Mr Peter Atkinson (Hexham, Conservative)

I remind the Committee that we spent one hour and a quarter on the preceding clause. If members of the Committee do not want to sit very late or throughout the night, they have only about 15 minutes for the rest of the requisite clauses to reach the deadline. I hope that they will bear that in mind as we progress.

Question proposed, That the clause stand part of the Bill.

Mr John Greenway (Ryedale, Conservative)

I promise not to take as long as during the preceding debate, but clause 70 poses some important issues. I want to debate what Ofcom will do in future about the specific types of access-related conditions to which the clause refers—application programme interfaces and electronic programme guides. I confess to being no expert on application programme interfaces: in fact, I had some difficulty even understanding the definition.

I shall not bore the Committee on that point, but I do want to say a few words about electronic programme guides, which the Minister knows is one of the current flashpoints between public service broadcasters and satellite and cable operators. Clause 70 allows Ofcom to set access-related conditions. The key question is how Ofcom will use the power.

In the same spirit in which the Minister said a short while ago that the Government were technology neutral, I have no intention of coming down on one side or the other of any of the commercial arguments between the PSBs and the platforms. As the Minister knows, there are opposing arguments but the Committee has a duty briefly to air them to shed light on how Ofcom will deal with them, which it will have to do.

Clause 299 requires Ofcom to have a code of practice, which has yet to emerge. The prominence of programming displayed on EPGs is of particular concern to S4C. The Minister and the hon. Member for Rhondda will know that that matter is a particular bête noire for S4C. It is an extreme point, but shows the challenge faced by Ofcom in resolving such issues.

I am sorry that the hon. Member for Ceredigion (Mr. Thomas) is not present to contribute to the debate, because he would have a lot to say about the matter. Hon. Members will be reasonably familiar with S4C's point, which I do not want to labour, but in Wales if one has a Sky dish and receiver, channel 104 is S4C, not Channel 4. However, my briefing note from S4C says that people who receive their signal through a cable system get something called channel 7. The channels are certainly not in the same order as in England.

Mr Brian White (North East Milton Keynes, Labour)

Is the hon. Gentleman saying that there should be a single EPG for all platforms, or that individual companies should be able to make up their own numbering systems?

Mr John Greenway (Ryedale, Conservative)

The code of practice should deal with that issue.

Another problem is potentially more difficult. I do not know whether you were in the Chair the other day, Mr. Atkinson, when I said that I could not read my pager without my spectacles. I am adept at the Sky zapper, though, and know my way around all the channels, including all the marvellous radio channels that we can access through Sky. Not everybody is so adept—people with disabilities, for example, whom we mentioned last week.

There are lists of dedicated channels, but I understand that if one looks through the EPG for

children's channels, the ones that come up do not provide information for any children's channel in the Welsh language. That is an issue for S4C and for Welsh viewers. Although I understand the technological difficulties—

Mr Chris Bryant (Rhondda, Labour)

Will the hon. Gentleman give way?

Mr John Greenway (Ryedale, Conservative)

Let me make this point because it may help the hon. Gentleman. When I look at the sports channel page on Sky, it is strange that I see the dedicated sports channels, but not whether there is a rugby international on BBC 1 or cricket on Channel 4. I am not suggesting at this juncture that the technology exists to see all the possibilities, but a key feature of the Bill is to try to deal with future problems—as you reminded the Committee, Mr. Atkinson, during the last debate. In the end, Ofcom will have to deal with the matter.

Mr Chris Bryant (Rhondda, Labour)

I sympathise with the thrust of what the hon. Gentleman says, but the best place to have that debate is on clauses 299 and 300, in which much of the relevant matter is made explicit. By the time we get to clause 299, he might properly understand the S4C issue.

Mr John Greenway (Ryedale, Conservative)

I do understand the S4C issue.

Mr Chris Bryant (Rhondda, Labour)

No, you do not.

Mr John Greenway (Ryedale, Conservative)

With respect, I have spent considerable time talking to S4C about the issue and I promised that if the opportunity arose I would raise it in the Committee. I have not raised the issue in such a way as to give my view about who is right or wrong in the argument that S4C has advanced. The hon. Gentleman says that we might have the opportunity to consider the issue again in relation to clause 299, but we simply have no idea whether time will allow us to do that. Time certainly allows us to do that now.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

Obviously, clauses 299 and 300 will allow a discussion of the code and the prominence that is to be given to the public service broadcasters. However, it is only at this point that we can examine whether proper provision is being made for due prominence on fair, reasonable and non-discriminatory terms for commercial broadcasters without public service obligations.

Mr John Greenway (Ryedale, Conservative)

My hon. Friend makes a good point. I said in response to the Minister, who commented from a sedentary position, that I used the S4C issue simply as a way to illustrate difficulties. There are many other issues that one might have addressed, but I did not want to detain the Committee unnecessarily, since time is moving on. The answer to the point about whether we should have this debate under clause 299, notwithstanding the excellent point that was made by my hon. Friend the Member for South Cambridgeshire (Mr. Lansley), is that clause 70 allows Ofcom to set access-related conditions, whereas clause 299 deals with the code of practice for electronic programme guides, which is a different matter. The Committee needs some guidance on how Ofcom will use the relevant power. We want the Minister to address that issue.

The provisions of clause 70—indeed, of all the clauses in this part of the Bill—replicate the directives. We must accept the provisions of the directives and the fact that, to a great extent, many of the clauses might not be amendable by the Committee other than in areas in which the Government might have strayed in drafting. We discussed that earlier in relation to gold-plating. We are not, however, addressing the issue of the provisions of the directive. The issue is how Ofcom will use the relevant powers.

I am sure that those who are affected by the powers would like some early indication about how Ofcom will proceed. Those might include the companies that produce the programmes, which are concerned about the programme guide giving them sufficient prominence—my hon. Friend the Member for South Cambridgeshire mentioned that—or the providers of delivery platforms, which are concerned that difficult conditions might be imposed on them regarding their EPGs.

In answer to the point that was made by the hon. Member for Rhondda, if Ofcom's intention is to rely exclusively on the code of practice, perhaps we need to see a draft of that code before we discuss the code in relation to clause 299. Certainly, that clause provides a requirement for a code. These powers are important and they will affect viewers and their experience.

Many issues relating to this part of the Bill might appear to be as dry as dust, and to have the consistency not of spaghetti, but of linguini, as we try to trace the threads from one place to another. These matters are difficult and complex, but there are some elements in the provisions that directly affect consumers' experiences. EPGs form one such element. I hope that the Minister will respond in the spirit in which I moved and opened the debate.

Mr Brian White (North East Milton Keynes, Labour)

The hon. Member for Ryedale (Mr. Greenway) has covered a number of points about disability and about the generality of the electronic programme guide and I will not repeat those. However, I have a couple of questions.

As EPGs develop and devices such as TiVo become available, programmes will be viewed at times other than those listed and will be broken into different genres. It is debatable whether the definition in the clause is sufficient to achieve that. I am sure that the Minister will assure me that it is, but is it future proof? I am sure that it covers the current situation, but will he assure me that it will allow Ofcom to deal with the technology as it develops and as EPGs become much more sophisticated?

That brings me to another point. In a previous debate, we heard about the problems of local loop unbundling. I have no wish to return to that discussion, except to say that one of the problems that Oftel had at the time was the lack of skilled resources, because other companies had pinched them. If we are to get the conditions right, it is important that Ofcom has the skilled work force necessary to deal with some of these key issues. Will my hon. Friend assure me that the skills set available to Ofcom will enable it to address those issues as they develop, especially with regard to disability and EPGs?

Mr Richard Allan (Sheffield, Hallam, Liberal Democrat)

I want to clarify the question of scope. The hon. Member for South Cambridgeshire helpfully intervened to say that this might be the only time when we can talk about differential access to key positions on EPGs for services that are not public service broadcasts. That is important. I was trying to work out how that related to clause 299, and initially believed that clause 70 dealt with technology while clause 299 dealt with content. I now understand that some content issues are included in clause 70.

Will the Minister clarify whether the intention is that access-related conditions in respect of EPGs stop at the point of defining the technology? In other words, can the controller of an electronic programme guide satisfy the access-related conditions by accepting input to a defined standard from other broadcasters? That is a key point, as each broadcaster submits its input for incorporation into that EPG. Do the access-related conditions intended under the clause simply go to that point of defining the technology and the information formats, or do they go further by trying to define, for example, relative ranking within the EPG as presented to the public? That is an important scoping point, which needs to be addressed.

I thought that I understood the intention, because I thought that I understood what an application programme interface is. However, as I read the clause, I realised that we were talking about something completely different from the common understanding. That is a serious point, because there is potential for great confusion. An API—application programming interface, as it is usually referred to—is a well understood term in the context of software, and in subsection (3), it is defined in the context of software, which makes it especially confusing. The ''programme'' referred to is not a computer program, but a television or radio programme. Further into the definition, we have ''programme services'', and if we skip to the great definitions clause—clause 390—''programme service'' lists TV and radio programmes, and so on.

My point may seem esoteric, but when drafting legislation, it is important not to include language that will confuse the public. The phrase ''application programme interface'' is a poor use of language in this context, because people will understand it to mean this technical thing called an API, which is a way of defining how other people can plug their modules into a common piece of software. That is not what the clause intends, yet we are using language that appears to suggest that it does. I hope that that serious point is of help to the Minister.

I have another technical point. The last part of subsection (4)(c) confused me utterly. I wondered whether an ''s'' was missing. Subsection (4)(c) talks about

''allowing a person to become the end-user of a description of public electronic communications service.''

Will the Minister clarify what it means to be

''the end-user of a description''?

Does that mean the person who is looking at an electronic programme guide is therefore looking at a description? If that is the case, I would have thought {**!23**}that ''electronic communications services'' was intended. I would have understood that; instead, I am confused. Can the Minister clarify the phrase? Is the problem the way in which I am reading the provision, or is it not worded correctly? It is a key area, as was pointed out earlier. While I appreciate that we are trying to describe something complex, there could be more clarity in the phrasing used.

Mr Chris Bryant (Rhondda, Labour)

I, too, shall speak briefly about APIs. Can the Minister clarify my understanding that that is one of the more important relationships between broadcasters and operators of the set-top box? It is vital to any broadcaster producing an interactive service that will be transmitted to the viewer via a set-top box to have full, prompt information about the technical standards of what is inside that box—the API or operating system. That should be provided as swiftly as it is by any other broadcaster integrated with the satellite operator.

I can give a brief example. A few years ago, Sky developed interactive sports viewing—it was able to give viewers the opportunity to choose camera angles and to decide from which side of the pitch they wanted to watch a match. It was an attractive model. For the first year and a half, it was available only on Sky sports channels, because the information was not passed in a timely way to other broadcasters. For instance, the BBC had interactive rights for Wimbledon—three years ago, it should have been able to give people a choice of match and camera angle; viewers could have chosen to receive information about players and so on. However, the BBC was not able to provide that service.

The clause would make it possible for Ofcom to ensure that all broadcasters had equal access to the information that they needed to provide services through the set-top box. It is, therefore, an important clause.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

I apologise that I did not hear the whole debate on clause 69. I shall try not to duplicate it or say anything out of order on this clause.

Mr Peter Atkinson (Hexham, Conservative)

That will be hard.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

So I understand.

My hon. Friend the Member for Lichfield mentioned mobile phones. Judging by the Minister's response to clause 69, I am not sure whether the matter that I have in mind was included in the debate. It is covered by clause 70(1)(b), which deals with interconnection. That is an important aspect of the process of securing access. The access directive stresses its desirability and describes the physical and logical linking of public communications networks between public network operators.

I take the point that the Minister cannot discuss the matter in any detail because we are awaiting the Competition Commission's conclusions in relation to fixed-line access to mobile phones. However, he made a point about contracts. When people enter into contracts with mobile phone networks they do so as

mobile phone users, not on behalf of every fixed-line user who wants to speak to them. If the issue that is at the heart of the Competition Commission's examination is how to secure competition, the best way to achieve that is not necessarily the imposition of price controls. That would probably delay the introduction of competition, even if it delivered benefits that would not otherwise be available to consumers in the meantime.

The best way to introduce competition might be to allow interoperability between mobile phone networks to the point at which a substantial part of the carriage from a fixed line access to a mobile phone can use whichever network will do the job on the best terms. I will not dwell on that, as I could not explain further the technical means of doing so, although I understand that those technical means exist. It has been to the advantage of mobile phone operators that, for that purpose, they have had separate networks and captive consumers when fixed-line telephones are trying to reach a given mobile phone. I wanted to make that point about clause 70(1)(b) and interconnection.

Further to the point made by my hon. Friend the Member for Ryedale, the issue is essentially about commercial broadcasters. The code will be able to deal with many of the interests of public service broadcasters. The scrutiny Committee referred to EPGs, and the Government, in their response, took the view that the two clauses would allow the necessary protection for commercial broadcasters because of the imposition of fair, reasonable and non-discriminatory terms, as specified in clause 70(2).

However, we do not know from the EU directive or from the clause whether the requirement to be fair, reasonable and non-discriminatory relates to financial terms alone, or to due prominence. We do not know whether that sort of discrimination can occur if someone who is packaging channels and has control of an EPG can control due prominence in a way that is, in market terms, highly discriminatory. All of us have encountered commercial broadcasters who, in their access through the Sky EPG, have sometimes taken the view that they have been subject to substantial disadvantage in the marketplace because of their relative prominence. We all know that certain channels must be given due prominence, because the market wants more access to some channels than to others. How far can the fair, reasonable and non-discriminatory criteria take us? Will they be able to resolve issues of due prominence in relation to the desires of end users?

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

Perhaps I can try to answer some of those questions.

The hon. Member for Ryedale made his point after discussions with S4C, but, as my hon. Friend the Member for Rhondda made clear, the issue would be better debated under clauses 299 and 300, which deal with the key issue of due prominence. Clause 70 deals with operational and technical issues related to access. However, I accept the hon. Gentleman's point, and I am sure that we will have a proper debate on the matter in due course.

The hon. Member for Sheffield, Hallam made a pair of observations that almost flummoxed me. I understand that the definition of API in the Bill was taken from the framework directive, and may not mean the application programming interface, which he mentioned. However, I will check that.

Mr Michael Fabricant (Lichfield, Conservative)

Will the Minister give way?

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

I will give way in a moment, after I have dealt with the point made by the hon. Member for Sheffield, Hallam.

Mr Michael Fabricant (Lichfield, Conservative)

In a spirit of brevity and helpfulness, I was simply trying to point out that although the hon. Member for Sheffield, Hallam had a point, his sort of program is spelled with a single ''m'', whereas the programme referred to in the Bill is spelled ''programme''.

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

I thank the hon. Gentleman for that intervention. I am sure that we have all benefited from it.

I will check whether the word highlighted by the hon. Member for Sheffield, Hallam is ''service'' or ''services''. With regard to the point about coverage of APIs made by my hon. Friend the Member for Rhondda, I can confirm that clause 70 will give Ofcom powers to regulate access to APIs.

Clause 70 is closely related to clause 69, which sets out the permissible categories of access-related conditions. Under clause 42, access-related conditions are to be imposed case by case on individual persons or communications providers and persons making available associated facilities. That is unlike the general conditions, which apply to all communications providers, or all providers of a particular description. These conditions can be imposed on any communications provider or person making available associated facilities, and in certain cases on any person, where that is necessary to meet the objectives of the EC communications directives in respect of securing access.

Clause 70 sets out more detail about certain types of condition that may be set under clause 69(2). That deals generally with conditions to ensure a level of network access and interoperability that will promote efficiency, sustainable competition and the greatest possible benefit to end users. Clause 70 specifies that such conditions may include obligations designed to ensure end-to-end connectivity. It provides that such conditions may be set where Ofcom considers them necessary to secure the provision of application programme interfaces and EPGs on a fair, reasonable and non-discriminatory basis. The measure also provides that persons can have access to such digital programme services as Ofcom may determine.

As I understood it, the hon. Member for South Cambridgeshire asked whether the phrase ''fair, reasonable and non-discriminatory'' covered due prominence. The directive is without prejudice to presentational aspects specifically regulated for PSBs under clauses 299 and 300. The matter may be covered more generally by FRND to the extent necessary to ensure sustainable competition, efficiency and the

greatest possible benefit to end users. I hope that that helps the hon. Gentleman. I do not think that it answers all the questions that he asked, but it is a possible yes.

The requirements are necessary to transpose effectively certain requirements of the access directive. However, the clause makes it clear that the specific examples are not to be taken as restricting the obligations that might be imposed under the more general provisions of clause 69(2). Those provisions are necessary to ensure that the requirements of the access directive are clearly and accurately transposed into UK law.