Internet, only 13 per cent have broadband access. However, 66 per cent of United Kingdom households could have broadband if they wanted it. My concern is that there ought to be greater and more affordable access to broadband services outside the major cities.
While there are increasing numbers of competitors in the urban areas offering broadband services, unfortunately with the falling prices of bandwidth it is becoming increasingly uncompetitive for companies to operate broadband services in rural areas. For effective and affordable rollout in rural areas, it should not be left simply to the free-market forces. Here the Government need to play an important role. Her Majesty's Government need to promote broadband, particularly if they want to achieve their stated objectives of not only universal access by 2005 but also,
"the most extensive and broadband competitive market among the G7".
That is not achievable if it is left simply to free-market forces.
It is well known that the Government took almost £22 billion from 3G licences. What provision has been made of that money to assist in broadband rollout? It is only right that Ofcom should play a proactive role in the rollout and for that reason I support the amendment.
6.15 p.m.
Lord Crickhowell: My Lords, too, am happy to support the amendment. I listened to the noble Lord, Lord Gordon of Strathblane, with a particular sense of feeling. For more than half the year I live in an area of Wales where I am extremely unlikely to be able to obtain the benefits of broadband, at least in the foreseeable future. It is in a part of the UK where government are taking some valuable initiatives and I pay tribute to the Welsh Assembly for those.
However, during the weekend, I saw a map of those parts of the UK where one can receive the benefits of broadband. It is startling because it shows how confined in geographic terms those areas are. Virtually the whole of Scotland and Wales and large parts of England are not covered at all. I am therefore sure that there is a need for proactive measures.
I listened to the remarks made by the noble Lord, Lord St John of Bletso, about the nature of broadband. I sometimes believe that what we in this country are now taking credit for might be called "narrow country lane band" compared with the highways and motorways that are being planned and constructed in some other countries. The width is of great importance. If one provides adequate width, one can receive all kinds of services, but the providers will not attempt to enter the market if the lanes are too narrow.
Last year, some of us attended a presentation by BT. The chairman of BT, who is a good friend of mine, gave us an eloquent address on how well it was doing. I then said to him, "Okay, I know what you are doing, but what about what I call broadband?"—I meant in the sense to which I have referred. He said, "Oh, it will

61
take at least 10 years before we can contemplate that". I said, "I'm going to throw back at you a remark that was once made in a Cabinet committee by the then Prime Minister, my noble friend Lady Thatcher, when a similar remark was made by an unfortunate Minister. She said, 'You mean it's going to take longer than the duration of two world wars put together. Quite a lot of technological achievement was made during two world wars. Surely we can do better than that'".
We must realise that if we are to achieve what can be achieved we must set the sights high and take proactive measures. I am sure that Ofcom has an important role to play in that and therefore I warmly support the amendments moved by my noble friend.
Lord AveburyMy Lords, broadband communications for every citizen in the United Kingdom has become like motherhood and apple pie— it is something you have to have. What we can do to encourage Ofcom in this regard is worthwhile. However, Ofcom already has a general duty to further the interests of the community as a whole in relation to communications matters, so by extension it has a particular duty to do what is possible within its powers to further the extension of broadband to the remaining one-third of households in the United Kingdom which at present do not have access to it.
Under Clause 3(2)(b), Ofcom has a particular duty to promote,
"the availability throughout the United Kingdom of a wide range of electronic communications services",
which must include high speed data communications.
In Clause 3(3)(e), it must have regard to,
"the desirability of encouraging investment and innovation in relevant markets".
So Clause 3 contains several provisions which ought to encourage Ofcom to do the kind of things which the noble Earl, Lord Northesk, and everyone else would like to see.
They are gradually being done. The noble Earl, Lord Northesk, spoke about the 3.4 gigahertz auction that has just taken place which would enable the operators concerned to offer fixed-wireless access in areas not covered by the cable industry or BT. That could, who knows, include rural Wales. It would be fascinating to see how soon the licencen holders would roll out services to consumers. I agree with the noble Earl, Lord Northesk, that it was a pity that there was nothing in the auction that obliged the winners to roll out services within a given time. I hope that that will be borne in mind in the case of future auctions. The Minister, Stephen Timms, said that the Government's aim was that every community in the UK should have access to affordable broadband services. I hope that that means at prices similar to those that are enjoyed at the moment by users of cable and telephone services.
I welcome the development of wireless broadband, which could be a powerful stimulus to competition. Looking ahead to later amendments, can the Minister say whether the purchases of the 3.4 gigahertz licences will be deemed to have recognised spectrum access
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under Clause 156 when the Bill comes into effect? When will the Government auction further parts of the spectrum to encourage the growth of wireless broadband, which is the only means of reaching the rural communities that everyone wishes to have access to high speed data communications?
Lord Baker of Dorking: My Lords, I support the comments of the noble Lord, Lord Avebury. I declare an interest as the chairman of an ISP company that provides broadband and conventional services. It is correct that broadband services are only available in major industrial conurbations and large cities. Many large rural towns are denied that service. To provide broadband services would require a substantial, and probably barely economic, investment in fibre optic landlines under the ground by the operators and cable companies. As the noble Lord, Lord Avebury, has indicated, the way forward will be wireless broadband. That will be the most effective way of reaching many of the more remote parts of the country.
That should be encouraged, not just by Ofcom. Even the original Oftel had an encouraging role. For example, it encouraged the competition of the Mercury network with BT. As the noble Lord, Lord Gordon of Strathblane, said, it had a positive role—not just an entirely negative or policing role. Ofcom should have that role in this area. I suspect that it probably has that role under Clause 3, and I suppose that the amendment reinforces that, so I shall certainly support it. However, the Government should also be encouraging in these matters. Ministerial statements saying that it is their objective that everyone should have access to broadband are fine and noble. but the Government are a government of adjectives. For them to say that everyone should have broadband, without providing more positive means of encouragement to achieve it is the great lacuna.
The matter depends upon positive government encouragement and not speeches. I hope that the Government will take that to heart, quite apart from Ofcom.
Baroness Buscombe: My Lords, I support the amendment. Actions speak louder than words. My noble friend Lord Baker has just said that, and I add the support of Her Majesty's Opposition to my noble friend's amendment.
Lord Lucas: My Lords, I support the amendment. We are looking at a technology that will, I suspect, over the next 10 to 30 years, give us the opportunity to transform our society and deal with a great number of the ills that we face now. Many of our troubles stem from shipping people around in order for them to get to work. The reason for having to go to work is that that is the only way in which one can communicate easily with other human beings. If one can be at the end of high speed data transfer—I agree, not broadband as it exists but, looking 10 years ahead, that envisaged by my noble friend Lord Crickhowell. Even further ahead—it will be possible, if we get this right, to be sitting 20 miles outside Aberystwyth and acting as if

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one was in an office in the City of London. Many people will feel that 20 miles outside Aberystwyth is a better place to be on a summer afternoon than the middle of the City of London.
Therefore, we have an opportunity to bring commercial life back to parts of the United Kingdom that have been cut off. That might start from the peripheries, but could edge into any part of the countryside, including those day-deserted villages that we are all becoming used to in southern England, filled with commuting families who disappear during the day. All that has the potential to change and to produce a better environment, a better society in those localities, and to reduce some of the major problems which the Government have to tackle in terms of pollution and transport.
However, to do that requires the impetus to attract infrastructure that only a government can give. Operating ahead of time is something that requires Government initiative. I know that my own party has failed to understand that at times. That is why Docklands was for so long inadequately provided for. The party that is the Government now should understand—because it always did in opposition, the role that government has in such matters.
Here we are, faced with a need to achieve high speed data transmission around the country, and the need to have Ofcom see that as one of its principal and stated objectives. In various subsections of Clause 3, Ofcom has many other competing interests that it is supposed to balance. Unless that is stated as one of Ofcom's main objectives it will be merely one of its objectives that are not stated. and be reduced to "level two".
Several of my noble friends have referred to the radio spectrum. That appears to be crucial. It is difficult to see how we could extend broadband to Aberystwyth through fixed links. That probably has to be done through the radio spectrum, but crucial sections of the radio spectrum are hogged by various government and quasi-government entities. If I am correct, the crucial part of the spectrum is around 2 gigahertz, and the Government have no intention of freeing up any of that.
Ofcom is faced with the need to shift existing users in order to make room for something new, but at the moment the Bill does not give the impetus and direction to do that. We must realise that making room for broadband—rural means anything more than five kilometres from a decent-sized exchange—means dealing with areas that one might think of as semi-urban or commuter-belt England. One is not dealing with the wild, wet moors, but with great tracts of middle-class countryside. If those are left outside that development, and Ofcom is not given the direction and impetus required to make sure that business can operate as happily from a Hampshire village as from the middle of London, then one will have a continuation of the current transport and lifestyle problems that are causing difficulties for the Government in other areas. It is now time for the Government to think inter-connectedly, and to realise that they have the opportunity in the DCMS to solve
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problems that are afflicting many other government departments if they give Ofcom the impetus. I hope that we shall see a change of heart.
Lord Northbrook: My Lords, I support my noble friend Lord Northesk in his amendment. I add my concern to that of my noble friend about the rollout of broadband via the 3.4 gigahertz spectrum. The auction ended with one company, PCCW, winning all but two of the licences on offer. At its peak, PCCW was a key player in the telecoms market, surprising the market with its purchase in 2000 of Cable and Wireless's HKT Hong Kong phone monopoly for 28.5 billion US dollars. Since then, PCCW shares have lost 95 per cent or so of their value. The debts incurred during those years have forced the company to sell its mobile phone arm. As the Economist stated in February:
"Its net debt exceeded the company's market value".
Therefore, I ask whether PCCW is in any position to start rolling out broadband to rural areas. Should there not have been a role for the regulator to make a judgment on the financial quality of the bidders? As stated by my noble friend Lord Northesk, the terms and conditions of the auction also mean that successful bidders will not have to roll out services. In theory, the company could sit on those assets for another purpose, such as carrying mobile traffic.
We can see that auction does not seem to have produced a sensible list of bidders. We should note that the large companies did not feature in the auctions and that the chief executive of BT retail described it as stupid, although it yielded £7 million to the Government. As a result, it is entirely appropriate to support the amendment to require Ofcom to monitor the whole future process of high-speed data transfer delivery.
6.30 p.m.
The Earl of Liverpool: My Lords, there has been a wide measure of support for the amendment from all quarters of the House. I should like to add my voice in support of it. The noble Lord, Lord Gordon of Strathblane, came up with an interesting statistic, which is that only 7 per cent of rural households have access to broadband; which means that 93 per cent do not. I think that the amendment will improve my chances, along with those of many of my friends both inside and outside the House, of getting broadband, so I support it.
Baroness Byford: My Lords, I shall briefly support my noble friend's amendment. I apologise that I was unable to take part in Committee. This whole question is extremely important to rural areas. Only 10 days ago, we had a debate on the state of the countryside in which six Members spoke of their concern about the lack of broadband provision—if I can use the word "broadband" in that way. Winding up the debate. the noble Lord, Lord Whitty, was surprised that so many had mentioned broadband—I found his surprise surprising, because broadband is essential.

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As noble Lords will know, the farming community has been through some desperate years. Farming incomes have been absolutely on the floor. During the past year, they have improved a little. Farmers are always being encouraged to diversify, diversify, diversify. Something that would help them enormously would be access to broadband. So I wanted during my few moments here to support my noble friend. During that debate last week, I cited the figures, which are that 1 per cent of houses in remote areas have broadband; and 7 per cent of those in villages; compared with 95 per cent in urban areas.
Part—in fact, a large part—of the growth in small and medium-sized businesses is occurring in rural areas. They have struggled, but what a difference it would make to them if they had access to that new technology. I wholeheartedly support the amendment.
Lord Davies of Oldham: My Lords. as my noble friend Lord McIntosh pointed out on several occasions in Committee, broadband is an important policy area for the Government, and stimulating competition in the broadband market is a key part of our strategy. The target for the UK is to have the most competitive and extensive broadband market among the G7 countries by 2005. Competition, coverage and take-up of broadband are all still increasing.
I recognise the forceful points made in the debate about rural areas, to which I shall turn in a moment, but we should recognise how far we have come. According to independent consultants, we now have the third most competitive market in the G7—up from fourth a year ago and overtaking the United States. Of course, more remains to be done. Third glace is not our target, but we are moving in the right direction to surpass that. The latest figures from Oftel show that the number of broadband subscribers at the end of May was more than 2 million and rising by more than 30,000 each week.
Of course, we recognise that availability of broadband across the whole of the United Kingdom is a matter of great concern. At the end of March, 72 per cent of households were passed by a mass-market broadband service, cable modem, ADSL, or wireless. We have now caught up with the USA and are still ahead of France and Italy.
Turning to the rural market, the debate provoked several moving speeches about the needs of the countryside and rural areas. We take that most seriously. DTI and Defra Ministers have been working together on broadband in rural areas, where suppliers find it most difficult to make a business model. Recently, they appeared together in front of the Select Committee on the Environment, Food and Rural Affairs, which is holding an inquiry into exactly that subject: the availability of broadband. They also issued a joint statement confirming the Government's aim that every community in the UK, irrespective of location, should have the opportunity to access affordable broadband from a competitive market. They are announcing a joint team to tackle the issues.
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However, I cannot agree that the way to achieve those objectives is by amending the Bill as proposed. Those are matters for government. It is not for an independent regulator to secure, to cite the amendment:
"the desirability of encouraging the best means"
of broadband access. It is not for an independent regulator to decide what is the "best means" of access. Surely, that is for the market. I am not sure how an independent regulator is meant to secure,
"the desirability of encouraging",
anything. How would a regulator set about meeting that objective?
More generally, Ofcom needs to look at a variety of markets and not be diverted onto a single market when other equally pressing issues may arise during the lifetime of this legislation.
Lord Gordon of Strathblane: My Lords, is it the role of Ofcom to promote the availability throughout the United Kingdom of a wide range of electronic communications services?
Lord Davies of Oldham: My Lords, indeed it is, but it does not have the specific duty of fulfilling that objective. The role of promoting broad access is for government action. I have already mentioned several ways in which we have begun to co-ordinate government departments to reach objectives that are shared across the House. We all recognise that we cannot have an information-rich and an information-poor section of the community. That would produce inequalities that we should not tolerate.
So we all agree that we must tackle those issues and recognise that some of them relate to the rural community. But this is exactly what the Government are doing. We have already acted in Cornwall, delivering 13 exchanges to create capacity for broadband. We have schemes to enable pilots in small communities such as Alston. The broadband aggregation project will make the most of £1 billion of public sector money to be spent on broadband for its own purposes. That is because the issue spans government departments and is a matter on which the Government as a whole must act—especially the significant allocation of resources that will he necessary in crucial areas to produce the results that we all desire.
Lord St John of Bletso: My Lords, can the Minister give a figure for the resources that the Government have put aside for broadband rollout across the United Kingdom?
Lord Davies of Oldham: No. My Lords, there is a range of different figures. 1 cannot give a particular figure at this stage. I have just indicated that we have an allocation of resources concerned with the question of the project to make the most of the money that we have available. I have indicated that a £1 billion public sector spend will be related to this area of improving capacity and access.

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Of course, this is a rapidly changing circumstance, in which we all recognise that we must divert the wide resources of government to meet these needs. The amendment specifically requires Ofcom to do this. It is contended at the present time that this is not a specific objective. The noble Lord, Lord Avebury, made reference to the fact that the House voted to take out that part of the clause that gave Ofcom a duty to the community as a whole, and has translated that duty into more specific terms. It is even more incumbent on the Government to recognise that a range of strategies is necessary to serve the interests of the community.
Although I share, in every respect, the objectives that have been put forward by all those in the House who supported the amendment, I am unable to accept the amendment as being a proper and specific duty upon Ofcom. I mentioned the requirement that Ofcom should get into the position of encouraging the market to respond in these terms; that looks to be an odd specific requirement to place upon a regulator.
We recognise that Ofcom will give broadband a high priority. For instance, in a speech on 5th December 2002, the noble Lord, Lord Currie of Marylebone, as chairman of Ofcom, said that Ofcom would need to address the many key policy issues in the communications sector. He then listed those priorities, and first on the list was broadband roll-out. I do not think that we should, in any way, shape or form, suggest that the Government and Ofcom are not seized with the priority that needs to be applied to the question of extending capacity for broadband.
It is not right that we translate this into a specific requirement of Ofcom, given that there is a broad range of objectives. Making resources necessary for this stimulus to sustain and develop the market would involve a much greater spread of government contribution than is identified by Ofcom.
We have had an interesting debate that has given us the chance to emphasise rural needs and the needs of all those who do not at present have access to broadband. However, because of the limitations of the amendment, and because it narrows the purpose, I suggest that this responsibility should not be placed on the regulator.
The Earl of Northesk: My Lords, I thank the Minister for that reply, but it will come as no surprise to him that I am utterly disappointed by it. Things were going swimmingly until, as I understood it, he stated explicitly that broadband delivery should be exclusively a function of the market except, unless otherwise directed by government intervention.
I find that utterly extraordinary. We have all agreed that the market at the moment cannot alone bridge the digital divide. It cannot do the job. I am grateful to the noble Lord, Lord Gordon of Strathblane, for his contribution. In discussions that I had with him after tabling the amendment, he was concerned that the amendment should include the word "widespread". I am even more pleased therefore that he feels the use of "throughout the United Kingdom" to be adequate.
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I found the case of my noble friend Lord Lucas compelling, and I thank him for that. I am also grateful to my noble friend Lord Crickhowell for drawing the comparison between us and our international competitors. I found that to be a telling point.
We all know that the noble Lord, Lord Avebury, is particularly expert in technological matters, but for me the point at issue here is not what Ofcom is already empowered to do, but to ensure that the regulator is properly charged in statute with an understanding of its proactive role in this area. That is simply not the case at the moment. The emphasis in the Bill is utterly competitive. Albeit—and I pick up on the point made by the Minister—the irony of the House's acceptance of Amendment No. 1 is not entirely lost on me.
I continue to be convinced that the current text of the Bill does not afford Ofcom the opportunity to give broadband the prominence that it merits. This is not about anything other than Ofcom understanding its proactive role, to use the vocabulary of the moment. Ofcom needs to be a stakeholder in this issue.
I am grateful to my noble friend Lord Baker. I could not agree with him more that positive encouragement from government is required. Acceptance of this amendment would have been an ideal manifestation of that. On that basis, I should test the opinion of the House.
6.46 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 113; Not-Contents, 111.

Division No. 3

CONTENTS

Addington, L.

Fearn, L.

Allenby of Megiddo, V.

Finlay of Llandaff, B.

Alton of Liverpool, L.

Fookes, B.

Anelay of St Johns, B.

Fowler, L.

Ashcroft, L.

Freyberg, L.

Astor of Hever, L.

Gardner of Parkes, B.

AVvebury, L.

Geddes. L.

Baker of Dorking, L.

Glenarthur, L.

Barker, B.

Gordon of Strathblane, L

Best, L.

Goschen, V.

Biffen, L.

Gray of Contin, L.

Blatch, B.

Hamwee. B.

Brougham and Vaux, L.

Hanham, B.

Buscombe, B.

Harris of Richmond, B.

Byford, B.

Howe, E.

Caithness, E.

Howe of Aberavon, L.

Carlile of Berriew, L.

Howe of Idlicote, B.

Colwyn, L.

Howell of Guildford, L.

Cope of Berkeley, L.

Hylton, L.

Cox, B.

Jenkin of Roding, L.

Craig of Radley, L.

Knight of Collingtree, B.

Craigavon, V.

Laird, L.

Crathorne, L.

Lawson of Blaby, L.

Crickhowell, L.

Liverpool, E.

Darcy de Knayth, B.

Livsey of Talgarth. L.

Dixon-Smith, L.

Lucas, L.

Elliott of Morpeth.L.

Luke, L.

Falkland, V.

McColl of Dulwich, L.

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Mackie of Benshie, L.

Peyton of Yeovil, L.

Maclennan of Rogart, L.

Phillips of Sudbury, L.

McNally, L.

Pilkington of Oxenford, L.

Maddock, B.

Rees, L.

Mancroft, L.

Roberts of Conwy, L.

Mar, C.

Rodgers of Quarry Bank, L.

Mayhew of Twysden, L.

Rogan, L.

Michie of Gallanach, B.

Russell, E.

Miller of Chilthorne Domer, B.

St.John of Bletso, L.

Miller of Hendon, B.

Saltoun of Abemethy, Ly.

Monro of Langholm, L.

Sandberg, L.

Montrose, D.

Scott of Needham Market, B.

Murton of Lindisfame, L.

Seccombe, B.

Newby, L.

Selborne, E.

Noakes, B.

Selsdon, L.

Northbrook, L. [Teller]

Sharp of Guildf ford, B.

Northesk, E. [Teller]

Shutt of Greetland, L.

NortonofLouth, L.

Skelmersdale, L.

Oakeshott of Seagrove Bay, L.

Slim, V.

O'Cathain, B.

Smith of Clifton, L.

O'Neill of Bengarve, B.

Strathdyde, L.

Thomson of Monifieth, L.

Onslow, E.

Tordoff, L.

Paimer, L.

Trefgarne, L.

Park of Monmouth, B.

Waddington, L.

Patten, L.

Wakeham, L.

Pearson of Rannoch, L.

Walmsley, B.

Peel, E.

WeatheriU, L.

Perry of Walton, L.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Golding, B.

Ahmed, L.

Goldsmith, L.

Amos, B.

Goudie, B.

Andrews, B.

Gould of Potternewton, B.

Ashley of Stoke, L.

Graham of Edmonton, L.

Ashton of Upholland, B.

Grocott, L. [Teller]

Barnett, L.

Hardy of Wath.L.

Bassam of Brighton, L.

Harris of Haringey, L.

Berkeley, L.

Harrison, L.

Bernstein of Craigweil, L.

Haskel, L.

Billingham, B.

Hilton of Eggardon, B.

Blackstone, B.

Hogg of Cumbernauld, L.

Boothroyd, B.

Hollis of Heigham, B.

Borrie, L.

Howells of St. Davids, B.

Bragg, L.

Hughes of Woodside, L.

Brennan, L.

Hunt of Kings Heath, L.

Brooke of Alverthorpe, L.

Irvine of Lairg, I..

Brookman, L.

Jones, L.

Brooks of Tremorfa, L.

Jordan, L.

Campbell-Savours, L.

King of West Bromwich, L.

Carter, L.

Kirkhill.L.

Christopher, L.

Lea of Crondall, L.

Clark of Windermere, L.

Lipsey, L.

Clarke of Hampstead, L.

Lofthouse of Pontefract, L.

Clinton-Davis, L.

Macdonald of Tradeston, L.

Cohen of Pimlico, B.

Mclntosh of Haringey, L.

Crawley, B.

Mclntosh of Hudnall, B.

David, B.

MacKenzie of Culkein, L.

Davies of Coity, L.

Mackenzie of Framwellgate, L

Davies of Oldham, L. [Teller]

Mallalieu, B.

Dean of Thornton-le-Fylde, B.

Mason of Barnsley, L.

Desai, L.

Massey of Darwen, B.

Dixon, L.

Merlyn-Rees, L.

Dormand of Easington, L.

Morgan, L.

Dubs, L.

Nicol, B.

Evans of Parkside, L.

Parekh, L.

Evans of Temple Guiting, L.

Patel of Blackburn, L.

Farrington of Ribbleton, B.

Pendry.L.

Faulkner of Worcester, L.

Pitkeathley, B.

Filkin. L.

Plant of Highfield, L.

Fitt, L.

Prys-Davies, L.

Fyfe of Fairfield, L.

Ramsay of Cartvale, B.

Gale, B.

Randall of St. Budeaux, L.

Gibson of Market Rasen, B.

Rendell of Babergh, B.

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Renwick of Clifton, L.

Temple-Morris, L.

Richard, L.

Thornton, B.

Rooker, L.

Turner of Camden, B.

Sawyer, L.

Walker of Doncaster, L.

Scotland of Asthal, B.

Warner, L.

Sheldon, L.

Warwick of Undercliffe, B.

Simon, V.

Whitaker, B.

Stallard, L.

Whitty, L.

Stoddart of Swindon, L.

Williams of Elvel, L.

Strabolgi, L.

Williams of Mostyn, L. (Lord President of the Council)

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.56 p.m.
The Deputy Speaker (Baroness Cox): My Lords, before calling the next amendment, I have been asked to make the following announcement: in Division No. 1 this afternoon, the number of noble Lords voting "Not Content" should have been 74, not 75, as previously announced.
Baroness Howe of Idlicote Baroness Howe of Idlicote moved Amendment No. 6:
Page 3, line 29, at end insert—

"(g) the availability of adequate means for considering and, where necessary, redressing complaints from the public about alleged lapses from the standards referred to in paragraphs (e) and (f)"

The noble Baroness said: My Lords, in moving Amendment No. 6, I shall speak also to Amendment No. 27.
I return with the same amendments I put down in Committee because I hope that the Minister will this time be able to convince me and others who have the same concerns that those who complain about fairness, privacy, taste and decency issues to Ofcom or its content board will have their complaints dealt with and decided upon not just by able and well qualified people, which members of Ofcom and the content board are, but by people who can be seen as being, in all respects, truly independent of the broadcaster complained of. As your Lordships know, it is my contention that members of a body that hands out and regulates licences and approves the codes whereby broadcasters operate will not always be so viewed.
I accept that broadcast material viewed as offensive for reasons of taste and decency is more difficult. In Committee, the noble Lord, Lord Pilkington of Oxenford, referred to such issues as "relative morality", but, even with most of the disputes left to be settled directly with the broadcasters, there will be occasions on which broadcaster and citizen refuse to be reconciled. If my experience at the Broadcasting Standards Commission is anything to go by, there will be plenty of such occasions. How are they to be dealt with by Ofcom? Are they to be dealt with by Ofcom, despite the powers retained in the Bill for it to do so? How will the complainant be reassured that decisions are made objectively?
With fairness and privacy, the principle of having complaints scrutinised and decided by lay people, such as the members of the Broadcasting Standards

71
Commission, who are independent of broadcasters and regulators, without the cost of going to court is even more important. As the noble Lord, Lord Pilkington of Oxenford, said in Committee, enormous distress has been caused to people whose privacy has been subject to unwarranted infringement and to people whom the broadcast media have treated unfairly. People have suffered not only distress but damage to their business or other form of livelihood. By no means will everyone concerned have the resources to take the matters directly to court.
As I said, the Minister said in Committee that Ofcom would have the same powers as its BSC predecessor to adjudicate such cases. He rightly emphasised that Broadcasting Standards Commission research showed that, in most cases, complainants were more concerned with safeguarding and restoring their reputation than with receiving financial compensation. But what is still not clear is whether the citizen has any assurance that he can invoke these powers and that they will be used on his behalf. The Minister, the noble Lord, Lord Davies of Oldham, in Committee on 29th April at col. 638 of Hansard, threw out a hint that without fettering the discretion of Ofcom, separate arrangements for hearing these complaints could be made. Could he make it plain that this is still a possible intention? It is only the guarantee that arm's length decisions are made that will eliminate charges of lack of independence.
One solution might be for Ofcom or the content hoard to set up themselves a completely independent but knowledgeable committee, the equivalent of three wise men and women. The responsibility could then be delegated to them. There is one final point on this issue: to whom—if anyone—would a dissatisfied citizen complainer be able to appeal after a ruling? A suggestion was made recently that for appeals against the dismissal of complaints by the Press Complaints Commission, an independent ombudsman should be established. It would be a strange outcome, if as a result of two parallel changes made this year, the right of the citizen to complain effectively about the written word was being enhanced, but his right to complain about the broadcast word was being diminished or taken away. I beg to move.
7.00 p.m.
The Lord Bishop of Manchester: My Lords, I should like to add to the congratulations from these Benches to the noble Lord, Lord McIntosh of Haringey. His responses to the Bishops are sometimes robust, always courteous and occasionally supportive. Whether or not the Government support and accept the amendments of the noble Baroness, I hope that they will acknowledge that they highlight something of great importance. There is a need for Ofcom to take seriously complaints about alleged lapses from the standards to which these amendments refer. I have had a pile of letters about this issue from members of the public, particularly on the harm and offence issues. Many people feel that it is perhaps not even worth complaining because their complaints will not be taken seriously.
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I do believe that the noble Baroness is expressing concerns that ought not to be put aside lightly. Whether or not she presses her amendment, I urge the Government to make clear that they will encourage Ofcom to provide adequate means for the redressing of such complaints so that the Government are seen to take this issue seriously.
Lord McNally: My Lords, in Committee my noble friend Lord Falkland with his usual absolute honesty, confessed that he and I had been discussing the Liberal Democrat attitude and had come to a conclusion. This transparent honesty caused the noble Lord, Lord Davies of Oldham, to tease us unmercifully about the nature of Liberal Democrat policy-making. I can say that between Committee and Report, I have given full consideration to this. I have also listened carefully to what the noble Baroness, Lady Howe, said. I think that she has posed a question that needs now to be answered by the Government. If it is not, it will come back and bite them.
Public opinion is very concerned about how legitimate complaints will be dealt with. As regards the existing bodies they know the avenues for redress. They want to be sure that those avenues remain open when this Bill becomes an Act. Therefore we need clear assurances from the Minister and we would certainly support the noble Baroness in these amendments.
Lord Davies of Oldham: My Lords, we did indeed discuss these amendments in Committee. I recall that on that occasion the noble Lord, Lord McNally, had to be more dextrous than he normally is. He still made a cogent speech on that occasion as he did on this. I recognise the strength of the points that both he and the right reverend Prelate have put forward and the strength of the case put forward by the noble Baroness. We regard the proper treatment of complaints from the public about unfairness in broadcasting or the unwarranted infringement of privacy as a very important matter.
That task, so effectively undertaken by the Broadcasting Standards Commission and before it by the Broadcasting Complaints Commission, is being handed lock, stock and barrel to Ofcom. We believe that it is best placed to discharge that responsibility and that there is no longer a compelling case for retaining an entirely separate body. Ofcom must—and I believe will—be able to demonstrate sufficient independence from broadcasters in this matter. I recognise the strength of the case made that any such work needs to be done by those totally independent from broadcasters.
Amendment No. 27 appears designed to ensure that the functions of the content board include, to the extent determined by Ofcom. functions in relation to the consideration of complaints about breaches of fairness standards and privacy. In the Bill as drafted, these functions fall within the list of functions in Clause 12 which Ofcom could give to the content board. But we do not believe that we should limit the discretion of Ofcom as to how or by whom that function is to be carried out. Providing they meet the

73
principles and follow the high standards of past practice, they should have the freedom to reach judgments on how this function should be carried out.
The danger is that if we were over-prescriptive at this stage, we might work against the very proper degree of independence which was the major point in the argument of the noble Baroness. As I have explained before, it may be that a separate committee might take responsibility for this function. However, if we are to have a regulator that can adapt to changing circumstances, we must not be too specific about its internal structure. As in Committee, major points have been made as regards the necessity for the independence of Ofcom. It is a hugely significant role, but it would not be right to be too specific about which committee or how Ofcom would construct its committee to carry out this particular function.
The issue of appeals came up about privacy decisions. Like the Broadcasting Standards Commission, Ofcom will adjudicate on complaints of privacy. There is no statutory basis for appeal, but Ofcom would be expected to set up a two-stage process encompassing the concept of appeal. It is also important for Ofcom to demonstrate the independence of the adjudicators on privacy. It might want to set up an entirely separate committee and perhaps bring in people from outside. But we are arguing to retain some flexibility while recognising that the principles embraced in these amendments are subscribed to by Ofcom. On that basis, I ask the noble Baroness to consider withdrawing her amendment.
Baroness Howe of Idlicote: My Lords, I thank the Minister for his reply and I am grateful for the support given by the right reverend Prelate the Bishop of Manchester and the noble Lord, Lord McNally. The Minister gave more grounds for optimism. There would be the independence which concerns not just me but a number of other people when making decisions about complaints, whether on taste and decency issues or, as we all agree, far more important because of the real damage to individuals, the fairness and privacy issue. I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Buscombe Baroness Buscombe moved Amendment No. 7:
Page 3, line 30, after "OFCOM" insert "shall take particular account of the importance of applying, wherever possible, the principles of good regulation, namely transparency, accountability, proportionality, consistency and targeting only in cases in which action is needed and, subject thereto,"
The noble Baroness said: My Lords, I shall speak to Amendments Nos. 7 and 8 and I shall not move Amendments Nos. 13 and 15.
We return to a subject debated in Committee—the principles of good regulation. There was a considerable measure of agreement on all sides of your Lordships' House. We all accept, and are in favour of, the principles of good regulation.
On this side of the House, we beieve that the principles of good regulation should be overriding principles rather than merely a factor to which Ofcom must have regard. I am particularly concerned about
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the expression "must have regard". It is an expression familiar to lawyers and has been considered by one of the judges of the Queen's Bench Division in an application for judicial review against the Police Complaints Board. For those who have access to law reports, this case is reported in the second volume of the All England Law Reports for 1983 on page 353.
In that case, Mr Justice McNeill held that a requirement that the Police Complaints Board had to have regard to guidance given by the Secretary of State meant no more than that the board was required to take the guidance into account. It did not mean that it was obliged to comply with the guidance. In this context, it is worrying with regard to principles of good regulation because we do not consider that it is acceptable that Ofcom merely has to take the principles of better regulation into account. It is not obliged to comply with those principles and is therefore free to depart from them. To all intents and purposes, Ofcom should be obliged to comply with those principles.
The principles should not merely be included as a factor or objective to be taken into account or to which regard must be had in subsection (3). The principles are overriding principles which must be observed in taking into account or having regard to the factors and objectives in subsection (3). They are on a very different level from those mere factors or objectives in subsection (3) and various factors or objectives may or may not be applicable in one case or another. In contrast, the principles of good regulation must apply in every case. It is important—indeed essential—that Ofcom must take particular account of these principles.
In Committee, the Minister referred to the distinction between subsection (2), which concerns matters that Ofcom can control, and subsection (3) which, on the whole, concerns matters it can only influence. That begs the question: in what circumstances would the principles not apply? Surely, if a regulator can ignore principles of better regulation, the Bill should specify them—and specify when. I am grateful to the Minister for the opportunity he gave between Committee and Report stages to discuss this matter. I hope that he has taken this issue on board. Our amendment meets the Minister's concerns in Committee. I beg to move.
7.15 p.m.
Lord McIntosh of Haringey: My Lords, again, perhaps it would be helpful for me to intervene, thus curtailing further debate. We recognise the relevance of the principles of better regulation, particularly transparency and accountability. We recognise that there are still concerns on this issue. The noble Baroness, Lady Buscombe, has put forward an eloquent case for us to consider whether there is any way in which we can strengthen the references to the principles of good regulation. We accept that as a regulator these principles will impact directly on

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Ofcom and should be central to how it will operate. We shall take this away for consideration, with the aim of producing appropriate amendments at Third Reading.
Lord Avebury: My Lords, I thank the Minister for his comments. In any further discussions which he may have in consequence of the promise that he made in Committee to look into this matter and determine whether a better formulation can be found—repeated again now—I should be most grateful if he would involve me in the discussions.
Lord McIntosh of Haringey: My Lords, with pleasure.
Baroness Buscombe: My Lords, I thank the Minister for his very encouraging response. I hoped that our amendment could be accepted. I believe that it meets all the criteria and concerns raised in Committee. I am sorry that we have to wait with bated breath until Third Reading. I hope that at that stage there will be a government amendment or amendments which we can support. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 8 not moved.]
Baroness Howe of Idlicote Baroness Howe of Idlicote moved Amendment No. 9:
Page 3, line 49, at end insert "consistently with the proper protection of other fundamental rights"
The noble Baroness said: My Lords, Amendment No. 9 concerns the legal balance between two fundamental human rights—namely, the right to privacy and the right to speak freely. Both those rights are spelt out in the European Convention on Human Rights, respectively in Articles 8 and 10. I am sure that I need not remind your Lordships that the ECHR was drafted by UK lawyers some 50 years ago and has, since the Human Rights Act 1998, been part of our domestic law.
Those two rights were then perceived, as they are today, as being of equal value; that has recently clearly been reaffirmed in more than one way. I cite first Council of Europe Resolution 1165 of 1998. Paragraph 11 states:
"The assembly reaffirms the importance of every person's right to privacy and of the right to freedom of expression, as fundamental to a democratic society. Those rights are neither absolute nor in any hierarchical order, since they are of equal value".
As drafted, this clause does not properly reflect that balance. I know that this is a point of law—I am no lawyer—but that view has been very clearly argued in an article in Legal Week, dated 12th December, by a partner in the well-known law firm, Peter Carter—Ruck and Partners—namely, Mark Thomson. He makes the point—so do I—that the reference in subsection (3)(g) to acting in a manner which,
"best guarantees an appropriate level of freedom of expression".
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implies that this right has some kind of priority over other fundamental rights. I would argue that this is incorrect both legally and practically and is contrary to the obligation of the United Kingdom under the European Convention on Human Rights.
Freedom of expression is specifically protected by the word "unwarranted" in subsection (3)(2)(f)(ii). An infringement of privacy made in the proper exercise of freedom of expression would obviously be "warranted". For example, where privacy is invaded in order to expose crime or wrongdoing, the invasion could not be described as "unwarranted". Subsection (3)(g) appears to go wrongly in the opposite direction, quite possibly in three respects, by the use of three almost superlative words—"the need to secure", "the manner that best", "guarantees", and so on. Put simply, the attempt to "guarantee" some kind of priority for freedom of speech manifestly goes too far.
I close by mentioning two cases decided by the courts, each of which started during my chairmanship of the Broadcasting Standards Commission: the Dixon case and most notably the case of Peck v United Kingdom. The Peck case ended up in the Strasbourg court, which held that the UK was in breach of its Article 13 obligations to provide Mr Peck with an effective remedy in order to provide sufficient respect for his privacy rights.
The Master of the Rolls, the noble and learned Lord, Lord Phillips of Worth Matravers, has subsequently commented that that case suggests that,
"either the Courts or the legislators are going to have to establish a tort of invasion of privacy if this country is to comply with the Convention's obligations".
If this clause is allowed to stand unamended, it risks being struck down as being out of line with our convention obligations. My amendment is designed to prevent that happening and to restore the balance that is required not only by the European convention, but also by any reasonable sense of balanced justice.
There is perhaps one other possible way to deal with this issue: that is, omit Clause 3(3)(g) altogether. I beg to move.
Lord McNally: My Lords, in Committee, the noble Lord, Lord Lipsey, referred to a complaint that had been made against a particular programme on which the Broadcasting Standards Council produced a censorious verdict and about which the programme makers had pretty well rejected the council's adjudication. At that point the noble Lord said that in his view what was needed was a cultural change in the relationship between the broadcasters and any regulators. That is probably true. I have often referred to what I think is the wholly healthy relationship between the advertising industry and the Advertising Standards Authority.
The noble Baroness, Lady Howe, does great service to the House and to the Bill by moving her amendments today. Amendment No. 9 again draws attention to areas where the broadcasters may feel desperately strongly about the right to freedom of speech. It is in the public mind a real concern and fear

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that, if the balance is too wrong between the two rights to which the noble Baroness has referred, they will become the victims of that freedom of speech with little power of redress. Therefore, her points deserve firm consideration by the Government.
Lord Evans of Temple Guiting: My Lords, the Government are fully committed to the protection of fundamental rights as set out in the Human Rights Act. Since the Human Rights Act applies to the powers of both Ministers and Ofcom as they will be conferred on them by the Bill, there is no need to repeat those obligations on the face of the Bill.
The protection of privacy, human dignity and other fundamental rights is guaranteed by the Human Rights Act. It is true that freedom of expression is also guaranteed by that Act. Spelling out that right specifically on the face of the Bill reflects our commitment in the communications White Paper that the regulator's central objectives should reflect the balance between freedom of expression and the constraints on freedom of expression inherent in the regulation of broadcast content.
Clause 3(2) requires Ofcom to secure the application of standards that provide adequate protection to members of the public from the inclusion of offensive and harmful material in broadcast services and protection from unfair treatment and unwarranted infringements of privacy. In performing those duties, which, entirely legitimately and consistently with human rights legislation, require the interference with the right to freedom of expression, Ofcom is also required by Clause 3(3)(g), so far as is relevant, to have regard to doing so in the manner that best guarantees an appropriate level of freedom of expression.
We believe that this strikes the right balance. It in no way places freedom of expression above other rights, nor does it have any impact on the interpretation of the Human Rights Act as it applies to Ofcom, but it signals to Ofcom that the way in which it approaches its task in Clause 3(2)(e) and (f) should be the way that best guarantees the appropriate level of freedom of expression.
The noble Baroness, Lady Howe, mentioned the European Court decision in the Peck case. That case has been overtaken by events. The postion has now been rectified by the incorporation of the Human Rights Act into our domestic law. Mr Peck would now have a claim under the Human Rights Act against the local authority in question that would offer him a route to an adequate remedy where none was available before. With those reassurances, I hope that the noble Baroness will withdraw her amendment.
Baroness Howe of Idlicote: My Lords, I thank the Minister for his reply and the noble Lord, Lord McNally, for his support for the case I put forward. I am more than a little disappointed with the reply. The case I made underlined that the clause as it stands can be interpreted in a way that gives greater freedom to the broadcasters' approach than to
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individual complainants. I shall consider what the next step is and I may return to the issue. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Buscombe Baroness Buscombe moved Amendment No. 10:
Page 4, line 9, after "Kingdom" insert "of' people of different ethnic origins and communities and gender"
The noble Baroness said: My Lords, in moving Amendment No. 10, I shall speak also to Amendment No. 11, which is proposed by the Government.
Amendment No. 10 was proposed to me by Women in Film and Television. While I strongly support their thinking and their overall case, when I first received it I was initially reluctant to table the amendment on the grounds that I believe strongly that the duties of Ofcom should extend to everyone on an equal and inclusive basis, and that no particular group or community should be singled out.
Your Lordships may say that people with disabilities, the elderly and those on low incomes are, for example, particular groups. However, in the context of Clause 3 that is not so since people with disabilities, those on low incomes and the elderly are present in all communities and live in all parts of the United Kingdom.
At Second Reading, the noble Lord, Lord Currie, said that some will find it tempting to shift metaphor, to see Ofcom as a Christmas tree on which to hang one's favourite decoration. He went on to plead:
"But let us ensure that those decorations enhance Ofeom and do not weigh its branches down".—[Official Report, 25/3/03; col. 683.]
I then saw the Government's Amendment No. 11. It responds to an amendment spoken to in Committee by the noble Baroness, Lady Howe. It clearly singles out people from different ethnic communities. In essence, it makes a special case for people from different ethnic communities. Perhaps that does not sound politically correct. However, I believe it creates a situation of special pleading. It addresses a particular group that does not necessarily exist in all communities, in which case, given that the Government have chosen to promote the interests of different ethnic communities, they must also have regard for other particular groups and communities. I very much contend that that includes the interest of women. Indeed, their interests should take priority, since women are in all communities.
Many women, myself included, have become increasingly concerned that the powers that be and people in general feel that women now face no problems and that they have a level playing field with men, both as audiences and in broadcasting. They feel that the effort should therefore be put into securing equal opportunities for people and communities of ethnic origins. Cultural diversity is increasingly taken to mean ethnic diversity and does not include gender diversity, which seems to have dropped off the agenda.
It is time to reintroduce gender diversity into cultural diversity discussions. A purely self-regulatory approach has not been effective. There are many

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categories in which women feel there is not a level playing field; for example, women as programme producers and in the boardroom. They feel that there is a gender imbalance in technical areas; in directing and screen-writing; in training subsidies and working conditions.
All of these negative elements lead to a decline in standards. As budgets and schedules are squeezed, younger, untrained staff and freelancers are employed in place of more expensive but experienced staff. Those who have skills find themselves stretched because they not only have to work longer hours but spend more of their time informally training unskilled staff and/or correcting errors that have been made. So, while saving money in the short term, a strategy of employing untrained staff has a knock-on effect and results in a less skilled workforce overall, inevitably affecting standards in the long term.
There is also the question of long-term exhaustion of the workforce and unequal social representation. Long and irregular working hours combined with inadequate health and safety provisions mean that women—and men for that matter—who are the primary carers for children and other dependents are more likely to leave the industry. This impacts not only on the representation of parents and carers; it also impacts on the representation of certain minorities who are more likely to have a higher number of dependents living at home.
In moving the amendment, particularly in the light of government Amendment No. 11, I seek a level playing field in terms of Ofcom's need to have regard to the different interests of different people, including women. I beg to move.
7.30 p.m.
Baroness Howe of Idlicote: My Lords, I support the amendment. When I first went to the Broadcasting Standards Commission, ahead of my arrival it had commissioned detailed research into the standing of women, both in the parts they played and in the management structures. It was pretty appalling. For example, there were very few news readers—if any—because that was not regarded by some in the broadcasting industry as a suitable role for women. There have been many improvements, both within the broadcasting workforce and on the management side, hut, as with other areas, the nearer you get to the top the more the gender imbalance becomes obvious.
Every year the ITC produced an annual report in which every commercial broadcasting company was required to state how many women it had in management and what it was doing about the clear imbalance. The power to do that has been brought forward into the new Ofcom regulations and therefore Ofcom is capable of following through with that procedure. However, I should point out that it was the most ineffective method of discovering what was happening. Completely inadequate statements were given about the companies not having any women but—tough—they were looking for them. It was not a very satisfactory situation.
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I shall not delay the House longer. I am grateful to the Minister for introducing the government amendment on ethnic diversity. It enabled me, on behalf of others, to withdraw my amendment on ethnic diversity. The noble Baroness, Lady Buscombe, has added the issue of gender diversity and I support her in that regard.
Lord Dubs: My Lords, I am grateful that the Government have conceded the arguments in Committee and have brought forward Amendment No. 11. It is a sign of the times, with DCMS over DTI, but the Government speak with one voice and I should not dwell on that.
As regards the point about gender, which seems to me to have a certain force, I look forward to hearing what the Minister has to say about it.
Lord McNally: My Lords, like the noble Baroness, Lady Buscombe, we were approached by women in film and television, who provided an effective brief containing most of the telling points made by the noble Baroness. They note that there are no women in the main boardrooms of either Carlton or Granada, nor on Channel 4, which surprises me.
Amendment No. 10 covers better the thrust of government Amendment No. 11 in regard to the range of responsibilities. In making the concession on ethnicity, the Government have destroyed any argument for rejecting Amendment No. 10. I am sure that the noble Lord, Lord Currie, sits with sinking heart as he sees more glittering baubles being hung on his tree. But ethnic origins, communities and gender form a nice little trio. By hanging one of those baubles on the tree, the Government have conceded that the amendment would be no great breach of principle. I suggest that the best thing the Government and the Minister can do is withdraw Amendment No. 11 and accept Amendment No. 10, which I am sure he is about to do.
Baroness Whitaker: My Lords, I was poised to congratulate my noble friend on Amendment No. 11 until I heard the exposition of the noble Baroness, Lady Buscombe, on her Amendment No. 10, which is of course much more to the point. I support it.
Lord Davies of Oldham: My Lords, not surprisingly, I shall do exactly the opposite of what the noble Lord, Lord McNally, recommended—namely, I shall sustain the argument for Amendment No. 11 as best I can while, at the same time, hoping to persuade the noble Baroness, Lady Buscombe, to withdraw her amendment, with which I have the greatest sympathy.
We all recognise that the case put forward for women in film and television raised some pertinent points about the continuing inequity between men and women in a range of controlling aspects of our society, increasingly in significant television companies. Noble Lords are absolutely right to be concerned about the number of women on the top boards of media plcs—in one or two cases there are none, as has been amply demonstrated—and they are right to lament the fact

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that low numbers of girls at school choose to train to become camera operators, sound engineers and special effects experts.
I was quite shocked a few years ago when I went to an FE college which specialised in training in this area. For some ridiculous reason the word "engineering" still has the most off-putting dimensions in our society. Far too few people become engineers in any case— although it is an absolutely wonderful background for anyone in any walk of life—and girls are put off the concept even though the least mucky form of engineering one can think of relates to many areas of the media. So I have the greatest sympathy with the case that has been put. The problem is that I do not think that the case has been made that Ofcom has a function that will impact on any of these areas and where its duties would apply in carrying out its functions. These issues should be, and are being, addressed by the industry and by the work that the Government are doing across the economy.
We all recognise why women play a less significant part in so many roles. In the past, there has been a terrible cost to careers created by childcare and limited support for women when they needed it to sustain their career as best they could. Furthermore, the general perception in society was that women's contributions were not valued as highly as those of men. We are in the business of changing that perception. I do not want to bore the House at this late stage, but there is a long list of very significant contributions that the Government have made over the past few years to try and reduce the gender gap. The measures that we are taking and our continued work to bring about equality for women in all workplaces will deliver real benefits in the area to which the group of speakers referred and which the noble Baroness very accurately reflected in her speech.
I am grateful to the noble Baroness for tabling the amendment, which has enabled us to have this extremely useful debate. It is not a question of any clash of principle but of the way in which we can best effect the necessary equality and equity for women in our society in the workplace.
I want to speak to Amendment No. 11, which I shall seek to move in due course. It is our response to the very similar amendment which the noble Baroness, Lady Howe, tabled in Committee. We said that we would take it away and consider it, and this is our response. I emphasise the valuable role that the noble Baroness has been playing in our deliberations. This is one obvious point in which she has had significant success. We believe that we should give Ofcom a duty to have regard to the diversity of the UK in carrying out its functions. However, as drafted, the Bill covers geographical diversity, providing that Ofcom must have regard to,
"the different interests of persons in the different parts of the United Kingdom and of those living in rural and in urban areas".
Amendment No. 11 will close the gap by including the interests of the different ethnic communities in the list of matters to which Ofcom must have regard when carrying out its functions.
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We regard the case as having been made strongly during the Committee stage. We are sympathetic to it; we said we would take the amendment away and produce our own in response. That is what Amendment No. 11 represents.
Baroness Buscombe: My Lords, before the Minister sits down, could I seek clarification with regard to the proposed wording of the clause? Does the Minister intend Clause 3(3)(1) to read: "the different interests of persons in the different parts of the United Kingdom of people of different ethnic origins and communities living in rural and in urban areas"? Does he intend the provision not to include people who are not of a particular ethnic minority or from a different ethnic origin? Or would the amended clause include people who are native to this country, if I can put it that way, as well as those of different ethnic origin?
Lord Davies of Oldham: My Lords, we are trying to bring in a specific reference to ethnic minorities. Obviously Ofcom has duties to the country as a whole, but we are seeking to bring in ethnic communities as a particular group for consideration. The reason we could not accept the same framework if the burden of the noble Baroness's contribution at this stage was why we could not embrace the position with regard to women is obvious enough. We can specify issues with regard to minorities but, as we all recognise. women form the majority of the population. That is why we are arguing the case—
7.45 p.m.
Baroness Buscombe: My Lords, I am sorry to interrupt the Minister again, but I am not addressing the question of gender in Amendment No. 11. I am simply concerned that, as drafted, the clause refers to,
"the different interests of persons in the different parts of the United Kingdom and of those living in rural and in urban areas".
If Amendment No. 11 is accepted so that Ofcom has regard to the different interests of persons in the different parts of the United Kingdom, the clause will only cover people of different ethnic origin and communities, and not those who may regard themselves as native to this country. In that case, priority will be given to those of different ethnic origin.
Lord Davies of Oldham: My Lords, when we talk about ethnic communities, we recognise that the whole of the population fits into one ethnic group or another. The particular reason for being specific about '"ethnic" is obvious: we are seeking to meet the point of those who are most disadvantaged.
I think I have now understood the noble Baroness's point. The amendment would not somehow exclude the white majority population in a particular area or those who were born here, or whatever the noble Baroness's definition is. We are identifying ethnic minorities as having particular needs, and having regard to that. In fact, the clause refers to all communities.
Baroness Whitaker: My Lords, I am very sorry to prolong this, but I am not quite sure my noble friend

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is right. One can come from a particular ethnic origin or a combination of ethnic origins and be of mixed heritage, but one may not decide to affiliate—which is a matter of choice—to a particular ethnic community. In fact, the UK is distinguished by having lots of people from all sorts of ethnic origins who yet form one English nation.
Lord Davies of Oldham: My Lords, let me seek to make it clear; I apologise if I have not yet done so. The amendment does not refer to "ethnic origins" but "ethnic communities". Everyone belongs to some ethnic community. So everybody is included, but we have a framework in which Ofcom can be specific to discrete ethnic communities.
Baroness Buscombe: My Lords, I will not delay the House any longer on this point. To my mind, the amendment works only if the Minister accepts that we are all ethnic. That is the clarification that I am seeking; I am grateful to the Minister for providing it. That is great.
I am sorry that the noble Lord has felt disinclined to accept our amendment. I am very grateful to all those who have supported it—the noble Baroness, Lady Howe, the noble Lord, Lord McNally, and the noble Baroness, Lady Whitaker.
I believe this is an important subject. In recent years in particular, women have been dropped off the agenda when it comes to diversity. There is not a level playing field out there. I feel strongly that, with Amendment No. 11, Ofcom is now being asked to put an extra bauble on that Christmas tree, and socially to engineer in favour of ethnic communities but not in favour of women. I think that is extremely regrettable. I remind the noble Lord, Lord Davies of Oldham, that he said in Committee that Amendment No. 11 could, in effect, pave the way for a degree of potentially rather heavy-handed intervention in the form of box ticking and quota setting. I hope that that is not the case. Given the Government's refusal to accept gender as an important add-on to this amendment, women are once more pushed down the agenda in terms of a so-called level playing field, and that is regrettable.
I shall think hard about the Minister's comments and may well return to the issue on Third Reading, particularly given the support that I have had in the House today. For the moment, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Davies of Oldham Lord Davies of Oldham moved Amendment No. 11:
Page 4, line 9, leave out "and of those" and insert ", of the different ethnic communities within the United Kingdom and of persons"
On Question, amendment agreed to.
Lord Evans of Temple Guiting: My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again not before 8.50 p.m.
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Moved accordingly, and, on Question, Motion agreed to.

Release of Short-Term Prisoners on Licence (Repeal of Age Restriction) Order 2003
7.50 p.m.
The Minister of State, Home Office (Baroness Scotland of Asthal)rose to move, That the draft order laid before the House on 5th June be approved [22nd Report from the Joint Committee].
The noble Baroness said: My Lords, the purpose of the order is to extend the home detention curfew scheme to offenders aged under 18 who are serving sentences of detention under Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The home detention curfew scheme was introduced by the Crime and Disorder Act 1998 and has been in operation for adults throughout England and Wales since January 1999.
Under the scheme, prisoners serving sentences of three months or more, but less than four years, who are not subject to any of the statutory exclusions and who pass a risk assessment, may be released early under an electronically monitored curfew. Prisoners must be curfewed for a minimum of nine hours per day, although most curfews run overnight for 12 hours. The curfew period depends on the length of sentence. Parliament has recently approved a separate order, the Release of Short-Term Prisoners on Licence (Amendment of Requisite Period) Order 2003, which, from 14th July, extends the period of HDC to a maximum of 135 days, depending on sentence length and subject to a minimum of a quarter of the sentence being served in custody.
Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 relates to offenders aged under 18 who have been convicted of certain serious offences. These offences are those which attract 14 years or more in the case of an adult, plus indecent assault, and, in the case of 15 to 17 year-olds, causing death by dangerous driving and causing death by careless driving while under the influence of drink or drugs, all of which currently attract 10 years. A juvenile convicted on indictment of one of those offences is liable to be sentenced up to the adult maximum for the offence, although in practice the Crown Court will take account of the age of the offender in passing sentence.
When the HDC scheme was first introduced, the power to release on licence was limited to short-term prisoners aged 18 or over, with a power enabling the Secretary of State to repeal the age restriction by an order subject to affirmative resolution. Short-term prisoners include those sentenced to detention under Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. Under-18s were originally excluded from the scheme because, at the time, electronic monitoring was less well-established, particularly in relation to juveniles, and there were

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some anxieties about its use with younger offenders. The Government said, therefore, that they wanted to await the outcome of evaluation of the pilots of curfew orders with electronic monitoring for juveniles aged 10 to 15 under changes made by the Crime (Sentences) Act 1997.
Since then, the pilots of curfew orders for 10 to 15 year-olds have been evaluated and the disposal was made available throughout England and Wales in February 2001. The use of electronic monitoring for under-18s is becoming increasingly widespread. In addition to the curfew order, juveniles may now be tagged on bail and as part of a supervision order or community rehabilitation order. In May 2002, electronic monitoring was introduced as part of the early release scheme under the detention and training order. The detention and training order, which is governed by a separate set of legislative provisions to Section 91, is the main custodial sentence for under-18s and is served partly in custody and partly in the community. Offenders serving sentences of eight months or more who meet the eligibility criteria are released one or two months early on an electronic tag.
Current litigation, to which I cannot refer in any detail because the case is still proceeding, has highlighted the fact that, despite these developments, offenders aged under 18 serving sentences under Section 91 remain ineligible for HDC, although they become eligible once they turn 18. The Government have decided that it is now appropriate to extend HDC to that age group.
Juveniles will be subject to the same eligibility criteria as adults. Certain statutory exclusions apply, for example to sex offenders subject to the registration requirements of the Sex Offenders Act 1997, and to offenders who have previously failed to comply with curfews. They, and other categories, cannot be considered at all, regardless of their behaviour in custody. From 14th July, offenders serving sentences for certain offences will be presumed unsuitable for release unless there are exceptional circumstances. The offences include manslaughter, attempted murder, possession of firearms with intent, possession of an offensive weapon, serious explosives offences, child cruelty, all racially aggravated offences and prisoners with any history of sexual offending.
Furthermore, no offender will be released unless a risk assessment has been fully completed and appropriate supervision plans are in place. Should the curfew be breached after release, swift action will be taken. Offenders who breach will be recalled to spend the remaining part of their custodial period in custody.
Given the nature of the offending to which Section 91 applies, it is likely that many juvenile;; will not in fact be granted home detention curfew. However, it is still appropriate that they should be considered. HDC can be a valuable tool in influencing the behaviour of offenders in the early weeks following release and in helping them to develop self-discipline and an ordered lifestyle. It will enable juveniles to return sooner to their families and to resume education or training,
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thereby helping them to make a smoother and more effective transition to the community and to rebuild their lives. I commend the order to the House.
Moved, That the draft order laid before the House on 5th June be approved [22nd Report from the Joint Committee].—(Baroness Scotland of Asthal.)
Baroness Anelay of St Johns: My Lords, I thank the Minister for her very helpful and full explanation. I am sure that in so doing she has reduced the number of questions that we would otherwise have needed to ask.
We share the Government's wish to ensure that, as far as possible and appropriate, sentences can be served in the community rather than in prison. As ever, however, when measures such as this are brought forward, there are anxieties to ensure that they are being implemented for the right reason and not simply as a way of reducing the over-crowding in our penal institutions. The key to that is the same as in instances when the Government have extended home detention curfew for adults. The Minister was right to refer to a statutory instrument earlier this month which did just that. At that stage, I and my noble friends raised issues about the supervision programmes that would follow on such early release. The purpose of being at home is to be given something constructive to do that is an essential part of one's rehabilitation.
I note that the Explanatory Notes state that the numbers involved as a result of the order are small and that the costs will therefore be absorbed within existing budgets. I am also aware that the Probation Service budgets are tight. I should therefore like to ask the Minister two questions. First, can she tell us. if such calculations have been done, roughly what numbers they expect to be involved in the first year of operation? I suppose that I am really asking how small is small. She also referred in her explanation to the fact that there will be no release unless appropriate supervision plans are in place. So my second question is whether she can assure us that the Probation Service itself has confirmed that it will be able to provide the rehabilitative work and supervision that will be needed for this new group of juveniles who will obtain early release.
Baroness Walmsley: My Lords, I, too, thank the Minister for explaining the order. From these Benches we do not oppose the order. However, we have some questions and comments. We believe that the order will affect only a few young offenders and is not simply a means of reducing the prison population. Only about 500 young people are sentenced under the relevant Act each year, and many of those will be released on a tag already, simply because they reach 18 while in prison and become eligible under the earlier orders.
The order we are debating is a logical extension of the home detention curfew principle. We welcome the fact that it will take even a few young offenders out of custody and back into the community. There are few for whom the risk assessment would show that that would not be appropriate. We are not overly concerned about the possibility of their committing offences while out on home detention curfew since we

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are aware that only 1 per cent of offenders over 18 released on a tag are known to have re-offended. We do not believe that a person's former actions are necessarily a reliable predictor of his future behaviour anyway. That becomes clear when you look at the statistics for reoffending. For us, the issue of tagging has always begged the question, if they are safe to be let out on a tag, why were they in prison in the first place and not serving a community sentence?
What concerns us more, as has already been said, is what happens to these young offenders once they are released. The only factor against getting them out and away from what are known as the universities of crimes as soon as possible is that if they are in custody for too short a time nothing of any value can be done with them. Their educational needs cannot be properly assessed and appropriate programmes cannot be commenced. If they have a problem drug habit, a few weeks is scant time to evaluate their needs and set in motion a suitable programme of treatment and rehabilitation, even if that was available in a Young Offenders Institution, which it is usually not.
We therefore ask the Minister what effect this order is likely to have on the availability and delivery of rehabilitation, education and resettlement programmes. We also ask how the new scheme will interact with the Custody Plus scheme under the Criminal Justice Bill passing through your Lordships' House at the moment. Also, what will happen to young offenders who break the terms of their curfew or cut off the tag?
We wonder what the Government intend to do to address the public credibility issue. Unless the public know what is happening to a young offender released early under an HDC, what sort of community work is being done, what the value of it is and what measures are being taken to address the cause of the offending behaviour, they will not understand why a person is released after four and a half months when he has been sentenced to 18 months.
Community sentences can be much more constructive than custody and we agree with the Government that, if properly planned and supported, they can be much more effective in preventing reoffending. However, I do not believe the public always understand this. In the interests of public confidence in the justice system, it is time the Government addressed this issue. I would be most grateful to know what the Government plan to do.
Baroness Scotland of Asthal: My Lords, I thank the noble Baronesses, Lady Anelay of St Johns and Lady Walmsley, for the constructive comments they have made on this order. I will try and respond to the questions in order.
The noble Baroness, Lady Anelay of St Johns, asked first about the numbers. About 150 young people sentenced under Section 91 are released as juveniles each year. How many are released on HDC will depend on how many fit the criteria for eligibility but our estimate is that in practice it will be about half.
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The HDC scheme will not affect the overall period of time the offender spends on supervision and therefore this provision will have no resource implications for the supervising services. It just shifts when the supervision takes place; it does not mean the quantum is changed in any significant amount.
The noble Baroness, Lady Walmsley, asked why prison in the first place. We have to distinguish those offences for which prison is the appropriate sentence, because of their gravity and nature. The purpose of the home detention curfew scheme is not to be an alternative to the prison sentence, but, after the offender has served that penalty, to be a way to reintroduce and rehabilitate the offender—successfully, we hope—into the community, having identified their needs in order to maximise the possibility of ceasing offending and restabilising them when they come out of prison.
I have touched on breaches already. Any offender who breaches the curfew is liable to be recalled to custody. A breach of curfew will include being absent in the curfew period, damaging the monitoring equipment or threatening or assaulting a monitoring officer. A breach report is sent to the Prison Service to consider and if they are satisfied there has been a breach the offender's licence will be revoked. All breach reports are considered within 24 hours of receipt.
The plans will be as carefully crafted as possible to limit the risks of reoffending and maximise compliance. We have had some quite positive results so far, which are encouraging. We think this will work very well with Custody Plus. The Government recognise the benefits of home detention curfew schemes and they will continue to apply to prisoners sentenced to Custody Plus. An offender will be serving a custodial sentence of at least eight weeks to be eligible for home detention curfew; this compares with three months under existing provisions. The maximum period they can spend on the scheme is a quarter of the custodial part of their sentence. We agree with the noble Baroness, Lady Walmsley, that there has to be confidence in these sentences and greater knowledge of how they will operate among the public. I assure the noble Baroness that the Government are doing everything they can to make sure there is a better understanding of how sentences actually work. There is quite often a difference between what happens and what people believe happens. We would like the two to be the same thing.
On Question, Motion agreed to.

Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003
8.6 p.m.
Baroness Scotland of Asthalrose to move, That the draft order laid before the House on 5th June be approved [22nd Report from the Joint Committee].

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The noble Baroness said: My Lords, I thank the noble Baroness, Lady Anelay of St Johns, for indicating that she would appreciate it if I opened this matter slightly more fully than I would normally. I hope I will be able to deal with many of the issues that concern her, which she has been kind enough to indicate to me.
The purpose of this draft Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order is to give effect to the treaty between the Government of the United Kingdom and the Government of the French Republic concerning the implementation of frontier controls at sea ports of both countries on the Channel and North Sea. The treaty was signed at Le Touquet on 4th February and a copy was laid before Parliament on 3rd June.
The treaty is one element of an overall strategy agreed with the French Government to assist in reducing cross-channel illegal immigration, and to tackle the wider problems of illegal immigration flows across Europe. This strategy included the closure last December of the Red Cross centre at Sangatte.
The draft order is made in exercise of the powers conferred by Section 141 of the Nationality, Immigration and Asylum Act 2002. That section enables the Secretary of State, by order, to give effect to an international agreement which concerns immigration control at an EEA port. The ports which are to be designated initially for that purpose are Dover, Calais, Dunkirk and Boulogne.
Establishing juxtaposed immigration controls at those ports will mean that French officers will exercise immigration control at Dover, and that UK immigration officers will exercise immigration control in Calais, Dunkirk and Boulogne. The draft order provides the necessary powers for the French and UK officers in question to operate in the territory of the other.
At present the UK already operates juxtaposed frontier controls at four locations in France—the Eurotunnel site at Coquelles, and the three main Eurostar stations, Paris Gare du Nord, Lille Europe and Calais Frethun. The French authorities operate reciprocal controls at Cheriton and Waterloo and will soon commence operations at Ashford International. The controls are provided for under the Channel Tunnel Act 1987 and associated subordinate legislation.
On 12th July 2002, my right honourable friend the Home Secretary agreed with the French Interior Minister to establish juxtaposed controls at Calais and Dover to assist in reducing cross-Channel illegal immigration. It was subsequently agreed to include Dunkirk and Boulogne, as ferry services also arrive in Dover from those ports. Unlike the juxtaposed controls on the shuttle trains between Cheriton and Coquelles, which apply to Customs and police checks as well as immigration control, the proposed arrangements for Dover and Calais apply only to immigration control. That is similar to the position on Eurostar trains between Waterloo and Paris.
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The existing juxtaposed controls have proved successful in helping to reduce illegal immigration to the United Kingdom. For example, the introduction of juxtaposed controls on Eurostar services has reduced by approximately 90 per cent the large number of inadequately documented passengers arriving at Waterloo. Establishing juxtaposed immigration control will reduce the numbers of inadequately documented passengers arriving at Dover. That should result in a significant reduction in public spending.
Section 141(5) of the NIA Act requires us to consult before making an order, and we have done so. A phased consultation process began on 16th August 2002, when an informal consultation letter was sent to a wide range of parties seeking their views on the Government's proposals. That was followed by a formal consultation paper in November 2002. The responses were brought together in a report issued in March this year. That was followed by further consultations with affected parties on the Government's approach on how the French authorities—the Police aux Frontieres (PAF)—will be provided with essential facilities in Dover. The views of all the consultees have been examined and taken into account in the draft of the order now before your Lordships.
Part 1 of the draft order concerns definitions and commencement. With the exception of Article 10, the order comes into force on the date when the treaty enters into force. That will be after the completion of ratification procedures by both states. Article 10, which allows the Secretary of State to require a manager of a designated port in the United Kingdom to provide accommodation and other facilities for the use of French officers, comes into force on the day after the order is made. That is so that we can ensure that the facilities required by the French authorities are available as soon as the treaty enters into force.
A regulatory impact assessment setting out the costs of establishing a juxtaposed control at Dover, which would fall to Dover Harbour Board under the arrangements, has been prepared and lodged in the Library. We firmly believe that direct costs associated with the introduction of juxtaposed controls and provision of facilities for the PAF do not exceed £260,000.
Part 2 of the draft order relates to what will happen in Dover, in that it is about the exercise of immigration control by French officers in a control zone in the United Kingdom. Such officers are permitted to carry out their functions in such a control zone, including arresting and detaining those who are being examined for the purposes of immigration control. It will be an offence to obstruct, without reasonable excuse, such an officer when carrying out his functions. A French officer will not be liable to prosecution in the United Kingdom for an offence committed in the exercise of his functions in a control zone. A claim for compensation by, or against, such an officer will be subject to French law.
A French officer is permitted to carry a firearm while exercising his functions in a control zone. The carriage of firearms is to be regulated by a separate

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firearms agreement which is presently being negotiated with the French authorities. Certain provisions of UK law will no longer apply in the French control zone at Dover.
Part 3 of the draft order relates to what will happen in Calais and the other French ports, in that it is about the exercise of immigration control by UK immigration officers in a control zone in France. The draft order applies the usual immigration controls to the control zone. Part 3 also allows UK police to operate in support of immigration officers in the control zone. The enactments extended by Article 11 to such a control zone include the Immigration Act 1971, and Schedules 7, 8 and 14 to the Terrorism Act 2000, which relate to port controls, with the modifications set out in Schedule 2. It is essential that immigration officers have all their usual powers under the provisions of the Terrorism Act 2000 because a significant part of immigration control relates to preventing persons who may be a risk to national security entering the UK.
A number of criminal offences, principally under the Immigration Act 1971, are extended to a control zone in France under Part 3. In addition, the criminal law is extended to such a control zone in relation to things done by an immigration officer or a constable in the exercise of his functions and in relation to the protection of such officers and their property. An immigration officer may exercise his usual powers of arrest, search and seizure in a control zone in France and may request the assistance of a constable when so doing. A constable may also exercise a power of arrest under the Police and Criminal Evidence Act 1984 in respect of any offence extended by the order to such a control zone. All that is provided for in the treaty to which this draft order gives effect.
Juxtaposed controls are an essential element in our overall strategy for tackling illegal immigration, and I commend the order to the House.
Moved, That the draft order laid before the House on 5th June be approved [22nd Report from the Joint Committee].—(Baroness Scotland of Asthal.)
8.15 p.m.
Baroness Anelay of St Johns: My Lords, again, I thank the Minister for giving a full and helpful description of the order, which, in many respects, is significant. During our debates when the Nationality, Immigration and Asylum Act went through this House last year, we made it clear that we strongly support the principle of co-operation over border controls in trying to tackle the problems of illegal immigration. We recognise that juxtaposed controls are an important weapon in the Government's armoury against such illegal immigration.
As ever, the devil is in the detail in relation to how co-operation can be achieved. Therefore, as the Minister has already said, I gave her advance notice of most of the questions that I shall ask. One or two further questions arose subsequently as a result of the fact that the Printed Paper Office was able to find some
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of the papers that were hidden away in the cellars here rather than on display. Therefore, I was able to mention those questions to the noble Baroness informally a little in advance of tonight's debate.
The schedule to the order lists Dover as the only UK port and the French ports as Calais, Boulogne and Dunkirk. If the number of ports to be covered is extended at a later date, can the Minister tell us whether we shall have another order seeking permission to make that extension, or does this order give the Government the power to go ahead and extend it to other ports or areas at will in the future?
The Explanatory Memorandum explains that the area comprising the control zone has been confirmed through the exchange of diplomatic notes between the two countries and that a copy can be obtained by writing to the address at the end of the notes. I must admit that I did not settle down with great enjoyment, as one does, to look through all the papers on this order until Saturday morning as part of my usual weekend work on orders. Therefore, it was a trifle late for me to write to the address at the bottom of the order. Today, I immediately contacted both the Printed Paper Office and the Library, but neither has been able to track down a copy of the boundaries.
Of course, the answer may be very simple. In respect of Dover, can the Minister tell us whether the control zone covers simply the area of the port delineated by the barbed wire security fences or is a larger area covered? It is very important for the public to know that because, as the noble Baroness has explained, French police are to be given the power to carry guns in that area, arrest people, question them and, indeed, then to be free from prosecution for any offence they commit in the pursuit of their functions. Anyone who suffers damage will have to sue for compensation in France.
Under the existing juxtaposed controls at Cheriton and Waterloo, do the French police there already have the right to carry guns and presumably use them if they are carrying them? During the passage of the Crime (International Co-operation) Bill in this House, the Minister the noble Lord, Lord Filkin, was resolute in saying that that Bill—I appreciate that it is a different Bill from the Nationality, Immigration and Asylum Bill—would not in any circumstances permit foreign police officers to carry guns within the United Kingdom. On Report, we tabled a completely probing amendment in order genuinely to try to assist the Government on that occasion because we could see some circumstances in which the safety of foreign officers might indeed be compromised if they were not able to carry guns, which they normally did in the course of their duties. However, we stuck to our overall view that, if at all possible, we did not want foreign officers to carry guns in this country.
On 29th January—I had given this quotation to the noble Baroness's office—the Minister said:
"I shall labour the next point because it is germane. Foreign officers may not carry their firearms. They will be prohibited from bringing their guns into the United Kingdom".—[Official Report, 29/3/03; col. 199.]

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On Report, he amplified that a little by stating at col. 658:
"The law at present makes it illegal for anyone to bring a firearm into the UK without the authority of the Home Secretary and an import licence from the DTI".—[Official Report, 3/3/03; col. 658.]
I understood from the noble Baroness's explanation that that is now a case for negotiation between the two governments and that there will be an agreement with the French authorities that would appear to overturn existing British law. I believe that that explanation will be the response to the question that I put to the noble Baroness's office. It has rather thrown me because I am afraid that I now have to ask a further question. Does an agreement with a foreign government automatically overturn British law in this respect or do we have to change existing law on the carriage of firearms in this country?
The Minister referred to the fact that there is immunity from prosecution. Paragraph 6 states:
"An officer belonging to the French Republic shall not be prosecuted for any offence committed in the exercise of his functions in a Control Zone in the United Kingdom".
It goes on to say that if you suffer damage, you must go to the French courts to get compensation. I was intrigued by that because it is a different approach from that which the Government adopted in the Crime (International Co-operation) Bill, which is now being considered in another place. In that Bill, very sensibly, the Government differentiated between lawful and unlawful acts committed by an officer in the course of duty. However, this order refers to all acts—presumably unlawful or lawful.
In my view, the proper approach was; adopted in Clauses 82 and 84 of the Crime (International Cooperation) Bill. Under Clause 84, if the foreign officer committed an unlawful act in the pursuit of his duties, the person who suffered damage here could seek compensation in the United Kingdom court system. On the other hand, if—and only if—the foreign officer committed a lawful act that caused damage in the pursuit of his duties, the UK citizen would have to seek compensation in France.
This order pursues a different approach, saying that no matter what the basis on which the act was committed, if someone suffered damage, that person would have to go to France to seek compensation. That seems a harsh way in which to deal with it. What were the Government's reasons for adopting these different approaches in legislation in the same year?
The noble Baroness referred to provisions of the Police and Criminal Evidence Act with regard to taking persons into custody at Boulogne and Calais. I am curious about the procedure that would be followed when a French officer here detains someone. While detained in the UK control zone in Dover, will that person have the same access to the safeguards of PACE as they would if they had been arrested outside the control zone in the United Kingdom? Will they have an automatic right to legal advice under PACE? Will its provisions regarding bail apply to them?
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The Printed Paper Office managed to find me the supplementary consultation document of March 2003. Given its length, I have only managed to skim read it. With regard to matters of detention, it states at page 5 that:
"it is anticipated that police au frontiere requirements at Dover will not be extensive. They will not for example require a holding room or any detention facilities".
I am confused by that, because the order specifically refers to detention. The consultation document goes on to say that,
"the UK immigration service believes that the site of a former check-in area will be suitable".
I wonder whether the Government have thought again, in the light of responses to the consultation document, and whether proper detention facilities are being made available.
To return to the case of the arrest of a French officer. Article 7.2 of the treaty states that,
"when the French officer is taken to a police station after committing the offence, it is the custody officer who takes the decision as to whether the offence has been committed whilst in the exercise of his functions".
I wonder why the Government have decided that a custody officer would be of a suitable grade. I mean no insult to custody officers, but this is a very sensitive decision. If ever such an event happened—and we hope it never would—it could be a diplomatic matter. I am a little concerned about a custody officer being involved, and I wonder whether an officer of higher rank ought not to be called in.
Finally, I turn to something totally different, of which I have given advance notice. I want to ask a question and hope that the Minister will simply say, "No, it will not happen. Don't worry. Go home quietly and peacefully.". I want to refer to paragraph 4 relating to the powers of arrest and detention by French officers. It states that they,
"may arrest and hold for questioning in a Control Zone in the United Kingdom a person who is being examined for the purposes of immigration control".
Once that person is being held for that purpose, will the French officer be able to serve a European arrest warrant on him if one has been issued and if the police officer is aware of that?
The Minister will be aware to her cost that a promotion to Minister of State has brought upon her heavy responsibilities because from tomorrow she is taking through the Extradition Bill in addition to everything else. She will understand that it is on my mind as to whether the power we are giving in this order to a French officer in relation to immigration matters might, by "ambition creep" be used for something else. I hope that the Minister will be able to say that in no circumstances will the French officer be able to serve the European arrest warrant on the person he is detaining on immigration matters.
Lord Avebury: My Lords, I echo the thanks expressed by the noble Baroness, Lady Anelay, to the Minister for the careful and thorough explanation she has given of the import of this order. I want to add to the list of complaints the noble Baroness made

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regarding the documentation. When I went home expecting to work on the order I accessed the website to look for the regulations but they were not there. I sent an e-mail to HMSO, which told me that it was no part of its duties to put draft statutory instruments on to the website. I would like the Government to pay attention to that as a general issue, not just on this occasion, and ensure that a statutory instrument that is being considered in your Lordships' House or another place must be on the website at the same time as it appears in the Printed Paper Office. That should apply to any documentation that comes before Parliament.
We on these Benches are concerned by some of the implications of juxtaposed controls which deal with the adequacy of a person's documentation rather than the merits of his claim. As the Minister must acknowledge, many of the people ultimately granted asylum in the UK, whether on first application or on appeal, arrived here with false or inadequate documentation because dictators are not in the habit of facilitating travel arrangements by their opponents. We have made it progressively more difficult for asylum seekers to come here legally; for instance, by imposing visa requirements on all major refugee-producing countries and by making carriers liable to fines in respect of passengers who are refused entry. Therefore, it is inevitable that most people who come here seeking asylum will be travelling on inadequate or false documentation.
As the Minister explained, the extension of juxtaposed controls from Eurostar to the ports was part of the package which was agreed between the Home Secretary and his French opposite number, Mr Sarkozy, last July, which included the closure of Sangatte. I would point out that the UK recognised that 1,000 Iraqis and 200 Afghans from Sangatte had legitimate protection needs and, in the case of the Afghans, close family ties with the UK. So the implication is that many of the people who will be stopped by the juxtaposed controls would have had good grounds for a claim to asylum if they had been able to present that claim in the UK.
The Home Office, in its report on the juxtaposed controls consultation process sent under cover of a letter from Mrs Barbara Wilson of the UK Immigration Service, denies that the controls will affect the UK's commitment to the international protection regime. It states that the UK has no obligation under the convention to consider applications for asylum which are not made from within the country or at ports of entry.
The Home Office also claims that there is international acceptance of the asylum seeker's obligation to claim asylum in the first safe country she reaches. I differ from that because, as the Minister may be aware, a Lisbon meeting of experts, convened under the auspices of the UNHCR and the Migration Policy Institute last December, referred to a decision of the UNHCR's executive committee in 1979, which said the precise opposite—that there was no obligation to claim asylum in the first country that somebody
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reached. Since the UK is a member of the executive committee of UNHCR, the Government must have been a party to that decision.
The Lisbon meeting acknowledged that an applicant's right to claim asylum in the country of her choice was not unfettered, but that her intention should be "taken into account". That is in paragraph 11 of the decision. The arrangements, they said, should take account of family connections and other close ties between an asylum seeker and a particular country. That is reflected in the so-called Dublin Two European Council Regulation, which establishes the criteria and mechanisms for,
"determining the member state responsible for examining asylum applications lodged in one of the member states by a third country national".
That provides that where the applicant has a family member who is a refugee in a member state, or who has applied for asylum in a member state, that member state should be responsible for examining her application.
The definition of "family member" is confined to spouse or unmarried partner, unmarried minor children, and parent or guardian, where the applicant is a minor and unmarried. However, under Article 15,
"family members, as well as other dependent relatives,"
may be brought together,
"on humanitarian grounds based in particular on family or cultural considerations."
Is the term "family members" to be construed more widely than this article, and would the term "dependent relative" include a sibling, parent or cousin, particularly one who is physically or mentally disabled, and in the care of the first asylum seeker?
How do the arrangements proposed in the order comply with European law? There is no reference to the Council regulation, nor is any separate provision made for persons who claim that they have a family member in the United Kingdom. All those who present themselves to an immigration officer in Calais, Dunkirk and Boulogne, and who have incorrect documentation, or who are ineligible under the immigration rules, are to be handed over to the French authorities.
I shall take as an example the case of a Zimbabwean, Mr Moyo, travelling on a valid Zimbabwe passport, who arrives to board a ferry in Boulogne. He is refused on the grounds that he does not have a visa, and he then says that he is intending to join his wife in the United Kingdom, and that she has already claimed asylum there. Would the Minister please explain what happens next? Is he handed over to the French authorities, or does the European directive take precedence, and is he to be given the consideration that is allowed for persons who have close relatives in the United Kingdom?
One of the conditions of an effective European asylum system, under which responsibility is equitably shared between member states, is that not only are procedures for determining asylum claims harmonised, but the delays to the right to work and the support offered to claimants is no better or worse in

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one country than another. We have rightly been successful in speeding up the evaluation of asylum claims, but the result is that claims are considered faster in this country than they are in France. The Refugee Council has said that, according to French non-governmental organisations, the delays in access to the French asylum system mean that claimants there may be destitute for 10 months, and that because of accommodation shortages 15,000 asylum seekers are homeless. Support for those living independently is capped at one year, although asylum procedures often take much longer.
Those are the reasons why some people might wish to come to the United Kingdom rather than to remain in France. I point that out because many people talk about the pull factor of better conditions in the United Kingdom for asylum seekers, without at the same time underlining the fact that the conditions in France may not be as good as we would like them. That is one of the necessities of the juxtaposed controls—to try to align the conditions in both countries.
I accept that juxtaposed controls are here to stay; inevitably, they will have to be extended as asylum seekers and economic migrants look for other routes. In the case of the Channel Tunnel, they have already done so. The 90 per cent reduction mentioned by the noble Baroness was accompanied by an increase in the number of people attempting to gain entry to the United Kingdom by ferry. That is why the order is before us.
That makes it all the more essential that we do not just stop up every means of entry to the UK for genuine asylum seekers, leaving the rest of Europe to look after them all, even those whose natural destination is Britain. Britain should also be taking a leading role in the development of a common European asylum policy, similar procedures for dealing with claims and comparable systems of support for asylum seekers. Only then will it be morally legitimate for us to extend juxtaposed controls, as we are doing under the order.
8.30 p.m.
Baroness Scotland of Asthal: My Lords, I shall now try to answer as many as possible of the questions asked by the noble Baroness, Lady Anelay, and the noble Lord, Lord Avebury. I may have a bit of a challenge, but I shall try to cover them all. First, in answer to some of the questions of the noble Lord, Lord Avebury, his description of the Government's current position as to a claim being made in the first country of arrival not affecting our commitment to the 1951 convention, and so on, is indeed an accurate reflection.
The noble Lord will also know that we have pushed hard for an EU position on asylum. The Commission has considered our proposals; it has said that they are sound and addressing the right issue. The UNHCR has been supportive of them. I accept what he said about the need for a more holistic European response that will be able to manage the whole migration issue in a more attractive and effective way in the long term. We are indeed considering the difficulties faced by
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source countries from which many applicants flee—what we can do together in Europe to be supportive—as well as seeking to improve our internal structures, one being the juxtaposition that we are now debating, in this country. We must consider all three steps as an integrated, balanced response to what I entirely accept is a most pressing problem, and one with global implications.
Having said that as a broad response to one of the questions asked by the noble Lord, I shall now deal with the detailed questions asked by the noble Baroness. She asked about extending the order to other ports. Perhaps I can reassure her that, if it proves necessary to apply this procedure to any other port, an appropriate order will be brought before the House and she, as well as other noble Lords, will be able to comment on it, as she can today.
On the question about the control zone, it is the area within a port designated in Schedule 1 to the order within which officers of the state of arrival are authorised to carry out immigration controls under the treaty. In Dover, that will be the area within which the Police aux Frontieres officers will be able to exercise their immigration controls and powers. The UK Immigration Service is still discussing the control zone with the PAF. We intend to place a map of the control zones in the Libraries of both Houses when the order is made. I hope to be able to do that. I cannot remember whether the noble Baroness asked whether the control zone incorporates port property; the control zone at Dover will only incorporate port property.
The noble Baroness pressed me on whether PAF officers would be liable to carry firearms and. if they did, what sort of controls would be imposed on them. PAF officers would be able to carry guns at Dover. This arrangement has long existed at other juxtaposed controls in the UK, at Waterloo, Ashford and Cheriton. As is the case at these railway terminals, the carriage and use of any firearms will be strictly regulated by a bilateral agreement. The terms of the Dover agreement are still being negotiated, but will be similar to those in the firearms treaty for Waterloo concluded on 4th February 2003. The changes that will be made on the position will flow from the passing of the order.
In relation to the comments made by my noble friend Lord Filkin, in response to the Crime (International Co-operation) Bill, there is a difference between the context in which the two should be seen. The noble Lord has given assurances during the various stages of progress on that Bill that French officers entering the UK involved in urgent border surveillance operations will not, as the noble Lord right says, be automatically allowed to carry firearms.
Juxtaposed control is entirely different. I am not aware of any assurance that my noble friend Lord Filkin, or any noble Lord from this side of the House, made about that during the passage of the Nationality, Immigration and Asylum Act 2002. The French officers involved will not be actively following a suspect into the United Kingdom, but will be

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working in a defined, controlled zone. French officers at juxtaposed controls in the UK at Waterloo and Cheriton have been able to carry firearms for two years, and firearms are part of their uniform. The current treaty has followed this pattern. The order reflects that they should be allowed to do so within a defined, controlled zone. There has never been an incident of a French officer discharging a firearm at any juxtaposed controls in the UK.
The noble Baroness, Lady Anelay of St. Johns, also asked whether the treaty extends to other frontier controls and what parliamentary scrutiny there will be. I think that I have dealt with that to her satisfaction—I see her nodding.
Under the treaty, a person can only be detained in the control zone for 24 hours, or exceptionally for 48 hours, by a French or UK officer in their respective control zone. This mirrors the provisions of the Sangatte protocol, which contains the same time limits for detention by the French at Cheriton and by the UK officers in Coquelles. It is envisaged that the French will only detain for the purposes of questioning, and either escort the person to France—for example, if they have committed an offence under French law as it applies in the control zone—or hand them over to UK authorities if they have refused to enter France. Where, unusually, the French need to detain someone for any length of time, for example overnight, they will ask the British police to do it for them. That is referred to in Article 5 of the draft order. I invite the noble Baroness to look at it. The person would be detained in the police station. PACE would apply, including the right to seek legal advice under Section 58 of PACE, but they would have to be handed back to the French within the deadlines fixed by the treaty; 24 hours, or, exceptionally, 48 hours. The French would be required to release them at the end of that period if they were still in the UK.
Where the British police arrest and detain in Calais, the place where a person is detained is treated as a police station for the purposes of PACE, which is in Article 14(2) of the draft order. Where the French arrest a person in the control zone of the UK, it would be unnecessary for them to obtain a European arrest warrant to extradite the person back to France. The powers in the treaty avoid the need for that by allowing the French—
Baroness Anelay of St Johns: My Lords, I apologise for interrupting the Minister when she is being so helpful. I think that the way in which I phrased my last question was not as clear as it might have been.
The circumstance that I am thinking of is disjunctive, rather than conjunctive. A French police officer may have detained somebody for questioning in connection with an immigration offence and, quite separately, be aware that that person is subject to an existing European arrest warrant because, in the period that the Minister mentioned—24 hours—the French authorities may have made that fact known to the French police officer. It is a matter of the powers of the French police officer at that moment.
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In raising the issue, I must say that I would be happy for the Minister to write to me on it. It is a complex matter. At that moment, while the French police officer is carrying out his duties in respect of immigration matters, does he have the right to exercise a European arrest warrant, if one is already extant? I do not expect him to ask for one, but, if one is extant, can he apply it? I am happy for the noble Baroness to write to me, if that is more helpful.
8.45 p.m.
Baroness Scotland of Asthal: My Lords, I shall certainly write to the noble Baroness. My initial reaction is that any officer in that situation, if he were dealing with an arrestable offence, would be entitled to take the person back on that basis and would not have to exercise the European arrest warrant. However, I am thinking on my feet. I shall write to the noble Baroness to make sure that my initial gut reaction—if I can put it colloquially—is correct.
The noble Baroness asked what we would do if a French officer acted unlawfully in the exercise of his duty. Article 8 of the order gives effect to Article 14, sub-paragraph (2), of the treaty. It is in line with the position on the Channel Tunnel juxtaposition controls under Article 30 of the Sangatte protocol to the Treaty of Canterbury. In the same way, United Kingdom courts have jurisdiction over the actions of a UK officer acting in the course of his duties in a control zone in France. It is natural for UK officers to be subject to the scrutiny of UK courts in the exercise of their duties, and the same applies to French officers and French courts. We have parity of treatment, which was the basis on which the treaty was agreed. It appears to have worked well and without difficulty, and we do not anticipate that it will cause us any anxiety or difficulty.
The noble Baroness said that, if someone suffered damage in any circumstances, they would have to go to France. That is not quite the position. People need to go through the French system only if the alleged abuse is committed by the PAF officer in the course of his duties. That is in Article 8(1) of the order.
I do not know whether the noble Lord, Lord Avebury, will feel that I have answered all his questions. I tried to answer them globally. If the noble Lord would feel easier if I answered them specifically in greater detail, I would be happy to do that. I see the noble Lord nodding, so I undertake to do that.
Lord McIntosh of Haringey: Keep going. You have two minutes.
Baroness Scotland of Asthal: My Lords, I am being pulled in two directions. Either I can launch into an exposition of every matter raised by the noble Lord, Lord Avebury, which would take me some time, or I can retire gracefully. With the greatest respect to my noble friend, I will do the latter.
On Question, Motion agreed to.

Communications Bill
8.49 p.m.
Consideration of amendments on Report resumed on Clause 3.
Lord Ashley of Stoke Lord Ashley of Stoke moved Amendment No. 12. Page 4, line 12, at end insert—
"( ) the need for reasonable access to new and emerging forms of telecommunications by persons with disabilities."
The noble Lord said: My Lords, I should like to speak to Amendment No. 12 and to refer also to Amendment No. 22. The purpose of Amendment No. 12 is to raise the importance to disabled people of equal access to the many developments in the telecommunications industry. Over the past 10 years developments in technology have been remarkable. A striking illustration is that mobile phone ownership has increased from one million in 1990 to 30 million in 2002.
Regrettably, the provision for disabled people has only limped along. When they were first established, the relay services for fixed line telephone calls were splendid. I and many others were grate rut to British Telecom and to the RNID. Years have passed and the relay services have not developed to the same extent as other services, largely through the inadequacy of funding. I am very glad that Clause 68 of the Bill gives Ofcom the option of setting up a universal service fund so that costs such as relay services can be shared and not borne solely by British Telecom. I commend that very warmly.
However, I understand that Oftel currently does not favour that approach. Its view should be respected, but I believe it is important that funding is adequate. Services for disabled people should not be provided at the minimum level possible. The telecoms market is becoming very competitive. Improvements would surely flow more freely if all telecommunications operators were to contribute to a fund aimed specifically at ensuring better provision for disabled and disadvantaged people.
I do not intend to press this amendment, but I would appreciate any assurances that the Government could give. Disabled people should be able to have a reasonable share in the exciting developments that lie ahead. I hope that the Government will give a commitment that disabled people can do so and will recognise that adequate funding is required.
I wish to say a word about Amendment No. 22 to be moved by my noble friend Lord McIntosh of Haringey. When I moved my amendment on universal design in Committee, my noble friend said he was somewhat dismissive about earlier amendments on disability. This is his great sense of humour on display. All those amendments were brilliant. He could not possibly be dismissive about them. But he said he was certainly not dismissive about the one on universal design and said he would look again at the issue. He has kept his word, as he always does. I warmly welcome the result. It is not quite as strong as my original amendment insofar as the
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Government amendment gives Ofcom a duty of encouraging others—I emphasise "others". My amendment put more emphasis on Ofcom itself encouraging awareness, promotion and access to inclusively designed developments. Amendment No. 22 uses different words—it cannot be as eloquent as mine—and is considerably briefer. However, it carries a very similar message. Although it is more reserved, it does add that Ofcom shall have a duty,
"from time to time to review"
whether further steps are needed. That could be very important and certainly very helpful.
I should like to raise one important caveat. This amendment focuses on domestic consumer equipment. It excludes equipment used solely for business purposes. The design of office equipment is clearly vital to the employment of disabled people. I do hope the Government will be able to help on this. The amendment tabled by my noble friend Lord McIntosh is a considerable step forward. I thank the Government, especially my noble friend, for accepting the principle that the interests of disabled people should be a central feature of new developments in this exciting industry. I beg to move.
Baroness Wilcox: My Lords, we are very keen to rise and support the Government on this amendment. Amendment No. 22 gives Ofcom a duty to encourage inclusive design. I am delighted that the Government have taken on board the arguments in Committee on an amendment moved by the noble Lord, Lord Ashley of Stoke, and which we wholeheartedly supported. The new amendment will make a real difference to the lives not only of disabled consumers but also to all people who wish to make use of the latest technological developments but are prevented from doing so by design features that exclude a huge percentage of the population by virtue of their complexity and user unfriendliness.
As the communications regulator, it is only right that Ofcom takes on this responsibility which will enhance its ability to carry out its general duties by ensuring that a full range of communication technologies are usable by as many consumers as possible. Inclusive design is good news for everyone—consumers and, in particular, disadvantaged consumers, but also manufacturers—by opening up whole sections of the market which had previously been barred, and doing so at little additional cost. On these Benches, we are pleased that the Government have understood the potential of inclusive design set forward in Committee and have made provisions for it in the Bill.
Lord Addington: My Lords, I shall speak briefly. I have added my name to the amendment proposed by the noble Lord, Lord Ashley, but I missed the first few seconds of his speech. The indignity of undue haste was given to me as punishment as I belted up the corridor. This is an amendment which the Government should consider. As regards Amendment No. 22, as I said before in a moment of hyperbole

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brought on by excessive waiting, we do not care who carries the flag in these little battles as long as we win. If it happens to the Government, good for them.
Amendment No. 53, with which these are grouped, is not so much a probing as a drawing-out amendment. Will the Government give assurances that universal service conditions would relate to affordable rental services for disabled people to obtain cheap equipment—for example, Braille phones? Would that still apply in relation to this amendment? If the answer is "yes", the amendment will be withdrawn.
Baroness Darcy de Knayth: My Lords, I support all that the noble Lord, Lord Ashley, said and I welcome tremendously the government amendment, about which a great deal has been said already. Importantly, the amendment talks about ensuring that usable equipment becomes readily available. I am told by disability organisations that, too often, revolutionary new products sit on the drawing board or at the prototype stage and are not brought to the market. That is very important.
I support all that the noble Lord, Lord Addington, said about Amendment No. 53. We hope for a Government assurance on that. I believe that the Danish telecoms agency provides affordable rental equipment to deafblind, hearing or speech-impaired people to enable them to access telecommunications services. We hope it is the Government's understanding of EU law that if it is in the form of a rental service that is allowable too.
9 p.m.
Lord McIntosh of Haringey: My Lords, I turn to Amendment No. 22, but first, perhaps I may continue the mutual admiration society which my noble friend Lord Ashley and I like to maintain in public.
Lord Ashley of Stoke: My Lords, that is very kind.
Lord McIntosh of Haringey: My Lords, in private we love each other to bits, but that is quite different. As my noble friend Lord Ashley made the case in Committee, with his customary eloquence, for this addition to the functions of Ofcom, I need speak briefly only on what is specific to our amendment. It is a simple but broadly framed duty. We think that, bearing in mind the length of time for which we hope this legislation will remain relevant, and the impossibility of foreseeing exactly what concerns will arise, it is right to adopt a broad approach.
So, we have not used the specific label of "inclusive design", which may go out of date or become associated with a specific design philosophy. Instead, we propose a duty on Ofcom that focuses on widening the availability of consumer equipment which is convenient for use by the widest practical range of users, including the disabled. Ofcom should take such steps and enter into such arrangements as will encourage others to secure that wide availability. I know that my noble friend Lord Ashley is concerned
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about the encouragement of others, but it is, after all, the technology and the expertise that lies within industry and outside Ofcom, and which could not possibly be maintained within Ofcom's staff, that must be used for this purpose.
It would not be appropriate for Ofcom itself to become involved in design, much less in manufacture and marketing; so the focus is appropriately on encouraging actions by others. We also propose that the duty on Ofcom should require it from time to time to review the need for further action. Therefore, this is not a one-off programme to be done once and then put on the shelf. Ofcom should check occasionally the real state of affairs, and whether there is a need to do more. That is an appropriate role for Ofcom and will lead to improvements in the availability of equipment that is inherently designed for ease of use by the widest possible range of users. I shall move Amendment No. 22 in its place.
As regards my noble friend's new Amendment No. 12, I understand that behind it is the text relay service, Typetalk. That is a helpful facility for deaf persons, which allows users of text phones to send messages to ordinary phone users via a relay operator who reads the text message to the ordinary user and types the reply back to the text-phone user.
I can assure my noble friend Lord Ashley and the noble Lord, Lord Addington, that access to the text relay service for disabled users will be assured through the universal service order to be made by the Secretary of State under the provisions of the Bill, and the implementing measures to be made by Ofcom. So the amendment would not add anything to what is already in hand. We have consulted on the order, and we will publish the results and our response in due course.
In addition to ensuring that there is access to the service, we are aware of concerns about its future development and funding. That was referred to in relation to BT. These questions require careful consideration and could have fundamental implications for the way in which universal services are provided in the UK. I can assure my noble friend Lord Ashley that the Bill allows for mechanisms to be provided to share the costs of universal service provision, which is what he was suggesting, where necessary. So there is scope within the framework of the Bill to address these issues in the way that seems most equitable.
However, there are fundamental issues that need to be addressed before we introduce those funding mechanisms. We will need further consideration and consultation. I understand that Oftel will recommend that a detailed review of universal service provision is undertaken in 2004, and that it would be appropriate to consider the funding of the telephone relay service as part of that wider review. I am sure that that is the right approach.
I round off my remarks on Amendment No. 12 by noting that the issue of access for people with disabilities is included in the general provision at Clause 3(3)(i). Access is a "need" for people with disabilities, so Ofcom must take it into account.

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On Amendment No. 53, again I understand that there is a specific concern behind the amendment, which is, whether the provision of apparatus for the disabled can be mandated within the provisions of the directives. It is our understanding that the universal service provisions of the directives, which deal with services and facilities, do not provide a basis for requiring the provision of apparatus as such—that is, to sell it outright to particular users or to provide it for no charge.
Therefore, we would not be able to accept Amendment No. 53 as it stands. However, I can assure both the noble Lord, Lord Addington, and the noble Baroness, Lady Darcy, who raised this point, that we consider that it would be possible to require the provision of a service consisting of the rental of apparatus suitable for use by disabled persons. I believe that that is what the noble Baroness described as happening in Denmark. I shall not express a view on the merits of any particular proposal but, so far as concerns the legal framework, we are satisfied that a universal service requirement would be permissible. We understand that at least one European member state already has such a requirement. Perhaps it is Denmark. I do not know.
With those assurances I hope that the noble Lord, Lord Ashley, will feel able to withdraw his amendment and that the noble Lord, Lord Addington, will not move his.
Lord Ashley of Stoke: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 13 not moved.]
The Deputy Speaker (Lord Ampthill): My Lords, is the noble Lord, Lord Crickhowell, moving Amendment No. 14? It was spoken to with Amendment No. 1.
Lord Crickhowell: My Lords, I beg to move Amendment No. 21.
The Deputy Speaker: No. My Lords, Amendment No. 14 was spoken to with Amendment No. 1.
Lord Crickhowell Lord Crickhowell moved Amendment No. 14:
Page 4, line 39, at end insert—
""citizens" means all members of the public in the United Kingdom;"
On Question, amendment agreed to.
[Amendment No. 15 not moved.]
Lord McNally Lord McNally moved Amendment No. 16:
After Clause 3, insert the following new clause—"
DUTY TO PROMOTE COMMUNITY MEDIA
(1) It shall be the duty of OFCOM to take all such steps as they consider appropriate for promoting the growth and development of community media.
(2) In this section—
"community media" means communications services provided primarily for the benefit of members of the public in a defined geographical locality or of a particular community and not operated by the BBC or for commercial purposes.
(3) In subsection (2)—
"communications services" includes—

(a) radio and television broadcasting;

(b) electronic communications networks and services; and

(c) content services carried by services falling within paragraphs (a) or (b)."

The noble Lord said: My Lords, the amendment seeks to add another duty to Ofcom to promote community media. I can almost foretell the Minister's brief that this is another bauble to be added to the tree with which the noble Lord, Lord Currie, is already weighed down.
I hope that the House has noted the Government's totally irrational approach to these matters. Where the Government like the bauble—for instance, the ethnic responsibility we discussed earlier or to promote usable equipment the ladder is taken out and the noble Lord, Lord McIntosh, is happy to climb it and to hang the bauble on the tree. Where equally reasonable amendments—such as those relating to gender or community media—are brought forward, there are shrieks of disapproval and demands for them to be withdrawn. There is no logic applied other than whether the bauble has the approval of the noble Lord, Lord McIntosh, to go on the tree. I can see the Minister warming to the idea.
We shall attempt to persuade him that this is a good idea. I am a little worried that unless Ofcom has responsibilities such as this it will become an organisation which knows the price of everything and the value of nothing—there is an original statement at this time of night. Ofcom will have its eyes on the big issues and the big battalions.
On looking at the industry I am struck by my memories of the various stages when there were great hopes that technology would supply genuine community access in a way that we had never heard before. I remember the growth of local radio, particularly local commercial radio. These stations would provide local voices and be rooted in the local community, with all the benefits that would bring. I also remember cable television, which would provide live transmissions from Greenwich council—a ratings topper if ever there was one. The whole theme was that the new technologies would allow people access to communications in a way that they had never had access before.
But, of course—we shall discuss this in greater detail when we reach other parts of the Bill—the conglomerates have hoovered up the local stations and we have lost that community identity. We are trying to have yet another go at keeping communications in the community.
I remember the noble Lord, Lord Gordon of Strathblane, with his vast experience, saying in Committee that this was really an attempt to provide facilities to people who merely wanted to speak to themselves because nobody else wanted to listen to them. It was something along those lines, but I am sure he will tell us in more detail. But I think it is more than that. I have met various groups and remember in particular a young lady from one of the problem estates in London saying what an impact access radio had had on that estate in creating a sense of community and bringing people together to address its problems.
The community media has had the blessing of no less a person than Gordon Brown, who addressed a conference of the Community Media Association a year ago. I do not think he promised them any money but he gave them his good wishes, which is the way of the Chancellor. And some 121 MPs have signed Early-Day Motion 171 in another place, calling for the promotion of community media.
There are enabling powers but no firm commitments in the Bill. We believe that there is a need for stronger wording which would recognise the contribution that community media makes to neighbourhood renewal, local democracy and community access to new communications technologies.
Community media groups are widespread in the UK, located in both urban and rural areas. Radio Ryedale is a rural Internet-based webcast radio station and website. Tenantspin is a broadband television service run by tenants in a Liverpool tower block. Desi Radio has a pilot 12-month licence for a radio service for the west London Punjabi community. Solent TV is a new, not-for-profit community television service for the Isle of Wight. That illustrates what is on offer.
Thinking laterally back to a debate in the House on mutuals and co-operatives, at which the noble Lord, Lord McIntosh, was present, my fear is that if access radio and community television get too popular, the media moguls and conglomerates will start stalking them again and swallowing them up. I would not mind seeing them ring-fenced by some mutual legislation that would protect them.
What is beyond doubt is that community media offers opportunities to get back into local communities. It benefits the community in terms of communications but also—and we shall return to this at another stage—gives talent, often raw talent, its first opportunity to broadcast and to develop. I beg to move.
Baroness Buscombe: My Lords, I should like to repeat what I said in Committee. We are, in principle, supportive of community media, particularly community radio. But I continue to question how Ofcom can carry out a duty to promote community media with regard to cost. Where will the money come from? That is a difficult question which may put Ofcom in an impossible position.
9.15 p.m.
Lord Bragg: My Lords, I support the comments of the noble Lord, Lord McNally. Community media seems at first sight to be merely an extension of newspapers, particularly the free sheets, but I think that it could be more significant than that. Certain early experiments gained some ridicule from the chattering classes, but I think that community media has enormous potential.
I am very glad that young people are with us in the Gallery today because part of the potential of community media involves young people. It is very exciting for people to work in radio and television in local areas. We know how much information people take from radio and television—it is where they can get the news on their views of the world. But they can also get that information from local radio and television stations. It is undoubtedly silly to say so, but I would guess that community radio and television could be an enormously important factor in the attempt to reverse the disinclination to be interested in politics. It could not only inform people about politics but actually get them involved.
The set-up costs for community media can be very low indeed. Although I acknowledge the difficulties outlined by the noble Baroness, Lady Buscombe, the difficulties are not overwhelming. Consider how many stations are set up as non-profit-making operations and how many are very localised. The noble Lord. Lord McNally, referred to a tower block station. The enterprises can be very localised and extraordinarily effective. Community media would be a great opportunity for young people to get their hands on the technology to help make their community work, to talk to each other and to talk inside the community.
There is also a democracy about radio and television that is not always present in material appearing in print, which can seem rather formidable. Much print media seems to require massive training and to be in the grip of those who are remote from the more general community.
So for all those reasons, and the reasons underlined by the noble Lord, Lord McNally, people feel that they are losing the sense of community which matters massively in these islands, as it has for a great many centuries—because of fragmentation and globalisation, because of the idea of a takeover culture everywhere, and because of a sense of rootlessness. Community radio and community television, the community talking to itself and to each other, could massively reinforce the roots of our society. That would be a great outcome for this Bill.
Lord Evans of Temple Guiting: My Lords, the noble Lord, Lord McNally, talked about my noble friend Lord McIntosh putting baubles on the Christmas tree of the noble Lord, Lord Currie. I think that a much better image is the one that the noble Lord, Lord McNally, used in Committee—of Gulliver being tied down by 5,000 ropes. He was talking about the BBC. Putting Ofcom in the place of Gulliver,

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however, there is a danger that at the outset we will stop it developing the very roles that the noble Lord wishes it to perform.
Lord McNally: My Lords, I am shocked. The noble Lord entered this House as one of the new breed of Peers unsullied and untainted by politics. To turn my argument back on me is the type of thing, that I would expect from a gnarled bruiser such as the noble Lord, Lord McIntosh, not from a political virgin such as the noble Lord, Lord Evans.
Lord Evans of Temple Guiting: My Lords, that is very kind of the noble Lord. The only difference between my noble friend Lord McIntosh and me is that I am a gnarled old bruiser from the publishing world and he is a gnarled old bruiser from the world of politics.
Lord McIntosh of Haringey: No, I am not, my Lords; I am from the world of market research.
Lord Evans of Temple Guiting: I am upsetting everyone tonight, my Lords.
My noble friend Lord Bragg spoke movingly about the importance of local radio and television. The noble Lord, Lord McNally, used a very good phrase—communications in the community. In the next minute or so, I hope to convince your Lordships that that is part of Ofcom's remit and is precisely what Ofcom will do.
Community media has had a long and distinguished history. The Radio Authority has, since its inception, granted more than 4,000 short-term restricted services licences. Those can be used for a whole range of activities from rock festivals to religious festivals. This month alone, there will be about 50 services on the air under such licences. It has also granted about 100 long-term restricted services licences to schools, hospitals, forces bases, colleges and universities. Though less developed than its radio equivalent, or indeed, than it is in other countries such as Canada, the United States and Australia, local and community television has already proven its ability to attract significant audiences, to contribute to the social and cultural development of the community and to develop truly innovative programmes. Existing analogue services in Oxford, Lanarkshire, Derry, Manchester, Leicester, Southampton, the Isle of Wight and Portsmouth all do a very good job. But in the analogue world there is not much scope for the development of local services. It is only once more spectrum is made available through switchover that we might be able to offer local television entrepreneurs the opportunity to deliver more services and local audiences the benefits of services which encourage the very things the noble Lords, Lord McNally and Lord Bragg, were talking about—social inclusion and diversity, contributing to local democracy and neighbourhood renewal.
The Government are fully committed to community television and access radio having an equally distinguished future. That is why the Bill makes provision for both.
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Amendment No. 16 would place a new duty on Ofcom to promote community media. Community media would cover not just radio but television and the Internet. As we said in Committee, we do not believe this amendment is necessary. Powers already exist to develop a licensing regime for both local TV, under Clause 241, and access radio services, under Clause 258. Moreover, we expect Ofcom to support and encourage the development of community TV and radio as part of fulfilling its duty in Clause 3(1),
"to further the interests of consumers and the community as a whole",
and, under Clause (3)(2)(c) to secure,
"a wide range of television and radio services which…are both of high quality and calculated to appeal to a variety of tastes and interests".
We should all agree that if we want Ofcom to be able to fulfil its remit fully and to comply with all its duties we should not try to overload it with redundant functions. I therefore ask the noble Lord to withdraw Amendment No. 16.
Lord McNally: My Lords, I agree with the noble Lord, Lord Evans of Temple Guiting, that the Radio Authority has had a good record in promoting access radio and I hope that some of the spirit and tradition of the Radio Authority in those promotions carries through to the work of Ofcom. In the spirit of that skilful reply, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Duty to carry out impact assessments]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 17:
Page 8, line 41, at end insert—
"(3A) An assessment under subsection (3)(a) must set out how, in OFCOM's opinion, the performance of their general duties (within the meaning of section 3) is secured or furthered by or in relation to what they propose."
The noble Lord said: My Lords, this amendment is in response to an amendment tabled by the noble Baroness, Lady Wilcox, in Committee. There are certain principles that the Bill upholds and we have every expectation that Ofcom will be a good regulator. Indeed, the quality of the board that has been appointed suggests nothing else. The amendment requires Ofcom to include in an impact assessment how a proposal will further or secure its general duties, or how the performance of its duties would be secured or furthered in relation to the proposal. We believe that will ensure greater openness and transparency at the beginning of the policy-making process. I beg to move.
Baroness Buscombe: My Lords, we on these Benches very much welcome the inclusion of Amendment No. 17 in the Bill as a measure that will serve to enhance transparency. The amendment requires any impact assessment under Clause 17 to link the proposal in question to Ofcom's general duties. Thus Ofcom will explicitly state in what way its proposal will manifest its Clause 3 commitment. This will allow further scrutiny of Ofcom's proposal.

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Government amendments such as these are rewarding and refreshing for these Benches, proof that our suggestions are listened to and from time to time accepted. We tabled a similar amendment to this in Committee, arguing that if Ofcom were to be a model of good regulation the Bill must go further to boost transparency. That is what the Government have done with this amendment and I congratulate and thank the Minister for it.
On Question, amendment agreed to.
Clause 8 [Duty to publish and meet promptness standards]:
[Amendments Nos. 18 to 20 not moved.]
Lord Crickhowell Lord Crickhowell moved Amendment No. 21:
After Clause 8, insert the following new clause—
"UNDUE DELAY ON THE PART OF OFCOM
(1) This section applies if the court is satisfied, on the application of a person aggrieved by the failure of OFCOM to comply with the promptness standards set out in the statement for the time being in force under section 8, that there has been undue delay on the part of OFCOM in—

(a) the carrying out of their different functions; or

(b) the transaction of business for purposes connected with the carrying out of those functions.

(2) The court may give such directions to OFCOM as it considers appropriate for securing that the functions or business that are the subject of the application under subsection (1) shall be carried out or transacted without unnecessary further delay.
(3) In this section "the court" means—

(a) in England and Wales, the High Court;

(b) in Scotland. the Court of Session; and

(c) in Northern Ireland, the High Court."

The noble Lord said: My Lords, I must apologise for the fact that, when thinking what I was going to say on the amendment, my mind was far from Amendment No. 14, to which we suddenly came back a moment ago. I am glad that it was duly moved.
When speaking to Amendment No. 1, I said that the members of the Joint Committee who had tabled a considerable number of amendments in Committee were now concentrating our fire on a few that we thought important. Amendment No. 21 is one of those. As I said in Committee, we thought it important because of the evidence that we had heard from many witnesses about the delays that had taken place before existing regulators. I need not dwell on that point. On that occasion, the amendment was one of a group on promptness standards. Now we are left simply with one important but single amendment on the issue.
In paragraph 85 of its report, the Joint Committee recommended that,
"by analogy with the relevant provisions of the Competition Act, a party aggrieved by a failure of OFCOM to determine a matter for decision in accordance with time limits or promptness standards be enabled to seek a direction by a court to OFCOM if the court is satisfied that there has been undue delay by OFCOM".
We also recommended that the relevant sections of,
"the Competition Act 1998 be brought into force at the earliest possible opportunity".
On that last point, I simply say that why those provisions have not been brought into effect has been raised repeatedly in both Houses. So far, we have not had an answer.
I can deal relatively briefly with the amendment on this occasion because I simply have to deal with the arguments put against it in Committee by the noble Lord, Lord Evans of Temple Guiting. He first said:
"Delays in missing some deadlines may not be very important but Amendment No. 38 would apply regardless".—[Official Report. 15/5/03; col. 320.]
If the matters are not very important, it seems most unlikely that parties will take them before the courts, given all the costs incurred and the likelihood that the courts are likely to take a dim view and award the costs against them if they have raised a trivial matter. Therefore, I do not take that as a very serious argument.
The second main argument advanced by the noble Lord was that a great deal of the time might be devoted by Ofcom to delays in the responses from stakeholders. I understand the argument, although I expressed some anxiety in Committee that we should apparently put the matter in the hands of stakeholders, who in some cases have been notably reluctant to produce the information in a timely manner. However, I again do not find the argument convincing. It hardly seems very likely to me that a stakeholder who has been slow in providing information will come to the court and say, "I've been slow, but I want you to put a bomb under the backside of Ofcom". I am sure that they would put it in rather more delicate terms than that, but the simple fact of the matter is that, if they have been delaying matters, they will not have a very compelling case to put to the courts, so the courts are likely to treat their application in a pretty summary way. Therefore, I do not believe that that can be a very serious argument.
Finally, the Minister said that, in any case, this amendment should apply only to part of the Bill. But the amendment specifies that the matter can be brought before the courts following delay on the part of Ofcom in,
"the carrying out of their different functions; or … the transaction of business for purposes connected with the carrying out of those functions",
and that the court may,
"give such directions to OFCOM as it considers appropriate for securing that the functions or business that are the subject of the application under subsection (1) shall be carried out or transacted without unnecessary further delay".
Once again, we are being asked to believe that someone with an irrelevant application will come to the courts or that the courts will take seriously a matter that should not have been brought under this section.
I do not believe that any of those arguments can be treated seriously. In this case, we are simply saying that if there are occasions when Ofcom delays in an unreasonable way when handling such cases and if such delays may cause severe financial loss to the parties involved, then there should be a remedy by which the party can go to the courts and obtain a suitable direction. The courts have discretion in the

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matter. A court would be able to dismiss the application if it were irrelevant or trivial and give an appropriate order if it considered that it -tad relevance and justification.
Therefore, the proposed new clause would not impose an impossible burden on Ofcom. Past experience suggests that such a fallback or safeguard is necessary if individual organisations are to be protected. Therefore, I hope that, confronted by this eminently reasonable proposal—one that, after all, is included in existing legislation because past governments have considered it to be eminently reasonable—on this occasion the Government will think that it is sensible to accept this modest and reasonable proposition. I beg to move.
9.30 p.m.
Lord Puttnam: My Lords, I rise briefly to support the noble Lord, Lord Crickhowell, in the amendment. We on the Joint Scrutiny Committee did not make up this matter; it emerged from evidence. Time and time again we were presented with scenarios and organisations which made it clear to us that incumbent or dominant organisations had become past masters at utilising delay to achieve their ends over other organisations less well versed and less skilled. For that reason, we plumped for this issue as a recommendation; for that reason, this amendment has made its way to the Report stage of the Bill; and, for that reason, I commend it to the Government.
Lord Davies of Oldham: My Lords, before I begin to respond in detail to the points raised by the noble Lord. Lord Crickhowell, in moving his amendment and in direct response to my noble friend Lord Puttnam, I have one observation to make. Neither in this Chamber nor in another place during detailed debates on the Bill has there been much acknowledgement of Clause 9. Yet Clause 9 gives powers to the Secretary of State to direct Ofcom to issue a new or revised statement of promptness standards if she does not believe that what exists already is adequate for securing satisfactory promptness standards.
Those powers were introduced specifically in response to concerns raised by the Joint Scrutiny Committee, which my noble friend chaired. Therefore, it seems a little ungracious that it has not been noticed that the Government sought to take on board those arguments and set out to address them in Clause 9 as well as we could. Clause 9 is not about interfering in the running of Ofcom, but is an assurance to stakeholders that the regulator will need to take its promptness standards seriously, or the Secretary of State might act. I suggest that as I run through my response to the noble Lord, Lord Crickhowell, he bears in mind the operation of this clause.
The noble Lord, Lord Crickhowell, identified the reasons why he felt moved to bring back this amendment despite a clear and careful explanation of our concerns by my noble friend Lord Evans of Temple Guiting from the Front Bench. The noble Lord, Lord Crickhowell, has not clanged his amendment—and we have not changed our position
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since the Committee stage. Ofcom's statement of promptness standards will refer to its different functions and to the transaction of its business in carrying out those functions. The amendment of the noble Lord, Lord Crickhowell, would apply to an incredibly broad range of matters, and that is why we have good reason not to accept it.
I listened very carefully to the noble Lord's arguments. He suggested that it would be unlikely that trivial matters would be taken before the courts. Unfortunately, we have all had experience of the trivial being taken to court by individuals who are inclined to make mischief.
The amendment tabled by the noble Lord, Lord Crickhowell, is open to considerable abuse. We sought to deploy these arguments in Committee. We stressed the fact that we bore in mind exactly what the Joint Scrutiny Committee—to which he made such a significant contribution—recommended, and we have a clause in the Bill which substantially addresses those concerns. It is on that basis that I hope the noble Lord will feel able to withdraw his amendment.
Lord Crickhowell: My Lords, I find the arguments advanced by the Minister no more convincing than on the last occasion on which they were advanced. I acknowledge freely that the Government have moved; that they have introduced Clause 9; that there is to be a statement of promptness standards; and that those standards have to be taken seriously. I am sure that they will be taken seriously.
The fact also remains that plenty of cases in the past have evidenced that unnecessary delays have taken place. I find it odd that the Minister should believe that the individual should not have the ultimate protection of the courts if matters are not properly handled by Ofcom. The Minister says that he finds it surprising that we should move such an amendment. This is a clause and a form of wording that was thought perfectly reasonable in the Competition Act 1998, so I cannot see why it should be considered so unreasonable when it is pressed in the context of this Bill.
However, I am slightly comforted by the fact that the noble Lord, Lord Currie, is in his place. He will have heard all that has been said about the importance that the Joint Committee and others attach to promptness; he will have heard what has been said by the Minister about the views to be taken by the Secretary of State and the carrying out of matters in a prompt and expeditious way—and knowing Lord Currie as I do, he will take them seriously and take appropriate action. If he does not, we will all be able to ask him why not. Perhaps ultimately I may have to rely on the firm management and prompt and effective action that I know will be taken by the noble Lord, Lord Currie, and his colleagues when they come to deal with their responsibilities. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 22:
After Clause 9, insert the following new clause—
"DUTY TO ENCOURAGE AVAILABILITY OF EASILY USABLE APPARATUS
(1) It shall be the duty of OFCOM to take such steps, and to enter into such arrangements, as appear to them calculated to encourage others to secure—

(a) that domestic electronic communications apparatus is developed which is capable of being used with ease and without modification by the widest possible range of individuals (including those with disabilities); and

(b) that domestic electronic communications apparatus which is capable of being so used is as widely available as possible for acquisition by those wishing to use it.

(2) It shall be the duty of OFCOM from time to time to review whether they need to take further steps, or to enter into further arrangements, for the purpose of performing their duty under this section.
(3) OFCOM must not do anything under this section that would be inconsistent with the Community requirements set out in section 4.
(4) In this section "electronic communications apparatus" means apparatus that is designed or adapted for a use which consists of or includes the sending or receiving of communications or other signals that are transmitted by means of an electronic communications network.
(5) For the purposes of this section electronic communications apparatus is domestic electronic communications apparatus except to the extent that it is designed or adapted for use solely for the purposes of, or in connection with, a business.
(6) In this section "signal" includes—

(a) anything comprising speech, music, sounds, visual images or communications or data of any description; and

(b) signals serving for the impartation of anything between persons, between a person and a thing or between things, or for the actuation or control of apparatus."

On Question, amendment agreed to.
Clause 11 [Duty to establish and maintain Content Board]:
Lord Davies of Oldham Lord Davies of Oldham moved Amendment No. 23:
Page 11, line 35, at end insert—
"( ) At least one of the other members of the Content Board must also be a non-executive member of OFCOM other than the chairman of OFCOM."
The noble Lord said: My Lords, in moving Amendment No. 23, I shall speak to the Government's Amendment No. 24 and to the other amendments in the group. Amendment No. 23 will be recognised by the noble Lord, Lord McNally, because during Committee the Government agreed to bring forward an amendment to ensure that Ofcom appoints two non-executive members of the main Ofcom board to the content board. Amendment No. 23 fulfils that commitment.
Amendment No. 24 is a purely technical amendment which removes a possible ambiguity in the original drafting. With the Ofcom Act, it might have already been taken to imply the appointment of two Ofcom members to the content board. That is the basis for the Government's Amendment No. 24.
Amendment No. 25, tabled by my noble friend Lord Gordon, and Amendment No. 26, tabled by my noble friend Lord Dubs, concern conflicts of interest among
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members of the content board. We discussed Amendment No. 25 in Committee and we subsequently wrote to my noble friend Lord Gordon, who had sought this amendment in the spirit of tidying up the Bill. Copies of that letter were sent to other noble Lords who had supported the amendment on that occasion and they were also placed in the Library of the House.
There is, I believe, no difference of principle between us. The question is the practicality of what we are seeking to achieve. It appears to the Government that all those listed in subsection (8) would be ruled out of membership of the content board under subsection (9). However, subsection (9) requires a process of analysis to be undertaken by Ofcom to assess the potential risks. Our view is that the conflict of interest in relation to the BBC, to S4C and Channel 4 is sufficiently clear-cut to make what is known as a "bright-line" distinction, one which we used in the letter to my noble friend, whereby those persons listed in subsection (8) can be statutorily excluded at the outset, without setting Ofcom the task of analysis on a case-by-case basis.
The distinction is in the current legislation in relation to the ITC, the Radio Authority and the Broadcasting Standards Commission, as I am sure my noble friend is aware. He has not convinced me that there is any material disadvantage in retaining the clarity of subsection (8) and I hope that he will withdraw his amendment.
Amendment No. 26, tabled by my noble friend Lord Dubs, calls for Ofcom to publish the criteria it will apply in ensuring that those appointed by Ofcom to the content board do not have a prejudicial conflict of interest. It is of course important that Ofcom complies with the very highest standards of corporate governance. I welcome the fact that Ofcom has established that as its clear policy, as detailed in its members' code of conduct. I also welcome the fact that it has made that code and indeed its register of members' interests publicly available on its website. That is the kind of transparency which I believe demonstrates Ofcom's commitment to the principles of good regulatory practice, as provided for in Clause 3 of the Bill. That code will of course apply to Ofcom in carrying out its job of appointing members of the content board.
The content board has developed and agreed its own code of conduct, which has also been published on the Ofcom website, and has committed to publicising its own register of interests. The question is whether one should go beyond that and require in primary legislation that Ofcom publish detailed criteria of how it will assess potential conflicts of interest. I am wary of that suggestion, not least because there has to be a balance between absolute bars, of the kind provided for in subsection (8), and administrative processes. For example, it is possible that members may have expertise which is necessary for the board to make properly informed decisions, but there may be individual decisions where a member must step aside from any involvement because of a potential conflict, or even the risk of a perception of a conflict of interest.
The content board needs to have access to relevant sectoral expertise, so I particularly welcome its commitment to making open and transparent any real or potential conflicts of interest. That seems a good way of resolving the problem. I recognise the real concerns raised by the noble Lord, Lord Dubs, and I have no doubt that he will contribute to the debate and express those further. However, Ofcom now has in place policies and systems to deal with those issues that we examined in Committee. No doubt the noble Lord, Lord Currie, and the chairman of the content board, Richard Hooper, will read the debate and consider carefully the extent to which any further reassurance could be provided on this matter. Nevertheless, I hope that I have established the basis for the reservations on the amendment.
Amendments Nos. 28 and 29 would require the content board to evaluate the impact of its functions on business competitiveness, and make Ofcom aware of that. Amendment No. 30 requires the content board to produce its annual report. The amendments take us back to the territory of viewing the content board as somehow outwith the duties laid on Ofcom. The Bill establishes the duties of a single, converged communications regulator. Those duties, which we have elaborated and discussed at some length, apply to all of Ofcom's work, including any contributions to that work by the content board—for example, as well as the general duties, the need to review regulatory burdens, to undertake impact assessments, to consider self-regulation, and to publish and meet promptness standards.
So I recognise the difficulty in having to move the government amendments and the grouping with them of amendments which have not, thus far, been moved. I am hesitant about presenting the Government's arguments against amendments to which my noble friends and other noble Lords are due to speak. It is difficult for me to do anything other than present the Government's arguments at this point. Therefore, I crave the forgiveness of my noble friends and the other proposers of amendments to follow, and hope that I have at least cleared their minds over the Government's position. We shall see the nature of their arguments. I beg to move.
9.45 p.m.
Lord Gordon of Strathblane: My Lords, I shall speak to Amendment No. 25. My heart leaped when the Minister offered to speak to all the amendments in the group. I thought that perhaps at last the Government had decided to adopt them even before one had spoken to them. The Minister is correct in that there is little difference between our points of view on this matter.
In Committee, I raised the question of why, uniquely, we were singling out the BBC and Channel 4. I recall the noble Lord, Lord Thomson, asking, during the Minister's reply, what about a director of Sky? Should we not be listing that company? In the letter that I received from the Minister, for which I am grateful, the first half agreed that everybody in subsection (8) was caught by subsection (9) anyway. Therefore, in my view—and. I am sure, that of the
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noble Lord, Lord Peyton, if he were in his place—subsection (8) is totally unnecessary. But the letter continued by justifying the necessity for subsection (8) by saying that in the commercial sector, they did not know quite who was in charge.
Frankly, the people in charge of the commercial sector would take issue with that statement. The provision is wholly unnecessary. There is no reason to single out the BBC from the others. A simple conflict of interest test is sufficient. That would not put Ofcom to a great deal of bother. It will not be appointing members of the content board every day of the week and it is the simplest thing in the world to rule them out prima facie as having a conflict of interest. At this hour of night, I shall obviously not press the amendment; to be honest, I probably would not even on Third Reading, but I hope that the Minister will reconsider and withdraw subsection (8).
Lord Dubs: My Lords, I shall speak to Amendment No. 26. In doing so, I declare an interest as chair of the Broadcasting Standards Commission; previously, I have been deputy chair of the Independent Television Commission. When accepting those posts, I had to sign a pretty tough declaration that I had no financial or other interest in any broadcasting organisation.
I should make clear that there is absolutely nothing personal in what I say. I am dealing simply with a point of principle. In so far as it may or may not affect any individuals, I cast no aspersions on anyone. I have simply tabled what I consider to be the gentlest possible amendment that I could devise to put the issue before the House.
I had a helpful discussion earlier today with Richard Hooper, who is the chair of the content board and the deputy chair of Ofcom. We discussed the issues and he was extremely helpful. I understand that Ofcom must achieve a balance between, on the one hand, including people with broadcasting experience useful to its work and, on the other hand, setting that against any excessive financial or other interest that might prejudice those individuals' functioning in Ofcom.
The question is: how easy or difficult is it to arrive at such a balance? Ofcom is an extremely powerful body. It has absolute powers over the licences and about aspects affecting broadcasters and other bodies in the telecommunications industry. Because it is so powerful, it must be entirely beyond suspicion. It was put to me that if any individuals have an interest—it would be a moderately small one—it would be appropriate for them to declare it and, furthermore, to absent themselves from meetings where a decision was being made about a broadcaster in whom they had an interest—a sort of Chinese wall practice.
I wonder whether that is sufficient. Given Ofcom's wide-ranging responsibilities, it would be pretty difficult for anyone with a financial or other interest in a broadcaster to have that interest limited to a narrow aspect of that broadcaster's work, so that they were not in difficulty with regard to other aspects of that broadcaster's work. So I suppose that Ofcom must resort to saying that the interest is relatively small and therefore does not matter.

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I did not know that it existed until this morning, but I managed to get hold of a copy of the content board members' code of conduct, which I read with interest. I shall cite a couple of paragraphs. First, under the heading of, "Public service values", paragraph 2 states:
"Members must avoid any suspicion that their decisions might be influenced in the hope or expectation of future employment with any particular firm or organisation. Accordingly, during their term of office, content board members must not seek any consultancy contracts, directorships or other employment or acquire a direct financial interest"
in the BBC or other television or radio company, and so on.
"If offers of employment are received from such a company, including the BBC, content board members may exceptionally accept, but only with the prior agreement of the chair of the content board…Accepting money from a stakeholder or regulated industry should not be permissible where this opens Ofcom to the risk of perceived bias and/or malign comment. For example, significant earnings from the regulated industries would not be acceptable."
However, it later says,
"Similarly, a limited amount of freelance television or radio presentation may be acceptable."
Ofcom is saying that if the interest is small, that is all right; but if the interest is large, that is not all right. I understand the logic of that, but I am not totally happy about it. It would be much better if those people who make key decisions that affect broadcasting, television and radio companies or, by inference, the telecommunications world, did not have any financial interest in the work that they do by appearing on or producing for a television company. I take a fairly pure view of this, partly because it could create a public perception that might be adverse to Ofcom.
That public perception is referred to in the Ofcom board members' code of conduct, although not directly. Clause 11(9) says that Ofcom has satisfied itself that a board member will not have any financial or other interest that would be likely to affect prejudicially the carrying out by him of any of his functions as chairman or member of the content board. However, of course, if there was to be public criticism of any member's conflict of interest, that would prejudicially affect their work. Therefore, the outside view of this is important.
My amendment is mild. I wanted to expose this issue, about which there are different points of view, to some discussion. It is helpful to do so. My noble friend on the Front Bench has already answered the debate; perhaps he will do so in more detail later.
Baroness Wilcox: My Lords, I support government Amendments Nos. 23 and 24, and shall speak to Amendments Nos. 28 and 29, which would place in the Bill a guarantee that the content board will evaluate the impact of its actions on business competitiveness. The reasons for proposing this go to the heart of why Ofcom is being formed as a regulator.
One of the main considerations in the formation of Ofcom was to improve the competitive position of UK users and suppliers of electronic communication networks and services. I listened to the Minister
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present his arguments against my amendments, but I am not yet reassured. With his patience, I will present my arguments and hear his further response.
Users of electronic communications and network services—whether internet or digital television—increasingly depend for their commercial success on how well they can differentiate their products through combining textual and audio-visual content in innovative ways. While traditional content regulation has largely revolved around big issues of decency and taste, regulatory disputes in future may well focus on more technical and less dramatic issues that are more fundamental to creating dynamic and growing content markets.
The players affected might well also be different from and more diverse than just the major broadcasters of today, ranging from a company in Scotland offering a range of special malt whiskies, through an online animated chronology, to a Soho-based design business posting examples of partners' work on a website.
In this new and fast-changing environment, it would be all too easy for the content board, and the Ofcom board, to overlook some important business issue or set of factors, unless there was a conscious effort not to do so. This is simply because we are entering a new, unexplored realm, which will make our traditional compasses less effective than continuous attention to the terrain that is being traversed.
The Bill as it stands provides little protection to business users of new electronic communication networks and services. There are few checks on the impact that the new regulator could have on competitiveness. The large, traditional suppliers will be familiar to the regulators and able to make their views well known; new and perhaps specialised business suppliers and users may be overlooked in the new environment. The amendments would remedy the situation by providing a statutory guarantee that, in making its decisions, the content board will have given comprehensive and balanced consideration to business issues.
We tabled the amendments in Committee, and we were told that they would distort the relationship between Ofcom and the content board. That is certainly not our intention. We simply seek further assurances from the Minister that the content board will give full consideration to the impact on business that many of its decisions will have.
Finally, I turn to the government amendments to Clause 11, which we support. The amendments will determine the constituency of the content board, reflecting the recommendation made by the Joint Scrutiny Committee. The amendments will provide the requisite structural formality, ensuring that Ofcom's executive arm is permanently represented on the content board.
10 p.m.
Baroness Howe of Idlicote: My Lords, I shall speak to Amendment No. 30, which is in my name. Your Lordships, particularly the Minister, may recognise

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the wording of the amendment. It arose because I saw the amendment that had been tabled by the Government, which will make it possible for the consumer panel to produce an annual report. By way of parity, my amendment seeks a parallel requirement for the content board.
Although I readily agree that all of us—citizens and consumers—should be interested in the work, the priorities and the success of the consumer panel during the year in question, I am certain that there will be at least as much, if not more, interest in the work, priorities and success of the content board. Judging by my experience at the Broadcasting Standards Commission, there will be particular interest in how far it has been able to satisfy people who have complained about programmes and/or personal fairness and privacy issues. I hope that the Minister will see that I am asking only for a natural balance in what the Government have decided is a necessary requirement of the consumer panel.
Lord Brooke of Sutton Mandeville: My Lords, I shall speak briefly to Amendment No. 26, in tile name of the noble Lord, Lord Dubs.
I understand the principle of Chinese walls, and I understand that there are circumstances in which they are desirable, if one seeks to achieve a particular purpose that only they can facilitate. They should not he used as a facilitator for other exceptions at the margin. I am a profound believer in the principle that Caesar's wife should be beyond suspicion—"Calpurnia pure", in shorthand.
In 1970, my family and I had a holiday in Negril Bay in Jamaica. Some of your Lordships may recall it. There was a narrow road that ran behind Negril Bay, which had not, at that stage, been developed in any way, although it has been developed since. It was the bay in which Nelson used to assemble the British fleet when crossing the Atlantic during the relevant naval period. The narrow road had, on its hinterland, a large area of marsh, which, rather in the way of Treasure Island, was recorded on the map as "The Great Morass". I shall not go into other aspects of the terrain. The River Styx crossed the road a little further down on the way to Savanna-la-Mar, which appears in one of the Ian Fleming novels.
I cannot help thinking of the circumstances—to take a single example—that led to the removal of Mr Rod Liddle from the "Today" programme because of his outside work, the appropriateness of which was then argued about endlessly in the press. That is a classic case of the great morass into which one can get. I do not seek to use the analogy in the context of the present issue, but the point about the great morass stands. "Calpurnia pure" is a much better guide.
Lord Thomson of Monifieth: My Lords, before the Minister replies, I should like to ask a question about the amendments moved by the noble Baroness. I hope the Minister can reassure me that I have misunderstood the substance of these amendments. They seem to lay on the content board some obligation to review the content of broadcast television
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programmes as to whether or not they may he critical or affect the competitiveness of various companies. It is important to have a careful separation between the role of the content board in relation to the content and standards of programmes and the other economic responsibilities of Ofcom—the competitiveness of the telecommunications and broadcasting industry.
Lord Davies of Oldham: My Lords, not for the first time, I am grateful to the noble Lord for having introduced that note. I shall not reverse the order of the amendments. I shall bear it in mind when I come to Amendment No. 30. I agree with him that that is an important point.
Although I had a prior strike, I did not succeed in convincing my noble friend Lord Gordon of Strathblane. My noble friend Lady Blackstone has also written a clear letter to him on the position of the Government. I entirely respect his reservations. We are united in principle and divided on practice in this matter. My noble friend Lord Dubs deployed his case with his customary skill. He mentioned the fact that he had been obliged to sign a declaration of potential conflict of interest. That is entirely proper. The only point I would make to my noble friend is that it was not the Broadcasting Acts which required this, it was administrative action, exactly the parallel that we are seeking to establish for Ofcom with regard to this Bill.
Lord Dubs: My Lords, the declaration I had to sign with the Broadcasting Standards Commission, and others, was a tighter restriction than the one applied to Ofcom content board members.
Lord Davies of Oldham: My Lords, I am not sure that I can comment on that in detail. I was trying to establish the distinction in principle between that which is statutory and required under the Act and that which is administrative practice of the body established by the Act. I am just trying to meet his point on that.
With regard to the Ofcom code of conduct, it goes quite a long way in its detail and openness and further than present arrangements. I hear what my noble friend says but I do not believe that his amendment takes the position that we are seeking to establish for Ofcom a great deal further. I am grateful for what he said, but we do not believe that it should be in primary legislation. We believe it should be a question of administrative action. He will be aware that this debate will be read carefully by Ofcom, as all our debates are. I see in his place the chairman of Ofcom. He will have noted what my noble friend said about this important area.
Turning again to Amendments Nos. 28 and 29 moved by the noble Baroness, Lady Wilcox, I sought to establish the contours of the Government's differences on these matters. She pressed me further and I shall do my best to respond. As I indicated, in the Bill we seek to establish the duties of a single converged communications regulator. The duties, which we have elaborated and discussed at some length, apply to all Ofcom's work, including any contributions to that

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work by the content board. For example, as well as the need to review regulatory burdens—I mentioned this earlier—to undertake impact assessments and so forth, it needs to publish and meet promptness standards.
It is up to Ofcom to ensure that the content board has no impact on business competitiveness, which I think was the point that the noble Lord, Lord Thomson, was seeking to clarify—but in his intervention I think that he clarified it for me—and that there must be a clear distinction in such roles. How Ofcom manages this must be a matter for it and its relationship with the content board. But the principle adumbrated by the noble Lord, Lord Thomson—rather more effectively than I did in my attempt to rebut an amendment which still had not been moved when I spoke first—is exactly the position to which the Government subscribe. That is why we are hopeful that the noble Baroness will be prepared to withdraw her amendment.
On the amendment to which the noble Baroness, Lady Howe, spoke, the distinction that we seek to make is that the consumer panel is independent of Ofcom. Therefore, the content board is a part of Ofcom. The issues referred to by the noble Baroness would probably be included in the main Ofcom annual report. As she will recognise from earlier debates, Ofcom is under very strict requirements with regard to its annual report. It has also given every indication of its determination to be open and transparent in its transactions and the report will be full. Therefore, the content board operation would be contained in the annual report, whereas the consumer panel is independent of Ofcom and its work surveyed in a different manner. That is the nature of that distinction. On that basis, I ask noble Lords not to press their amendments.
Lord McNally: My Lords, before the Minister sits down, it would be churlish of me not to acknowledge that Amendment No. 23 was in response to an amendment that I moved in Committee. For that I am very grateful. However, I heard the noble Lord, Lord Gordon of Strathblane, say that not only would
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he withdraw his amendment, but he may not bring it back again. I shall use all my powers of persuasion to ask the noble Lord, Lord Gordon, to bring it back to save the Government from themselves. Leaving subsection (8) in is just plain daft.
Lord Davies of Oldham: My Lords, as ever I am grateful to the noble Lord and I have no doubt that the power of his persuasion will be so much greater than mine that we shall revisit this quarter. All I can promise is that we shall probably respond with the same degree of courteous but nevertheless robust argument that we sought to maintain this evening. However—
Lord McNally: My Lords, we may bring it back at a different time of day.
Lord Davies of Oldham: My Lords, my temper is even longer and my tolerance even greater at other times of the day than it is at a quarter past 10 in the evening. I have no doubt that I shall be as overjoyed to see the amendment back in its place thanks to the ministrations of the noble Lord, Lord McNally, and we shall debate that issue when we come to it. In the mean time, I ask the House to agree to Amendment No. 23.
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 24:

Page 12, line 6, leave out from beginning to second "to" in line 8.
On Question, amendment agreed to.
[Amendments Nos. 25 and 26 not moved.]
Clause 12 [Functions of the Content Board]:
[Amendments Nos. 27 to 30 not moved.]
Lord Evans of Temple Guiting: My Lords, I beg to move that consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at fifteen minutes past ten o'clock.