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The Second Deputy Chairman:
With this it will be convenient to discuss amendment No. 10, in page 7, line 4, at end insert—
'(4) Nothing in this section shall be construed as affecting the ultimate responsibility of the ITC, the British Broadcasting Corporation, the Radio Authorities or Sianel Pedwar Cymru for their respective services.'.
It is much later than I expected, and I doubt whether the hour appeals to my hon. Friend the Minister.
We are often told that the best thing about our constitution is that it is unwritten. Hon. Members know that that is not entirely true. The party political broadcast is a good example of the way in which our election law has grown organically and remains partly informal and voluntary. Although the Independent Television Commission and the Radio Authority have a legal obligation to carry party political broadcasts, the BBC broadcasts them by convention, not by law. That also applies to Sianel Pedwar Cymru.
That convention was not even imposed on the BBC, but volunteered by Lord Reith who was offered £100 by Churchill to make a broadcast and told him, "You can't pay, but you can have it for free." Ever since, the political parties have made election and party political broadcasts. For 25 years they were run by a shadowy organisation called the Committee on Party Political Broadcasting, which consisted of the broadcasters, the Whips and the usual channels. I refer to it as shadowy because it was known to have met only once in those 25 years, at the prompting of the Alliance in 1983. Matters are now on a much sounder footing, as my hon. Friend the Minister knows, and the broadcasters and the political parties meet regularly to discuss the issues.
Amendment No. 11 has been tabled essentially to protect the broadcasters against the possibility of judicial review. They are not worried about the parties represented in Parliament, and the arguments almost always concern parties not represented in the House and detailed questions such as the threshold for a party political broadcast, how long it should be, when it should be broadcast and at what time. Were we to go into detail, we should rapidly get out of our depth; my point is that the electoral commissioners and the judges would do the same. These issues are best left as far as possible to the broadcasters and the parties. The broadcasters clearly must "have regard to" the views of the commission, but should be left to make the detailed decisions.
Amendment No. 10 represents an assurance to broadcasters—it makes it clear that ultimate responsibility would still lie with them—and would provide protection against litigiousness, which might otherwise arise. There could be endless argument about whether a party political broadcast offended the Race Relations Act 1976, which affected a case involving a British National party broadcast, or whether it is defamatory, around which an argument about a Sinn Fein party political revolved. There might also be argument about whether a broadcast was decent and in good taste. A famous ProLife Alliance party political was turned down on that basis.
The broadcasters and the parties can decide those issues with the minimum legal guidelines. If the length of a broadcast were subject to the law as the Bill proposes, it would be easy for the parties to push for the 30-second killer broadcasts that became notorious in the Bush-Dukakis contest. Party political broadcasts used to be seen as a turn-off—the time when people went into the kitchen to make the coffee—but that view is increasingly out of date. More and more money is spent on slick production, but the main reason why we should protect them is that they are a million times better than the alternative, which is paid television advertising.
I shall make progress, if I may.
One has only to cross the Atlantic to see the effect of such advertising. The party political broadcast is a delicate flower that we must protect. It can be killed by too much legislation as well as too little. The amendments defend the traditional, informal approach and I urge the Minister to accept them or to at least reconsider the wording of the Bill.
The hon. Member for Battersea (Mr. Linton) knows from the many hours that we have spent in the Standing Committee that we do not always see eye to eye on these matters, although I pay tribute to his assiduity in identifying key issues for us to consider. In this case, he has a good point.
There is a certain tentativeness in Lord Neill's consideration of broadcasting. Having reviewed it, he said in paragraph 13.22 of his report:
In connection with both the future of party election broadcasts and party political broadcasts … and also their allocation among the parties, we believe there may be a role for our proposed Election Commission. The Commission could express non-binding views on such matters as those raised by the broadcasting authorities' consultative document; and the political parties and the broadcasters might find it mutually advantageous if the Election Commission played an 'honest broker' role in connection with the allocation of the available free air-time.
That sounds wonderfully bland and high-minded, but I rather fancy that it does not exactly deal with the reality of the situation.
Party political broadcasts and election broadcasts are highly sensitive, and someone must carry the can if they go wrong. Given that judicial review proceedings have previously been brought against the broadcasters for their failure to meet the requirements of various political parties, is there not a real danger, given the way in which the clause has been formulated, that if it is left as it is the focus of attention will shift from the broadcasters to the Electoral Commission?
If that is the result of the Bill as it stands, the amendments tabled by the hon. Member for Battersea may have some force. Although they clearly require the broadcasters to pay some attention to the Electoral Commission, they would, on the face of it, remove the taint in the clause suggesting that it is the Electoral Commission that should be judicially reviewed.
Amendment No. 11 would delete the reference to consulting the Electoral Commission on
the political parties on whose behalf such broadcasts may be made"—
a subject that is likely to raise sensitive issues—
and … the length and frequency of the broadcasts".
It may be better to let the broadcasting companies and the BBC face the music from the disenchanted political party, rather than allow the Electoral Commission to be exposed to legal proceedings because it has strayed into an area where it should not have been.
I should be grateful to the Minister if he would tell the Committee how he views this matter.
I support the amendments tabled by the hon. Member for Battersea (Mr. Linton), which have considerable practical merit. Party political broadcasts have evolved like Topsy in an informal but constructive way over a long period. I do not believe that an Electoral Commission has the qualifications to determine how to get the balance right. We would do the commission a favour if we did not get it drawn into this area.
The hon. Member for Battersea raised the alarming spectacle of judicial review, which we have managed to avoid in this context. In Committee, the Minister detailed the proliferation of small political parties that are growing almost by the day in this country, so I do not have to remind him that they would see this as a great opportunity to paralyse the whole process, which could lead who knows where. That is the point.
The system is not broke, so we should not fix it. There is an established convention, but that does not mean that there are no rows or disagreements. Heaven knows, my party has had many complaints about balance and share, as have other parties in the House and outside. However, there is no evidence to suggest that the existing mechanism does not manage to resolve those problems. The broadcasters recognise that they have a wide audience. Political parties also have influence over the broadcasters, which can be brought to bear in different ways.
Will the Minister address that point? Does he accept that placing an obligation on the Electoral Commission to be responsible to the political parties for securing balance is to open up the possibility of legal difficulties, which we could all do without?
Mr. Lord, I have very little to repeat of what I said before 10 o'clock, except to say that I find myself in very considerable sympathy with amendments Nos. 10 and 11—which were positively and articulately moved by the hon. Member for Battersea (Mr. Linton) and which, interestingly, were supported by the Opposition spokesman, my hon. Friend the Member for Beaconsfield (Mr. Grieve) and by the Liberal Democrats' spokesman, the hon. Member for Gordon (Mr. Bruce). I too believe that if something ain't broke, we should not go about fixing it. The present system does work, and the hon. Member for Battersea has made an excellent point.
I do not wish to bring a note of political controversy into the debate, but I hope that, in his reply, the Minister will give us his definition of a party political broadcast. I should like to pose a simple question. If a countryside soap—let us call it "The Archers"—were being broadcast during a general election period, and if that programme were similar to an episode of "The Archers" which was broadcast not very long ago and related to the Government's agricultural policies—many of us believe that that episode could certainly have been described as a party political broadcast—might the Electoral Commission have something to say about it? Conversely—as the hon. Member for Battersea rightly said—should we leave it to the Independent Television Commission and to the BBC and the other broadcasters to keep their own house in order?
As I said, I do not ask that question to be politically controversial or provocative, as the whole tenor and temperature of our debates has been enjoyable and admirable. We simply seek to get Ministers to understand some of the problems in the legislation. It would be most helpful if the Parliamentary Secretary, Privy Council Office, the very agreeable hon. Member for Sherwood (Mr. Tipping), could direct at least some of his reply to dealing with that point.
I am grateful to my hon. Friend the Member for Battersea (Mr. Linton) for tabling amendments Nos. 10 and 11, which, as hon. Members have said, raise important issues. The Committee has had a chance to debate those issues.
The hon. Member for Macclesfield (Mr. Winterton) asked me to define a party political broadcast. My definition is not the same as that used by my hon. Friend the Member for Battersea in moving the amendments. He called party political broadcasts "delicate flowers" that must be protected. I am a regular watcher of party political broadcasts, and I would never call them delicate flowers.
I also had the opportunity to hear the episode of "The Archers" to which the hon. Member for Macclesfield referred. As someone who has a great deal to do with the countryside, I must confess that I raised my eyebrows at the account in the programme of the Prime Minister's speech to the National Farmers Union. The account did not seem to bear much relationship to the content of my right hon. Friend's speech. Of course, that was not a party political broadcast in the sense in which that term is understood.
The Neill committee's comments on the role of the Electoral Commission on party political broadcasts are set out in paragraph 13.22. The report says:
In connection with both the future of party election broadcasts and party political broadcasts … and also their allocation among the parties, we believe that there may be a role for our proposed Election Commission. The Commission could express non-binding views on such matters as those raised by the broadcasting authorities".
I stress the words "non-binding views". The Electoral Commission has a wide remit and it would not be inappropriate for it to have a role in the formulation of
the broadcasters' policy on party political broadcasts, but that role should be purely advisory. Clause 9 merely requires the BBC, the Independent Television Commission, S4C and the Radio Authority to have regard to any views expressed by the Electoral Commission, but the ultimate responsibility for party political broadcasts rests entirely with the broadcasters.
I shall offer the hon. Gentleman and my hon. Friend the Member for Battersea some succour on the matter.
It might help the Committee if I explained the purpose of subsection (3)(b), which amendment No. 11 would remove. The wording is derived from sections 36 and 107 of the Broadcasting Act 1990, which provide that the Independent Television Commission and the Radio Authority may determine which political parties qualify for party political broadcasts, and the length and frequency of such broadcasts. By inserting the same formulation in subsection (3) we ensure that there is consistency as between the BBC and the ITC and that there is a focus for the Electoral Commission in offering its views.
The hon. Members for Beaconsfield (Mr. Grieve) and for Gordon (Mr. Bruce) and my hon. Friend the Member for Battersea have expressed doubts. On reflection, the words may not be quite right. I am prepared to look at them again, but in this or some other guise they perform an important function. We shall return to the issue.
I am a little unsure about the aim of amendment No. 10. The commission's role is confined to offering non-binding views. The ultimate responsibility for the content of broadcasts clearly rests with the broadcasters. Any amendment asserting that principle is therefore unnecessary.
Given the concerns that have been expressed tonight and directly by the BBC about the wording of the clause, we are prepared to take a fresh look. Subject to any necessary drafting changes, the clause reflects the Neill committee's proposals. It is right that the Electoral Commission should have a role, but not one that could bring it before the courts facing judicial review. With those assurances, I hope that my hon. Friend will withdraw the amendment.