§ The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved. That the House do now again resolve itself into Committee.—(Baroness Blackstone.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 8 [Duty to publish and meet promptness standards]:
Baroness Buscombe moved Amendment No. 35
Page 9, line 31, after "publish" insert ", and on an annual basis review,
The noble Baroness said: In moving Amendment No. 35, I shall speak also to Amendments Nos. 36 and 37. These amendments relate to Clause 8, which concerns the duty to publish and meet promptness standards. The clause requires that Ofcom sets out its policy, keeps the fulfilment of any objectives under review and publishes its success. The intention behind our amendments is to strengthen those requirements so that expectations of Ofcom are clear and there is no room for doubt.
Ofcom is an immensely powerful regulator and accountability will be vital to its success, particularly to its relationship with those supplying or using communications services. Ofcom's reputation as a fair and effective regulator will depend on its ability to be responsive to developments in the industry. Ofcom's expectation that industry stakeholders provide information accurately and promptly is reciprocal. We have all heard examples of problems with regulators taking inordinate amounts of time to process information and reach decisions.
I do not want to appear to be asking too much of Ofcom, hence the words in Amendment No. 36:"unless exceptional circumstances prevent this".
I simply wish to see on the face of the Bill the requirement that Ofcom does its utmost to comply with its own standards rather than simply "have regard to" them. I beg to move.
§ Lord McNally
This clause contains some of the matters referred to by me and my colleagues. I see that the noble Lord, Lord Crickhowell, is also eager to 318 enter the ranks. I merely draw the attention of the Committee to paragraph 85 of the Puttnam report which states: "Patricia Hewitt thought it was best for OFCOM to set its own promptness standards, after consultation. We do not believe this is an adequate discipline".
It is that thought which is behind these amendments. We hope the Government will reconsider the matter.
As the noble Baroness, Lady Buscombe, indicated, a great deal of Ofcom's credibility as a regulator will be in its capacity—the noble Lord, Lord Crickhowell, will later deal with these matters—and resources to match the massive advisory power of the various vested interests with which it will have to deal, and the speed with which it is able to deliver satisfactory judgments. Justice delayed is justice denied.
Evidence was given to our committee from those with experience of other regulators of the skills of various vested interests to spin out inquiries. Because regulators were under-resourced that in the end became justice denied. We really want to see the noble Lord, Lord Currie, and his assembled regulators as a kind of Elliott Ness and the Untouchables; people who will strike fear into the hearts of wrongdoers in this sector. We believe that these amendments will give them the necessary discipline so to do.
§ Lord Crickhowell
Like the noble Lord, Lord McNally, I shall speak to Amendments Nos. 38, 103 and 144, for the reasons he gave. Like my noble friend Lady Buscombe, I believe that this is an important set of amendments. I agree with what she had to say. We in the joint committee thought it was important because of the evidence that we heard from many witnesses about the delays that had taken place before existing regulators. Some telecommunications operators considered that Oftel's decision making is still so slow that there is often no point in complaining to the regulators at all. We were not terribly impressed when we presented these arguments to David Edmonds in the joint committee on 27th May 2002. We asked him whether the provisions of Clause 6, as it then was, would affect his work at Oftel and at paragraph 84 he replied,Promptness would not. I have tough targets already. We meet those targets. … I think the promptness clause is important underpinning but in terms of how I operate at the moment it would not make a difference".
The committee felt that we should have a clause that did make a difference. It was for that reason that we made the recommendations to which the noble Lord, Lord McNally, referred.
In choosing the words of this clause—we did not draft them out of the blue—we thought that the Government had given us a good precedent because they are based on almost identical words in the Competition Act 1998. It is true that the relevant clause in the Competition Act 1998 has never been introduced by the Government. Perhaps one of the questions we should again put to them, as it was put in Committee in another place, is "Why not?" Clearly, there is nothing wrong with the drafting and that clause stands as a guide.
319 I shall make a couple of references in this context to the debate in Committee in another place on 12th December. The Minister, Dr Howells, in commenting not on this particular amendment but on one in the group dealing with the same point, made this remark about Ofcom:Ofcom will understand far better than the Government or. indeed, hon. Members. It will be able to set its standards with an understanding of its resources, the urgency of each matter and the impact of not acting in a timely manner".—[Official Report, Commons Standing Committee E, 12/12/02; col. 143.]I pick up on the words "its resources" because they raise alarm bells with me. They carry us forward to a debate that is likely to take place later today on the financing of Ofcom and "its resources". The noble Lord, Lord McNally, said that I would be speaking on that. Sadly, I cannot be in the Chamber on that occasion. However, I have had discussions with the noble Lord, Lord Puttnam. He will be saying very much what I would say and probably with greater force and effect. But this is an important issue because if delay is caused by lack of resources we shall be in a considerable mess. So I point the way forward to that debate.
The Minister in replying in another place said that it would be a great mistake to have time limits for Ofcom because unless analogous time limits were imposed on stakeholders, Ofcom would be in a mess. That is not a happy argument. Yes, of course major stakeholders do from time to time deliberately delay things, but that should not be the reason that lets Ofcom off the hook. Indeed, it is almost an invitation to stakeholders to delay things in the comfortable knowledge that if they do so Ofcom will say, "Well, it's not our fault. It's all those beastly stakeholders who aren't producing their evidence". So I think that is a poor argument.
I finish, as indeed did honourable Members in another place, and Mr Lansley in particular, by referring to the part of the 1998 Act, asking why it has not been implemented and suggesting that it is entirely appropriate that it should apply to the Bill.
§ 11.15 a.m.
§ The Lord Bishop of Manchester
I intervene briefly to support Amendment No. 35. It is not a good idea for Ofcom to have an objective placed upon it that would be difficult to meet because of its imprecision. It does not meet all the requirements of being what these days is often referred to as "smart"—that is, while it is specific, measurable and perhaps even achievable, it is not realistically time-based. Ofcom is asked to set promptness standards. It is permitted to review them, but it is not told how often that review should take place. Even a minimum or maximum timescale is omitted.
I suggest that the provision, as it stands, is open to abuse and that that is corrected by the amendment of the noble Baroness, Lady Buscombe.
Viscount Astor: I support Amendment No. 38 about undue delay, spoken to by my noble friend Lord Crickhowell, It is extremely important in the 320 broadcasting industry—and indeed in any industry—that undue delay is not caused by the decisions of regulators. Sadly, in the past few years, because of the complexities and with different regulators being responsible for different parts of broadcasting, there has been undue delay in the industry. There has been undue delay in decisions by the ITC. However, by far the worst offender has been the OFT. It has taken an enormously long time to make some decisions. Indeed, in one case it took a year to decide that it was not able to make a decision. Surely, it should have been able to do so faster than that. I am sure it would not have taken so long in the days when the noble Lord, Lord Borrie, was in charge.
It is important that the regulators have the power and the capability to come to quick decisions. There is nothing worse for the industry than not knowing where it is.
§ Lord Evans of Temple Guiting
My noble friend Lord Davies is in hospital having a small nose operation. I am sure all noble Lords will join with me in wishing him a speedy recovery.
We have always said that we expect Ofcom to be a good regulator. We know that the industry will judge some of Ofcom's success, at least, on its ability to act promptly. We feel that to be tarred with the brush of other regulators which have not been successful is an unfair assertion for this brand new body with its very good chairman and staff.
Clause 8 gives Ofcom a duty to publish and meet promptness standards. Read alongside Clause 9, which we added to the Bill in response to concerns expressed by the Joint Scrutiny Committee, our policy intention is clear— Ofcom will be set promptness standards for carrying out is functions and business and meeting them.
I am more than aware that there are calls that the clause is not strong enough. Amendment No. 36 seeks to toughen it. The underlying assumption of the amendment is that the words in the Bill that Ofcom must "have regard" to the standards is a woolly concept with no legal effect. That is not the case. If Ofcom does not organise itself so as to be able to meet its promptness standards whenever possible, it exposes itself to legal proceedings. Amendment No. 36 would not give any greater legal force to the obligation which has already been placed on Ofcom.
I turn to Amendment No. 38. It follows similar provisions in the Competition Act 1998 for dealing with notifications. Ofcom's promptness standards will cover all its functions and business related to those functions. Delays in missing some deadlines may not be very important but Amendment No. 38 would apply regardless. The equivalent of Amendment No. 38 is specific in the Competition Act. Its application here is not and for that reason, I am not at all comfortable in accepting it.
I am not sure what additional benefit would be derived from Amendment No. 37, as subsection (7) of Clause 8 requires Ofcom to include in its annual report a summary of its compliance with the promptness 321 standards. A dedicated report would be enormous and bureaucratic; the cost of its production would greatly outweigh its benefit.
Amendment No. 35 would require Ofcom to review its promptness standards annually. We should not include such a review in the Bill. Let Ofcom consider how it will manage the setting and review of its standards. There is always the spur of the Secretary of State's power in Clause 9 to keep it up to scratch.
Amendment No. 103, which would place a time limit on the process of market analysis, at first sight seems attractive, but it does not take into account all the steps involved in the process, which would have to be telescoped into those four months. I know that the amendment would start the time limit running only after the markets had been identified, but it would still require Ofcom to shoehorn into four months the analysis of the markets identified and the making of any determination.
A significant slice of the timeline is devoted to collecting information from stakeholders, responding and consulting. Consultation by Oftel is for 10 weeks —a period requested by stakeholders after Oftel had originally proposed six weeks. Moreover, Clause 78 requires certain proposals to be sent to the European Commission. In specific circumstances, the European Commission can within one month demand an extra two months to review the proposal. So four months could not possibly be made the maximum time in all cases.
Finally, I turn to Amendment No. 144. Of course we recognise the concerns raised about the risks of delay in the resolution of appeals, which may be systematically used by powerful interests to obstruct decisions that are not to their liking. We agree that the appeal process should be as speedy as is reconcilable with the interests of justice. However, we explained in our reply to the Joint Committee's report that it would be impractical to set statutory time limits for the consideration of issues that may be raised by the parties in proceedings before a court of law, because the court must ultimately have sufficient flexibility to give consideration to issues raised by any of the parties at any stage.
It is still our view that that consideration rules out binding deadlines. The amendment does not seem to dissent from that view, because it does not in reality impose binding deadlines. It provides significant flexibility to depart from the four-month deadline, which thus becomes something more like a target.
The tribunal has a good record on prompt decision making in the discharge of its existing responsibilities, and I am confident that it will be equally effective in respect of the new responsibilities proposed by the Bill. The amendment would not have any material effect in speeding those processes. Having heard my remarks on the amendments, I hope that they will not be pressed.
§ Lord Puttnam
Perhaps I may ask my noble friend one question that may help him when we reach Report. Much of what he said was perfectly reasonable until he 322 used the terrible phrase, "wherever possible". In my experience of legislation, "wherever possible" becomes a catch-all get-out and effectively makes everything meaningless. Perhaps the Government can return on Report with an illustration of what they mean by "wherever possible". When does "wherever possible" become a legitimate delay, and when does it become an escape clause?
§ Lord Evans of Temple Guiting
I am grateful to my noble friend for that intervention. We will hold discussions with him on the matter before Report.
§ Lord Crickhowell
I listened with considerable interest to the Minister's reply. Much of what he said reinforced the arguments advanced from my Front Bench and others who spoke in the debate. I was again worried by the repeated reference to the time that would be taken by stakeholders. We shall want to consider that carefully before Report, because we must not allow Ofcom to be dictated to by the actions of stakeholders. We must try to find a way around that and return to the matter on Report.
I was also interested in the Minister's argument about Amendment No. 38. Basically, he said. "Well, it should apply only to part of the Bill; it is a question of the extent of the coverage". I thought that that was a Minister saying, "Well, this is not actually a bad provision, but it needs a little amendment and modification so that it applies only to the relevant parts of the Bill". Again, we must consider that before Report.
We have not reached the end of this discussion, although I am most grateful to the Minister for elaborating on the arguments advanced in another place. He has given us enough material to see whether we can reach a more workable solution.
§ Baroness Buscombe
I thank the Minister for his response and noble Lords, including the right reverend Prelate the Bishop of Manchester, for their support. I begin with what the right reverend Prelate said about Amendment No. 35. Obviously, we do not want to put Ofcom in an impossible position by giving it unrealistic timescales. On the other hand, as noble Lords have pointed out, there is a history here of regulators' seeming inability to provide answers within a reasonable period. The phrase, "wherever possible'', alludes to that problem.
The Minister said that Ofcom would be open to legal proceedings if it did not meet the time-frame but, using the example cited by my noble friend Lord Astor. the Office of Fair Trading has consistently failed in recent years to provide answers within a sensible time-frame. Legal proceedings are possible in that case, but they have never been able to stick.
Looking at the matter in as practical a way as possible, there is a history of problems with other regulators. The Minister said at the outset that to suggest that there might be a problem with Ofcom and to compare it with other regulators was unfair. That is the very reason for the amendments: we want to avoid Ofcom being, as the Minister put it, tarred with that 323 brush. We want Ofcom to be a successful regulator, able to respond to different difficult situations with due promptness and as efficiently as possible.
This whole debate impinges directly on later debates, as my noble friend Lord Crickhowell said. The question of the ability to produce reports within a reasonable time frame will impinge directly on resources, which is a subject to which we shall return. I hope, later today.
I am somewhat disappointed by the Minister's response. All the amendments, including those in the names of my noble friend Lord Crickhowell and the noble Lords, Lord Puttnam, Lord McNally and Lord Hussey, are entirely reasonable. They would not put Ofcom in a difficult position; they would help to protect it from suggestions that it was spinning things out, creating a situation in which, as the noble Lord, Lord McNally, said, justice delayed is justice denied. We will go away and reconsider an amendment to table on Report that meets our concerns. For the time being, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 36 and 37 not moved.]
§ 11.30 a.m.
§ On Question, Whether Clause 8 shall stand part of the Bill?
§ Lord Peyton of Yeovil
I hope the Government will dismiss any lurking suspicion that the Motion to oppose the clause is in any way hostile or that it seeks to exacerbate the real difficulties now being faced by the Government, even though those are, to a certain extent, of their own making.
It is with concern, even dismay, that I point out that here we are, on the third day in Committee, having not yet disposed of Clause 8. Some 395 clauses and 18 schedules are to come. This could develop into an almost endless process which would be highly embarrassing to the Government and damaging to an industry which cannot tolerate protracted uncertainty. In my view, it will make your Lordships' House appear just plain silly. We shall look rather like mice in a cage, scrabbling about on the floor, not knowing where the door is or how to open it.
Let me make it clear in passing that I have nothing against Clause 8. It is simply the last of five or six clauses setting out the duties of Ofcom. I am happy to admit that the Motion to oppose could have applied equally to any one of those clauses. However, this appears to be the appropriate moment to consider the matter.
The first major point I want to make is that Bills of such huge dimensions are very nasty and unattractive objects. If Bills carry on growing at this rate, some of the weaker among us will need to seek the assistance of a caddie to carry the wretched things about. I hope that the Government will pay attention to that remark. Bills are becoming collections of suggestions that anyone may care to make. As a result they are far too heavy a meal, and clarity simply goes by the board.
324 I remind noble Lords of paragraph 26 of the report of the Select Committee:The draft Bill as it stands does not provide the clarity of duties and objectives that the Government itself has sought".
I concede that improvements have been made, but I do not think they go anything like far enough. In a Bill of this length a good deal of confusion and uncertainty, along with lack of clarity, is bound to arise. I hope that the Government will record and take seriously the warning that if they pack a mass of detail into their Bills, then that mass will certainly attract suggestions as to how it could be improved. The discussion of suggested improvements is likely to take up a great deal of time.
It is of the utmost importance that Ofcom and its chairman should have sight of the wood and not become lost under the trees in a labyrinth constructed by those who believe that they are being helpful. I put in a plea to noble friends on my own Front Bench: as the Bill progresses, I hope that they will realise that the scene is changing from what it was when the Bill was handled in another place and that they will not become hog-tied to foolish advice received from party sources down the corridor. Indeed, that applies to both Front Benches.
An overload of duties, functions and guidance will be a major handicap to the noble Lord, Lord Currie. What he is going to need is the freedom to perform broad duties laid out in a way appropriate to Acts of Parliament. What he deserves—he is neither a fool nor a rogue—is to be trusted. I recognise that modern governments find it extremely difficult to trust almost anyone. They put people in important positions but will not give them the discretion and the freedom they need; they harass them at all stages. I see my friend the noble Lord, Lord Marsh, in his place on the Cross Benches, with whom I have dealt in the past on transport issues. I learned then that if Ministers do not trust those whom they appoint, the most ghastly muddle ensues. We are pretty good at creating the scenery in which such muddles can arise.
The noble Lord, Lord Currie, spoke clearly at Second Reading:I hope that your Lordships will avoid the temptation to add many more specifics on one aspect of the Bill or another. Ofcom needs some freedom of manoeuvre to carry out its duties".
He added:It is tempting, to shift metaphor, to see Ofcom as a Christmas tree on which to hang one's favourite decoration".
It had not occurred to me to compare amendments tabled in either House with Christmas decorations, thus suggesting that they are in any way decorative. Most are usually anything but, and they are not intended to be; they are usually rather ugly and not well framed.
The noble Lord's third point was one of great importance:We have a real opportunity to look afresh at the way we do regulation".—[Official Report, 25/3/03; cols. 683–4.]
Anyone ready and able to look again at the way we do regulation must be someone we would cheer to the echo and welcome with the utmost enthusiasm. When 325 considering the morass of regulation that is shunted through Parliament day after day and week after week, no one could suggest that we should be proud of it. I wish the noble Lord, Lord Currie, well, in particular as regards his fulfilment of that promise.
The last of the quotations I wish to cite from the noble Lord is one that I believe to be singularly important. As Bills drag their weary way through Parliament, the point made by the noble Lord, at col. 684, is one that we rather ignore:But Ofcom has been long in the making and this has meant a lot of uncertainty for many in the communications sector as well as for the staff of the … regulatory bodies".
I believe those arguments to be unanswerable. I hope that they do much more than just puzzle the Government. The Government should pause, reflect, and see what can be done to meet them. Otherwise, the uncertainty and muddle we see already will become intolerable.
I hope that I have the Minister's attention because I have not finished yet. It is our habit in this country to set up organisations that are eminently satisfactory to those who conceived them, but nightmares to those who must operate them. I hope that the Government will take the opportunity in this short debate to say that they will look at the situation to see whether they can modify the Bill to accelerate its progress considerably; otherwise, the uncertainty will be very damaging, not least to themselves.
§ Lord McNally
A Committee stage is always a pilgrim's progress. The noble Lord, Lord Peyton, has invited us to pause at a friendly inn to refresh ourselves. That is a legitimate thing to do on a long journey, but I say to the Ministers that we should press on. It is a long, complicated process, but the Bill is very, very important. From the beginning, I have felt that it is as important as the 1920s legislation that set up the BBC, giving us, for the 20th century, the magnificent legacy of culture, democracy and communications that the BBC underpinned. I welcome our approach to this Bill. This Parliament is preparing a similar legacy for the 21st century. From the beginning, my approach has been to get right the balance between competition and the concerns of the citizen and the community.
I appreciate and welcome the thoroughness with which the Government have approached the task. Sitting on the committee chaired by the noble Lord, Lord Puttnam, was one of the most rewarding exercises of my political life. Pre-legislative scrutiny has been immeasurably advantageous in trying to get the Bill right. It has allowed the expertise outside Parliament and Whitehall to have an input. My approach and that of the committee, which I hope I have carried on to these Benches, is a consistent attempt to make a good Bill better, not to wreck it.
I was surprised that Ray Snoddy, in The Timeslast Saturday, suggested that procedure in this House might even cause the Bill to be withdrawn. That is absolute rubbish. So long as Ministers keep their nerve and this House keeps to its task, there is no reason why we should not complete the Committee stage in the 326 time allotted. As the Minister knows, I have indicated the full co-operation of these Benches in ensuring that we progress. I see the noble Lord, Lord Dubs, muttering from a sedentary position. It is important to get it right at this stage, which is why I welcome the pit stop proposed by the noble Lord, Lord Peyton.
Let us have an end to ministerial and Whips' briefings that we are in the business of wrecking the Bill. We are trying to improve it to get the balance right. If we get the balance wrong, the error will be there for many years to come. I appreciate the concerns about uncertainty. But this is not a private debate for the communications industry; it is about our culture and democracy. There is an onus on this House to get the balance right. Be of good heart, Ministers; keep progressing, and we will help you along the way.
§ 11.45 a.m.
§ Lord Thomson of Monifieth
I fully agree with the noble Lord about the importance of the Bill. I should tell him, since the BBC was created a long time before he was born, that no Bill was passed in either House of Parliament at that time. It was created by an Order in Council. That sustains some of the arguments put by the noble Lord, Lord Peyton.
§ Lord McNally
I am grateful to my noble friend for that stab in the back. I am not sure that that trust exists these days. But the point still remains: we are setting legislation that will exist for a very long time. We should not lose our nerve in trying to get it right.
§ Lord Evans of Temple Guiting
In response to the noble Lord, Lord McNally, I sit in the Whips' Office, and I know all the Ministers involved with this Bill. I have never heard one of them say that this House is trying to wreck the Bill. There are time frustrations, to which we must face up.
I am most grateful to the noble Lord, Lord Peyton, for his Motion to oppose. I am particularly grateful to him for warning me about it and sharing some of the substance of his points. I agree with much of what he said. But it might be important to tell noble Lords of our progress with this Bill. We have now had two days in Committee, during which time we have discussed 21 groups of amendments at an average of 33 minutes per group. There are 102 further groups tabled so far. Should we take anything like the length of time to debate the remaining groups that are listed so far, we would need a further 56 hours—just over nine more days in Committee, to say nothing of Report and Third Reading. I am sure that the Committee understands that no Bill can be given such a large proportion of a Session's legislative time. Having said that, we are very grateful to all Committee Members who have grouped amendments to reduce the length of the debate.
The thrust of the point made by the noble Lord, Lord Peyton, is that there is over-regulation. In the short time that I have been in this House, it is a theme about which I have heard the noble Lord talk often. I 327 agree with him. However, we should return to the policy document issued when the draft Bill was published. It states:Unnecessary regulations need to be removed wherever possible. By eliminating undue burdens on business we can drive innovation, increase investment, raise employment and bring better services to consumers".
The overall thrust of the Government's proposals in the draft Bill is, in their own assessment, deregulatory.
In some amendments, including those to which I spoke earlier, Committee Members, for all the good reasons raised by the noble Lord, Lord McNally, may be proposing to put further restrictions on Ofcom. At paragraph 83 the report of the Joint Committee on the Draft Communications Bill stated:Clause 6 seeks to give effect to this policy commitment, which is reflected in the title of the Clause—'Duty to publish and meet promptness standards'. The duty to publish promptness standards is evident in the provisions of the Clause; the duty to meet them is not so evident".
It is a personal thing, but, like the noble Lord, Lord Peyton of Yeovil, I believe strongly in trust rather than in mindless accountability. We have a new body that has a very good chairman and is likely to have a very good board, chief executive and infrastructure. We must have confidence that they will do the things we want them to do. We must have confidence that they will interpret not only the fact of the Bill but the spirit of the Bill. That is how I would like to see things happen.
§ Lord McNally
I understand the philosophy, but special pleading about the shortness of time seems a bit rum when, next week, we are going on another four days' holiday, 17 working days after we finished the Easter break. If we want to get business through the House, we cannot casually take days off when there is no reason to do so.
§ Viscount Astor
Is the noble Lord aware that it was his party and the noble and learned Lord the Leader of the House who changed the hours the House sits? If we had gone back to the previous arrangements, there would have been plenty of time, and we could have had as many hours as the noble Lord suggests.
§ Lord Tordoff
It was not the Opposition Front Bench that changed the hours; it was the House as a whole, on the recommendation of the Procedure Committee.
§ Lord Evans of Temple Guiting
What a can of worms I have opened. I was responding to the point made by the noble Lord, Lord Peyton of Yeovil. I do not wish to get drawn into a debate about a "casual" holiday next week, but I gather that the House has always taken a holiday at Whitsun, so it is not as if we have suddenly decided to have a couple of days off.
328 I had more or less finished what I wished to say. I am grateful to the noble Lord, Lord Peyton of Yeovil. I agree with much of what he said but, when he argues that the Bill is in danger of being over-regulatory, I disagree.
§ Lord Peyton of Yeovil
I was struck with grief and sorrow to see that the noble Lord, Lord McNally, could not go just an inch or so down the road of agreeing with me that long Bills are not particularly to be welcomed and that length is not a virtue in a Bill. I was pleased when the noble Lord, Lord Thomson of Monifieth, administered that well deserved stab in the back.
I am sorry that the noble Lord, Lord McNally, was absolutely unmoved by my references—friendly and constructive, I thought—to the noble Lord, Lord Currie of Marylebone, who will carry the burden of all that we do. My plea was that we should be careful before we tie the noble Lord down and increase the load that he must carry.
The Minister was gracious in what he said. I am glad that he acknowledges that there is no essence of a party manoeuvre here. However, he quoted a policy document. I must say that he was looking at something that is very unreliable. Policy documents are full of acceptable things, often quite inane. They are put out as a sort of decoration, and people have no intention of taking any notice of them at a later stage. I have great respect and regard for the Minister. I hope that he will not be led astray into thinking that he can rely on policy documents as a source of wisdom and general righteousness. They are nothing of the kind.
I am glad that I opposed the Question. I hope that it will not be the end of the matter. I hope that the Government will give serious thought to what they might do by way of modifying the Bill and leaving out some things that are contentious. That would, with the minimum of further delay, bring about the arrival on the scene of Ofcom.
§ Clause 8 agreed to.
§ [Amendment No. 38 not moved.]
§ Clause 9 agreed to.
§ Lord Ashley of Stoke
moved Amendment No. 39:After Clause 9, insert the following new clause—
"DUTY TO PROMOTE INCLUSIVE DESIGN AND DISABLED ACCESS
(1) It shall be the duty of OFCOM to take such steps, and to enter into such arrangements, as appear to them calculated—
- (a) to bring about a better awareness and understanding of inclusive design principles, techniques and standards among—
- (i) the designers and manufacturers of apparatus designed or adapted for use in connection with electronic communications services or associated facilities; and
- (ii) the providers of electronic communications services;
- (b) to encourage the designers, manufacturers and service providers mentioned in paragraph (a) to adopt inclusive design principles and techniques in the development of new apparatus, facilities and services; and
- (c) to bring about a better public awareness and understanding of inclusive design in relation to electronic communications apparatus, facilities and services.(2) It shall he the duty of OFCOM to encourage electronic communications network operators to co-operate with—
- (a) the manufacturers of apparatus designed or adapted for use in connection with electronic communications services or associated facilities; and
- (b) the manufacturers of assistive devices for disabled people, in order to facilitate access by disabled users to electronic communications services.(3) References in this section to "inclusive design" are references to designs which result in apparatus and services which are accessible to, and usable by, as many people as reasonably possible, and to the greatest extent possible, without the need for special adaptation or specialised design.(4) References in this section to "electronic communications services" includes web sites.
The noble Lord said: "Inclusive design" is a formal term for a simple but important concept. It means the designing of products and services so as deliberately to make them available or accessible to as many different users as possible. In that context it is aimed at enabling disabled people to use communications equipment and services immediately and without adaptation.
Without inclusive design, disabled people are excluded and frustrated. In addition, they face extra costs. Video recorders are a good example: had they been inclusively designed originally, they would automatically have recorded sub-titles, and deaf people would have been spared years of frustration and extra cost. It did not happen. Deaf people have been deprived of video recordings for years because of the failure to have inclusive design.
Inclusive design is an effective, cost-efficient way of providing for disabled people. If any required features are included in the original design, rather than added on later, the cost is often minimal. A Phone Ability study, carried out in 1999, found that 20 out of 44 features required to make telephones more accessible could have been added initially at no, or minimal, cost.
Design with disabled use in mind often benefits other people, not just disabled people. For example, an Easy TV study for the Independent Television Commission, the Consumers' Association and the Design Council found that all users had problems with digital equipment—I know I do. They wanted fewer buttons, clearer labelling on remote controls, quicker responses to pressing the buttons and simpler user manuals. All those features are important to people with impaired eyesight and other disabilities.
Technological developments are racing ahead, leaving many people behind. Almost daily—certainly, almost weekly—new products emerge aimed at confident, fit, lively young people who thrive on complexity and sophistication. The rest of us struggle and ask our grandchildren for assistance. I am always begging my grandchildren to explain things, and they 330 do it confidently and with no problems. Inclusive design would mitigate and alleviate many such difficulties. It is wrong in principle and unnecessary in practice to have a divide between the young, quick and nimble and those of us who are a bit slower, possibly less agile or, perhaps, with a disability.
I conclude by making clear to my noble friend the Minister that the amendment would not allow or encourage Ofcom to regulate or set standards in the field. That would be inappropriate. Instead, the amendment would give Ofcom a responsibility to promote inclusive design so as to combat exclusion and make equipment more accessible and usable. It would also ensure that Ofcom encouraged co-operation between network operators and the manufacturers of relevant equipment.
I hope that my noble friend will give a sympathetic response. The issue is of enormous importance to many disabled people, quite apart from the general benefits that would accrue from pursuing the policy. I beg to move.
§ Lord Addington
The noble Lord has very ably introduced this amendment, which I think is one of the potentially most useful amendments for the disabled. As the noble Lord said, it will also be helpful for those people who are dealing with a barrage of new technology. My daughter is now eight months old and has realised that the video recorder will look wonderful with toast inside it. I am sure that within a year she will be programming it herself. But if we can make it so that these devices are easier to use, we shall not be dependent upon the current generation of crawlers to show us how to use the next generation of machines.
The idea that we promote usability in a body such as Ofcom is very sensible. Computers, and anything with computing design, generally have spare capacity to take on board many new projects and, thus, make use of existing capacity. This amendment also ties in with the Disability Discrimination Act, which refers to the concept of reasonableness when making some kind of allowance. Such a duty is probably hinted at in existing law. We are trying to build on what we have and to do as much as we reasonably can to ensure that the new technology is usable by everyone. Surely that is at least hinted at by the amendment.
I suggest that if the amendment is not acceptable, the Government should look long and hard at ensuring that capacity to promote inclusive design is somewhere within the legal framework. That would head off many problems and would probably save money; for example, if disabled people are to have access to multi-media, expensive adaptations would not have to be made. The intentions of the amendment are good, but if this is not the right form I should be very interested to hear what is.
§ Baroness Buscombe
I, too, support the amendment, having added my name to those of the noble Lords, Lord Ashley of Stoke and Lord Addington and the 331 noble Baroness, Lady Darcy de Knayth. While we welcome Clause 3(3)(i), which states that Ofcom must have regard to,the needs of persons with disabilities, of the elderly and of those on low incomes",
we question whether the clause goes far enough to specify some of the key aspects of need pertinent to broadcasting and telecommunications if those with disabilities, the elderly and those on low incomes are to access and enjoy the benefits of this fast-moving sector.
The amendment, as we have heard so eloquently from the noble Lord, Lord Ashley of Stoke, deals specifically with design and usability of telecoms and broadcasting equipment. As other noble Lords have said. in practice we are all keen on more ease of application of apparatus. I must admit that I often find it extremely difficult to utilise properly the television zapper. I now have a fantastic and amazing new telephone which has many capabilities, but I find myself carrying around a rather weighty book of instructions. For some of us, there is no question that the more advanced the technology, the more complicated it becomes.
I think that, to a large extent, it is generational. It is always my children teaching me how to use this equipment. That said, there is no doubt a need to develop a much greater awareness in terms of usability and the understanding of inclusive design in relation to electronic communications, apparatus, facilities and services.
While this is already happening to some extent, we believe that it would be very helpful to underpin the objective by placing this amendment on the face of the Bill. Therefore, we strongly support the amendment. It may be said that it is not profitable to develop equipment designed specifically for certain disabilities. My response is that it would be extremely profitable. Indeed, it is profitable, as is often shown by equipment designed for mainstream use which everyone can access, use efficiently and enjoy.
§ Baroness Howe of Idlicote
I, too, admit to being part of the club which finds the different techniques and the complications of accessing the parts of the media which one wants to access particularly irritating. I certainly support the proposed new clause, which I shall illustrate by reference to the needs of those who are hard of hearing and deaf. These people are the largest disabled group in the UK. In order for them to enjoy the kind of media literacy to be debated in the next clause, it is essential that Ofcom is responsible for ensuring that access is both universal and of a high quality as well as easy. As we have heard, the costs are fairly small. I believe subtitling costs in the region of £400 per hour and is decreasing.
Sadly, hearing loss increases with age. Fifty per cent of people over 60 have a hearing loss. Yet there is considerable evidence that many who would benefit, including the over-60s, do not know how to access the service. Worryingly, use of subtitles does not increase 332 with age. That is almost certainly due to lack of awareness even when such a service is available. Another group of under-users are the 50,000 people whose first language is British sign language. Of course, many of those people do not have the literary skills to follow subtitles.
For Ofcom to be given a specific duty to ensure that broadcasters promote this kind of service and, particularly, how to use it—information that is currently almost non-existent—would certainly be consistent with the objectives of the Bill to promote media literacy and would make a considerable difference to people's lives. Therefore, I hope that this will be taken into account; that this clause will be accepted in principle, whether it can be accepted in totality or not; and that this group of people, who have an added need for access to the type of information that the rest of us perhaps take for granted, are properly prioritised.
§ The Lord Bishop of Manchester
I agree that this is a significant amendment. The interventions made by the noble Lord, Lord Ashley, on these matters are always pertinent. What he said today goes to the heart of the issues about disabled access to broadcasting and communication technology. I do not wish to add any detail to what has been said but I want to record the support from these Benches for the valuable points that have been made. In addition to the points made by the noble Lord, Lord Ashley, the noble Baroness. Lady Buscombe, spoke about wishing to explore further important issues about disabled access and inclusive design. The noble Baroness. Lady Howe, spoke on behalf of the deaf. These are all issues which I am very aware of in my own ministry among "dear' churches over the past 10 years. I support the amendment from these Benches.
Lord Wade of Chorlton: I support the amendment, but perhaps I may draw the attention of the Minister to the recent report of your Lordships' Science and Technology Select Committee into the future of microprocessing, which identifies the technology that now exists for the development of what we call in our report, "ambient computing". It makes possible all that has been suggested should be done to be done very quickly if there is encouragement for the development of the technology. We also draw attention to the importance of the Government as a customer for these new developments. I recommend that the Minister has a glance at our report.
§ Lord McIntosh of Haringey
My apologies for any delay. My noble friend Lord Ashley is without his Palantype operator. I gave him a copy of my closing speech and discovered that my remaining copy was incomplete. I am glad to have the complete copy returned.
§ Lord McNally
If the Minister were to do that for the whole of the Committee we might make the progress we desire.
§ Lord McIntosh of Haringey
I remember occasions when we were in Opposition when David Blunkett 333 used to receive Braille discs. The discs enabled us to receive government statements rather earlier than we otherwise would have. They were very helpful.
I was somewhat dismissive of earlier amendments relating to disabilities but I am certainly not dismissive of this one. It makes a real contribution to the debate and I am grateful to my noble friend Lord Ashley for bringing it forward.
There are two elements to the proposed new clause. First, it seeks to impose a duty in relation to inclusive design; secondly, it seeks to impose a duty to encourage co-operation between network operators and relevant manufacturers to facilitate access by disabled users to electronic communications services.
As to the first element, we are sympathetic to the aim of encouraging designers and manufacturers to consider the needs and preferences of all potential customers and to consider the advantages of designing equipment so that it is suitable for use by the widest practical range of users. But, as my noble friend Lord Ashley said, this should be pursued through encouragement, not regulation.
Design is an important aspect of innovation. We are strongly in favour of promoting innovation in electronic communications in all other fields—I shall draw the attention of officials to the point made by the noble Lord, Lord Wade of Chorlton—but to attempt to regulate creative and inventive processes such as design would be counter-productive and damaging to the growth of the sector.
The Government are very active in the field of inclusive design and believe that they are better placed to act than a national regulator. We have previously supported the work of the advisory committee, TCAM, which has, within the framework of the Radio and Telecommunications Terminal Equipment Directive, been advising the European Commission on how to improve access for disabled users.
We shall pursue these issues positively through the work of the new committee, INCOM, which the Commission has established to look at these issues within the framework of the four directives implemented by Part 2 of the Bill. As the title of the new committee refers specifically to "inclusive communications", it is clear that the encouragement of inclusive design is on its agenda.
We are not sure that Ofcom is particularly well placed to take this work forward or that we should give it a particular duty in this area. Inclusive design is a matter for manufacturers, not regulation, and the role of encouraging inclusive design is best performed by government, which has broader relationships with manufacturers and other people concerned. So, although we are not able to accept the first part of the amendment as it stands, we shall look at the contribution that Ofcom can make on inclusive design and consider whether there should be, with due respect to the noble Lord, Lord Peyton, some addition to Ofcom's duties consistent with the rest of its responsibilities.
334 The second part of the amendment is partly based on Recital 8 of the framework directive. We are confident that, because of the provision in Clause 3(3)(i), to which I have already referred, it is unnecessary to have regard to the needs of disabled persons. In so far as Ofcom can take practical steps to encourage co-operation between network operators and manufacturers as envisaged by the recital, we are in no doubt that the general duty we have provided will lead it to do so.
There are one or two other detailed difficulties in the amendment but I do not need to go into them. I can sum up by saying that, although we cannot accept the amendment as it stands, we shall look again at the question of inclusive design in the light of the points that have been made today.
§ 12.15 p.m.
§ Lord Ashley of Stoke
I am grateful to my noble friend for his original and imaginative consideration of the special difficulties we face. I thank all noble Lords who have spoken in the debate. As the Minister will have heard, they are all supportive of the amendment and have underlined the importance of inclusive design. I am glad that my noble friend has offered to look again at the issue. He has outlined the Government's difficulties—which I appreciate—but I am sure that we can establish some kind of modus vivendiand move forward on this very important principle which will help millions of disabled people. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 10 [Duty to promote media literacy]:
§ Baroness Buscombe
moved Amendment No. 40:Page 11, line 15, leave out paragraph (e).
The noble Baroness said: This is a probing amendment. We believe that Clause 10(1)(e) is ambiguous. We entirely support media literacy—we have supported it throughout the passage of the Bill, both in another place and in your Lordships' House—but there is one issue on which we seek further clarification.
Media literacy should, by definition, refer only to the promotion of public understanding of the workings of media services and how best to access them —for example, an understanding of how to use the Internet and parental control options. However, Clause 10(1)(e) states that it shall be the duty of Ofcom,to encourage the development and use of technologies and systems for regulating access",
to electronic media content, and for,facilitating control over what material is received".
It is those words that we are concerned about.
It is not clear what kind of "encouragement" Ofcom may undertake in this area or whether the provision would allow it to use its considerable powers to "pick winners" in terms of the technologies or systems used in the market place; or, indeed, whether it will allow Ofcom to impose on electronic communications networks or services, through its broadcasting licences, requirements that may adversely effect them.
335 For example, under Clause 10(1)(e), Ofcom's duty will require it to encourage the use of technologies and systems for regulating access to content that it determines are both,effective and easy to use".
But Ofcom's judgment of the effectiveness or ease of use of particular technologies and systems may differ from that of others or be superseded by fast-moving developments in technologies and services; or its preferred standards or systems may be incompatible with those already in use and require changes that damage the investments and operations of market players.
The intention behind the provision is no doubt laudable—who would not wish to support effective and easy-to-use technologies and systems for facilitating access and control over content in the digital world?—but it is another matter if the regulating body can substitute its judgment over that of the market in this area. Indeed, the regulator would not need to impose particular requirements on operators or licensees to tilt the playing field if, for instance, Ofcom chose to "encourage" the development or use of particular technologies or systems through its own research and development or funding initiatives in ways that affected the investments and operations of others and worked against rather than with the grain of the market place.
I should be grateful if the Minister would confirm that it is not the Government's intention that Ofcom should be able to promote particular technologies over others, or to impose requirements that could have adverse effects such as those I have mentioned in pursuit of its media literacy objectives. It would also be helpful to know why, if the existing provision does not indeed allow such intervention, Clause 10(1)(e) should not be deleted from the Bill. I beg to move.
§ Lord Avebury
There is a great deal of force in what the noble Baroness said. We believe that there is a distinction between paragraph (e) and the remainder of the clause. In that paragraph Ofcom is given an active role in encouraging the development and use of technologies and systems as opposed to regulating the activities of other people doing those things. Paragraphs (a) to (d) all give Ofcom the duty to bring about, or to encourage others to bring about, various aspects of public awareness, but paragraph (e) is directly concerned not with public awareness but with the actual means of access and of facilitating control.
The Explanatory Notes state that these could include Internet filtering systems, rating systems by which programmes and videos are given a classification that indicates the nature of their content, and other technical devices for access, such as PIN-based systems. The notes envisage a role for Ofcom in the promotion of these systems and in the development of related educational materials. There are already Internet filtering systems and I doubt whether it is sensible for Ofcom to get involved in the global marketplace, as it would have to be to influence that 336 technology. For Ofcom to favour a particular system to pick winners, as the noble Baroness pointed out, would be to risk shutting off the UK from the developments that might take place in the rest of the world, particularly in the US, and that would be extremely foolish. Technical devices for access and PIN-based systems in particular are matters for the industry rather than the regulator. Going down that route might lead to the point of saying that even things such as modems, modem drivers, routers, 802.11 add-on cards and anything else which makes it easier for consumers to gain access to web-based material should be susceptible to the encouragement of the regulator under this heading.
Rating systems are another matter, because they are not likely to be developed or agreed voluntarily by communications providers. If the subsection were more tightly drawn to cover this problem alone, it could be useful, but we think that as it stands it is far too broad.
§ Baroness Howe of Idlicote
I support the amendment. Clause 10 is to be welcomed; it imposes a fairly wide duty on Ofcom, but this amendment would make it wider. On the actual scope of duty to promote media literacy, how far does it extend, or is it intended to extend, to children? I assume it is intended to extend to parents, as the noble Baroness, Lady Buscombe, said.
It is interesting to note that little, if any, attention is given to the particular needs of children in this or, indeed, any part of the Bill. I have been able to see only one reference in the standards code covered in Clause 312(2), and that is to those under 18, so it is important to have an answer. Certainly, Ofcom will need to encourage, promote and consolidate best practice because it is clear that the multiplicity of such guidelines already developed by government departments, ISPs or lobby agencies have not yet reached families.
Media education, particularly for the young, is probably the most crucial component for the future. So far, what little there is has taken place in an overcrowded curriculum. The new citizenship course has a small element built in, but much more is and will be needed.
We have all acknowledged, at least tacitly, the growing influence of the electronic communications in our lives, not just our lives as we live them, but our culture, our attitudes and sometimes even our behaviour. We need think back only a few years to the impact of 9/11.
Coming back to the importance of instilling values in the young, perhaps the most important is a degree of scepticism about what they watch, certainly in the citizenship course. As one teacher put it, the easily led or unwary citizen is disempowered. For that teacher,media understanding and awareness are a significant and possibly essential aspect of political literacyand what being part of society is about. That is why the ability to evaluate the message being sold in a programme and to detect, for example, any vested interest, will be increasingly important.
337 In the very early days of television, I remember hearing Malcolm Muggeridge0 say in a discussion programme that he could make two television programmes on exactly the same issue which would lead the viewer to opposite conclusions. A rather chilling thought, despite the reputation for objectivity and impartiality enjoyed by British broadcasting, about the power, if unregulated, of the moving image combined with the spoken word.
§ Baroness Blackstone
I am very glad that the noble Baroness, Lady Buscombe, recognises the importance of Ofcom's duty to promote media literacy. This is a positive step towards empowering people. Let me say to the noble Baroness, Lady Howe, that of course "people" means "children". Of course children are included when it comes to taking greater responsibility for their use of the electronic media.
Media literacy is part of the citizenship curriculum. We would expect schools to take this issue and make sure that young people are given the opportunity to become more media literate. But I do not really think that we need a specific reference to children on the face of the Bill. This is exactly the sort of issue that the noble Lord, Lord Peyton, referred to earlier, if I can say that to the noble Baroness, Lady Howe.
I recognise that there was some concern in relation to the draft Bill that Ofcom should not become involved in the development of systems to support its media literacy duty. The drafting has been tightened up to make it clear that Ofcom's role is to encourage others to do so. That might be broadcasters, the electronics industry or software designers.
It is important that Ofcom retains its duty to encourage the development and use of systems and technologies to help people regulate what they view. It is equally important that these systems are effective and easy to use. There are many systems available; there is also a great deal of confusion about what they do and how they work. We see Ofcom's role as a facilitator. It is important that it retains the role of bringing stakeholders together and encouraging the development of tools which are likely to he increasingly important to the public.
I can give the noble Baroness the reassurance that I think she wants. This is not about picking winners; it would not be right for the regulator to start trying to tilt the playing field in the direction of any particular technology. The noble Lord, Lord Avebury, referred to that too.
If the noble Baroness's amendment were accepted—and she made it clear that it was a probing amendment—Ofcom would have no duty to encourage the development of easy-to-use systems for regulating access which are very important tools with which to protect the public, particularly children, from unsuitable contents. I hope I have given the noble Baroness the reassurance she wants.
§ Baroness Buscombe
I thank the Minister very much for her response. I am grateful to the noble Baroness, Lady Howe of Idlicote, for her support. 338 Notwithstanding the fact that I entirely accept the Minister's comments that children come within the meaning of the word "people", it is helpful to have that clear in Hansard, as much of this relates to children and the next generation. It is helpful to have had that discussion.
I also thank the noble Lord, Lord Avebury, for his support and contribution to the debate. It is an important area although this is, as I made clear, a probing amendment. I am grateful to the Minister for her reassurance that it is not the role of Ofcom, nor should it be, to tilt the playing field in the direction of any particular technology or manufacturer of that technology. We do not want the clause deleted, as that would negate the possibility of developing the use of technologies and systems for media literacy. On that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 41 not moved.]
§ Clause 10 agreed to.
§ [Amendment No. 42 not moved.]
§ Clause 11 [Duty to establish and maintain Contort Board]:
§ 12.30 p.m.
§ Lord McNally
moved Amendment No. 43:Page 11, line 31, after "OFCOM:" insert—(aa) a member who is a non-executive member of OFCOM but is not either the chairman of OFCOM or the chairman of the content board:The noble Lord said: We move to the clauses setting out the content board. Before we all get carried away with Peytonitis, let me state one important thing. We have had the experience that, if we do not write specific powers and duties into a Bill, very clever lawyers afterwards can say, "It's not in the Bill, so the regulator can't or shouldn't do it". Ministers should not get too attracted to the idea that broadbrush or light legislation will deliver what Parliament wants.
As for my noble friend Lord Thomson's idea of government by Orders in Council, No. 10 will probably be studying his remarks as a possible new initiative. Perhaps that is the third way.
I shall be brief because we have already heard the arguments, certainly to the amendments in my name, in the pre-legislative Select Committee. The amendment would give a central role to the content board. Our request for an extra member is so that content matters do not become only the isolated responsibility of a single member who is simply seen as Mr or Mrs Content. It would mean that there was a body of weight on the main board.
The amendments also seek to give the content board executive teeth—probably to the chagrin of the noble Lord, Lord Peyton. Tessa Jowell said earlier that she wanted the executive and advisory balance to develop over time. It is all very well to have such faith in organic growth. but it is just as well to have those responsibilities written in from the beginning so that the content board has real weight within the Ofcom structure. That would allow the main board to 339 concentrate on strategic issues and economic regulation while giving the content board a degree of autonomy and authority. To have that autonomy and authority, however, it must have powers and teeth. Through that, it would not become mere window-dressing, as some have feared, but a body in which external lay influences and authorities can have real confidence. I beg to move.
§ Baroness Buscombe
I notice that my noble friend Lord Peyton of Yeovil is not in his place to speak to Amendment No. 43A, so I shall speak to Amendments Nos. 44, 50, 53, 58 and 60. I also wish to speak in support of Amendment No. 57.
All the amendments relate to the content board. It seems rather strange that we are here debating the make-up and constituents of the content board and their duties. A newspaper article tells me that the content board—albeit the shadow content board— is holding its inaugural meeting today. I find it extraordinary that we are considering legislation that is still in draft form, as a Bill, when a content board is already in place. It will be argued that it is only a shadow board, but it has gone ahead and been sorted out before we have had a chance to debate these clauses. That said, I wish the board well with its inaugural meeting.
Amendment No. 44 seeks to ensure that, as far as is practicable, the membership of the content board shall be representative of the full range of significant political, cultural and religious attitudes in the UK. As the Bill stands, there are few constraints on whom Ofcom may appoint to the content board, subject to very general principles of good governance.
The make-up of the board—that is, its constituents—is particularly important, because the Bill envisages Ofcom's role primarily as a commercial regulator, which is a very different function to that of broadcasting regulation. The argument that Ofcom should be left to its own devices does not stand in this area. Principles such as "due impartiality" are timeless and have little to do with the rapidly changing commercial market place that the Bill is designed to address. For example, on issues of political opinion, religious belief or cultural values, many people might find themselves in a minority, so the solution is increased access for minority groups. The legal framework to achieve that is already in place—due impartiality and balance—but the problem is to make those principles work in a pluralistic society. The amendment would ensure that Ofcom selects a content board that is minded to give concepts such as balance and due impartiality real meaning as it sets about its task of reviewing broadcasting codes of conduct for a pluralistic society.
I turn to Amendment No. 50. Throughout the passage of the Bill, confusion has arisen as to the nature of the functions conferred on the content board. The amendment would ensure that, if a function were bestowed on the content board, the main board would not concurrently exercise its jurisdiction. As the Bill stands, there is no mechanism 340 to prohibit this duplication; both boards could effectively exercise immediate responsibility on a particular matter. The amendment does not propose that ultimate and determinative responsibility should be transferred to the content board, only that the limitations within which it is to operate should be clearly defined.
In another place the Minister for Broadcasting referred to the possibility that Ofcom and its content board would work together to establish a memorandum of understanding—or something similar. We do not believe that the informal approach to the issue adopted by the Government addresses the significant concerns of businesses facing double jeopardy. The confines within which each board functions must be established in the Bill. Our amendment makes clear those confines and so avoids the possibility of confusion and, worse still, of double jeopardy.
I turn now to Amendments Nos. 53 and 58. Amendment No. 53 would give the content board a duty to evaluate what impact its actions have on business competitiveness. We have in mind in particular businesses that use broadcasting—or anything that will come under the remit of the content board—as a central part of its functioning. For example, a number of businesses are looking to use interactive digital television as a medium for communicating with customers, and it is unclear what the role of the content board will be in such cases. Will the content board be able to rule on issues even if that leads to the distortion of markets and companies being put out of business? If so, what assurance do we have that the content board even took that into consideration when making its decision?
The amendment has the support of the CBI, which is concerned that UK business will not be a priority for Ofcom. What is worrying is that there is a consumer panel and content board but business is not represented in the same way in Ofcom and will not therefore have the clout to resist measures that result in an anti-competitive outcome. With that in mind, it is all the more important to include some detail in the Bill on the extent of the content board's intended powers so that there is no chance of their being misapplied in the future.
"Content" is an integral part of the commercial service offering of broadcasting companies and companies producing multimedia services, but the changing nature of the market could mean that in future it will represent a key part of a much wider variety of businesses. Therefore we believe that a clause should be added to ensure that the content board has to take into account the impact of its decisions on companies that both now and into the future will use anything that comes under its remit as an integral part of their commercial service offerings.
Amendment No. 58 is an attempt to rectify the imbalance which I outlined concerning the absence of a formal body or procedure whereby business interests are represented on Ofcom. It states that the content board's role of keeping OFCOM informed about, 341the different interests and other factors",in Clause 12(4) which are relevant to the carrying out of Ofcom's functions should include information on how business competitiveness is or could be affected. We believe that that would go some way to ensuring that Ofcom is kept in touch with business and ensure that the regulator is aware of the potential impact of any regulations on competitiveness in this increasingly important area of economic activity and growth.
Without the inclusion of this amendment in the Bill, there is a real danger that Ofcom, perhaps without realising, will do pointless damage to areas of British business owing to a lack of representation and information on the interaction of Ofcom's activities and the business community. We believe that our amendment would rectify that omission.
Amendment No. 60 enables the content board to give informed advice on the provision and quality of content services for disabled and older people. Disabled and older viewers form a major public interest in relation to television and radio content yet they are not even mentioned in Clause 12. If the content board is to function effectively and perform its duties, this interest group must be effectively represented. We believe that the appointment of Kevin Carey, who is visually impaired, to the shadow Ofcom content board is very welcome. Kevin's experience as a director of Humanity and as vice-chairman of the RNIB has seen him work determinedly for the inclusion of all in the information society. We hope that the content board will, with his influence, work to champion the interests of disabled people.
Amendment No. 60 seeks to provide a mechanism for ensuring that the content board is able to derive maximum benefit for those who may be disadvantaged within broadcasting. It would grant Ofcom the power to establish a committee or panel focusing on the interests of people with disabilities or special needs resulting from age or personal circumstance. For example, the content board will have a role in monitoring the quality of specific content services designed to maximise visually impaired and deaf people's enjoyment of television programmes. Those services also benefit older people and those with learning difficulties. In addition, the content board's function with regard to media literacy must target disabled people and other excluded groups as a priority. For that it will need an effective, co-ordinated input with a committee or panel dedicated to those interests. Such a committee or panel would greatly assist the content board in the execution of those functions. The profile of such initiatives must remain high and effectual.
Finally, I should like to speak in support of Amendment No. 57, tabled by my noble friend Lord Crickhowell along with the noble Lords, Lord Puttnam, Lord McNally and Lord Hussey of North Bradley. As we heard, this provision grants the content board the power to publish information as it feels appropriate, reflecting the recommendation of Professor Eric Barendt given in evidence to the Joint Scrutiny Committee. While we welcome the creation of a content board. the confines within which the 342 board will operate should be clearly defined. A framework needs to be established to ensure that the board enjoys public confidence and legitimacy. There has been considerable debate regarding its potential executive or advisory responsibilities and the interrelationship with Ofcom to which I have already alluded.
We agree that ultimate responsibility for the content board should rest with Ofcom, but are concerned that the position of the board within the structure of the main regulator has not been properly considered. By publishing its views about conclusions and recommendations regarding its functions, the content board would enjoy greater popular confidence. That would allow a more lively and vigorous public debate on issues that directly interest and concern all members of society. We believe that this amendment provides a mechanism through which the functions of the content board will become less ambiguous and more transparent.
§ 12.45 p.m.
§ Lord Gordon of Strathblane
I should like to speak briefly to Amendment No. 45 in my name which seeks the deletion of subsection (8). I do so not because I object to the provisions of subsection (8), but because it seems that they are subsumed in the more general provision of subsection (9) which requires Ofcom to satisfy itself that the person to be appointed will not have a,financial or other interest which would be likely prejudicially to affect the carrying out by him … of his functions".
That seems perfectly adequate. I see no reason uniquely to single out the BBC and Channel 4 and simply to leave, for example, the MD of Sky, Channel 3 or an independent radio company for that matter to be caught under the provisions of subsection (9).
§ Lord Addington
I should like very briefly to add my support particularly for Amendment No. 60. I must apologise to the noble Baroness for not putting my name to the amendment— I think it a very good idea. It proposes establishing an advisory panel that actually knows about the issues affecting the various groups which can be sidelined. That is very important. We have had many discussions highlighting the fact that one such person on a board is probably not enough for the disability movement, and I think that the same applies to other groups. I hope that the Government can reassure us that there will be a mechanism in place to ensure adequate representation. One person on a board is simply not enough. One person often does not know enough about other types of disability. As I have said before, I know that from personal experience, having held the disability portfolio. I have often had to seek the expertise of others on specific issues and groups. I therefore hope that the provision will be accepted.
§ Lord Puttnam
I rise to speak in particular to Amendments Nos. 43 and 57, which I think deal with essentially the same problem. The Government must by now be very aware that there are enormous 343 anxieties in various communities—the noble Baroness, Lady Buscombe, has just mentioned that the business community has its own anxieties—about the role and responsibility of the content board. We feel that Amendments Nos. 43 and 57 are totally sensible. Amendment No. 43 is sensible and is effectively already operating, as two non-executive members of the board will he members of the content board, which is just as it should be. If there is anxiety, surely it is in the Government's interest to alleviate it whenever and wherever possible. Here is a marvellous opportunity, at no cost and with no dispute, to put on the face of the Bill that the content board will in perpetuity contain at least two non-executive members of the Ofcom board.
Amendment No. 57 deals with the right to publish. For all the reasons set out by the noble Baroness, Lady Buscombe, it is common sense that the transparency and reasoning behind the decisions of the content board should he made evident on at least an annual basis. It is the type of reassurance that every community wants and is entitled to have.
All of that brings us back to Clause 3. These anxieties exist fundamentally because of the confusion in Clause 3 as to whether Ofcom's decision will be primarily market driven or citizen driven. Here is a marvellous opportunity to make clear to everyone what is driving these decisions.
§ The Lord Bishop of Manchester
I should like to speak briefly to Amendments Nos. 44, 60, 46, 48 and 57. I am perplexed about how Ofcom can be challenged over its failure to have regard to the desirability of reflecting the interests and opinions of people living in different parts of the UK. How is such failure to be measured? On what basis would evidence be produced? So I support the replacement of what seems to me to be a rather otiose provision with a provision that seeks to distil something of the essence of our community and our rich cultural and religious identity, and for that to be reflected in the make-up of the content board. I think that the inclusion of the word "significant" makes that a reasonable and achievable task. I think that Amendment No. 44 achieves a simple statement of key attitudes and sensibilities that colour views of broadcast content.
Amendment No. 60 recognises that those needs must be spelled out. This provision is about those who are on the margins. We talk much and often about being an inclusive society, but, as we have already been reminded this morning, we must also remember to include the less visible, the young, the old, the sick and the housebound elderly. I give an example from a religious viewpoint. Very often people who are housebound, and therefore often invisible to most of us, are, as I know from my pastoral experience, among the most devoted audiences of religious provision and broadcast worship on television. This is no fringe sport. "Songs of Praise" shown on peak time regularly attracts an audience of over 5 million. Despite the unjustified complaints that have been made about ITV's religious remit and the showing of short services 344 of worship, "My Favourite Hymns" on a Sunday has a smaller but still strong audience, particularly among the group that I have mentioned.
Television worship has declined in the past three years whereas radio worship has not: yet I know directly from many elderly people, as well as from broadcasters, that the elderly and disabled find the presence of television worship a very great comfort. Many of them also find it easier to operate television than radio. These are issues that can be easily overlooked by those of us who are not disabled or have special needs. Therefore, a special committee or panel to keep in mind those kind of issues could he very helpful.
I turn to Amendments Nos. 46, 48 and 57. It is most welcome that there is to be a separate content board within Ofcom, but to be effective it must have independence from government and industry. I cite what the noble Lord. Lord Dubs—who is not present at the moment—said at the Broadcasting Standards Commission annual review last year.
I believe that the content board's independence is buttressed by giving it the statutory remit set out in Amendments Nos. 46 and 48 rather than one determined wholly by Ofcom. I believe that that is also true of Amendment No. 57 which gives the content board an independent voice rather than one subject to Ofcom's own communications needs and imperatives. I rather suspect that if Ofcom is to have the task of holding competitive freedom and quality regulation in creative tension, these competing demands will need to have their own voices. But it is not just independent voices that are needed. Especially when the reporting cycle for Ofcom is up to five years, voices are needed that can hold a broadcaster to account while the recollection of the broadcast is still vivid in the public memory.
These amendments would reassure the public that the concerns of the listener and the viewer about content, which have certainly been addressed often to the Broadcasting Standards Commission. will still be seen to matter to the regulator.
§ Lord Phillips of Sudbury
I wish to support Amendment No. 43. It seems to me to be almost common sense to bind in, and have horizontal co-ordination between, Ofcom and the content board in the manner in which they are devised. I should also like to speak in favour of Amendment No. 44, in the names of the noble Baronesses, Lady Buscombe and Lady Wilcox. I am not sure whether the precise formulation of the intent is perfect but the general intention of the content board to ensure that those matters are considered, by itself in particular, makes much sense to me and addresses a considerable amount of anxiety about imbalance in the Bill in terms of underrating political, cultural and religious areas of concern.
I am afraid that I at least wonder at, and probably oppose, Amendments Nos. 53 and 58, in the names of the noble Baronesses, Lady Buscombe and Lady Wilcox. It seems to me that to require the content 345 board to have special regard to business interests in the manner prescribed in the amendments is unnecessary and imbalancing. I say that with regard to the keystone Clause 3 which tries to establish a balance between business and non-business issues, if I may put it so simply. Therefore, I doubt the wisdom of those two amendments.
On the other hand, I strongly endorse Amendment No. 57. It seems to me self-obviously virtuous to allow the content board to publish information. It should do a great deal of that. Finally, I support Amendment No. 60, in the name of the noble Baronesses, Lady Buscombe and Lady Wilcox, and the noble Lord, Lord Luke, which seems to me to be meritorious.
§ Lord Brooke of Sutton Mandeville
I should clarify that I have no delegated authority from my noble friend Lord Peyton to represent him in the context of his Amendment No. 43A. Even if I were a delegated proxy for my noble friend. I should be a pale simulacrum of him although I can guess what his purpose was in putting down Amendment No. 43A. In his absence I ask a probing question of the Minister; namely, to tell us what purpose Clause 11(6), which my noble friend wishes to delete, fulfils. Is it the sort of copper bottoming to which the noble Lord, Lord McNally, referred as an amulet against marauding lawyers? If that is not its purpose, Clause 11(6) carries the unfortunate implication that the Government believe that it might slip Ofcom's mind to carry out the provisions of Clauses 11(4) and 11(5), in which case they would effectively become academic within the Bill.
§ Baroness Blackstone
I say to the noble Baroness, Lady Buscombe, that I believe she would be critical were the preparation not to be begun that is needed to ensure that Ofcom and, indeed, all its constituent parts, are ready to function on the prescribed date. No functions have yet been conferred on the content board nor are such functions predetermined while the Bill is still being debated in this House. It is a matter of the shadow board meeting and starting preparatory work. I am sure that the noble Baroness would welcome that.
With one exception the Government resist the amendments in the group we are discussing, but I shall explain in some detail why we consider that the amendments, many of which lie within the grain of the Government's and Ofcom's thinking, should not form part of the primary legislation. I shall also move a minor government drafting amendment.
Ofcom is aware that it remains ultimately responsible and accountable for the work and decisions of the content board. That is the fundamental point which lies behind everything that I shall now say in response to individual amendments. The appointment of Richard Hooper and Sarah Nathan from the main Ofcom board, as chairman and deputy chairman respectively of the shadow content board, along with Kip Meek from the Ofcom executive, demonstrates Ofcom's commitment 346 to have the work of the content board fully within the ambit of the main board. I am sure that they will continue to make appointments with that in mind.
Amendment No. 43 reflects a recommendation made by the joint committee. In the government response we recognised that there was a great deal of merit in the committee's proposal, but we concluded that that did not need to be specified in the legislation. However, having listened to the debate today, I can still see the merit in the amendment, especially in the light of the increase in the size of the main board, following another recommendation of the joint committee. The Government will therefore consider bringing forward an amendment at Report stage to achieve what the noble Lord, Lord McNally, seeks. I say to the noble Lord—this is relevant to many of the amendments we are discussing—that the content board can clearly have executive functions in the sense that it can carry out Ofcom's content functions. It will not simply advise Ofcom. That is an important point to remember.
I turn to the amendment in the name of my noble friend Lord Gordon of Strathblane. Amendment No. 45 has the effect of removing one of the key provisions in Clause 11 which protects against conflicts of interest. I fail to see what benefits the removal of that protection would bring. The content board has the status of being the only committee Ofcom is required to establish, and it will play an important role. Therefore, it is crucial that adequate provisions exist to prevent members being compromised by other interests.
We believe that those with a risk of self-interest in the decisions of the board should be disbarred from membership, and that membership of those bodies listed in subsection (8) can be clearly identified as posing such a risk. I would not be comfortable with having, to take one example, a governor of the BBC chairing a board examining and adjudicating on content issues across the whole broadcasting sector.
§ 1 p.m.
§ Lord Thomson of Monifieth
Will the Minister reply to the point made by the noble Lord, Lord Gordon, about figures representative of various other aspects of the telecommunications and broadcasting industry who could, equally with those three named, have conflicts of interest? Why are those three exclusively mentioned?
§ Baroness Blackstone
That is because the content board is concerned with issues that particularly affect the interests stated in the Bill.
§ Lord Thomson of Monifieth
I am sorry to persist, but what about Sky, for example? Does it not make programmes and so raise exactly the same issues of conflict?
§ Baroness Blackstone
I am perfectly willing to take away the particular issue of Sky, and perhaps write to the noble Lord as to why Sky is not mentioned 347 in the Bill. However, the broader issues of telecommunications are not relevant, or are much less relevant, to the content board.
§ Lord McNally
Fully in line with the Peyton doctrine, subsection (8) can be subsumed by subsection (9). The Minister would do far better to look at strengthening subsection (9) rather than leaving subsection (8) with what seem some arbitrarily chosen organisations when, as my noble friend points out, many organisations could be put into the list. Instead of having a long list in subsection (8), a redrawn and tightened subsection (9) might do the job.
§ Baroness Blackstone
I have been reminded that other commercial interests are covered as well. I could write to the Members of the Committee who have raised the points and set out rather more clearly how we see them being resolved.
Amendments Nos. 43A and 44 would remove a simple and standard provision similar to ones already in the Broadcasting Act 1990, to ensure that the decisions of the content board are not invalidated by a simple procedural error in appointment. I shall respond to the noble Lord, Lord Brooke, and say that that safeguard will protect the validity of the proceedings of the content board, so that a simple defect in procedure does not invalidate what could be a number of decisions.
There is a similar provision in the Office of Communications Act 2002, as well as in many other Acts. I assure the noble Lord that such a standard provision is in no way intended to provide an excuse for deliberately evading the requirements of the legislation for proper representation. Without the provision, there could be serious consequences for the whole operation of the regime governing content standards.
I shall deal with Amendment No. 44. The content board will have the principal function of ensuring that the public interest in the nature and quality of television and radio programmes is sufficiently represented within Ofcom's overall structure. To do that, it will have to be representative of many different aspects of the public interest, including different political, cultural and religious attitudes. Members will need to be able to respond effectively and convincingly to many matters to which Ofcom is to have regard as set out in Clause 3, so far as they are relevant to their work.
Our first objection to the amendment is that the content board is not intended to be a balance of different interests. Each member has a responsibility to represent the wider public interest rather than a narrow sectional interest. The risk of a provision of such a nature is that, first, the content board would end up becoming simply a board representing the noisiest interest groups, and, secondly, any excluded group would challenge its validity. I am sure that Members of the Committee will see the sense in what I say.
348 Amendment No. 60 focuses on a particular bureaucratic solution to ensure that the interests of certain groups are taken into account. The key point is that the Bill establishes the various interests that Ofcom has to take into account, including, for example, the needs of persons with disabilities. The content board is part of Ofcom—I keep having to repeat that—so that applies to it as well, so far as is relevant to the functions that Ofcom gives it. How that is done is up to Ofcom and the content board to decide. For example, it could be done through advisory committees of the content board, through its relationship with the consumer panel or other committees, or through membership of the content board itself.
The amendment is unnecessary. However. I can tell the noble Lord, Lord Addington, that I of course very much welcome the appointment of Kevin Carey to the content board. That is one way in which it can be said that it will fully discharge Ofcom's duties in favour of people with disabilities. We must leave exactly how Ofcom wants to follow that up—for example, perhaps through separate advisory committees—to it.
Amendments Nos. 53 and 58 assume a particular relationship between the Ofcom board and the content board, and then seek to intervene in it. Ofcom has a broad obligation under Clause 3 to balance a number of factors, including its duty to promote competition. Its arrangements for the work of the content board must not upset that balance.
If Ofcom felt that it needed the content board to advise on the effect of its activities on competitiveness, the board could do so, but that again has to remain Ofcom's decision, with regard to obligations placed on it in other parts of the Bill. However, it seems more likely that Ofcom, two of whose non-executive members are currently on the shadow content board, will want to take their views of any risks to competitiveness which might arise in determining the extent of the discretion allowed to the content board. To ensure that there is no uncertainty once Ofcom assumes its powers, we expect it to provide a clear statement or memorandum setting out in detail the extent of the functions of the content board, giving its members, the public and the communications industry proper clarity about its role.
Amendments Nos. 47 and 49 are in a similar vein, and seek to ensure that the content board undertakes Ofcom's function to promote media literacy under Clause 10. Ofcom is currently developing the precise remit of the content board and its relationship with the main board. We made clear in Clause 12(2) that, whatever functions Ofcom devolves to the content board, they must include the contents of material broadcast or otherwise transmitted by means of electronic communications networks, and with the promotion of public understanding or awareness.
It therefore seems highly likely that the content board will have an important role in Ofcom's media literacy work. Indeed, the advertisements for content board members indicated that. However, it would be wrong to specify in legislation that the board should be 349 entirely responsible for the function. We should not, for example, preclude in the legislation the establishment within Ofcom of a separate media literacy committee at some point in the future.
The matters referred to in Amendment No. 52 fall, with one exception, within the description of functions in Clause 12(2) that Ofcom must confer on the board, to such extent and subject to such restrictions and approvals as Ofcom may determine. The exception is the reference in the amendment to Schedule 8. That schedule does not confer any function on Ofcom, but simply identifies various decisions—albeit that such decisions may he made in pursuit of Ofcom functions—which are not subject to appeal.
Amendment No. 50 is also directed towards specifying more closely the relationship between the content board and the main Ofcom board; in this case, by ensuring that Ofcom and its content board do not undertake the same function. I recognise the risks of the possibility of double jeopardy occurring, where a business could be overseen by Ofcom and the content board; that was discussed in another place. Our position remains that despite its superficial appeal, the amendment could unhelpfully restrict the way in which Ofcom undertakes its functions. It may be the case, for example, that Ofcom wants to give the content board a function, while reserving for the main board decisions which relate to that same function, but which have an impact beyond a particular financial threshold. That should remain possible.
We have placed on Ofcom a responsibility to have regard to good regulatory practice, including transparency. We anticipate that Ofcom will therefore be aware of the potential for double jeopardy and of course seek to preclude it wherever possible.
On Amendment No. 57, although it may be appropriate at times for the content board to publish information, it would be undesirable for the legislation to place that discretion with the content board itself. I must repeat—in particular to the right reverend Prelate the Bishop of Manchester—that Ofcom remains responsible and accountable for the work and decisions of the content board. The work of the content board must fit in with Ofcom's overall strategy. Therefore, it should be for Ofcom to decide when and what to publish.
I hope I have explained fully why the Government, while sympathetic to many of the views that noble Lords have put forward in speaking to the amendments, believe that it would be wrong to include them on the face of the Bill. The Government will consider Amendment No. 43 further, but I ask the noble Baroness to withdraw it.
Finally, I turn briefly to Amendment No. 44A. The amendment simply corrects an earlier drafting error in order to make clear that paragraph 14(3) lies in the Schedule to the Office of Communications Act 2002. The earlier drafting omitted the word "schedule". I commend the amendment to the Committee.
§ Lord Brooke of Sutton Mandeville
Perhaps I may intervene before the noble Lord winds up. I followed 350 precisely what the Minister said about Amendment No. 43A. However, it appears to me that if Ofcom or the content board were to fail to fulfil any of the Bill's provisions—I am not suggesting that they would be perverse—the wording of the amendment would offer them an amulet against judicial review. That seems curiously comprehensive. but I totally understand that the Government are trying to protect them against a simple slip of procedure.
Baroness Buscombe: I would also like briefly to respond to some of the Minister's replies to our amendments. I thank the noble Lords, Lord Phillips and Lord Addington, and the right reverend Prelate the Bishop of Manchester for supporting Amendment No. 60. I also thank the right reverend Prelate for his support for Amendment No. 44.
We believe that this is an important subject. It would be inappropriate now to debate what different noble Lords might consider to be the wider public interest compared with the narrower sections of our public life or our citizens. Some might disagree with the Minister's interpretation of what the wider public interest might include in terms of those attributes that different members of the content board might bring. Perhaps that is a debate for another day.
I understood the Minister's concerns about the wording of Amendment No. 50 in relation to the possibility of double jeopardy in terms of decision-making of the content board and Ofcom. Since the Minister's response was similar to that of the Minister in another place, perhaps I may suggest to her that consideration be given to Ofcom and the content board establishing a memorandum of understanding to ensure, as best as is possible, up-front that there is an avoidance of double jeopardy. While I accept the Minister's reasons for not including the amendment in the Bill and recognise the difficulty of finding the right wording to meet the possible problem, it would be helpful if there were such a memorandum of understanding.
I heard what the Minister said about the amendments relating to the concerns of business. As I have already said, the amendment has the support of the CBI. It is deeply concerned about the interests of business. It does not believe that its concerns are answered in Clause 3 of the Bill. I will take back to the CBI the Minister's response to those amendments and will see if we might return to that subject on Report.
§ 1.15 p.m.
§ Lord McNally
By my count, we had one correcting amendment, one concession and one promise to write, so we are getting there. This clutch of amendments involves an attempt to get, as the noble Baroness, Lady Buscombe, rightly said, the balance right between the content board and the duties of the main Ofcom board. We moved the amendment because we were concerned by fears expressed to the Joint Select Committee that the content board would be mere window dressing. We were concerned that it should have proper autonomy in its operations. I suspect that the noble Baroness, Lady Buscombe, like me, is happy 351 that Ofcom is not just waiting around but making active preparations for its job. We will study what the Minister said before considering how we might continue on Report the process of making this good Bill better. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 43A and 44 not moved.]
§ The Deputy Chairman of Committees (Baroness Cox)
I remind the Committee that there is a mistake in the printing of Amendment No. 44A in the Marshalled List. It should read "after 'first' insert 'the Schedule to'".
§ On Question, amendment agreed to.
§ [Amendment No. 45 not moved.]
§ Clause 11, as amended, agreed to.
§ Clause 12 [Functions of the Content Board]:
§ [Amendments Nos. 46 to 53 not moved.]
§ Lord Phillips of Sudbury
moved Amendment No. 54:Page 13, line 14, after "factors" insert "inter aliaThe noble Lord said: I hope that we can deal swiftly with this amendment and those grouped with it. Clause 12 describes the functions of the content board. Some noble Lords may have been perplexed when trying to get to the bottom of the wording of the clause. There is an anticlimactic quality about many of its subsections. Subsection (3) starts off boldly by stating that Ofcom "must have particular regard". It then refers to,the desirability of securing that the Board have at least a significant influence".All in all, the discretion that Ofcom has over the powers and engagement of the content board is probably wider than some of us would have liked. However, there is one point at least that I commend to the Committee. Subsections (3) and (4), in prescribing what duties may be cast upon the content board, refer to matters,of different interests and other factors as respects different parts of the United Kingdom".That phrase is used twice and indicates that although Ofcom has complete discretion in what it puts to the content board, it must have particular regard to,different interests and other factors as respects different parts of the United Kingdom".That implies a regional bias or concern on the part of Ofcom, with which none of us would argue. My amendments seek to ensure that "different interests" is not confined to interests which are regionally based. It allows non-geographical "different interests" which cross regions—be they political, quasi-political, charitable, cultural or religious—to be given the same level of importance as regional and geographical "different interests". That is the purport of Amendments Nos. 54 and 56.
352 In Amendment No. 55, I seek simply to replace the word "need"—that is, what needs to be taken into account in the views of the content board—with the less-demanding test of "ought reasonably". It reduces the threshold. I beg to move.
§ Baroness Blackstone
We do not want to prescribe further in the legislation the precise functions of the content board. Clause 12(3) and (4) have been drafted to embody the role that the content board has to play in ensuring that the particular interests of nations and regions are taken into account in Ofcom's work in licensing and setting standards for TV and radio.
I do not believe that we should extend that to encompass other interests, nor is it necessary. The effects of an extension of this kind could be, in practice, to dissipate the focus of the content board on its responsibilities to the nations and regions, or on the matters which Ofcom has devolved to it.
Of course, to the extent that Ofcom requires the content board to reflect diverse views in its work, that can be secured through the remit that is given to the board. Equally, if when carrying out its functions the content board felt that factors relating to different interest groups as regards the different parts of the United Kingdom were relevant, I am sure it would take those into account when advising Ofcom. Furthermore, in making appointments to the content board, as in all its other work Ofcom must have regard to the various matters listed in Clause 3, which includes the interest of the principal groups which have an identifiable interest in the work of Ofcom where those are not specifically defined elsewhere in the Bill.
The drafting change suggested by the noble Lord, Lord Phillips, from "need" to "ought reasonably" in Amendment No. 55 has a negligible impact on the effect of subsection (4). Perhaps the noble Lord is concerned that the word "need" implies too strict a test. If so, I can assure him that it is not intended to make the board prove that some consideration is strictly necessary and the provision should not be read in that way.
In the light of what I have said, I believe that subsection (4) as drafted strikes the right balance. I hope that with that assurance the noble Lord, Lord Phillips, will feel able to withdraw his amendment.
§ Lord Phillips of Sudbury
I am grateful to the noble Baroness for a full reply. She spoke of the danger of dissipating the focus of Ofcom and the board if the amendments are agreed to, but I believe the reverse to be the case. She also said that it is open to the content board to give such advice to Ofcom as it thinks fit in relation to different interests of a non-geographical nature. I fear that that is not the case, because the only area where the content board has the right to advise Ofcom is when Ofcom asks for its advice. I was trying to put different interest groups of a non-geographical nature on the same basis as those of a geographical nature.
At this stage, I propose to do nothing more than beg leave to withdraw the amendment. However, I should be grateful if the Minister would reconsider the matter.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 55 to 60 not moved.]
§ Clause 12 agreed to.
§ [Amendment No. 61 not moved.]
§ Clause 13 [Committer research]:
§ [Amendment No. 62 not moved.]
§ Clause 13 agreed to.
§ Clause 14 agreed to.
§ Clause 15 [Consumer consultation]:
§ Viscount Falkland
moved Amendment No. 63:Page 16, line 40. at end insert ", with due regard to the need to prioritise the Panel's activities and make best use of its resourcesThe noble Viscount said: In moving Amendment No. 63, I shall speak also to Amendments Nos. 64, 67 to 70 and 80. I shall speak first to Amendments Nos. 63, 64 and 67. The Committee will surely agree that it is unarguable that consumers need a strong voice in the electronic communications sector to ensure that their interests are effectively represented and taken into account by decision-makers and providers. An effective and expert consumer representative body is also vital to act as a counter-balance to other more powerful interests. The National Consumer Council has already welcomed inclusion of a provision in the Bill to set up a communications consumer panel, including the intention that it should be independent and operationally separate from Ofcom. However, the current wording in the Bill will preclude the panel from being able to comment on the breadth of consumers' interests in this sector as it prevents the panel from being able to give advice on matters concerning content.
The panel will require the ability to do so for three main reasons. The first is the integrity of the project. If the intent is to create an integrated regulatory body because of converging technologies and markets, it is surely illogical for the panel's remit to be restricted to service delivery matters. The second is the breadth of the consumer interest and communications which encompass broad content issues such as choice, diversity and quality as well as service delivery. Universal access to public service broadcasting is a key consumer concern. The third is the unique independent role of the panel. It will be external to Ofcom, whereas the content board will be part of Ofcom and will have delegated regulatory functions.
There are also concerns that the panel could overlap or duplicate content issues with the work of the content board, or concentrate unduly on content matters to the detriment of other consumer issues. That can be addressed in the following ways. The panel should be required to be transparent and accountable, particularly in terms of how it prioritises its work and makes best use of resources. It should have a duty to report annually on how it has fulfilled its duties. Ofcom and the communications consumer panel should be required to draw up a memorandum of understanding to formalise co-operative working relationships. The memorandum should guard against duplication but also recognise their distinctive roles.
354 I turn to Amendments Nos. 68, 69 and 70. The Bill places a duty on Ofcom to provide the consumer panel with information. However, it also gives Ofcom unduly wide powers to withhold information, which could potentially severely hamper the consumer panel's ability to do its job. Right of access to information is an essential component of accountability that enables consumers to assess how well regulators are carrying out their activities, including how well they are fulfilling their duties towards consumers.
When something goes wrong, information helps consumers to find out what has happened and why it has happened. Although Ofcom will be covered by the Freedom of Information Act 2000, this will not apply until the year 2005 when the Act will take effect. We are particularly concerned about the intervening period when Ofcom will be covered by the duties to provide information as set out in the Communications Bill—duties narrower than those that will apply under the Freedom of Information Act. Although we have concerns about the adequacy of the Act itself, it is bizarre that the consumer panel's right of access to information will he more curtailed by the Communications Bill than by the Freedom of Information Act.
Under Clause 15 of the Bill Ofcom will be able to withhold information from the consumer panel on grounds of the need to preserve commercial confidentiality. However, the wording of Clause 15 is inconsistent with that of Clause 14, which would allow Ofcom to withhold publication of research if it,would or might seriously and prejudicially affect the interests
of an individual or of a particular body. It is in the interests of consumers that the kind of information that can be protected within a cloak of commercial confidentiality is kept to the minimum, consistent with good governance and good business. We believe that a careful balance should be struck between legitimate commercial interest and consumer interest. In our view, Clause 15 should be amended so as to make it consistent with other parts of the Bill, namely, Clause 14.
In addition, it is vital that consumer interest and the wider public interest are given due consideration and are not unfairly outweighed by narrower commercial pressures. Therefore, Clause 15 should be amended to include a public interest test as part of Ofcom's considerations about disclosure of information. That would also help to inspire greater public confidence in the processes of Ofcom.
Where information is withheld, there are no time limits in the Bill for Ofcom to review such decisions; nor is there an explicit requirement that information be provided once the reasons for withholding it no longer apply. Clause 15 should be amended so as to place a duty on Ofcom to specify a time limit for reviewing the reasons for withholding information, as well as a duty to provide the information once those reasons no longer apply.
Amendment No. 80 proposes that the panel should represent the interests of, 355domestic consumers and small businesses in general".
In terms of representing the interests of specific groups of consumers, Clause 16 of the Bill states that Ofcom must ensure that there is a different member capable of representing the interests and opinions of people living in England, Scotland, Wales, and Northern Ireland. It also states that Ofcom must make "secure" that the panel is able to give "informed advice" about matters relating to the interests of people in rural and urban areas, those of small businesses, as well as,the interests of disadvantaged persons, persons with low incomes and persons with disabilities; and … the interests of the elderly".
The panel will also be required to have regard to the interests of people from different parts of the United Kingdom, together with the interests to which I have already referred.
However, as I am sure Members of the Committee will agree, it is unrealistic to expect one individual to be able to represent the interests and needs of each group. Moreover, the interests of people within the groups that I mentioned are not homogenous; for example, one disabled person cannot represent the spans of interest or the needs of people with different disabilities. There is a diverse range of consumer interests that needs to be represented in the electronic communications sector, which includes not only those of the groups that I mentioned but also a variety of other interests, such as those of people from minority ethnic communities, together with those of the very young and children.
It appears that representation of consumers' interests is being confused with a general notion of representativeness. The Bill should ensure that the panel is able to achieve an expert representation of the diversity of consumers' interests as well as those of the generality of consumers. It is crucial that the panel should work cohesively as a whole to fulfil its duty to represent the diversity of consumer interests. All panel members should share collective responsibility in all these respects. To ensure that this happens in practice and to make sure that the panel operates both transparently and accountably, it should be required to report annually on how it has represented the diversity of consumers' interests, as well as on how it has sought to fulfil its general duties for domestic consumers and small businesses. I beg to move.
§ 1.30 p.m.
§ Baroness Buscombe
I shall speak to government Amendment No. 65, which would appear to allow Ofcom to seek advice from the consumer panel on content matters. We believe this to be a surprising move, and one which gives some cause for concern. Until now, the Government have appeared satisfied with the delineation of responsibilities between the consumer panel and the content board. We have supported their approach. Clause 15(3), (4) and (5) have been drafted with precision in order to give clear 356 guidance as to the matters on which the consumer panel should, and should not, give advice—an approach that we welcome.
However, Amendment No. 65 appears to erode those clearly defined boundaries providing the consumer panel with an advisory function in relation to content. While, in the first instance, this may relate only to content matters referred to the consumer panel by Ofcom, it is easy to see how that could expand through the demands of the panel—even where the content board contains appropriate representation and expertise—and also to envisage the political difficulty that Ofcom would have in limiting the scope and duration of consumer panel advice on content matters once the door is opened through the Government's amendment. The esteemed board members of Ofcom are unlikely to wish to suffer accusations, perhaps in headlines on an ongoing basis, no matter how misfounded, that they are "anti-consumer" because they are refusing to allow the panel to advise in all the areas that it wishes to input, again, irrespective of the expertise and representation that exists on the dedicated content board.
I should be grateful if the Minister could explain why he has seen fit to introduce this new provision. In what circumstances is it envisaged that Ofcom would need to seek advice from the consumer panel on content matters? How will the problems that I have outlined be avoided?
§ Lord McIntosh of Haringey
I am grateful to the noble Viscount, Lord Falkland, for the way he introduced this group of amendments. I am certainly glad to have this opportunity to respond, especially on Amendments Nos. 65 and 66. Although the latter is separate, it would in effect negate Amendment No. 65.
The amendments deal with the fundamentals of the consumer panel: what it will do; its relationship with Ofcom; and how it will deliver for different groups of consumers. As part of its remit, it is our intention that the consumer panel should represent an independent voice for consumer interests to counterbalance the very persuasive industry voices that will be lobbying Ofcom.
We want the consumer panel to be as well organised, well informed and authoritative on behalf of consumers as industry will undoubtedly be on the other side of the equation. We have ring-fenced the work of the panel so that it is concentrated on areas that are of real concern to citizens as consumers—service delivery, price, quality, safety, and complaint handling.
Clause 15(3), which is the kernel of this part of the Bill, lists all the matters about which the panel will have to be able to give Ofcom advice.
We have given the panel flexibility to look into any other matter—except a matter relating to content to which I shall return—which it considers would provide protection for consumers in the relevant markets. I 357 believe that the joint committee got it right when it said that the panel should be the conscience not the creature of Ofcom. It will be a legally separate, unincorporated body operationally independent of Ofcom. It will have independence of thought. It will have the power to commission and publish its own research and will be able to give advice to other bodies as well as Ofcom. It might advise the Office of Fair Trading. It might deal with European institutions when new directives are being considered. It might advise government bodies or industry bodies such as ICSTIS.
Ofcom has to consider the consumer panel's advice. It must have regard to that advice where appropriate and the results of any research about which the panel has notified Ofcom. If it chooses not to follow the panel's advice wholly or in part it will have to give the panel its reasons for disagreeing. It will have to ensure that people who are aware of the panel's advice are also informed of Ofcom's reasons. That is a good deal of power for the consumer panel.
We have discussed appointments to the consumer panel. The noble Lord, Lord Puttnam, was not in his place when the amendments were moved. I should not deny him the opportunity to make his points, probably after lunch rather than trying to deal with them now.
I return to the amendments moved by the noble Viscount. Lord Falkland. In speaking to Amendment No. 67, I believe the noble Viscount referred to a memorandum of understanding.
§ Lord McIntosh of Haringey
No, probably not on this occasion, although I think the noble Baroness, Lady Buscombe, did in response to an earlier amendment.
Amendment No. 63 would require the panel to prioritise its work and make best use of its resources. This really comes under the stricture of the noble Lord, Lord Peyton. These are sensible, grown-up people. Surely, they will prioritise their work just as they are going to get to work in the morning. We do not need to tell them on the face of the Bill to prioritise their work.
Amendment No. 64 would make it more difficult for the consumer panel to prioritise its work if its remit is widened, as is suggested in Amendment No. 64. We focused the remit of the panel on issues that are of key concern to consumers. We do not want to swamp the work of the panel by giving it a free rein to consider matters of content. That is the job of the content board. However—this is the point of Amendment No. 65—we are prepared to give the consumer panel the power to consider matters of content which are referred to it by Ofcom. That is quite restrictive. I do not see any suggestion there that this is a power which could expand, although the noble Baroness, Lady Buscombe, seemed to think that it might.
Here, we are talking of content matters which have a high consumer dimension—for example, misleading 358 advertising. It is a matter of content, but something with which consumers are very much concerned. I believe that the consumer panel could be properly given the responsibility of considering such matters without infringing on the role of the content board. For that reason, in moving Amendment No. 65 I want to resist in advance Amendment No. 66, which, as I have said, would negate it.
The noble Viscount, Lord Falkland, referred to the information-sharing issue, which is raised by Amendments Nos. 68, 69 and 70. Ofcom will have to provide the panel with all the information it needs to carry out its role, but it has to pay regard to commercial confidentiality. I do not think that there is any issue here with the Freedom of Information Act. Both Ofcom and the panel will be subject to the Freedom of Information Act. When it comes into effect on 1st January 2005, we would expect Ofcom to abide by the principles of the Act. But in any case the provisions for Ofcom giving information to the panel are wider than those in the Act, so it need not. I think, be a problem.
We should not be complacent, but we should view the sharing of information provisions in Clause 15 from the starting point of the mutually beneficial relationship that Ofcom and the panel will have. We have taken specific measures to ensure that we are not creating an adversarial relationship. Ofcom will share information with the consumer panel and in return it will benefit significantly from the advice that the panel provides to it. The amendments go beyond the boundaries of what we have in the Bill on commercial confidentiality.
Commercial confidentiality is a well-understood concept. It is understood by the courts in cases of dispute. I am afraid that these amendments would give Ofcom more grounds rather than fewer grounds on which it could withhold information. I think it would go in the opposite direction from that which the noble Viscount, Lord Falkland, clearly intends.
Clause 15(9)(b) allows Ofcom to withhold additional information requested by the panel but only where there are good reasons for it to do so. It must have reasonable grounds for not providing information and its general duties will apply in doing so. Amendment No 70 would require Ofcom to estimate when information withheld from the panel would cease to meet the criteria for withholding, at which time it would have to review the withholding of the information. That is a tall order. Ofcom would have to look into the future and consider when the information would cease to be commercially sensitive, and then, regardless of whether the information would still be of use to the panel, it would have to review the withholding of it. Surely, a better way would be for the panel to repeat its request for information if it still required it after a reasonable period of time.
359 On Amendment No. 80 I can be brief. Yes, I heard the powerful case made by the noble Viscount, Lord Falkland, for an annual report. Bearing in mind the points that he makes about different types of consumer and diversity of consumers, we are prepared to consider the amendment between now and Report.
§ 1.45 p.m.
§ Baroness Buscombe
I am aware of the clock, but given that the Minister's response was relevant to Amendment No. 66, perhaps I may speak extremely briefly to it in response to what the Minister said on Amendment No. 65. I accept his remarks on Amendment No. 65. The matters that would be referred to the consumer panel would have a high consumer dimension. The purpose of Amendment No. 66 was to give clarity and to define more clearly what we believe the role should be to ensure no erosion of boundaries between the content board and the consumer panel on certain issues. However, I hear what the Minister said. It is helpful that we shall now have in Hansardreassurance from the Minister that there is, certainly in the Minister's mind, clarity in terms of the kinds of issues that might be referred. He used an example of misleading advertising as something which would have a high consumer dimension. On that basis, having spoken to Amendment No. 66, I shall not move it.
§ Lord Avebury
Are we debating Amendment No. 66? If the idea is that we should discuss it with this grouping, there are one or two points I should like to raise. It seems to me that the amendment precludes Ofcom from asking the consumer panel's advice on anything broadcast or otherwise transmitted by means of electronic communications networks. Obviously, it follows that if the consumer panel is not able to give advice on those matters by virtue of Clause 15(5), Ofcom should not ask it for any such advice under 15(6)(c). In the unlikely event that it did, in the absence of the express prohibition contained in the amendment. the consumer panel would have no choice but to say that it was unable to help Ofcom.
So I am not sure that we must spell out the obvious limit to the advice the consumer panel can offer that it must be under one or more of the headings in subsections (3) and (4) and that it must not be under the heading mentioned in subsection (5). If it is, why single out one rather than the others? The Committee may think that it would be better to make it clear what the limits are on the requests Oftel can make and, instead of this amendment, to insert at the beginning of Clause 15(6)(c), "subject to subsections (3), (4) and (5) of this section".
§ Lord McIntosh of Haringey
That is a possibility. I hope that I have made it clear that we consider this to be a fairly exceptional case. We are concerned that the consumer panel should not overlap with the responsibilities of the content board.
360 I also want to make clear that what I now say is not new. After all, the very words that I used about a high consumer dimension were used in the policy document which was published alongside the draft Bill. Paragraph 4.2.3 on page 22 states that,although the Panel's primary focus will be on service delivery, it can also be called upon to address content issues … that have a high consumer dimension, such as rules on misleading advertising".Our Amendment No. 65 gives effect to the phrase "called upon".
Furthermore, since the noble Lord, Lord Puttnam, is in his place, I make it absolutely clear that the fact that we started on this group of amendments because it was "not yet half past one" does not in any way inhibit him from having a full debate on his Amendments Nos. 72, 76 and 77, which we will reach in their place when we return after Starred Questions.
§ Viscount Falkland
I thank the Minister for his full reply within the time constraints which he has at his disposal, and specifically as to my Amendment No. 80 on which he was particularly helpful. We shall read carefully his remarks and come back as and when necessary, although many of the amendments to which I have spoken have been probing ones.
I do not know whether the Committee agrees but I think we have run on to a degree which is becoming outrageous. We are supposed to stop at half past one, or close to it. We have had to rush through the amendment. I admire the way the Minister has done that. There is a crude Army expression that one might use for the way in which the Government have decided when to break this afternoon.
I put on record that the usual channels must get together their act on this breaking near half past one. It imposes an intolerable strain, particularly as regards the kind of amendments we have discussed recently. People have calls of nature, want to go to lunch and do various other things. The Government must take this matter more seriously before we end these ludicrous arrangements which have been imposed upon us for this year and which I hope will quickly be put back in their normal place next year. Having said that, I beg leave to withdraw the amendment.
§ Lord Puttnam
Before the noble Viscount sits down, perhaps I may support what he said. I have worked extremely hard, as have other noble Lords, to create an atmosphere of goodwill towards the Bill. That atmosphere of goodwill has been severely strained in the past 20 minutes. It was a great mistake by the Government to attempt to start this group of amendments before lunch.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 64 not moved.]
§ Lord McIntosh of Haringey
moved Amendment No. 65:Page 17, line 5, leave out "matters that concern" and insert "any matter (other than one referred to them for advice by OFCOM) that concerns
361 The noble Lord said: The amendment has been spoken to. I beg to move.
§ On Question, amendment agreed to.
§ [Amendments Nos. 66 to 70 not moved.]
§ Clause 15, as amended, agreed to.
§ Lord Evans of Temple Guiting
This may be a convenient moment for the Committee to adjourn until after Starred Questions. I therefore beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.