Mr Peter Atkinson (Hexham, Conservative)

With this it will be convenient to take the following:

Amendment No. 150, in

clause 3, page 3, line 3, at beginning insert—

'( ) It shall be the principal duty of OFCOM to promote and further the interests of consumers and citizens.'.

Amendment No. 195, in

clause 3, page 3, line 3, leave out subsection (1) and insert—

'(1) It shall be the principal duty of OFCOM in carrying out their functions—

(a) to further the long-term interests of all citizens—

(i) by ensuring the availability of a diversity and plurality of high quality content in television and radio;

(ii) to secure that standards falling within subsection (2) are applied in the case of all television and radio services;

(iii) to secure the optimal use of wireless telegraphy of the electromagnetic spectrum; and {**12**}

(b) to further the long-term interests of consumers by promoting the efficiency of electronic communications networks and services, and broadcasting and to do so wherever possible by promoting effective competition in national, regional and local communications markets throughout the United Kingdom.'.

Amendment No. 151, in

clause 3, page 3, line 3, after 'the', insert 'further'.

Amendment No. 130, in

clause 3, page 3, leave out lines 4 to 13 and insert 'to further the interests of consumers and citizens—

(a) wherever possible by promoting effective competition;

(b) by securing the optimal use for wireless telegraphy of the electromagnetic spectrum;

(c) by securing the universal availability of a wide range of diverse and high quality communications services throughout the United Kingdom; and

(d) by securing standards falling within subsection (2) which are applied in the case of all television and radio services.'.

Amendment No. 29, in

clause 3, page 3, line 4, leave out 'where appropriate by promoting competition'.

Amendment No. 124, in

clause 3, page 3, line 13, at end insert—

'(e) to secure, so far as practicable and in the manner that best takes account of the need to protect personal data, in order to protect copyrighted content, and to empower parents to protect children from harmful content, that open standards for technological security systems are established and implemented.'.

Amendment No. 127, in

clause 3, page 3, line 13, at end insert—

'(e) to protect and promote the interest of citizens.'.

Amendment No. 27, in

clause 3, page 3, line 13, at end insert 'and in carrying out their functions, OFCOM shall have regard to the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed'.

Amendment No. 196, in

clause 3, page 3, line 20, at end insert—

'(2A) In performing their duties under subsection (1), OFCOM must observe the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.'.

Amendment No. 48, in

clause 3, page 3, leave out lines 21 to 23 and insert—

'(3) It shall also be the duty of OFCOM in carrying out their functions, and in the performance of their duties under subsection (1), to comply with the principles of good regulation, namely that regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.

(3A) Subject to subsection (3), it shall be the duty of OFCOM in carrying out their functions, and in the performance of their duties under subsection (1), to have regard in particular to such of the following as appear to them to be relevant in the circumstances—'.

Amendment No. 153, in

clause 3, page 3, leave out lines 21 to 23 and insert—

'(3) It shall also be the duty of OFCOM in carrying out their functions, and in the performance of their duties under subsection (1), to comply, except where issues of national security preclude compliance, with the principles of good regulation, namely that regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.

(3A) Subject to subsection (3), it shall be the duty of OFCOM in carrying out their functions, and in the performance of their duties under subsection (1) to have regard in particular to such of the following as appear to them to be relevant in the circumstances—.'.

Amendment No. 46, in

clause 3, page 3, line 24 after 'promoting', insert 'long-term and sustainable'.

Amendment No. 152, in

clause 3, page 3, line 24, at end insert—

'(aa) the rights of the citizen to access services which inform, educate and entertain;'.

Amendment No. 28, in

clause 3, page 3, line 25, leave out paragraph (b).

Amendment No. 47, in

clause 3, page 3, line 32, after 'encouraging', insert 'long-term and sustainable'.

Amendment No. 125, in

clause 3, page 4, line 3, at end insert—

'(n) the desirability of open standards for technological security systems to prevent unauthorised use of personal data and copyrighted content.'.

Amendment No. 131, in

clause 3, page 4, line 6, leave out 'and value for money' and insert 'value for money, universal access, fairness, information and redress'.

Amendment No. 34, in

clause 10, page 10, line 30, at end insert 'and'.

Amendment No. 35, in

clause 10, page 10, line 34, leave out from 'put' to end of line 37.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

Before I interrupted myself, I was saying at our earlier sitting that the Government's response to the Joint Committee was that they did not wish to attach greater weight to Ofcom's duty to further the interests of consumers through competition. The Government said:

''We are sure that the Committee will recognise how important it is that the duties properly reflect the breadth of all OFCOM's responsibilities, both economic and cultural''.

Indeed, there is no dissent on my part or anyone's part that the duties need to reflect the breadth of responsibility. The Government continue:

''and follow the proposition set out in the White Paper that each duty is of equal weight.''

My proposition is not that the duties have different weight, but that their structure should reflect the structure under which Ofcom should discharge its responsibilities. For example, its duty to protect the public against unwarranted infringements of privacy is no less important than its duty to further the interests of consumers, although some may argue that it is. My argument is that the duty to secure against unwarranted infringements of privacy does not represent the primary duty of Ofcom, but is a specific qualification to be set against the manner in which the regulator should approach the tasks. Listing the duties together would not necessarily mean that Ofcom would assume that it should attach exactly the same weight to the task of protecting the public against unwarranted infringements of privacy as it would to the task of promoting competition. That

would be ridiculous because promoting competition in markets is a predominant activity for Ofcom. In practice, even though the legislation treats those duties as being of equal value, Ofcom will recognise that its principal objective is to promote competition in order to further the interests of consumers.

Oftel has gone down that path. It has considered its duties under the Telecommunications Act 1984 and has concluded that, in current circumstances, it should treat the promotion of competition as its primary duty. Similarly, in the gas and electricity markets, Ofgem treats competition as its primary duty—but that does not mean that it has no other responsibilities. For example, Ofgem has to take its statutory environmental responsibilities into account. I want the Bill to reflect the way in which Ofcom will have to undertake its tasks.

Mr Simon Thomas (Ceredigion, Plaid Cymru)

The hon. Gentleman is right about the overriding duty of the other regulators to promote competition. Does he accept that the other regulators, such as Ofgem, have strong, independent consumer watchdogs, whereas Ofcom will not? Ofcom will appoint its own consumer watchdog in the consumer panel. Surely that is a material difference that means that, in the Bill, we cannot put commercial or competition duties above all else. The Bill will have to recognise the needs of citizens and consumers.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

I do not concur with the hon. Gentleman. If, in order to ensure competition, it were necessary to have a powerful consumer watchdog, we should have such a watchdog. Energywatch and Postwatch are doing their jobs well—especially Postwatch, which deals with what is, in essence, a monopoly. However, if one seeks to promote competition, one should accept that the interests of consumers are integral to the nature of the competitive market. It does not necessarily follow that a consumer watchdog is needed to ensure effective competition. The retail industry does not require a lot of consumer watchdog activity in order to be effective. The National Consumer Council and the Consumers Association operate at the margins, but they are not integral to the market.

The consumer panel will not necessarily be toothless. We will discuss that later. We may be able to make the consumer panel a little more independent of Ofcom, which would help. However, such considerations should not change the general duties that go in the Bill. That would be the tail wagging the dog.

I hope that I have explained amendment No. 1. However, I want to explain why it takes a particular form, which differs from that of similar amendments. Amendment No. 195 was tabled by the hon. Member for Milton Keynes, North-East (Brian White). I agree that it is important that Ofcom's principal duty should be set out as having different characteristics from all the other duties, and that Ofcom should have regard to that principal duty in all its work. However, amendment No. 195 contains two phrases that make it different from amendment No. 1. It refers to ''the long-term interests'' of consumers. The Joint Committee sought the inclusion of a reference to the

desirability of encouraging investment and innovation, which the Government subsequently inserted into clause 3(3). However, the ''long-term interests'' of consumers are distinct from the interests of consumers generally. It seems inherently dangerous to use the qualification ''long-term'' with ''citizens'', as it encourages the regulator to think that it has a greater knowledge of the interests of consumers than that which would be disclosed through the operations of markets. I did not use the words ''long-term'', although the Joint Committee did.

Mr Michael Fabricant (Lichfield, Conservative)

Is there not a further danger that the use of the phrase ''long-term'' will enable Ofcom to put off more urgent short-term decisions?

Mr Andrew Lansley (South Cambridgeshire, Conservative)

That risk is run; my hon. Friend is right. One could put off decisions on the basis that the long-term interests of consumers might be better served by not facing up to difficulties straight away. However, that is a difficult matter. We could spend a great deal of time examining particular examples in which that might be the case. The best example is that of energy markets and the new electricity trading arrangements, which are effective in delivering short-term benefits to consumers. The question of long-term investment arises, and it is being addressed in the review of NETA. We do not need to go far down that path.

Past experience of regulation has disclosed that the encouraging of investment and innovation is what is most likely to be in the long-term interests of consumers. That would not be reflected if no regard was paid to long-term interests. If that encouragement is there, it seems to me that the need for ''long-term'' is met.

Mr Michael Fabricant (Lichfield, Conservative)

My hon. Friend mentioned Ofgem. There is a contradiction about his amendment that makes me uncomfortable. With Ofgem, there could be an infinite number of electricity suppliers, although they would use a common network. With current technology, there cannot be an infinite number of broadcasters in a given area because of the restriction on spectrum. That might change in future, but as I have said, it applies now. For that reason, does my hon. Friend not think that there is an imbalance in the fact that Ofcom cannot be like Ofgem at the moment?

Mr Andrew Lansley (South Cambridgeshire, Conservative)

As my hon. Friend demonstrates, it would be dangerous for us to regard the two regulators as being parallel to one another. They deal with different markets, technologies and regulatory structures. Clearly, Ofcom will start off with even less competition than Ofgem had at the outset. However, as has been suggested, Ofgem has the ability to move towards the abandonment of price controls and the imposition of conditions. That, in principle, is the direction in which Ofcom should go. I will not disguise my belief that that is where it should direct its efforts. That is true in relation to broadcasters as much as to anyone else.

If the interests of consumers in relation to broadcasting cannot be protected by competition, other protection is available under the public service

remits for channels 3, 4 and 5 in particular. That remit provides protection without necessarily interfering too much with competition or ownership. On digital provision, I think that we are not far from having the multiplicity of suppliers to which my hon. Friend referred in relation to electricity. That was why I did not include a reference to the ''long-term'' interests of consumers.

We will start dancing on the head of a pin if we are not careful, but there is also the matter of the use of the word ''appropriate'' rather than ''possible''. Amendment No. 1 uses the phrase:

''where appropriate by promoting competition'',

I do not think that the purpose of Ofcom is to pursue competition wherever that is possible, but rather when it makes sense to do so. I am always distrustful of the word ''appropriate'', because it is an official way of getting out of defining what is really meant. Given that we are dealing with relevant market and the phrase ''where appropriate'', the matter of when to pursue competition is a judgment that Ofcom will have to make.

However, if there is a duty to promote competition ''wherever possible'', there is a risk that the judge standing at the shoulder of Ofcom will entertain more applications to review Ofcom's decisions than ought to take off. There needs to be that degree of discretion. If we cannot trust Ofcom to be a pro-competition regulator, the Bill will not work. We must give Ofcom the tools to do the job. Its primary duty is to promote competition. If that is not clearly stated, the opportunities for judicial review to constrain the pressure for promoting competition by reference to other duties would make it difficult for Ofcom to deliver. However, if we were to say that competition should be promoted ''wherever possible'', that might constrain Ofcom sometimes to go further than would be desirable.

I turn to proposed subsection (1A)(b). I have borrowed much of the Government's phraseology. I agree with them that Ofcom's duties should be

''to secure the availability throughout the United Kingdom of a range of television and radio services which (taken as a whole) are of high quality, sufficient to appeal to a variety of tastes and interests''.

However, I have added,

''and of a plurality of views sufficient to meet the diverse interests of citizens''.

It is interesting to read the Government's documentation about the purposes of the legislation because their references to broadcasting often highlight the desirability of securing a plurality of broadcasting services. If that is to be one of the principal objectives of the legislation, why do we include ''plurality'' here? In this context, does it mean simply a variety of services to meet people's tastes and interests, or does it mean something more than that? The following point came through forcefully during the course of the Joint Committee's discussions: the interests of the public as consumers as they are disclosed by their activity in markets—by what they are willing to buy and what is commercially sustainable—are substantively different from the

interests of the public as citizens. To some extent, the difference between those interests highlights the whole point of public service broadcasting—serving the interests of the public as citizens is what that is all about—and that point must be reflected in the definition of the general duties of Ofcom.

As we will discover when we address later parts of the legislation, the desirability of there being a plurality of views in the media in general currently applies to newspaper mergers, so it is not confined to public service broadcasters. If Committee members were to agree with me in subsequent discussions, it would also relate to broadcasting mergers—and not only to public service broadcasting. If plurality is a basic principle—if the interests of the citizen should be served by airing a broader range of views than they would simply buy on their own account—then that should be stated as one of Ofcom's general duties with regard to broadcasting.

That is what we are discussing. This subsection is, in effect, the starting point for the definition of the general duties of Ofcom in relation to broadcasting—except in relation to promoting competition. If we all agree—as I suspect we will—during the course of our debates on this legislation that, in the foreseeable future, we should not get to the point where the whole of broadcasting is essentially determined only by the operation of competition because there is an additional aspect of broadcasting—public service broadcasting—that is unlikely to change given the nature of our democratic society, then that must be reflected in the definition of Ofcom's general duties. That is why I have added those words to subsection (b), and taken it to that further point.

Mr Michael Fabricant (Lichfield, Conservative)

Has not my hon. Friend highlighted a conundrum? When we were discussing competition this morning, I asked whether he agreed with the Radio Authority that in a given region diversity should be fostered by awarding licences to different types of radio station—rather than to all the same type—so that they may compete. I apologise for keeping on repeating this but there is a limited spectrum, so there is no possibility of having an infinite number of radio stations. How can we have competition and

''meet the diverse interests of citizens''

unless we decide that each radio or television station becomes a jack-of-all-trades and a master of none?

Mr Andrew Lansley (South Cambridgeshire, Conservative)

We are running the risk of anticipating later debates on this subject.

My hon. Friend is right that we cannot be sure that competition under circumstances of constrained spectrum availability and a limited number of licences will deliver precisely what is intended. However, if competition cannot deliver, there should definitely be an additional duty. The structure of the general duties should be designed to see what competition can deliver, in the first instance, and to set other duties that must be fulfilled alongside them, which would justify regulatory intervention by Ofcom,

rather than elevating duties to enable intervention to try to dictate the shape of markets.

Clearly, in this context, an important additional duty must be balanced against the outcome of competition. The outcome of competition might be to secure

''a range of television and radio services . . . of high quality''

that appeals to a range of tastes and interests, and it might not be necessary for Ofcom to intervene. However, although competition might deliver that, it might not deliver a

''plurality of views sufficient to meet the diverse interests of citizens''.

The general duties should go a step further in order to ensure not only that we meet consumer's interests and the desired diversity of broadcasting output, but that there is recognition, from the general duties onwards, that the citizens of a democratic society require a plurality of views. If that were in a general duty, it would inform the subsequent responsibilities of Ofcom.

I apologise for the time that I have taken, but as the Minister told the House two and a half years ago, if the general duties are right, one can rely on the rest of the Bill flowing from that in broadly the right direction.

Mr Brian White (North East Milton Keynes, Labour)

Before I start, may I declare an interest? I chair an organisation called the European Information Society Group—EURIM—which has had an input on the Bill since the early days when the Bill team and representatives of the industry were brought together. The organisation has held many discussions, although I have not been involved personally in many. The organisation exists to bring parliamentarians and representatives of the industry together.

Like the hon. Member for South Cambridgeshire (Mr. Lansley), I was a member of the Joint Committee. The way in which the Bill team supported the Committee and brought the Bill to this point deserves praise. The team also deserves a lot of credit for listening to the industry and for accommodating many of its concerns and the concerns of several groups. The Bill's progress has been characterised by mature debate rather than the usual tribalism associated with the House of Commons. I hope that this Committee continues in such a way—there is always hope.

The hon. Member for South Cambridgeshire highlighted several issues that I wanted to mention, but I shall not repeat them. He said that the Joint Committee proposed a set of words for the general duties and emphasised the need for a principal duty. The Government's response included a criticism that the Joint Committee had left out a bit that they thought should be included. Amendment No. 195 proposes the Joint Committee's wording but allows for the Government's criticism of that wording. It differs from the amendment tabled by the hon. Gentleman, although they probably stem from similar discussions and views on the way in which Ofcom should operate.

I looked back at the White Paper, which proposed that Ofcom should have three central regulatory objectives:

''protecting the interests of consumers in terms of choice, price, quality of service and value for money, in particular through promoting open and competitive markets; . . . maintaining high quality of content, a wide range of programming, and plurality of public expression; . . . protecting the interests of citizens by maintaining accepted community standards in content, balancing freedom of speech''

and so on. We need to highlight those three key roles for Ofcom; simply to include them in a list of duties would cause problems. The Minister's words on the need for a hierarchy have been quoted, and it is important that we stress that this is not just about consumers, but about citizens. Amendment No. 195 seeks to do that.

The amendment also seeks to emphasise the importance of long-term decisions. If short-term decisions were made now, based on the current state of the market, Ofcom could make particular judgments. For example, because of problems with broadband, it could make decisions that may not be in the long-term economic interests of the industry. Ofcom will have to balance long-term and short-term decisions.

In America, the Federal Communications Commission has issued an instruction that, from 2005 or 2006, televisions will have to be digitally enabled. It has therefore made a decision on the need to assist the analogue switch-off. It is not for us to say whether that decision is right or wrong, but it is interesting that the FCC has made the decision based on a long-term assumption of the way that the market will go.

Mr Michael Fabricant (Lichfield, Conservative)

The hon. Gentleman should not get carried away with the FCC instruction. It is not talking about integrated digital televisions, which I believe would be wrong, but is simply talking about having a glorified SCART socket—something that we have had for years in this country—with an external box.

Mr Brian White (North East Milton Keynes, Labour)

I can assure the hon. Gentleman that I am not getting carried away by the FCC; I have a number of criticisms of it. However, what it has done is an example of the kind of issues that Ofcom will have to consider.

The Minister and I are both refugees from the Utilities Bill. The general duties of Ofgem were mentioned a number of times this morning; during the passage of the Utilities Bill, I tabled a number of amendments to ensure that combined heat and power, renewable energy and environmental considerations were taken into account by the regulator. Those amendments may or may not have helped to alleviate the current situation. However, the point is that, if we do not get the duties right, we will pay the price two or three years down the line. I take the point made by the hon. Member for South Cambridgeshire that if we get this clause right, discussions on the rest of the Bill will allow us to deal with the issues, but if we get the clause wrong, we will have problems no matter how good the rest of the Bill is. Setting priorities and considering

issues to do with consumer and citizen interest have to be given much more thought.

Another factor—on the role of regulators—that makes this Bill different from previous Bills is that we will shortly be operating under the regime of the Enterprise Act 2002. That Act confers a number of significant powers and it will change the landscape. We have to consider everything in this Bill in the context of that new landscape. Debates about competition and ex ante powers will also take place in the context of the Enterprise Act.

Amendment No. 196, my second amendment, follows on from discussions in the Joint Committee. It takes up the Better Regulation Task Force's key recommendations on good regulation and highlights them. Putting them in a list is important, but they ought to be highlighted. There ought to be instructions from Parliament to the regulator to say what we believe.

In the Joint Committee, we were lucky to have Bryan Carsberg as an adviser. Something that he said struck home to me. He said that what the Parliament puts into the words of the Act will determine the way in which the regulator will operate. It will determine the ethos and culture of the organisation. I urge the Minister to take this point away and reconsider: if we set out the key tests in a separate clause and say clearly, ''This is the way we expect you to operate,'' Parliament would be sending a strong message to the regulator. I have no doubt that the current chairman of Ofcom would want to adhere to such tests; in fact, he is one of the people who has advocated such ways of operating.

Those key tests should be highlighted. My amendment also proposes that Ofcom should be expected to observe them, not only have regard to them, which emphasises their importance.

I welcome the fact that the Government removed the light touch because it is also important that Ofcom takes tough action where appropriate. Had I thought about the issue raised by the hon. Member for South Cambridgeshire about the difference between possible and appropriate in my previous amendment, I would probably have chosen the ''appropriate'' route. I hold my hands up on that one. The Joint Committee used ''possible'', so I repeated it.

Had I got my act together, I would have tabled another amendment to ensure that a need to promote the growth of community media, whether television or radio, was included in the general list of duties. Perhaps we will return to that matter when we debate clause 10.

We have had 20 years' experience of regulators, some good, some bad. Much has been determined by the idiosyncrasies of individual regulators and how they interpret their principal duties. I do not suggest that either was wrong, but Oftel under Don Cruikshank was a very different beast from Oftel under Dave Edmonds. That demonstrates the importance of getting the clause right. It is time that Parliament set out what the priority should be.

We are giving widespread duties to Ofcom, which raises many issues. I hope that Ofcom takes on board methods such as accredited self-regulation, not only self-regulation. The Minister should reflect that we have not got the balance right between consumer and citizen. The issue concerns making Ofcom's duties principal ones. We must give Ofcom a clear steer on the need to follow the Better Regulation Task Force rules. My amendment would strengthen the clause. The culture, ethos and way in which Ofcom operates would also be strengthened.

Mr Simon Thomas (Ceredigion, Plaid Cymru)

First, I put on record my thanks to the hon. Member for South Cambridgeshire for his speech, especially this morning, when he gave a good and clear explanation of the two conflicting interests in the Bill: encouraging economic competition and protecting the needs of consumers and citizens. I will certainly re-read the hon. Gentleman's comments, because I do not believe that the Minister, with all his persuasive skills, could have put the argument better himself.

The debate has been interesting. One reason why I supported the hon. Gentleman's amendment was so that we could have the debate at this stage. As he said when he concluded his remarks, it is getting the key general duties of Ofcom right now that will determine the whole tenor of how Ofcom works and how it relates to citizens and the wider public.

Although the hon. Gentleman's diagnosis was excellent, I began to deviate from his prescription towards the end of his remarks, when he faced an obvious dilemma about how to deal with the issue. Amendment No. 1 tries to deal with the problem by saying that in terms of broadcasting there should be

''a plurality of views sufficient to meet the diverse needs of citizens''.

It is revealing that the duality is mentioned in the amendment.

At one stage, we discussed the principal duty of Ofcom as being to

''further the interests of consumers''

When we discussed markets, we talked about consumers. However, the hon. Gentleman recognises that sometimes the market comes up against the wider interests of citizens. At that stage, he sees the need for public broadcasting to put in a safeguard to protect the needs of citizens. In his winding-up speech, he recognised the circumstances in which that would be necessary.

I divert from the hon. Gentleman because I do not regard wider citizenship requirements as beginning or ending with broadcasting, although they pervade the Bill. I support the amendment tabled by the hon. Member for North Devon because it would ensure that the interests of consumers and citizens were covered. Indeed, I had intended to table a similar amendment until I saw the one tabled by the hon. Gentleman had taken such action. It is important to recognise that there is a broader issue to the Bill than

that relating only to the relationship between citizens and broadcasters. Citizens will have an active relationship with the legislation. It is obvious that they will become involved; they will complain that there is not enough or too much bad language or sex and so on, and take matters up with the broadcasters.

Citizens will not become so involved, however, in the wider issues covered by the Bill. For example, will they be able to question the availability of mobile signals or ask where broadband is or is not available? What will be their role in respect of an analogue-digital switchover? I welcome what the Minister said this morning about Parliament's role. It is a way in which to express the role of citizens. There is a clear need to put citizenship more firmly at the top of the agenda.

There are two conflicting interests: the policy of economic deregulation—the main thrust of the Bill—and the protection of citizens' interests. They could be on an even keel if it were not for the fact that there are powerful media interests behind economic deregulation. We have only to think about future debates about Channel Five, cross-media ownership and who can own which newspaper to understand that such provisions will not create a level playing field, but one that is balanced against the individual citizen. He or she will need to know from the Bill and from us, as the protectorate in the House of the interests of citizens, what will be done to protect citizens' interest and their access to wider communications and the plurality of broadcasting and communication.

It would be easy to design a Bill that delivered commercially some level of communications, from digital broadcasting to mobile phones, broadband, radio and the whole spectrum. Even though this Bill is somewhat flawed, it recognises the wider interests and refers to a consumer panel and a content board, which was why the hon. Member for South Cambridgeshire tabled his amendment on broadcasting. Public service broadcasting is protected under the Bill by numerous schedules and clauses. Should we not make it a primary duty of Ofcom to have better recognition of the interests of citizenship?

Unfortunately, the Government have departed from their welcome position in the White Paper—that the interests of citizens and consumers would be protected. Lord McIntosh said that they had acknowledged that those two sets of interests were not the same. How can they be reconciled under the Bill? The key solution is to make it the principal duty of Ofcom to further the interests of citizens. As the hon. Member for Milton Keynes, North-East said, that would enable Ofcom to have some idea of the ethos that the Government wish it to employ. His amendment would put citizens at the top of the list of Ofcom's duties.

At present, the general duties of Ofcom do not include the protection of citizens' interests. They provide for a consumer panel, but that will be chosen by Ofcom. Further amendments will be tabled to improve on that position because such a panel will not be sufficient. As I said to the hon. Member for South Cambridgeshire, other regulators, whether Ofwat, Postwatch or Ofgem, have a strong regulatory framework, but they also need a strong citizens' watchdog. We know what Energywatch and

PostWatch do and we also have a watchdog for the water industry. Those bodies act as a counterbalance. That element is missing from Ofcom. In that sense, we are departing from the recent history of debating such issues in the House. As there is no way to improve the Bill as it stands and to set up an independent watchdog, two elements should certainly be included. They are set out in the amendments, which relate to citizens and their needs and to the choice and selection of the members of a consumer panel.

Ofcom will also represent citizens' interests through the content board. One would expect that board to have a real relationship with the wider interests of citizens and with various viewer organisations and lobbies. A range of issues relating to that will be forthcoming during the next few weeks and months, such as whether people with disabilities are properly represented in the media, the role of community media and how to achieve the right representation for the different nations of the United Kingdom. Those issues will be considered by the content board.

In Wales, we had an interesting experience regarding that comments that were made by Anne Robinson. That issue went to the BBC board of governors. I am not sure whether those comments would be dealt with under tier 1, tier 2 or tier 3. Because we have had that experience, we know that citizens, viewers and listeners will want to get involved with the work of a content board. People will want their complaints to be listened to and debated and they will want to know what has been done. Ofcom has appointed a content board and, worse than that, it will also decide on the duties and functions of that board. It is up to us, not Ofcom, to decide such things. The Bill should address citizens' needs.

Regarding some of the finer aspects of the regulation of public broadcasting and how we can take things forward, statements will be made about programme policy, regional programme making and guidance relating to those matters will be issued by Ofcom. Guidance will be issued that relates to broadband access and to performance failure considered against the public service remit. In Wales we are interested especially in the Welsh language and S4C's role. Such matters demand that a clearer statement about citizens' needs be included in the Bill. That would be a useful way in which the Government could ensure that the field does not slope too much towards the powerful interests of the large multimedia stakeholders. I accept that they exist to make a profit and to provide a service, but they must operate in the context of the regulation that we decide, as Members of Parliament who are elected by United Kingdom citizens.

We will debate such issues as community media, which was mentioned by the hon. Member for Milton Keynes, North-East, the awarding of licences, or whether a radio spectrum in an area reflects plurality and diversity, which the hon. Member for Lichfield (Michael Fabricant) has mentioned on several occasions. In Wales, such a spectrum would include the English and Welsh languages and in the midlands that might include ethnic minority stations. We have to accept that such decisions are not purely

commercial decisions, or ones that are made in the interests of consumers. Those should be taken in the interests of the wider citizenship. It is, therefore, incumbent on the Government to explain how that will be achieved, given the current wording of the Bill, and I hope that the Minister will take this opportunity to explain that. Large multimedia interests and some large corporations will be able to drive a coach and horses through the many loopholes that exist in the Bill. Such organisations will not, of course, say that they wish to do that.

In making the amendments, particularly No. 150 and, to some extent, No. 195, we will hold the Government to their White Paper promises. The amendments accord with the recommendations of the Joint Committee, which considered the issue and wanted a better balance. If the amendments are included, a better balance will be achieved between the communications industry and the interests of citizens. Ultimately, that will help to strengthen public service broadcasting. The hon. Member for South Cambridgeshire also made that point.

I hope that the Government will accept the amendments, or will introduce their own amendments. They should, at least, explain how the current wording would protect those wider citizenship needs that are in danger of being overridden in certain circumstances. I accept that that is not what the Government are out to achieve, but the wording of the Bill is too weak to allow Ofcom to defend citizens' interests as Members of Parliament would want it to—and as we will wish that it did when, in two or three years, our electors complain to us about some of the activities of Ofcom.

Mr Richard Allan (Sheffield, Hallam, Liberal Democrat)

On a point of order, Mr. Atkinson. Before my hon. Friend the Member for North Devon speaks to the amendments, I wish to seek your guidance on a practical issue relating to the use of portable computing devices in Committee. The Bill has attracted a lot of attention, and there is a great amount of information relating to the large group of amendments under discussion that I have stored on my portable computing device. It would be convenient to have it available in Committee. I seek your ruling on whether it would be permissible to have a silent portable computing device available in Committee in order to read briefing notes relevant to the Committee's business, Mr. Atkinson.

Mr Peter Atkinson (Hexham, Conservative)

The answer is no.

Hon. Members:

Hooray!

Mr Nick Harvey (North Devon, Liberal Democrat)

I should like to speak in support of amendment No. 1, and should also like to refer to amendments Nos. 150, 153 and 152.

Amendment No. 1, which was moved by the hon. Member for South Cambridgeshire, is based on a recommendation made by the Joint Committee. I regret that the Government did not accept the view put forward by that Committee. We heard from the hon. Member for Milton Keynes, North-East that Sir Bryan Carsberg acted as advisor to the Joint Committee. I found Sir Bryan's oral advice on the

issue that the amendment addresses to be quite telling. His concern was that if a number of main duties enjoyed equal status, when a regulator made a ruling, leaning on one of those main duties, cunning lawyers for the aggrieved party might appear at a judicial review pointing to one of the other main duties and saying that it should have taken the regulator in a completely different direction. If four main duties enjoy equal status, there surely might be cases in which one of the duties would take the regulator in one direction, and a second duty would take it in another.

Sir Bryan, with his experience at both Oftel and the Office of Fair Trading, thought that the regulator would be in a much stronger position if one duty, clearly mentioned in the Bill and described by Parliament, enjoyed dominance over the others. If the regulator founded its decision on that duty, it would be in a stronger position in the hypothetical judicial review to fend off the well-heeled lawyers who appeared on behalf of the aggrieved party to a decision. I encourage the Minister to give further thought to the matter.

Dr Kim Howells (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Pontypridd, Labour)

That is a fascinating prospect. Is the hon. Gentleman seriously saying that those monster well-heeled lawyers might not adopt a different tactic, using anything that might appear as a core or general purpose of any Bill?

Mr Nick Harvey (North Devon, Liberal Democrat)

I am sure that there is no end to the cunning of well-heeled lawyers, and I am sure that they would come up with something or other. Sir Bryan's point of view was simply that it would be rather helpful to the regulator in defending its position if it had been given clarity from the outset.

Mr Chris Bryant (Rhondda, Labour)

The hon. Gentleman says that he is supporting amendment No. 1 and that it was proposed by the Joint Committee. I do not think that that is true. Is it?

Mr Nick Harvey (North Devon, Liberal Democrat)

I think that the amendment is extremely close to what the Joint Committee recommended. There may be some subtle difference, but broadly it is in the spirit of what that Committee recommended. We debated at length the fact that there should be one pre-eminent duty and, as I read it, that was the objective of amendment No. 1.

I shall refer to some of the other amendments in the group. The hon. Member for Ceredigion (Mr. Thomas) spoke about citizenship, which amendment No. 150, standing in both our names, is about. I thought that he made some extremely telling points, as, indeed, did the hon. Member for South Cambridgeshire. I am glad that the Government accepted the point made by the Joint Committee about the difference between a customer and a consumer, but I am sorry that they did not address some of the points made about a citizen, which is something subtly different for reasons that have been spelled out.

Citizenship depends on the availability of high quality information, knowledge and understanding of the world in which we live. It is vital to citizens and

communities that that information is available to them. That information comes mainly, although not exclusively, through public service broadcasting. The interests of different sectors have to be balanced in the way described by the hon. Member for Ceredigion. Citizenship has not really been given proper weight in the Bill. The general duties are absolutely vital in mapping out what the Bill is all about. They need to provide some protection of citizens' interests, for many of the reasons that have been outlined.

The new regulator will have enormous powers and great discretion. It will have to balance a variety of different factors when making decisions. Broadly speaking, I do not have any difficulty with that, but I think that the rights of citizens need to be brought into that balance, and they can only be brought in adequately if citizens are explicitly mentioned in clause 3.

Mr Mark Hoban (Fareham, Conservative)

The hon. Gentleman refers to bringing in citizens to balance other interests, but his amendment No. 150 says that looking after citizens and consumers is the ''principle duty'' of Ofcom. Is not that principle duty to look after those interests rather at odds with keeping things in balance?

Mr Nick Harvey (North Devon, Liberal Democrat)

Citizens are also consumers, but people have wider interests as citizens than as consumers.

Mr Mark Hoban (Fareham, Conservative)

My argument was that although the hon. Gentleman referred to the importance of bringing balance into the duties of Ofcom, amendment No. 150 says that

''It shall be the principal duty of OFCOM to promote and further the interests of consumers and citizens.''

That is not about balance; that says that one duty has primacy over all others.

Mr Nick Harvey (North Devon, Liberal Democrat)

I fail to understand the hon. Gentleman's point. Amendment No. 150 says exactly what I want it to say, and I am doing my best to explain it. I think that the Bill would be improved no end if it were adopted. Be that as it may, the hon. Members for South Cambridgeshire and for Ceredigion and I made the point that the rights of citizens to information in a free society is important and should be encoded in the Bill. I believe that amendment No. 150, or some of the equivalent ones elsewhere, would do that adequately.

Mr Andrew Robathan (Blaby, Conservative)

I am slightly confused, because the hon. Gentleman said that citizens are also consumers. I thought that consumers were citizens, but not all citizens were consumers. One does not have to be a consumer to be a good citizen, but a consumer is almost bound to be a citizen unless they come from abroad.

Mr Nick Harvey (North Devon, Liberal Democrat)

Again, I am losing the point of the hon. Gentleman's argument. I think that he is simply making semantic distinctions. The interests of citizens can be wider than those of consumers. I am trying to say that that wider interest should be recognised in the Bill, and my amendment endeavours so to do. I remain completely lost as to the argument of the two Conservative Members.

I come to amendment No. 153, which stands in my name. It relates to the point made by the hon. Member for Milton Keynes, North-East about the duty that Ofcom will have regarding better regulation. At the moment, Ofcom is to ''have regard . . . to'' a list of factors that

''appear to them to be relevant''.

That includes the principles of good regulation: transparency, accountability, proportionality, consistency and targeting—they were laid down by the Government's Better Regulation Task Force. However, that gives the principles too little prominence. The Bill rightly gives Ofcom considerable discretion in many areas. However, that is why it is essential that Ofcom should embrace, adopt and fulfil the principles of the Better Regulation Task Force as it uses its discretion over a wide front. Ofcom should be required to comply with the principles rather than simply having general regard for them.

Either the Government believe in and support their Better Regulation Task Force or they do not. The previous chair, and the current chair, of the body have given up time to do their work and they set about it with considerable vigour. I know that the Government suggested that when considering such matters as national security it would be impossible to adhere to the Better Regulation Task Force principles. If so, fair enough. Ofcom should be required to comply with the principles except for specific reasons such as national security. That could be spelled out in the Bill.

Amendment No. 152 is the only amendment in the group that specifically addresses access, which is a very important issue for many consumers. It is a glaring omission that that is not specifically and explicitly recognised in the general duties under clause 3. The clause makes no mention of the regulator working toward equal access to communications services for groups such as disabled people or older people. Given the number of people involved and the current extent of exclusion, that is a great omission. Disabled people, older people and people on low incomes often do not enjoy acceptable access to basic communications services. For example, some 2 million blind and partially sighted people face exclusion from digital television and radio because screen-based technologies fail to build in the ability to manipulate text or to get speech output in order to produce information. People with dexterity problems cannot manipulate remote controls or mobile phones with ease. Deaf-blind people have great difficulty in accessing basic telecommunication services and they require expensive equipment. Users of hearing aids have difficulty using digital mobile and cordless phones because they interfere with many hearing aids. A reference in the Bill to Ofcom having regard to disabled people's needs is meaningless unless those needs are defined. Adding a reference to the goal of equal or equivalent access for disabled people would strengthen the clause. The amendment, which mentions access explicitly, would allow that to happen.

Mr Chris Bryant (Rhondda, Labour)

I hope that the hon. Gentleman can help me. He referred to amendment No. 152, which bears no reference to that at all. However, clause 3(3)(i) does.

Mr Nick Harvey (North Devon, Liberal Democrat)

I do not agree. The right of access is absolutely fundamental for the reasons that I outlined. It is a glaring omission that providing access is not part of Ofcom's general duties. It is a glaring omission from the point of view of the many users who I described. The amendment would include access in the framework of the general duties, which would be extremely helpful to the groups.

Mr Simon Thomas (Ceredigion, Plaid Cymru)

Surely the difficulty with the clause is that subsection (3)(i) simply allows Ofcom to decide itself what is appropriate for people with disabilities. As there is no person representing people with disabilities on the board of Ofcom, the Bill must be strengthened in the way that the hon. Gentleman has suggested, so that people with disabilities can have a bigger say in what Ofcom decides on their behalf, either through the consumer panel or the content board or—importantly—through the right of parity of access.

Mr Nick Harvey (North Devon, Liberal Democrat)

The hon. Gentleman is right, and we will broach some of the more specific parts of that point when we discuss the next group of amendments. The principle of access must be written into the Bill in one form or another, and this would be a simple and straightforward way of doing that.

I endorse the comments of the hon. Member for Ceredigion about the consumer panel. One of the lessons that can be learned from the example of other industries where we have set up regulators and consumer representative bodies is that the more independence those consumer bodies have, the more effective they are. That has been my experience in my role as a constituency Member of Parliament.

Mr Peter Atkinson (Hexham, Conservative)

Order. I remind the hon. Gentleman that we will discuss the consumer panel later. I would like him to bear that in mind.

Mr Nick Harvey (North Devon, Liberal Democrat)

I am grateful to you, Mr. Atkinson, for reminding me of that. We will address detailed points about the consumer panel later, but we are looking at citizenship and how some of the wider issues are going to be pursued within Ofcom, and the shortcomings of the panel are relevant to that. I was simply seeking to endorse the observations of the hon. Member for Ceredigion, because they are connected to my concern that the definition of Ofcom's general duties does not describe its role in terms of a broader vision.

Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

Clause 3 goes to the heart of the operation of Ofcom, so it is unsurprising that we are covering lots of different pieces of ground during the course of this debate. Even within this grouping, the clause has become a Christmas tree on which to hang a lot of different amendments.

First, I wish to refer back to Amendment No. 1, which was moved by my hon. Friend the Member for South Cambridgeshire. There is a powerful case to be made in favour of subsection (1) not simply listing four overall duties. The Joint Committee were persuaded that there needs to be some kind of hierarchy so that one of them is given prominence, which my hon. Friend described as a primary duty. If I had to select a

primary duty, I would choose the one that he chose—the duty to promote the interests of consumers

''where appropriate by promoting competition.''

My hon. Friend drew a distinction between ''where appropriate'' and ''where possible'' and he is right that in this case ''where appropriate'' is the right phrase.

That point leads me on to the next issue that I wish to raise, which has been touched on by several hon. Members. Should only the interests of consumers be given primacy or should that be extended further to cover the interests of citizens more generally? There is a lively debate about precisely what that means: when we talk about promoting the interests of citizens, we are essentially talking about the national interest.

The hon. Member for North Devon made an interesting point. He highlighted that it may be in the public interest to have public service broadcasting. We will come on to debate that at length in due course. However, I wish to take this opportunity to agree with the hon. Gentleman: public service broadcasting is a good example of something that is in the national interest, even though there may only be a tiny number of people who wish to consume it—indeed, almost by definition, there will be very few consumers because if there are a vast number of them it would not need to be public service broadcasting. I think that we will want to explore that issue in greater depth in due course.

The role of the BBC in supplying public service broadcasting is at the heart of the justification for having a state-owned and state-funded BBC. I am a supporter of public service broadcasting for exactly the reason that has been given.

Mr Simon Thomas (Ceredigion, Plaid Cymru)

I am interested in what the hon. Gentleman had to say about public service broadcasting, even when a service is enjoyed by ''a tiny number of people''. I do not know whether he would put S4C—Welsh language Channel 4—into that category, but it is certainly a public service broadcaster and it is covered by this Bill. Will the hon. Gentleman take this opportunity to rule out any suggestion that S4C should be privatised?

Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

It was, of course, a Conservative Government that was responsible for the creation of S4C, and I am not absolutely sure that, even if we wished to privatise S4C—

Mr Peter Atkinson (Hexham, Conservative)

Order. I am not absolutely sure that this exchange is in order.

Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

It is tempting, though, Mr. Atkinson. I do not think that we would find many buyers, and I certainly do not intend to promote such a policy this afternoon.

On the question of citizenship, there is a case for at least acknowledging that a public interest may be wider than that simply of consumers. Amendments have been tabled with the intention of broadening Ofcom's duties to include the interests of citizens. That can be done in a number of ways. We have an amendment that would achieve, in essence, the same thing. I acknowledge that sometimes a national

interest goes beyond the interest of the people who enjoy particular services.

I am slightly concerned that it has not been acknowledged that Ofcom should bear in mind the interests of the businesses that supply the services. I hope that the interests of businesses will always be among those that Ofcom has to consider. Our telecommunications and broadcasting sector is largely dependent on the success of private businesses.

Before coming on to the regulatory activities of Ofcom, I want to say a brief word about amendments No. 46 and No. 47, which are in my name and the names of my hon. Friends. The amendments seek to include the words ''long-term and sustainable''. My hon. Friend the Member for South Cambridgeshire explained why he did not think it was appropriate to include the phrase ''long-term'' when considering the interests of consumers. Amendments No. 46 and No. 47 do not insert the phrase ''long-term'' at that particular point; but I suggest that the Bill would be improved if ''long-term and sustainable'' were included at the point that deals with Ofcom's taking account of the desirability of promoting competition. That competition should be for the long term and should be sustainable. The same goes for investment and innovation.

The amendments have been tabled following suggestions from the Confederation of British Industry, so they should at least be considered. Ofcom should be capable of looking to the long term. As we have said before, communications is an area in which technology is developing extremely rapidly. What may be appropriate in the short term may become inappropriate in the long term. That is why we suggest that the Bill be amended to include the phrase ''long-term''. We will be interested to hear the Minister's response to that.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

My hon. Friend and I agree on the overwhelming majority of things, and of course we should think seriously about amendments that the CBI suggests. However, I was worried by its example argument—that using RPI minus X as a formula could be to the detriment of the long-term interests of consumers. The overwhelming evidence on the use of such formulae is that they have delivered for consumers and can subsequently be amended to reflect long-term interests. However, if one includes long-term interests at the outset, the chances are that the interests of consumers will be overridden by what would be regarded as the long-term interests of increasing business profitability.

Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

I do not think that that would happen because of the way in which we have drafted the amendments. The amendments relate to subsection (3), which relates to the factors to which Ofcom should have regard, rather than subsection (1), which describes its primary duty. I have sympathy with the point that my hon. Friend makes about RPI minus X, which has been a remarkably successful method of benefiting consumers by achieving lower prices. My hon. Friend and I received the same briefing from the CBI. I deliberately chose not to include its argument about RPI minus X, because that has been a successful

egulatory method of exerting downward pressure on prices and increasing efficiency.

Mr Simon Thomas (Ceredigion, Plaid Cymru)

I agree with the hon. Gentleman and the hon. Member for South Cambridgeshire that RPI minus X delivers benefits to consumers. However, it is precisely the use of such formulae that begs the question of what the wider public interest is. If we examine the exercise of similar formulae within the gas and electricity markets, or the water industry, we see exactly where it starts to break down and where there should be a counter-balance of a wider public interest.

A simple application of a formula such as RPI minus X could lead, for example, to under investment in the infrastructure of the water industry—collapsing sewers and so forth. In the electricity industry, it could lead to things such as the recent fiasco over NETA. We need to consider the wider interest.

Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

I do not want to revisit the debate that we had earlier. However, I agree with the hon. Gentleman about the electricity market, which I mentioned this morning. When the regulator was given the single task of achieving lower prices for the consumer—which has been achieved very successfully—there were other consequences, which we are now seeing in terms of the difficulties faced by particular sectors of the market, especially nuclear and renewable generators. Such consequences should have been thought about earlier, when the legislation was framed.

Amendment No. 27 sets out to achieve the same as amendment No. 196, which was tabled by the hon. Member for Milton Keynes, North-East and amendment No. 153 tabled by the hon. Member for North Devon, so, essentially, we are agreed on this point. The amendments propose an important change to the Bill: to remove paragraph (b) from subsection (3).

Subsection (3) contains a long list of factors to which Ofcom must have regard. We propose that the factor setting out the necessity that

''regulatory activities should be transparent, accountable, proportionate, consistent, and targeted''

should be removed and inserted earlier in the Bill, so that it applies to all activities undertaken by Ofcom. It is not sufficient for it to be one of a host of different factors to which Ofcom must have regard. It must have priority. It should underline everything that Ofcom does.

I spent a year as the Front-Bench spokesman on trade and industry matters and from my discussions with business across the board, the biggest single complaint is the burden of regulation. The hon. Member for North Devon rightly referred to the work of the Government's own Better Regulation Task Force. An article in the Financial Times reports Mr. David Arculus, the new chairman of the task force, warning that civil servants are drowning small businesses in a wave of regulation because they have little understanding of business. He goes on to say something that is particularly relevant to the debate:

''We are knocking on an open door at a high level''.

He continues

''Some of the problem lies with independent regulators, who are keen to make the most of the new powers they have been give,''

The issue is not just about trying to stop Government from pouring out a relentless flow of regulations, with each one placing an additional burden on businesses, it is also about addressing the activities of independent regulators.

It has already been said that the Bill establishes what is possibly the most powerful regulator of them all. Ofcom will be given enormous powers to intervene across a huge swathe of the economy. It is, therefore, essential that that body should have regard to, and adhere to at all times, the principles of better regulation that have been propounded by the Government's Better Regulation Task Force.

Opposition amendment No. 27 is important because it would make clause 3(3)(b) a primary duty. I accept that there are a number of ways of skinning this cat and the other amendments that I have mentioned are designed to achieve the same objective, which is to ensure that in everything it does Ofcom abides by the principles of better regulation. It is instructive that almost all of the businesses throughout the telecoms and broadcasting sector that have made submissions to Committee members have pointed out that it is essential that greater prominence be given to the regulatory principles.

My amendments Nos. 124 and 125 deal with the importance of Ofcom taking account of the need to protect copyright. Ofcom's main activities will not impact on the technologies and methods by which music or television programmes are copied. My purpose is not to suggest that Ofcom should extend its wide embrace to cover new areas, such as the design of electronic apparatus. Having said that, it is difficult for us to envisage how technology will develop, particularly through the use of the internet. The Government have said explicitly that the Bill is not designed to regulate that area, which is sensible, because I am not sure that that is even possible. Nevertheless, technology might develop in such a way as to allow greater access to copyrighted material.

Michael Fabricant rose—

Mr. Bryant rose—

Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

I am besieged. I will give way after I have made my point.

It is instructive that the Government has said

''Ofcom will work alongside industry in developing systems that continue to safeguard children, citizens and business.''

Business is concerned about copyright. Protecting children is a matter to which we will come later; again, the issue is the use of technology to prevent people accessing material that is unsuitable for them.

Mr Michael Fabricant (Lichfield, Conservative)

My hon. Friend makes a powerful point. I remind him that this morning we talked briefly about clause 1(5)(b), which deals with the power to promote research. Valuable research has been carried out by BBC Kingswood Warren and the former IBA engineering division. It has been said that in the past many opportunities for British industry

were lost because certain developments were not copyrighted. Would my hon. Friend's amendment cover that eventuality?

Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

That is not exactly what I had in mind, although my hon. Friend makes a perfectly valid point. I am more concerned about another issue. The Minister will be aware of it, because he has had representations from all the creative industries about it. We in this country have a particular skill and ability in the creative and entertainment industries—our music industry is a world leader: comparing the size of this country's music industry with that in most other countries shows that we are far ahead. That has been the case for many years and it continues to be so, and that is true not only of music, but of films as well.

The music industry is under huge threat from copyright material being made available for free. The industry is grappling with that issue, which is caused in particular by the downloading of music from the internet. Napster used to be the key site from which such downloads were made; it has now gone but other sites, such as Kazaa, have replaced it. My nine-year-old son told me the other day that he would like an MP3 player for Christmas. If we reach the point at which nine-year-olds want to take music off the internet and access sites that make music available without recognising that people deserve to be rewarded for their creative content, that is a huge threat to the industry.

Mr Chris Bryant (Rhondda, Labour)

I am not sure whether the hon. Gentleman is suggesting that his son intends to download material from only illegal sites. The amendment highlights the desirability of open standards for technological security systems. The only way to have open standards is by mandating standards. How does he propose Ofcom should do that, and does he think that Ofcom should mandate standards in other areas, such as set-top boxes?

Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

I am not suggesting that standards should be mandated. We have specifically suggested that they should be promoted and should be a consideration. Ofcom should not be in the business of picking a piece of technology and saying, ''That is the right one; everybody else must adopt it.''

The purpose of the probing amendments is to secure recognition that copyright is hugely important to the creative industries. The music industry is not really covered by the Bill, but broadcast films and broadcast television are. That is the next step. At present, the broadcast industries have not been badly damaged by copyright theft, but there is potential for that to happen. Technology is developing so quickly that it will not be long before people are able to download perfect reproductions of films from internet sites that make the films available without any recognition that payment should be made to those who made them. The amendment requests that the Government at least consider a way of making Ofcom recognise that that is a serious issue for a large part of British industry.

Mr Brian White (North East Milton Keynes, Labour)

One thing that the industry has been good at is getting its self-regulation to work. Does the hon. Gentleman accept that accredited self-regulation would be more appropriate than Ofcom giving statutory requirements that could be out of date in six months?

Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

I do accept that, and I am not suggesting that Ofcom should mandate. However, the affected industries have attempted to find ways of enforcing copyright, such as manufacturing DVDs that are playable only in certain regions. It did not take long for the market to get around that by producing players that played DVDs from all regions. There is, to an extent, a question of encouraging a common standard and agreement throughout the industry on the best means of protecting copyright, which is all that the amendment addresses. I do not intend to press the amendment but I hope that the Minister will say a few words about the issue. I know that he acknowledges that it is terrifically important to a large part of British industry.

Mr Michael Fabricant (Lichfield, Conservative)

Thank you, Mr. Atkinson. May I say what a pleasure it is that you are chairing the Committee.

I wish to focus briefly on amendment No. 130, paragraph (b) of which refers to the

''optimal use for wireless telegraphy of the electromagnetic spectrum''.

Such a provision is mirrored under clause 3(1)(b). I doubt whether there will be a debate on that, so I thought it would be in order to discuss such a tremendously important issue now. I shall soon ask the Minister a question about it, which I hope that he will be able to answer.

The electromagnetic spectrum affects short-range and long-range communications, and short-range local area networks for computers that may not be connected by wire as they are with the parliamentary data and video network. It affects the use of radio microphones, broadcasters and, as been mentioned, the use of 3G telephony for data. A problem has been caused by the BBC sitting on frequencies, action that has prevented independent radio from expanding. For example, when independent national radio started, there could have been an additional frequency modulated network, but that was stopped because the BBC sat on one frequency in use in Essex and deliberately stopped the setting up of a second FM network for independent national radio in this country. More important than that is the fact that access radio, recently introduced by the Radio Authority, is having problems finding FM frequencies, again because the BBC is sitting on frequencies.

I have given the Minister plenty of notice of my question and, if he cannot answer it now, he should be able to do so later when we reach clauses 147 to 152 which deal with the role of Ofcom and the management of the frequency spectrum. Will powers be given to Ofcom to enable it to reallocate frequencies and, if necessary, reassign frequencies from the BBC to the commercial sector? I am not arguing that the BBC should have fewer frequencies, but that frequencies

should be allocated in such a way as to maximise the service provided by independent radio as well as by BBC radio and not have the BBC squatting on frequencies and preventing radio services from being expanded in this country.

Mr Graham Allen (Nottingham North, Labour)

I wish to pick up on some of the points made by the hon. Member for Maldon and East Chelmsford (Mr. Whittingdale) about amendment No. 125 on open standards, the prevention of the unauthorised use of personal data and copyright content. Amendment No. 152 also deals with the ability to access services. Such matters are important because the clause is phrased around securing the provision of x, y and z. I use the word ''securing'' in a market sense, as in ensuring that services are available. Amendment No. 125 refers to the other important aspect of security—continuity of supply and what happens if something goes wrong.

Such matters raise increasingly important questions. The hon. Member for Maldon and East Chelmsford talked about the internet. Over time, the barrier between the internet and other forms of media will blur as people buy packages of services that can be delivered through satellite, or cables of one type or another—BT cables or cables in the road—or wirelessly. Everything will get mixed up together. We will also become increasingly dependent on those services, which means that security questions are important.

There is still a gap in the legislation about the way in which we phrase security. Who should ultimately be responsible, especially where there is a conflict in standards? That is why it is important that the hon. Gentleman's amendment refers to ''open standards''. If the matter is left entirely to the market, there may be a conflict between the sort of open standards that are likely to secure availability of supply and the market drivers within business.

The case of DVD regional encoding offers an interesting example, but I come at that from a different angle. From a free market standpoint, DVD regional encoding is fundamentally offensive. If I pay a copyright holder for copyright material, who are they to tell me what machine I should play it on? That case is an example of industry seeking to use proprietary standards, perhaps to try to engineer a particular market. Other examples include the satellite encryption wars, where different satellite systems have used different standards.

Amendment No. 125 talks about ''open standards'' as opposed to proprietary standards. Why should I, as a consumer, be required to buy different boxes with different decryption standards in order to satisfy certain market requirements of the supply companies? Ofcom might have to referee a conflict between a supplier, who wants to use a particular standard, and the consumer interest, which is to use an open standard. We must touch on these points.

Mr Michael Fabricant (Lichfield, Conservative)

The hon. Gentleman says, rightly, that the standards—or the methodologies of delivery—are now blurring. I suspect that he agrees with me that eventually the internet—in a very

different form from that which it currently takes—will be the means by which we receive broadcast programming, and that it will enable us to watch movies in real time, regardless of whether they are generated from London or Los Angeles, and to watch transmissions from other broadcasters all over the world in real time. If that is the case, does he also agree that we will not be able to legislate for copyright protection unilaterally, just as we cannot protect ourselves from the internet unilaterally? There will have to be worldwide agreement on such standards.

Mr Graham Allen (Nottingham North, Labour)

The hon. Gentleman makes a relevant point about international regulation. Currently, our copyright law is essentially within an EU framework, which is then negotiated in terms of the World Trade Organisation's debates on copyright. He is right that such steps will become increasingly necessary.

I turn to the key point that I am seeking to make about the amendments. I ask the Minister what consideration has been given to that aspect of securing the availability of supply of services? If one takes an analogy from the financial markets, the financial regulators not only regulate the activities of people who work in the financial markets, but give the customer certain assurances. They offer a security quality stamp, which is a kind of guarantee in all but the few notable cases in which consumers may have been let down—Equitable Life and a couple of other organisations spring to mind.

There is an assumption that the financial regulator has applied a stamp of security, and amendment No. 125 appears to suggest that Ofcom should have a similar role—in particular with regard to the protection of personal data.

Dr Kim Howells (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Pontypridd, Labour)

I seek clarification. Is the hon. Gentleman referring to a case such as the collapse of ITV Digital, where customers lost something that they paid for by way of a contract?

Mr Graham Allen (Nottingham North, Labour)

I am sure that the Minister will receive correspondence from hon. Members' constituents in relation to bills for £39.99—or whatever sum—that will be dropping through their doors for pieces of kit that they thought that they had paid for when they signed up.

There may well be a public assumption that a quality assurance is attached to a product such as ONdigital or ITV Digital, which is offered by a licensed broadcaster that comes forward with a proposition—in future they will make proposals to Ofcom—then a license is given and the package is put on the market. One might say that the customer should always read the small print and ensure that they understand what is going on, but they might think that a quality assurance has been given when a licence is given.

I am not suggesting that there is an easy solution—that the Government should pick up the tab for something like that. I am suggesting that the Ofcom terms of reference should contain some clarity about what guarantees or quality assurance on security are offered in respect of the services that are licensed. If that does not happen, there will be other ITV Digitals down the line and the public expectation will exceed

what the Ofcom licence means. We need clarity, just as in the financial markets there are certain expectations that come with being licensed to operate.

On the amendments of the hon. Member for Maldon and East Chelmsford, particularly amendment No. 125, and other amendments on rights of access, if the Government are considering clarifying the definition of the general duties of Ofcom, it would be helpful if they were more explicit about ''quality of service'' issues—issues relating to security of personal data obtained, security of supply, and what happens when things go wrong. I suggest that such issues will be of increasing importance as we become ever more dependent on the sort of services that will be regulated by Ofcom.

Mr Brian White (North East Milton Keynes, Labour)

The hon. Gentleman is talking about copyright, particularly in terms of broadcasting. He will be aware that Hollywood studios have entered into agreements with television manufacturers in the United States about ways of ensuring that mechanisms in television sets and set-top boxes prevent the misuse of copyright. That would circumvent his argument.

Mr Richard Allan (Sheffield, Hallam, Liberal Democrat)

I am aware of the suggestion that there should be hardware protection of copyright. That is a potential point of conflict, and the hon. Gentleman is right to raise it. However, imagine Ofcom being expected to adjudicate on an agreement between broadcasters and television set manufacturers that only some television sets would receive certain signals. How would consumers feel if they were told that they could not use their old television sets any more? The hon. Gentleman has highlighted one of the matters about which we need more clarity. I am not suggesting that there is an easy answer, but such questions will be on the public agenda and it would be helpful to have more clarity about how Ofcom will deal with them.

Mr John Greenway (Ryedale, Conservative)

I said that the debate on the group of amendments has covered many of the issues raised by clause 3. I therefore anticipate that you might not allow a clause stand part debate, Mr. Atkinson, so I should like to mention good regulation, to which some of the amendments refer, and self-regulation. The hon. Member for Milton Keynes, North-East also raised that issue.

We should try to tease out the extent to which self-regulation of television advertising might unintentionally be constrained by the wording of subsections (1)(d) and (2). The Minister will know that the Secretary of State for Culture, Media and Sport said as recently as 13 November that she was receptive to the idea of extending self-regulation to broadcasting advertising. That emphasises the importance of the matter. About a year ago, from where the Clerks of the Committee are now sitting, I proposed a motion in a debating group in favour of self-regulation of television advertising, and I am glad to say that the motion was carried. That idea's time has come. The Secretary of State said:

''it may be that a self-regulatory system can better deliver consistent, comprehensible regulation across the media.''

Given that statement and the support for the concept that has come from Ministers and officials in the Department, it is important that we are clear in our minds that there should not be any unintentional constraint.

As we understand it, accredited self-regulation would involve the delegation of powers to a self-regulator, and the regulatory body would retain backstop powers. That is similar to the function that the Advertising Standards Authority currently enjoys in cases of misleading advertising, in which the Office of Fair Trading acts as the back-stop regulator. The general idea is that Ofcom would retain a residual power by subcontracting the regulatory regime to a new self-regulatory body, which would then refer to Ofcom in the same way as the Advertising Standards Authority refers to the OFT in serious cases of misleading advertising.

As I understand the legal advice given to the Advertising Association, subsections (1)(d) and (2) of clause 3 mean that Ofcom's duty to promote and facilitate self-regulation may relate only to the very limited areas described in subsection (2)—offensive and harmful material, unfair treatment and unwarranted infringements of privacy.

We will discuss clause 6 and, later, the transfer of existing powers to Ofcom. I am sure that the Minister will agree that, if my interpretation is correct, the creation of a self-regulatory body for television advertising would be seriously inhibited. Other than now, there is no opportune moment to raise this issue. The current wording of the Bill is a potential constraint that we should try to overcome.

The Minister might wish to think about the issue and report back to the Committee. Ministers have given the concept of self-regulated television advertising more than a fair wind: they have led people in advertising to believe that Ofcom could develop the idea. Therefore, I am sure that the Minister accepts that it would be a serious setback if the wording of subsection (2) created an inhibition. On the other hand, the Minister might have taken advice and he might believe that the inhibition does not exist.

Ofcom has duties in respect of standards. We are talking about the standards of television services and advertising on television is part of those services. We feel that the inhibition exists and we have to address it either on Report or in the other place.

Mr Mark Hoban (Fareham, Conservative)

Much of the debate on the amendments to clause 3 can be characterised in two ways. The first aspect relates to what the duties of Ofcom should be and the second to what hierarchy or rank should be given to the duties and factors set out in the clause. Amendment No. 150 states:

''It shall be the principal duty of OFCOM to promote and further the interests of consumers and citizens.''

The way in which the hon. Member for Ceredigion described that amendment almost moved Ofcom away from being an economic regulator to being a consumer interest group. If the amendment were accepted, Ofcom would develop along that route. We have to decide what Ofcom's most important duty is. That will define its character, which will be important not only

for Committee members but for those who will be tasked with examining Ofcom's future decisions.

We have to understand that the hierarchy will be important for practitioners in the sector. I am not sure that making Ofcom's primary duty simply a duty to promote the interests of consumers and citizens will serve the industry as a whole, or, indeed, the interests of consumers and citizens. We would have a distortion in Ofcom's direction, putting consumer rights above the rights of industry. More importantly, we would be putting consumer rights above getting the balance right between the interests of consumers, the industry and citizens. If we are to make specific reference to citizens and consumers, amendment No. 130, which was tabled by my hon. Friend the Member for Maldon and East Chelmsford and which refers to ''consumers and citizens'' in the opening line before detailing the four duties, provides a more effective method—one that does not distort the balance of Ofcom's duties.

There is a problem surrounding the 13 factors listed in clause 3(3). Clearly, it is difficult for the regulator to determine which factor should have weight at relevant times. For the interests of those being regulated, it is important to ensure that Ofcom has a clear sense of priorities when ranking the factors. That is why clause 3(3)(b), which mentions transparency, accountability, proportionate, consistent and targeted regulatory activities, merits being moved earlier in the Bill.

Those labouring under the regime should have comfort and reassurance about the way in which Ofcom will interpret its duties. The impact on the industry must be thought through properly before Ofcom responds to the outside interests of consumer groups or representing the United Kingdom nations that might seize upon other factors and say, ''This is the most important one.''

Focusing on the hierarchy and advancing what is currently in clause 3(3)(b), ensuring that the duties remain subject to the reference of citizens and consumers, would give the rest of the Bill the structure to which so many hon. Members have referred—one that flows from the general duties. If we start to distort the general duties by talking about the primacy of citizen rather than consumer interests, much of the function of Ofcom would be significantly distorted. It would become equivalent to Postwatch or Energywatch and be a consumer group rather than an economic regulator.

Mr Simon Thomas (Ceredigion, Plaid Cymru)

I am listening to what the hon. Gentleman is saying, but surely, the central point about Ofcom is that there is no separate, independent consumer body, such as Postwatch or Energywatch, in the sector. Therefore, Ofcom must bring together the conflicting needs to which the hon. Gentleman referred in his opening remarks. However, by going down that route and not having a separate consumer watchdog established by Ofcom itself, the primary duty must be at the top of Ofcom's list of duties for consumers and citizens together. We must ensure that the conflicting interests are properly looked after by Ofcom.

Mr Mark Hoban (Fareham, Conservative)

The best way to go about achieving what the hon. Gentleman suggests would be to set up

within the confines of the Bill an equivalent of Postwatch or Energywatch, rather than make Ofcom the consumer interest group, which would distort the purpose of Ofcom. A separate consumer interest group would be far better than suborning this regulator for the purposes of consumer interest.

It is important that we get the general duties right. Any distortion of them will have an impact not only on the Bill, but on its implementation over the course of the next three or four years.

Dr Kim Howells (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Pontypridd, Labour)

We have had a high-quality debate. We have heard a lot of sense from all parties as well as much expertise.

The hon. Member for South Cambridgeshire made it clear that clause 3 sits at the heart of Ofcom's activities and is central to its role as regulator of the communications industry. Quite rightly, therefore, it has been the subject of a great deal of discussion. Hon. Members have acknowledged that the clause has changed since we published the draft consultation Bill in May. There has been much discussion about the Government's response to the Joint Committee's report. I remind the Committee and quote from that response:

''The Government shares the Committee's view that OFCOM's duties should be clearly and concisely articulated so as to give certainty to OFCOM and its stakeholders and we welcome the suggested drafting for the clause. We do, however, have concerns about what is proposed by the Committee, in particular that it appears to omit from the principal duty two of the original seven: those relating to protection of the public from offensive and harmful material and to protection of fairness and privacy''—

we have not discussed that a great deal this afternoon. The response continues:

''We are sure that the Committee will recognise how important it is that the duties properly reflect the breadth of all OFCOM's responsibilities, both economic and cultural, and follow the proposition set out in the White Paper that each duty is of equal weight. The Government is reviewing the drafting of the General Duties clause with these principles in mind.''

It would be extremely helpful to go back to first principles.

In the 2000 White Paper, the Government set out Ofcom's proposed regulatory objectives:

''protecting the interests of consumers in terms of choice, price, quality of service and value for money, in particular through promoting open and competitive markets; . . . maintaining high quality of content, a wide range of programming, and plurality of public expression; . . . protecting the interests of citizens by maintaining accepted community standards in content, balancing freedom of speech against the need to protect against potentially offensive or harmful material, and ensuring appropriate protection of fairness and privacy.''

Since the White Paper was written, we have added to that list the need to make optimal use of the radio spectrum. I shall respond to the point that the hon. Member for Lichfield made about that later because it is important.

Clause 3 sets out the objectives but it does that in a way that is right in legislation and in the context of the wider Bill. As we did in the White Paper, we could have made references to ''citizens'' as meaning all those who might have access to broadcast services, which is distinct from consumers and customers. However, we must be more precise in legislation. In United Kingdom law generally, existing references to

''citizen'' are invariably bound up with the concept of nationality. That would not add anything to the Bill and might detract from it.

If we used the word ''citizen'' in the Bill, we would risk confusion because the concept of citizenship imports notions of nationality. We would want to guard against any inference that discriminatory treatment based on nationality would be acceptable. A much better approach is to be as inclusive as possible by using terms such as ''general public'', ''members of the public'' or ''persons.'' The use of the term ''citizen'' would give rise to only confusion and wrangles about how the term would be defined.

The substance of the Bill will deliver for the citizen. That occurs through clause 3 and through the content board, the public service remits, the regional programming quotas and the codes on programme standards. The Bill will deliver for the citizen because it rightly sets the interests of members of the public alongside the interests of consumers. I thought that the way in which the hon. Member for South Cambridgeshire opened the debate was fascinating. He has helped me to make several of my points about the differences.

I argue strongly that we have achieved the substance of amendments Nos. 130, 150 and 195. They would all give Ofcom a principal duty to further the interests of consumers and citizens. Adopting the amendments might look neater, but it would not achieve a great deal in legislative terms.

Subsection (1) relates to consumers and members of the public but it also relates to wider public interest in the radio spectrum and putting broadcasting standards in place. Consumers and the public are at the heart of the Bill and, rightly, at the heart of subsection (1). Amendment No. 127 would add little, if anything, to that provision. I wish to turn for a moment to the point made by the hon. Member for Ceredigion about a specific independent consumer body. I must admit to the hon. Gentleman that I helped to frame two consumer bodies, one for energy—and I cannot remember the other one. It was mentioned earlier—[Hon. Members: Post Office]. Yes, the Post Office. I got a lot of stick for that.

We are dealing with a different creature now. I do not know if it helps the Committee to say that the Financial Services Authority was the genesis for such a provision. We do not want—nor, I think, does the hon. Member for Ceredigion—a shadow regulator with his own bureaucracy second guessing Ofcom. We want instead an organisation that can be a critical friend to Ofcom, a strong voice for consumers that will work closely with Ofcom.

In many ways, the hon. Member for Ceredigion was right. It is a statement of faith on my part to say that, but the provision will work better than the two models with which I was involved—good though they are. I want that on the record; I do not want anyone to get it wrong. They are excellent models—well, I must have some sort of record.

We must remember that the panel will have the right to publish what it wants and will no doubt tell Parliament and others if it feels that its needs are not being met. That is an important consideration.

Mr Simon Thomas (Ceredigion, Plaid Cymru)

I am listening carefully to what the Minister is saying. I accept that the Bill takes forward the concept of the citizen's role in broadcasting. It is weaker in respect of the wider range of the communications industry. The hon. Gentleman referred to the consumer panel, which will deliberate on such matters but, again, but its powers will be invested in it by Ofcom. I am worried about that. I acknowledge that the Government have done their best for public service broadcasting, but we are missing the trick with the wider communication industries. If the Bill is to be technologically neutral, as we have been told time and again, it needs to beef up the citizen's role in emerging new technologies.

Dr Kim Howells (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Pontypridd, Labour)

The hon. Gentleman has made a fair point. We shall have plenty of time to discuss it and those matters raised by my hon. Friend the Member for Milton Keynes, North-East and others. We shall see a shading of the medium that we watch and listen to at present. There will be further shading in respect of what those mediums mean to us, and their ability to function as economies. I share much of the hon. Gentleman's trepidation that if we do not have regulation and ensure equality in the spread of those technologies, some communities could lose out. That is at the heart of what we are trying to do, but we can debate the matter further.

Amendment No. 1 suggests that, instead of the balance that we believe is achieved under clause 3, furthering the interests of the consumer should be a principal duty. I am not sure that the hon. Member for South Cambridgeshire conveyed that impression in his speech, nor that I have the right angle and that that is his argument. I am sure that he would agree that, if the Communications Bill were only about consumers, there could be some merit in the amendment. However, as I have explained, and as he has argued in a different context, the Bill is about much more than consumers.

Not everyone who is affected by the duties will be a consumer. Clause 3 applies much more widely to members of the public affected by unfair treatment, say, in a television programme. Do they deserve less attention from Ofcom than a consumer? A balance will have to be struck even among consumers. What sort of decision would Ofcom take when confronted with the management of radio spectrum? If it meant better, higher quality services for mobile telephone consumers, should that take precedence over allocation of the spectrum to the ambulance service, or even, dare I suggest, to radio astronomers? Those are not easy choices to make.

Of course, I recognise that balancing its duties will not be an easy task for Ofcom. However, we have tightened the clause since we published the draft in May. Subsection (1) now contains only four duties, which reflect Ofcom's remit. Ofcom is not purely, or even primarily, an economic regulator. We are giving

it a role that covers telecommunications, broadcasting, media and the spectrum, and are asking it to make judgments about commercial markets as well as broadcasting content.

I strongly believe that we should give a clear signal that no single duty under subsection (1) is more important than another; they are all equally important. I know that that is a bone of contention: the hon. Member for North Devon focused on that point. If the Bill did not include subsection (6), I would accept that what he said could be a risk. Subsection (6) expressly enables Ofcom to resolve the conflict between duties in the way that it believes to be the best. That leaves it in control of the situation. The courts would be extremely unlikely to overturn a reasonable decision taken by Ofcom on how to resolve a conflict between its duties—not that courts would not try to do so.

Mr Brian White (North East Milton Keynes, Labour)

I am concerned about something that my hon. Friend said. The European directive, which the Bill enacts, provides specific economic regulatory powers that are the key feature of what Ofcom will be doing. Is he saying that that is not the case? Or did I mishear him, and the economic role is, in fact, Ofcom's key role?

Dr Kim Howells (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Pontypridd, Labour)

On the contrary, I pointed out that Ofcom's role embraces several roles of equal importance. We will discuss the relationship between the Secretaries of State of both relevant Departments and the European community later in our consideration of the Bill, and I hope that we can discuss some of these important issues then. There is the issue of primacy; we must be able to report what we are doing to the satisfaction of the European Commission and the European Parliament.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

Does the Minister recall saying in February 2000 during discussion of the Utilities Bill and the general duties under clause 9 that

''the duties form a hierarchy, which is designed to assist regulators in resolving potentially conflicting regulatory objectives.''—[Official Report, 29 February 2000; Vol. 61, c. 233.]

My worry is that the Minister is escaping from the reality that Ofcom will, in practice, seek to pursue its objectives in the most deregulatory fashion, which, by definition, must be through competition wherever appropriate. If, in practice, competition is the primary mechanism for delivering its objectives, why do we not reflect that in the duties in a way that allows Ofcom to deliver its objectives in a way that is more legally robust?

Dr Kim Howells (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Pontypridd, Labour)

There is only scar tissue instead of memory in what is left of my brain when the hon. Gentleman mentions the Utilities Bill. I remember that third sitting when we suddenly realised that we had to rip out half of the Bill.

I strongly believe that putting the focus on consumers and competition will distort rather than clarify Ofcom's decision-making process. The hon. Gentleman is quite right. I am a firm believer that the biggest rewards are brought to consumers through well regulated, good, vigorous competition, and low entry barriers. We do not talk enough about that. We should always aim for such competition.

Competition is crucial to our economy, the communications industry and consumers, but not king. That is an important point. Competition does not always give us what we need. That is why subsection (1)(a) mentions competition, but also includes a phrase that the hon. Member for South Cambridgeshire does not like much, which is ''where appropriate''.

Amendment No. 29, which is consequential, would separate competition from consumer interest. I am not sure that I understand the point of that. We are not saying, ''Competition at all costs.'' We are talking about Ofcom recognising when competition works, but also when it would lead us to results that were not in anyone's best interests, not even consumers'. For example—and I cannot remember who raised the issue—limiting the number of competitors accommodated in a block of spectrum to a lower number might be desirable, because it would give each more spectrum. That happened recently. We could talk all day about whether that example would meet the duty of furthering the interests of consumers. However, it is easier to agree on the right approach when the issues of consumers and competition are ranked alongside the duty to secure the optimal use for radio spectrum.

I shall jump a little and respond to the point made by the hon. Member for Lichfield, in case I miss it later. Ofcom's spectrum powers in respect of the BBC are exactly same as those relating to all other spectrum users. Ofcom will have the same powers to revoke the BBC's spectrum licences—or rather the licences of the company that transmits BBC services—for non-use as it will have in any other case. How the powers are exercised is a matter for Ofcom.

The debate is not academic; it is about decisions that the regulators are already making, and that Ofcom will be asked to make in future. It should be able to do so without the presumption that the interests of consumers or the promotion of competition is principal. Through the clause, the Government have struck a balance that sets a framework under which Ofcom can effectively carry out its functions without limiting its flexibility.

Mr Brian White (North East Milton Keynes, Labour)

One key piece of evidence before the Joint Committee that led us down the route of a hierarchy was Patricia Hodgson from the ITC saying that failure to establish such a hierarchy

''may have a danger of paralysing decision-making''.

Can the Minister outline how that could be avoided in Ofcom?

Dr Kim Howells (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Pontypridd, Labour)

Yes. I take the point that the chief executive of the ITC made; it is valid, and I would not argue with it. However, the Government have had to make a decision about what constitutes a list that is too long, confusing, short or restrictive. We have come to an arrangement, but we took cognisance of the valuable information and opinions that we received from the ITC.

Before I move on, I should like to consider amendment No. 131, which would add to the list of matters to which Ofcom should have regard when considering the interests of consumers. We could talk

for a long time about what should be included in the list. We have generally taken the White Paper formulation in what is currently included. The list does not mean that Ofcom cannot consider other matters, but I recognise that we could, without adverse consequences, give more direction to Ofcom. If the hon. Member for Maldon and East Chelmsford, who tabled the amendment, would care to withdraw it, I shall give him an undertaking that I will give the matter further consideration, as I think that it is very interesting.

Amendments Nos. 46 and 47 would insert ''long-term and sustainable'' into clause 3. That is also one of the elements of amendment No. 195, which refers to the ''long-term interests of all citizens''. By focusing on long-term and sustainable competition, investment and innovation, the amendments would restrict Ofcom's capacity to decide what is best in each case. That point has been clarified by some hon. Members this afternoon. We do not believe that we should distinguish between the long-term and short-term effects of Ofcom's decision-making in the Bill. We would expect Ofcom to take a balanced view on the sustainable long-term and short-term positions in any decision that it makes.

Clause 3 is about balance and about how Ofcom will operate. We want Ofcom to provide an example of regulatory good practice. That is why, in clause 3(3)(b), we have stated that Ofcom should have regard to

''the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.''

That is important.

I move, for a moment, to the important point about copyright that was made by the hon. Member for Maldon and East Chelmsford. As a Minister at the Department of Trade and Industry I tried to deal with that issue for three and a half years, and now I am responsible for sponsoring the creative industries in the Department for Culture, Media and Sport. I regard copyright as a vital, if not the most important, issue that faces the creative industries. The ways of stealing copyright are known by all kinds of terms, including piracy, which implies some kind of glamour, and downloading—as if that is not the same as stealing a CD from a shop. But it is stealing and it is real crime. That crime is destroying our creative industries, which are comprised primarily of small businesses and creative people who have no other source of income. We must take that kind of crime seriously and communicate such concerns to our young people. If we do not do that, we are condoning serious theft and crime and destroying the basis of one of our great industries, which encompasses great variety.

The copyright directive, the implementation of which we are consulting on, does not mandate the use of technological protective measures. The hon. Member for Sheffield, Hallam (Mr. Allan) raised a point about that. The directive does not mandate the use of technological protection measures such as copy limiting devices or electronic rights management

information—RMI—which includes the name of the right owner, licence terms and conditions. The directive provides for legal protection against those who seek to circumvent TPMs, or who provide equipment or services to do that, or who remove or alter RMIs in order to facilitate or conceal copyright infringement. Protection against those who seek to circumvent TPMs, or tamper with RMIs, is clearly important in the internet environment. Both those measures are key to the practical enforcement of copyright on the internet. The directive does not mandate any systems; its emphasis is on encouraging all the parties that are involved—right owners, intermediaries and equipment manufacturers—to reach a voluntary agreement on standards. We are going further than that, but we are doing so with the agreement of all parties.

Last Wednesday morning I went on a raid in Cardiff. We busted a guy who had been making millions from—[Interruption.]

Mr Andrew Robathan (Blaby, Conservative)

Is that one of your duties as a Minister?

Dr Kim Howells (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Pontypridd, Labour)

Yes. I only regret that I did not have a huge axe in my hand—someone else wielded it.

We must also bring together the enforcement agencies. I expect Ofcom to be aware of that. We will approach the problem from a number of different angles. I would not like Ofcom to be tied or limited in what it can do, or to have to take a mechanical approach to solving the problem. It is a complicated crime and dealing with it demands imaginative approaches.

Amendments Nos. 124 and 125 would give Ofcom a duty to tackle three issues through the setting of technical standards: intrusion on personal privacy, abuse of copyright and the need for parents to protect children from harmful content on the internet. As I have said, I do not dispute that those issues are of great concern; clearly, they are.

I have problems with the amendments, however, because they would place too great a reliance on mandatory standards, and could duplicate regulatory controls elsewhere and draw Ofcom into areas of regulation that it is not well placed to tackle. The amendments open up the prospect of Ofcom being placed in the position of deciding between different standards—allowing it to dictate network operational parameters. That might give some operators an advantage over others. The effect on smaller or new-entrant operators could be of particular concern, and we should worry about that.

It does not make sense to hint at national steps for mandating technical standards when it is not proven that self-regulatory solutions are ineffective. Some such solutions are very effective, and we are making progress, albeit slowly, in the face of a great avalanche of crime. We must understand what best practice is and try to spread it.

I shall deal briefly with amendment No. 35. I recognise that, in relation to provisions in the draft Bill, concern was expressed that Ofcom should not

become involved in developing systems to support its media literacy duty. However, the drafting has been tightened up in the Bill to make it clear that its role is instead to encourage others to do so. They might be broadcasters, the electronics industry or software designers. We should take that duty seriously.

Amendment No. 152 does not belong here. Clause 3(1)(c) covers availability of quality television and radio services that appeal to a variety of tastes and interests. As they are included in the public service broadcasting remit in clause 256, there is no reason to include them at this point. Ofcom has a duty to report on the fulfilment of the public service remit in any case. The Government have looked long and hard at clause 3, because, like other hon. Members, we recognised that we needed to get it right, and I believe that we have. It covers the breadth of Ofcom's responsibilities and reflects its role as an economic and cultural regulator. I believe that, in respect of the principles on which it is based and its drafting, the clause works for Ofcom and its stakeholders.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

There comes a point in Committee when one feels the need to press an amendment to a vote to demonstrate that one is still convinced of its merits. However, sometimes one does not have to press an amendment because its merits are so great that the Government will in due course have to recognise them. I do not wish the Government to vote against such an amendment at an early stage, so I shall not press my amendment, but I want to make one or two points.

I have not heard a compelling argument against the purpose of amendment No. 1. With respect to the Minister, the argument that the duties are of equal weight will simply not be borne out in practice. It may be said that there are circumstances—for example, the use of radio spectrum for emergency services—in which duties that are not the principal duty of Ofcom would none the less be seen as more important than the duty to promote competition. However, that is not the same as suggesting that the duty to provide radio spectrum for emergency services, for example, should be given the same weight as the duty to further the interests of consumers through competition. The question is what primary mechanism Ofcom will use in practice to deliver its objectives. The answer is the promotion of competition in order to secure effective markets.

The Minister did not refer to the example of Oftel but he could not refer to everything. It was obliged to move beyond a list of duties towards competition being its pre-eminent responsibility. That shows that Ofcom might be required to move in a similar direction in due course. I do not think that the Minister remotely addressed that point. The Government should think about it very hard. Amendment No. 1 is not inconsistent with the Bill's purpose. If anything, it would reinforce the underlying philosophical approach in the Bill.

The Minister said something that made think that the drafting of amendment No. 1 could be wrong, which is another reason not to press it. He discussed

the use of the word ''citizen'' in legislation. I am surprised because one of the purposes of pre-legislative scrutiny is to take us to a point at which we understand the Bill in a way that enables all hon. Members to examine it using well-informed debate. The Joint Committee proposed a form of words, which was unusual because it did not normally set out to do that. The words referred to promoting the interests of citizens but the Government's response made no reference to the undesirability of using the word ''citizen'' in legislation. The Minister has popped a rabbit out of a hat. He said, ''Here you are. You can't talk about citizens now.'' Well, that is fine. If we cannot talk about citizens, let us think about the philosophy of what we are trying to do. We are trying to recognise that there is a difference between meeting a variety of tastes and interests expressed by consumers and meeting the public interest, which we colloquially think of as the citizens' interest. If the amendment requires redrafting so that it refers to a plurality of views sufficient to meet the public interest, that is fine. The Minister cannot tell us that the public interest is not properly defined elsewhere because later in the Bill, a plurality test for newspaper mergers is to be inserted into the Enterprise Act 2002 as a public interest that must be specifically met. I, and others, will move amendments in later sittings that address that point in the same way that we have addressed broadcasting.

The purposes of the amendment are still there. I hope that the Government will return to the issue in a purposeful way on Report or at a later stage, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 27, in

clause 3, page 3, line 13, at end insert 'and in carrying out their functions, OFCOM shall have regard to the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed'.—[Mr. Whittingdale.]

Question put, That the amendment be made:—

The Committee divided: Ayes 9, Noes 12.