§ 3.3 p.m.
§ Lord Hodgson of Astley Abbotts rose to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 21st July, be annulled (S.I. 2003/1901).
§ The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. I begin by making it clear that I raise no objection to the principle of the legislation proposed. The establishment and co-ordination of common standards for television makes sense for all parties. But the regulations as drafted are, in my view, deficient.
§ I had hoped to be able to give the Minister advance warning of some of my concerns—indeed, I did so about two minutes ago. The forthcoming business announcement suggested that the debate was to be responded to by the noble Lord, Lord McIntosh of Haringey. I spoke to staff in the noble Lord's office, who told me that they did not believe he was responding and that they would ring me back and tell me who would be. I imagine that at that time the Minister was about 36,000 feet in the air somewhere, so it would not have been easy for us to have spoken. But I did try to ensure that we could have as useful a debate as possible this afternoon
§ I have the pleasure of reading through many statutory instruments from the Minister's department. Quite often, they appear to me to be unclear or unhelpfully drafted in some single aspect or another. In such circumstances, it is my practice to table a parliamentary Question for Written Answer. Indeed, I tabled four such Questions yesterday. I nurture the hope—it is only a faint hope, but it is a hope none the less—that somehow those parliamentary Questions and Answers are attached to the master file so that, when revisions come to be made, improved drafting, thus making the whole matter clear beyond peradventure, is incorporated in the new version.
§ However, from time to time, in individual regulations, the lacuna becomes lacunae and the issue needs to be addressed in more detail. This statutory instrument—SI 2003/1901—is one such case, and I shall seek to persuade the Minister that the regulations that are drafted are unclear, unfair and, in at least one aspect, downright incorrect.
I want to make five points. For ease of reference. I shall deal with them in the order that they appear in the statutory instrument. First, I draw the Minister's attention to the point that I raised a few minutes ago on the definition of "wide-screen television service" on page 2 of the regulations. It states that the wide-screen television service is,
to be displayed with a height-width ratio of 16:9".
§ I assume—I may be incorrect—that that means a ratio of 16 in height to nine in width. Is that really what is meant? Are wide-screen televisions meant to be higher than they are wide? That is not the wide-screen television service that I have seen or receive. Those I 1253 have seen are wider than they are high; in other words, they are landscape rather than portrait. There can be only two answers to that. Either the height-width ratio is not in dimensions known to the man in the street or it should be a height-width ratio of 9:16, which would be the other way round. That is a matter of fact with which I am sure the Minister's officials can deal.
Secondly, I ask the Minister to turn to paragraph 4(4)(a) of the schedule, which states:
The officer may seize and detain … any document, record or information or any other thing which he has reasonable grounds for believing may be required",
to conduct investigations or prosecutions. The seizure and detention of documents is a serious matter. It could gravely impede the operation of the firm in question, even causing its closure. At the stage that the documents are seized or detained, the firm is only accused; it is not convicted. But if wholesale detention of documents takes place, the firm may ultimately be found not guilty but may have gone out of business in the interim. Being found not guilty in those circumstances will be cold comfort.
Perhaps I may suggest to the Minister that after the word "detain" there should be inserted words to the effect—I am not trying to do a draftsman's job for him—
but shall on request provide copies of all documents detained".
I understand that the originals will need to be taken as they will be required for the prosecution of the court case. But the firm should have copies of the documents to enable it to continue to operate until the case is determined. If it is found guilty, that is fine; if not, then the firm will have been able to operate in the interim period.
Thirdly, I ask the Minister to turn to the second part of that paragraph—4(4)(a)(ii). That takes the issue even wider as it concerns seizure and detention for or on behalf of,
the authorities of a member State other than the United Kingdom for the purposes of the exercise of their functions with regard to the Universal Service Directive".
§ I believe it would be helpful if the Minister could explain to the House how that will work. For example, could documents seized from a UK firm—it may be only a small or medium-sized firm—end up in Lisbon or Athens? That seems to be an extraordinarily draconian and open-ended set of powers. Where is the check and balance to protect the position of the small and medium-sized firm during the period when its guilt or innocence has not yet been proven when faced with such a search and when faced with the documents being moved to the other end of the European continent?
Fourthly, I refer to paragraph 5(2)(b)(i), which concerns the issue of search warrants and when a justice of the peace may issue a search warrant. He may issue it if he is also satisfied by any such information either that admission to the premises has been or is
likely to be refused. How and on what basis of information will a justice of the peace reach a judgment about,
is likely to be refused"?
Is there not a real danger that that provision could be used for fishing expeditions? Officials in the Box will no doubt say, "But the noble Lord has not read the second half of the sentence", which states,
and that notice of an intention to apply for a warrant under this subparagraph has been given to the occupier".
But that is not a safeguard. The reality is that in (b)(ii) the safety valve can be firmly closed, because it states:
the giving of such a notice, would defeat the object of the entry [to the premises]".
§ So where admission to the premises is "likely to be refused", a search warrant can be issued. There is no safeguard whatever because in all cases the weights and measures inspectors wanting to make the investigation can say, "If I give such a notice, undoubtedly the person will take advantage of it".
Can the Minister explain, first, how the provision will work and, secondly, why the words,
or is likely to be refused
should not be removed?
Fifthly, I refer to the last part of paragraph 5(2), which states:
the justice may by warrant under his hand, which shall continue in force for one month, authorise any officer",
and so forth. No mention is made of dating the warrant. There has been anecdotal evidence of the use of signed but undated warrants, which are like blank cheques.
During the passage of the Animal Health Bill in October and November last year, there was considerable discussion of the dating of warrants. During the course of the debate on 8 October 2002, recorded in Hansard at col. 190, the noble Countess, Lady Mar, stated that she had seen a warrant signed by a magistrate and left for the details to be filled in by whomsoever executed it. I am sure the Minister would agree that that is a very undesirable practice and would want to take steps to eradicate it. In pursuance of that objective, does he not agree that the regulation would be improved if after "which" one inserted the words, "shall be dated at the time of signing and", so that the paragraph would read:
The justice may by warrant under his hand, which shall be dated at the time of signing and shall continue in force for one month".
and so forth?
§ Sixthly, and finally, I draw the attention of the Minister to paragraph 7, which concerns appeals against detention of equipment. This is hardware which cannot be copied and therefore once removed is no longer available to the firm. In particular, I draw the Minister's attention to subparagraph (3) which is the safety valve from the point of view of the person 1255 who considers that his equipment has been unfairly detained. It states that an order requiring equipment to be released shall be made only if the court is satisfied that no proceedings for forfeiture had begun and that more than six months have elapsed since the equipment was seized.
§ Six months is a hugely long time for someone who might be innocent to be unable to reclaim his equipment. Again I stress that these are firms that at the point of seizure are innocent. They may be proved to be guilty but they are innocent at that time. To have equipment seized and to be unable to apply to reclaim it for more than six months seems another very harsh penalty. Perhaps the Minister could explain why six months. Surely pressure should be put on the prosecuting authorities to move with more urgency. In doing so, I should be grateful if the Minister could explain whether this provision will also apply to non-UK jurisdictions; that is to say, can equipment be detained and removed, as I said, to some other European centre?
§ To conclude, I believe that, while the purpose of these regulations is not objectionable, the wording, the drafting and the balance of them is unfair and wrong. Since we cannot amend them, I invite the noble Lord to withdraw them and to resubmit them in a better and fairer form. If I am right about the 16 to nine ratio, 1 think he has no option. Therefore, I beg to move.
§ Moved, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 21st July, be annulled (S.I. 2003/1901).— (Lord Hodgson of Astley Abbots.)
§ Lord Sainsbury of Turville
My Lords, I am grateful to the noble Lord for giving me the opportunity to talk about some of the technical requirements of these regulations.
The context in which we have made these regulations is that, as he said, of the four directives on regulation of electronic communications networks and services, which were adopted by the European Community in 2002. These are the Framework Directive, the Authorisation Directive, the Access Directive and the Universal Service Directive. Together they provide a comprehensive overhaul of the framework in European law for the regulation of these services. The UK strongly supports this new harmonised framework, which will strengthen competition throughout Europe.
The directives had to be transposed into national law with effect from the 25th July this year. As many of your Lordships will be aware, the major part of this transposition was effected through the Communications Act, which received Royal Assent on 17th July. The relevant provisions of the Act were commenced on 25th July. However, some aspects of the transposition were effected through other instruments, including these regulations. Specifically, these regulations transpose Article 4(2) of the Access Directive, and also Article 24 and Annex VI of the Universal Service Directive. These provisions replace 1256 Directive 95/47/EC on the use of standards for the transmission of television signals. In 1996 our predecessors thought that it was appropriate to transpose the 1995 directive by means of regulations.
Given their largely technical nature, we have taken the same route this time. But these regulations have of course to be viewed as part of the overall task of transposition, and are subject to the UK's obligations to implement these directives on the specified date— that is, 25th July 2003.
The regulations cover three separate issues. The first deals with widescreen television services. Regulation 4 requires that all digital television networks must be able to transmit television programmes in the widescreen format, that is with a ratio of 16 to nine. This requirement was included in the 1996 regulations. However, the new regulations, flowing from the new directives, also require that any digital television signal that is received for retransmission in widescreen format must be retransmitted in the same format. This extra requirement will cover, for instance, the situation where a broadcaster transmits its services in widescreen format over the terrestrial network and these services are then picked up by a cable network for onward transmission over its network. This provision relates to services and will be enforced by Ofcom as if it were a general condition under the Communications Act.
The second issue is the application of the common scrambling algorithm and the transmission of unscrambled images. The intention is that consumers should be able to view on their television sets all digital services to which they are entitled whether or not the broadcaster transmits them scrambled, for example to protect rights. Regulation 5 places the same requirements on descramblers of digital television signals as Regulation 9 of the 1996 regulations. However, it is slightly narrower in scope and covers only consumer equipment which is intended for the reception of digital television signals, rather than equipment that is capable but not intended for that purpose.
The third issue is the interoperability of television sets with other equipment, such as video recorders, digital adapters and digital video disc players. All analogue television sets above a minimum screen size—approximately 17 inches diagonally across the screen—are required to have at least one standardised open interface socket: what the industry normally refers to as a SCART socket. That applies also to integrated digital television sets which can receive and display analogue signals, and hence covers all integrated digital television sets currently available in this country.
In addition, for digital television sets with a screen size greater than approximately 12 inches the standardised open interface socket must permit the passage of all the elements of a digital television signal. Those elements include information relating to interactive and conditionally accessed services. The 1996 regulations include those requirements, but the 1257 new regulations clarify how they should be applied to analogue televisions and integrated digital television sets.
The regulations have been the subject of public consultation and take due account of the responses received from broadcasters, manufacturers and the Royal National Institute for Deaf People. Like the regulations that they replace, they are intended to ensure a minimum level of interoperability that supports considerable consumer benefits. It is important that consumers can buy or rent equipment confident that it will provide access to all the expected television services.
The market for television receivers is developing rapidly. Gone are the days when we had a choice of a small box or bigger box that gave access to services that could be numbered on the fingers of one hand. We have a range of ways of watching television services: whether using a single television set, a screen connected to a decoder of signals, or by adding an adapter box to a television. We can also connect a variety of recording and other equipment to the television. We can plug in a module to provide access to audio description services. But all of those options are available only if there is a common means of connecting the various boxes and screens together.
For that reason, there must be some minimum requirements of the kind set out in these regulations. In due course, they may need amendment at European level to reflect new market developments, but for now they are the agreed way of supporting the internal market in television sets for use with today's television services.
I turn to some of the specific issues raised by the noble Lord, Lord Hodgson. He asked about the height: width ratio of 16:9. Of course, that should have been the width: height ratio, and we shall take steps to rectify that. He asked about paragraph 5(2). The use of warrants beyond one month is unlawful, but I shall take account of his suggestion of dating warrants when considering what amendments should be made. The provision in paragraph 4(4)(a) is the same provision as in the 1996 regulation and has caused no problem until now, but, again, we shall take account of the noble Lord's point when deciding what amendment may be needed.
He also asked about Paragraph 4(4)(a)(ii). I fear that without notes I am unable to answer the noble Lord's question about the universal service directive. I shall write to him when I have had the opportunity to consider the point.
Finally, the noble Lord mentioned paragraph 5(2)(b)(i). A justice of the peace will not grant a warrant unless he is properly satisfied of the likelihood of refusal. That is not something that he will take lightly, but I shall consider what may be done to deal with that point.
I hope that that answers the points raised by the noble Lord. There is little difference between the regulations and those that the noble Lord's party introduced when in government. Now, as then, we are 1258 implementing provisions that have been proposed by the European Commission, discussed extensively with industry and agreed by member states. They are fair and necessary.
§ Lord Hodgson of Astley Abbotts
My Lords, the Minister very properly spent a good deal of his speech talking about the commercial objectives of the regulations, such as screen size and algorithms. As I said, those objectives are unobjectionable. However, we are concerned about the detail. I am not clear what the Minister is going to do. The statutory instrument as formulated is incorrect.
Earlier this year, when I discovered a problem with the Police and Criminal Evidence regulations and informed the then Home Office Minister, the noble and learned Lord, Lord Falconer, the issue was much simpler: one page had been omitted during photostatting. The page was correct, but it had not been included. The authorities said that we had to start again, because the provision could not be altered. I do not think that we can take such an important detail as the height: width ratio and say, "Sorry about that, we meant width: height". We cannot amend it.
I hear what the Minister says about the other points. I look forward to seeing whether he will make changes on that basis, and to receiving his letter on the points. But I also look forward to hearing what he now proposes to do. If the example of what happened with the Police and Criminal Evidence codes is anything to go by, I do not think that the regulations can be enforced. They must be withdrawn and the process must start again. That was what the authorities in the House decided on the previous occasion. We had a new regulation and there was a further debate. On that basis, we cannot suddenly say, "We did not mean height: width; we meant width: height".
I invite the Minister to withdraw the regulations with a view to resubmitting them in the appropriate form with this amendment and the others that he has agreed to consider.
§ Lord Sainsbury of Turville
My Lords, the situation regarding the Police and Criminal Evidence regulations was different. It is difficult to see how one could pass regulations from which a page is missing. We would prefer to retain these regulations. We have realised that there is an error, and we will introduce amending regulations in due course.
§ Lord Hodgson of Astley Abbotts
My Lords, I understand what the Minister says. However, it is certainly not for me, and I doubt whether it is for him, to make that decision. As I understand it, the legislative process is such that one cannot amend a statutory instrument, as the Minister seeks to do. It is not an erratum slip to change the regulations in such a major way. I do not suppose that we can take the matter further today—I certainly do not know enough 1259 to do so. However, in the light of what we have seen previously, I would very surprised if the regulations could be produced and taken forward as proposed.
§ Lord Sainsbury of Turville
My Lords, the Clerk has indicated that we are right in our decision, so I shall stand by it.
§ Lord Hodgson of Astley Abbotts
My Lords, 1 am bound by the rules of the House. If that is the case, and if "height: width" means the same as "width: height", and such a change is not an amendment to a statutory instrument, I look forward to receiving the Minister's letter. I very much look forward to his consideration of the qualitative points that I raised about how the 1260 regulations were drawn, with a view to seeing whether they can be improved in balance and fairness for British industry. I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.
House adjourned at twenty-nine minutes past three o'clock.
§ In col. 945 on Wednesday 15th October, the second contribution of the Lord Grocott was misattributed to the Lord Davies of Oldham.