Lords Amendment: No. 6, in page 7, line 41, leave out from beginning to "above" in page 8, line 9, and insert:
(1) Pending a parliamentary or local government election it shall not be lawful for any item about the constituency or electoral area to be broadcast from a television or other wireless transmitting station in the United Kingdom if any of the persons who are for the time being candidates at the election takes part in the item and the broadcast is not made with his consent; and where an item about a constituency or electoral area is so broadcast pending a parliamentary or local government election there, then if the broadcast either is made before the latest time for delivery of nomination papers, or is made after that time but without the consent of any candidate remaining validly nominated, any person taking part in the item for the purpose of promoting or procuring his election shall be guilty of an illegal practice, unless the broadcast is so made without his consent.
(1A) For the purposes of subsection (1) above—
§ 4.45 p.m.
§ Mr. Merlyn Rees
I beg to move, That this House doth agree with the Lords in the said Amendment.
Perhaps it would be convenient, Mr. Deputy Speaker, to take at the same time Amendments Nos. 7 and 36.
§ Mr. Rees
These Amendments take the form of, first, a revised version of subsection (1) of Clause 9, with a new subsection (1A) clarifying by means of definitions the period of operation of subsection (1)—Amendment No. 6; secondly, a consequential addition to subsection (5) of Clause 9 which deals with ward elections in the City of London—Amendment No. 7; and, thirdly, a consequential Amendment to Schedule 4,Insertions authorised in Representation of the People Act, 1949, in Revised Edition of Statutes"—
§ Amendment No. 36.
§ The purpose of the Amendments is twofold. First, Clause 9(1) of the Bill as introduced referred to a candidate's "consent" to the making of a broadcast, but did not set out how that consent was to be secured. Under the opening words of the new subsection (1), it will not be lawful for an item in which a candidate takes part to be broadcast if he does not consent to the broadcast being made. Securing the candidate's consent thus becomes a requirement of law. The duty of complying with that requirement will fall on those responsible for making the broadcast—that is, the broadcasting authorities. But no sanction or penalty is attached to this requirement and there is no question of the broadcasting authorities being guilty of an illegal practice if there is a breach.
§ I am advised that it would be extremely difficult to show that the words "it shall not be lawful" go so far as to create a statutory offence, and I am confident that no court would hold that they did so. It is doubtful whether anyone would be willing to bring proceedings against broadcasting authorities or their servants, or, if they did, whether a court would be willing to convict.
Secondly, the operation of subsection (1) is now limited to a precise period of time by reference to an anterior limit. Discussions have taken place with the broadcasting authorities, and in another place pleasure was expressed that the Government found it possible to introduce this change. As introduced, Clause 9(1) operated
before or during a parliamentary or local government election".
§ It was thus in line with the law on election expenses which, according to circumstances, may begin to operate well before an election is under way. It was represented, however, that this would impose too much uncertainty, and therefore restriction, on the broadcasting authorities. The fixing of an anterior time limit will leave them entirely free before that date, subject to their general duty to secure political balance. The question of political balance was dealt with more broadly during our earlier discussions.
§ The anterior dates fixed, and defined in the new subsection (2), are those after which there can be no doubt that an election is in progress. They vary according to the nature of the election.
§ The references to Bankruptcy Acts in paragraph (a)(ii) of subsection (1A) of Amendment 36 are necessary and not just whimsical because bankruptcy is one of the reasons for vacating a Parliamentary seat, and the Acts mentioned provide for the procedure to be followed by the Speaker in such an event.
§ The anterior date fixed in paragraph (b)(i) of subsection (1A) of Amendment 36 for a local government ordinary election—five weeks before the day of election—is necessary to suit circumstances in Scotland, where under Rule 1 of the Scottish Local Elections Rules notice of a local government election may, in effect, be given up to five weeks before the day of election. In England and Wales, by Rule 1 of the Local Elections Rules, it works out, in effect, at about four weeks before that day.
Apart from changes I have described, the general effect is the same as was that of Clause 9(1) as introduced. Personal electioneering is controlled, broadly on the lines recommended by the Speaker's Conference, in that a candidate is guilty of an illegal practice if
for the purpose of promoting or procuring his election
§ a candidate takes part in a broadcast before nomination day, or between that day and the close of the poll takes part in such a broadcast in which any other candidate neither takes part nor consents to its going forward without his taking part. News and objective reporting of candidates' activities, consisting of broadcasts in which candidates do not "take part", are not affected by the 1833 Clause and remain subject only to the broadcasting authorities' own rules of balance.
§ There are two aspects of the change which merit discussion. The phrase "takes part" is similar to the wording used in Section 37 of the Children and Young Persons Act 1963. That Section provides that a child shall not take part, among other things, in a broadcast performance unless licensed. In practice this is taken to mean that a television recording of a crowd scene or an activity involving children collectively is not prohibited.
§ In the Government's view, the same principle will apply to broadcasting at the time of an election. "Taking part" must involve active and conscious participation If the candidate is addressing a television audience through the means of the television camera, he is actively "taking part". If he is addressing his constituents and happens to be taken by a television camera while doing so, then for the purposes of the Bill he is not "taking part" in the programme. This is an interpretation which was put upon the words in another place from which the Government would not dissent. Read together with the other key phrase, "promoting or securing", the phrase "takes part" appears to provide a sufficient touchstone for distinguishing between personal electioneering and news and reporting.
§ The phrase "promoting or procuring'' is deliberately and advisedly taken from section 63 of the Representation of the People Act 1949, which deals with election expenses, in particular on propaganda and electioneering, and would, it is thought, be construed accordingly.
§ I am conscious that many other comments could be made, but the Amendment is the result of discussions and we have attempted to be as helpful as possible. The Clause is generally as it was before, but with added refinements which I think are helpful, and I commend the Amendment to the House.
§ Mr. Quintin Hogg (St. Marylebone)
I am told that I must not vote against the Amendment; it has, apparently, been agreed by everybody except me. It has been agreed by the Central Office, by Lord Hill and by the Independent Television Authority, and apparently it is 1834 generally commendable and absolutely intelligible to everyone except me. I did not understand it when I read it, and I understand it even less now that I have heard the Minister's speech.
As I am one of the potential criminals who will be committing an illegal practice if I do not understand it and get it wrong, I must say a word or two about it in considerably sceptical criticism. What do the words mean?Pending a parliamentary … election it shall not be lawful for any item about the constituency … to be broadcast from a television … transmitting station … if any of the persons who are for the time being candidates … takes part in the item and the broadcast is not made with his consent …According to the Minister, that does not mean that is an offence; it just means that it is not lawful. The Amendment continues:… where an item about a constituency … is so broadcast pending a parliamentary.. election there, then if the broadcast either is made before the latest time for delivery of nomination papers, or is made after that time but without the consent of any candidate remaining validly nominated, …These are the words of which I am afraid:… any person taking part in the item for the purpose of promoting or procuring his election shall be guilty of an illegal practiceand so, presumably, is committing an offence.
Suppose that during a General Election I hold an election meeting in the Seymour Hall in the middle of my constituency and the B.B.C., for reasons of its own, wishes to broadcast that meeting and broadcasts a picture of me speaking—
§ The Secretary of State for the Home Department (Mr. James Callaghan)
Or a picture of the violence!
§ Mr. Hogg
The B.B.C. may even cause the violence. One never knows what is the cause of it, I have known some remarkable things to happen. If I am photographed speaking, I suppose that I am taking what the Minister calls "an active and conscious part" in the item—one hopes so. Must I be sure that all the other candidates have agreed to that before I allow the B.B.C. into my meeting?
This is wholly new. I do not believe this was contained in the Bill when it left 1835 this House. I was not at all reassured when I looked up the debates in another place, because the Government, after having discussed it with Lord Hill, the Central Office, the I.T.A. and everybody except me, took advantage of the extraordinary rules of procedure in that place to introduce the Amendment on Third Reading, which meant that it was never properly considered and discussed. In a former incarnation I had experience of what goes on in another place, and I know that to be so.
If this is what we are being asked to do, and what has been agreed between Lord Hill, the Government, the Central Office, the I.T.A. and every knowledgeable person except myself, I am not sure that I like it, and I doubt whether other people whose meetings are sometimes broadcast by various broadcasting authorities will like it either. But I suppose if I speak in Bridgewater or Orpington this will be all right, even if the hon. Member who will then be a candidate does not like it, although it will help the Conservative candidate as much or as little as if I spoke in my own constituency on behalf of myself.
I am not happy about this, even though it has been agreed by the Government, Lord Hill, the I.T.A., Central Office and every knowledgeable person but myself.
§ Question put and agreed to.
§ Subsequent Lords Amendments agreed to.