130 Clause 340, page 295, line 10, leave out subsections (2) and (3) and insert—
"( ) Paragraph 2 of that Part (disqualification for religious bodies) shall cease to have effect." The Commons disagree to this amendment but propose the following amendments in lieu thereof—
130A Page 295, line 10, leave out subsections (2) and (3) and insert—
"( ) In sub-paragraph (1) of paragraph 2 of that Part (disqualification of religious bodies etc.), for the words before paragraph (a) there shall be substituted—
"2 (1) The following persons are disqualified persons in relation only to licences falling within sub-paragraph (1A)—" ( ) For sub-paragraphs (2) and (3) of that paragraph there shall be substituted—
"(1A) A licence falls within this sub-paragraph if it is—
(a) a Channel 3 licence;
(b) a Channel 5 licence;
(c) a national sound broadcasting licence;
(d) a public teletext licence;
(e) an additional television service licence;
(f) a television multiplex licence; or
(g) a radio multiplex licence. (1B) In this paragraph—
'additional television service licence' means a licence under Part 1 of this Act to provide an additional television service within the meaning of Part 3 of the Communications Act 2003;
'Channel 3 licence' and 'Channel 5 licence' each has the same meaning as in Part 1 of this Act;
'national sound broadcasting licence' means a licence to provide a sound broadcasting service (within the meaning of Part 3 of this Act) which is a national service (within the meaning of that Part);
'public teletext licence' means a licence to provide the public teletext service (within the meaning of Part 3 of the Communications Act 2003);
'radio multiplex licence' means a licence under Part 2 of the Broadcasting Act 1996 to provide a radio multiplex service within the meaning of that Part; and
'television multiplex licence' means a licence under Part 1 of the Broadcasting Act 1996 to provide a multiplex service within the meaning of that Part.""
130B Page 296, line 28, leave out "or 2A"
130C Page 296, line 29, leave out "or both of them"
130D Page 296, line 30, leave out "either or both of those paragraphs" and insert "that paragraph and any enactment referring to it."
130E Page 298, line 3, after "Act", insert "and requires approval for the holding of certain licences by religious bodies etc."
130F Page 436, line 3, at end insert—
Religious bodies etc.
Approval required for religious bodies etc. to hold licences
1 (1) A person mentioned in paragraph 2(1) of Part 2 of Schedule 2 to the 1990 Act (religious bodies etc.) is not to hold a Broadcasting Act licence not mentioned in paragraph 2(1A) of that Part unless—
(a) OFCOM have made a determination in his case as respects a description of licences applicable to that licence; and
(b) that determination remains in force. (2) OFCOM are to make a determination under this paragraph in a person's case and as respects a particular description of licence if, and only if, they are satisfied that it is appropriate for that person to hold a licence of that description.
(3) OFCOM are not to make a determination under this paragraph except on an application made to them for the purpose.
(4) OFCOM must publish guidance for persons making applications to them under this paragraph as to the principles that they will apply when determining for the purposes of sub-paragraph (2) what is appropriate.
(5) OFCOM must have regard to guidance for the time being in force under sub-paragraph (4) when making determinations under this paragraph.
(6) OFCOM may revise any guidance under sub-paragraph (4) by publishing their revisions of it.
(7) The publication of guidance under sub-paragraph (4), or of any revisions of it, is to be in whatever manner OFCOM consider appropriate.
Power to amend Part 3A of Schedule
14B The Secretary of State may by order repeal or otherwise modify the restriction imposed by this Part of this Schedule."
130G Page 454, line 7, at end insert— "( ) In subsection (4), at the end there shall be inserted "and who would not be in contravention of the requirements imposed by or under Schedule 14 to the Communications Act 2003 if he held such a licence.""
130H Page 551, line 9, after "51", insert— "( ) Part 3A of Schedule 14 to this Act is to have effect—
(a) in relation to times before the television transfer date as if references to OFCOM were, in relation to licences under Part 1 of the 1990 Act or Part 1 of the 1996 Act, references to the ITC; and
(b) in relation to times before the radio transfer date as if references to OFCOM were, in relation to licences under Part 3 of the 1990 Act or Part 2 of the 1996 Act, references to the Radio Authority."
130I Page 551, line 10, leave out from "Act" to end of line 13 and insert "which is in force immediately before the commencement of Part 3A of Schedule 14 to this Act is to have effect on and after its commencement as a determination under paragraph 14A of that Schedule to this Act." 130J Page 551, line 16, leave out from first "of" to end of line 18 and insert "Part 3A of Schedule 14 to this Act is to have effect on and after its commencement as guidance published under paragraph 14A(4) of that Schedule to this Act." 130K Page 551, line 18, at end insert— "( ) Anything done under paragraph 14A of Schedule 14 by the ITC or the Radio Authority which is in force immediately before the relevant transfer date is to have effect on and after that date as if done under that paragraph by OFCOM." 130LPage 562, leave out line 32
Lord McIntosh of Haringey (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Labour)
My Lords, I beg to move that the House do not insist on their Amendment No. 130 to which the Commons have disagreed, but do agree with the Commons in their Amendments Nos. 130A to 130L in lieu thereof. We do not think that it is right to remove the few remaining restrictions on religious ownership in their entirety, but we have listened carefully and sympathetically to the many points raised in debate in this House and in another place. The amendments offered in lieu address many of the concerns raised by those who wish to remove the restrictions.
Before I explain why we think the restrictions should be reintroduced to the Bill, even in a greatly modified form, I shall repeat some of the points that the Government made in another place so as to emphasise that the Government are not opposed to religious broadcasting or religious broadcasters. In cutting short my speech on this subject at Third Reading, I was perhaps guilty of not informing the House adequately about the Government's position and I unreservedly apologise for that.
The Government believe that the faith communities play an integral part in the life of the United Kingdom and should have a place in the broadcast media. We also recognise that religious broadcasting is an important element of public service broadcasting. I hope that we have amended the Bill to ensure that its importance can better be reflected in the Bill's definition of public service broadcasting. Our changes were strongly welcomed in the statement by senior Church leaders that was issued yesterday. I am pleased, too, that they have concluded that, taking the measures in the Bill together, the legislation,
"marks a sea change from the previous regime under the 1990 and 1996 Acts".
We have also made it clear that we regret the reference in the communications White Paper, some time ago, to religious broadcasting's "particular capacity to offend". That was an unfortunate and unnecessary phrase, which we would not use today and it is not the basis for our proposals for continuing restrictions.
More generally, we are confident that Ofcom will take seriously its role in maintaining and strengthening public service television broadcasting, and will not wish to see religious broadcasting marginalised. Our policy 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, as is the case with cable, satellite and digital terrestrial broadcasting, there are no restrictions, because there are enough opportunities for several religions to offer services and for other non-religious services to co-exist with them in offering a diversity of services. It follows that restrictions could be removed in the event that significant new broadcasting spectrum were to become available. That would not require primary legislation and could be done by order. I shall go further than saying that it could; I can assure the House that it would.
It follows that in the event of any new classes of licences being introduced, we would carefully consider whether religious organisations should be able to hold them; there would not be a presumption that they cannot. The decision will turn, as now, on questions of broadcast spectrum scarcity and we are proposing to amend the Bill to reinforce that point.
The Bill will remove all unnecessary restrictions on religious bodies holding licences and will greatly increase broadcasting opportunities by allowing religious bodies to hold licences to provide both national and local digital radio services, and digital terrestrial television services, as well as TV-restricted services. The only remaining restrictions on religious bodies holding broadcasting licences will relate to Channel 3 and Channel 5 licences, national analogue radio licences and multiplex licences.
To put all that in context, under our proposals religious bodies would not be able to hold the 16 ITV licences, the Channel 5 licence and the three national radio licences now held by Classic FM, TalkSPORT and Virgin—20 licences in all. However, they can hold any of almost 900 different cable, satellite and digital broadcasting licences. As a matter of fact, religious bodies currently hold around 40 UK broadcasting licences of one kind or another.
I am aware that there are some who are disappointed that any restrictions at all remain, but, again, I am grateful to the senior Church leaders who have given a "cautious welcome" to the ownership provisions in the Bill, on the grounds that they are a step on the way to the complete removal of restrictions on religious bodies holding broadcast licences.
I shall concentrate on the case for the continuing restriction on national analogue radio licences. As I have said, there are only three now—Classic FM, TalkSPORT and Virgin 1215 AM. At present, there is not enough spectrum to allow more nation-wide services of that kind. Given that fact, it would not be appropriate for one of those licences to go to a religious organisation. One should remember that that could happen if a rich religious organisation were to make an offer to Classic FM, to TalkSPORT or to Virgin that they could not financially resist. We do not believe that a religious radio service, however popular it would be with many, would have sufficient appeal to justify it having one of only three national licences. We have been very careful in reaching a decision about the national analogue radio licences to ensure that there is a variety. That is why we have insisted that one of them should not be pop music and that one of them should be mainly talk and not music at all.
We are also concerned that it would be invidious, and perhaps unfair, for only one religion or one religious tendency to have a national station, and others not. We therefore take the view that, as a religious organisation will not provide a service which has a sufficiently wide appeal to justify using one of only three such licences, it is more honest and more transparent to set that out in the Bill rather than leave it to Ofcom. Of course, we could leave it to Ofcom—we could apply internal criteria in the granting of licences—but that would not be the open and honourable course. If we take a particular view, it is better to say so: Parliament should take the decision, rather than it being at the discretion of a regulator.
In any case, Ofcom's discretion is limited in the case of national analogue radio licences, since they are normally awarded to the highest bidder, as I have just pointed out. That would mean that a well-funded religious organisation could out-bid all the other organisations in order to broadcast a national radio station serving one particular faith community and one only—unless they were to buy all three of the national analogue channels, which would be an extreme case.
The rationale for the bidding system for national licences is that it enables the market to develop a popular and sustainable service. The highest bid is a proxy for popular appeal. In the case of a religious organisation, non-market factors would apply—in other words, faith would be the main consideration. A well-funded religious body could not just out-bid other organisations; it could run its national service on a non-commercial basis through subsidy, subscriptions and other forms of support. That would not necessarily produce a popular service. The need to rely on subsidies rather than advertising would suggest the opposite.
Conventionally commercial bidders for a national analogue licence will aim to provide a popular service with wide appeal so as to ensure a financially viable business, but if some bidders deliberately set out to do that on a non-commercial basis there would be a risk of national analogue services, which are of enormous importance to large sections of the public, not appealing to the largest possible number of listeners. Is it right to put Ofcom in the position of having to use the power that it has to rule out a religious body? Surely Parliament should do that.
The Government believe that 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, means that we need to retain the restriction on religious bodies holding such licences. We have therefore looked at ways of making the restrictions work in a way that tries to meet the concerns of religious broadcasters. Our amendments would reverse what one might call the "default position" in the case of religious bodies.
At present, religious bodies are disqualified persons for all licences but, at Ofcom's discretion, can hold certain licences listed in the legislation. In theory, that would mean that if a new category of licence were introduced, religious bodies would automatically be disqualified. The amendments introduced in another place would make it clear that religious bodies are disqualified only in relation to licences specified on the face of the Bill; in other words, they are now ruled in until ruled out, rather than the other way around. Again, I was pleased to see that senior Church leaders welcomed that change.
The communications White Paper recognises that the restriction on religious bodies holding local digital sound programme services is an anomaly. Therefore, we propose to implement those parts of the Bill which remove restrictions on religious broadcasters two months after Royal Assent. It is still our intention to implement all other ownership changes in December. I hope that means that religious broadcasters will not have to wait any longer than necessary—I am thinking literally about 17th September—before they can take up new broadcasting opportunities. Government Amendments Nos. 130H to 130K are necessary to achieve that. They allow the ITC and the Radio Authority to stand in the shoes of Ofcom for these purposes until Ofcom acquires their substantive licensing powers at the end of this year. Again, I am pleased that that has been welcomed by senior Church leaders.
The Bill, taken as a whole, ushers in a new era for religious broadcasters with greatly increased access to broadcasting licences as the scarcity of spectrum has decreased. If the Bill is agreed, the restrictions on local and national digital programme licences and the digital services licences needed to provide radio on Freeserve should be lifted by the middle of September.
Once this happens, new opportunities open up. Local digital radio multiplexes are still being licensed so religious broadcasters can obtain some of those spots. In the case of existing radio multiplexes, there should still be chances for religious bodies to obtain slots on those multiplexes which are currently unfilled or become vacant in the future, and there are opportunities to take up radio slots on Freeserve. We remain convinced that while spectrum scarcity continues, the case for some restrictions remains. But where restrictions can be removed, they have been removed. This Bill offers huge opportunities for religious broadcasters.
Finally, the Secretary of State intends to convene a forum later in the year to have a high-level discussion with religious broadcasters about the future of religious broadcasting. This will provide an opportunity for those with an interest to have a dialogue with the Government. It may be that a number of the issues that have been debated but not always agreed in this House can be more fully aired in this context. I commend the Commons amendments to the House.
Moved, That the House do not insist on its Amendment No. 130 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 130A to 130L in lieu thereof.—(Lord McIntosh of Haringey.)
Baroness Wilcox (Conservative)
rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 130 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 130A to 130L in lieu thereof, leave out from "House" to end and insert "do insist on its Amendment No. 130".
Baroness Wilcox (Conservative)
My Lords, I beg to move Amendment No. 130M as an amendment to the Motion standing in the name of the noble Lord, Lord McIntosh, to insist on Lords Amendment No. 130 to which the Commons have disagreed.
We on these Benches do welcome the steps the Government have taken with these amendments. They provide greater assurances to religious broadcasters for, in the words of the Minister today and of the Secretary of State in another place, Tessa Jowell, they are now ruled in until ruled out, rather than the other way around. Unfortunately, however, ours is not a stance that can be softened by tweaking the emphasis on the face of the Bill. It is a matter of principle. There is a principle at stake here and no amount of compromise drafting will make a difference. It is absurd and a violation of human rights, whether currently included in existing human rights legislation or not, to single out religious organisations in primary legislation and ban them from entering the competition for certain categories of broadcasting licence.
We have covered this ground many times before, but with the addition of the plurality test there is even more force to the argument that the Bill as it stands provides more than enough safeguards. We are told that the issue is one of spectrum scarcity. The fact that that argument is not advanced about any other type of broadcaster, however questionable their moral stance, or in any other country, speaks volumes.
There is evidence that with better spectrum management there could be a fourth and a fifth national analogue frequency for which religious organisations and persons will still not be allowed to compete. For free and fair competition in a democracy, a principle which this Government endeavour to embrace, everyone should be able to put a bid forward. Even if there is only one national analogue frequency or one apple in a basket, religious groups should be able to put forward a bid alongside everyone else. Everyone else, be they, as it is now, pornographers or criminal organisations, can apply—but not religious groups. I certainly do not see why the Government are so worried about religious groups.
We supported the Bill because we believe that it is fair. It encourages competition—open, fair and free competition—with safeguards enforced by the noble Lord, Lord Currie, who we have become used to seeing and hearing in this Chamber. He has been present for every stage of the Bill, which is most encouraging for the future. But the government amendments are not fair. This is not a fair deal.
As past chairman of the National Consumer Council and now president of the National Consumer Federation, I have fought long and hard so that consumers should have access to the widest possible choice. The government amendments would deprive them of this opportunity. For consumers of goods and services to be king, government restrictions must always be kept to a minimum. While I am pleased to see that many restrictions have already been abolished by the Bill, for some inexplicable reason the Government feel it necessary to hang on to this one. We have argued time and again that the Government's logic on this issue is flawed and it is difficult to understand the Government's motivation on this issue.
"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 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".
I listened to the Minister as he repeated things over and over again, and I believe that he protests too much and that something is amiss here.
Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 130 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 130A to 130L in lieu thereof, leave out from "House" to end and insert "do insist on its Amendment No. 130".—(Baroness Wilcox.)
The Bishop of Chester (Bishop)
My Lords, my friend the right reverend Prelate the Bishop of Manchester is unable to be in his place today. He and his wife are hosting, I hope, a dry lunch for 140 guests at his house, which is part of a programme of welcoming people in his new diocese of Manchester to their home. He is sad not to be here as he has burnt the midnight oil and followed the progress of the Bill most closely.
On his behalf and mine, I shall begin by referring to the comments made by the Secretary of State in another place. She spoke of the value of religious broadcasting and the integral part played by the faith communities in the life of the United Kingdom. I welcome her comments, echoed today by the Minister. The life and work of these communities can never be taken for granted and it is welcome to hear it being so well acknowledged. Faith communities want to involve themselves in their wider communities and the new full deregulation of digital radio licence ownership provided in this Bill for religious bodies will provide them with greater means of serving those communities and enhancing them. In the same way, the improvement of the provisions for public service broadcasting, especially religion on television, will permit this vital aspect of national life and culture to interact with the whole community. We are grateful for those changes.
I also welcome the Secretary of State's comments in another place, repeated here today, about the early lifting of digital licence restrictions for religious bodies, which should bring some relief to them because they have hitherto been excluded from this marketplace.
I turn now to the amendments before the House. From these Benches, we continue to support the complete lifting of the disqualification on religious bodies. There are two elements to the disqualification. The first is that certain licences are not available to religious bodies, and the Minister set out which they are. I believe I can give the assurance that, in any event, the Church of England could not afford to buy any of them and therefore we would not be directly affected in the immediate future. However, for the reasons given, the danger that that could happen is genuine. The second element is that there is, as it is termed in the legislation, a determination to be faced by religious bodies before they can apply for licences.
We look forward to the ending of both disqualifications, although the one relating mainly to analogue services will naturally fall out in due course. However, we recognise that the amendments are a step in the right direction. Therefore, despite certain reservations along the lines of the principles set out by the noble Baroness, we want to give a cautious welcome to the amendments, as echoed in yesterday's statement by religious leaders across the board. Our reasons are as follows.
First, the licences still restricted are relatively few, numbering 20. I believe that in a sense we can discount that restriction in the short term, especially as they are analogue licences. Secondly, the notion that religious bodies will face a determination is less satisfactory. In some ways, it is unfortunate that that is on the face of the Bill. We look forward to the time when the availability of spectrum means that those restrictions can be released.
On the other hand, we believe that some controls need to be retained in order to protect children and vulnerable people from exploitation. That might well be done through the normal processes of Ofcom. However, we should not underestimate the need for a certain amount of caution as we deregulate broadcasting and allow religious bodies access across the board.
At present, that is to be achieved through ownership restrictions. We believe that ideally there would be another and better way. It is hoped that the ministerial review, announced yesterday and referred to again by the Minister, will address what the long-term safeguards for religious broadcasting should be like. But we need to be honest that religion can be a force for both good and bad in the world. While I fully accept the basic principles enunciated by the noble Baroness, I believe that we must be fairly down to earth and honest about the role of religion in the modern world. To my mind, that is not an argument against religion. The best things in life can be converted to the worst, and that is a general rule.
Why are the amendments a step on the way? They are cast in terms, exactly as the Minister said, which create a positive climate in favour of religious broadcasting. In that sense, we reverse the presumption against it. That is why, while acknowledging the force of the arguments advanced by the noble Baroness, Lady Wilcox, ultimately I am not persuaded that this House should seek to insist on its original amendment.
This legislation marks a sea-change from the previous regime under the 1990 and 1996 Broadcasting Acts. I remind the House that yesterday's statement involved the right reverend Crispian Hollis, Bishop of Portsmouth and Roman Catholic spokesman for communications in England and Wales, the reverend David Deeks, Co-ordinating Secretary for Church and Society for the Methodist Church, and other Church figures, together with the right reverend Prelate the Bishop of Manchester. In their statement, they welcomed the Government's amendments as being good progress towards our ultimate goals.
When I was a teacher in higher education, I remember that if I had a student whom I considered to be at least on the way to where he should be, I used to give sympathetic understanding if I felt that he was not yet quite there. In a sense, that is how we feel about these amendments. Perhaps I may also add that my friend, the most reverend Primate the Archbishop of York, who is chairman of the Archbishops' Council communications group, has also indicated his support for the position set out in yesterday's statement.
For those reasons, while caught a little by forces pulling me in two directions, ultimately I wish to give the Government my support on this occasion.
Lord Phillips of Sudbury (Liberal Democrat)
My Lords, my name appeared with that of the right reverend Prelate the Bishop of Manchester at an earlier stage of the Bill when we tabled amendments to what was then Clause 261. Our objective was that more positive regard should be paid to religious broadcasting. We are grateful that the Government responded to that and we now have a far better Bill in that regard. Like others who have spoken, I believe that progress has certainly been made.
It is odd to disagree on this matter with a right reverend Prelate, who should, after all, be my master. However, I cannot help feeling—perhaps it is my East Anglian background—that he was a little too supplicant in what he said. The analogy of the student was somewhat odd. The Government are not our student; they tend too much to be our master.
I believe that a principle is involved here. Although, as a good lawyer of the common law school, I believe that one should err in favour of pragmatism rather than principle, because principles can throw dust in one's eyes, I do not accept a pragmatic reason for overturning the amendment that we put into the Bill.
Perhaps I may remind the House what the noble Lord, Lord McIntosh, said, in introducing the amendment, as he did so fully. He said:
"The highest bid is a proxy for popular appeal".
That is a very modern statement, is it not? It does not matter who it comes from—pornographer or crook; money is the answer. Then he said that it was different if the moneybags was a rich religious organisation. Thus, apparently, money is no longer the dominant indicator of popular appeal.
If we are talking about popular appeal, it is just as well to remember that according to the latest census, which has recently been published, well over 80 per cent of the people of this country still describe themselves as "Christian". Noble Lords may wish to dissent from that, but that is how people see themselves.
Lord Phillips of Sudbury (Liberal Democrat)
My Lords, honesty forbids me from pursuing that line. However, 71 per cent is not bad. I believe I was confusing the figure with that for all religious denominations, including Muslims, Hindus, Sikhs, Buddhists, Confucians, Jews, Zoroastrians, and so on, which came to well over 80 per cent.
I am perplexed as to how, whether in logic, principle or pragmatism, one can hold the view that money talks when it comes to such bodies, except if it is religious money. I say that particularly in an age where, even if one is not religious—whether one is a convinced atheist or an agnostic—there is a general sense of a lack of spirituality in the life of the nation and an excess of materialist influence. It is odd that an eroticist can purchase one of these radio channels and that that is all right.
The truth is that provisions in the Bill will allow Ofcom to cut out anyone who is not "a fit and proper person" or someone who is not going to be responsible or who is going to be exploitative. That is the answer to the fears expressed by the Minister regarding the potential for a religious purchaser of one of these channels. However, as the right reverend Prelate said, it is a long shot. Therefore, I am afraid that I cannot accept the Commons amendments.
Baroness Howe of Idlicote (Crossbench)
My Lords, I, too, am very concerned about the Government's proposals and I support the noble Baroness's amendment. I agree very much with what the noble Lord, Lord Phillips, said. We certainly have not had a clear explanation as to why this particular group should be treated differently from some fairly dubious other groups, which apparently would be looked upon equally favourably.
Also, we have been told again and again that the regulation of this country—we have just heard two examples of how tough it would be—is sufficiently strong to deal with almost anything: for example, unsatisfactory foreign owners coming in. We have the plurality/public interest test available, quite apart from the other aspects. We are told that this concerns only a few licences. I think I heard the Minister correctly in saying that restrictions will be removed as and when. If they are going to be removed eventually, why not now?
I praise the Government for the considerable thought they have given to this matter. That is not a contradiction in terms. Obviously, they agonised over this and have gone a long way to include the religions of this country in what they are doing in the Bill. Also, I see the attraction of setting up a government body in which these as well as other religious issues will be discussed, no doubt in a slightly less frenetic setting. I have still not heard a good reason as to why the particular restrictions which exist cannot be removed.
I remind noble Lords—I rather hope that we shall be reminded again in a moment or two—that many people regard the continuing of these restrictions as a human rights issue and one where, clearly, if they persisted the Government could be called to account. I very much hope the Government will think again, although I congratulate them on certain concessions they have made.
Lord Brennan (Labour)
My Lords, I welcome the changes, of which the Minister told the House, in the amendments proposed by the Commons. However, in so doing I register with the House the concerns that led to a change of thinking by the Government, which they very generously stated had occurred.
The first was the very simple proposition that if one has a system of broadcasting which is opened up to all to apply, it is unreasonable and discriminatory to isolate any particular group in society from the right to apply. The only two exceptions provided for by the Bill, other than religious broadcasting, are political parties and advertising agencies, each of which, in a democratic context, it can readily be accepted can justifiably be excluded.
The first point of concern is that of discrimination. I seriously invite those on these Benches to consider how they would feel if a trade union or a group of trades union, and a gay and lesbian organisation wanted to acquire a radio licence and were told that they were not allowed to apply. Surely, that would be regarded as basically discriminatory. I do not see why, logically, those involved in religious broadcasting should be any less advantaged than others.
Secondly, that is why, when they defended the claim before the European Court in Strasbourg about this question a couple of years ago, the Government accepted that this law was a breach of Article 10 of the Human Rights Act but explained that it was necessary in the particular context of our society for the one and only reason of spectrum scarcity.
Thirdly, the question arises of whether spectrum scarcity, within the words of the Human Rights Act, is representative of a pressing need and necessary in the interests of democracy so as to justify this exclusion from application by religious broadcasters. I am gratified to see that in these amendments the Government have gone a considerable way to extend the area in which application can be made.
However, I want to raise three technical points. The first is that of analogue and only three channels. France and the Netherlands have just changed their analogue system dramatically, considerably to increase the number of channels available. If the reason for spectrum scarcity is really technical and temporary—transient—it is difficult to see how a legislative disqualification should be permitted to continue. If it is to continue, what are we doing about analogue channel distribution?
Secondly, there is the question of multiplex. If there are several hundred of these channels and one creates a multiplex system in which every eight or 10 are put into a multiplex unit, common sense justifies the owner of the multiplex acquiring it and distributing the slots as he or she thinks fit in commercial terms. But the Bill denies a religious organisation the right to have a multiplex licence. It puts the religious broadcaster at the commercial mercy of the multiplex owner and makes it very difficult to understand in market terms how a religious broadcaster will acquire an individual slot. I have mentioned analogue and multiplex digital systems because we are basically talking of radio.
The embarrassment we face, not politically but as a state of affairs in our country, is that at present people are talking of going outside the UK to get licences in Spain or France to broadcast back to the UK—an absurd position—or we face foreign owners outside the European Union broadcasting in, especially on cable or satellite. Otherwise, we would be caught by the disqualification requirements. All I ask is that we give continued and urgent consideration to that particular problem if, as I understand it to be, the key question is spectrum scarcity.
My next—penultimate and short—point involves the question of equality. The House may not understand that when we talk in this context about religious organisations, the statutory definition is really any company or people in a company, who have significant religious connections. That is what is meant: companies. I should like noble Lords to consider the following facts. Mr Rupert Murdoch's organisation, News International, is a major international company in the media field. In the United States of America it, or its associates, owns Zondervan, the biggest and most reputable Bible and religious publishing company. Zondervan is closely connected in this country with HarperCollins UK and has a portion of an interest in an Anglican publishing house called Fount. The word I mentioned is "equality". Is Mr Murdoch's application for a licence for anything to be considered equally with the religious broadcasters when he has those associations to his company? It might be said that these limitations do not apply to people abroad. If that is correct it does not sound equitable. If it is said that they do apply to people in this country, why is he not caught?
I merely give an example of how experts in the field, civil servants, can get themselves into a mindset which eventually can reach a stage which borders on the ridiculous. I do not think that the Government want or intend that. So, I vastly welcome the consultation that they promised, which I hope they will allow experts to attend. I understand that a few weeks ago the Government were sent expert comment about spectrum scarcity—including some from an expert they use themselves—saying that it was not a real issue. No reply has yet been received. It is very important in this field for Ministers to use their own judgment when dealing with experts and advisers. I think that is why, when the Minister and the Secretary of State cast their minds to this topic, they made such a significant change; but, surely, there is more to come.
This is a memorable little parliamentary occasion because of its irony. The Benches opposite, which now proclaim the value of human rights and that the dignity of the citizen should apply, were in their time the very Benches that introduced this legislation. I admire their Damascene conversion. It may be belated, but I hope it will continue when we look at other Bills in this House which involve human rights and discrimination.
I hope also that the ingenuity and flare of the Minister, which he has displayed so well during the passage of the Bill, will continue to be directed at getting rid of this last little piece of law in this country, which uniquely is the only country in Europe that has this limitation.
Lord Alton of Liverpool (Crossbench)
My Lords, the noble Lord, Lord Brennan, with his usual acuity, has brought us back to the issue. With his unrivalled track record in dealing with human rights questions and issues of discrimination, he has reminded us that this is ultimately an issue that involves discrimination. The noble Baroness, Lady Wilcox, spelt that out at Second Reading. I said in a speech at the time that if she brought this issue to a Division, I would support her in the Lobbies. I shall do so today.
My noble friend Lady Howe has also rendered the House a service by reminding us, as has the noble Lord, Lord Phillips, that the issue comes down ultimately to a question of discrimination. I think that a double discrimination is involved here. It is not simply that we are debarring people from having the same opportunities as others merely because of their religious beliefs, but, ironically, it is possible for people outside this country—a matter alluded to by the noble Lord, Lord Brennan, a moment ago—to broadcast into the United Kingdom over the heads of the authorities in this country via satellite. Some of the very worst kinds of religious broadcasting that should exercise the minds of your Lordships are able to come into the United Kingdom via satellite. So it is double discrimination.
We prevent people in whom we would have great confidence, such as the right reverend Prelate the Bishop of Chester, who spoke earlier, from our own Church of England and other churches in this country, from having the opportunity to broadcast, while we allow the Televangelists or others who often focus on matters such as fund-raising and so on to broadcast into the United Kingdom.
So I think that the Government have recognised there is a problem here. In his speech earlier the Minister said that we have made much progress and have moved a long way from the position we were in at Second Reading, which is a demonstration of why the amendments considered in Committee and on Report have been of real worth. Like other noble Lords who have spoken, I welcome the fact that the Government have moved their position, but I think the basic issue of discrimination, raised by the noble Baroness at Second Reading, will still stand if the Bill were to proceed in an unamended form. We should bring that issue to the attention of another place and ask them whether they will go that extra bit of the journey referred to by the noble Lord, Lord Brennan.
So, without being unnecessarily provocative and recognising that ultimately another place will have its way in the matter if it so decides, and welcoming the progress that has so far been made, I think it is worth trying to go further on this basic issue of discrimination against those in this country with a religious outlook.
Lord Elton (Conservative)
My Lords, the trouble with the conference that the noble Lord, Lord Brennan, looks forward to with such hope and confidence is that it will take place after the Bill has reached the statute book. We are actually making the law for now, not as it may be in a few years' time. We are legislating, it seems, for the spectrum that is available now rather than as it will be in a few years' time. The question I cannot avoid asking myself, and therefore the Minister, is: if the other provisions in the Bill are insufficient to regulate religious broadcasters, how will they be sufficient to regulate anyone else? If the provisions are not sufficient to regulate anyone who broadcasts, the Bill itself is defective and should not be on the statute book anyway.
If Ofcom is not sufficient to regulate religious broadcasting now, how will it become so when the Minister proposes to remove restrictions when more spectrum is available. There seems to be a conundrum: either the thing works or it does not. If it works, it should control everyone; if it does not, it is not fit to control anyone. All that is against the background of the threat to human rights and the proposed referral to the United Nations Commission at Geneva under Article 10, to which the noble Lord, Lord Brennan, has obliquely referred.
I ask your Lordships to bear in mind also what the noble Lord, Lord Phillips, said at the beginning. He said that we are living in a period when the whole tone of social understanding and behaviour is very much influenced, if not governed, by the media and what goes on in it. The Minister made a strong comment at the beginning about the availability only for the time being of three programmes on analogue terrestrial radio and said that not one of those should be dominated by a religious faith, but nothing about a multiplex which was open to all faiths. Why not a multi-faith broadcast on a multiplex station?
All faiths have a right to be heard on air and the debate between them should be free for people to make up their own minds. I think therefore that the Bill is defective. It is also a gag which should not be applied in this respect.
Lord McNally (Liberal Democrat)
My Lords, in the early stages of the Bill we supported the amendment moved by the noble Baroness, Lady Wilcox. However, during this debate we have listened to two very important statements: one from the Minister himself, which I think was none the worse for its fullness and for the degree of movement it showed in the Government's thinking; and the other from the right reverend Prelate.
At this stage of a Bill, it is incumbent on this House to listen to statements such as that made by the Minister. I know that will bring some disappointment to the noble Lord, Lord Luke, and the noble Baroness, Lady Wilcox, who were hoping for our support today, and indeed to colleagues such as my noble friend Lord Phillips who is looking for a certain consistency. It will also come as a disappointment to the Centre for Justice and Liberty, which has been a vigorous campaigner for change.
Anyone listening to the debate would concede that considerable progress has been made and that both the Government and the Churches are approaching this issue in a constructive spirit. I have more confidence than the noble Lord about the promised conference. I certainly hope that that conference will deal not just with the position of specialist radio and television stations, but with the perhaps even more important fact that we want mainstream religion to be kept on mainstream channels. We do not want it to suffer the same fate as politics and be pushed out into the ghettos and the further extremes of the schedules because we have been reminded that there is still a great religious undercurrent in this country.
In such circumstances, I always fall back on the advice of probably one of the greatest general secretaries of the TUC, George Woodcock, who said that good trade unionism consisted of a series of shoddy compromises. And sometimes so does good politics.
The religious arguments have been well made during the Bill's passage. The Government have responded constructively. I hope that the Conservatives now feel that enough is enough. If they do not, in the light of what the Minister and the right reverend Prelate said, it would be frivolous to send the Bill back to another place and we shall support the Government in the Lobby if there is a Division.
Lord Kilclooney (Crossbench)
When the noble Lord, Lord Phillips, said that 80 per cent of the country was Christian, he was quickly corrected by the right reverend Prelate, who rightly said that 71 per cent was Christian, and 80 per cent in the diocese of Chester. But of course, the Bill is not just for Chester; it is not even just for England and Wales; it is for the United Kingdom. If Scotland and Northern Ireland are still to be considered as part of the United Kingdom, because Presbyterianism and Roman Catholicism are strong in both countries, I can quickly upgrade the percentage from 71 back to 80; 80 per cent of this country is Christian.
I noticed that the Minister four or five times claimed assistance from Church leaders. The right reverend Prelate said that Church leaders across the board were giving a cautious welcome to the Government's position. What exactly does "across the board" mean? Who are these Church leaders "across the board"?
There is an interesting development here in Britain—not so much in the United Kingdom, but in Britain—of a great growth in evangelical Churches involving many in the black community. There is also a council of free churches, including the United Reformed Church. Are any of those Churches included in "across the board"? Do they support the Government's position?
Lord McIntosh of Haringey (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Labour)
My Lords, this has been a deeply serious debate and I am grateful to all who have taken part in it. Perhaps I may start by referring to the speech made by the noble Lord, Lord Alton, because something he said so misunderstands the Government's position that it would be wrong for me not to correct it at the outset. Just before he sat down, he described our position as discrimination against those who have a religious outlook. Nothing could be further from the case.
My personal position is well known—the noble Lord, Lord Alton, knows it; he knows that I am not a religious believer. But that is entirely irrelevant. If we consider the Bill's progress through this House and legislation since 1990 and 1996, it will be seen that in every respect regard for religion, for religious broadcasting and for the rights of the Churches to be heard has been high on the Government's list of priorities. I think that the noble Lord, Lord Alton, understands that point.
On the issue of ownership of broadcasting channels, which is, after all, what we are debating, apart from three national analogue stations for which there is spectrum scarcity—and only while there is spectrum scarcity, not thereafter—we believe that restrictions should be maintained. Only for the 16 ITV franchises—which are, after all, monopolies of independent television first choice, so to speak, in their geographical areas—and for Channel 5, which is a national channel, are we proposing to retain restrictions. For all the other channels—and there are about 900 of them—restrictions that existed under the 1990 and 1996 Acts will be removed by the Bill.
On the question of the religious content of broadcasting, which is by no means the same thing as religious ownership of broadcasting channels, I believe that there is universal recognition that the role of religion in our society has been fully recognised in the definition of public service broadcasting and in the standards required of all public service broadcasters—not just the BBC but all those who aspire to public broadcasting status, which, unlike in other countries, includes the vast majority of broadcasting in this country in terms of audience.
We have listened and introduced amendments to protect the interests of religion in broadcasting and—I say to myself and to my noble friend Lady Whitaker if she is present—and other beliefs. The issue of respect or otherwise for those who have a religious outlook is not before us.
Specific points have been made and those of the noble Baroness, Lady Wilcox, and others deserve a specific answer. She and others, notably the noble Baroness, Lady Howe, referred to human rights. We have rules on these things. The Joint Committee on Human Rights has approved our position. We respect its judgment on that; it is respected across both Houses and across all political persuasions. Applications to the European court for a ruling that our position is wrong have been declared inadmissible by the court. There is no case to be made under the European Convention on Human Rights that we are outwith those rules.
The noble Baroness mentioned the plurality test as being an influence on our judgment. The important point is that the plurality test applies only to mergers. We are here discussing the possibility of acquisition by the highest bidder of a particular national analogue station, which would fall outwith the merger regime. Therefore, the fact that we have applied and strengthened the plurality test during the Bill's progress does not detract from our argument about the restrictions.
Points were made by the noble Baroness, Lady Wilcox, about pornographers and criminals, by the noble Lord, Lord Phillips, about eroticists and by the noble Lord, Lord Elton, about others who would be inappropriate to own television or radio stations. Of course that is the case. Ofcom has the responsibility of deciding who is a fit and proper person. Surely it is not being argued—we are certainly not arguing—that religious organisations are not fit and proper persons. They may comprise admirable people. Our point is quite different: it would be unfair in those limited cases of spectrum scarcity or local monopoly to allow religious organisations to bid and not to make clear to them that it is Parliament's decision that they should not be allowed to bid. That would be putting off onto the regulator that which should be a decision of Parliament.
Lord Elton (Conservative)
My Lords, I am very seized of the point about equal treatment of all. Why, when the only issue now appears to be spectrum scarcity, pick on this one category to exclude from bidding? That must be discriminating against them and in favour of the rest.
Lord McIntosh of Haringey (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Labour)
No, my Lords, because the others can be excluded on the grounds that they are not fit and proper persons. I should be shouted down if I said that religious organisations were not fit and proper persons. Forty religious organisations hold broadcasting licences in this country. They are and can be fit and proper persons. That is not our argument. Our argument—to which I shall turn next—concerns the widest possible choice, an issue raised by the noble Baroness, Lady Wilcox. That is the point about those local monopolies and national analogue radio stations.
The right reverend Prelate the Bishop of Chester very fairly recognised the dangers of a rich sect buying a licence. The noble Lord, Lord Phillips, disagreed, but it was a fair point. It could happen; there are sects, particularly in the United States, representing, perhaps, a minority view in a religion but with the financial power to buy out TalkSport, Classic FM or Virgin 1215. I do not think that any noble Lords would think that that supported the range of religions in this country, let alone the range of popular choice.
Lord Phillips of Sudbury (Liberal Democrat)
My Lords, I am most grateful to the Minister for giving way and am sorry for interrupting his flow. He talks of the rich, American, nutty religious organisation buying in that way. Does he not accept that they would be caught by the "fit and proper person" test if they were sufficiently exploitative and nutty? However, if they comply with that test, what is the difference between such a sect and a commercial bloke with real attitude who wants to put across a whole set of ideals and values that might be, in the eyes of some, unhelpful to the public weal?
My Lords, I did not use the words "exploitative" or "nutty"; the noble Lord, Lord Phillips, did. We have had the bidding procedure for 13 years and it has worked perfectly well until now. There have not been the kind of problems that the noble Lord, Lord Phillips, anticipates. The motivation for bidding high to run a national analogue station is to reach a large audience. That is what makes for popular radio and what people want. We fear that the involvement of those with non-commercial instincts in those matters might restrict the range of choice for customers.
The noble Lord, Lord Brennan, made several points, to which I shall attempt to respond. He started by talking about political advertising. I want to take the opportunity of what he said to clarify a remark that I made earlier, perhaps in jest, to the noble Lord, Lord Thomson of Monifieth, that the Government believed that the ban on political advertising is in conflict with the European Convention on Human Rights. I should have said that we were unable to make a statement on the front cover of the Bill that the provisions are compatible with the European Convention on Human Rights in the terms required under the Human Rights Act. It is a significant restriction. We believe that there are strong legal arguments that the ban would survive challenge. Nevertheless, for the avoidance of doubt, we made that caveat to the statement that we normally make.
The noble Lord, Lord Brennan, said that other countries do not have spectrum scarcity of analogue radio as they have broken it up. That is why we are talking about only the three national analogue stations. There are no restrictions on religious broadcasting on the many local analogue stations. The noble Lord said that religious organisations would be at the mercy of a multiplex owner. The evidence of that is to the contrary. There are religious organisations holding licences under multiplexes owned by others.
The noble Lord talked about equality. I did not quite see the point of the argument about Mr Murdoch, but I knew that he had to come into the debate at some stage—the noble Lord, Lord McNally, refrained from mentioning him.
My Lords, I shall leave the noble Lords, Lord McNally and Lord Brennan, to fight that out.
The procedure has worked unchallenged since 1990, and I see no reason why it should not continue during what I hope will be the relatively brief period of spectrum scarcity. The noble Lord, Lord Brennan, said that we were the only country in Europe. I could go wider than Europe; but, to take one example, in the Netherlands all broadcasters must produce programmes that reflect the full range of religious and philosophical tendencies. That would be difficult for some religious broadcasters. I think that the noble Lord would agree that that would be what others have called discrimination.
Lord Brennan (Labour)
My Lords, perhaps I may assist the Minister. I was not dealing with countries that do not allow religious broadcasting in the public sector because it is against their constitutions and so on. My argument was directed at the independent sector.
My Lords, it is exactly in the independent sector that we allow religious broadcasting. There is no conflict. I have provoked several noble Lords to their feet by attempting to answer as literally as I can the points raised in debate. I must return to the fundamental point.
Lord Elton (Conservative)
My Lords, I point in the direction of the noble Lord, Lord Kilclooney, because it appeared that the Minister was beginning to make his winding-up speech without answering the noble Lord's very pertinent question.
My Lords, the right reverend Prelate the Bishop of Chester listed those who took part in the statement issued yesterday. It included the right reverend Prelate the Bishop of Manchester and representatives of the Catholic Church and the Methodist Church. I do not think that I used the phrase "across the board". I am sure that in the time available it was not possible to reach all branches of the Christian religion.
Lord Kilclooney (Crossbench)
My Lords, my question was not who was included, it was who was excluded. The right reverend Prelate said that there was support "across the board" for the Government's position. I wanted to know whether the council of free churches, the evangelical churches or the United Reformed Church were involved. They are important sections of the Christian community in the United Kingdom.
The Bishop of Chester (Bishop)
My Lords, for the avoidance of doubt, the group comprised the right reverend Prelate the Bishop of Manchester; the Roman Catholic Bishop of Portsmouth, who speaks for the Catholic Bishops' Conference of England and Wales; the Reverend David Deeks, the co-ordinating secretary for church and society in the Methodist Church, in which he holds a very senior position; Peter Blackman, the director of the Churches Advisory Council for Local Broadcasting, which is soon to become the Churches' Media Council—clearly, he would hold a remit for a whole range of organisations, although I do not know the details of his contacts—and Andrew Barr, chairman of GRF Christian Radio, who was previously head of education and religion in BBC Scotland. Given the nature of the event, the group cannot include everybody. However, it is quite wide-ranging given that it was put together at very short notice.
My Lords, I do not think that I can go further than what has been said. Clearly, there are those within and outwith the Christian religion who have not been involved in these debates. If I may so, I do not think that that detracts from the very powerful speech of the right reverend Prelate the Bishop of Chester and his recommendations to the House.
As the noble Lord, Lord McNally, says, there are issues of such profound principle that we go back to the House of Commons and say, "Do not only think again once, but think again twice". That is what the noble Baroness, Lady Wilcox, is asking today. The noble Baroness based her arguments on a point of principle rather than one of detail, and I respect her for that. However, the issue of principle that we are discussing is that, so far as is reasonably practicable, we should encourage the greatest possible diversity and plurality, and the highest standards of broadcasting, in this country. We would be making a mistake if prematurely—I say "prematurely" deliberately—we removed remaining restrictions from those few licences that still suffer from spectrum scarcity, thereby running the risk of purchasing by sects that did not reflect the wide variety of demand for high quality broadcasting in this country. I urge those of strong religious belief, in particular, that they should recognise the extent to which the Government have gone to heighten and to encourage the role of religious broadcasting, and not to send the issue back to the House of Commons.
Baroness Wilcox (Conservative)
My Lords, I am grateful to all noble Lords who have spoken, both today and at earlier stages in the Bill. Nothing alters the fact that the Government are bringing in a Bill that is flawed. It is discriminatory to single out religious organisations in primary legislation and ban them from even entering the competition for certain categories of broadcasting licence. We stand by the principle and I wish to seek the opinion of the House.