Clause 4 - Functions of existing regulators

Office of Communications Bill [Lords] – in a Public Bill Committee at 11:30 am on 5th February 2002.

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Photo of Anne McIntosh Anne McIntosh Shadow Spokesperson (Culture, Media and Sport) 11:30 am, 5th February 2002

I beg to move amendment No. 43, in page 3, line 33, leave out paragraph (b).

Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

With this we may discuss the following amendments: No. 63, in page 3, line 40, leave out paragraph (c).

No. 64, in page 3, line 44, leave out paragraph (d).

No. 65, in page 4, line 27, leave out sub-section (5).

Photo of Anne McIntosh Anne McIntosh Shadow Spokesperson (Culture, Media and Sport)

I shall endeavour to follow your strictures absolutely to the letter, Miss Widdecombe, as even a short clause stand part debate would be valuable.

Amendment No. 43 would delete subsection (1)(b), which places on the existing regulators a duty to carry out all their functions in a manner that appears to them best to secure that Ofcom can carry out its functions, and that Ofcom will be able to carry out any functions that will become its functions as a consequence of implementation of the Secretary of State's proposals.

The Minister can help me. If that understanding is correct, we would strike the paragraph from the Bill because it would order the existing regulators forthwith—immediately—to subordinate their agendas and duties to those of Ofcom. One of Ofcom's functions is to lobby for changes in proposals; would that mean that none of the other regulators would be allowed to put up a counter-case or make any arguments against Ofcom or its proposals? If so, that would be an extraordinary arrangement; subordinating the existing duties of five tried and tested regulators to the convenience and possibly the whim of Ofcom. It would muzzle the existing regulators, preventing them from having any say in the evolution of the regulatory regime.

That is different from what the explanatory notes suggest, and from what the Minister said on Second Reading. He may like to gather his thoughts and say whether the Government's position has changed, or that our interpretation of what the Government said on Second Reading was incorrect. The explanatory notes state:

''Clause 4 provides additional functions for the existing regulators. These are in addition to those functions that they perform under the Telecommunications Act and the Broadcasting Acts.''

My understanding of what the Minister said on Second Reading was that the function of the shadow Ofcom is merely to prepare for the implementation of the new regime. We have discussed that at some length on other clauses. The implication of the Minister and the explanatory notes is that the relevant matters are rather run-of-the-mill and boring, such as setting up offices and recruiting staff; things that need to be done about which Parliament should be consulted.

Under subsection (1)(b), Ofcom will immediately have a much larger role and influence because of its duty to lobby and because the existing regulators will be subordinated to it. Is that what the Minister means? Paragraph (b) states that Ofcom will have the duty of carrying out all the regulators' functions ''in such manner'' as appears best to secure those functions. I believe that that could be better achieved if paragraph (b) were removed.

On page 78 of the White Paper, the Government set out the transitional implications with regard to double jeopardy. Under the current system, an issue could be examined in parallel by different regulators. The White Paper raised a legitimate question, which should have been answered by subsection (4) but was not.

We also learn from page 78 of the White Paper that, as with the existing regulators, the quality of Ofcom's staff will be vital to the delivery of its functions. I could

not agree more. We need to know not only that the staff will be of high quality, but whether they will be drawn from the five regulators. Will the number of staff rise above 1,111 for a short transitional period? If anything, we should see a streamlining and slimming down as the five are merged into one.

The White Paper also says that, in a competitive labour market, the office of communications will require managerial and financial flexibility to retain and recruit the necessary skilled and managerial personnel. However, it does not say what the relationship should be between the existing regulators and the new regulator. Paragraph (b) is unfortunate. We all accept that it will be difficult while the five regulators and the shadow Ofcom are working together, but does it mean that the present functions of the five regulators will be completely overtaken by Ofcom?Paragraph (b) alludes to that overlap when dealing with the functions of existing regulators. It states that they

''will be able effectively to carry out any functions which will become functions of OFCOM in consequence of the implementation of any such proposals''.

My concern is that morale will be low among the staff of the existing regulators. It is perhaps unfortunate that the Bill does not set out the relationship in more detail. Nor does it say what will be the recruitment procedures for new staff. We could have lessened some of that unease, disquiet and loss of morale by declaring a specific transitional period, and I regret that the Minister did not agree to do so.

Another reason why paragraph (b) needs to be redrafted is that it should say more about the regulators and Ofcom carrying out adjoining duties and acting together. Will they be looking to achieve economies, or will there be a complete duplication of effort? Will the Minister clarify the exact nature of the relationship?

Is it implicit in subsection (b) that the existing regulators will be asked to cease to perform certain regulatory activities that are now considered to be unnecessary, or will they cease to perform all their duties and responsibilities only at such time as the communications Bill receives Royal Assent? What will be the time scale in relation to the overlap of duties? Concern has been expressed—it strikes a chord with me—about the fact that, for a temporary period, there will be six regulators before the five are ultimately replaced with one.

Amendment No. 63 would remove paragraph (c), which gives the regulator a wide power to do various other things that it

''considers appropriate for facilitating the implementation of, or for securing the modification of, any relevant proposals about the regulation of communications''.

Before we decide whether to press the amendment to a vote, it would be helpful to know how the Minister envisaged the duties and relationships that will apply during the transitional phase. That would clarify the extent and purposes of the paragraph.

Amendment No. 64 would remove paragraph (d), which refers to

''a power to carry out the functions of that regulator in a manner that promotes the interests of OFCOM.''

It would have been far preferable had it said that the functions of the regulator should be carried out in the interests of promoting the regulation of the industry. At this stage, Ofcom's one function is to set itself up. It should not only promote the interests of Ofco; it should reflect the interests of the industry in terms of what it is trying to achieve. Those who are to be regulated have expressed great concern that the provision is not better formulated. The representations that I have read or received verbally uniformly take the view that replacing five regulators with one is a positive move. However, it is incumbent on us to ensure that Ofcom puts the interests of the communications and broadcasting industry at its heart.

Amendment No. 65 would remove subsection (5), which states:

''The functions of the existing regulators by virtue of this section are in addition to, and without prejudice to the extent of, any of their powers apart from this Act.''

That brings me neatly to the point that I have made once or twice before in relation to clause 4. The whole thrust of the Ofcom Bill is to set up a shadow Ofcom to replace five regulators with one. However, it clearly states that for a transitional phase of indeterminate length—we do not yet know if the main Bill will be published in March or April; we know only that it will be in the spring, and not even if it will be before or after the Budget on 14 April—the existing regulators will have additional functions. Will the Minister clarify the nature of Ofcom's relationship with the regulators and how it will manage that relationship? Will Ofcom have the final say, or, given that these are additional responsibilities, will the existing five regulators continue to have the last word in their field? The most deeply worrying and regrettable omission is the failure to refer to the relationship between Ofcom and Oftel.

Photo of Michael Fabricant Michael Fabricant Conservative, Lichfield 11:45 am, 5th February 2002

I rise to support the amendments, primarily for a reason that my hon. Friend the Member for Vale of York has not cited. Clause 4 (1)(b), (c), (d) and (5), which the amendments would strike from the Bill, are somewhat redundant in relation to the rest of clause 4. Without them, it would simply read:

''The functions of each of the existing regulators''— defined in clause 6 as the Broadcasting Standards Commission, the Director General of Communications, the Independent Television Commission and the Radio Authority—

''shall (subject to subsection (4)) include—

(a) a duty to do everything that is necessary for facilitating the implementation of any relevant proposals about the regulation of communications''.

Given the all-embracing nature of subsection (1) and (1)(a), there is no great need for paragraphs (b), (c) and (d) and subsection (5); unless, of course, my hon. Friend the Member for Vale of York was right that there are additional reasons that will not necessarily help the industry.

It is useful to consider one by one the parts of the clause that the amendments would delete. Amendment No. 43 would remove paragraph (b), which, as my hon. Friend said, seeks to muzzle the existing regulators—[Interruption.]

Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

Order. The hon. Gentleman must continue his remarks.

Photo of Michael Fabricant Michael Fabricant Conservative, Lichfield

I am sorry, Miss Widdecombe. I have been given an interesting note by the hon. Member for Newcastle-under-Lyme (Paul Farrelly), which is extremely distracting. I suspect that it is a ploy by the Government Whips.

There will be a period of indeterminate length after which Ofcom takes over, centring on the question of when the main Bill is published and finally passes through Parliament. The uncertainty is having a detrimental effect on the morale of people in the existing regulatory bodies who do not know whether to apply for jobs with Ofcom or to stay loyal to their current employers. Paragraph (b) creates a conflict of interest. It refers to

''a duty to carry out all that regulator's functions in such a manner as appears to that regulator best to secure that OFCOM''— and so on. In other words, it stipulates that the main role of the existing regulators should be subordinate to that of Ofcom.

The Minister has said that Ofcom will be a light regulator. Indeed, he has chastised me for using the word ''regulate''. He says that Ofcom is there to stimulate the industry, and I hope that that is precisely what it will do. However, I do not see how the existing regulators can help to stimulate the industry if they have to subordinate their activities to ensuring that Ofcom carries out its new function. We do not know when Ofcom will become operational in its main form, rather than the shell form it will take if the Bill is enacted. I have great concerns about paragraph (b), which will not only distort the industry as it presently stands, but create difficulties for the existing regulators.

Amendment No. 63 seeks to delete paragraph (c). Again, if the function of clause 4 were to ensure that the existing regulators co-operated with the shell organisation of Ofcom, paragraph (c) should not be necessary. However, it states that there should be

''a power to do all such other things as that regulator considers appropriate for facilitating the implementation of, or for securing the modification of, any relevant proposals about the regulation of communications''.

Either paragraph (c) is redundant because of subsection (1)(a) or, yet again, we are seeing a desire to give broad powers to the shell Ofcom, which is to be ready to go into action when the main communications Bill is enacted. If that is not the case and we are going to witness this behemoth—a word used earlier—of 1,111 people in a shell organisation, the whole object of having a paving Bill is defeated. Paragraph (c) is almost saying that far from Ofcom being a shell organisation, we shall see two organisations working in parallel, and possibly in conflict, with each other.

That is at a time when, as the hon. Member for Hampstead and Highgate (Glenda Jackson) has rightly stated, independent television and the communications industry are going through a period of difficulty and strain; that is happening not only in the United Kingdom, but elsewhere. Now is not the time for there to be overlap, confusion and possible tensions between two regulators operating in parallel.

The Minister will stand up at the end and say that that is a load of twaddle because clause 4 means nothing of the kind. If that is the case, why is subsection (1)(a) not sufficient in itself? What new powers do paragraphs (b), (c) and (d)—and clause 5 when I come on to it—deliver if subsection (1)(a) does not already provide the infrastructure for the existing regulators to co-operate with shell Ofcom, unless it is not going be a shell organisation? That is what I find so worrying.

Photo of Angela Watkinson Angela Watkinson Conservative, Upminster 12:00 pm, 5th February 2002

I wonder whether my hon. Friend has noticed that paragraphs (a) and (b) start with the words ''a duty'', but paragraphs (c) and (d) commence with the words ''a power''. The functions of the existing regulators will include a power to do all the things described in paragraph (c), but not a duty. Does he interpret that to mean that paragraphs (c) and (d) are optional?

Photo of Michael Fabricant Michael Fabricant Conservative, Lichfield

My hon. Friend has noticed, with her customary eagle eye, something that my hon. Friend the Member for Vale of York and I had missed.

Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

Order. We cannot have two hon. Members on their feet. Is the hon. Gentleman giving way?

Photo of Michael Fabricant Michael Fabricant Conservative, Lichfield

No, but I shall do so in a moment. I had not noticed that the hon. Gentleman had risen because I was looking at the Bill.

Clause 4 might be badly drafted, but I do not think so; the parliamentary draftsmen usually do a good job. In that case, we must ask ourselves why paragraphs (a) and (b) are duties and paragraphs (c) and (d) are powers. It is interesting to use the word ''power'' in paragraphs (a) and (b) to see whether it makes sense, and to use ''duty'' in paragraphs (c) and (d). ''Duty'' means that there is a burden to do the work, but ''power'' confers a power on the shell organisation, which is what I find so confusing.

Time and time again we have heard from the Minister that Ofcom will be just a shell organisation, and that we are spending so much time debating a paving Bill to establish a shadow organisation that will not interfere with the existing regulators. We have been told that nothing will change until the main Ofcom is established, but suddenly we read about duties, powers and control being exerted by this so-called shell organisation on the existing regulators. To repeat the point made by the hon. Member for Hampstead and Highgate, this comes at a time when

bodies are finding it particularly difficult in commercial markets. This is not a time at which the existing regulators should be distracted because it will be a distraction to perform duties and to work with the shell organisation of Ofcom.

Amendment No. 64 would delete paragraph (d), which contains a word that worries me. It is not the lack of the word ''duty'' and it is not the existence of the word ''power'' that worry me; it is another word, ''promotes'', that worries me. It worries me because I know of other legislation in which the word ''promote'' has been used and has caused difficulties. I shall not speak about this at length because it would be out of order, but it is relevant. The word ''promote'' has already been exposed as not having a great deal of meaning in law; I am referring, of course, to clause 28.

Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

Order. The hon. Gentleman will not refer to clause 28.

Photo of Michael Fabricant Michael Fabricant Conservative, Lichfield

Miss Widdecombe, I will obey your command.

There have been instances in which it is clear that the word ''promote'' has many meanings in law. Whatever one might think the word ''promote'' means in the everyday world, it means something completely different in the clause that dare not speak its name—[Interruption.] My hon. Friend the Member for Tewkesbury (Mr. Robertson) says that I may not speak its name. The word ''promote'' poses difficulties not only for the teaching profession, but for the existing regulators. I would rather have seen a wording different from

''promotes the interests of Ofcom.''

In other legislation there has been confusion between the words ''promote'' and ''encourage''. The difficulty is caused by those two different meanings, and yet we know in practice what the meaning of ''promote'' was intended to be.

I shall return strictly to the Bill, rather than discussing other legislation to which I personally take a liberal attitude. I am concerned about the use of the word ''promotes''. It is bad drafting, and results in subsection 1(d) being pretty meaningless. I support my hon. Friend's argument that paragraph (d) should be deleted. There are further reasons. I believe that the whole object of Ofcom should be not to regulate, but to assist and, dare I say it, to promote the industry's interests generally.

I do not think that that is going to happen if the Bill contains paragraphs (b), (c) and (d). The industry, at a difficult time, will be hampered, and paragraph (d) will hamper it the most. The Radio Authority and the ITC should be helping television companies and radio stations. Oftel, which I have not yet mentioned, should be encouraging BT and other companies to spread out broadband communications in the UK by satellite, digital subscriber line and asymmetric digital subscriber line. I am concerned that, instead, they will spend a great deal of time concentrating on how to ensure the best interests of Ofcom, not of the industries. I support amendment No. 64.

Amendment No. 65 would delete clause 4(5), which should be deleted because I do not understand it. I have read it over and over again and it does not make a great deal of sense to me. I must confess to my hon. Friend the Member for Tewkesbury on the Front Bench that I had a very entertaining late night last night with a constituent of mine who is a pig farmer and, as a consequence, my brain cells might not be working quite as fast as usual. However, subsection (5) states:

''The functions of the existing regulators by virtue of this section''— so far, so good—

''are in addition to, and without prejudice to the extent of, any of their powers apart from this Act.''

I do not understand ''apart from this Act''; perhaps my hon. Friend the Member for Vale of York or the Minister will explain it. I just do not understand what it means. Can someone intervene and explain? I am getting blank looks from everyone. I am getting blank looks from the Minister. I am getting blank looks from the officials. At this point, I shall give way to the hon. Member for Newcastle-under-Lyme, who has given me rather bad news.

Photo of Paul Farrelly Paul Farrelly Labour, Newcastle-under-Lyme

I congratulate the hon. Gentleman. He has so anaesthetised me that I have completely forgotten what I was going to say.

Photo of Michael Fabricant Michael Fabricant Conservative, Lichfield

I did not mean to cause the hon. Gentleman embarrassment, although the note that he passed me earlier almost caused me to collapse. However, that is another matter.

I just do not understand what subsection (5) means. At best it is redundant and should be deleted. At worst, it is a meaningless subsection. I sit down with great anticipation and hope that the Minister will explain, when he gets the chance—I know that my hon. Friends have a great deal to say on the amendments—what it adds to the Bill. I do not think that it adds anything.

Photo of Laurence Robertson Laurence Robertson Opposition Whip (Commons)

I rise to make a brief contribution. I cannot follow my hon. Friend in his colour and extravagance, and his detailed knowledge of what we are discussing is to be admired; especially when he has just received such terrible news, which I have just seen, and when he had such a good night last night.

I, too, am rather confused by clause 4. At the risk of becoming monotonous through repetition, I regret that the Government have tried to do something that we do not disagree with as a whole in two Bills rather than in one. That adds to the potential for confusion and the potential to fail to set up Ofcom in the way that we want.

I am concerned about the continuing absence of any guarantee about when the main communications Bill will be introduced. I mention that again because it leaves a big gap. If we go down the route suggested in clause 4, whereby existing regulators must do this and that, and Ofcom must do this but not that, and so on and so forth, and if there is a long time until the main Bill is published, we shall run into difficulties, especially in an industry that changes so quickly.

I am confused. Clause 2(1) refers to

''the implementation of, or for securing the modification of, any relevant proposals about the regulation of communications.''

However, clause 4(1)(c) seems to give the same requirements and powers to the existing regulators. Is there potential for conflict? My hon. Friend the Member for Lichfield, who has temporarily left his place—I had better not go into the detailed reasons for that—mentioned the possibility of the existing regulators being muzzled. I do not know whether the provisions will muzzle them or do the opposite—give them the powers to determine the shape of Ofcom. I have concerns about that.

Clause 4—especially subsection 1(b), (c) and (d) and subsection (5)—seems to pass some duties from the existing regulators to Ofcom, but to keep others. I detect potential for great confusion, which I do not want. I want a very smooth transition. The White Paper correctly identified that the staffing of Ofcom and the quality of staff would be all-important. If there is to be a protracted period of transition, any confusion will serve only to undermine the position, and perhaps the employment prospects, of current staff.

It is important that the Government make clear the time scale, which I have mentioned before. They must also clear up some of the confusion that, to my mind, surrounds clause 4, about which my hon. Friends the Members for Vale of York and for Lichfield spoke at much greater length and with more eloquence than I have sought to do.

Photo of Kim Howells Kim Howells Parliamentary Under-Secretary, Department for Culture, Media & Sport 12:15 pm, 5th February 2002

Hon. Members have expressed concern today and previously about the Bill's proposal that Ofcom and the existing regulators must work closely together to ensure a smooth and speedy transition to the new regulatory regime. I agree that it is essential that the existing regulators and Ofcom co-operate closely if the transition from the current arrangements to the new regime is to be completed smoothly and efficiently, without disruption to the industry or consumers. The purpose of clause 4 is to ensure just that. The clause is essential to ensure that the existing regulators have the requisite powers and duties to facilitate the implementation of relevant proposals, and that they can co-operate with Ofcom so that it can carry out its initial and future functions effectively.

Turning to amendment No. 43, Ofcom will be preparing to take on the responsibilities of the existing regulators and their associated functions, so it is vital that all the organisations work closely together to ensure that nothing they do unintentionally creates difficulties for anyone else. The purpose of clause 4(1)(b) is to require the regulators in carrying out their functions to secure that Ofcom will also be able to carry out its functions effectively.

That need for co-operation extends first to Ofcom's initial function of preparation, and then to ensuring that it will be in a position to carry out its future regulatory functions. Hon. Members will recall that clause 2(2) places Ofcom under a duty to co-operate with the existing regulators and not to interfere with their current work. The two provisions are intended to

ensure that the regulators and Ofcom co-operate closely. Clause 4(1)(b) is an entirely sensible provision and it should be retained.

Moving on to amendment 63, in addition to the obligation placed on the existing regulators in clause 4(1)(a) to do everything that is necessary for Ofcom to prepare itself, clause 4(1)(c) enables those regulators to do such other things as they consider appropriate to implement relevant proposals or to secure their modification. It will be for the regulators to decide what other things it might be appropriate for them to do in this context. It is entirely for the regulators to decide, and Ofcom will not be able to force them to do anything they do not want to do.

In addition, just as it is vital that Ofcom should be able to secure the modification of relevant proposals, it is important that the existing regulators should be able to express views on the relevant proposals and, if they consider it necessary, to seek to secure their modification. Clause 4(1)(c) allows them to do that and should therefore be retained.

The hon. Member for Vale of York raised the question of amendment No. 64. Hon. Members will be aware that because the regulators are established and governed by statute, they are limited to doing only what statute permits. The purpose of the provision in clause 4(1)(d) is to empower the existing regulators, in addition to what they can already do under statute, to carry out their functions in a manner that promotes the interests of Ofcom. The provision provides the regulators with further flexibility to help Ofcom in its preparations. It is therefore essential to allow the co-operation that we all desire to take place.

Photo of Anne McIntosh Anne McIntosh Shadow Spokesperson (Culture, Media and Sport)

My hon. Friend the Member for Lichfield and I asked about the expression,

''promotes the interests of Ofcom''.

Should the purpose not be to promote the interests of the industry that Ofcom is to regulate? It is a particularly unfortunate turn of phrase.

Photo of Kim Howells Kim Howells Parliamentary Under-Secretary, Department for Culture, Media & Sport

I thank the hon. Lady for giving me the opportunity to tell her that the purpose is the promotion of the whole industry. She will recall, because I have told her 20 or 30 times, that the Bill is about setting up Ofcom. The sole purpose of the provisions in clause 4(5)—perhaps this will be of help to the hon. Lady—is to make clear that the new functions that the existing regulators will have as a result of the provisions in clause 4 are in addition to, and will not be prejudicial to, any existing powers that have been conferred by other Acts.

Photo of Kim Howells Kim Howells Parliamentary Under-Secretary, Department for Culture, Media & Sport

No.

That provision ensures that there will be no conflict between the existing regulators' current functions and those that will be conferred on them. Amendment No. 65 is therefore not needed.

Photo of Anne McIntosh Anne McIntosh Shadow Spokesperson (Culture, Media and Sport)

I would not like to jeopardise the possibility of a short debate on clause 4 stand part, so I would like all four amendments to be voted for en bloc.

Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

The vote will be on amendment No. 43, not on any others en bloc.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 12.

Division number 7 Adults Abused in Childhood — Clause 4 - Functions of existing regulators

Aye: 5 MPs

No: 12 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

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

Photo of Anne McIntosh Anne McIntosh Shadow Spokesperson (Culture, Media and Sport)

I am most grateful for the opportunity to debate clause 4(1). There is concern in the industry that will be regulated by the new merged body about how the subsection will be applied. The White Paper provides some assistance, stating on page 85 in paragraph 9.4.2:

''Within the limits set by existing legislation, we also see scope for the existing regulators to prepare for this transition by continuing to develop greater co-ordination and integration of their operations and greater use of common principles applied sensitively to different sectors. This will add to the progress already being made in tackling the problems of double jeopardy and inconsistent outcomes which were raised in the consultation, through mechanisms such as the current formal concordat between the BSC and the Radio Authority.''

When responding to the previous debate, the Minister said that the existing regulators and Ofcom will co-operate closely. Those who are scrutinising the Bill should know the form and structure of that co-operation. There is some difference in that one of the existing regulators—the Radio Authority, I think—operates not as an independent regulator but as part of the Department of Trade and Industry, and is therefore a special case.

Given that a whole chapter, albeit a short one, of the White Paper dwells on the process of implementation, I cannot grasp why the Government did not take the opportunity presented by the Bill to describe the form of the discussions and consultations. The Minister commented on that only in response to our probing amendments. The White Paper states that the Government

''will work with the existing regulators to ensure a smooth transition to the new regulatory regime. We will set up pathfinder groups''— that is not such bad news as that received by my hon. Friend the Member for Lichfield in a written note—

''involving all the regulators at official level, building on the current arrangements for co-ordinating regulatory work. In preparing for that transition'' the Government will

''expect the Boards and staff of the bodies to continue to develop greater co-ordination and integration of their operations and to carry out their responsibilities in a way that will help deliver the goals we have set out.''

I accept that we not here to discuss the goals that the Government set out in the White Paper. That is a subject for debate by those hon. Members who are fortunate enough to serve on the Committee that considers the communications Bill. However, the Minister has not been called to account through the four probing amendments to the clause, so we want to take the opportunity afforded by this short clause stand part debate to establish precisely the form that the co-ordination of the existing regulators will take. In exercising their functions, will they have a duty to do everything necessary to facilitate the implementation of any relevant proposals on the regulation of communications?

That is a key point, and once the Bill leaves Committee and proceeds to the Floor of the House the amount of time in which to debate it will be even more limited. As chapter 9 of the White Paper says,

''The skills and experience of staff will be essential to ensure a smooth transition from the current arrangements until the new regulator is established and beyond.''

At this key transitional stage, we need to establish from where the staff who are to man Ofcom will come. Will they purely be staff on secondment? That is relevant to the co-ordination that the Minister mentioned. The White Paper continues:

''The new structure will not work without good quality people. Staff at the current regulatory bodies will be fully involved in considering the issues relevant to them and we shall ensure that they are kept fully informed.''

That may be so, but the Government will not keep us—parliamentarians—fully informed.

The White Paper says that:

''The pathfinder groups will examine staffing and other transitional issues and, in keeping with our commitment to an inclusive approach, will maintain close contact with industry, representatives of the regulatory workforce and citizen and consumer representatives.''

Clause 4(1) gives the Government a unique opportunity to address precisely what consultations will take place and what Ofcom's staff representation will be.

We have had lengthy discussions about whether both Houses of Parliament should be involved in the appointment of board members. It is not only disappointing, but mysterious, curious and even unacceptable that the subsection fails to address the issues that are set out in some detail in the White Paper. I urge the Government to take the opportunity to rectify that omission.

Photo of Michael Fabricant Michael Fabricant Conservative, Lichfield 12:30 pm, 5th February 2002

I had not intended to speak in this debate until the Minister churlishly rejected my request to intervene, even though he could have answered my question quite quickly.

When the Minister summed up the earlier debate, he said that the point of subsection (1) is to give the existing regulators extra powers and duties to co-operate with the so-called shell Ofcom—which may be not such a shell as we had thought. Extra powers and duties mean extra work: who will do that extra work? Will it be the 1,111 people currently employed by the existing regulators, in which case there will either be a lot of overtime or a lot of work undone in the promotion and regulation of the industries to which they are attached? If not them, there will be real difficulties in carrying out the functions in clause 4. How much extra work does the Minister think will be imposed on the existing regulators to carry out those functions?

Photo of Michael Fabricant Michael Fabricant Conservative, Lichfield

I will give way to the Minister happily, in contrast to his churlish rebuttal of my attempted intervention on him.

Photo of Michael Fabricant Michael Fabricant Conservative, Lichfield

Will there therefore be as many extra people as are required, and does that mean that additional charges will be levied on independent television, Channel 4, Channel 5, the communications companies and so on? The Minister's brief answer raises a series of questions. Not only does an endless length of string have to unravel before the final enactment of the main communications Bill, we now see that the existing regulators face another endless length of string, or rather an endless amount of red tape, in undertaking all the work required to co-operate with the shell Ofcom.

Where among the existing regulators will the additional people be found? Where is the additional funding for extra people or for overtime? The Minister takes a relaxed attitude, saying that there will be as much additional work as required and it is as simple as that. I suspect, although I do not know his background, that there speaks a man who has never run an organisation in his life; otherwise, he would not be so relaxed when making such a comment. The amount of work required must be predictable, and if it is a large amount, who will do it?

The Department for Culture, Media and Sport was well described by a recently departed Minister as a dysfunctional ministry. We can see why. The Minister's answer is typical of the sort of thinking and hands-off approach that the DCMS so often adopts. We understand why it is so often castigated by the Select Committee. It seems unable to make predictions about anything.

We have just debated a whole series of probing amendments, hoping to elicit answers about the operations of the shell Ofcom, but there have been no answers. Every time a probing amendment is tabled, every time a question is asked, the Minister gives an answer such as we have just heard: there will be as much work as it takes—take it or leave it. I do not know why I put on an east end accent then, it should have been a Welsh accent, but the point is made.

That is the central point of clause 4. It places a burden on existing regulators but there is no idea, and no concern, about the practical difficulties involved. I do not think that the Minister means anything other than to encourage the existing regulators; it is just that he is completely unaware of the import of his response. If the existing regulators were in any way relaxed before this morning's debate, I suspect that they are now very concerned.

I know that there is concern. There is a steering group of the existing regulators, and I understand, because there are leaks, that when it puts questions to the DCMS, nothing is received from Department or Ministers. There is no feedback. The Minister seems unable to control his Department. Are we surprised to hear that when we get answers such as the one he just gave? I was hoping for a helpful response, but instead his answer was: there will be as much work as is required.

Clause 4(2) has not yet been debated. I defer to my hon. Friend the Member for Upminster (Angela Watkinson), who pointed out the interesting use of ''duty'' instead of ''power''. It says:

''It shall be the duty of each of the existing regulators to comply with any direction by the Secretary of State''.

Is that not worrying? What sort of directions will the Secretary of State give? We are told that the directions will be

''in relation to the carrying out''— an interesting use of English there—

''of that regulator's functions under this Act''.

Those functions are to include the preparation of draft schemes, consultation of Ofcom about proposals, and submission of further draft schemes

''in such a form as he may require, to the Secretary of State.''.

That rather is an open obligation. What sort of draft scheme might the Secretary of State come up with to create additional burdens?

I am rarely speechless, but I am on this occasion because the Minister is unable to give any comfort to the existing regulators. He has not said what resources will be given to them. In earlier debates, we have covered the resources that will be given to the Ofcom shell, but it turns out that those resources will ultimately derive from the bodies that are to be regulated.

A loan will be given, either directly by DCMS or by the Treasury, which must be paid back with interest. We do not know what the interest rate will be, but the Minister has promised me a letter—although it has not yet appeared on my desk. Perhaps he can tell me whether he has signed off the letter, or whether there is big question mark over the interest that will be chargeable to companies such as ITV and the individual independent television companies. It is an open issue.

We now know that burdens will put on the existing regulators. How will those burdens be funded—through a loan that must be repaid, or a charge of additional levies on ITV companies, BT and NTL, all of whom are experiencing difficulties? We do not know

and, I fear the Minister has no clue; that is worrying. When he gives an answer, it will be one prepared for him by his officials; it will not address the problem, which I do not believe has been properly discussed in the DCMS. More worryingly, the existing regulators do not think that it has been discussed in the DCMS—the dysfunctional Department, as the Minister put it so well only a few weeks ago.

Photo of Kim Howells Kim Howells Parliamentary Under-Secretary, Department for Culture, Media & Sport

On a point of order, Miss Widdecombe. I have never referred to the DCMS as a dysfunctional Department. The hon. Gentleman's fevered brain might want it to be that way, but that is not my view.

Photo of Michael Fabricant Michael Fabricant Conservative, Lichfield

I have never said that the Minister referred to it in that way—he would not keep his job for long if he had. I am referring to the hon. Member for Vauxhall (Kate Hoey), as he knows, unless he pays little attention to events on the Floor of the House. I make it absolutely clear that I am referring to that hon. Lady who did the Minister's job.

Photo of Michael Fabricant Michael Fabricant Conservative, Lichfield

Well, she worked in his Department—indeed, she was an important Minister in his Department. I could go through the details, but it would be pointless because it is well known how effective the DCMS has been—one need only ask the right hon. Member for Manchester, Gorton (Mr. Kaufman).

Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

Order. Would the hon. Gentleman exercise ingenuity and try to relate his comments to clause 4?

Photo of Michael Fabricant Michael Fabricant Conservative, Lichfield

I will now switch on the ingenuity section of my mind, and move to subsection (3). It states:

''each of the existing regulators shall have the power,''—

we see the use of the word ''power'', rather than duty—

''for the purpose of carrying out that regulator's functions under this section, to do such things as appear to that regulator to be incidental or conducive''— the word ''incidental'' means still more burdens; how long is a piece of string? Perhaps the Minister can give us a global view of what might be

''incidental or conducive to the carrying out of those functions including''— this is not an exhaustive list because it is ''including''—

''(without prejudice to the generality of that power) power''—

''power'' appears twice—

''to make payments to OFCOM, to second staff to OFCOM and to provide OFCOM with any information that they may request.''

So, the clause states that there are to be burdens on the existing regulators to provide whatever work Ofcom thinks fit, which means that they will be less able to do their current work regulating businesses that, for example, the Radio Authority, the ITC and the other two organisations regulate. Far from the Minister saying, ''Yes, we shall provide the resources for extra staff'', or ''Yes, we shall provide extra money to pay overtime'', we find that the existing regulators must second staff to the shell Ofcom.

Whether the Minister likes it or not, his Department must answer the question of how people will do that work. How will Ofcom be run in practice? The track record of the DCMS reveals it to be incapable of running anything, but if he does not want to face before the end of this Parliament a purge similar to the one that the Prime Minister applied to his Department at the beginning of this Parliament, his Department must address those practical problems; it is time it did so. It is no good waffling: he must say what the burden will be, from where the resources will be provided to carry out that work, and who will pay for it. Those are three questions that he must answer, and if he does not answer them it will show that his Department will deliver Ofcom like it delivered good management of the millennium dome, and everything else that it has touched with its minus-Midas touch.

Photo of Anne McIntosh Anne McIntosh Shadow Spokesperson (Culture, Media and Sport)

I just wanted to congratulate my hon. Friend the Member for Lichfield on a stirring speech that unfortunately did not stir the Minister to a reply. The Minister should have taken the opportunity to say how the preparations will be put into effect.

We are told in the explanatory notes that subsection (2)

''imposes a duty on existing regulators to comply with directions from the Secretary of State to prepare schemes for transfer to OFCOM of their property, rights and liabilities, so that they can be transferred with the minimum of delay when the regulatory functions are ready to be transferred to OFCOM under the Communications Bill.''

According to the explanatory notes, subsection (3)

''provides that the existing regulators have the power to do anything incidental or conducive to their functions under this Bill. This includes assistance to OFCOM by means of secondment of staff and the payment and provision of information.''

Photo of Angela Watkinson Angela Watkinson Conservative, Upminster

Does my hon. Friend agree that subsection (1)(d), which refers to

''a power to carry out the functions of that regulator in a manner that promotes the interests of OFCOM.'' establishes a hierarchy of interest between Ofcom and the existing regulators? If there is a conflict of interest or a problem of capacity in the existing regulators to undertake those additional functions, paragraph (d) provides that Ofcom's interests will take precedence over those of the existing regulators.

Photo of Anne McIntosh Anne McIntosh Shadow Spokesperson (Culture, Media and Sport)

It is a pity that the Minister could not be as clear in his response.

The power to carry out ''conducive'' functions mentioned in subsection (3)—this does not contradict the suggestion by my hon. Friend the Member for Upminster—include

''assistance to Ofcom by the means of secondment of staff, payments and provision of information. This power will be essential for the establishment of the . . . structure and procedures that will need to be put in place to allow the smooth transition of functions and property under the Communications Bill''

That has been a dereliction of duty. The Minister's responsibility was to share that with the Committee, the rightful authority to scrutinise the Bill, because there is a huge gap between that and what the White Paper suggested.

Photo of Michael Fabricant Michael Fabricant Conservative, Lichfield

Does my hon. Friend share my suspicion that it is not that the Minister withheld information, but that he does not have the information? He and his Department have not considered those practical details.

Photo of Anne McIntosh Anne McIntosh Shadow Spokesperson (Culture, Media and Sport)

I find that intervention almost unbelievable because we have been waiting for the paving Bill, let alone the main Bill, for some time. I cannot believe that the DCMS, whatever its failings, has not thought about and prepared for precisely those matters.

I repeat that there is a huge gap between the Bill and the promises made and expectations raised in respect of the implementation process by chapter 9 of the White Paper. There has been a huge failure to deliver on the part of the Government and, I regret to say, the Minister. The Committee's responsibility is to analyse and scrutinise the Bill, but we have not been able to do so because he will not share the information with us, which I find deeply regrettable.

Question put and agreed to.

Clause 4 ordered to stand part of the Bill.