Clause 340 — Modification of Disqualification Provisions
Communications Bill
8:30 pm

Lords amendment: No, 130.

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Ms Tessa Jowell (Secretary of State, Department for Culture, Media & Sport; Dulwich and West Norwood, Labour)

I beg to move, That this House
disagrees with the Lords in the said amendment.

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Sir Alan Haselhurst (Deputy Speaker)

With this, it will be convenient to consider Government amendments (a) to (l) in lieu thereof.

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Ms Tessa Jowell (Secretary of State, Department for Culture, Media & Sport; Dulwich and West Norwood, Labour)

The Government are asking the House to overturn amendments made in another place to remove all restrictions on religious bodies holding broadcasting licences. We do not think that it is right to remove those restrictions in their entirety, but we have listened carefully and sympathetically to the many points raised in debates in this House and the other place. The amendments offered in lieu address many of the concerns raised by this issue.

Earlier today, I spoke to the Bishop of Manchester and outlined to him the steps that the Government intended to take, and the argument on this issue that we intended to put to the House tonight. I had met the bishop some weeks ago in his capacity as leader of a delegation of Members of the House of Lords and others who were concerned about this issue. He felt that progress had been made as a result of those discussions.

Before explaining why we think that the restrictions should be reintroduced, albeit in a modified form, I would like to emphasise that the Government are not in any sense anti-religious, or opposed to religious broadcasters or religious broadcasting. We recognise that faith communities play an integral part in the life of the UK and should be reflected in the broadcast media. We also firmly recognise that religious programming is an important element of public service broadcasting, and have amended the Bill to ensure that it can better be reflected in the Bill's definition of public service broadcasting.

Our amendments require public service broadcasters to include programmes providing history, news and information about different religions and other beliefs, as well as showing acts of worship and other ceremonies. In terms of the BBC, the 1996 agreement between the corporation and the Government identifies religious programmes as a specific strand to be provided within the corporation's television and radio services in the UK. The BBC remains committed to religious broadcasting across its services. Its statements of programme policy for the current year include an undertaking to provide 112 hours of religious programming across BBC1 and BBC2, which I welcome.

The Bill will remove all unnecessary restrictions on religious bodies holding licences. Religious bodies can already hold a wide range of licences offering significant broadcasting opportunities, including local analogue radio licences and licences for radio and TV cable and satellite services. The Bill will widen those opportunities still further, allowing religious bodies to hold licences to allow them to provide national and local digital radio services, digital terrestrial TV services and TV restricted services.

Those changes brought in by the Bill have been widely welcomed. Listening to some of the commentators, however, one could get the impression that there was a complete ban on religious broadcasters holding any licences. That is not the case. The only remaining significant restrictions on religious bodies holding broadcasting licences will relate to Channel 3 and Channel 5, national analogue radio licences and multiplex licences.

To put all that in context, under our proposals religious bodies will be unable to hold 20 licences for broadcasting programmes—the 16 ITV licences, the Channel 5 licence and the three national radio licences. They can, however, hold any of the almost 900 cable, satellite and digital broadcasting licences. As a matter of fact, religious bodies currently hold about 40 UK broadcasting licences of one sort or another.

Our policy, reflected throughout the many debates on the Bill, is to have as few restrictions as necessary. We allow religious bodies to hold different kinds of broadcasting licences where that is consistent with satisfying as many viewers and listeners as possible and giving equal respect to everyone's beliefs. We wish to avoid a situation where, through scarcity of broadcasting spectrum allocated to a particular kind of licence, some religions achieve access to the airwaves but others do not. Where there is no broadcast spectrum scarcity—such as with cable and satellite—there are no restrictions, because there are sufficient opportunities for several religions to offer services, and for other non-religious services to co-exist with them, to offer a diversity of services. It follows that restrictions could be removed in the event that significant new broadcasting spectrum became available. That would not require primary legislation, but could be done by order.

It also follows that in the event of any new classes of licence being introduced, we will carefully consider whether religious organisations should be able to hold them. There will not be a presumption that they cannot. The decision will turn, as now, on a question of broadcast spectrum scarcity. As I will explain later, we are proposing to amend the Bill to reinforce that point.

I should like to concentrate on the case for the continuing restriction on national analogue radio licences. There are at present only three national analogue licences, and there is not enough spectrum to allow more services of that kind. Given that, we believe that it would not be appropriate for one of those licences to go to a religious organisation. That is because we do not think that a religious radio service, however popular it might be with many, would have sufficient appeal to justify its having one of only three national licences. To that is added our concern that it would be invidious, and perhaps unfair, for only one religion to have a national station while the others did not.

The effect of the Bill will be to increase substantially the range of licences that religious organisations can hold. The restrictions that remain relate to areas of broadcasting where the opportunities to broadcast are limited due to scarcity of spectrum.

It has been suggested that a decision on whether to award a licence to a religious body should be left to Ofcom's discretion. I do not agree. One of the aims of the present, limited disqualification is that scarce spectrum should be used to satisfy as many viewers and listeners as possible. Although I wish neither to denigrate the religious stations that exist nor to deny that they do a good job on their own terms and have a very loyal listenership, all the evidence is that such services do not have mass appeal.

8:45 pm
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Mr Andrew Lansley (South Cambridgeshire, Conservative)

Is the Secretary of State not perpetuating the myth that the decision on whether the owner of a given licence, or a media asset associated with a licence, is a religious body or person automatically presupposes that the owner would wish to broadcast religious programmes to a greater extent and in a particular form? In other contexts, the Secretary of State and her colleagues have argued repeatedly that the licence conditions in the Bill prevent such a distortion of the purposes of a given channel. Why does it suddenly become possible in the case of a religious owner?

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Ms Tessa Jowell (Secretary of State, Department for Culture, Media & Sport; Dulwich and West Norwood, Labour)

That is an interesting question, but I think it must be a working assumption that a religious organisation seeking to acquire a broadcasting licence does so for a reason connected with the expression of a faith, although that might not occupy 24 hours of a day or, at any rate, all the broadcasting time available. Surely it is fair to assume that a religious organisation would wish to express its faith, and the character of that faith, through the broadcasting that it chose to schedule.

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Mr Andrew Lansley (South Cambridgeshire, Conservative)

My point does not relate to whether the Secretary of State's assumption is fair. We could debate that at length. My point is that she and her colleagues have argued that, notwithstanding the assumption, the protections in the Bill relating to licence conditions would be sufficient to prevent such an eventuality in any case. Why does she need to perpetuate discrimination in the structure of ownership to protect the format of a given licence, when those other protections can be applied?

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Ms Tessa Jowell (Secretary of State, Department for Culture, Media & Sport; Dulwich and West Norwood, Labour)

We apply the same logic—the same argument—to political organisations. In their case there is an outright ban, as opposed to the heavily qualified restriction that we propose in relation to religious organisations. Members should recognise the progress that has been made in opening access to religious organisations during the Bill's progress.

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Ms Tessa Jowell (Secretary of State, Department for Culture, Media & Sport; Dulwich and West Norwood, Labour)

I want to make some progress.

The case for restriction is especially relevant in the case of national analogue radio licences. In their case, Ofcom's discretion is limited as such licences are normally awarded to the highest bidder unless exceptional circumstances apply.

Given the evidence of the limited appeal of religious stations, we do not think it would be right to allow a well-financed religious organisation to buy one of only three national analogue licences and run it as a subsidised minority-interest service when the primary purpose of the broadcasting legislation is to ensure that services are calculated to appeal to a wide variety of tastes and interests; but without a ban, that could happen. A well-funded religious organisation could outbid all other organisations, including other religious organisations, to broadcast religious material.

The rationale for the bidding system for national licences is that it enables the market to deliver a popular and sustainable service. The highest bid is thus a proxy for wide appeal. But the system will not work if people act in a way that is not market-oriented. A well-funded religious body could run its national service on a non-commercial basis through subsidy and subscriptions.

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Mr Andrew Selous (South West Bedfordshire, Conservative)

I apologise to the House for not being in the Chamber for the earlier part of the debate.

I am interested in the Secretary of State's argument, as it is my understanding that no other professional broadcasters have actually been refused access to a licence for reasons of spectrum scarcity. I return to the points made by my hon. Friend Mr. Lansley. Can the Secretary of State enlighten the House as to why religious bodies are put into a separate category and treated as no other country treats them?

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Ms Tessa Jowell (Secretary of State, Department for Culture, Media & Sport; Dulwich and West Norwood, Labour)

The hon. Gentleman is right. The argument for limiting access to religious organisations relates to spectrum scarcity. It follows from that—as indeed one would assume—that if no restriction were to exist, it is perfectly possible that a wide range of religious organisations would want to apply for licences. It then follows that it would not be fair, given the small number of licences to which we are referring, not to offer fair competition to the wide range of religious organisations that might want to bid for those licences. Certainly until analogue switch-off, the argument turns on that precise point about spectrum scarcity and applies specifically to the services that I identified.

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Mr Andrew Lansley (South Cambridgeshire, Conservative)

In the terms of the Secretary of State's argument, if, under the provisions of the Bill relating to spectrum trading, a religious body were to try to acquire enough spectrum to make it available for broadcast purposes—for example, for a further analogue sound broadcast licence—would the Secretary of State have any objection to a religious body offering a fourth such licence by using its own spectrum?

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Ms Tessa Jowell (Secretary of State, Department for Culture, Media & Sport; Dulwich and West Norwood, Labour)

Were those circumstances to arise, the decision would be for Ofcom, not for the Secretary of State.

To continue my argument, the system that I was outlining would not necessarily produce a popular service; indeed, the need to rely on subsidies rather than on advertising suggests the opposite. It is hard to see what other sorts of body would adopt a similar approach. Conventionally, commercial bidders for such a licence will naturally aim to provide a popular service with wide appeal so as to ensure a financially viable business.

The need to treat all religions fairly and to use scarce spectrum in a way designed to appeal to a wide range of tastes and interests, combined with the particular way in which national analogue radio licences are awarded, convinces us that retaining a ban on religious bodies holding such licences is essential.

It is frequently alleged that our policy is not compatible with the European convention on human rights. We have taken legal advice, however, and are convinced that the remaining restrictions are fully compatible with our commitments under the European convention on human rights. The Joint Committee on Human Rights believes that the restrictions are likely to be compatible. The European Court of Human Rights has declared inadmissible the most recent challenges to our restrictions. It is important to make clear a point that was raised in the earlier stages of the Bill: we are aware of no current challenges in Strasbourg to the status of religious broadcasting under the European convention on human rights.

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Mr Andrew Selous (South West Bedfordshire, Conservative)

I am grateful to the Secretary of State for giving way a second time. I should like to return briefly to her argument about spectrum scarcity. I am puzzled as to why no other Government in the world are arguing in the way that she is about spectrum scarcity. France and the Netherlands have just released a raft of new analogue frequencies. On her point about licences being divisive and unfair to religious broadcasters, religious broadcasters tell me that they only want to be treated in the same way as any other organisation and to have exactly the same criteria for fit and proper persons applied to them. Surely that is not too much to ask.

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Ms Tessa Jowell (Secretary of State, Department for Culture, Media & Sport; Dulwich and West Norwood, Labour)

The hon. Gentleman asks about spectrum availability. Regardless of the circumstances in relation to the disposal of spectrum in other countries, only enough broadcast spectrum is available in the United Kingdom for three national analogue licences. I reiterate something that I hope that I have already made clear to the House: if things were to change, we would review the situation.

On the question, asked by Mr. Lansley, about how a religious organisation might procure spectrum, perhaps a better answer than the one that I gave earlier is that such things could be considered if they were to arise and would be subject to the Secretary of State's order-making powers.

I hope—I have no great certainty—that I have persuaded hon. Members on both sides of the House that the ongoing restrictions are made necessary by reason of spectrum scarcity. I should like to take this opportunity to comment on the words used in the communications White Paper. In explaining the reasons for placing restrictions on religious broadcasting, we referred to religious broadcasting's "particular capacity to offend". That was an unfortunate and unnecessary phrase, and I am quite sure that we would not use the same words if we were publishing the White Paper today.

The Government amendments will reverse what might described as the default position in the case of religious bodies. At present, religious bodies are disqualified persons for all licences, but, at Ofcom's discretion, they can hold certain licences listed in the legislation. The Bill, as passed by the House in March, would have retained an approach by which, if a new category of licence had been introduced, religious bodies would have been disqualified automatically. The Government amendments make it clear that religious bodies will be disqualified only in relation to licences specified in the Bill. They are now ruled in until ruled out, rather than the other way around. The issue has caused concern in the religious community, and I believe that that modest change will be welcomed.

We have already recognised in the communications White Paper that the restriction on religious bodies holding local digital sound programme service licences is an anomaly. We recognise that the restrictions that we propose to lift may be causing commercial difficulties for some religious broadcasters. Therefore, subject to the Bill being passed with the continuing modified restrictions, we also propose to implement those parts of the Bill that remove restrictions on religious broadcasters two months after Royal Assent.

Subject to the will of Parliament, it is still our intention to implement all other ownership changes in December, so I hope that religious broadcasters will not have to wait any longer than necessary before they can take up new broadcasting opportunities. Government amendments (h) to (k) are also necessary to achieve that, as they allow the ITC and the Radio Authority to stand in Ofcom's shoes for those purposes until Ofcom acquires its substantive licensing functions at the end of this year.

The Bill will usher in a new era for religious broadcasters, with greatly increased access to broadcasting licences. If the Bill is agreed, the restrictions on local and national digital radio programme licences should be lifted by the middle of September. Once that happens, new opportunities will open up. For example, local digital radio multiplexes are still being licensed, so religious broadcasters can seek to obtain some of those new slots. In the case of existing radio multiplexes, there should still be chances for religious bodies to get slots on those multiplexes that are currently unfilled or become vacant in the future. There are also opportunities, as I have already mentioned, to take up radio slots on Freeview.

We are confident that Ofcom will take its duties with regard to religious broadcasting seriously and, mindful of its role in maintaining and strengthening public service television broadcasting, will not be content to see religious broadcasting relegated to inaccessible parts of the television schedule. Broadcasters who want to make a significant change to current levels of output, as set out in their statements of programme policy, are required to consult with Ofcom before they can do so.

We remain convinced that, for the present, the case for some restrictions remains. But where restrictions can be removed, they have been removed. The Bill offers enormous possibilities for religious broadcasters that I hope they will seize.

Finally, I have told the Bishop of Manchester that I would like to convene a forum for a discussion with religious broadcasters of how they see the future of religious broadcasting developing. That will provide an opportunity for those with an interest to have a continuing dialogue with the Government. We will arrange that later this year. I have dealt with this matter at some length and in some detail, because of the sensitivity of the issues and the concerns that have been expressed, and I commend the amendments to the House.

9:00 pm
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Mr John Whittingdale (Maldon and East Chelmsford, Conservative)

It is a matter for genuine disappointment that at the end of the nine-month consideration of the Bill and all the amendments on the Order Paper today we are left with this one, on which we still have no meeting of minds. We continue to believe that the disqualification of religious bodies from holding any form of broadcasting licence causes great offence to those communities and is unnecessary under present law.

The Secretary of State is right to say that considerable progress has been made. Some 13 years ago, religious organisations were not able to hold any licences at all. Since then, exemptions have been granted for satellite radio and local analogue radio licences. The Bill represents further progress in allowing religious organisations to apply for more kinds of licence. Now, in the amendment that the Government have tabled tonight, they have changed what the Secretary of State described as the default position, so that instead of the Bill specifying what kinds of licences religious organisations can apply for, it will specifically identify the licences for which they cannot apply. To that extent, the Government's amendment is welcome, as is the relaxation that the Bill already contains. However, it still does not go far enough.

The Secretary of State mentioned that she had had a conversation with the Bishop of Manchester in which she had set out the proposals that she was making tonight and he had said that he welcomed them as progress. We see them as progress, but I do not believe that the Bishop of Manchester no longer wishes to see the disqualifications removed from the statute book. I think that he also still believes that there are concerns about the human rights aspect, and he recognises that it will not go anything like far enough to satisfy a large number of people in the industry. To that extent, the Bishop of Manchester should perhaps have another opportunity to express his view in person when the amendment returns to the other place.

As I said, progress has been made, but the Secretary of State fails to grasp the point, as the Government have repeatedly failed to do ever since this matter was first raised, that the concern is not how many licences or what kind of licences religious organisations should be allowed to apply for or be disqualified from applying for. It is the fact that religious organisations are singled out in statute as somehow inappropriate to apply for particular kinds of licences—that somehow they are so unacceptable that they need to be named in the Bill as not able even to apply for those licences. There is almost certainly no religious organisation that has any great interest in applying for any of the categories of licence that the Bill sets out. In promoting the amendment, we do not intend to say that ITV should be bought by a religious organisation or that a national radio analogue licence should be bought by a religious organisation. All that we, and the religious organisations, are saying, and have been saying ever since this matter first arose, was that they should at least be allowed to put in an application, and that that should be judged according to the usual procedure.

In defending the Government's position, the Secretary of State referred, as the Government have done several times in the past, to the argument about spectrum scarcity. It is by no means accepted by a large number of people that there really is the spectrum scarcity that she claims that there is and that would justify the Government's position. A former Minister in her Department, Mr. Fisher—I am sorry that he is not here, but I do not think that he will mind me quoting him—said:

"As Minister with responsibility for broadcasting, I was not satisfied with my officials' changing answers when I investigated the Christian broadcasters' disqualification. I believed in their democratic freedom to broadcast to the third of a million people who wrote and petitioned the Department, asking to be allowed to listen. The consumer need could easily have been met, if officials had allowed the Christian music broadcasters to use the additional national radio frequency from the Isle of Man."

He finished:

"It was never a technical matter when I was Minister, I don't believe it is a matter of spectrum now. I believed then, and I believe now, that religious broadcasters should bid for national and local licences on a level playing field with other applicants".

As I said, I do not think that he will mind me quoting him, as he is also a co-signatory to the early-day motion that I tabled, which has been signed by 68 Members from all parts of the House, calling on the Government not to reverse this Lords amendment.

Real problems have been caused already. Liberty AM women's radio, which is owned by religious people, was disqualified, because of that, from applying for a digital audio broadcasting licence. Unlike the other local radio licences, it was not given an opportunity to have an automatic roll-over of its analogue licence, which, I understand, cost the station some £4 million. In addition, Premier Christian radio, which is now the only remaining religious radio station in London, faces a new hurdle with the potential switch to digital radio mondiale. That matter has been raised with the Department in the past, and the Government have been asked whether Premier will be able to continue broadcasting on a DRM multiplex, with perhaps a variety of different stations, or whether it will be a casualty of this provision. The Government have still not replied on that, and we need to have the answer.

The Government have also said, as the Secretary of State has repeated tonight, that they do not believe that there are problems in relation to the European convention on human rights. She said that the Government have taken legal advice, and that they are now advised that the provision is not incompatible with the convention. Whether or not that is the legal advice, will the Secretary of State read carefully a speech made by Lord Brennan in the other place? He is a distinguished lawyer and he set out clearly real concerns about whether the provisions are compatible with human rights legislation.

Lord Brennan said:

"The Bill seeks, among its objectives, to make provision for the regulation of . . . broadcasting. Such a statutory objective is of democratic import; therefore, if we find in its terms a provision that a significant proportion of society shall not be allowed even to apply for a radio/TV licence, nationally as well as locally, our democratic antennae should very carefully be switched on to find out why."

I shall not read the whole of his speech, although I recommend it to anyone who is interested in the subject, but he continued:

"The result . . . is that the argument that there is no available frequency is simply unacceptable. It begins to concern me democratically. The Human Rights Committee of the House has asked the Government for a reasoned explanation, so the Government must give an answer. I have not seen one . . . The first step in the argument is the democratic right; the second is why the Government are justified in restricting it . . . These proposals do not come before the Committee on behalf of religiously inclined citizens of this country, but from me as a democrat. I do not understand why those who would wish to tune into religious broadcasting in this country should find themselves in the same legislative slot as politicians or advertising agencies."—[Hansard, House of Lords, 5 June 2003; Vol. 648, c. 1497–98.]

Despite the Government's assurance that the provision might not technically be incompatible with current human rights legislation, some of our finest human rights lawyers are raising real concerns that human rights would be damaged in this country and that there is no real justification for that to happen. We have argued that existing restrictions on the allocation of licences that are available to the authorities already provide sufficient protection. Even if that were not the case before, the Government today introduced a new provision in the form of the plurality or public interest test. I said that I was not a wild enthusiast of the public interest test but it specifically provides that if the Secretary of State decides that it would not be in the public interest to award or transfer a licence, she will be allowed to raise questions. A raft of safeguards now exists to prevent undesirable people from acquiring licences. That is why we continue to be unconvinced that there is any necessity for religious organisations to be singled out in such a way in the Bill.

The matter is causing great concern in the House of Lords, where the Lords amendment was supported in all parts, and hon. Members of this House from all parties are also worried. Even now, I ask the Government to consider the matter again and accept Lords amendment No. 130 rather than insisting on the Government amendments.

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Mr Nick Harvey (North Devon, Liberal Democrat)

I echo the disappointment of Mr. Whittingdale that at the end of our long and tortuous process and after there have been sensible compromises and progress toward a consensus on so many issues, the Government have not met their opponents halfway on this matter. They continue to want to include a blatantly discriminatory measure in primary legislation to provide who can and cannot hold broadcasting licences on the basis of who those people are. No account is taken of what they would want to do with the licence or their programme format or content or market ploy. The Government simply want to use primary legislation to ban people on the basis of who they are. That is fundamentally wrong. Despite the Secretary of State's confident assurances about the human rights implications, I am convinced that that will catch up with them in the fullness of time and they will be found to be wrong. It is not possible to begin to justify the proposal in fundamental principle.

As hon. Members said, the Government proposal is not necessary. We have equipped Ofcom with a raft of tools that it can use to regulate the media, any number of which would be applicable. It has close powers over the format of radio stations and their programming. If they get into a realm that is faintly political—I questioned witnesses on this when they came before the Pre-legislative Scrutiny Committee—they are subject to the same rules on impartiality and balance as others in the media. The addition of the plurality test gives Ofcom a serious way of dealing with spectrum scarcity.

The Government have grappled with the absurd principle that the licences should be granted to the highest bidder. If they want to find a way out of the conundrum they should re-examine that idea. It is far fetched to maintain that British society, culture or democracy is under threat from people who want to play Christian music on the radio. I do not understand the Government's concern about that.

9:15 pm
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David Burnside (South Antrim, Independent Ulster Unionist)

In the part of the UK that I come from, religion is, perhaps, slightly higher up the list of topics for discussion, both historically and at present, than it is in other parts of the UK. Does the hon. Gentleman accept that there is no support from any part of the political spectrum in my area for discrimination against the religious sector's ability to have total access to broadcasting under the right regulatory framework? Does that not say something to the rest of the UK?

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Mr Nick Harvey (North Devon, Liberal Democrat)

I am interested in what the hon. Gentleman says. If the idea does not raise hackles in his community in Northern Ireland, that gives the lie to the view that the matter is of great concern to all.

It is a human rights issue. I am told that the religious freedom rapporteur of the UN's Office of the High Commissioner for Human Rights, Mr. Abdelfattah Amor, has decided to investigate religious disqualification in UK broadcasting law. That does not surprise me. One would expect that because it is so very wrong in basic principle. As hon. Members said, no other country is resorting to such crude methods to control who broadcasts.

We should remember that we are talking about religious persons as well as religious bodies. For example, the formula adopted by the Government will disqualify Olave Snelling, a broadcaster and former trustee with London Premier radio in the independent sector, from applying in consortium with others for national analogue TV or radio licence, yet she previously produced BBC national religious radio and TV programmes, for which she received licence fee-payers' money. We clearly thought that that was in the public good. If she wants to produce similar programmes for a similar audience, she will be banned from doing so and cast into darkness as an unfit person.

The Government have to go further. Re-imposing the disqualification will drive yet more of our UK religious broadcast companies into the hands of European partners and some of those will start to use serious financial muscle to challenge the disqualification in the courts. I believe that the Government's case will eventually come apart. I do not know what consideration they have given to the impact of that or what it will cost.

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Mr Stephen Timms (Minister of State (e-Commerce & Competitiveness), Department of Trade and Industry; East Ham, Labour)

I have been listening to the hon. Gentleman's argument with interest. Does he accept that the central concern of the effective and well supported campaign on the issue has been that religiously owned radio stations should have access to digital national licences, which the Bill allows? The central concern has not been analogue licences.

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Mr Nick Harvey (North Devon, Liberal Democrat)

I hear the Minister's point. Among those who campaigned on the issues, different people will have had different concerns—depending on whether one talked to a bishop or to a more commercially mobilised operator. My concern is that it is fundamentally wrong to ban in primary legislation particular people or organisations from being allowed even to apply for a broadcast licence. We have regulators who are perfectly capable of sorting the wheat from the chaff and of deciding what constitutes a balanced programme for the public within a scarce spectrum. The Government are simply wrong and will have to go back to the drawing board.

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Mr Andrew Lansley (South Cambridgeshire, Conservative)

I entirely agree with my hon. Friend Mr. Whittingdale on this matter, but I should like to reinforce one or two points.

The exchange with the Secretary of State on the availability of spectrum under spectrum trading adequately demonstrated that, although the Government contend that the argument is about scarce spectrum, it is not. They cannot offer an answer when tested on their proposition in the light of additional spectrum becoming available. They are proposing a ban that will apply regardless of the amount of additional spectrum that is made available, even though Ministers could then make an order to modify such change.

When the Secretary of State compared the proposed ban with one on political organisations, she demonstrated that the argument is not about spectrum scarcity. The Government say not that they are stopping political organisations owning such licences because of the scarcity of spectrum, but that—they said this to the pre-legislative scrutiny Committee—political organisations should continue to be banned from holding licences because they are not satisfied that such organisations or those holding office in them would be able to operate with the necessary impartiality. Nobody is disputing that point; we are disputing that that proposition should not apply to religious bodies.

David Burnside got to the point of the matter. One can well understand how granting one political party access to licences would be seen as undermining other political organisations that are directly in competition with it. Indeed, the entire population would probably regard such a move as unhealthy for our democracy. I do not find people from religious bodies saying, "If church X has access to a licence, church Y will be unhappy about it." I do not find people contending that religious organisations and persons—we must keep remembering this—holding office in them are somehow in competition with one another for a limited amount of spectrum, the purpose of which is to proselytise and evangelise.

The religious context is unlike politics and the other contexts in which we have imposed bans because there are people who live their lives in a religious context. It is not right for us to discriminate against those who participate in religious bodies as office holders and want also to be active broadcasters, perhaps owning licences. I do not want us either to discriminate against those who live their lives in a religious context and want broadcast organisations that reflect their lives and provide them with a service.

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Mr Paul Marsden (Shrewsbury and Atcham, Liberal Democrat)

I wonder whether the hon. Gentleman would agree with me that there is deep unease among many constituents and many Members on this issue? Is it not another example of the Government's control freakery and their need to be able control everything in sight?

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Mr Andrew Lansley (South Cambridgeshire, Conservative)

The hon. Gentleman is making his own point about the Government. He has his own experience of the Government, which no doubt justifies his remarks. I shall not make such a crude political remark at the end of a stimulating and consensual debate in almost every other respect. However, the hon. Gentleman is right about the degree of concern. For reasons that are becoming increasingly difficult to discern, the Government are persisting in a blatant piece of legislative discrimination. We have reached the point where we cannot find any realistic prospect of religious organisations coming forward to apply for licences, as my hon. Friend the Member for Maldon and East Chelmsford said.

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Martin Smyth (Belfast South, Independent Ulster Unionist)

Does the hon. Gentleman agree that perhaps Nick Harvey was getting to the heart of the matter when he referred to the highest bidder? Is it a question of the Government choosing mammon rather than God?

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Mr Andrew Lansley (South Cambridgeshire, Conservative)

I hope that that would not be the case.

I do not think that the Government were getting anywhere near the heart of the matter when it came to the issue of the highest bidder. When these licences are to be provided, there is a backstop power so that the licences cannot necessarily be exercised in ways that would be contrary to the intentions that lie behind the legislation.

That is the curiosity. We do not have practical examples of what would contravene the Government's intentions. The Government talk about having to define licences that cannot be obtained, but at the same time leave in amendment (f), which is proposed in lieu of the Lords amendment, a mechanism that would require Ofcom to make determinations before people are able to apply for and exercise other licences. This strand of discrimination is still running right through the structure of the proposed legislation.

It seems that within that structure, if the Government have realistic concerns about the nature of the way in which the licences would be held and used by religious bodies or persons associated with those bodies, Ofcom has the powers to deal with that situation. At the point of acquisition or of merger, if a large organisation is involved, the media merger rules and the media plurality test could bite. They could bite on anybody who was likely to prejudice the achievement of the standards objective that is set out in clause 312. If that objective was not contravened or if the licence was not of sufficient size to justify such a test, the fact of the licence itself and Ofcom's control over it mean that anyone who owns such a licence would not be able to use it in ways that would be prejudicial to the public interest. I find it difficult to understand why this discrimination is persisting. In these circumstances I would prefer that we accepted, with the Lords, that the discrimination should be done away with rather than sending anything back in lieu.

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Mr Andrew Selous (South West Bedfordshire, Conservative)

I shall support briefly the comments of every Member who has spoken so far in the debate.

The restrictions that are still left in the Bill cause practical problems. One example is Premier Christian Radio, which wants to have a digital radio multiplex licence. Without that it will have difficulties in developing its service in future. If the Secretary of State genuinely believes that all the religious broadcasters are happy with the concessions offered in the Bill, why does she think that they have lobbied the House and the other place so hard, and right up until today? Why does she think that they are so concerned about the issue?

I received about 50 letters from my constituents last week on the matter. Constituents telephoned me and e-mailed me, and it is clear that they are extremely concerned. I wonder what consultation the right hon. Lady has undertaken. The message that I pick up from my constituents is one of great concern. It has even been put to me that those religious broadcasters who will continue to suffer discrimination will, if necessary, move to France to rebroadcast to this country. That is because of the restrictions that are still set out in the Bill. That is a ridiculous situation and, like other hon. Members, I urge the Secretary of State to reconsider the matter.

9:30 pm
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Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)

I speak as an honorary associate of the National Secular Society. I came to our debate uncertain about what I would do if there was a vote, because there are concerns out there about giving more freedom to religious organisations to apply for licences. However, I have been persuaded by my hon. Friend Nick Harvey and Mr. Whittingdale that the right thing to do is oppose the Government in a Division, as it is not necessary to include such a provision in primary legislation, given that there are safeguards on content, which is what we should be talking about—it is about content, not ownership. I am happy to put that on the record because previously I have abstained on a vote on a ten-minute Bill on the subject and even voted against such a proposal.

I should like to make another point about discrimination, which has been raised by all Members, but especially the hon. Members for South-West Bedfordshire (Andrew Selous) and for South Cambridgeshire (Mr. Lansley). It is reasonable that they should make such arguments on behalf of religious organisations, but may I gently stress to them that it works both ways? In public service broadcasting, where there is provision for religious broadcasting on the basis of both religion and belief, it should not be right that, as a quid pro quo for non-discrimination, people with atheistic, agnostic or purely secular beliefs should be excluded from participating in, for example, reserved slots such as "Thought for the Day", which is not described as religious broadcasting.

I urge hon. Members on both sides of the House to reflect on that. I cannot go into it in any more detail, as it is not the subject of the amendments. When discrimination is cited, one must consider whether religious organisations or the law around religion seeks to discriminate against those without religion.

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Mr Andrew Selous (South West Bedfordshire, Conservative)

My understanding is that "Thought for the Day" is in fact a religious slot, and that all faiths have the opportunity to use it. Does the hon. Gentleman not accept that there are many other opportunities during the day for secular organisations to make their case?

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Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)

I do not want to go too far down that path, but humanism and atheism are a belief pattern. Indeed, an earlier Government amendment expands religion to include both religion and belief, thus including people who do not have a theistic faith but have atheistic beliefs. It is reasonable that there should not be exclusivity and discrimination in any of those areas. Indeed, that can be seen in programmes that fall outside the category of so-called religious slots. One cannot turn on the radio without hearing bishops and clerics arguing with one another about various important issues of the day. I do not want to overstress that point, but would like gently to urge hon. Members to consider the point that, in their effort to avoid being discriminated against, religious organisations should look carefully at themselves and the surrounding legislation to see whether they discriminate against people without religion.

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Ms Tessa Jowell (Secretary of State, Department for Culture, Media & Sport; Dulwich and West Norwood, Labour)

Hon. Members have made wide-ranging points with considerable passion, and I respect entirely the sincerity and strength of feeling that the debate has engendered.

I should like to respond to some of the specific points that have been made, starting with the concerns expressed by Mr. Whittingdale about DRM, a digital system that is currently being developed for use on AM frequencies. There is a worry that DRM may be licensed as a multiplex, and consequently religious bodies would be prevented from holding such licences under the proposed restrictions. The first point to make is that no decisions have been taken about the way in which DRM will be licensed. It may be licensable under existing legislation, or it may require new legislation. Whatever happens, I can categorically assure the House that the restrictions on such licences will be looked at again.

The second set of arguments refer to discrimination and the charge made by Andrew Selous that no other country is arguing the position that our Government have adopted. It is important to remember that the position varies from country to country, depending on spectrum availability. Many countries are in a different position from ours, because of the widespread availability of cable networks there. The charge that the Government have not met their critics halfway is not true.

I underline that by reminding the House that under our proposals, religious bodies would be excluded from holding 20 licences for broadcasting programmes—that is, 16 ITV licences, the Channel 5 licence and the three national radio licences. However, they could hold any one of almost 900 cable, satellite and digital broadcasting licences. Despite that availability, which has come about as a result of the change in rules, religious bodies still hold only about 40 UK broadcasting licences.

Having listened carefully to the arguments, I find that they are rather overblown and disregard the concessions that have been made. They do not fully take account of the central point: we are speaking of disqualification from holding broadcasting licences on analogue. There are no restrictions—I repeat—there are no restrictions on religious groups holding broadcasting licences on digital. It is important that hon. Members who expressed their concerns take that point on board and understand it. The restriction arises because of the present scarcity of analogue spectrum capacity.

The Government's proposal is not a discriminatory move. It is driven solely by spectrum scarcity. Content regulation, another means to which several hon. Members referred, has a role to play but it is not the whole story. We are dealing only with national analogue radio licences and television licences, as I identified, in areas where there is spectrum scarcity. There is no discrimination in respect of the 900 possible licences that religious bodies can hold, the 20 that they cannot bid for or the 40 that they already hold. It is important that those in all parts of the House who continue to voice concerns and whose constituents continue to make representations take that point on board.

In the course of debate and discussion over the past nine months—almost a year—progress has been made, and more digital spectrum has become available. The restrictions have therefore been lifted on holding licences on digital spectrum. The restriction is specific and is not intended to discriminate in any way against religious groups. It is intended to protect for the widest possible appeal the limited availability of analogue spectrum.

David Burnside referred to the attitude of religious groups in Northern Ireland. Many of the groups responding to the Government's consultation supported a ban. Notwithstanding what hon. Members have said about the representations that they have received, many of the groups that responded supported a ban, including the Church of Ireland.

We have had a long debate this afternoon and this evening. In the view of hon. Members on both sides of the House, we have established in it a remarkable degree of consensus across a wide range of issues relating to media ownership and broadcasting, as well as broadband and spectrum management. Those issues have been controversial, but the process of debate and parliamentary scrutiny has achieved a remarkable degree of agreement.

The matter before us remains the final sticking point. I say this to hon. Members on both sides of the House: listen to the argument, set aside the claims about discrimination on religious grounds and accept the evidence in fact that the restrictions that we intend to maintain in the Bill are required by the present scarcity of analogue spectrum. If that situation changes, as with the availability of digital spectrum, we will obviously review and reassess the case. As of now, however, the Government's view is that that spectrum should be safeguarded for licences that will attract widespread appeal. Nobody has claimed that religious broadcasting attracts anything like a majority audience, and licences should be retained for services that will command a widespread and majority appeal. We should maintain the current restriction on their availability to religious organisations for the reasons that have been put before us. The dialogue with religious organisations about religious broadcasting and such issues more generally, as the availability of spectrum changes in future, will continue.

This has been a hotly contested issue. I believe that the Government's position is right. It is a considered position and it represents deregulation and the unpicking of rules that the previous Conservative Government put in place. I commend the proposals to the House.

Question put, That this House disagrees with the Lords in the said amendment:—

The House proceeded to a Division.

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Mr Michael Martin (Speaker)

I ask the Serjeant at Arms to investigate the delay in the Aye Lobby. Here is the Whip now, so the Serjeant need not bother. We are all right.

The House having divided: Ayes 314, Noes 175.

Division number 290

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Lords amendment disagreed to.

9:43 pm
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Mr Eric Forth (Bromley and Chislehurst, Conservative)

On a point of order, Mr. Speaker. You will have noticed that that Division took 17 minutes. I have no difficulty with that, but I hope that it sets a precedent. Although the Government delayed the House on this occasion, I hope that you will not hold it against the Opposition if, occasionally, our Divisions take 17 minutes due to the important discussions that we like to have with colleagues in the Lobby. I hope also that you can assure me of your even-handedness in these matters and that we have entered a new era of Divisions.

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Mr Michael Martin (Speaker)

About a fortnight ago, the right hon. Gentleman reminded me that I worked in a Rolls-Royce engineering factory. Time and motion used to work to stopwatches. I did not like it, so I do not work to a stopwatch.

It being after Ten o'clock, Mr. Speaker put the remaining Questions required to be put at that hour, pursuant to Order [this day].

Government amendments (a) to (l) in lieu of Lords amendment No. 130 agreed to.

Lords amendments Nos. 131 to 278 agreed to [one with Special Entry].