Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

I beg to move amendment No. 148, in

clause 12, page 12, line 23, at end insert—

'(1A) At any such time that a function has been conferred on the Board that function shall not also be exercised by OFCOM.'.

Mr Roger Gale (North Thanet, Conservative)

With this it will be convenient to take the following: Amendment No. 13, in

clause 12, page 12, line 26, at end insert—

'( ) functions arising under sections 307 and 315 of this Act;'.

Amendment No. 61, in

clause 12, page 12, line 38, at end insert—

'(3A) The Content Board's functions should have sufficient regard to persons who are likely to be affected and should be limited so as not to have a major negative impact on business competitiveness.'.

I am asked to inform the Committee that there has been a typographical error in the printing of amendment No. 13. It should read ''functions arising under sections 307 to 315 of this Act'', not ''307 and 315 of this Act''.

Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

I do not want to spend too long on this, but it is undoubtedly true that the content board will take on responsibility for important matters that are likely to generate a lot of public controversy and interest. There is some concern that the boundaries of the content board should be properly defined.

Amendment No. 148 would address the worry that businesses overseen by Ofcom may face a double jeopardy. If Ofcom delegates a function to the content board, it may also be considered and perhaps overruled by the main board. Clearly, the main board must have the ultimate responsibility. I am not suggesting that it should not have such power. I hope that the Minister accepts that some businesses subject to oversight by Ofcom may make their case to the content board, which is given immediate responsibility, only to find that the main board will concurrently exercise judgment. The amendment is designed to flag up the concern about businesses facing a double jeopardy. Will the Minister reassure me about such matters?

Amendment No. 61 is concerned about decisions that are likely to have a significant impact on various businesses. Businesses should be properly consulted and there should be no chance of the content board overreaching the powers that have been delegated to it. The Joint Committee outlined the need for further clarification of the responsibilities of the content board, but the Government said that they expected Ofcom to provide a clear statement about the board's role. We consider that that is insufficient and leaves open the possibility for arbitrary and non-transparent exercise of powers. The amendment would ensure that the content board is not able to make decisions that could have untoward and negative repercussions on companies that use content as an integral part of their commercial service offerings. Will the Minister consider that and provide reassurances for businesses that will be affected by the deliberations of the content board?

Mr Roger Gale (North Thanet, Conservative)

Before we start the debate, I must inform members of the Committee that this group of amendments, together with amendments Nos. 36 and 37, which we shall come to next, broadly embrace the content of the clause. I invite hon. Members to raise issues now rather than later.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

I can be reasonably brief. There was a difference of view between the Government and the Joint Committee about whether we should not only specify which provisions should be the responsibility of the content board, but provide executive and determinative responsibility for the content board when clarifying its functions. I understood from the Government's response that to do so would alienate the legal responsibility from Ofcom itself, and be undesirable. The amendment is not drafted in the same form as the Joint Committee's view, but it would provide greater clarity about the functions of the content board is doing, something that the Joint Committee wanted.

The Minister may say that the amendment would is repetitious because some of the provisions of clauses 307 to 315 are comprised within the language of clause 12(2)(a). None the less, the amendment would make clear to those who are considering the role of the content board the extent of its remit. It would be open to Ofcom to vary from that remit, but the powers of the content board would be set in a clear framework.

Mr Michael Fabricant (Lichfield, Conservative)

On your advice, Mr. Atkinson, I wish to receive clarification from the Minister about the philosophy behind subsection (2), especially paragraph (a), which refers to the function of the board

''in relation to matters that concern the contents of anything which is or may be broadcast''.

I raise that point because historically, as the Minister may recall, the old Independent Broadcasting Authority and, before that, the Independent Television Authority were very proscriptive about programming to be broadcast. For example, television stations had to present pilots before programmes were broadcast; and, in the early days of independent broadcasting, radio stations—even though they were making local radio programmes—had to present pilots before the IBA would approve them for transmission.

Since that time there has been a lighter touch. The Independent Television Commission and, in particular, the Radio Authority have been retrospective in the way in which they have considered programming for broadcast. However, given that subsection (2)(a) uses the phrase ''may be broadcast'', the Minister may wish to describe how proactive the content board should be. Should it use as light a touch as that used by the Radio Authority or the ITC; or should its use an even lighter touch? What will its philosophy be?

Clause 12 talks about ''electronic communications networks'', but does that phrase embrace the internet? If it does, how does the board intend to control the internet—the perennial question—when much of the source material on the internet comes from outside the United Kingdom?

Mr Nick Harvey (North Devon, Liberal Democrat)

I rise to speak in favour of amendment No. 13, which is a logical amendment. However, I am more interested in probing the implication and meaning of amendment No. 61, especially when it is read together with amendment No. 148. Amendment No. 61 seeks to impose a specific responsibility on the content board to protect competition. During deliberations on the Office of Communications Act and on the Second Reading of this Bill, the hon. Member for Maldon and East Chelmsford and his colleagues expressed enthusiasm for the BBC being regulated entirely by Ofcom. I, and others, have said that we might be persuaded of that in the fullness of time—specifically, when we come to charter review—if Ofcom proves itself a suitable regulator to take on that work. Were amendment No. 61 to be accepted, Ofcom could never be an appropriate body to regulate the BBC. By definition, anything done by the BBC—which has a privileged funding stream—distorts competition and impacts on

the competitive market. I urge the hon. Gentleman to think hard about this. One day, Ofcom may be suitable to regulate all the functions of the BBC. However, amendment No. 61, when taken together with amendment No. 148, would ensure that Ofcom would never be suitable for that task.

Mr Michael Fabricant (Lichfield, Conservative)

The hon. Gentleman has raised an intriguing point. However, he will be aware that the BBC claims to have a fair trading policy. [Interruption.] My hon. Friend the Member for South Cambridgeshire sighs with disbelief, and many of us share that disbelief. Is the hon. Gentleman suggesting that the BBC does indeed distort market policy?

Mr Chris Bryant (Rhondda, Labour)

Of course it does.

Mr Michael Fabricant (Lichfield, Conservative)

There seems to be unanimity throughout the Committee that the BBC distorts the market by competing unfairly with commercial companies.

Mr Nick Harvey (North Devon, Liberal Democrat)

I remind the hon. Gentleman that, in its general economic functions and its trading, the BBC will, under this Bill, be regulated by Ofcom. However, we are talking specifically about content and the content board. The hon. Gentleman's party colleagues have been urging that everything that the BBC does, including content issues, should be considered by Ofcom. One day, that may be appropriate. However, if Ofcom had a slavish responsibility to promote competition, it would be unfit for the purpose. For example, when new BBC services are to be approved, the content board might end up with responsibility for them because they would be content issues: however, if it had an absolute obligation in terms of competition, it would never be able to approve any new BBC functions or services. If I were a Conservative Member, I would approach amendments Nos. 61 and 148 with caution, because they might rule out the BBC in its entirety ever being under Ofcom.

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

As hon. Members have said, these amendments are intended to specify more closely the functions of the content board, and to constrain it. Any effect that they had would make it harder for Ofcom and its content board to do their jobs.

Amendment No. 13 is intended to ensure that the functions of the content board include—to the extent determined by Ofcom—functions in relation to setting standards, codes and dealing with fairness complaints. Those functions fall within those that Ofcom is specifically expected to consider giving to the content board. However, it might, for example, prefer to establish, in conjunction with the content board, separate arrangements for handling code development. That should remain an option. We do not believe that it is right to over-specify how Ofcom discharges the responsibilities for which it will be held to account.

Amendment No. 61 would also skew the work of the content board. As we discussed in relation to clause 3, Ofcom must balance a number of factors, including its duty to promote competition, and its arrangements for the work of the content board must not upset that balance.

Amendment No. 148 would ensure that Ofcom and its content board do not undertake the same function. That has a superficial appeal, but it may be the case that, for example, Ofcom wishes to give the content board a function but to reserve to itself decisions with an impact beyond a particular financial threshold. That should remain possible. We anticipate that Ofcom and its content board will work to establish a memorandum of understanding—or something similar—so that their distinct roles are made clear internally and externally.

The hon. Member for Maldon and East Chelmsford asked whether the content board would exercise arbitrary powers. It is a central element of the Bill that the main board delegates as it sees fit to the content board. I doubt that the content board would act in an irresponsible way, but if it were to do so—such as in the way that, if I interpreted him correctly, the hon. Gentleman described—the main board will have oversight of it. I welcome the opportunity to put that on the record.

The hon. Member for Lichfield asked about the remit extending to the internet. It is likely to be necessary for the content board to research and advise on matters relating to the internet—notably in relation to media literacy. However, the board will be fully part of Ofcom, and it cannot have any regulatory functions or powers that Ofcom does not have. As the Bill does not provide for Ofcom to have any regulatory powers over internet content, the content board cannot have any.

The hon. Gentleman also asked about ''is'' or ''maybe'' broadcast. It is not intended that Ofcom should pre-censor, but it can examine journalistic methods—in particular, it can examine a complaint of unwanted infringement of privacy, as the Broadcasting Standards Commission currently does.

Mr Michael Fabricant (Lichfield, Conservative)

I am grateful for those answers to my questions.

In light of the Minister's comments, is it fair to say that he does not envisage Ofcom being any more prescriptive than the Radio Authority and the Independent Television Commission, because they already have a light touch?

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

Yes. We no longer use the phrase ''light touch'', although I cannot remember why. I confirm that that is one of the Bill's central thrusts.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

I am slightly confused because the purpose of my amendment was not to try to constrain Ofcom unduly, but to leave flexibility. It was to clarify the role of the content board. If anything, the Minister has made it more difficult to understand. He seems to be contemplating that some of the issues under clauses 307 to 315 might not only not be functions conferred by Ofcom on the content board, but might be conferred by Ofcom on some other body established through Ofcom.

Given that the content board is able to establish committees and panels under clause 12(5), surely it would be sensible to make it clear that the responsibilities under clauses 307 to 315 should, in

due course, be conferred upon the content board under all normal circumstances? That would help people to be clear about the respective relationships. Or is the Minister actually telling us that there is some expectation that functions may be conferred upon some other body?

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

I regard the content board as the obvious candidate to do the tasks that the hon. Gentleman mentions. However, there is the opportunity in the legislation for Ofcom to set up committees and bodies as it sees fit if there are hybrid problems that must be examined—several have already been raised during the course of our proceedings. It may be the case that a body constituted specifically for a task may need to be set up.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

I will not go on at length: I have made my point. It would be better to be clear rather than pursue extravagant flexibility for Ofcom. It would be better to be clear about what the role of the content board is to be.

Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

In respect of the question of double jeopardy that I raised, which is dealt with by amendment No. 148, I accept that Ofcom should have the ultimate power. I hear what the Minister says about oversight should it be necessary for the content board to act in an arbitrary manner, so I do not intend to press the amendment.

The hon. Member for North Devon made some interesting remarks about amendment No. 61. He suggested that, were the BBC to be brought fully under the auspices of Ofcom and the amendment were to be accepted, no new services would be approved when the BBC applied to start them, because they might have an impact on the competitiveness of existing services. That is a fascinating debate. We will not have it now, but we will return to it in the course of our discussion of the Bill.

It is precisely because the BBC is launching a whole series of services that impact on existing commercial services that I do not think that such services should be approved. If the content board found that the BBC was going to launch a service that would replicate an existing commercial service and would pose unfair competition, it should say that that service should not be launched. That would be the result of our amendment.

Mr Nick Harvey (North Devon, Liberal Democrat)

In circumstances in which a decision had to be made about whether the BBC should form a new service, the question is whether that decision should be made by Ofcom, as a regulator with overwhelming responsibility towards competition—which the hon. Gentleman advances—with, perhaps a note on its desk from the Secretary of State about the cultural issues, or by the Secretary of State with a note on her desk from Ofcom about the competition implications? I suspect that the hon. Gentleman and I would fundamentally differ about the answer.

Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

The hon. Gentleman is entirely right, we would fundamentally differ. We will have the debate later in our proceedings. I do not want to test the patience of the Chairman by having it today. The hon. Gentleman's observations about amendment No.

61 nearly tempted me to press it. Nevertheless, having listened to the Minister, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr John Greenway (Ryedale, Conservative)

I beg to move amendment No. 36, in

clause 12, page 12, line 28, leave out 'broadcast or otherwise transmitted' and insert 'transmitted, whether broadcast or otherwise'.

Mr Roger Gale (North Thanet, Conservative)

With this it will be convenient to take amendment No. 37, in

clause 13, page 13, line 43, leave out 'broadcast or otherwise published' and insert 'transmitted, whether broadcast or otherwise'.

Mr John Greenway (Ryedale, Conservative)

I shall be as brief as I can. These are probing amendments to ascertain whether the drafting of clause 12(2)(a) and clause 13(3)(a) is ambiguous. Clause 12 requires Ofcom to delegate to the content board functions that are related to broadcast content and media literacy. Clause 13 includes a similar requirement for consumer research. It is not clear whether the intention is that the content should include anything that is either

''broadcast or otherwise transmitted by means of electronic communications networks''

or whether the two alternatives are exclusive.

It is not clear whether the words

''by means of electronic communications networks''

are intended to refer back to ''broadcast'' or are meant only to refer back to ''or otherwise transmitted''. If the provision is intended only to refer back to ''or otherwise transmitted'', it seems to be contemplating a means of broadcasting that is not carried out over an electronic communications network. If that is the case, the content board's remit becomes ambiguous. It needs to be clarified.

The same issue arises in respect of the corresponding words in clause 13(3)(a). Clause 28 gives a detailed definition of an electronic communications network and describes it as

''a transmission system for the conveyance . . . of signals of any description''.

That appears to include all broadcasting. There may be ambiguity, but it may not matter either way because the same conclusion would be reached. However, the matter has been sufficiently exercising the lawyers at BSkyB and, as they are so frequently on the ball, it would be sensible for us to tease out from the Minister the meaning of the provision.

Mr Richard Allan (Sheffield, Hallam, Liberal Democrat)

I want to pick up on amendment No. 36 and approach it from a different angle. The existing wording and the suggested change of wording refer to the definition of what the content board regulates. Now is the most appropriate time to tease out details of the scope of the content regulation, especially whether it covers the internet. The implication of ''electronic communications network'' is that the internet would be covered. In response to a point that was made about the previous group of amendments, the Minister said that it would not be. I assume that he was referring to the general duties of Ofcom under clause 3, which refer to it securing

standards in respect of ''television and radio services''. If we did not have the restriction in respect of general duties, the various forms of wording for ''otherwise transmitted'' could be taken as extending the duties to the internet.

I come to a point that needs to be considered seriously. I cannot find a definition of ''television and radio services'' in the Bill. That may not be essential, but it may become so. If the Government are successful, for example, in their broadband strategy and 5 million cable customers receive televisual output—or something that looks like a television programme—on their television set, how will we distinguish what is defined as internet and outside, and what is defined as broadcasting and, therefore, inside? It is important to define ''television''. Do the Government mean television as we currently understand it, in that it runs off a large transmitter on a hill, a satellite or a particular type of technology over cables? Reference was made earlier to the fact that community radio probably now uses the internet as radio more than it uses broadcast radio, because it is easier. We need a definition of what constitutes television or radio. Given the general duties under clause 3 along with the broad provision under clause 12 that refers to

''otherwise transmitted by . . . electronic communications networks'',

the content board may, by accident rather than by design, drift into such matters. It will be looking at its legal powers and receive complaints. Those complaints may well refer to something that has not historically been defined as television or radio. Who ultimately will arbitrate on whether such things should be regulated? That is a significant point.

If we are serious about the Bill surviving over the years, we should decide whether we need a clearer definition of what is inside and what is outside the television and radio sphere. Otherwise, we might simply rely on the fact that we have a current understanding of the one sphere, and a sort of understanding of the other—it is something to do with internet protocol packets, and involves websites and so on. Those spheres will increasingly converge. We can try to distinguish between the two at the moment, but I suspect that it will become harder to do so.

Mr Simon Thomas (Ceredigion, Plaid Cymru)

The hon. Gentleman makes an important point. He says that the two spheres will increasingly converge, but surely they have converged already. Interactive digital television, for example, helps the viewer to use an online service, to join in online interaction or to vote online on the topic of the day. We are told that online video on demand, which is already being delivered via cable, is outside the scope of the Bill. However, the hon. Gentleman's point makes us think again about those issues, and I hope that he will get the answer that he expects from the Minister.

Mr Richard Allan (Sheffield, Hallam, Liberal Democrat)

The hon. Gentleman reinforces my point. Someone using the Sky television service, for example, will, when looking at the television picture, presumably be within the gamut of the normal content regulation. That person might click on to Sky Active,

which is Teletext-serviced and is in some way regarded as television. If, through one of the online services, that person hooks on to something else, they may find equally or more offensive content, but at some point they will cross the boundary. The question is whether it is best to leave the boundary entirely vague in relation to technical matters, or to define the boundary more clearly. I see the sense in both strategies.

Our problem is that clause 12 does not clearly define the boundaries; it is not quite all encompassing. My understanding—the Minister may correct me—is that, on the internet point, we might be told that the Bill deals with television and radio regulation, and that it is therefore the definition of those that is important.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

There will be a lot of discussion on what constitutes the internet as distinct from broadcast services, and there are many subsequent definitions in the Bill. However, surely the content board can have functions conferred on it by Ofcom. If Ofcom is to have regulatory functions in relation to internet content, as it may well do—we shall discuss that later—that content can be referred to the content board. Clause 12 is not the place in the Bill to define the functions of Ofcom.

Mr Richard Allan (Sheffield, Hallam, Liberal Democrat)

I am grateful to the hon. Gentleman for his interpretation. We tried earlier to define, in broad terms, the functions of Ofcom, and our discussion is leading on from that. If clause 12 passes as it is, and hon. Members have concerns about Ofcom being involved in internet content regulation, it may be too late to do anything about it later. I did not expect such a broad definition under clause 12. The clause would be an opportunity to limit further the definitions of the content board, if that were the intention.

The point was made that by having such a broad definition in clause 12, we have left the matter open and can later broaden the scope of the content board. I had assurances from the Minister that the scope was to be quite limited. That is my point about the broad definition,

''otherwise transmitted by means of electronic communications networks''.

I accept that we will come back to the issue later, but it was worth making the point now, because if we approve clause 12 unamended, we will create a wide definition, and there is a valid political view that it would be better to create a narrow definition of what the content board does while we are defining the content board, rather than later in the Bill.

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

I suspected when I read the clause—about midnight some three days ago—that when we reached the amendments under discussion, a number of anoraks would start to unfurl themselves. I know that the hon. Member for Sheffield, Hallam would not be seen dead in an anorak.

These provisions relate to the functions of the content board and therefore to the content of anything that is broadcast or conveyed by means of an electronic communications network. They also relate to Ofcom's consumer research function as it relates to content. As we have seen, Ofcom's interest in content, in relation to media literacy, extends beyond broadcasting to other media, including the internet.

However, it does not extend to the regulation of internet content. I hope that that clarifies things a little.

I know that we are running short of time, Mr. Gale, but I want to draw the Committee's attention to part of clause 390, beginning at line 41 of page 332, which states:

'' 'television and radio services' means—

(a) programme services apart from those provided by the BBC; and

(b) services provided by the BBC in relation to which OFCOM have functions;

'television programme' means any programme (with or without sounds) which—

(a) is produced wholly or partly to be seen on television; and

(b) consists of moving or still images or of legible text or of a combination of those things''.

As the hon. Member for Sheffield, Hallam says, life is more complicated than that. He asked the Committee about whether we should leave the frontier vague or whether we should make it precise. My answer is that, at this stage, we should leave it as vague as possible.

I repeat that the content board will not regulate internet content. I suppose that we are asking for a content board that is, in a way, ignorant of the existence of the internet. However, I hope that I have explained things and have answered the specific question from the hon. Member for Lichfield. The content board will research, and advise on, matters relating to the internet and to media literacy. However, the board will be fully part of Ofcom, so it can have no regulatory functions or powers that Ofcom does not have. The Bill does not provide for Ofcom to have any regulatory powers over internet content; therefore, the content board cannot have such powers either.

Mr Simon Thomas (Ceredigion, Plaid Cymru)

I am grateful to the Minister for that explanation. However, one thing still concerns me—the availability of what we would call television and radio programmes made by a service provider that is otherwise regulated by Ofcom but broadcast on the internet. Already programmes may be broadcast first on satellite and then on terrestrial television, in order to encourage people to move to satellite. What will happen if technology moves on in the next five or 10 years, broadband becomes much more available, and broadcasters broadcast their programmes on the internet first, before broadcasting on terrestrial? Would the content of such programmes be governed by the content board of Ofcom?

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

That is the best reason I have heard so far for leaving the frontiers very vague. I expect that the House will have to examine such situations, which, in the context of this Bill, are outside the remit of Ofcom. I therefore ask the hon. Member for Ryedale to withdraw his amendment.

Mr John Greenway (Ryedale, Conservative)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 ordered to stand part of the Bill.