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We are concerned that no direct provision has been made in the Bill for dealing with disputes which arise after the Bill has come into effect, but relating to acts done before that date. Clauses 182 onwards go into some detail on disputes and appeals, but there seems to be no reference to procedures for dealing with disputes, in particular about interconnection, relating to events that occurred before the repeal of the Telecommunications (Interconnection) Regulations 1997, but which come to light only after those regulations have been repealed by this Bill.
Paragraph 20 of Schedule 18 covers the case where a dispute had already been referred to the director general under Regulation 6 of those regulations, but it had not been resolved by the time the revocation of the regulations came into force. Under the present regime, however, many disputes are notified to the director general long after the events to which they relate. It is necessary therefore to provide transitional procedures for disputes submitted to Ofcom after 25th July 2003 when the new regulatory system comes into force, which should include remedies for the parties as if they had been referred to the director general prior to that date.
The amounts of money involved are significant, as one can see from referrals made in the past to the director general. I shall not weary Members of the Committee with more than one example; that of the case of Flat Rate Internet Access Call Origination (FRIACO) intelligent network charging. Although that dispute has been under investigation for over a year, apparently it was only in February 2003 that the critical information that BT had upgraded its switch decoding capability came to the knowledge of the director general. While the benefit to the rest of the telecoms industry cannot be accurately quantified because of commercial sensitivities, some analysts estimate that they may be repaid almost £15 million as a result of the decision on this case.
I believe that the Government have indicated that disputes which are not raised until after Ofcom formally assumes its functions will be subject to an "exceptional circumstances" requirement, which seems to be the purpose of Amendment No. 320A. If the Government are not prepared to accept these amendments, they need to spell out exactly what the requirements will be and how the procedure will operate. However, it would be far better to put in place provisions such as we have proposed in Amendments Nos. 143, 321 and 322.
Amendment No. 321 would ensure that certain existing directions made by Oftel relating to interconnection and carried forward after the Bill comes into force, by virtue of the transitional provisions in the Bill, will be brought within the new significant market power regime to the extent that they deal with issues of SMP and, hence, within the ambit of SMP reviews, which Ofcom is required to carry out under Clause 81.
Where Oftel is already dealing with a dispute when the Bill comes into force, Paragraph 20(2)(a) of Schedule 18 requires Ofcom to make a determination as if it were the director exercising the powers given to him in the old regulations, the Telecommunications (Interconnection) Regulations 1997. If the director had already given a direction under Regulation 6 of those regulations, Ofcom has the power to give notice under Paragraph 20(4) that it should remain in force. As that regulation is concerned with the resolution of interconnection disputes, Members of the Committee might think that issues of SMP would not arise. However, some of the directions made by Oftel go further than merely resolving interconnection disputes and, in effect, impose new regulation in relation to issues of SMP. That is the case with FRIACO, which I mentioned earlier. We believe that, to the extent that such directions deal with issues of SMP, they should be brought within the new SMP regime under which Ofcom has the power to carry out an analysis of the market. If it concludes that a company is dominant in the market, it decides whether to apply SMP conditions that regulate the behaviour of the company within the market.
When the relevant SMP conditions come into force, or if Ofcom decides not to apply such conditions, then to the extent that such directions deal with issues relating to SMP, they should cease. This would prevent a series of one-off directions dealing with economic regulation from being maintained outside the SMP process instead of being built into the mainstream regulation and thereafter being subject to the obligation on Ofcom under Clause 81 to be kept under regular review. Without this, such directions could be kept in force indefinitely, with no obligation for review, which plainly would not be appropriate or correct. I beg to move.
I support the amendments, to which I have added my name. As the noble Lord, Lord Avebury, has already said, they confront the situation that it remains unclear, as the Bill is drafted, whether Ofcom can impose remedies with a retrospective effect, so disputes submitted after 25th July 2003, when the new regulatory regime commences, may not have retrospection. Ofcom will have the power to fine for behaviour but may not be able to give redress to the parties involved. Therefore, our aim is to seek clarification on this issue.
I should like to use this opportunity to put down a marker on an important issue which we shall debate later in our deliberations. The reason for doing so is that the rights of appeal against decisions made under Part 2 of the Bill, which we are debating now, contrast significantly with those rights of appeal currently afforded by the Bill to broadcasters which find themselves subject to economic regulations under Part 3 of the Bill. Clause 189 introduces full rights of appeal on facts of law to the competition appeals tribunal for decisions, directions, approvals and consents made under Part 2. That is welcome.
Clause 310(4) in Part 3, however, provides only for appeals to the competition appeals tribunal for a person affected by a decision by Ofcom to exercise its Broadcasting Act powers for a competition purpose. There is a serious concern that this provision for full rights of appeal does not go far enough, exposing broadcasters to decisions of an economic nature which are not taken for a competition purpose, relating, for example, to the pricing or packaging of services but which are not appealable to the CAT. Such decisions could be taken instead, for example, under the Part 1 duties to further the interests of consumers in relevant markets or to secure the availability of a wide range of TV and radio services.
When the Bill was in Committee in another place, this issue was raised by the shadow Secretary of State for Culture, Media and Sport in the context of the clause currently under discussion. At that time, the Minister indicated that there should be no right of appeal to the CAT on matters of content regulation, a point which was repeated when the relevant clauses in Part 3 came to be debated. We believe that answer misses the point. It may not be desirable public policy for content regulation to be subject to a full appeal process. However, the key point is that decisions of a purely economic nature, such as those on broadcasters' pricing of channels, could be taken by Ofcom under Part 3, for reasons other than a competition purpose, with no full right of appeal to the CAT available. On the other hand, price regulations for mobile telephone operators under Part 2 will be subject to the full rights of appeal to the CAT. That is surely a discrepancy that the Government need to address.
I shall return to the subject when we reach a later point of the Bill, but it would be interesting to know from the Minister if the Government's thinking on the issue has moved any further since the debates in another place.
I should say straightaway to the noble Lord, Lord Avebury, and the noble Baroness, Lady Buscombe, that we are very sympathetic to the amendments. Indeed, on 1st May, we tabled our own amendments to Schedule 18 to the same effect; those are Amendments Nos. 320A to 320G on the Marshalled List. I shall speak to those amendments today then move them in their place on a later day—unless we reach that place tonight, of course.
Officials have been in discussion with a group of telecommunications operators who have raised this matter. Operators were concerned that in the Bill as published there was no provision for Oftel or Ofcom to deal with disputes between operators that arose under the current regime—governed principally by interconnection regulations that are due to be repealed and replaced with the new regime provided by Bill—but which were not referred to the regulator until after repeal of those regulations.
Operators considered that such disputes could indeed arise, since, for example, Oftel has from time to time set revised levels of charges for interconnection between operators. The necessary adjustments to the operators' payments are typically made by periodic invoices between operators concerned, however. As a result, a breach of these obligations might occur without it coming to the attention of operators, who may be affected by it, until some time afterwards. However, once the old regulations were repealed, it would not be possible, under the Bill as drafted, for the regulator to continue to deal with them. Our amendments ensure that they can still be referred.
In contrast to Amendments Nos. 322 and 320AA, our amendments also provide that after the end of the transitional period, between the repeal of the old regulations and Ofcom's assumption of its role in the area, a dispute can be referred only when there are exceptional circumstances to justify it. That will ensure that the two regimes are not perpetuated side by side indefinitely, which would lead to unnecessary and undesirable duplication and uncertainty. We still expect Ofcom to accept that there were exceptional circumstances in cases where, for example, it was impossible or unreasonable for an operator to discover that grounds for a dispute existed before the end of a transitional period.
We are also sympathetic to the aims of Amendment No. 321, which relates to the possibility of giving continued effect for a transitional period to directions given by the director general of telecommunications in resolving the same sort of interconnection dispute before the Bill comes into force, when the directions correspond to SMP conditions under the Bill. Some of those directions contain important regulatory obligations of a type provided for in the new regime.
It is appropriate to continue the effect of existing obligations until Ofcom has properly reviewed them, but Amendment No. 320D ensures that Ofcom can do this only in appropriate cases, where the obligation is of a type which it would have power to impose under the new regime. Amendment No. 320F ensures that the need for any such continued direction must be reviewed by Ofcom as soon as possible and that the direction should then be either replaced by a condition under the Bill or terminated.
I can therefore confirm, as the noble Lord, Lord Avebury, suggests, that the amendments bring the directions under the new SMP regime and the directives. We are sympathetic to the general principles involved. Our amendments will ensure that Oftel and Ofcom will be able to continue to deal with these disputes as before, but will be subject to appropriate restraints in the use of its powers to continue the use of existing interconnection determinations.
That sounds satisfactory, except for one point; namely, the nature of the exceptional circumstances which have to be satisfied before government Amendment No. 320A comes into play.
The noble Lord said that the case must be one where it was not possible or reasonable for the complaint to have been raised earlier. That seems to leave scope for a variety of interpretations. Who is to judge whether it was possible or reasonable to have done so?
We have received three-quarters of a loaf from the Minister and we should be satisfied with that as far as it goes, subject to our consultations with the interests concerned and that they consider that the exceptional circumstances will be such as to allow reasonable complaints to continue.
I should like to try to avoid debate when we come to Schedule 18. The answer to that point is that the matter cannot be defined now, but it will be Ofcom which has to be satisfied that the circumstances are exceptional. Indeed, that is in the part of Amendment No. 320A which the noble Lord's Amendment No. 320AA would delete.
Amendment, by leave, withdrawn.
Clause 182 agreed to.
Clauses 183 to 189 agreed to.
Schedule 8 agreed to.
Clauses 190 and 191 agreed to.
Clause 192 [Decisions of the Tribunal]:
[Amendment No. 144 not moved.]
Clause 192 agreed to.
Clauses 193 and 194 agreed to.
Clause 195 [Functions of OFCOM in relation to the BBC]:
moved Amendment No. 144A:
Page 175, line 21, leave out from "OFCOM" to end of line 25 and insert—
"(a) to approve or amend all BBC Statements of Programme Policy and to satisfy themselves that the Governors of the BBC have ensured adherence to them;
(b) to advise the Secretary of State as to whether the BBC should be permitted to introduce new television or radio services, alter the character of existing services or cease to provide them;
(c) to satisfy themselves that the BBC has followed best practice in its expenditure of funds raised by the licence fee and from other sources;
(d) to ensure that any cross promotion by the BBC does not unduly distort any market; and
It may seem strange that in a very large Bill producing the convergence of regulation of broadcasting and telecommunications the Government should contrive to leave out, at least partially, the principal broadcaster in this country in both radio and television. My amendment is designed to remedy that.
I hope that Members of the Committee will agree that my amendment is fully consistent with the two great traditions in broadcasting in this country. The first is the promotion of public service broadcasting, which I believe to be a singularly British achievement—first, in the BBC and, perhaps even more remarkably, the achievement of the Independent Broadcasting Authority in translating exactly the same public service requirements to the commercial sector. The only difference between the two sectors is the source of funding. The obligations are identical, almost word for word.
The second great institution in British broadcasting came about with the creation of buffer authorities—whether it be the BBC governors, or the ITC as it now is, or Ofcom as it will be. While there is ultimate accountability to Parliament, there is at least a buffer between political interference and the broadcaster. That is a supreme achievement which I believe my amendments encourage.
It should not be necessary for me to say this, but I shall do so in case there is any misapprehension. I in no way regard this amendment as hostile to the BBC—quite the reverse. I think that the BBC would be distinctly stronger were the amendment to be accepted by the Government—not least because, if it is not, and if the current provisions in the Bill regarding the BBC are maintained, I believe that there will be a backlash when it comes to discussing BBC charter renewal. The noble Lord, Lord Thomson of Monifieth, said earlier that he was worried that there would be quite a strong debate about licence fee renewal and charter renewal. I share that worry. I believe that the BBC will be immensely stronger under the umbrella of Ofcom, particularly if it is raining.
The Bill as drafted gives Ofcom power over the BBC only in so far as permitted by an agreement, yet to be negotiated, between the BBC and Ofcom. That is a recipe for a second run of this whole debate when we come to look at that BBC agreement. In the agreement as drafted there is the potential for conflict between Ofcom and the BBC. It says:
"The BBC, however, shall take account of guidance given by Ofcom, and any reports issued by Ofcom about public service broadcasting".
If, say, the BBC takes account of that guidance and then ignores it, that will not do much for Ofcom's reputation.
I do not imagine that Ofcom will simply take that kind of action lying down. We have the seeds for potential conflict between two great regulatory bodies. Instead, my amendment proposes that, as currently, the BBC will draw up its own statements of programme policy, but that the backstop for ensuring that the BBC governors have satisfied themselves that these are adhered to, lies with Ofcom and not with a Secretary of State. That will give the BBC greater protection than it currently has.
Some of the DCMS briefing, which some time ago was kindly sent to me, seems to portray the current situation as some great freedom being given to the non-BBC public service broadcasters. There are phrases such as,
"For this tier greater fairness will be achieved by giving other public service broadcasters a freedom similar to that already enjoyed by the BBC. A system of self-regulation will operate".
That is slightly disingenuous. Self-regulation, yes, but if in the opinion of Ofcom it does not regulate properly in the public interest in the opinion of Ofcom, there is the backstop of Ofcom. Indeed, the Secretary of State, Tessa Jowell, in speaking to the Westminster Media Forum pointed out—and I shall quote briefly because she puts the matter quite tersely:
"There is a difference of course: if commercial PSBs are not delivering what they have committed to, Ofcom has the backstop enforcement powers. If the BBC is failing to deliver, those powers are held by the Secretary of State. Two linked arguments are advanced against this: first, that this puts the BBC at risk of political interference, [secondly], for that reason no politician is ever likely to use the backstop powers".
I would suggest that neither of those are desirable outcomes. So she correctly says,
"so, how much better to have these powers held by a non-political body like Ofcom".
But she then goes on—and those who think that under the present system the BBC is protected should pay close attention—to state:
"But the BBC, unlike the other broadcasters regulated by Ofcom, is spending public money to pursue its goals. It is right that the final decisions should rest with politicians: we are ultimately responsible to parliament and the public for the way that our public institutions deliver against their public purposes".
Obviously, in extremis, I concede that Ministers have that power. But in Britain the tradition is that Ministers do not interfere in broadcasting. They leave it to the buffer authority. I would suggest that the BBC in its day-to-day management is a lot more secure under Ofcom than in responding to a Secretary of State.
From time to time some people have said, "You can't really trust Ofcom with something as precious as the BBC". Indeed those words were used in another place. As I said at Second Reading, that does not say much for our attitude to public service broadcasters other than the BBC. But let us be realistic: the board of Ofcom will be appointed by exactly the same people who appoint the governors of the BBC. If the government of the day are capable of appointing good governors of the BBC, they are perfectly capable of appointing a good board of Ofcom. So I do not think that that argument stands up.
There is also the celebrated dilemma that BBC governors face. They are both the top board of a company and the regulator in the public interest. I genuinely believe that they absolutely do their best and in general succeed tremendously well. But being realistic, it is very easy to convince yourself that you must continue to be popular so that you can do good. That is the siren voice to which politicians listen all the time, so that they do popular things before an election, whether they are right or not, because the main objective is that, "I must be re-elected so that I can do more good".
It is very easy for the BBC to convince itself that the ratings war is important for it to win, even if, in the process, its public service obligations are watered down. That is dangerous. It needs an external regulator who from time to time gently nudges it and says, "Are you sure that that is what you really want to do?"
The second requirement, under paragraph (b) of my amendment, is that it should advise the Secretary of State on what new services the BBC should be allowed to introduce, change the character of, or, indeed, cease to provide.
If my amendment is not passed, what will happen? The Secretary of State will be listening to two bodies: first, his or her officials in the Department for Culture, Media and Sport, who will presumably advise on the BBC, with which, I imagine, they will have a continuing relationship; and, secondly, Ofcom, which will be advising on not quite the entire broadcasting landscape, but on the bit of it that is within its bailiwick—that is, the non-BBC sector. That is highly unsatisfactory. Let us say that DCMS is advising one thing and Ofcom another. Ministers will be directly involved in important broadcasting decisions. In my view, they should not be.
Paragraph (c) is simply a gentle way to afford some public scrutiny of the BBC's financial practices. It is gentler on the BBC than the National Audit Office route, which, when I heard the Second Reading debate, in some people's view raised the spectre of a director-general being directly accountable to the Secretary of State. I am sure that none of us want that.
Paragraph (d) is intended to ensure that the BBC's tremendous capacity for cross-promotion—unique in Britain—does not distort the market places in which it is involved. To that extent, it echoes some of the points made by the committee chaired by the noble Lord, Lord Puttnam, in its report.
I think that the amendment is in the BBC's interest. I hope that those with the interests of the BBC at heart will be able to support it and I commend it to the Committee. I beg to move.
I shall speak to Amendments Nos. 145 and 148, in my name. I shall not speak to Amendment No. 147. I also support the amendment moved by the noble Lord, Lord Gordon of Strathblane, and the amendments tabled by my noble friend Lord Astor—Amendments Nos. 153, 153A and 153B. I shall also speak briefly to amendments tabled by my noble friend Lord Pearson.
We have now turned to the subject of BBC governance and regulation. Amendment No. 145 is intended to place the BBC under the remit of Ofcom. First, I reiterate the position that I expressed on Second Reading. The BBC belongs to us all. Its future is the responsibility of us all. However, accountable governance is essential to instil public confidence in that publicly funded corporation.
The BBC is the dominant broadcaster in the United Kingdom. It has a market share of about 40 per cent; yet it is destined to remain outside the full remit of the industry regulator. Ofcom will have the power to regulate only certain BBC services, as determined by the agreement between the BBC and the Secretary of State.
Our amendment inserts a reference to the BBC charter in Clause 195(1), bringing the BBC under the umbrella of Ofcom. As currently drafted, the Bill presents a glaring anomaly. The BBC is not subject to the same level of external scrutiny as any other public service broadcaster. The largest and most powerful broadcaster will effectively be exempt from external regulation of its public service responsibility—the purpose for which the corporation was established.
The Bill creates a three-tier broadcasting structure to facilitate regulation by the new Office of Communications. The first tier incorporates basic requirements and standards applicable to broadcasters generally. Tier 2 incorporates specific requirements that will be applicable to all public service broadcasters, including the BBC. Such requirements will be assessed objectively by Ofcom. Tier 3 provides a system of self-regulation for public service broadcasters. Under this tier Ofcom is required to consider the extent to which public service broadcasters collectively have fulfilled their public service remit.
The review of public service broadcasting, as a whole, will include the BBC. However, this is where the disparity in the Government's policy emerges. Each broadcaster will be required to publish an annual statement of programme policy detailing its compliance with its public service obligations. On completion, the statement will be submitted to Ofcom for examination. Ofcom, in turn, will review the extent to which individual broadcasters have satisfied their specific programming responsibilities and then make comments and recommendations. If the broadcasters fail to meet their public service obligations, Ofcom will have the power to act.
The position of the BBC is quite different. The Government's justification for this anomaly is that a divergence in policy is necessary to protect the distinctive role and constitution of the BBC. Each year the BBC Agreement states that the corporation shall,
"prepare a statement of programme policy similar to the requirement of the other public service broadcasters".
The statement sets out the BBC's intended strategy to ensure compliance with its public service responsibilities, yet the drafting of the Bill detailing the requirements imposed upon non-BBC public service broadcasters is inconsistent with the less-stringent drafting of the BBC Agreement.
Under the Bill, the non-BBC public service broadcasters are required to,
"take special account of the most recent such reports", published by Ofcom to assess compliance of individual statements of programme policy. Yet no such obligation is imposed on the BBC. The corporation is merely required to consider previously published reports.
It is impossible for Ofcom to assess the compliance of public service broadcasters with regulatory requirements when the BBC is not only outside its remit for consideration but the governors also remain the judge and jury of the corporation's self-determinative regime, with no regulatory external scrutiny or sanctions for third tier responsibilities. The only stipulation on the BBC is that it,
"shall monitor its performance in the carrying out of the proposals contained in the statement of programme policy".
Further, and most notably, there are the requirements of Clause 13B of the BBC Agreement. This clause specifies that the backstop powers to lay conditions and require BBC compliance with public service obligations, as perceived by Ofcom, lie with the Secretary of State rather than Ofcom.
I defer to the honourable Member for South Cambridgeshire, Andrew Lansley, who asserted in another place that this deviation in procedure will lead over time to increasing risks of divergence between the BBC's interpretation of its proper role in the broadcasting ecology and Ofcom's view.
The amendments to the BBC Agreement were purportedly drafted to reflect the requirement of the legislation for other public broadcasters. Why does this glaring disparity exist between the responsibilities of the BBC and the obligations of other public service broadcasters? Similarly, the position of the BBC governors is discordant—their duties encompass a confluence of two distinct roles, despite the amended agreement. The governors should not also be the corporation's regulators.
The shadow Secretary of State for the Department for Culture, Media and Sport raised this important issue at the Report stage of the Communications Bill in another place. He said that the governors are in an impossible position. They represent the overall management and control of the BBC, while at the same time they are expected to act as independent adjudicators when complaints are made. This inconsistent approach can lead only to confusion and uncertainty. The public service obligations must be stated with absolute clarity to enable competition authorities to undertake the necessary scrutiny to ensure compliance with fair trade commitments.
The purpose of the amendment is to "future proof" this Bill, thus facilitating the future incorporation of Ofcom's functions into the Royal Charter. The BBC needs external, independent regulations. Amendment No. 145 paves the way for that to occur. The industry requires a fair system of regulation—a genuinely level playing field that will allow the industry as a whole to thrive and develop in this age of continued convergence.
Amendment No. 148 would confer on the BBC a duty to provide Ofcom with any information that it may reasonably require for the purposes of carrying out its functions under the agreement referred to in Clause 195(1)(a). The agreement, as amended, will place on the BBC an obligation to supply information to Ofcom as it may reasonably require. That obligation stems from Clause 195, albeit through the agreement. The amendment, therefore, seeks to clarify the nature of the duty on the BBC in specific terms on the face of the Bill rather than elsewhere in the agreement.
I also support Amendment No. 153, which was tabled by my noble friend Lord Astor. It concerns the annual publication of BBC statements of programme policy. I referred earlier to the tier 3 requirement for licensed public service broadcasters to publish annual statements of programme policy. As the Bill stands, Ofcom has the power to act if the annual statements propose a significant change in programming policy in breach of its public service obligations. However, the BBC is under no formal obligation to produce a statement of programme policy, but it voluntarily published a statement last year. Ofcom possesses a backstop power to sanction licensed public service broadcasters if the content changes substantially from the proposed statement. There is no comparable restriction on the BBC. This clause implements a statutory requirement for provisions in the BBC agreement to reflect the comparable obligation on other public service broadcasters.
This is not an issue that can be effectively regulated through an internal mechanism such as the governors of the BBC. External regulation of programme policy statements would help to clarify the already ambiguous role of the governors by allowing Ofcom to determine whether the BBC had complied with its public service obligations. That would facilitate uniformity across the public service broadcasting spectrum by ensuring protection both internally and externally, and allowing the BBC to remain at arm's length from the Government.
I support the amendments of the noble Lord, Lord Gordon of Strathblane. It would be otiose to repeat all that he has said, but we are extremely supportive. As the noble Lord has said, the amendment introduces important elements; for example, it would subject the provision of BBC services to Ofcom's remit by requiring it to advise on BBC television and radio services. We entirely support a number of other issues relating to the amendment. We support the amendments of the noble Viscount, Lord Astor. I have spoken in particular to Amendment No. 153, but we also support the noble Viscount's remaining amendments.
My remaining concern relates to the amendment tabled in the name of the noble Lord, Lord Pearson. Although we have great sympathy with the principles behind the amendment, there is one concern to which I hope the noble Lord will respond. As we understand it, the amendment would impose on the BBC a level of direct accountability to Parliament. As we see it, the advantage would be a degree of external, non-BBC scrutiny, and a requirement of political impartiality. But we question whether the corporation would then be accountable to Parliament and, therefore, the Government. We want to ensure that that would not happen. It is tremendously important that the BBC remains entirely independent from the Government.
I wish to speak to my three amendments, which are grouped with those of the noble Lord, Lord Gordon of Strathblane. I agree with everything that the noble Lord said about his amendments and the general thrust of his comments. I am not sure whether my amendments are an improvement on his, but I think that we are all on the same side. I am grateful for my noble friend's support.
The purpose of Amendment No. 153 is to give Parliament and the public confidence that there is a proper and effective external scrutiny of the BBC's delivery of its public service remit. Under tier 3 the licensed public service broadcasters—ITV, Channel 4 and Channel 5—are required to produce statements of programme policy each year. Those statements are to form their contract with the viewer and they set out exactly how they intend to meet their responsibilities as public service broadcasters.
As the Bill is presently drafted, the BBC is required to mirror this obligation via amendments to its agreement. However, there is one major, and to my mind fundamental, difference. The obligations of the licensed broadcasters are to be kept under review by Ofcom. Any significant or material change to their public service remits will involve discussion with Ofcom. We would wish to extend the remit that Ofcom has to the BBC, which is why I propose that the BBC should be subject to statements of programme policy.
My other two amendments also concern the BBC. I believe that it is much more credible for the BBC to come fully under Ofcom rather than the department. A simple example of that is that the BBC's application for BBC3 was initially rejected by the Secretary of State after, what one might call, a protracted public consultation. The Secretary of State then ordered a review into the BBC on-line. I am neither criticising that decision nor commending it, but I think that decisions like that should be made by Ofcom and not by the Secretary of State. The BBC should be independent and I think that it would be better off if it was independent.
Amendment No. 153A gives Ofcom a formal role in the approval and scrutiny of new BBC services. It also enables Ofcom to comment on significant changes to long-standing BBC services, such as BBC1 and BBC2. Prior to the new BBC services being granted Ministerial approval, Ofcom would be obliged to report on whether the proposed new service or changes to the existing service would be compatible with the BBC's primary public service role, as set out in the charter and Agreement; whether it would provide a level of service to the public that is proportionate; whether it would be universally accessible and free at the point of use; and whether it would represent value for money for the licence fee payers.
Finally, Ofcom would have a duty to review, from time to time, the performance of the new or altered BBC services to ensure that they comply with the terms of approval granted by the Secretary of State and also satisfy the objectives of compatibility with public service objectives, a proportionate market impact, value for money and accessibility.
I do not think that any of the proposals in this group of amendments affect either the role or the independence of the Board of Governors. The Board of Governors has a similar role. We must remember that the board is composed of a distinguished bunch of people. They are fundamentally part-time. They have a role which is certainly enhanced and we are told by the BBC that they are to be given more resources. But they are what one might call a rather high up board of directors looking down on the BBC, if one can use that analogy.
I do not think it should be their role to deal with some of the technical issues which Ofcom is much better qualified to deal with, particularly when these issues affect other public service broadcasters. We must remember that public service broadcasting is not just the BBC. It is about all those public service broadcasters that have public service broadcasting licences; such as, ITV, Channel 4 and Channel 5.
The BBC has everything to gain and nothing to lose. I have always been disappointed that it does not want to accept that argument. Equally, I have always been rather disappointed that those of us who promoted the independence of the BBC from government and wanted to make it more answerable to Parliament, have been accused of in some way attacking the BBC. That is certainly not the case. We are trying to strengthen the independence of the BBC and make it more accountable to Parliament—fundamentally, the BBC has not been very accountable to Parliament because there is no proper mechanism—and make it more independent of direct government intervention. That is the purpose of the whole thrust of all these amendments.
In view of the time, I shall speak briefly and in a moderate and pragmatic way. I start from what is basically a rather Conservative point of view. The United Kingdom has offered the world many things but, in many ways, it is best regarded for its achievement in creating a public service broadcasting system. As the noble Lord, Lord Gordon of Strathblane, said, it was an even more remarkable British achievement that we were able to build onto a directly-funded public system—the BBC—a commercially funded system that matched the BBC in terms of its public service traditions.
If I may say so to the Opposition Front Bench, in terms of the government of the day these were always Conservative achievements. The BBC began its life under a Conservative government; the IBA, the independent commercial broadcasting system, was, amidst great controversy, entirely the creation of Conservative governments; when Channel 4 came along, it was established under the distinguished Conservative Home Secretary, Lord Whitelaw. These are great British achievements.
This major Bill will change the broadcasting and telecommunications landscape of this country. I do not need to tell the Committee that it is a vast Bill with many complications. It seeks to merge five existing regulatory bodies and to deal with all kinds of other matters in relation to the new telecommunications technologies we referred to earlier.
At the very least it will be a major task for the new Ofcom to establish itself and to do the job laid down for it in the Bill. Effectively, it will need a few years to settle down and to establish itself. Without being derogatory, I believe it will be quite a long time before Ofcom will have the same reputation that, over the years, the BBC has earned for Britain around the world.
But nothing is static. The BBC has been going through a great deal of change and faces a charter renewal in a few years' time. From a practical and pragmatic point of view, it will be very much in the public interest if Ofcom is given time to settle down to its new duties as set out in the Bill. We should review the role of the BBC in the broadcasting landscape when its charter comes up for renewal in a few years' time. Some of the arguments that have been made today may well enjoy a fresh perspective at that time.
But at the moment it would do immense damage to the public interest and to Britain's reputation for broadcasting around the world if we were to do what is urged by my very old noble friend—if I may call him that—the noble Lord, Lord Gordon of Strathblane, and by those who have spoken from the Opposition Front Bench. The BBC has sought to recognise the changes that are necessarily taking place—of which the Bill is an expression—and has sought to deal with some of the points made in the very interesting speeches of the noble Baroness, Lady Buscombe.
I have first hand knowledge of one of the fundamental differences between the two halves of the public broadcasting system in this country—the old "duopoly" as it was called at that time—the IBA and the BBC. The IBA, as a regulatory body, had a real degree of separation from the companies that held the various broadcasting franchises in both television and radio, whereas the BBC has always had the problem of the borderline between its board of governors and its management.
I should have made my usual declaration of interest at the outset: I have a daughter who is part of the management of the BBC. I am also a pensioner of the IBA so I hope that in the very old-fashioned broadcasting sense I can claim a certain degree of due impartiality on these matters.
But it is perfectly true that this matter has been a problem for the BBC. Under its current chairman and its present board of governors it is making a very serious attempt to clarify that situation, to give the board of governors breathing space between itself and the management, and to provide the board of governors with a degree of independent service of its own in terms of research material and so on to allow it to undertake its task of dealing with the professional management and the various broadcasters under it.
I say no more at this time of night, as others will want to speak, other than simply to repeat that there are not so many things in the world that Britain can be absolutely proud of. Our broadcasting system is one of those things. The very foundation stone of it is undoubtedly the BBC, warts and all—goodness knows, it has had plenty of warts over the years—and here we have a major and necessary revolution taking place in the merging of broadcasting and telecommunications in the Bill. Let Ofcom have a reasonable chance of a year or two to get settled down. Let us leave the BBC as it is at the moment until we deal with the various issues that will undoubtedly arise with the renewal of the charter, including what will then be the question of the longer term relationship between the BBC and the rest of the broadcasting and telecommunications landscape in this country.
I rise to speak to Amendments Nos. 153C and 153D in my name, which are included in the group we are discussing.
Amendment No. 153C would require the BBC to establish a committee of the governors to monitor and report annually to Parliament on the BBC's discharge of its public service remit, including particularly the delivery of a news service which is impartial, wide-ranging and fair. Amendment No. 153D would require the BBC to offer each of its governors a full-time personal assistant to be chosen from outside the BBC by the governors personally.
These two amendments follow on from what I said at Second Reading on 25th March (at cols. 757 to 760 of Hansard) which in turn referred to my debate in your Lordships' House on 11th March 2002. I shall not repeat all that now except to remind the Committee that the noble Lords, Lord Harris of High Cross, Lord Stoddart of Swindon and I, have been sponsoring independent analysis of the BBC's news and news-related coverage of the UK's relationship with the European Union since the elections to the European Parliament in 1999.
Even making allowance for the facts that bias, like beauty, is often in the eye of the beholder, and that surveys often produce results which satisfy the prejudice of those who commission them, I submit that it is difficult to avoid the two main conclusions we have drawn from the 10 detailed and lengthy reports we have so far commissioned. Those two conclusions are, first, that the BBC's coverage of our relationship with the European Union suffers from a heavy Europhile bias and does not allow any debate as to whether we should be in or out of the European Union and, secondly, that the governors have done nothing to prevent this clear breach of the BBC's Charter, agreement and guidelines.
I am aware that those conclusions may not be altogether unwelcome to those Members of the Committee who view our membership of the European Union as largely a very good thing, and that for them these amendments may therefore carry something of a health warning. But, as I said at Second Reading, I hope that will not cloud our objective consideration of this problem because a significant strand of British public opinion does favour withdrawal from the European Union even in its present form, let alone from what it may become in the wake of Mr Giscard D'Estaing's proposals for a new constitution. Those who hold that opinion may be right or they may turn out to be wrong. Perhaps that would become clearer if there was an informed public debate about it. But what is clear is that the BBC has a duty to encourage that debate and that it has not done so.
As I have said, I do not propose to repeat the abundant evidence for that conclusion, some of which I have put on the record at Second Reading and on 11th March last year, and all of which can be found on our think tank's website, www.globalbritain.org. That saves Members of the Committee quite a bit of time.
There is one new statistical nugget which may help to underline my point. That flagship of the BBC's political coverage, the "Today" programme, featured 403 contributions on EU-related news between 1st September last year and 15th May this year, which was last Thursday. Of those, only two reflected the view that the United Kingdom might be better off outside the European Union.
Another key feature of the exercise sponsored by my noble friends and I is that we have sent the independent Minotaur reports to the BBC's chairman, and sometimes to the governors as well. So far as we know, the governors have not read them. They certainly never reply or acknowledge receipt of the documents in question. On the other hand, the chairman gives them to the BBC's management, which not surprisingly tells the chairman that they contain nothing to worry about, and he duly relays that message back to us.
I fear that there can be only two reasons for that. Either the governors do not care about their duty to uphold the BBC's public service remit, which would mean that they were not up to their job, or for some reason they are unable to do so. I have of course spoken to a number of people who have been governors of the BBC, and even to some of the present governors. Their story is always much the same. Some did not realise that they had the duty under the charter to insist that the management fulfil the corporation's public service remit. All said that they suffered from being given far too much paper before meetings, and that the BBC is simply too big and complex for them to focus on that aspect of their responsibilities, which, as other Members of the Committee have mentioned, also contain the very great difficulty of being judge and jury in their own court.
All of us who have served in a voluntary capacity in such organisations know the problem. We all do other things as well, and so can end up being too much guided by the full-time management. Either we give up the other things that we do, or we end up largely trusting the management, while of course keeping our eyes and ears open for anything going obviously wrong. That is why Amendment No. 153D suggests that each governor should be offered a personal assistant on whom they can rely—a sort of political adviser—so that they can look more thoroughly into the vast empire that they oversee, and depend less on the management for the decisions that they reach.
I know that the chairman's answer to that may be that he has already set up a new governance and accountability department to report to him and, through him, to advise the governors. I also know about the programme complaints committee, and the governors' programme complaints committee. But the staff of all those departments owe their careers to the management, and so are unlikely to tell the governors that the management is failing in its editorial duty. Besides, the governance and accountability department has been in existence for some 15 months, to no visible effect.
It is against that background that the amendments have been tabled. I do not know what proportion of the governors the proposed committee of governors should contain; perhaps it should even contain half of them. It should devote its energies to the public service remit. That is, after all, what justifies the licence fee. It is also what should set the BBC apart from all the commercial broadcasters. A large and growing number of people feel that we do not need to pay a licence fee for the BBC to compete with all the sex and violence that we can see on all the other channels. We should pay the licence fee to be informed, educated and entertained, without having to put up with too much downmarket rubbish for that entertainment.
My noble friend Lady Buscombe worried that the amendment would place too large a duty on the BBC to report to Parliament. However, it is only the committee of the governors that would report to Parliament, for Parliament to judge whether the BBC had met its public service duty. I do not see that a debate in Parliament would give the government of the day any more influence over the BBC than they have today. It would merely give Parliament the right to learn how the BBC was performing its most important duty. It would also remove some of the difficulty that the BBC faces of the governors having to be both judge and jury in the discharge of their several and often contrasting functions.
I speak as a longstanding admirer of the BBC. Its World Service made a huge contribution to the fall of communism in Europe, and thus to the peace of the planet. The World Service is still a wonderful example of what public service broadcasting should be. But the BBC itself is in trouble. The commercial broadcasters are gathering against it and it is starting to lose the respect of the British people. I trust that these amendments may play a small part in helping to repair that damage before it is too late. I look forward to hearing the views of your Lordships.
As the noble Lord used a strand of evidence in support of his case, will he indicate whether he believes that every report by the BBC of the activities of the Crown and members of the Royal Family should be in some way matched by the views of those who believe we should not be living under the monarchy but rather republican?
That is a helpful example from the noble Lord. The BBC has given my noble friends and me the example that it cannot discuss our membership of the European Union because none of the main political parties favours that. Yet, the BBC gave substantial coverage to the republican viewpoint in the run-up to the Golden Jubilee. It is true that none of the main political parties favours the republican stance. The BBC also gives a considerable amount of coverage to genetically modified foods and to the legalisation of cannabis. I could go on. None of those subjects is espoused by the main political parties.
Those are all helpful examples to suggest why the BBC should cover the strand of significant public opinion represented by those who wish to leave the European Union.
The noble Baroness, Lady Buscombe, began by saying that the BBC belongs to us all. The noble Lord, Lord Pearson, called himself an admirer of the BBC. Much of what they said subsequently did not follow in the same vein. The noble Lord, Lord Gordon, said that public service and independent broadcasting had identical aims. I do not see that at all. I see what the noble Baroness, Lady Buscombe, called the "conflict of aims" of the BBC.
The conflict of aims as I see it is the independent broadcasting system. Independent television deals with whatever aims of public service it claims to make. Its desire and function are to ensure that the independent television operators make money. That is the greatest conflict of interest one can have; ideals of making money on the one hand and ideals without that offsetting requirement on the other. Those are the two major problems I see today.
The noble Lord, Lord Gordon, said that the BBC would be stronger under Ofcom, but Ofcom is a new institution which does not have the history of 80 years. We see what the BBC has done—it has become the greatest television and broadcasting operator in the world. We are saying that Ofcom, which we have just created, can take its place and do far more things. That is a nonsense and I cannot accept it for one moment. One cannot set up a new body which can overtake the long tradition, enormous advantage and world-wide reputation of the BBC which we are honoured to have.
I will intervene extremely briefly because of the time. There is no question of our suggesting that Ofcom will take the place of the BBC. That is entirely opposite to what we have been saying. We want to protect the interests and future of the BBC for the benefit of us all.
I understand the noble Baroness's viewpoint, but, according to the noble Viscount, Lord Astor, Ofcom was better qualified to deal with so many of these issues. So better qualified? It has just been set up! What kind of qualification is there in that? The qualification comes from 80 years of being a dedicated contributor to our civilisation.
Of course, it is a new body. New people coming together in a new body is a new body. It will operate differently. Surely the noble Lord can understand that.
I have always regarded the BBC, together with our Civil Service, as one of the two most successful institutions in our country. We should be immensely proud of it. We have seen the Civil Service decline a little from its previous position because it is getting rather too close to government, but that is another matter. There are some disturbing signs of that.
The issue before the Committee is the operation of the BBC and the independence of the BBC. That lies at the heart of the BBC. With the governors we have people of distinction managing and running the BBC. The duty of the governors is of enormous importance. I was chairman for 14 years of the Public Accounts Committee and the National Audit Office examined the World Service, which is financed by the Foreign Office. It was right that the National Audit Office should have the ability to audit the accounts and that was fully agreed and accepted.
The BBC is not a money-making organisation. The governors had the responsibility to undertake the principles and ideals of public service. They are people of great distinction. My noble friend Lord Barnett was a governor; the noble Baroness, Lady Hogg, was a governor; and the noble Lord, Lord Hussey, was a governor. Those are people of distinction. Are they to be pushed aside by the management of the BBC and dismissed so easily? Never! Never! They are people of some standing and they have operated for 80 years to the benefit of us all.
The efforts of my noble friends Lord Barnett and Lord Hussey saved the BBC. The Prime Minister of the day, Margaret Thatcher, acting in similar ways to those we have heard about this evening, was anxious to end the licence fee system, which again and again she called a compulsory levy with criminal sanctions. But my noble friends Lord Barnett and Lord Hussey were able to deal with that by delay and clever operations and they saved the BBC for the advantage of us all.
Now we hear that the BBC's statements of policy are to be approved or amended by Ofcom. What are the governors for? The governors provide something far better than anything that you will get in Ofcom. Over the decades we have seen people of the greatest possible standing and I find it difficult to believe that Ofcom will be better qualified than the governors to comment on the operation.
I consider this poor recognition of the great work carried out by the governors and of the way that for more than 80 years they have provided us, and still provide us, with the finest broadcasting system in the world to the benefit of us all. The BBC has ideals; other television and radio stations may have ideals—although not always—but we understand that they put their financial considerations first. That is reasonable. That is the difference. The BBC does not have such limitations.
I believe that the BBC is the most important cultural institution in this country. We are honoured and proud to have it. It has operated as a benchmark and it has set standards throughout the broadcasting media. Why do other bodies undertake public service broadcasting? It is because of the existence of the BBC. The BBC sets the standards and others try to maintain some affinity with them. Understandably, some of the broadcasting media resent the existence of a competitor that is not in it for the money but exists to serve, to inform, to enlighten and to entertain those who pay the licence fee.
Why is it that we do not have in Britain the tawdry television stations that operate in some other countries? Why does there appear to be an attempt to debilitate the BBC? There is rivalry, which is natural—I understand that—but there is less rivalry about standards and ethos. There is not the same kind of rivalry in relation to that. There are those who make their profits from radio and television who may feel constrained when their ethical standards come under the shadow of the BBC.
The BBC does not fit into the usual pattern of non-governmental organisations. When the Public Accounts Committee examined the World Service of the BBC in 1987, it concluded that the World Service should be examined by the National Audit Office. The World Service is financed largely by the Foreign Office. It was right for the National Audit Office to take responsibility, and it has, to no one's surprise, undertaken the task with efficiency and delicacy. It also concluded that the present arrangements for voluntary examination of the BBC should remain. The 1983 Act enables the National Audit Office to do value for money studies, with the agreement of the BBC and the Minister.
I shall deal with it then. I am only making some introductory comments. They are important matters. We have discussed matters that are not, perhaps, as important as those that we are discussing now. Interventions are just making things take longer, but I will, of course, give way.
I am one of the Conservative broadcasting Ministers about whom the noble Lord, Lord Thomson of Monifieth, was so kind and generous a few moments ago, saying how much Conservative governments over the years had promoted and helped the BBC. It is incorrect for the noble Lord, Lord Sheldon, to say that, as Prime Minister, my noble friend Lady Thatcher wished to do away with the licence fee. Certainly, my noble friend was, at times, doubtful about how the BBC used its money. She did not like how the BBC reported her actions and activities, any more than Lord Wilson did or Mr Blair does. She did not believe in doing away with the licence fee.
There are two views on that. I have a contrary view. The noble Lord can put his view, and I can have mine. It is based on discussions that I have had with people who discussed the matter with the noble Baroness.
I wish to see the current position maintained. After all, we must examine what has gone wrong. Many other aspects of the press, radio and television have performed badly or could easily be improved. Attention should rightly be concentrated there. The BBC still stands as the one great success in the public service, and that success has been achieved over 80 years. The BBC has retained its eminence during the momentous changes that we have seen throughout that period of the 20th century. We should not risk damaging an organisation that has served us so outstandingly well.
That speech was ample proof that the Joint Scrutiny Committee was right to warn, in paragraph 379 of our report, that,
"the relationship between the Communications Bill as enacted and the review of the BBC Charter and Agreement due to begin in 2004 could usefully be clarified. If not, there is a danger that the passage of the Communications Bill could provide an opportunity for an unstructured debate on the review of the BBC Charter which could detract from full consideration of the important matters raised by the Bill itself".
Rightly or wrongly, the Government chose not to include the future of the BBC generally in the Bill. They limited the Bill to certain specific areas. In its considerations, the Joint Committee wisely did the same. We decided not to have a general review of the position of the BBC and certainly not to endorse whatever the Government might decide about the relationship.
What is critical about the Bill is that the agreement between the Secretary of State and the BBC, when it comes, should be fitted in alongside the Bill in a way that will work. Also critical is that the charter itself, when it comes to be reviewed, can be fitted in alongside the provisions of the Bill so that the relationships between Ofcom and the governors of the BBC are workable and maintain the undoubted strengths of British broadcasting that have been so eloquently and passionately defended over the past few minutes.
The noble Lord who spoke from the Liberal Democrat Front Bench in fact misunderstood the purpose of the amendment spoken to by my noble friend on the Front Bench. It incorporates the charter into the Bill to ensure that, when the charter comes to be rewritten, it will relate to this Bill and the provisions will apply to whatever is then put into the charter. I understand the amendment to be a piece of future-proofing. It did not seek to make a judgment about what should happen when we come to charter review. On that, I am pretty confident that passionate debates will take place on charter review. We have had a form of Second Reading preview of those debates over the past few minutes.
Along with the amendment spoken to by my noble friend on the Front Bench, I wish to speak in particular to the first amendment moved by the noble Lord, Lord Gordon of Strathblane, and to that spoken to by my noble friend Lord Astor. I have to say that the first amendment has serious weaknesses. It suggests that Ofcom should be able to do things that are in fact beyond the powers of Ofcom as they are applied to the other organisations regulated by the Bill. To say that Ofcom should be able to amend and rewrite BBC programme documents is to go rather too far. Although I may be mistaken, I also think it would be a mistake if Ofcom became the body to decide whether the BBC spends its money properly. That, too, probably goes beyond Ofcom's remit.
I have a great deal more sympathy for the amendment in the name of my noble friend Lord Astor. It deals with matters that are spelt out in great detail in Clause 260 of the Bill as they apply to other bodies that are to be regulated. I believe that my noble friend is seeking to ensure that the relationships between those who produce public sector broadcasting, whether they are the BBC or the other public sector broadcasters, come under similar rules and similar provisions. That is absolutely right and we should ensure that that is done.
A common misunderstanding often propagated outside is that only the BBC produces public sector broadcasting. We know that that is not true and now, for the first time, we have a detailed definition of public sector broadcasting which applies to the BBC and the others.
We are not presently dealing with the exact contents of the charter, or even of the agreement. At this point I want to say that the amendments to the agreement produced for Parliament in January seemed to have as many shortcomings as the previous draft amendments that we saw sometime last year. It is clear that what eventually is put into the agreement is of absolutely crucial importance. Indeed, the whole relationship will break down if the agreement is not drafted so that it conforms with the Bill. We should concentrate on ensuring that the Bill is future-proofed, that it can relate effectively to the charter when eventually it is agreed, and—this is of equal importance—that the Government, in negotiating or agreeing the charter with the BBC, should make absolutely certain that it dovetails with the provisions included in this Bill.
Rather curiously, we have received more information from the BBC about the process of amending the charter than we have had from the Government. Over recent months, we have had more declarations by the BBC of some of the things it will agree to than from the Government. Perhaps one of the key reasons why we should be holding this debate at the present time is not to produce the agreement, not to produce the charter, but to emphasise, in every way we can, that when we come to consider it in due course, we will be judging whether it fits in alongside the Bill and the Bill could be made to work.
I have had an interesting little correspondence in recent weeks with the chairman of the BBC about the relationship with Ofcom. He was upset because on Second Reading, when I talked about it not always being comfortable to have your elbow nudged, he seemed to think that I was accusing him of not wanting to co-operate with Ofcom. Nothing was further from my thoughts. I entirely accept his assurance that he wants to co-operate in every way possible with Ofcom. But he has now written me a letter in which he concedes that the elbow-nudging process can sometimes be quite uncomfortable. My wife occasionally nudges my elbow in a way that I do not always welcome, but our relationship is extremely happy, I am glad to say.
It needs to be emphasised that if this whole thing is to work properly, it will work because the BBC, as it is eventually constituted, and Ofcom, as it grows with experience, develop a workable relationship. We are at the beginning of a process. Therefore, we are not talking tonight—I do not believe we can—about trying to reform the entire arrangements with the BBC in this Bill. It would mean rewriting the Bill in a completely fundamental way that I simply do not believe is practical in parliamentary terms at this stage. We will come back to some of these issues later when we debate public sector broadcasting. Tonight we have to concentrate on the relationship between the Bill, the process of charter renewal and the drafting of the new amendment. We must make sure that the Bill is future-proofed. I support the amendment of my noble friend on the Front Bench for that reason, because I believe it helps that process, as does the amendment tabled by my noble friend Lord Astor.
There are two points on which we can all agree. First, everybody who has spoken tonight wants to do their very best for the BBC. Everybody has said, and I believe them, that they are very proud of it; it has been the creator—the inventor—of public service broadcasting, and we should never forget that, whatever we decide to do.
Secondly, this group of amendments raises the question of the extent of Ofcom's power or duty to oversee the BBC's performance at level 3 of the tier. In that process, it will, as we have heard from the noble Lord, Lord Crickhowell, pre-empt the whole process of charter review and renewal. I also think it will second-guess the governors' responsibilities before that has been discussed. It is also going well beyond the specific intrusions on BBC independence that are implicit in the work of the content board which, in my view, will do no more—and perhaps rather less—than is already done by the BSC.
However, as we heard from the noble Lord, Lord Crickhowell, the pre-legislative scrutiny committee has considered all that very carefully. It pointed—indeed, I dug out the same paragraph—to the likelihood of an unstructured debate. How right they were, albeit an unstructured debate of very high quality.
I also believe that the Government, in paragraph 141 of their response to the Scrutiny Committee, gave a sufficient answer to that point. If one considers that paragraph, one sees that as early as next year there will be a wide-ranging review of the BBC which will,
In my judgment, that process, conducted on top of and at the end of the many debates that we have had on the Bill, both inside and outside Parliament, surely should more than ensure that the BBC, with all its workings and plans, will have been scrutinised almost into the ground. I ask myself—and Members of the Committee—how much further we need to go in piling regulatory watchdog on regulatory watchdog.
I am reminded forcefully of the message that was so well spelt out by my noble friend Lady O'Neill, ironically enough on the BBC, in her distinguished Reith lectures last year. Your Lordships will remember that her central message was about trust—the extent to which we trust or, more probably today, do not trust each other. The apposite reference is to,
"our public culture, which is so often credulous about its own standards and suspicious of everyone else's".
I would urge Members of the Committee to accept the Government's advice in their response to the Scrutiny Committee. Surely, that is far better than loading on my noble friend Lord Currie a huge range of superficially reassuring statutory duties, which he will have to tackle almost before he gets his feet under the table and which, frankly, he has not a snowball's chance of finalising before we are all engaged in the charter renewal debate.
I have one last ironic thought, which will not surprise Members of the Committee. Even with all this welter of legislation, in which we impose new regulatory burdens on the industry and each other, how far can we have any confidence that the citizen—the consumer—will have any clear idea about how to seek and secure redress in respect of the grievances that really concern him or her? Those may include the unfairness or infringement of privacy that can occur and the affront to taste and decency.
I confess to some unease about the clauses and amendments that have been proposed. I have a great deal of sympathy with the remarks of the noble Lord, Lord Thomson of Monifieth, from the Liberal Democrat Front Bench, and with those of the noble Baroness, Lady Howe. This is after all meant to be a deregulatory Bill; indeed, some would take the process of deregulation even further. I believe that that would be foolish, but there are some who believe that should happen. In the case of the BBC, however, we are all in danger of becoming enthusiastic regulators all over again.
One amendment brings the BBC back, lock stock and barrel, under Ofcom; another brings a whole range of things into Ofcom. As the noble Baroness, Lady Howe, pointed out, there comes a time when one wonders whether the regulation will get in the way of running the organisation altogether. That is a familiar argument outside the broadcasting area—that regulation is strangling small business, for example. Before accepting the case, we must be very clear that it has been made, and I am afraid that I am not convinced.
We know that the BBC will come under Ofcom for general requirements of programme standards, and standards of taste, decency and fairness. We know that Ofcom will be able to review the commercial activities of the BBC, tiers 1 and 2. The main regulatory areas that will remain in the sole hands of the governors are political impartiality and the so-called tier 3 powers connected to the public service remit of the BBC. Personally, I believe that that is exactly where they should remain.
The other day, the chairman of the BBC argued that the two foundation stones of the BBC, inherited from the 1920s, were the independent funding via the licence fee and the system of independent control founded on the board of governors. It is my belief that this system has served the country rather well. It has self-evidently established itself at home and has won an international reputation.
My point is that we are not dealing here with an unsuccessful organisation. We are dealing with a notably successful one, which has established itself and proved itself. Any political party with any sense should recognise that that is the case. In spite of what was said by the noble Lord, Lord Thomson, I think that it is rather unlike the National Health Service. I am glad to say that no party claims sole credit for the creation and development of the BBC—and long may that remain the case. I hope that it remains the product of an all-party, bipartisan policy.
Of course, we know that politicians tend to unite in complaining about the BBC's "bias" and "unfairness". It could be Alastair Campbell. It could be my noble friend Lord Tebbit. It could be—indeed it just has been—my noble friend Lord Pearson on the Bench behind me. Complaints about BBC coverage presently range from the Iraq war to the local elections. As a former chairman of the Conservative Party, I am sure that I sent a few complaints to the BBC myself at the time. They were few, because I took the rather eccentric view for a party chairman that complaints cut very few daisies with the public, who are quite capable of judging for themselves whether John Humphrys had started his first interruption before the Minister had uttered two or three words in reply, or whether a particular programme was unfair or not. "Trust the people" is not altogether a bad principle.
Having started work at The Times under the editorship of William Haley—himself a distinguished director-general of the BBC, who also sought balance—I know how difficult it is to achieve that to everyone's satisfaction. It is next to impossible to achieve balance all the time, and mistakes occur.
I make three points about the BBC. First, we keep being told about what the public feel, but all public opinion surveys indicate that the BBC is the most trusted and authoritative broadcaster. As an old journalist, I regret to tell the Committee that it is trusted substantially more than newspapers.
Secondly, there is no question that the BBC aims for balance. Achieving balance is its editorial purpose. That makes it unlike a number of media organisations such as newspapers, which campaign on this or that issue—on Europe, for example. My noble friend talks about the BBC, but it is not exactly unknown for newspapers to campaign on the subject of Europe, and no one says that they are aiming for balance. But the BBC does that.
My third point is an organisational one. If balance and absence of bias are what one wants to achieve, it is better to place that responsibility with a board of governors who are nearer to the organisation itself and who will have most influence. The governors are part directors and part regulators. That not only makes them different, it makes them effective. They have that dual role, and it serves us well.
I would argue that it is in the public interest to have a strong board of governors carrying out the two roles, knowing that the buck stops with them on the governance of the BBC rather than transferring that role to a general industry regulator. Of course, if this House, the public or politicians wish to return to this debate, then the licence renewal process will provide the opportunity. But I would certainly not take the kind of steps advocated in these amendments at the present time.
Perhaps I may make a suggestion. We are in something of a jam. I would like to make a suggestion to the Government Front Bench which could solve a significant problem. I do not for one moment disagree with a word that my noble friend Lord Sheldon has said, but the noble Lord, Lord Crickhowell, was quite right in saying that we did predict this. I will not say, "I told you so", but one is tempted. We said,
"We recommend that the Government in its response to this report set out its initial proposals on the manner in which it envisages review of the BBC's Charter being conducted".
That was good advice then; it is good advice now. I suggest to the Minister that she accedes to that advice; that the present group of amendments are withdrawn; and that we return on Report. Having got that from the Government, having understood what the map ahead is and having looked at what foxes we are actually shooting, we might have a shorter and more structured debate on Report. Frankly, we could be here for a long time tonight and could eat up the whole of Thursday's session as well.
I am somewhat baffled by these amendments. As Amendment No. 144A in the name of the noble Lord, Lord Gordon of Strathblane, is the first, I will deal primarily with that and with its text in my brief remarks. It seems to me that there are three points. The first is, should Ofcom have regulatory responsibility for the BBC in some areas in order to create a level playing field between the BBC and other broadcasters?
There has been an underlying current that that is not in the Bill. I understand that that is the underlying purpose of Clause 195, as drafted, and in my view it could succeed in that purpose. That is the first point.
Secondly, should this be handled by way of an agreement between the BBC and the Secretary of State, as set out in Clause 195(1)? That seems a very reasonable approach since the BBC already has its own dedicated regulator—the board of governors.
Thirdly, should the Bill include a specific power for Ofcom, as suggested in Amendment No. 144A, and even more drastically in Amendment No. 153, to enter into such matters as possibly amending BBC statements of programme policy. There is a mysterious "(e)" at the end of Amendment No. 144A, which means that it would be the direct function of Ofcom, without any other agreement,
"to regulate the provisions of the BBC's services and the carrying on by the BBC of other activities".
That would come under "(e)" on the amendment as drafted, which is quite a wide-ranging power.
Should we go along that line? My answer to it is quite clearly, "No, we should not go along that line". I know that these amendments have been presented as benevolent—a love-in with the BBC. I recall those spiders which make love and shortly afterwards bite off the head of their partner. So I do not think that we need these amendments since the governors are fully capable and, indeed, the right and responsible body for ensuring that the BBC meets the public interest.
Finally, it would not surprise me at all if five years from now the public appreciation of the BBC was massively greater than the public appreciation of Ofcom.
That puts those few of us who are left who want to speak in a difficult position. I rather think that one must say one's piece and then hear the Minister. I shall give a short speech, so fear not.
The issues in this debate are finely balanced. Like all of the Committee, I am sure, I have thought extremely hard about on which side to come down. The reason that I have come down in favour of rejecting the amendments is that the BBC is more different than some of those who are in favour of them have been willing to admit.
There are four characteristics, four constitutional features of the BBC that set it completely apart from any other broadcasting institution. First, it is the only one subject to a charter—a charter with detailed conditions the breach of which entitles the Secretary of State of the day to intervene in the BBC's affairs. Secondly, the BBC has governors appointed by the Government. That is a unique characteristic.
Thirdly, the BBC has made itself answerable to the Select Committee. That is a major, serious and annual investigation of its affairs and the conduct of its policy. Again, that is not true of any other broadcaster. Finally—several Members of the Committee have referred to this—it has only one stakeholder: the public. It has no shareholders. It is answerable to the public interest, in the Reithian sense of the word.
Taking all that together, I concur wholeheartedly with what my noble friend Lord Thomson, the noble Lord, Lord Fowler, and the noble Baroness, Lady Howe, said, which is: if it ain't broke, don't fix it. By and large, the BBC is not broke. I accept the criticisms that some Members of the Committee have made. No doubt the noble Lord, Lord Pearson of Rannoch, has every reason to feel fed up with the coverage or non-coverage of his particular concern. But that is not a sufficient reason—a number of individual failings do not remotely constitute sufficient reason—to meddle in the governance of an institution that is well-established, stable, creative, uncorrupt and the linch-pin of our whole broadcasting system.
So, I, too, am with those who say: let the matter be dealt with in the next round of the charter. If the noble Baroness, Lady Blackstone, accepts the suggestion made by the noble Lord, Lord Puttnam, all well and good, but, short of that, I oppose this set of amendments.
This is a large issue; I shall join others in seeking to address it telegraphically.
The BBC's evolution has been a remarkable achievement. It has gone through vicissitudes, like any other organisation, but the overall results, whether internationally or domestically, are deeply impressive and speak for themselves. The noble Lord, Lord Thomson of Monifieth, spoke of our public broadcasting reputation in the world at large. I have always thought that the two greatest contributions that this country has made to the world were, first, political maturity and, secondly, lyric poetry, which come together in the game of cricket, whose political maturity is demonstrated by the fact that it has laws rather than rules. If I may put the thought of the noble Lord, Lord Thomson, another way, the BBC itself is a good index of that political maturity at work.
A charter renewal and examination of the licence fee lie ahead of us, as the Scrutiny Committee stated. The case has been made by those speaking in favour of the amendments, that the BBC will be assisted in that process by the changes proposed. I have previously cited CS Lewis in the Chamber as saying that if you hear someone going around doing good to others, you can always tell the others by their hunted look. In citing that, I allude to the claim that the changes will assist the BBC.
If the BBC is subject to the general changes listed in the amendments—the BBC has been engaged in consultation and making considerable concessions already—it will face the renewal process with an organisation and ambience not of its own choosing, which is not an entirely fair test. I am entirely content for the BBC to be rigorously examined during the charter and licence fee renewal process, but that process is not assisted by churning up the BBC at this juncture.
I understand the motivation of the noble Lord, Lord Gordon of Strathblane, and my noble friends, and I do not remotely discount it, but I agree with the noble Lord, Lord Phillips of Sudbury, that this issue is finely balanced. Finally, I share the views of the noble Lord, Lord Thomson of Monifieth. If I may play the CS Lewis card again, good will not be done to Ofcom if the young, strapping horse is overloaded too early in its journey.
I vividly recall seeking to put together what was then the DNH, but is now the DCMS, from six different prior departments and what those first two years were like. I shall be surprised if Ofcom's experience is different. I share the view of my noble friend Lord Crickhowell that the Government's position would be more tenable if they shared with us how the Bill will mesh with the charter renewal in a way that they did not follow in their response to the recommendations of the pre-legislative scrutiny committee. Like my noble friend, I take comfort from the work that the BBC is carrying out in this same regard. My noble friend Lady Buscombe has given the argument a useful shove with her BBC Charter suggestion.
The debate has been extremely interesting. Different views were expressed from all sides of the Committee; indeed, the expressions of commitment to the BBC, and some of the criticisms of the Bill as it stands, came from all parts of the Chamber.
In responding to the debate, which was certainly brought alive by the passionate conviction with which my noble friend Lord Sheldon argued his case for the BBC, I shall be strict with myself. I shall simply respond to the amendments. I shall not allow myself to get into wider issues about the history of the BBC, about its contribution to civilisation, or, indeed, issues regarding entertainment, politics, or anything else, over the past 50 or 60 years.
However, it is important for us to sort out where we stand on this question. I shall take the amendments in turn, but not quite in the order to which they were spoken. It will be helpful for me to begin with Amendment No. 145. The Government resisted the amendment in another place on the basis that the agreement seemed the most appropriate place in which to set out the functions that Ofcom is to have in relation to the BBC. It is the agreement, not the charter, that will contain the substance of the new obligations on the BBC in relation to which Ofcom will have functions. Often, it makes sense to weave the Ofcom's role seamlessly into these substantive provisions. It could be unhelpful and confusing to insert them into a different document.
I have taken very much to heart the arguments made by the noble Lord, Lord Crickhowell, about the Bill being future proof. I am also interested in the contribution made by my noble friend Lord Puttnam. I have carefully considered the arguments put forward in favour of Amendment No. 145, and I am prepared to accept it in principle. Although I cannot pre-empt the outcome of charter review, the Government agree on reflection that it would not be right to close off the possibility that one outcome might be for Ofcom to have functions conferred upon it through the charter. I hope that that response will help in taking us a little further in the direction that some noble Lords desire.
I very much welcome the suggestion made by my noble friend Lord Puttnam, but the question is how much detail we can reasonably set out at this stage, and how helpful that would be. We shall obviously be as helpful as we can. However, it may not take us a great deal beyond our response to the pre-legislative scrutiny committee, because the thinking has not yet been completed. Nevertheless, in the context of what I have already said about Amendment No. 145, I shall take away my noble friend's suggestion for consideration to see whether we can take it just a little further.
I should like to consider further the precise wording of Amendment No. 145. In particular, a more technically correct way of referring to the BBC charter may be appropriate. If that is the case, I will return with a government amendment on Report.
Amendment No. 148 would place a duty on the BBC to provide any information that Ofcom may reasonably require for the purposes of carrying out its functions relating to the BBC. We already intend to insert a provision into the revised BBC Agreement to deal with that very point. The provision is contained in Clause 13B of the proposed amendments to the agreement, which have been made available to Committee Members. Clause 13B will place on the BBC a general duty to co-operate with Ofcom and to furnish it with any information that it may reasonably require in connection with its functions under that clause. The proposed provision recognises the need for Ofcom to have all the information that it requires for carrying out its functions in relation to the BBC.
I am not, therefore, persuaded that it is necessary for the proposition to be included in the Bill. I hope that the noble Baroness will accept that. Our general approach is for the BBC's obligations to be imposed by way of the agreement, leaving Clause 195 simply to lay the foundations for Ofcom's own functions, and to address the obligations on the BBC that, in their nature, require legislation.
On Amendment No. 153, our proposals for amending the BBC Agreement include an obligation on the BBC to prepare and publish annually a statement of programme policy. The relevant proposed clause is Clause 5C. It will require the BBC to consider Ofcom's guidance and reports issued under Clauses 260 and 351 before preparing its statements of programme policy.
My next remarks are relevant to the amendments of my noble friend Lord Gordon as well as those of the noble Viscount, Lord Astor. As I explained to the House at Second Reading, the basis of our policy in respect of the BBC is that it should stand within the new regulatory regime on terms consistent with the corporation's distinctive role and constitution. That is exactly what was sought by the noble Lords, Lord Fowler, Lord Thomson of Monifieth and Lord Phillips, and the noble Baroness, Lady Howe.
In particular, we attach the highest importance to preserving the BBC's relationship with Parliament, through the charter and the agreement, and the core responsibilities of the governors for delivery of the corporation's public remit. That approach was clearly enunciated in the White Paper, and we have consistently adhered to it. Nobody can be surprised by the Government's response to this group of amendments today. Amendment No. 153 would subvert that fundamental principle in that it would effectively transfer responsibility for delivery of the BBC's remit from the board of governors to Ofcom. That is not a proposition that the Government could accept.
Amendment No. 153A seeks to add new provisions to the Bill, bringing the process for approving new BBC services within the statutory framework. Prior to the Secretary of State approving any new BBC service, or changes to an existing service, Ofcom would be required to prepare a report on whether the proposed service or changes satisfied certain objectives. There would also be a duty on Ofcom to review and report periodically on the extent to which new and changed BBC services complied with the relevant approval and the objectives mentioned in the amendment.
The amendment is, once again, in conflict with the general principle underlying our approach to the regulation of the BBC. The BBC is established by Royal Charter and is not generally regulated by statute. The amendment accepts that it would continue to be the charter and agreement under which the Secretary of State would grant approval for new BBC services or changes to existing ones. But it seeks to regulate the process and to police the outcome to some extent by making direct statutory provision. In our view this would be anomalous and inappropriate and we are not persuaded of the need for it. Again, the noble Lord, Lord Brooke, spoke very perceptively about this.
I want to reiterate the assurance given by my honourable friend Kim Howells in another place that Ofcom will have an important role in the approval process for new BBC services. My right honourable friend the Secretary of State will formally consult Ofcom on any new BBC service proposals and on any reviews of existing BBC services. Indeed, my right honourable friend has already made a commitment to carry out an independent review of the BBC's new digital services in 2004 and we propose that Ofcom should be fully involved in that.
In order to make the process for approving new BBC services more transparent, the department introduced administrative guidelines in 2001 which set out the criteria used by the Secretary of State. Some of the detail in the new clause is based on these guidelines. Having regard to all those points, we are not persuaded that any further formal provision is needed to ensure that Ofcom plays an appropriate role in relation to the approval of new BBC services or changes to existing services.
Amendment No. 153B brings together Amendments Nos. 153 and 153A. I shall not repeat my comments on those amendments. I shall just observe only that Amendment No. 153B goes even further than those amendments in that subsection (5)(b) and (c) would give Ofcom even more intrusive functions than under Amendment No. 153.
Turning now to the noble Lord, Lord Pearson of Rannoch, I am not going to engage with him on the BBC's coverage of European Union matters. We have had that engagement on a number of previous occasions, but I shall say to the noble Lord that he never gives up.
Amendment No. 153C seems wholly unnecessary. Under the terms of the BBC's current Royal Charter and agreement, monitoring and reporting to Parliament on the discharge of the corporation's public service remit are already in effect functions of the board of governors as a whole. To be more specific, the charter prescribes it as a function of the governors to satisfy themselves that the corporation's activities are undertaken in accordance with any agreement made with the Secretary of State. The current BBC Agreement sets out the corporation's public service remit, including its obligation to provide comprehensive, authoritative and impartial coverage of news and current affairs. This is reinforced by the requirement in the charter for the governors to approve clear objectives and promises for BBC services and programmes and to monitor how far the corporation has attained such objectives and met its pledges to audiences.
The BBC is further under an obligation under the charter and agreement to produce an annual report for Parliament and to include in that report, among other things, an account, in reasonable detail, of how far the corporation is meeting its published standards and objectives for the main programme services provided as part of the home services. The requirement relating to news would be encompassed by these provisions.
Taken together, these requirements seem more than sufficient to meet the concerns that the noble Lord has in mind. We can see no possible advantage in requiring the establishment of a special committee of the governors to undertake a function which is already clearly allocated to the governors as a whole.
Amendment No. 144A, moved by my noble friend Lord Gordon of Strathblane, essentially tries to set out Ofcom's relationship with the BBC in the Bill rather than in the agreement. As I have already made clear, this conflicts with our basic approach to the BBC which is set out in the corporation's obligations in relation to Ofcom in the agreement, thereby preserving the BBC's special position and accountability to Parliament. I recognise that my noble friend felt that in moving this amendment he was protecting the BBC, but I think every noble Lord who moved an amendment in this group thought that they were protecting the BBC. I am not sure that the BBC would entirely agree with them because I do not believe that it would support the route that some of your Lordships want to go down.
Amendment No. 153D seeks to make available to each BBC governor a full-time, independent personal assistant—how lucky they are—funded by the BBC but chosen by the governors themselves. Apparently the amendment is intended to promote the effectiveness of the governors by ensuring their access to advice and assistance which is independent of the BBC executive.
Of course it is essential that the governors have access to independent and informed advice on which to make decisions. Indeed, the BBC recognised this need when it announced last year a number of important reforms to its internal governance arrangements. The intention behind the reforms was to establish a much clearer delineation of the functions of the governors and the executive and to enhance the role of the governors in monitoring performance and regulatory compliance.
One of the specific changes involved the setting up of a new governance and accountability department, the function of which is to support the governors by providing independent advice and support on compliance, objective setting and accountability. It must be for the BBC governors to determine the nature of the support they need to enable them to carry out their responsibilities properly. They are the people best placed to know what kinds of support would be most useful to them.
Surely it is not right to say that the advice provided by the governance and accountability department, which has been established by the chairman, is independent. These people are employed by the BBC; they owe their careers, pensions and so on to Mr Dyke and Mr Damazer and the rest of the top brass of the BBC. They are most unlikely to advise the governors that Mr Dyke and company have not fulfilled their public service remit when their futures are thus in doubt. I am suggesting independent assistants.
I do not agree with the line of the argument of the noble Lord, Lord Pearson of Rannoch. As a number of noble Lords have said, the governors of the BBC are experienced and independent people who can make up their own minds. They do not need on the face of the Bill a requirement that they should all be provided with a personal assistant. The noble Lord, Lord Ryder, has been quite quiet in the debate but I am sure that he would agree with what I have said.
The Government are willing to accept Amendment No. 145 in principle. I therefore hope that noble Lords will not press the remaining amendments in the group.
I agree with the Minister in regard to the amendment of my noble friend Lord Pearson of Rannoch. I would have supported him if he had brought forward an amendment which required that we should all have a personal assistant, including the governors. Sadly he did not do so.
I am not entirely surprised that the Minister did not support my Amendments Nos. 153, 153A and 153B. They would take away more powers from the Secretary of State than from the governors, and I have never known a Secretary of State of any party who has wanted his powers removed or diminished in any way.
It is important that the noble Baroness should take up the suggestion of my noble friend Lord Crickhowell and the noble Lord, Lord Puttnam, because licence renewal will be very complicated. After all, those of us who were involved in the previous debate will know that at that stage there were two BBC television channels and four radio channels. We now have eight core BBC television channels, 11 radio channels and a huge number of commercial services.
My noble friend Lord Brooke, who was involved in the negotiations over the previous BBC Charter and Agreement—indeed, I steered it through this House on his behalf—said that it will be rigorously examined. But the process is not satisfactory. I am sure that the Government will initiate a debate on the future of the BBC and the agreement and that the noble Lord, Lord Sheldon, and other Members of the Committee will make impassioned speeches. The Government will then go away and produce a charter and agreement. We shall then have a debate to pass it but we will not be able to amend it in any way. In effect, we will be faced with a fait accompli. It would therefore be helpful if the Government could pre-empt that by explaining their thinking before Report stage.
The noble Baroness made a very constructive response to my noble friend on the Front Bench. For my part, I am grateful for that. I am also grateful for her response to my amendment, although I suspected that she would not agree with the amendments.
I thank the Minister for her response to Amendment No. 145. As I made clear, this is all about future-proofing the Bill. We consider that that is tremendously important. I am not sure that all Members of the Committee who spoke after me appreciated that we did not intend to knock the BBC but rather to protect it and its interests when considering the outcome of the review of the Royal Charter. I am also grateful for the Minister's response on Amendment No. 148.
I was very attracted by the contributions made by the noble Lords, Lord Crickhowell and Lord Puttnam. I believe that many of us seek to avoid having two debates that are totally disassociated from each other—one on charter renewal and one setting up Ofcom. The element of future-proofing which the amendment of the noble Baroness, Lady Buscombe, would provide would help in that regard.
If the Minister will say as much as she can at Report stage with regard to how the Government will proceed in this matter, many of us will be much happier. I, too, was very impressed by the impassioned pleas of the noble Lord, Lord Sheldon, although I am afraid that I disagreed with them totally. I shall gladly send him the Labour government's White Paper of 1978 which shows that the objectives of public service broadcasting are identical in the commercial and the BBC sector. But, in the meantime, I believe that it is time to withdraw the amendment. I beg leave to withdraw the amendment.