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My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord McIntosh of Haringey.)
moved Amendment No. 31:
After Clause 12, insert the following new clause—
(1) It shall be the duty of OFCOM, in accordance with the following provisions of this section, to exercise their powers under paragraph 14 of the Schedule to the Office of Communications Act 2002 (c. 11) (committees of OFCOM and advisory committee) to establish and maintain a committee to be known as "the Disability and Older People's Advisory Board".
(2) The Disability and Older People's Advisory Board shall consist of—
(a) a chairman appointed by OFCOM; and
(b) such number of other members appointed by OFCOM as OFCOM think fit.
(3) The chairman of the Disability and Older People's Advisory Board must be a non-executive member of OFCOM or a member of their Content Board but is not to be the chairman of OFCOM.
(4) In appointing persons to be members of the Disability and Older People's Advisory Board OFCOM must secure that the Advisory Board are able to give informed advice about matters referable to—
(a) the interests of persons with disabilities;
(b) the interests of persons of pensionable age;
(c) the development of domestic electronic communications apparatus which is capable of being used with ease and without modification by the widest possible range of individuals including those with disabilities;
(d) the development of technologies which facilitate access by disabled or older people to electronic communications services;
(e) telecommunications services for disabled or older people;
(f) television and other broadcasting services for disabled or older people; and
(g) employment and training opportunities for disabled or older people in the broadcasting and telecommunications industries.
(5) The validity of any proceedings of the Disability and Older People's Advisory Board shall not be affected by any failure by OFCOM to comply with subsection (4).
(6) It shall be the duty of OFCOM when appointing members of the Disability and Older People's Advisory Board in accordance with paragraph 14(3) of the Schedule to the Office of Communications Act 2002 (c. 11) (at least one member of non-advisory committee to be member or employee of OFCOM) to secure, so far as practicable, that a majority of the members of the Board (counting the chairman) consists of persons who are neither members nor employees of OFCOM.
(7) The following shall be disqualified from being the chairman or another member of the Disability and Older People's Advisory Board—
(a) governors and employees of the BBC;
(b) members and employees of the Welsh Authority; and
(c) members and employees of C4C.
(8) Before appointing a person to be the chairman or another member of the Disability and Older People's Advisory Board, OFCOM must satisfy themselves that he will not have any financial or other interest which would be likely prejudicially to affect the carrying out by him of any of his functions as chairman or member of the Board.
(9) A person is not to be taken to have such an interest by reason only that he is or will be a member or employee of OFCOM.
(10) Every person whom OFCOM propose to appoint to be the chairman or another member of the Disability and Older People's Advisory Board, shall, whenever requested to do so by OFCOM, furnish OFCOM with any information they consider necessary for the performance of their duty under subsection (8).
(11) In addition to paying remuneration and expenses under paragraph 14(4) of the Schedule to the Office of Communications Act 2002, OFCOM may—
(a) pay to, or in respect of, any member of the Disability and Older People's Advisory Board who is not a member or employee of OFCOM, such sums by way of pensions, allowances or gratuities as OFCOM may determine; and
(b) provide for the making of such payments to or in respect of any such member of the Board.
(12) In subsection (11)—
(a) the reference to pensions, allowances and gratuities includes a reference to similar benefits payable on death or retirement; and
(b) the reference to providing for the payment of a pension, allowance or gratuity to, or in respect of, a person includes a reference to the making of payments towards the provision or payment of a pension, allowance or gratuity, or of any such similar benefits, to or in respect of that person."
My Lords, to move this proposed new clause as a probing amendment is not appropriate on Report, but it does seek to extract from the Government exactly what is their attitude on the issue. What colours the debate is the news that Ofcom has stated that it will set up a committee to give advice on attitudes towards and activities concerning disabled people. That is welcome, but it is a fact that any body that is set up on a voluntary basis can be removed as easily as it has been created; that is, at will. Moreover, what tends to happen with voluntary activities is that they last only as long as the people working on their behalf remain enthusiastic and committed.
When considering all the issues and legislation surrounding disability, if we could rely on people always behaving in a generous, open-handed and considerate manner, we would not have needed any of our disability legislation in the first place. Similarly, if we could rely on people always to be on top of matters, we would not need any legislation. So, although we must welcome what the new chairman of Ofcom has done, we still need a commitment to ensure that the committee will continue to function and operate in a recognisable form in the future. To be perfectly honest, that explanation probably deals with the arguments lying behind Amendments Nos. 31 and 32.
I turn now to my Amendment No. 46, which is grouped with Amendment No. 31. This amendment seeks to form a committee to advise the consumer panel. It is a straightforward issue. The panel is to include one or two representatives from certain groups. If one has representation for large issues such as disability matters from only one person, there is a tendency for that single representative to be expert in one form of disability and to know a little about all the surrounding issues. Such people then tend to pick up more information as they go along and find out exactly who to talk to. But that is not a sufficiently wide information base to enable such a representative to advise the consumer panel; it is simply not enough.
If a committee were set up to advise the representatives serving on the consumer panel, then we would stand a chance of being able to bring forward and present sufficient information to ensure that those representatives were able to hold their own. We want to make sure that they are briefed with enough information to function well on the panel.
I know about this from personal experience. As a spokesman for disability issues, I am always going into new areas in which I might well know the first two or three steps, but I do not know all the intricate detail. That is simply the way it works. As soon as someone is put in charge of a certain field, they need much more information. I am sure it is the same for any other issue that requires this kind of portfolio of knowledge.
I hope that the Government will be able to give us an assurance either that they will make provision for more information, or that something has already been put in place. I say that because we have genuine worries about both of these situations. I look forward to hearing a positive response from the Minister. I beg to move.
My Lords, I support Amendments Nos. 31 and 32, to which I have added my name. As the noble Lord, Lord Addington, explained, these amendments would place on the face of the Bill a commitment for Ofcom to establish and maintain—the important word here is "maintain"—a disabilities and older people's advisory board. Last week the chief executive of Ofcom, Stephen Carter, undertook a commitment that Ofcom would establish,
"a standing committee on matters concerning disabled people".
As I understand it, this will be a high-level committee with both consumer representatives and industry stakeholders. It will have a wide, holistic remit covering access to services, representation in the media and employment in broadcasting.
Members on these Benches warmly welcome that announcement. It gives an indication that Ofcom recognises the importance of disability issues in the communications industry and plans to make them a priority. With these amendments we seek to probe the Government as to whether they will take a step further and give the new board a statutory footing. That would guard against future abolition under different personnel and give it the stature it deserves and needs to attract the best people and get buy-in from industry and other stakeholders.
There is a real risk that without placing the disability and older people's advisory board on the face of the Bill it will dissolve after a few years if Ofcom finds itself with a different set of priorities. Evidence suggests that where such organisations are not written into legislation, the tendency is for them to wither over time. Oftel set up a consumer panel which had no statutory underpinning, and subsequently it has been abolished. On the other hand, in the Telecommunications Act 1984, a statutory advisory body was created on disability and older people. DIEL has been a highly effective body of expertise. For the Government to reject this amendment could be perceived as a step back or a downgrade for disabled persons in the communications sector, in which case I shall be most interested to hear what the Minister has to say on this issue.
My Lords, I speak in support of Amendments Nos. 31, 32 and 46. I agree with all that the noble Lord, Lord Addington, and the noble Baroness, Lady Buscombe, said.
I, too, was delighted to hear Stephen Carter, Ofcom's chief executive, announce at the Broadcasters Forum on Disability that he was laying plans before his board to set up a standing committee to advise Ofcom on issues affecting disabled and older people. With such a commitment, the purpose of this amendment has been accepted in principle. All that is needed is for the Minister to ensure that that commitment is not lost.
It is essential that a commitment to maintain an advisory committee for disabled and older people is on the face of the Bill. With such a fast-changing industry, the complex and wide-ranging needs of disabled people in relation to all the areas covered by Ofcom can too easily be forgotten. The Disability and Older People's Coalition, which is made up of a large number of leading disability organisations, remains concerned at what might happen under a different leadership of Ofcom or under a government less committed to social inclusion. There is no guarantee that such a committee, and all its expertise and good work, would not be jettisoned. The Minister may well try to provide reassurance that that would not happen but, as the noble Baroness, Lady Buscombe, said, it has happened before. Oftel set up a consumer panel without specific statutory provision and then later abolished it.
The purpose of Amendments Nos. 31 and 32 is to ensure that that cannot happen. If it was considered essential to set up DIEL back in 1984 before the era of mobiles, digital radio and multi-channel TV, giving Oftel a statutory advisory committee on matters affecting disabled and older people, how much more pressing it seems today. This Government have done more than any other to take action against social exclusion. I am sure that the Minister accepts the threat of exclusion which disabled and older people face in relation to communications services and trust that he will see the case for these amendments.
Similarly, Amendment No. 46 seeks to ensure that the consumer panel—the body charged with holding Ofcom to account on behalf of consumers—can carry out its duties in respect of disabled and older people effectively. The consumer panel must inform itself about the needs of disabled and older people and have regard to their needs in carrying out its functions. If it is to be effective in those duties and make a meaningful contribution to the future inclusion of disabled and older people in the digital revolution, it must draw on a wide range of expertise and establish its credibility with disabled and older people. The odd person on the panel will not be able to do this—they cannot hope to cover the wide range of access barriers confronting different groups of disabled people. Nor is it acceptable to expect disability and older people's groups to help the panel unless they are resourced to do so. Without a statutory committee these resources are highly unlikely to be made available.
Not only do the whole disability sector and Age Concern back this amendment but support comes from the industry too. BT has backed the establishment of such a committee so that it can go to one place and get informed, holistic and reasonable guidance on improving its services for disabled people. It is essential that a specific advisory committee is placed on the face of the Bill.
The range of issues and challenges in relation to disabled and older people in this area is vast which is why these amendments seek to ensure that both Ofcom and the consumer panel are required to maintain permanent disability and older people's committees. DIEL has been forced to carry out both roles but that was only for telecommunications. Now we have a body dealing with every type of communications service and an even greater range of challenges.
If disabled people and older people are to have faith in Ofcom and the consumer panel, they must have a voice and a place within each and this must be specifically provided for on the face of the Bill. I urge the Minister to think again and accept these amendments.
My Lords, even in the presence of my noble friend Lord McIntosh I shall make a very brief speech. The brevity arises from the fact that the case has been substantially made in the splendid speeches of the noble Lord, Lord Addington, and his supporters. All I want to say is that the All-Party Disability Group strongly supports these amendments. Disabled people are genuinely fearful that if the measure we are discussing is not on the face of the Bill it can easily be eroded. The case made by the noble Baroness is a very strong one. Past experience shows that these committees wither away. They have no value unless they are incorporated on the face of the Bill. I am sure that my noble friend will take account of that point and do what he can to help.
My Lords, I wonder if when my noble friend replies he can deal with the very important point that was made by the noble Lord, Lord Addington, and the noble Baroness, Lady Wilkins, on the problem that arises if there is one disabled person on the panel. At the moment I believe that there is a blind person on the consumer panel. I believe the whole House will understand that the requirements of blind people differ from those of the deaf and those disabled people who use wheelchairs and, indeed, from those of older people. The matter cannot be dealt with by one disabled person serving on the consumer panel.
As I understand it, all telecoms companies are to be required by their general conditions of entitlement to consult the consumer panel on services for disabled people. If that is the case, I am not sure how that panel will receive the advice it needs on the range of services which need to be provided for disabled people if there is not a committee to advise it or other advice is not made available to it. I should be grateful if my noble friend could deal with that point when he replies to Amendment No. 46.
My Lords, I add support from these Benches to the points ably made by the noble Lord, Lord Addington, and other speakers, and particularly to the points raised by the noble Lord, Lord Carter. The arguments are persuasive for a specific advisory board, and for it to be laid down in the Bill. As has already been said, the Minister represents a government who have a good record in these spheres, so I hope that he will be sympathetic to the amendment.
My Lords, I do not feel very comfortable at finding myself in a minority of one. Personally, I marvel at the degree of faith placed in the suggestion that yet another committee be appointed. Although I am happily not all that disabled, I may at least be older than anyone who has spoken so far. Therefore, I feel that I can speak on behalf of old people. I would take no comfort whatever if the Government were minded to accept the amendment.
I cannot believe that the noble Lord, Lord Currie, and his colleagues are really in need of yet another committee strung round their necks. The Bill, in terms of the instructions it contains for Ofcom, is already an indecently large affair. I see no need to complicate matters further. It would be absurd. I do not want anyone to say that I do not sympathise with either old people or the disabled, and I hope that no one will waste their time doing so. However, I do not believe that appointing such a committee would in any way help. I find it inconceivable that the noble Lord, Lord Currie, and the very substantial staff whom he will need will for a moment be either so stupid or so insensitive as not to take the greatest possible trouble to see that the needs of old people and the disabled are fully met.
My Lords, I want to emphasise that Ofcom announced last week—my chief executive announced in a speech—that we will set up a panel of this kind, precisely because we think that it will have considerable value. Disability is one of those genuinely wide-ranging issues that spans the whole spectrum of Ofcom's activities, and that can be well tackled by a converged regulator. A panel of that kind will be extremely helpful in guiding and informing the work of Ofcom.
My Lords, I am sorry to disagree with the noble Lords, Lord Peyton and Lord Currie. I go back to a comparison with the little debate that we had on ethnic groupings, and why it was still important at this stage to have them firmly in the Bill. The whole approach may not have been firmly embedded in the same way as for other groups—to some extent I include gender—that have been more absorbed.
I want to refer briefly to very thorough research that we did at the Broadcasting Standards Commission—it was some time ago—which gave two clear indications from the wide groupings of different disabled people. First and foremost, they wished to be treated as individuals. Secondly, they wanted a body that was representative of all their problems, that would bear them in mind, and that would ensure that whatever legislation was passed would consider their problems. I suppose that we should all declare an interest so far as age disability is concerned, and it may be an issue in future.
My Lords, I apologise. Certainly I was in disagreement with the line taken by the noble Lord, Lord Peyton. My disagreement with my noble friend Lord Currie was not on the intention of Ofcom, which is highly desirable—we have heard it spelt out already—but much more with the fact that I still consider there to be a need for a more statutory body in the Bill.
My Lords, I shall start on a positive note. We will consider the principle of stating in the Bill a requirement for Ofcom to establish a committee for the disabled and elderly with a statutory base. Of course, the Bill already provides that Ofcom will be bound by statute to establish an advisory body to advise it on the consumer interests of, among others, disabled people, the elderly and those on low incomes. That is a key function of the consumer panel.
What noble Lords see in the Bill is a sturdy framework on which the consumer panel can build and which Ofcom must provide. The top level is the membership of the panel, representing the diversity of consumers across the UK. As a whole, the panel will be responsible for giving informed advice on, among other matters, the interests of the disadvantaged, the disabled and the elderly. The top level is supported by five important pillars.
The first pillar is the list of matters on which the panel must be able to advise, set out in Clause 15(3)(a) to (k). That includes the cost of services, their provision and availability, apparatus—televisions, set-top boxes and remote controls—standards of service, information about service standards and so on. The second pillar is the power to carry out and publish independent research, in Clause 15(6)(b). The third pillar is the panel's freedom to advise other bodies as it sees fit, in Clause 15(2). Fourthly, the panel has a duty to have regard to the interests of a diverse range of consumers including the disabled and the elderly, who are named constituents of the panel, in Clause 15(6). Finally, the panel must have the power to organise itself and set up its own committees, under Clause 17(1) and (2).
I shall now move Amendment No. 34. In Committee, we considered an amendment tabled by the noble Lord, Lord McNally, and the noble Viscount, Lord Falkland, to require the consumer panel to produce an annual report. It will add the vital elements of accountability and transparency to the work of the panel—
As I said, the Bill is a sturdy framework on which the consumer panel can build, and I do not think it necessary or desirable to add further detail to the legislation, as required by Amendment No. 46. The panel has all the powers that it needs, and has the duty to provide informed advice about the interests of disabled and elderly people across a broad range of issues. Having heard the debate, we will consider the composition of the panel, as raised by several noble Lords this morning, when we consider Amendment No. 31.
Moving on to Amendment No. 35, this has not been spoken to, so there is no way I can reply to it.
I have already signalled our intention to consider the principle behind Amendment No. 31, but I cannot accept it outright, and I must resist Amendment No. 32 for a number of reasons. Principally, both amendments risk creating duplication of the work of the consumer panel and the content board, and they seek to do in legislation what Ofcom would itself have to do as a matter of operational necessity.
It is incredibly difficult for a regulator, bogged down in the detail set out in statute, to serve its true constituents—citizens and consumers. It is the very people whose interests we are trying to champion who will suffer from an inflexible regulator that cannot move and respond to changing needs and circumstances. The needs of people with disabilities and those of the elderly will always have to be addressed and their interests taken into account. The Bill provides for that. Ofcom will be able to serve the interests of those groups better if it is not tied into inflexible legislation.
However, as I have signalled, we will consider Amendment No. 31, given the strength of feeling expressed about it today. But the practicalities of setting up committees should not be for the parliamentary draftsman or the lobby group to try to translate into legislation. That is why we must resist Amendment No. 32. The chairman and his board of experts, with a finger on the pulse of the new organisation, are best placed to decide how to structure their organisation. As was mentioned earlier today, Stephen Carter has done just that, announcing on 12th June his intention to set up a standing committee on disability issues.
We have set clear objectives. Ofcom must have regard to the needs of persons with disabilities, of the elderly and of people on low incomes. We have placed many provisions throughout the Bill to support these objectives. We have appointed a respected chairman, acting in the public interest, and we should let him and his board get on with the job.
That said, I hope that in the light of the commitment I have given to consider Amendment No. 31, the noble Lord, Lord Addington, will withdraw the amendment and will not move Amendment No. 32.
My Lords, we always, of course, prefer the words that we seek to include in a Bill to be accepted outright. However, the Minister's response has been one of the more positive responses I have received.
I thank everyone who has taken part in the debate. The noble Lord, Lord Currie, however, denied me the opportunity of catching the noble Lord, Lord Peyton, on the hip. I was quite looking forward to that, as the opportunity does not often arise. However, I am sure that we shall be able to fence again at another point.
Given the Government's assurance that they will address this issue and follow the lead of people outside who are dealing with these matters, I beg leave to withdraw the amendment.
My Lords, before making substantive points on the amendment, perhaps I may clarify exactly what we want to see deleted from the Bill as I am slightly concerned about the wording of the amendment. I have no doubt that, in terms of drafting, the wording is correct—although I shall check on that, or perhaps the Minister will be able to assure me that I am correct. I hope that the wording gives effect to our intention, which is to delete the words in brackets:
"(other than one referred to them for advice by OFCOM)".
My Lords, I can confirm that that is what the amendment does.
My Lords, I am grateful to the Minister. That helps to clarify what I am about to say.
The House will recall that in Committee on 15th May, in a debate about the consumer panel, we discussed my Amendment No. 66 which sought to avoid overlaps between the content board and the consumer panel by making it clear that the consumer panel had no remit over content. That reflected widespread concerns expressed to me by content providers about the potential double jeopardy between the content board and the consumer panel and the need for clearly defined boundaries between the two.
What was incorporated into the Bill following a rather short debate was government Amendment No. 65 inserting the words,
"(other than one referred to them for advice by Ofcom)".
The Minister said that the purpose of the amendment was to give the consumer panel the power to consider matters of content referred to it by Ofcom and that these could be matters which had a "high consumer dimension". He gave the example of "misleading advertising".
I accepted at the time that the Government's intention was to define limits on the consumer panel's role as regards content. However, some content providers are concerned that there will now be overlaps between the panel and the content board, and that there is a danger of "double jeopardy". I am grateful to the Minister for giving me the opportunity to discuss the point with him between Committee and Report.
The Advertising Association is very concerned that misleading advertising was specifically cited as an example of an issue which could be referred to the consumer panel for advice, as it also foresees overlaps between different bodies on advertising. It had previously understood that, as thinking on the content board developed, government policy had moved on from the White Paper in which that was originally proposed.
Although the Advertising Association recognises that it is important to consumers that misleading advertising is prevented, the instances of upheld complaints about misleading advertising are very limited because of the stringent controls and pre-vetting procedures which are in place. It therefore questions why misleading advertising should have been singled out for attention by the consumer panel.
My Amendment No. 33 would restore Clause 15(5) to the clarity it achieved prior to the government amendment in Committee. The advertising industry and broadcasters who have supported the move to a single regulator did so because they believed it would reduce the regulatory overlaps and duplication that currently exist between various regulatory bodies. We should not recreate that problem in the new regulatory regime. I beg to move.
My Lords, I strongly support what the noble Baroness said. The role of the consumer panel as proposed in the Bill is a very important one. Under this clause, it has a range of responsibilities that are of great importance. It is vital that the line should be absolutely clear-cut between the responsibilities of the content board and the consumer panel.
This affects advertising in one respect, but even more importantly it affects the whole function of the content board in ensuring the quality and diversity of programmes and their separation from matters of an economic character.
On the advertising side, the noble Baroness is absolutely right. The idea of misleading advertising being one of the dimensions on which the consumer panel might be entitled to have a view was perhaps an unfortunate slip of the tongue. The arrangements within the television industry for regulating advertising have worked admirably over many years. They are under active and constructive consideration at present. I listened to an interesting speech delivered recently by the noble Lord, Lord Currie, at an Advertising Association luncheon in which he referred to looking for a means of marrying the self-regulatory principle of the Advertising Standards Authority to the statutory backing that is inevitable in terms of television advertising.
All that works admirably, but to work admirably it is important that the borderline between the responsibilities of the consumer panel and those of the content board should be absolutely clear cut. It is equally important that the content board should be distinctively separate from all the other many responsibilities in the field of economic competition that lie within the responsibilities of Ofcom.
My Lords, it has always been our policy that Ofcom should be able to seek advice from the consumer panel on matters of content where there is a high consumer dimension. We made that clear in paragraph 7.5.2 of the White Paper, A new Future for Communications, and in paragraph 4.3.2 of the policy document published alongside the draft Communications Bill. The Joint Scrutiny Committee supported this position when it examined the draft Bill, in paragraph 48 of its report.
The amendment that we made in Committee, which this amendment seeks to reverse, does not extend the panel's mandate to content. It merely clarifies what has been our intention from the start and resolves any apparent inconsistency that existed between Clause 15(5) and Clause 15(6).
I understand that there is some concern in the advertising industry that this will lead to double jeopardy. Although the consumer panel will be a powerful voice for consumers, it has no regulatory functions. Its function is to provide advice to Ofcom and other bodies as it sees fit. It is simply not possible for the panel's advice on a content matter referred to it by Ofcom to present some form of double jeopardy for industry or overlap with the work of the content board. Regulatory functions rest with Ofcom, and, where conferred on it, the content board.
The consumer panel will be able to advise on content issues only where specifically requested by Ofcom. I do not agree that this is the thin end of the wedge. The panel is a statutory body and will not be able to go beyond the boundaries laid down in statute. In the content board, Ofcom has already begun to develop the proper structure and expertise to handle content matters, and the board will be best placed, within the regulatory framework, to do that job.
I will not speculate or try to give examples of what Ofcom might or might not refer to the panel. The example of misleading advertising, which we used at Committee Stage when explaining the amendment, was used purely for illustrative purposes, and not singled out for special treatment. There is no perception in government that this is a problem area.
It is Ofcom that will decide when a matter has a "high consumer dimension", and Ofcom that will decide whether, if it needs advice on that matter, the consumer panel would be best placed to provide it. I hope that my answer provides the reassurance that the noble Baroness was looking for and persuades her to withdraw her amendment.
My Lords, I thank the Minister for his response. I also thank the noble Lord, Lord Thomson, for his support of the amendment. As the noble Lord, Lord Thomson said, it is important to clarify this crucial borderline between the responsibilities of the consumer panel and the content board. It is important to address this borderline, because there is tremendous concern in the industry that this clause, as it stands, muddies the water, not least because there is no question but that self-regulation really works in the advertising industry. We on these Benches want to be sure that nothing in the Bill will undermine the advertising industry's ability to regulate itself successfully.
The Minister says that it is in Ofcom's hands to decide whether to seek advice from the consumer panel on matters with a high consumer dimension. I am grateful that the Minister has made that clear. I am also grateful that the Minister has explained that the term "misleading advertising" was used as an example purely for illustrative purposes and that he explained that there is no perception in government that this is a problem area.
I should have much preferred the Minister to have accepted our amendment to clarify the situation once and for all and to assure the industry, because I still think that this wording is unnecessary. I do not think that it helps the process. I do not think that it helps Ofcom. I will not press this today. I will go back to people in the advertising industry and ask them. They are the experts—they know. I will consult the Advertising Association in particular about whether it is happy about what the Minister said today.
My Lords, I thank the noble Lord, Lord McNally, for his strong support. I will take on board his assistance in this matter. Together we will consult the advertising industry, and, on that basis, we will perhaps return to this matter and press it at Third Reading. I beg leave to withdraw the amendment.
moved Amendment No. 34:
Page 17, line 46, at end insert—
"( ) The Consumer Panel must—
(a) as soon as practicable after the end of the period of twelve months beginning with the commencement of this section, and
(b) as soon as practicable after the end of each subsequent period of twelve months, prepare a report on the carrying out of their functions in that period.
( ) The Consumer Panel must publish each report—
(a) as soon as practicable after its preparation is complete; and
(b) in such manner as they consider appropriate."
On Question, amendment agreed to.
[Amendment No. 35 not moved.]
Clause 16 [Membership etc. of the Consumer Panel]:
[Amendments Nos. 36 to 42 not moved.]
Clause 17 [Committees and other procedure of the Consumer Panel]:
[Amendments Nos. 43 to 46 not moved.]
Clause 24 [Training and equality of opportunity]:
My Lords, I raised this matter at the Committee stage. If the object of this Bill is to bring together telecommunications and broadcasting, it seems a little lopsided, to say the least, that the training provision applies solely to broadcasting. To be fair, the Minister said that she was sympathetic to the aims of the amendments, but Ofcom cannot be given any power under the regulatory regime permitted by EC communications directives to impose any obligations in this area on communications providers.
That seems a little strange, but, not being particularly knowledgeable in the field of European directives, I consulted the Communication Workers Union. I said that this could not be right, and asked it to provide me with some ammunition. It furnished a couple of documents, including a Green Paper from some time ago, which said:
"Consideration in this context must also be given to the need for retraining and redeployment of employees as the traditional telecommunications sector adapts to a competitive environment".
It may be that there is scope for doing that under European directives, in which case perhaps my amendment could be accepted. If, on the other hand, I am wrong, and the Communication Workers Union is wrong, if the Government accept that it is a good idea that communications workers are trained, how will they find a way around the problem? I beg to move.
My Lords, I am grateful to my noble friend Lord Gordon for giving us sight of the European documents that he mentioned. I have no doubt that they are representative of the views of the European Commission and the European Information Society at that time. Indeed, no-one doubts the importance of training, nor that companies have an important role to play in the teaching and learning process.
In the UK, a new set of sector skills councils is being created to lead the skills and productivity drive in industry and the business sectors recognised by employers. I am pleased to say that the sector skills councils of relevance to the communications sector are among the first to be fully licensed by the Government: eskills UK, with a sector coverage of IT, telecommunications and contact centres, and Science, Engineering, and Manufacturing Technologies Alliance, covering engineering, manufacture and some science occupations, received their licences on 8th April. The audio-visual industries are represented by the existing Trailblazer sector skills council. It may be that the Commission's thinking may have developed further since 1996. In any event, the directives which we have now implemented and work within, were agreed last year, following a comprehensive review of Community regulation of the telecommunications sector, which commenced in 1991. As we explained earlier, it would not be compatible with that framework to place any training-related obligations on communications providers as such.
We are bound by the limitations of the directives, and the simple fact is that Ofcom will not be permitted to impose any obligations of that type on communications providers. The directives limit the type of obligations that can be imposed on providers of electronic communications. The scope of the general obligations, which apply to any provider, is set out in Clause 48. In very broad terms, it covers such matters as consumer protection, service, interoperability, network access, availability of service in the event of a disaster, protection of health and compliance with international standards.
There is no provision for any kind of obligation in relation to training, and member states have no discretion to add other kinds of conditions that go beyond those allowed by the directives. Thus, any duty on Ofcom to promote training in those industries would be legally ineffective. I hope that in light of my remarks, the noble Lord will feel able to withdraw the amendment.
My Lords, I will obviously withdraw the amendment at this stage. However, it is regrettable that we do not have an obligation on Ofcom to do something to encourage training—not to provide it or even to fund it but simply to encourage it. However, I must accept the Minister's assurance that we are simply not allowed to do so by Europe. However, I do not regard European directives as having come down from Mount Sinai by second post after Moses. This does not appear to be a particularly sensible directive and I hope that at some point in the future we will find time to change it. I beg leave to withdraw the amendment.
My Lords, in moving this amendment, I shall speak also to Amendment No. 49.
In Committee, the noble Lord, Lord Carter, drew our attention to the phrase "fair"—this is an odd word—treatment. We were not sure what it meant. I remember the noble Baroness, Lady Blackstone, saying that it was a known concept but I have never come across it previously. That is when the alarm bells start to ring. The phrase "equalisation of opportunities for" gives a much better idea of the normal practice with regard to disabilities. In this area of civil rights one invariably must change at least the way in which one behaves to give civil rights to someone. For example, the idea of reasonableness that is enshrined in the DDA means that one must make a reasonable adjustment. I do not know whether being fair involves making a reasonable adjustment; my point is that simple.
If we added the phrase "equalisation of opportunities", that would be in keeping with the approach. It is reasonable that one should, for example, provide ramps or change furniture in an office for someone in a wheelchair. I also refer to the concept that is accepted by the "Access to Work" scheme of providing a reader/writer for dyslexics. Those are examples of what is done to get people with disabilities into the workplace.
I do not know how far the concept of fairness addresses that. The situation is very worrying. What does being fair mean? To be fair to whom? Compared with whom? I do not know what is meant. There is no clarity.
Amendment No. 49 states:
"between disabled persons and persons who are not disabled; and . . . between persons who have had disabilities and persons who are not disabled and have not had any disabilities".
Those lines were originally in the draft Bill. I should be less worried about the concept of fairness if those lines were in the Bill. It would not be as good but it would still be better.
The amendments are intended to clear up an area in which we are creating confusion. We do not seem to be in alignment with earlier legislation. I refer to the idea of reasonable adjustment. I suggest that the Government should agree to the amendments because the current wording in the Bill simply adds confusion. I beg to move.
My Lords, I can be extremely brief. I understand from some signals that the Government will look extremely positively on this amendment. We are grateful to them if that is what they will do. All we have done—I say "we", but I should refer to the noble Lord, Lord Addington, because I am simply an interested bystander—in Amendment No. 49 is to put back in the Bill the words that were in the draft Bill. We never understood why they were removed in the main Bill. I understand that the Government now intend to put them back, which is a very good idea.
My Lords, I rise to support Amendments Nos. 48 and 184, to which I have added my name. I confess that when my attention was first drawn to the wording of Clause 24 with regard to employment of disabled persons, I was somewhat taken aback. "Fair treatment of disabled persons" sounds condescending to me, not to mention the fact that it could be used to hide a multitude of sins. It would be virtually impossible to prove that an employer did not treat a disabled person "fairly", as it refers to a process—that is, "treating fairly"—rather than an outcome which can be easily referred to, to examine whether or not the employer satisfied the commitment to secure,
My Lords, I hope that I will rise to everyone's expectations. Amendment No. 48 would require Ofcom to take all such steps as it considers appropriate for promoting the "equalisation of opportunities" for disabled persons in relation to employment with broadcasters. Similarly, Amendment No. 184 would require Ofcom to include conditions in the licences of broadcasters to whom Clause 330 applies, requiring them to promote the "equalisation of opportunities" in relation to employment with them. That would, I assume, be instead of the current requirements to promote the "fair treatment" of disabled persons, although the amendment could be read as requiring both fair treatment and equalisation of opportunities. That would clearly be unnecessary.
We are aware of the concern that the term "fair treatment" is not in line with the terminology used in other disability legislation. The use of the term mirrors the current obligations in the Broadcasting Act 1996 and is well understood in the context of that legislation. The obligations have served us well, and have stood the test of time. They have helped to contribute to an impressive range of measures to promote disability issues, such as the development of workshops on the portrayal of disabled people, guidance on being more inclusive of disabled people both in front of and behind the camera, and systems of regular reporting. It is for that reason that we are extending the obligations in the 1996 Act to cover all licensed broadcasters.
That said, I am aware that more recent disability legislation, such as the Disability Rights Commission Act 1999 prefers the term "equalisation of opportunities". I do not believe that the terminology makes any difference to the substantive requirements in the Bill, but I can see how it may be helpful for our legislation to be as consistent as possible with other legislation in the area. We will therefore bring forward an amendment at Third Reading to substitute our reference to "fair treatment" with the more up to date term, "equalisation of opportunities". I hope that in the light of that, the amendments will not be pressed.
The intention behind Amendment No. 49 seems to be to specify that in addition to the term "equalisation of opportunities", which is used in Clause 24 in relation to disabled persons, there should also be a reference to equality of opportunity between disabled persons and persons who are not disabled; and between persons who have had disabilities and persons who are not disabled and have not had any disabilities. I believe that that is unnecessary and, in fact, would be positively unhelpful. The amendment is inconsistent with the Disability Discrimination Act, which does not confer rights on non-disabled people.
During the debate on 15th May, it was rightly pointed out that the earlier draft of the Bill contained language similar to that proposed in this amendment. That was, of course, an error, which was discovered only after the draft Bill was published. Again, that shows the value of the extensive consultation that has taken place on the Bill.
I hope that my response has helped to clarify the position. We cannot accept the amendment, and I trust that it will not be pressed.
My Lords, as they say, a brace is quite a good haul. I thank the noble Lord for his response. I believe that we shall probably want to check his comments on Amendment No. 49, but I assume that the noble Lord's lawyers are good ones.
With regard to Amendment No. 48, I believe that everyone is now more aware of what is going on. A point of confusion has been removed and, having had those assurances from the Minister, I beg leave to withdraw the amendment.
moved Amendment No. 50:
After Clause 24, insert the following new clause—
(1) In pursuance of their duty specified in section 24(1), OFCOM may, in the circumstances specified in subsection (2), exercise the powers granted under this section.
(2) Those circumstances are that—
(a) OFCOM are not satisfied that adequate opportunities for the training and retraining of persons for employment and work in connection with the provision of television and radio services are being provided, and
(b) OFCOM are satisfied that the failings identified in accordance with paragraph (a) cannot be remedied by the exercise of their relevant powers under section 330.
(3) OFCOM may impose a training levy to be fixed by OFCOM in accordance with the provisions of this section.
(4) OFCOM shall not fix any training levy unless—
(a) at the time the levy is fixed there is in force a statement by OFCOM of the principles that OFCOM are proposing to apply in—
(i) fixing the levy; and
(ii) distributing the receipts of the levy; and
(b) the levy is fixed in accordance with those principles.
(5) Those principles must be such as appear to OFCOM to be likely to secure that—
(a) the levy is fixed in such a way as to ensure that levels of payment of the levy relate to the benefits to those paying the levy of the training and retraining to be provided; and
(b) the money received from the levy is expended in ways that relate to OFCOM's duty under section 24(1)."
The situation is really quite simple. Here is an industry which is entirely skills-dependent. I believe that that is generally agreed. The nature of those skills changes very rapidly. It is a technology-based industry. The Government have a commitment in their manifesto to encourage industries to pursue aggressive training policies and broaden their scope where possible, and the industry has done exactly that. It has an all-industry body and all-industry agreement on training. The purpose of the amendment is merely to empower Ofcom, where necessary, with backstop powers to pursue non-payment.
It is an industry where the majority pay, pay well and pay willingly but, unfortunately, where a number of backsliders—some significant and some minor—will avoid and evade the commitment which the industry itself has made. It seems entirely appropriate that Ofcom should have powers to pursue non-payers in whichever way the Government or Ofcom consider appropriate. The present situation is too slipshod and the burden falls too heavily on those who have offered and shown preparedness to pay for training. I beg to move.
My Lords, as my name is attached to the amendment, I rise briefly to support what the noble Lord, Lord Puttnam, said. I particularly endorse what he said about the present situation being altogether too slipshod. The need in this industry—perhaps above all others—for training is too obvious to be ignored. Frankly, I believe that it would be wrong if we allowed training to remain on a voluntary basis. The black sheep who default in the cause of training should be brought into line. I hope that on this occasion, if on no other, my endeavours to say something that pleases Ofcom will even commend themselves to the noble Lord, Lord Currie.
My Lords, we on these Benches strongly support the amendment moved by the noble Lord, Lord Puttnam. I should declare an interest. I have a daughter who is in the management of the BBC and who owes a great deal to the training that the BBC provided. It was postgraduate training of a very high quality. In those far-off days, the BBC carried an undue burden of training throughout the broadcasting industry. I believe it is fair to say, as the noble Lord, Lord Puttnam, indicated, that that burden is now far more evenly spread. However, some areas within the industry would require the kind of statutory compulsion provided by the proposed levy. I hope that the Government will deal sympathetically with what the noble Lord has proposed.
My Lords, Amendment No. 50 seeks to insert a new clause proposing to give Ofcom power to impose a new training levy if it is not satisfied that adequate opportunities for training and retraining are being provided and if those failings cannot be remedied by exercising relevant powers under Clause 330. The new clause goes on to indicate how Ofcom should fix the levy and how receipts of the levy should be used.
As my noble friend Lady Blackstone made clear when we debated the same amendment in Committee, we recognise the crucial importance of a well trained workforce to the broadcasting industry. Without the highly skilled workers it needs, the industry will struggle to remain competitive in the world media market place. The nature of the industry and the characteristics of much employment within it only serve to underline that stark truth.
Because of our recognition of those facts, we have introduced the new, strengthened provisions on training in the Bill. For the first time, training obligations will apply to all television and radio broadcasters who meet the threshold conditions set out in the Bill, and Ofcom will have a new duty to promote training more widely in the sector.
In Committee, we also indicated that we would consider an amendment tabled by the noble Lord, Lord Crickhowell, designed to ensure that the training requirements apply to companies which, while individually small, are part of a much larger group of companies. We have tabled amendments for discussion next week on this topic. Those provisions put the broadcasting sector well ahead of most others, and we are confident that they will deliver the intended result.
Much will depend on the licence conditions that Ofcom imposes under Clause 330 and the action that it takes under Clause 24. Following a recommendation of the ITC's programme supply review, the Secretary of State asked Skillset, the sector skills council for the audio visual industry, to establish a task force and report back to Ofcom on these very issues. Skillset and all the key stakeholders are already well advanced in their task.
It is not clear from the amendment on whom the training levy would be imposed. Thus far, we have assumed that Clause 330 would apply to the licensed broadcasters, but the aim may be to catch independent producers who are not, of course, subject to Ofcom regulation. However, that would be extremely complex to achieve, requiring a whole new layer of regulation to ensure that independent producers identify themselves and to make arrangements for the levy and introduce sanctions if producers do not pay up.
That does not mean that independent producers cannot or should not play their part in contributing to industry training. They can and they should. PACT, the trade body representing independent producers, has been operating the Independent Production Training Fund, with the support of the main broadcasters, since 1993. The Skillset task force, which I have just mentioned, is looking, among other things, at the scope for raising the current ceiling on contributions to the fund from independent producers. PACT is represented on the task force and I hope that it will make a positive contribution to the discussions. In the light of what I have said, I hope that the noble Lord will withdraw the amendment.
My Lords, in withdrawing the amendment, I want to make two points. One is that clearly I and those who agree with me are seeking some mechanism whereby Ofcom can use the significant and broad powers that it has to, as it were, encourage those who believe themselves to be taking a free-rider position on training to join the body that pays and pays willingly. The noble Lord, Lord Davies, and I tend to meet—just the two of us—in this House only about once a year. On those occasions, we discuss the engineering and construction trade industries' training arrangements. There has never been a moment of dispute. The arrangements are regarded as very valuable by those industries and seem to work extraordinarily well. I suppose that, in essence, I am seeking a not dissimilar arrangement for the communications industry. I beg leave to withdraw the amendment.
moved Amendment No. 51:
Page 26, line 31, at end insert—
"( ) Where, under contractual arrangements in place prior to the commencement of this Act, liability is established for payment of charges levied by pre-commencement regulators, such arrangements shall continue to have effect after the abolition of the pre-commencement regulators as if they applied to charges levied by OFCOM."
My Lords, no doubt because of the inadequacy of my explanation of these amendments in Committee on 15th May, the Minister was not at the time fully aware of their purpose. As the noble Lord, Lord McIntosh, was good enough to acknowledge in a letter of 2nd June, what we are dealing with in Amendments Nos. 51 and 233 is the passing on of charges which have been levied by Oftel, even though after commencement they will be payable to Ofcom.
As the Minister is now aware, the providers of masts and towers, who played a key role in the development of terrestrial radio and television services and who also license antenna space to mobile and fixed wireless operators, have clauses in all their contracts with these users to enable them to recover the charges imposed by the existing regulator. The amendments seek to ensure that the existing contractual arrangements continue to have effect as if any new charges levied by Ofcom were, for the purposes of those contracts, charges by the previous regulator.
Secondly, in Amendment No. 232, we deal with rights and obligations established by reference to definitions contained in previous legislation. As far as we could see, there was nothing in the Bill to cover existing arrangements between broadcast transmission providers and service providers, although the amendment is not limited to agreements of that kind. As the Minister knows, the agreements between landlords and the owners of towers and masts often confer rights on the operators which allow the sharing of these rights with holders of Telecommunications Act 1984 licences only. The disappearance of those licences and of the distinction between broadcasters and other providers of electronic communications networks means that key permitted-use clauses in agreements between the operators of towers and masts and their customers would be invalidated, and they would be obliged to renegotiate amended contracts with their landlords.
It appears that the Government have taken these points into consideration in their Amendments Nos. 227 to 231 and 234 to 235. We look forward to hearing their explanation of how the objectives that we outlined have been met—no doubt much more effectively than we were able to do.
However, as far as I can see, paragraph 2A of Amendment No. 227 appears to safeguard the position of persons holding 1984 Act licences, while paragraph 2B of Amendment No. 227 addresses the problem of agreements with persons holding such licences by others. We are concerned, however, with the wording of paragraph 2B(1) of Amendment No. 227, which refers to the,
"rights or obligations of a person under the agreement".
This may not cover the agreements we had in mind, in which the landlord grants a power to the operators of masts and towers to let space to third parties who hold 1984 Act licences but who are not themselves parties to the agreement.
With respect, we suggest that the amendment should make it clear that the expression "person under the agreement"—which could be taken as limited to persons party to an agreement—should be amended to,
"person referenced under the agreement".
In conclusion, there has still been no communication between the department and the operators of the towers and masts. It would have saved us time on the Floor of the House if there had been direct communication between officials in the department and those persons who are immediately concerned with these agreements. I hope that this residual point regarding paragraph 2B of Amendment No. 227 might be the subject of discussion between them before we reach Third Reading. I beg to move.
My Lords, I sought to rise early without pre-empting the debate, but no one else other than the noble Lord, Lord Avebury, is participating in the debate.
Your Lordships will recognise that the government amendments to which I am speaking at this point are an attempt to meet the representations made in Committee. The noble Lord, Lord Avebury, is doing himself a disservice when he suggests that he had not put the case sufficiently well for his amendments to be accepted. We understood the issues clearly, and we hope that we have now provided a framework in the Bill for meeting his concerns.
I am sorry to hear what he said about communications directly with the industry; the department prides itself on being as open as possible in discussions about the Bill. I do not know where the fault lies, but I doubt that it lies on our side. Nevertheless, our concern was that the issues having been raised by the noble Lords, Lord Avebury and Lord Crickhowell, in Committee, it was to those representations in the House that we directed our energies. I hope that I will be able to establish that in fact the government amendments meet the concerns to which Amendments Nos. 51 and 232 are directed.
Your Lordships will recall that certain amendments on these matters were tabled in Committee, and we indicated that the Government were sympathetic to their concerns. Therefore, I am happy today to outline our solutions. I also hope to persuade the noble Lord, Lord Avebury, that these amendments are helpful to the concerns of the transmission company, Crown Castle, which lie behind his contribution.
The Bill already makes transitional provision which is addressed to the effects which the advent of the new regime will have on private agreements. We sought input on these issues from the industry when the draft Bill was published last May, and accordingly included some provisions for such matters in the Bill—specifically paragraphs 8, 12 and 16 of Schedule 18. However, a group of legal experts—who were also advising the noble Lord, Lord Crickhowell, who is unfortunately unable to join us today—recently advised us that this provision is not wide enough. Their advice was that some of the impacts that were not caught could be adverse for the affected parties.
We have considered these concerns in drafting our amendments, which we think will be of material assistance. As it stands, paragraph 3 of Schedule 18 prevents the triggering, merely as a consequence of the ending of licensing under the 1984 Act, of any provision in commercial agreements which might cause those agreements to cease to have effect or to be capable of being terminated. However, we were advised that there are many kinds of provisions in agreements, other than termination provisions, which could be triggered by the ending of licensing. These would not be caught by paragraph 3.
We recognise that this could be a problem with serious consequences. The provisions in question might, for instance, trigger a situation of default under a finance agreement. It is impossible for the Government to know of all potentially affected agreements—much less to know in detail what is in them. We must therefore proceed with some caution.
However, we think it possible to produce an effective solution by a general substitution, providing that this general rule can be adjusted by a court if necessary, when the general approach does not properly reflect what the parties would have agreed had they contemplated the abolition of the licences. The amendments therefore have the effect that any provision in such agreements which might be triggered by the end of licensing will instead be triggered by a long-term suspension of the right to provide services. This seems to be the nearest equivalent in the new regime which the Bill will inaugurate to the revocation of a licence in the old regime.
In many cases, this substitution will be sufficient to prevent any seriously adverse consequences from the ending of licensing. Nevertheless, substitution of the most nearly equivalent event will not always be the right solution. We have therefore allowed for the possibility that any party to such an agreement can apply to a court for a direction that this substitution is not to be made, or is to be made only with such modifications as the court thinks right in all circumstances.
We believe that this strikes the right balance. I hope that noble Lords who have taken a keen interest in these issues will find that the amendments effectively address the general concerns about agreements that are conditional on licensing which motivated in particular the amendments tabled by the noble Lord, Lord Crickhowell, in Committee.
As regards Crown Castle's agreements, the amendments will be helpful. They will ensure at least that the ending of licensing under the 1984 Act will not lead to automatic termination or invalidation of any of its agreements, which was one of its significant concerns.
I recognise that this will not meet every concern which the noble Lord has so clearly explained and that on many other points it may be necessary for Crown Castle to modify and update its agreements for the new circumstances. But, as I have emphasised, it is not possible for us to know all of the circumstances addressed by private agreements. Accordingly, we have to be cautious in making what after all is permanent provision once enshrined in the legislation.
Where the parties to such agreements are not constrained from adjusting them to suit the new circumstances and can equitably do so, it is not likely to be appropriate to make general statutory provision which may have unforeseen and adverse impacts in a particular case.
In the light of these amendments, therefore, I hope the noble Lord will feel we have addressed the issues raised by himself and the noble Lord, Lord Crickhowell, in Committee. We will examine the issue he has raised with regard to third parties and if we can improve the amendments to take it on board, we will do so at Third Reading. On that basis, I hope that the noble Lord will consider that the government amendments to be moved on Report meet the proper concerns that he has expressed.
My Lords, I thank the Minister for that helpful reply, particularly for his undertaking to examine the point I made about paragraph 2B(1) of Amendment No. 227. Provided we can be sure that the consideration of that problem is undertaken before Third Reading and that any changes in the wording of that paragraph are agreed between the department and the industry before that stage, I am happy to withdraw the amendment.
moved Amendment No. 52:
After Clause 28, insert the following new clause—
(2) In pursuance of its duty under subsection (1), OFCOM may—
(a) issue such directions as they think fit to the Commission, and
(b) impose penalties in accordance with subsections (3) and (4).
(3) OFCOM may impose a penalty on any party to the Code if that party has, in the opinion of the Commission, breached the terms of the Code.
(4) A penalty under subsection (3) is to be such amount not exceeding £500,000 as OFCOM determine to be—
(a) appropriate; and
(b) proportionate to the breach of the Code in respect of which it is imposed.
(5) In this section—
"the Code of Practice" and the "Code" mean the Code of Practice issued by the Press Complaints Commission in December 1999 and any subsequent revision of that Code (including any such revision of the coming into force of this section),
"a party to the Code" means any person engaged in the publication of a newspaper or magazine who has agreed to comply with its provisions, and
"Press Complaints Commission" and "Commission" mean the body first established in 1991."
My Lords, in some ways I feel as though I am about to lead the Charge of the Light Brigade in moving the amendment. After all, the noble Lord, Lord Currie, is on record as saying that he does not want powers over the Press Complaints Commission. The Minister, Tessa Jowell, says that she is against state regulation of the press—a noble declaration. I am sure that she is against murder of the first-born and is in favour of motherhood and apple pie, but that has nothing to do with what is being proposed in the amendment. I take confidence in the thought that my reading of history reminds me that the Charge of the Light Brigade captured the Russian guns—so let us go on.
Looking back over the past 10 years, it is interesting to see just where we are in the relationship between Parliament, the politicians and the printed press. Ten years ago, the print press was in the "last chance saloon". The Calcutt committee had recommended that unless it mended its way, it should be supervised by a statutory tribunal. Clive Soley had introduced the Bill on press freedom and responsibility in another place. A report from the National Heritage Committee had called for a press ombudsman on privacy law. The possibility of an incoming Labour government certainly concentrated the minds, too, because every Labour government since the war had initiated either a Royal Commission into the press or a departmental inquiry into its behaviour. Yet there is no doubt who has left the "last chance saloon". It is the politicians rather than the press. It is still there, drinking gaily and with abandon as ever.
This morning I attended a meeting with the president and CEO of the United States' public broadcasting service, Pat Mitchell. The noble Lord, Lord Sheldon, was there and he made an observation which I am sure he will not mind me repeating. He said that the watershed in the relationship was reached when the present Prime Minister, as Leader of the Opposition, travelled half way around the world to address a management conference of News International. And we all know what happened next.
The relationship between the media owners and this Government is a depressing one. A senior journalist told me that he was once telephoned by one of the rather aggressive No 10. spin doctors complaining about the contents of an article. After some time, the journalist said, "If you don't like it, you should talk to my editor", to which the spin doctor replied, "We don't talk to editors, we talk to owners", and slammed down the telephone.
It is not quite true because the relationship is also cosy with the editors, too. As someone who has an association with a lobbying company and therefore has to fill in great detail about what I am doing and what is being done, a few years ago I asked how many visits Rupert Murdoch had made to 10 Downing Street. I recall that he had made five as against one for every other media owner. Those meetings take place with no one knowing what happened, what was agreed or what deals were done. I believe that it is an unhealthy relationship. I would prefer the relationship between journalists and politicians to be the same as that between the dog and the lamp post. When they get any closer than that, there is danger.
My reason for moving the amendment was instigated in part by the evidence given by the newspaper proprietors to the Puttnam committee. Anyone reading it or having attended will know that it was churlish and defensive—"Why are we here? What has this got to do with us?". When reading the evidence given recently to the DCMS committee, one finds the same attitude with the noble exceptions of the editors of the Guardian and the Independent. There is a feeling that it is none of Parliament's business. I begin from the basic principle that in a parliamentary democracy no individual or organisation is beyond the scrutiny of Parliament. Therefore, I believe that we have a right to discuss how our free press defends its own freedom.
I was attracted by the discussion in the Puttnam committee that the print media could well come under the accredited self-regulation that is being encouraged for other parts of the media. When they say that the Bill is about the electronic media, I would point out that it is a communications Bill. It is not an electronic communications Bill or a broadcasting Bill; it is a communications Bill. In any case, convergence is bringing the print media into the electronic media. I attended a seminar addressed by the editor of the Guardian when he said that the newspaper now has more readers world-wide reading it on the Internet than are buying the printed version. So convergence will bring the print media into this debate.
The proposal before the House—the issue has been discussed elsewhere—is not the slippery slope to state regulation described by one of the red tops in one of its less hysterical editorials. What I and others are after is an effective and respected Press Complaints Commission. It is no use saying, "We already have that". Journalists as varied in experience as Alan Rusbridger and Andrew Neil have stated recently that the PCC does not yet have the respect and confidence that it should. I have said previously that a target to aim for is that the Press Complaints Commission should have the same respect within its industry and by the general public as the Advertising Standards Authority. It is not yet there.
I have great respect for the noble Lord, Lord Wakeham. However, for much of his term of office he seemed too often to be the apologist for the media rather than the regulator. I have said to the new chairman, Christopher Meyer, that he must beware of becoming the PR man for the press. One does not see the chairman of the Advertising Standards Authority rushing to defend every dodgy advertisement. The chairman of the Press Complaints Commission must be the regulator far more than hitherto.
In two important speeches, Christopher Meyer has suggested improvements. The DCMS committee's recent report suggested others. This flurry of activity has coincided with parliamentary interest. It is important that we do not lose sight of the issue once the legislative spotlight is turned off. That is why I wish to have left in the Bill a small power for Ofcom. We cannot continue to be stressed by the state of our press without stating what must be done about it. I read with great pleasure the wonderful interview by the noble Lord, Lord Deedes, in the latest edition of the House Magazine. He says:
"We journalists were pretty respectful towards the politicians in my day. I wore striped trousers and a black jacket and approached MPs as if they were superior beings".
Those days are long gone. He also speculates that with the current press we would probably have lost the First World War because Lloyd George's philanderings would certainly have found their way into the News of the World. By the same token, we would have lost the Second World War because Jeremy Paxman would have exposed Churchill's drinking habits long before he got the chance to make any of his famous speeches.
I want us to consider this matter seriously without the canard that those of us who put forward the proposal are against press freedom. I questioned the noble Lord, Lord McIntosh, after recent research by the University of Cardiff demonstrated massive public confidence in electronic news which had some statutory guidance but massive lack of confidence in the print media which did not. With great casuistry, the noble Lord was on his feet saying, "You want the same regulation for the print media as for the electronic media". That is good debating but it does not address the issue. Of course, I do not believe that newspapers can have the same responsibilities imposed upon them.
I was impressed by testimony from the chairman of the committee, the noble Lord, Lord Puttnam, about his father and the background in journalism. Journalists should worry about standards and freedoms. It struck me as impressive that the 275 editors of the Murdoch press came freely and independently to the same view about the Iraq war. That is the kind of worry as regards consolidation and genuine press freedom.
Clive Soley drafted the amendment. Unfortunately, because of the guillotine in another place it was not debated. He pointed out that the history of press regulation shows a pattern of press abuse, followed by threats of legislation, followed by a period of restraint before another period of abuse. He said that his recommendation is designed to provide a regular check on the effectiveness of press regulation: it is that Ofcom, as a regulator, can review and report periodically on the effectiveness of the self regulation of the press.
That is what we suggest. I do not believe that it would be an onerous duty. In carrying forward the programme he has announced, it would give Christopher Meyer some guarantee that someone was still watching. As Pat Mitchell reminded us at a meeting, democracy and a free press share the same fate. It is important that within our country and our democracy we have a press that is respected by the public and provides the public with the kind of news and opinion they deserve.
My Lords, the noble Lord suggested that he might be leading the Charge of the Light Brigade. Reading his new clause, I thought that it was a proposal to nationalise my old job. I think that I was probably better off out of it before that came about.
As the House will know, I was chairman of the Press Complaints Commission for over seven years. It is not my objective today to defend every action of the PCC or to talk much about that. However, even the critics of the PCC recognise that over the past 10 years standards have improved substantially both in the press and the PCC. If the House wants a good example of that, the Select Committee in another place which reported recently—it was somewhat critical, wanting a privacy law and so on—stated that it believed that standards had improved in the press and the PCC. I recognise that there is a long way to go.
My Lords, I have long since passed the day when I seek to pass judgments of that kind. I was quoting from the judgments of others. The one thing I learned when I was at the PCC was not to give condemnations of anyone without hearing the arguments on both sides. Of course, every newspaper I had to deal with had occasional lapses in standards. If there were no lapses in standards, there would be no need for a PCC. I believe that for the past 10 years standards have improved and I see no reason why they should not continue to improve. Indeed, I had to deal with a number of attempts, akin to this amendment, to deal with such issues and I always welcomed them. I took the view that they were welcome opportunities so long as people did not inhale too deeply what was being said. They were helpful to the PCC because they enabled it to show the industry that there was concern about standards and it could use that publicity as a means of trying to raise standards. I certainly did that on a number of occasions during my time as chairman.
Nevertheless, my judgment remains that this proposal has many more negatives than pluses. I shall try to explain why. I draw a clear distinction, as I believe the Government do in the Bill, between the kind of regulations that one needs for radio and television—a licensing system—because of the limited spectrum, although I wonder for how much longer, in the years to come, it will be possible to maintain that distinction. At the moment, that is the position and the Bill seeks to regulate it.
On the other hand, newspapers do not need licences; they are part of a free society. On one occasion, when Home Secretary, Jack Straw referred to the freedom of the press as a manifestation of the freedom of expression under the Human Rights Act. I disagree fundamentally with the noble Lord, Lord McNally. I do not believe that there is, in practice, a half-way house. Either the press is free or it is statutorily controlled. Co-regulation and accredited self-regulation are another way of controlling the press through the law. A body such as Ofcom, which, in effect, is run and financed by the state, ultimately would have to decide whether a newspaper was responsible when that newspaper might well be judging the position of people in power. Ofcom could hold that the newspaper was irresponsible. I do not believe that Ofcom should be put in that position. In my view, that is not compatible with a free press.
That is at the heart of the matter. Let us assume that it happens. What does Ofcom do about it? When it judges that the press or the PCC are irresponsible, does it intervene? Does it ask the Government to intervene? If not, it will find itself defending actions in the courts. If that happens that will be the end of a free press in this country.
On a practical level, the PCC does its job by common-sense resolution of disputes. Not everyone is happy with the outcome of such resolutions, but to create a body to which the PCC is accredited is to create an appellate body to which disgruntled complainants will run with their grievances. At one fell swoop the system becomes legal and unwieldy. The true losers will be the vast majority of citizens of this country who currently receive good and speedy redress from the system of self-regulation.
My Lords, that is nowhere in the Bill. That is the point. If a complainant receives an unfavourable judgment from the Press Complaints Commission, and Ofcom, under this resolution, does not take steps to deal with that, in my view the person could go to court to seek to say that Ofcom was not carrying out the statutory responsibility that the noble Lord, Lord McNally, would like it to undertake. As a result, the complainant would seek damages and Ofcom would find itself in the courts every time someone was dissatisfied with an appeal. That is the danger that I see. Therefore, at one fell swoop the system would become legal and unwieldy. As I said, the true losers would be the majority of citizens who currently receive good and speedy redress from the system of self-regulation.
At the moment the PCC works, not perfectly—I have never said that it does—but pretty well because of a financial and a moral commitment of the publishers to self-regulation. If the amendment, or something similar, is part of the law of the land, and the press was brought under the ambit of statutory control, would they continue to support the whole business? I fear not. So we may find that at one fell swoop—as regards the ordinary citizen, who does not have the odd £250 million necessary to take an action in the courts—we would go from an imperfect system of self-regulation, with all its shortcomings, to a system, in practice, of no regulation. That would be a very bad deal for the citizens of this country.
My Lords, I oppose the amendment tabled by the noble Lord, Lord McNally. It would confer a duty on Ofcom to provide for the enforcement of the Press Complaints Commission's code of practice. Noble Lords have already said today that last Monday the Culture, Media and Sport Select Committee published its report into privacy and media intrusion. The committee was charged with the task of assessing the effectiveness of the PCC and making recommendations as to its improvement. In proposing that the Government reconsider their current position on this issue, the committee recommended that they should undertake full and wide consultation prior to any legislative change. We do not believe that legislative intervention would provide a sensible or an adequate solution.
My noble friend Lord Wakeham gave cogent reasons why the amendment would not work and why it should be resisted. It would be otiose to attempt to repeat those reasons. We do not suggest—nor did my noble friend to any extent—that the Press Complaints Commission is perfect, but we believe that self-regulation is the most effective mechanism through which our press can be scrutinised. We therefore welcome Sir Christopher Meyer's invitation to review the progress of the Press Complaints Commission in a year's time. The freedom of the press is a fundamental democratic right that should be safeguarded. We do not support legislative change in that area and, therefore, oppose the introduction of statutory control of the press through the back door.
We want, of course, effective self-regulation. I believe that that is what we all want. The noble Lord, Lord McNally, made reference to the Advertising Standards Authority. I am minded to suggest that it would be helpful if the PCC took a leaf out of the self-regulatory book of the advertising industry and of the Advertising Standards Authority. Perhaps that is not a fair comparison; however, it is an irresistible suggestion because, as the noble Lord, Lord McNally, rightly said, the Advertising Standards Authority commands respect and confidence which must be what Sir Christopher Meyer seeks to achieve on behalf of the Press Complaints Commission. Let us give Sir Christopher a chance.
I want to refer to the Advertising Standards Authority. I am a member of the council of that authority—nice things have been said about the authority for which I thank noble Lords—and I have worked most of my life in the newspaper industry which the amendment addresses.
Why does the ASA work well, and why is it viewed as working well, yet the PCC seems to convince only itself that it is absolutely perfect? The noble Lord, Lord McNally, is right to point out that the kind of rhetoric used—I do not refer to the speech of the noble Lord, Lord Wakeham, but to what was said to the Select Committee—is out of all proportion to the reality. The press does not seem to be able to look at the situation rationally. I believe that that is due partly to the different cultural situations in the two organisations. By and large, in the advertising industry the Advertising Standards Authority's verdicts are accepted. Sometimes people do not like individual verdicts because with an adverse ASA ruling one cannot win an advertising award. It is an amazingly effective sanction, which the press might like to think about.
My experience in the press is that although the top bods will pay plenty of lip service to the PCC, deep down among the practitioners at the coalface the PCC is seen not as something necessary to the press and to its furtherance but as an obstacle; as the enemy, something to be got around and ignored. On too many occasions it is ignored.
There have been so many last chances for the press on the issue that one is reluctant to provide another. But the key if the press wishes to avoid the kind of regulation proposed in the amendment is that it must try to internalise the PCC code. Journalists must not be taught that this is an adventure playground in which anything goes and one gets away with whatever one can. They must not be allowed to treat ordinary human beings as though the human soul can be disregarded by journalists, and as though they are freed from the ethical constraints on the rest of us just because they are a free press.
Of course I am in favour of a free press, as we all are. Having spent many years in the industry, I say in all seriousness that if that does not happen swiftly and Chris Meyer's initial work does not turn into something more concrete that the newspapers take on board, then if the McNally amendment does not succeed today, it will succeed in some Parliament coming soon. I would rather avoid that, but the press has its fate in its own hands.
I strongly support and echo my noble friend Lord Lipsey, and to an extent the noble Baroness, Lady Buscombe. We owe a debt to the noble Lord, Lord McNally, for raising the issue, which needs a great deal more discussion and deserves to be raised at greater length in the House and more often, because it is at the core of civil society.
I do not think that the media in this country have served civil society well in the past 10 years. The noble Lord, Lord McNally, was good enough to mention that my father was a journalist. My father retired and died deeply disappointed with what he regarded as a noble profession. Auberon Waugh once said that legitimate journalism was whatever one could get away with. I suspect that many people's interpretation of the PCC code is precisely that. My noble friend Lord Lipsey does us all a favour in saying that the profession must internalise its code of practice, not find ways of avoiding and evading it.
I have one more point. I have listened many times to Alan Rusbridger—whom I admire greatly—talking about the development of a responsible press. One of the arguments he makes in favour of the press is how extraordinarily difficult it is to edit a daily, or indeed probably a Sunday newspaper. It is a confusing, complicated and rather chaotic business, and of course at times mistakes are made.
I have total sympathy with that position, but having spent the past six years working within the machinery of government, I have to tell Mr Rusbridger and every other editor that if they think their lives are difficult, complicated and confused, they should try being the Secretary of State of a large department. It would be a good thing if editors could internalise, but the same type of error is possible within the machinery of government as every single day of the week occurs in the production of their daily newspapers.
I would like to say a brief word in support of my noble friend Lord McNally. He made a brave speech in the circumstances, as he may find out in due course when he gets the mud treatment from the press.
In mid life I spent a number of years not as a professional working politician but as a professional regulator. I was chairman of the Advertising Standards Authority—a totally voluntary, self-regulatory non-statutory body—and then the regulator of commercial television with the Independent Broadcasting Authority. I have a few brief words of advice for the noble Lord, Lord Currie, whom we wish well in his new role, about the conclusions I drew from that episode in my life.
I am grateful for the nice things that have been said about the way in which the Advertising Standards Authority has established its reputation. The reasons are simple: first, the advertising industry faced the threat of statutory regulation if it did not mend its ways some years ago. Secondly, the arrangements it made had some crucial elements for any form of effective self-regulation that the Press Complaints Commission could usefully study.
First, it should have an automatic self-financing arrangement for its funds and should not need annually to go around the people it is to regulate with a begging bowl, which so often happens with such arrangements. The Advertising Standards Authority is funded by a mechanism, the Advertising Standards Board of Finance, which is automatic in terms of a levy on display advertising. Secondly, it must have effective sanctions. The Advertising Standards Authority does have effective sanctions that bite if necessary. Thirdly, it must have a board on which the lay element is the majority element. Those were the secrets of the Advertising Standards Authority's success.
The Independent Broadcasting Authority was a statutory body because it had to be responsible to Parliament for the use of a scarce national resource: the spectrum. But as far as possible, the tradition of the Independent Broadcasting Authority, particularly on the advertising side but also on the regulating of standards, was as far as possible to be a self-regulatory arrangement with the statutory element a last resort.
I am afraid I do not share the optimistic view of the noble Lord, Lord Wakeham, that there has been a dramatic improvement in press standards over the past decade. I am glad that the new chairman of the Press Complaints Commission is conducting a review of the way it operates. He would do well to look seriously at its internal arrangements; and some of the experience of the Advertising Standards Authority might be highly relevant in enabling it to avoid the deep distrust that now operates about the way it carries out its duties.
There is a great dilemma in a free society about the press's responsibility to the nation. The poet Humbert Wolfe made a famous remark between the wars, which might be relevant today:
"You cannot hope to bribe or twist, thank God! the
But, seeing what the man will do unbribed, there's no occasion to".
My Lords, the noble Lord, Lord McNally, spoke of the events of 10 years ago. In conjunction with my noble friend Lord Wakeham I had a small walk-on part in those days. I listened to my noble friend's description of the course of events since those days and his conclusions, and I concur with both. The noble Lord, Lord McNally, made comment on the comparative number of times Mr Murdoch has visited No. 10. It might have been regarded as the sub-text of his entire speech.
No. 10's instincts for hospitality are a matter for No. 10. I will only remark that Attlee, who was so dismissive of the media that he could be persuaded by his press secretary Francis Williams to put a newstape machine into No. 10 only on the grounds that he would have up-to-date news of the cricket scores, has himself had a good press down the years from historians. Those facts may not be disconnected.
My Lords, I am chairman of the Broadcasting Standards Commission. We also have a function not that different from the PCC in relation to broadcasting. That is the work we do when we receive complaints about breaches of privacy or unfairness in television programmes. We are occasionally compared in our methods and approach to the PCC. I do not want to develop that argument too far, but it is good that the issue is back on the agenda. If I were the chairman of the PCC I would look hard at how the Advertising Standards Authority and the Broadcasting Standards Commission work to see whether any lessons might be learned. Both organisations are judged to do their job not too badly—although I speak as the chair of one of them—in relation to the PCC, which is subject to much criticism despite the robust defence of it by the noble Lord, Lord Wakeham.
The PCC could look at other models. If it moved a little, that might take the heat out of the argument for statutory regulation of the press, which none of us wants. If the PCC can meet the public need voluntarily, through self-regulation, nobody would want statutory regulation, because it involves all sorts of problems.
My Lords, I commend the noble Lord, Lord McNally, for introducing the subject. It has been below the surface for some time and there has been general concern about it. Six or seven years ago, while at the Broadcasting Standards Commission, I went to a conference organised entirely by the press. The concern expressed there by members of the press about the rapidly falling standards of their profession was extremely worrying.
One should also be grateful to the noble Lord, Lord McNally, for spelling out in his amendment the strength of the additional powers that the new regulator, Ofcom, would have if there were breaches—not least the power to impose considerable fines.
Nevertheless, I join the noble Lords, Lord Puttnam and Lord Lipsey, in their approach. We have a new chairman, Chris Meyer, who is extremely able. The Press Complaints Commission has always had extremely able chairmen adapting to the times. At this stage, I would rather give the new chairman some time. He might well be making recommendations about the sort of changes debated, the codes for the advertising industry and so on. I congratulate the noble Lord, Lord McNally, for raising the issue.
"Storm'd at by shot and shell". because they rode up the wrong valley. I think that that is what happened today.
The noble Lord, Lord McNally, will in no way be surprised to learn that the Government believe that maintaining the freedom of the press and effective self-regulation is preferable to any form of statutory control. I shall discuss the effect of the amendment shortly. We cannot support the idea of giving Ofcom powers over the newspaper industry's code of practice, which is overseen by the Press Complaints Commission. That would destroy the principle of press regulation and is an unnecessary means of ensuring compliance with the industry's own principles of behaviour.
There has been a lot of talk about the Culture, Media and Sport Select Committee last week. But I remind the House that the Select Committee's report was about privacy and media intrusion, not specifically press intrusion. On reading the report in detail, I find that not only did the Select Committee not follow the path proposed by the noble Lord, Lord McNally, even for the media, but its recommendations on Ofcom's involvement were almost entirely on broadcasting. The only occasion when they suggested a relationship between Ofcom and the print media was in respect of a media scrum. In a media scrum it is very difficult to distinguish between broadcast journalists and press journalists, so there is some excuse for that relationship. That is why I think that the noble Lord, Lord McNally, quoted from the evidence to the Select Committee rather than its conclusions. It is easier to find evidence that you agree with than it is to find conclusions of the report that you agree with.
We have listened carefully to noble Lords, particularly the noble Lord, Lord Wakeham, who talked about changes in the past few years. I am afraid that the noble Lord, Lord Wakeham, was described as complacent. All of us would agree—and he did, too—that there is still a long way to go in achieving the standards in print media that many wish to see. But I pray in aid of the Press Complaints Commission the issue of witness payments, which was raised in the House recently. In March this year the Press Complaints Commission strengthened its code on witness payments. There is evidence that, perhaps for only a short time, the situation may be improving.
I shall now discuss the wording of the amendment. The noble Lord, Lord McNally, seeks to convince the House that we should examine a report on the effectiveness of press regulation rather than introduce press regulation in the amendment. The amendment does more than that, as the noble Lord, Lord Wakeham, indicated. Parliament considers the effectiveness of press regulation, as the Culture, Media and Sport Select Committee has done, but it has not recommended a role for Ofcom in press regulation, and we agree with that.
Under the terms of the amendment, the industry's code would remain voluntary. The vast majority of newspapers sign up to the code of practice. Only a tiny percentage of small, independent publications have chosen to opt out. But the amendment provides that Ofcom would be required to enforce the code and have power to impose fines of up to £500,000. How does that square with a voluntary code? If a government-inspired organisation such as Ofcom starts to impose fines, surely the immediate reaction of the worst end of the press will be to opt out of the Press Complaints Commission. Where would Ofcom be then? I cannot think why an editor would voluntarily sign up to a code that meant to epitomise self-regulation if it were to be enforced by Ofcom, a state regulator.
There are many issues about the transparency of the code's operation. People fail to recognise how the Press Complaints Commission seeks to make the terms of the code more available. I welcome this debate and am grateful to the noble Lord, Lord McNally, for raising the issue. We should learn from the debate that the Press Complaints Commission is under a constant obligation to itself and the people of this country to improve the code and its enforcement. I agree very much with what the noble Lord, Lord Lipsey, said about that. I agree with the noble Lords, Lord Lipsey, Lord Dubs and Lord Puttnam, that there are lessons to be learned. I believe that Sir Christopher Meyer is learning those lessons. I think that he will learn from the debate today. Although I am grateful for the speeches made, I do not believe that the House should accept the amendment.
My Lords, as I explained, the amendment is identical to that tabled by Clive Soley in the Commons, which could not be debated because of the guillotine. I half expected that the Minister might accept the amendment so that it could return to the Commons and Clive Soley could have his debate. Overcoming that disappointment, I was very pleased by the summing-up of the noble Lord, Lord McIntosh. All too often, I fear, Ministers have sounded like the school sneak rushing to the proprietors saying, "Look, aren't we good boys? We are against statutory regulation". The balance should involve to a much greater extent Ministers telling the press to clean up its act.
I shall comment briefly on the gypsy warning that I received from the noble Lord, Lord Thomson. I can tell him that I have cancelled my subscription to Asian Babes and to my local massage parlour. I now live a life of such monogamous heterosexuality that I would qualify to be a C of E bishop. The Sun will search my dustbin in vain. The explanation could also be advancing age.
I am pleased with the tone and the contributions today. I wish to thank the noble Lord, Lord Lipsey, a practising journalist, in particular. There is a need for the cultural change for which he called, and for the press to establish its own ethical standards. I welcome the comments made by Sir Christopher Meyer to the Culture, Media and Sport Select Committee. He said: "Come back in a year's time and see what progress we've made". That is a good idea. Since I started with the Charge of the Light Brigade, let me finish with the Terminator—"we'll be back". I beg leave to withdraw the amendment.
moved Amendment No. 54:
Page 66, line 40, leave out from "that" to end of line 9 on page 67 and insert "the terms on which a person is provided with anything required by the universal service order do not require him—
(a) to pay for an unnecessary additional service; or
(b) to pay, in respect of anything required by the order, any amount that is attributable to the provision to him of such a service.
( ) The references in subsection (3), in relation to a person, to an unnecessary additional service are references to anything the provision of which—
(a) he has to accept by reason of his being provided, at his request, with something required by the order ("the requested service"); and
(b) is not necessary for the purpose of providing him with the requested service."
My Lords, in moving Amendment No. 54, I shall also speak to Amendment No. 55. Concerns were raised that the wording of Clause 65, dealing with tariffs for universal services, might permit more intrusive regulation than is desirable. The possibility of "gold-plating" was referred to. We indicated in Committee that we were sympathetic to those concerns and are accordingly putting forward these amendments to address them.
The provisions of the directive which this clause transposes—I refer to Article 10.1 of the Universal Service Directive—are concerned with ensuring that a subscriber wishing to be provided with any of the universal services specified by the directive shall not be required to pay for facilities or services which are not necessary or not required for the service requested.
The amendments address directly the question of the bundling of unnecessary services or facilities with the services requested. I believe that they effectively meet the concerns that have been raised, while continuing to provide a full implementation of the intention of the directive. I beg to move.
My Lords, we welcome the government amendments to this clause, which reflect amendments tabled in Committee by the noble Lord, Lord Avebury, to which my noble friend Baroness Wilcox and I added our names. The Bill, as previously drafted, incorrectly interpreted Article 10.1 of the Universal Service Directive. Therefore, we are grateful that the Government have reconsidered the proposed provision and amended it accordingly.
My Lords, we are also grateful to the Minister for doing that which was promised by his noble friend Lord McIntosh in answer to Amendment No. 102 in our names in Committee—and to see that when somebody receives anything that has to be provided under the Universal Service Directive, he is not required to pay for anything else, or to pay for anything beyond that which is strictly necessary for the provision of that service. This is a useful amendment, and we are grateful to the Government for inserting it.
moved Amendment No. 55:
Page 67, line 15, at end insert—
"( ) References in this section to providing a person with anything include references to making it available or supplying it to him."
On Question, amendment agreed to.
moved Amendment No. 55A:
Before Clause 91, insert the following new clause—
"INVESTIGATION OF CONTRAVENTION OF CONDITION
(1) Where OFCOM determine that there are reasonable grounds for believing that a person may be contravening, or may have contravened, a condition set under section 42, they may undertake an investigation.
(2) Where OFCOM decide to undertake an investigation under subsection (1), they shall give the person concerned a notice in writing which—
(a) indicates the reasons for the investigation being conducted by OFCOM;
(b) specifies in sufficient detail the condition and alleged contravention in respect of which the investigation is being undertaken; and
(c) specifies the period during which the person has an opportunity to make representations about the matter.
(3) Subject to section 95(3), the period specified under subsection (2)(c) must be a period of at least one month beginning with the day on which the notice is given."
My Lords, in moving Amendment No. 55A, I shall also speak to Amendments Nos. 56 to 64. We believe that these amendments are necessary to put in place a proper three-stage process leading up to the imposition of fines on communications providers for breaches of the general and other conditions of entitlement.
If Ofcom believes that a provider is committing a breach, the proper course of action is, first, to investigate whether this is the case; secondly, to make a decision as a result of the investigation; and, thirdly, to take enforcement action—including, where appropriate, the imposition of a fine. The clause assumes that if any provider is committing a breach, he has done so knowingly, and therefore as soon as Ofcom becomes aware of this breach it only has to issue the determination and to impose whatever penalties it chooses. But there is a three-stage process in general competition law, and it is not necessarily the case that sector regulation is easier to understand. Noble Lords who have had to read this Bill will agree that the general, significant market power and access-related conditions may cause difficulties of interpretation to the wide range of new communications providers that now fall within the remit of Ofcom.
Even under the existing regime, experience has shown that many alleged breaches of conditions turn out, on investigation, not to be breaches after all. It is unreasonable to expect providers to start remedying alleged breaches before it has been established by Ofcom that such a breach has occurred. In Committee, the Minister suggested, on 20th May, at col. 707, that attempting to replace a two- stage process with a three-stage process, as we propose, would actually result in a six-stage process. That is a misleading caricature of the amendment, because two of the stages that the Minister invented were of the serving of notices. That is an operation requiring no longer than the time it takes to draft the notices, and the Minister manages to insert a further stage by treating the process of formal investigation and the opportunity for representation as consecutive rather than concurrent, as they would be.
We do not accept that a three stage process need take much longer, or that it has had the dire results attributed to it under the existing regime, let alone under general competition law. There are rules and procedures for investigating breaches of the Competition Act 1998, drawn up by the Office of Fair Trading, known as the directors' rules. We see no reason why that should not read across into the Bill, and, to put it the other way round, we do see problems arising if there is a radical difference between the two regimes of this Bill and of the Competition Act.
Even more fundamentally, we say that there is a serious misinterpretation of Article 10 of the Authorisation Directive, dealing with compliance. Article 10.2 deals with the situation where a national regulatory authority "finds" that an undertaking does not comply with the conditions, while in the Bill that word is transmuted into "determine that there are reasonable grounds for believing". Secondly, the subject of this determination has to take what the Minister calls "remedial action", which may include the payment of substantial sums of money, at the same time as that person is making representations against the "determination", or he risks the payment of a substantial fine if Ofcom's belief turns out to be true. The undertaking has to accept that a breach has been committed and do whatever Ofcom may require to remedy it while at the same time arguing that Ofcom misdirected itself in making the original determination. That is a profoundly unsatisfactory and unfair process. It cannot have been the intention of the directive, because it defies natural law. Can the Minister name any other country in Europe which is using the term "finds" in Article 10.2 to mean a decision taken out of the blue, placing an undertaking under the obligation to take costly action within a month to remedy alleged breaches of the conditions which it denies.
The Minister said, in our debate on 20th May:
"It would be in breach of a person's right to a fair hearing and against natural justice to make a conclusive determination before allowing a person to make representations".—[Official Report, 20/5/03; col. 707.]
But that is exactly what the Bill does.
Ofcom determines that there are reasonable grounds for believing that a contravention has occurred. Secondly, it issues a notification. Thirdly, the undertaking makes representations, but at the same time complies with the notified conditions and remedies the consequences of the breaches. Fourthly, if at the end of a month from the date of the notice, the undertaking has not fully complied with the notice, Ofcom may issue an enforcement notification. Fifthly, Ofcom may take civil proceedings if the undertaking still fails to comply. The Government's process has five stages, as compared to the three in ours. Only at the fifth stage could the undertaking get a fair hearing if it has rejected the initial notice as unreasonable.
The Minister's argument, and the procedure for dealing with breaches in the Bill, fail to recognise that there will be situations, as there are now, where an issue is not clear cut, because the regulator has to judge whether something is "unfair", or because there has to be interpretation of an obligation. There are going to be cases where, after proper consideration of the representations made, Ofcom will reverse its original belief and decide that no breach has occurred. That surely the Government must acknowledge; if Ofcom were infallible, there would be no point in allowing representations. But where the company is exonerated after consideration, it will have incurred financial, competitive and goodwill losses, for which it has no remedy. Nor is there any penalty against the competitor whose complaint is not upheld after more thorough investigation. That will inevitably encourage the use of complaints by firms that come under legitimate competitive pressure.
We are not trying to make the enforcement of conditions unnecessarily bureaucratic or cumbersome, and we recognise that there may be cases where there is a serious risk to public health, public safety or national security, or where serious operational or economic problems may be caused to another provider or user, so we accept the urgency procedures of Clause 95. The Minister says these are "extremely limited", but we believe that they fully meet the danger of,
"substantial and possibly irreversible adverse consequences".—[Official Report, 20/5/03; col. 706.]
which the Minister ascribed to a genuine investigation of prima facie breaches of the conditions. I beg to move.
My Lords, these are identical to the amendments tabled in Committee, and I am sorry that the noble Lord, Lord Avebury, did not like my response then. I shall try again.
In the noble Lord's closing remarks on the amendments in Committee, he raised a point of semantics as central to his position. He suggested that the use of the word "finds" in Article 10 of the Authorisation Directive meant that there had to be an investigation by Ofcom before it could justifiably take enforcement action. He said:
"One does not find something to be true out of thin air"— or, as he now says, "out of the blue". He continued:
"Evidence must be produced. In particular, if one is examining a case that involves substantial penalties, one must allow the person who is being accused the opportunity of rebutting the allegations".—[Official Report, 20/5/03; col. 708.]
I take it that the thrust of his argument is the same now.
I quoted the noble Lord in full, because he put my own point very well. I quite agree that Ofcom should not be able to impose a penalty or require remedial action without first producing evidence of the contravention and allowing an opportunity for representations. But that is exactly what Clause 91 already requires. Enforcement action can be commenced in accordance with Clause 91 only where Ofcom has reasonable grounds for believing that a person is contravening or has contravened a condition. In many instances—probably the majority—prior investigation of the matter in issue will be necessary before Ofcom will be able to decide whether or not it has such "reasonable grounds".
The amendments would have the effect of mandating a formal investigation after Ofcom has already determined that it has reasonable grounds for believing that a breach has or is occurring. Thus on this basis it is very possible that Ofcom would have to carry out two investigations, one in order to determine whether it has grounds to carry out an investigation under Clause 91, and one under Clause 91 itself. We do not need, and should not have, statutory provision requiring Ofcom to carry out an investigation in order to determine whether it has reasonable grounds to believe that a contravention is occurring or has occurred, as these amendments would provide.
Ofcom will have the necessary investigatory powers, notably through the collection of information in accordance with Clause 132. Where it uses them, it must do so in accordance with the procedures in Clauses 134 and 135. However, in some cases, sufficient evidence may be presented at first instance—for example, in documents supplied by a complainant—or may have been obtained informally. To require a preliminary investigation in those circumstances, before a notification of contravention could be issued, would only add bureaucratic delay. Nor is there any question of the subject of Ofcom's enforcement actions not being informed of the case against them and the evidence for it. The notification to be given under Clause 91 must set out the basis for the making of Ofcom's determination, and the subject of action must be allowed a period—normally, a month, as required by the directives—in which to make representations to Ofcom on it and to take any corrective or remedial action that may be necessary, if it so wishes.
Only at the end of that period will Ofcom have power to make a final determination on whether or not there has been a contravention and, if appropriate, impose penalties or other remedies. If the subject of notification takes appropriate remedial action within the period, whether or not he also makes representations against the notification, Ofcom cannot impose any financial penalty or take any other enforcement action against them, even if they subsequently find there to have been a breach. The failsafe is in the opposite direction from that claimed by the noble Lord, Lord Avebury. Of course, in addition there is a full right of appeal to the tribunal on the merits, so there is no question of prejudice to the rights of the subject of the enforcement action under Clause 91.
I also take issue with the noble Lord on his claim, which he made last time and repeated today, that taking action on the basis of reasonable belief is contrary to the directive. Article 10 of the Authorisation Directive requires that, where the regulator finds that there is a breach, it shall notify the operators of that finding and give them a reasonable opportunity to state their views and remedy any breaches within a specified period. If they do not do so, the regulator is then required to take measures to ensure compliance, including imposing financial penalties where appropriate. In our view, it would be in breach of a person's right to a fair hearing and against natural justice to make a conclusive determination before allowing a person to make representations. As the directive requires representations to be capable of being made and remedial action to be taken following the finding, we believe that it is legitimate to interpret the reference to "find" in this context as meaning that there are reasonable grounds for believing that a contravention has occurred or is occurring.
I remind noble Lords that, under the present system, in some cases, by the time effective enforcement action could be taken, those affected by the breach could already have suffered substantial, and possibly irreversible, adverse consequences. The new provisions streamline the enforcement process. But, in order to conform with the directives, normally at least a month has to elapse between Ofcom issuing a contravention notice and the issue being finally decided, before any remedial action can be taken.
The noble Lord also suggested that the provisions of Clause 95 were sufficient to allow Ofcom to deal urgently with cases where a breach of condition by an operator was causing substantial and possibly irreversible damage. He suggested that my argument that the clause was too narrow was not a strong one. However, the clause allows, among other things, for the normal period of a month for representations to be waived. Consequently, the test for applying the Clause 95 powers is very strict, as it should be. To use them, Ofcom must have reasonable grounds for suspecting that the alleged breach in question creates an immediate risk of a serious threat to public health, safety or security, or serious economic or operational problems for other users or suppliers. So it would not be possible to use these powers in more routine cases.
Nevertheless, some of those cases could involve potentially significant, and possibly irreversible, detriments to the profitability and competitiveness of other operators and/or to consumers, even though they might not be so serious as to drive the victim out of business. In that the noble Lord, Lord Avebury, is right; Clause 95 could be used in those circumstances.
Clause 91 provides for procedures that are robust enough to minimise the risk of such difficulties and to limit delay, while giving those subject to them sufficient opportunity to defend themselves and avoid penalties.
Amendment No. 64 seeks to replace the provisions of subsections (4) to (11) of the clause with a general power for Ofcom to make procedural rules by statutory instrument. Presumably the aim here is to provide more opportunity for discussion and debate on the detailed enforcement processes and to limit Ofcom's discretion to make and amend its own administrative procedures. We do not consider that such a change would be either necessary or desirable. There has already been considerable opportunity for interested parties to comment and make suggestions in the area and we have considered the points made to us.
Ofcom needs to be allowed a certain amount of discretion and flexibility in regard to its administration of the various powers and duties which Parliament will be giving it in order to be able to respond quickly to new developments and as its experience of operating the new system increases. It will be under various obligations to ensure that its processes and the means by which those are drawn up are fair and transparent. The obligations are set out in Clauses 3, 6, 142 and 385. It is unnecessary to add to them in this way.
I wish to make a final point about the word "finds". The noble Lord, Lord Avebury, asked me whether any other country in Europe is interpreting the word "finds" as a decision out of the blue. This is not a question of Ofcom making a decision out of the blue; it must make a determination that it has reasonable grounds to believe that there is a contravention of a condition. That is the theme that I would like the noble Lord, Lord Avebury, to take back to British Telecom as a result of our debate today.
My Lords, obviously we shall discuss the Minister's careful and thorough reply with those who have advised us on these amendments, but at first sight I must say that I am wholly dissatisfied with what he has said. First, the noble Lord has not shown that there is anywhere else in Europe where the term "finds" is being used in the way envisaged in this Bill. The word suggests a process that does not require any previous investigation, which in the normal English use of the term "finds"—as in "the court finds"—means that some process of investigation has been undertaken and that that process has led to the conclusion being reached.
Furthermore, the noble Lord did not address the argument that I presented about the consequences for the person who has to take remedial action so as to avoid the possibility of a fine. The undertaking may consider that it has a very good response to the allegation. It then puts in its representations, but to avoid the possibility that the regulator may impose a fine amounting to as much as 10 per cent of turnover at the conclusion of the one-month delay, the undertaking is forced to take this remedial action which may, as I have said, be extremely costly and against which, if the regulator finds that it is not guilty of the breach as was first claimed, the undertaking has no remedy whatsoever. The operator will have paid over money, it will have taken steps which may have damaged its market position, but at the end of one month, if the regulator finds that it has not been guilty of a breach of a condition, it has no remedy whatsoever.
However, in light of the fairly thorough argument put to us by the noble Lord, we shall now take the matter back to those who advise us and consider whether we must return to the matter at Third Reading. In the meantime, I beg leave to withdraw the amendment.