§ 3.12 p.m.
§ The Parliamentary Under-Secretary of State, Department of National Heritage (Lord Inglewood)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Inglewood.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITIEES in the Chair.]
§ Lord Howell moved Amendment No. 1:
§ Before Clause 1, insert the following new clause—
§ ("PART A1
§ LISTED EVENTS AND SPORT
§ CERTAIN EVENTS NOT TO BE SHOWN SOLELY ON PAY-PER-VIEW OR
§ SUBSCRIPTION TERMS
§ (2) For subsection (1) substitute—
§ "(1) The Commission shall do all that they can to ensure that any programme which consists of or includes the whole or any part of a listed event being broadcast live—
- (a) is not reserved exclusively for pay-per-view or subscription television; and
- (b) is included in a television broadcast service which is for general reception, capable of being received in the United Kingdom.".").
§ The noble Lord said: First, I must declare what interests I have which may be germane to the subject. I am a non-executive director of Birmingham Cable Corporation and also Wembley Stadium.
§ The series of new clauses which I shall be proposing are not purely about the economics or financing of sport, important though that subject may be. They also involve the ethics and the spirit of sport. I hope that the Committee will allow me to indulge myself on those matters for just a moment or two. I have a profound belief in the social purpose of sport. To me it is fundamental in the context in which this debate has to be considered. In essence, the social purpose of sport is best expressed through its spirit, commonly known as sportsmanship, in the way it inspires young people to take up sport, to develop their personalities, to face the challenges of life and to experience the joys and good fellowship which should be at the heart of all sport.
§ Those precepts are being increasingly undermined by the total domination within sport of financial considerations above all others. No wonder all the arguments put forward to oppose the new clauses concentrate exclusively upon the right to sell all sport to the highest bidder. All the letters we have received and 123 all the statements which we have read deal exclusively with money. The protagonists never rise above the pure material: the price of the product. They have nothing to say about the worth and value of sport in the community. They ignore the 30 million to 40 million people who cannot afford or get Sky. They ignore the elderly and infirm who have supported sport in better days and who are now to be sacrificed apparently to the interests of one man—Rupert Murdoch. The protagonists write off their duty to the young who, in their millions, obtain their inspiration to take up sport, to have a go for themselves, because they see sport in its excellence in their millions in their own homes, on terrestrial television. Nick Faldo said that he took up golf because he saw Jack Nicklaus playing on television.
§ Nowhere in the letter to us, repeated in The Times today, from the Central Council of Physical Recreation—of which I am a senior vice-president—are those questions addressed which were raised in this Chamber, I remind the Committee, during the Second Reading debate on the Bill. The silence of sport on addressing social questions is deafening.
§ Though it has to be said that the terrestrial channels have also exercised their monopoly powers in the past and kept their prices down, that has to change. I am pleased that the new chairman of the BBC endorses the view which I put forward at Second Reading that the new digital channel will give an opportunity to the BBC and ITV to provide some form of pay-TV at reasonable prices which everyone in the country can afford if they wish to watch a particular match. Perhaps that is the future way forward, but it is not what we are discussing today.
We have all received a letter from Mr. Ken Schofield, of the Professional Golfers Association European Tour, responsible for the deal between the PGA and Sky, which covered the Ryder Cup. That event between the finest golfers in Europe and America proved to be one of the most sensational sporting events of the decade. Europe won with the last shot on the last green. When Sky was asked why it would not allow the BBC even to show highlights of the event, it inferred that the BBC would not buy them. That was totally incorrect. I have in my hand the licence agreement between Sky and the PGA which covered the Ryder Cup. It states in stark terms:
For the avoidance of doubt, there will be no BBC transmission of The Ryder Cup".
Sky deliberately set out to stop the broadcasting of highlights and prevent the BBC having any coverage of the event. Mr. Ken Schofield's letter to us all does not even begin to explain why he thought it right to prevent the nation, in its millions, from seeing anything of that great sporting triumph.
§ Sky tried to do the same about the forthcoming World Cup in cricket, as I disclosed to the House on Second Reading of the Bill. I rejoice that all the odium, and, no doubt, the proposed new Clause 2, which we shall reach shortly, have brought about a change of heart. The right of the BBC to show the highlights of the World Cup at a cost of £1 million, which was refused a month or two 124 ago, was suddenly re-offered to the BBC last Friday and taken up. New Clause 2 has triumphed before I have even moved it!
§ We must put aside the black propaganda that the noble Lord, Lord Aberdare, will know something about. A spokesman for Sky alleged three times this weekend that the reason our football grounds have all been put in good order has to do with Sky Television money. That is a monstrous assertion. The £200 million spent on football grounds has come from the Football Trust, of which the noble Lord is chairman. It receives its money from the Pools promoters, who have been rather badly treated compared with other organisations such as the National Lottery. The money from Sky has gone to pay grossly inflated wages and monstrously large transfer fees. It has not been put into grounds. I hope that the noble Lord will give further details later.
The case for this amendment is irresistible. As the Select Committee on National Heritage in another place stated in a report in 1994:
The public policy objective for permitting satellite services is to expand viewer choice…If it leads to the ending of free access to major sporting events, deemed by the public to be part of their birthright, then this is a narrowing of public choice".
As Stephen Dorrell said when he was Secretary of State for National Heritage:
Sport provides for the integration of young people into society. It allows young people to excel. It provides role models and the opportunity for their admirers to imitate them".
That is not possible on Sky alone.
§ As David Mellor frankly confessed, as author of the 1990 Act that we seek to amend today, he made a mistake. He should have included subscription television when he prevented pay TV from showing, the eight listed events exclusively. That is what this amendment seeks to achieve today. It does not seek to add anything to the existing situation. It aims to hallow the existing situation but to extend it to subscription television as well as pay television.
§ Fortunately, the International Olympic Committee last week rejected Mr. Murdoch's millions—£1.2 billion of them—and kept faith with the youth of the world. That is what we ask the Committee to do today. President Samaranch has a wisdom and a sense of duty that we must applaud. He said that the Olympic Games are a vital sporting festival and must be available to the people of the world—in Africa, Asia and eastern Europe, where no Sky dishes are to be found, as well as in this country.
§ We now have to consider two quite fascinating last-minute developments. The first is the consultation paper issued by the Government for purposes at which we can only guess. The Government need to consult the nation, they tell us. They had no intention of doing so at Second Reading. They had no desire to do so during the past six months while this matter was debated the length and breadth of the land. They did not take the matter up when the newspapers gave it considerable coverage. This is very much a last-minute dodge.
§ A cynic might believe that the Government wished to bypass your Lordships' House, where they know that opposition is strong. Well, we proceed with our 125 amendments, which declare matters of principle. As our new Clause 6 proposes, when their consultation exercise has been completed and considered they can then come back to us, if they wish, to make any proposals for change at that stage.
§ Meanwhile they have the results of last week's opinion poll, which I hope they will feed into their consultation process. I hope that the Minister will assure us of that. The survey, by BMRB, disclosed that nine out of 10 people in this country believe that these listed events should be available to the widest audience; seven out of 10 believe that the Government should legislate to protect the listed events; and 66 per cent. of Sky viewers also hold that view.
§ It is not for me to come to the aid of this Government. However, even they must see that, if the strength of public opinion is against them in such measure and if they propose to deprive 30 million homes of the right to see the crown jewels of British sport, that is a hazardous and monumental electoral undertaking upon which to embark at this stage of this Parliament. However, the Government should not act for those reasons. They should act because it is right to do so, on the justice of the case.
§ I turn now to today's most extraordinary news. The Director of Fair Trading has become so alarmed about restrictive practices in football that he is to refer the agreement between the Premier League, Sky and the BBC to the restrictive practices court. That is on top of two other references he has before him to Sky. The first is from some of the cable companies. They have taken Sky on board and now find themselves squeezed more and more by Mr. Murdoch as prices go up and up. The second reference comes from the pubs. Mr. Murdoch persuaded publicans to install Sky Television, and now the prices are rising, as I read in one case, by 1,900 per cent. No wonder the publicans have approached the Director of Fair Trading as well! If the Director of Fair Trading believes that there is a prima-facie case to be answered, then our amendments are even more necessary than I previously thought.
§ Those representing some of the listed sports do not want to leave the BBC or ITV. They merely want to use Sky as a bargaining factor. As I explained, they will be gobbled up. If I may be permitted to say so, anybody who chooses to get into bed with Mr. Murdoch does not get out of bed the same man! Just imagine taking the Derby or the Grand National off television. These are the great betting races of the year. Racing would lose an enormous amount of income if that were proposed—and they know it.
§ In this amendment, we do not seek to add to the number of listed events. That is another piece of black propaganda that was put out. Nor do we seek to prevent Sky Television showing sport. To declare another interest, I have two Sky channels, one in London and one in Birmingham, and I like Sky Sport. However, that does not mean that 30 million other people should be prevented from enjoying the main sporting events. As David Mellor advises us—and we accept his advice—we must face the logic of his 1990 Act by adding subscription television to pay television. In so doing, we 126 shall keep faith with the millions who have no access to Sky, who cannot afford the £300 that is necessary to plug into Sky and to receive Sky Sport.
§ In that way, we shall remain true to the heritage of British sport on television, and to millions of young people who need the inspiration of sporting excellence to take up and enjoy sport. I beg to move.
§ 3.30 p.m.
§ Lord Peyton of Yeovil
I rise to support the amendment so ably moved by the noble Lord. I congratulate him on his eloquence and envy him his knowledge and experience in matters of sport. In order to offer some shadow of competition with his knowledge and interest, I have, for the first time in public, dredged into my past. I am sure it will come as something of a shock to the Committee to learn that I was once appointed Minister for Sport. That is one of the very few occasions on which I feel able now to congratulate myself on having behaved with perfect discretion. I did nothing. As the result of masterly inactivity over the first 36 or 48 hours, that awful problem went away. So I do not have that shadow upon me.
Another of my inadequacies is that I am unable to fall back on any great personal experience as to what happens to those who get into or out of bed with Mr. Murdoch. I do not for a moment suggest that the amendment is either an answer to the problems of broadcasting sporting events or to the more general questions raised under the Bill. I very much hope that my noble friend—in fact I am quite sure of it, because I have great respect for him—will not yield to the temptation which sometimes catches unwary Ministers to say that the amendment is inadequate. We know that it is inadequate. But it is a nudge to the Government to produce something better to cope with some very difficult problems.
Indeed, if I may say so with due modesty, I would claim that the amendment, even at this stage, has achieved some modest success. It has prompted the Government into admitting that there is a need for consultation on some very sensitive issues. That should be very much welcomed. At this point I must apologise to my noble friend. Over the weekend I said that I regarded this consultation effort, coming, as it did, late in the day, as something of a grubby manoeuvre. I had suspected that it might have attached to it some unpleasant device for removing the matter from this Chamber's consideration. In that I was quite wrong and I unreservedly withdraw that terrible remark about a grubby manoeuvre.
In the consultation document which has so thoughtfully been provided to us, there appear the immortal words:We must proceed prudently and with caution".Perhaps I may go a little further and express the hope that the Government will accept that "proceed" involves some movement and that that would not be satisfied by a static condition of waiting courteously and politely upon the market. It does not need me to tell the Committee that the communications industry is very important, very fast moving and very much open to 127 abuse. For those reasons I believe that competition has to be encouraged and any pre-eminence in that field avoided.
In sport, as elsewhere, there are conflicts. There are those who are responsible for producing the event but who do not quite own it; there are those who show it; and there those who very much want to watch it. We should do well to remember that there are many million members of the public who would find themselves very unhappy at being denied access to what are major national events simply because they could not afford the gadgetry necessary.
There are a number of points which we should all bear in mind. First, there is the quite unique position of the BBC, whose brief, by the way, I do not hold. The BBC once enjoyed a degree of monopoly and abused it. It ought not to be allowed to do so again but it should not be punished for ever by being shut out from events in which it is very experienced and to which it has some degree of right of access.
It is fair that we should also have in mind the difference in contributions made to the Treasury by the independent television companies and by BSkyB. The independent television companies pay an annual levy of £400 million a year (the noble Lord, Lord Thomson, knows more about that matter than I do). Not only do they pay that levy; in addition, they pay taxes on their profits. The contribution of BSkyB to the Treasury and to the taxpayer is almost negligible by comparison.
I want to dwell on one or two further points. In an imperfect world we still have national boundaries. I doubt whether there is any other country in the world that would have allowed a man who was a non-national to acquire quite the degree of eminence, power and influence that Mr. Murdoch has by his very great ability achieved for himself. This Bill may not give to either BSkyB or Mr. Murdoch all that they would like. But, unless I am very wrong, I suggest to the Committee that it most certainly will considerably enhance the position and power of a man who owes this country no allegiance and does not seem overwhelmed by admiration for its institutions or way of doing things but who finds it a very comfortable and profitable place in which to do business.
Let me go back for just a moment to the point I made earlier; namely, that communications is a very fast moving activity in which no one can foresee tomorrow's developments with any clarity. One thing is absolutely certain. All the arguments and difficult problems will not be settled in this Bill. I do hope for truly effective machinery of arbitration to be set up, so that there is some way for people with knowledge and experience to oversee the affairs of a vitally important industry and bring to bear their influence and knowledge to arbitrate in the very important and frequent disputes that will occur. Without that, I can envisage the balance of advantage going one way or the other or just being tipped over permanently into what the market dictates.
The market—I hope that my noble friend will take careful note of my remarks—is just as foolish as the rest of us and just as capable of making mistakes. But, if the 128 market has any merit, it is very important that there should be—in that overworked and ghastly phrase—a level playing field. That is not the case at the moment.
I feel that my noble friend has an extraordinarily difficult task in piloting this complicated Bill through this Chamber. I have no doubt that he will do it with skill and care. But I ask him to understand that, so far as I am concerned, this amendment is moved with absolutely no malice against him or the Government. At this moment I want to see it on the face of the Bill, with all its inadequacies, because I believe that it will serve as a very useful nudge to the Government, who will be obliged, because of its presence there, to come forward with something better in order to be justified in removing it. I have great pleasure in supporting the amendment.
§ Lord Weatherill
One of the blessed things about your Lordships' Chamber is that, unlike the other place, there is no need to repeat arguments that have already been well made. Now that I am a "free man" and travel by buses and on trains, I am occasionally accosted by members of the public. In recent days I have lost count of the number of people who have said to me, "What are you going to do about the so-called crown jewels of sport?".
I should declare an interest in that I am a non-executive director of United Artists, which is a cable company with a pay-as-you-view channel. Nevertheless, it is because 85 per cent. of our countrymen do not have cable or Sky TV that I attached my name to the amendment.
I am aware of the consultation document produced by the Government. The trouble with consultation is that it takes time. Your Lordships would therefore be wise to consider carefully the amendments on the Marshalled List this afternoon tabled in the name of the noble Lord, Lord Howell, and others. They seek to ensure that the majority of people in our country—the old as well as the young—are able to continue to watch the highlights of the eight major events of sport as was envisaged in the 1990 Act. It is for that reason that I strongly support the amendment to which I attach my name today.
§ 3.45 p.m.
§ Lord Thomson of Monifieth
I warmly support the amendment so ably moved by the noble Lord, Lord Howell, and supported by the noble Lords, Lord Peyton and Lord Weatherill. In the debates in the passage of the 1990 Bill through this House, I moved an amendment with a similar purpose. But those were the days before Mr. David Mellor saw the light in these matters and my amendment was soundly defeated. It did not at that time enjoy quite the strength of support across the Chamber that has been engendered by this amendment today. I hope that at the end of the debate the Minister will be able to accept the amendment or, if he does not, that the sense of the Committee will find itself in support of it.
Since the 1990 Act the problem has become more urgent with the immense growth of broadcast sport on satellite television. I recognise that that growth is largely due to BSkyB and it deserves credit for widening the 129 range of choice and extending the opportunities available for many of us to see sporting activities on the television screen. I recognise equally that that has brought substantial financial benefits to sporting organisations, which has meant that there are now legitimate conflicts of financial interest between satellite and terrestrial broadcasters and the sporting organisations.
My view—I hope it is not unduly naive; after spending 10 years as chairman of one of the broadcasting authorities it is difficult to retain any naivety about broadcasting matters—is that these conflicts are reconcilable if the Government will give a lead and those concerned show a little less greed and a little more willingness to consider the general public interest; that is, the interest of the viewers and the listeners.
It is sometimes forgotten that BSkyB, for all its enterprise in this matter and for all that it has widened the choice for those of us who are addicts of specific sports, and despite commanding a number of different satellite channels, has only 4.5 per cent. of the total television audience in this country. It is those who use the terrestrial broadcasting system that provide more than 90 per cent. of the television audience. It may sometimes be forgotten when we argue about the pros and cons of subscription broadcasting that the 90 per cent. plus of ordinary people using terrestrial channels are themselves engaged in a form of subscription broadcasting. It is a positive form because they all pay a licence fee and thus they are entitled to have their interests properly taken into account.
I do not believe that those interests can be left adequately to the sporting organisations, despite the eloquent letter in The Times quoted by the noble Lord, Lord Howell. The timing of the letter must have seemed somewhat unfortunate, since it coincided with the announcement by the Office of Fair Trading that it was referring to the restrictive practices court the activities of one of the major sporting organisations in football associated with the activities of BSkyB. The noble Lord, Lord Howell, quoted the rather devastating information that the licence agreement between one of the great golfing organisations—the PGA—and BSkyB specifically excluded any possibility of the Ryder Cup highlights being shown on BBC for the general benefit of the British public.
I applaud the public spirit of the IOC—the International Olympic Committee—in deciding to accept the lower bid of the European public service broadcasting organisations rather than the higher bid of Rupert Murdoch's news corporation, which would have put the Olympic Games, until the year 2008, into the hands of his organisation.
It is the Government's responsibility to define the public interest and then to defend it. I do not believe that in tackling that we needed the consultancy exercise which took us all by surprise at the end of last week. The noble Lord, Lord Inglewood, for whom we have the greatest respect as a responsible Minister in this Chamber, made two good speeches on the Second Reading of this Bill. But I did not hear him whisper in 130 either of them that there was a feeling that this was an issue on which fresh consultation was required. In fact, the Broadcasting Bill, together with the BBC Charter, has been subject to the most intense period of consultation on all aspects of broadcasting policy, including this one.
We all know that the real purpose behind the consultation exercise was cosmetic; it was a way of dealing with a divided Cabinet—divided on the issue of how far it should go down the purely market road in the matter of broadcasting where public interest should he dominant, and perhaps not so divided in its collective funk in facing up to the influence and power of Mr. Murdoch in a pre-election year.
It is important to remember that the listed events that we are discussing in this amendment are, in fact, only a small proportion of total sports broadcasting; but they are a special bit of it. They are not merely sporting occasions; they are national occasions of a special character. The listed events are now 40 years old and represent occasions which, in many ways, help to hold the nation together and give it a sense of being "one nation"—to quote a familiar phrase. There are all sorts of dear old ladies in Monifieth who apply themselves to watching the listed events on the television screen but who otherwise have no knowledge of the sport that they are watching and would not dream of attending a football match or a cricket Test match. They are special events and deserve a special degree of protection from the Government.
It is important to emphasise that in preserving the listed events we do not give to the terrestrial broadcasters—who compete with each other; there are now three or four competing terrestrial broadcasters—the exclusive right to those events. If the satellite broadcasters want to include these listed events in their package, they should be perfectly free to do so—it is important that they should be—or perfectly free to negotiate highlights of them. Banning exclusivity in the broadcasting of sporting events is the essence both for listed events and indeed for the rather wider and perhaps in some ways more important aspects of general sporting events, an area to which we shall come in the next clause.
I heard the Secretary of State today saying that one of her reasons for going through this curious period of consultation was that she wanted to try to ensure flexibility in relation to sporting events. I was puzzled by that because, if ever there was a flexible instrument of government, it is the sporting events. They are entirely in the hands of the Secretary of State. The Secretary of State can recommend adding to them or taking away from them. They can therefore be adjusted to take account of changing circumstances.
I have had a case put to me in the past few days from the Test and County Cricket Board. It was not seeking to be disengaged from listed events but the force of its argument was that test matches are a rather exceptional sporting special event. They go on for five days several times a year and therefore they are quite different from a football match which takes place over 90 minutes. I am a heathen Scot and I hesitate to make remarks about 131 cricket. But I am bound to say that I would be perfectly content to see the longueurs of a Test match on a subscription channel for those who are cricket enthusiasts, provided that the climax of the great games and the highlights were preserved for the general viewer. There might be a case for more flexibility in the definition of some of these special events.
I have some final remarks about the future. In pressing this amendment, all of us are aware that the world of broadcasting is changing fairly quickly. One of the main areas of the Bill that we shall come on to and try to understand is digital broadcasting, with its increased number of channels. It may well be that by the end of the century there will be a need to review this formula. For my part, I should be content if there were some provision for that kind of view. I am reinforced in that by having looked up the debate during which my original amendment on these matters was turned down in July 1990. At that time the Minister responding was the noble Earl, Lord Ferrers. In sustaining the Government's position at that time, he set out the reason why the 1990 Act applied only to pay-for-view and did not mention subscription services generally. He said that the only way for the foreseeable future that those channels would be able to show listed events profitably would be by charging for them on a pay-per-view basis. What has happened is that BSkyB has been extraordinarily profitable by offering a general subscription service. This country does not yet enjoy any pay-per-view service, although I understand that BSkyB is thinking about it for a great boxing match that lies immediately ahead of us.
I urge the Government to accept the amendment. They should do so looking forward to the future. They should hold the present position to at least the end of the century and make sure that, while the present situation exists, in which less than 5 per cent. of people enjoy BSkyB offerings and more than 90 per cent. depend on the public service broadcasting channels, the protection of the listed events should be extended and preserved.
§ Lord Wyatt of Weeford
I have a curious interest to declare, in that I have long been writing articles in Mr. Rupert Murdoch's newspapers and I own a few shares in News Corporation and in News International. But I had them long before I came into this House and they do not arise from my being a Member of this House or of this Committee. I also have an interest in how racing is affected in this matter. I have been chairman of the Tote since 1976 and I came into this House in 1987. Therefore, although I declare it, I have no interest that arises out of being a Member of this House.
I was afraid that the occasion of moving the amendment would become a Murdoch-bashing exercise. It owes more to that than it does to common sense. I was very sorry that my old friend the noble Lord, Lord Howell, took the extraordinary view that he did. Nearly every person and every organisation connected with sport, including the Central Council of Physical Recreation, which represents 300 organisations, want to be able to see the highest bidder get these great sporting events in order to fructify the sports which receive the money so that they may find the people and train the people who are going to be the great heroes and play for England in the future.
132 The Ryder Cup was mentioned. When the BBC had the Ryder Cup, it did not cover every day. Since BSkyB has had the Ryder Cup, it has covered every day and all of it. That shows how much more dedicated BSkyB is and how much better it is at showing sports programmes than the BBC. There was also a reference to the elderly and the infirm. They are always trundled out on these occasions. Perhaps I may say that more than 30,000 pubs and clubs provide free entry to elderly and infirm people, who can go there to watch free all the sports on BSkyB. So that argument is a non-starter as well. There is also the point that the friends or relations of the infirm may be willing to subscribe for them in order that they may have BSkyB programmes, whether they pay for a particular item or for the whole lot.
We were told that the BSkyB contribution to football stands has been nothing at all. That is not true. It has contributed a good deal to football stands, as have the organisations to which the noble Lord, Lord Howell, referred.
Then we had the question of highlights. What are highlights? How long are highlights to be? The argument for the showing of highlights concerns how much will be used and how long they go on for. That is what the argument is about. As I understand it, Sky has no wish to stop the selling of highlights, provided it can get an agreement on how much will be used.
§ Lord Howell
I have read out the contract under which Sky prevents the BBC from showing any highlights.
§ Lord Wyatt of Weeford
s: But I have later information than the noble Lord has.
Great play was made with restrictive practices and there were suggestions of a cartel. That has nothing to do with BSkyB. If there is a cartel, that has to do with the clubs themselves. If the matter goes to the restrictive practices court—and BSkyB has nothing to do with it—BSkyB is quite happy to deal with all the organisations involved separately if they wish. BSkyB has no standing in this matter at all. The matter has been raised as a smear against BSkyB to suggest that it will fall foul of the restrictive practices court.
My old friend the noble Lord, Lord Peyton of Yeovil, made an extraordinary statement. He said that Mr. Murdoch was a Canadian and what a terrible thing that was. I am sorry, he said that he was an American. I have got that wrong. I was thinking of Mr. Black, who is the main owner of a newspaper which I thought was sacred to the Tory Party. There has been no complaint about him being a foreigner. I thought it was very xenophobic for the noble Lord to refer to Mr. Murdoch as he did.
§ 4 p.m.
§ Lord Peyton of Yeovil
I should like to get this matter absolutely straight because we are on sensitive ground. I do not believe that I ever mentioned Mr. Black and I certainly did not mention the word "Canadian".
§ Lord Wyatt of Weeford
I have already accepted that. He was referred to as an American citizen and Mr. Murdoch was named. That was the xenophobic part. 133 Why is it that there was no reference or smear as regards Mr. Black, who is also a foreign owner in this capacity; namely, a Canadian? He is not a British citizen. It is because he is the promoter or controller of the Daily Telegraph.
Lord Thomson of Fleet, as he was called, said that his ownership and monopoly of Scottish television was a licence to print money, and no one complained at all in the Tory Party, although he was a Canadian. He owned the Sunday Times as well, which in those days was a fervent supporter of the Tory Party. It is rather disgraceful to introduce these xenophobic criticisms into the situation.
So far, less than 1 per cent. of sport previously shown on BBC and ITV has been transferred to BSkyB, so I do not see a great threat of a monopoly in this regard. It is not a monopoly at all. It is a field of intense competition and I thought the Tory Party believed in competition, but it appears that they do not if Mr. Murdoch is allowed to take part.
From the racing point of view, we would like to see every important race such as the Derby, the Grand National, the Queen Elizabeth and King George VI Stakes, the Diamond Stakes and so on, sold to the highest bidder because we have been hit very badly by the lottery and racing deserves to be able to get as much money back as it can. It is very negative of people to say that the Derby has necessarily to he shown by the BBC or whatever terrestrial station it may be. That is a very negative approach. The race should be open to free bidding. It is, in a sense, because it has already been sold to sponsors. I do not believe it is wrong for anything owned by racing to be sold to the highest bidder in order to gain some benefit to counteract the lottery among other things and also to promote the interests of racing. I am sorry that noble Lords take an opposite view. Many noble Lords here today are so determined to blacken Mr. Murdoch that the entire sky is filled with soot and a television could not be seen if there was one in front of us!
§ Lord Wyatt of Weeford
That is so. This is a ridiculous, concerted attack on one man because he has been more successful than others. After all, he was the person who put up satellites when no one else dared to do so. He showed the way at Wapping so that at last newspapers were able to be printed, which could not have taken place before.
§ Baroness Dean of Thornton-le-Fylde
We are discussing Sky television and television broadcasting, not industrial relations in the printing industry. However, if the noble Lord is willing to table a Motion to that effect, I shall he happy to debate it.
§ Lord Wyatt of Weeford
I am sorry to say to the noble Baroness that we have been discussing at length the character of Mr. Murdoch.
§ Lord Wyatt of Weeford
Oh yes we have! If noble Lords have not noticed that they must be stone deaf. That is a very big part of the story. Mr. Murdoch has 134 been a great entrepreneur who has freed up competition. He is envied because he has been successful. Many people in this country do not like those who are successful. I am enjoying myself!
§ Lord Wyatt of Weeford
The BBC forces the elderly and infirm to pay licence fees even if they do not want to watch BBC. In 1994, 763 people were jailed for non-payment of their licence fee, but no one is jailed for taking Sky programmes, whether for sport or anything else. No one is forced to watch those programmes because most people have "turn-off' switches on their television sets. Anyway, I believe that I have said enough.
§ Lord Wyatt of Weeford
I have said enough to show that the whole of this amendment is directed ad hominem, and absurdly, against someone who has done much for television in this country and for satellite television. He has risked a great deal of his own money and nearly went bust in doing so. Therefore, I very much hope that the Committee will reject this amendment.
§ Viscount Whitelaw
I do not intend to take a very long time over this matter. It is very important to get the measure we are discussing this afternoon exactly right. I personally am just as keen as many other noble Lords who have spoken about the various issues. The noble Lord, Lord Peyton, said that he did nothing, but that is not quite true. I know what he did at the time and he did quite a lot. It is wrong to say that he did not. He did many things very well indeed and I admired them very much. I do not believe that it is worth his while getting up. He knows that perfectly well.
We have a very difficult decision to make. I do not believe that it is easy simply to say, "I want various sports and 1 am going to have them in this way". I have great sympathy with many Members of the Committee in what they say, including the noble Lord, Lord Howell. But I do not believe that it is right for us to decide at this time that we are going to have a measure of this kind changed. There is a great deal still to be done. Perhaps I am not allowed to call the noble Lord, Lord Thompson, my friend, but he is. He said that he thought that it was very important to get the matter right. I could not agree with him more. It is very important to get the matter right.
How is that to be done? I do not believe that we shall do it by approving this measure at this time. Equally, I accept at once that something needs to be done. The noble Lord, Lord Weatherill, made some very wise and true remarks. However, I do not want to see the Committee deciding at this moment on the measure before we have the opportunity to talk to more people and discuss it further.
§ Viscount Whitelaw
I know exactly what some noble Lords want to do. It is very nice and splendid to get a 135 measure through. But that is not always what is right for your Lordships' House. I have been here long enough to know that very well. We must think carefully so we get the various measures right.
There have been some arguments about what the noble Lord, Lord Wyatt, said. I do not agree entirely but I accept quite a lot of what he said. If that is the case, should not this House look again at the measure and try to see whether we can find a sensible arrangement? That would do this Chamber a great deal of good: not to do that would be a great pity.
§ Lord Callaghan of Cardiff
We always know when the Government are in trouble. They are lucky to have the noble Viscount, Lord Whitelaw, to present a reasonable case on their behalf when they do not always seem totally capable of it themselves. I differ from the noble Viscount. I believe that he was once chairman of the legislation committee in the Cabinet. Like him, I have sat on many legislation committees. If there is one thing the legislation committee will want this afternoon it is that Members of the Committee should declare their view. The committee will then know that if there is something precise in the Bill, whether or not it is right, it must be handled delicately and completely and a provision brought before the other place which commands support there and also in this House because the Bill will return here in due course.
In those circumstances, there is no doubt about what this Chamber should do. We have been presented with Second Reading. The Government have given us the Bill to consider before it goes to another place. We are right to declare our opinion. It may be that we do not get it entirely right. However, when I consider the number of Bills where we are asked to put matters right that the other place has got wrong, it seems to be absurd that we should not be allowed to declare our preliminary view.
As the noble Lord, Lord Peyton, said, this is a nudge to the Government to indicate that we intend the matter to be taken seriously. I do not believe that on reflection the noble Lord, Lord Wyatt, will feel that he made the most persuasive speech of his career. It really is not a case of the amendment being about Mr. Murdoch whom I have had the pleasure of meeting only twice. But people are genuinely concerned. I am talking about ordinary people. They have no vendettas against Mr. Murdoch. However, they are concerned that they should be allowed to watch great national events. That is the nub of the question—nothing else. They want to make sure that Parliament decides in its wisdom that they shall not be excluded from watching great national events because the Government forgot about the matter, because some ideology prevailed, or because the power of money was so great.
I agree that the matter will need to be carefully thought out. But we should show the people of this country that we take note of their anxieties and that we have a view. We should send our view to another place and let it be considered there. We should ask another place to bring forward a proposal on which we may reflect. The shape of television is changing rapidly; what 136 we decide today may not be apposite in five years' time. But we wish to see certain safeguards built into the Bill. The only way to do that is by voting for the amendment and sending the Bill, as amended, to another place. The Government can then issue a White Paper, consult on the matter and bring forward a better scheme. For heaven's sake, let us not show ourselves to be toothless on an issue about which the ordinary men and women of this country are concerned.
§ 4.15 p.m.
§ Lord Barnett
The noble Viscount, Lord Whitelaw, made the only serious case for not deciding the matter today and allowing the other place to do so. I hope that the noble Viscount will agree on reflection that that is not really a case at all. The noble Lord, Lord Wyatt, declared two interests. He works for Murdoch—I assure him that I shall not blacken Murdoch's name—and he is employed by the Tote. As the noble Lord will know from my brief conversations with him from time to time, I have never agreed with his articles in The Times and I did not agree with his speech today. I am sure that he will not be too surprised to hear that. The noble Lord said that the elderly and the infirm may go and watch Sky Television in clubs and pubs. I do not know how many. We have a few elderly and infirm in this Chamber; perhaps we should carry out a poll. I should like to have a bet with the noble Lord that there would not be a majority of people who go to pubs and clubs, or anywhere else for that matter, to see Sky Television.
I quote something said by an important person:Sport is a binding force between generations and across borders. But, by a miraculous paradox, it is at the same time one of the defining characteristics of our national pride. We should cherish it for both reasons".There is a game going on in another place at the moment at Prime Minister's Question Time. The quote is from the Prime Minister in his introduction to Sport—Raising the Game. How can that be a defining characteristic if 85 per cent. of the population cannot watch sport on television? That is the situation at present.
I declare an interest. I have cable television. I have it because I want to watch sport. I prefer to go to see Manchester United, the best club in the country. They may not win the league this year but that is another matter. I say to the noble Lord, Lord Wyatt, that the important point is that neither Sky nor sport generally need suffer if the amendment is carried. Sky would still be able to have sports programmes but it would not have a monopoly and would share them with terrestrial television. That is the point of the amendment. At present Sky may secure rights to all key events and so terrestrial television loses out. Surely it cannot be right that only 15 per cent. of the country's population can watch those programmes. That is what the amendment is about. It is not about blackening the name of Mr. Murdoch. I am not interested in Mr. Murdoch. I feel that the whole of the country should be able to watch sport on television if they wish to do so. Plenty of people do not wish to watch sport, but if they do let them see it. What is wrong with that?
137 The noble Lord, Lord Peyton, referred to market forces. Of course, as he said, market forces get it wrong from time to time. Let them get it wrong. We should not prevent that. That is the main point, is it not? We are talking about achieving a better balance. We are trying to achieve a balance which ensures that sporting programmes are available across the board on terrestrial and Sky satellite channels. I agree with the noble Lord, Lord Peyton, that the BBC should not have a monopoly. Nobody should have a monopoly. That is what this amendment is about; that is why I shall support it.
§ Baroness Hylton-Foster
I should like all to feel that everyone, young and old—in particular, the young—should be able to watch sporting events. Like many Members of the Committee I went to the conference centre last week to see Sky's presentation. After listening for quite a while to Sky explaining how clever and wonderful it was and what a good job it had done, at last it said that there were many people who would not be able to afford Sky at the moment—I believe the noble Lord, Lord Howell, said at least 30 million people.
That means that masses of young people will be deprived of the opportunity of viewing games and sport, becoming excited about them, and then perhaps themselves becoming players of the sports upon which they are particularly keen. The Government are now urging schools to take more interest in sport and games. In my day they were all called games. It would be disastrous were young people again to be deprived of enjoying hacking their favourite teams and stars. I ask the Government to see what they can do in the Bill to make that possible.
§ The Marquess of Reading
The purpose of the amendment is to ensure that the eight listed events are shown on terrestrial television channels such as BBC1, BBC2, ITV and Channel 4. The amendment states that the listed events would have to be shown on channels available for general reception in the UK. They could not be reserved exclusively for subscription or pay-per-view channels. The eight listed events are, of course, the Grand National, the Derby, the FA Cup Final, the Scottish Cup Final, the Wimbledon finals, England's home Test matches, the Olympics and the World Cup finals.
The Broadcasting Act 1990 ensures that those events cannot be shown on pay-per-view channels. However, contrary to the understanding of many Members of this place and of the other place, most could be bought by subscription satellite channels even now. That would mean that the bulk of the population would be unable to see them; 85 per cent. is the figure, I understand, agreed by Sky and the BBC.
The purpose of today's amendment is to ensure that those events would have to be shown on mainstream TV channels which the bulk of the population can receive, but the amendment would not deny the satellite channels the right to show the events. They could show them at the same time as the mainstream channels if they wished, and bring all their ingenuity to bear in branding their own and in giving their viewers unique coverage of the event, with their added distribution capacity.
138 The amendment would ensure coverage by placing a duty on the ITC to ensure the availability of the events on free-to-air channels. We would expect the ITC to ensure that a satellite subscription channel would not be allowed to be the only broadcaster. That builds upon the ITC's responsibility under the 1990 Act, and its duty to prevent their showing on pay-per-view channels.
The live rights to those specific events should be determined by the highest bid from universally available terrestrial channels. Recent evidence of competition for the Cup Final and the Grands Prix between the BBC and ITV shows that there is healthy competition for the rights between the terrestrial channels. Satellite channels would also have the right to buy the rights if they also wanted to show them at the same time as the terrestrials.
The eight events have rightly been called the crown jewels of sport. No doubt some Members of the Committee have been surprised to find that they do not include the Five Nations rugby which we were able to see on Saturday. I am sure that we all have our preferences for different events. We are leaving the Secretary of State's responsibility intact in determining which sports should be included. Today we vote on the principle, not on detail. There is plenty of evidence about what viewers think are the important events, as the survey published over the weekend has shown.
I want to lay to rest one ghost today. We are not trying to extend the list in the amendments. I am sorry that BSkyB has been scaremongering about that in its briefing document which it gave to Members of this place last week. Contrary to BSkyB's briefing, The Broadcasting Bill and listed sporting events, neither we nor the mainstream broadcasters are seeking to add other events to the list. Nor—this is important—are we attacking the sports' incomes, as some sports bodies have claimed in The Times today.
These events form an infinitesimal proportion of the events which sporting bodies are able to sell. They are able to sell live TV rights, live radio rights, and TV highlights. There is a good market here. Some sports have a commitment to ensuring that the widest possible audience watches their events. That is true of the Olympics. I am delighted that the BBC has secured the rights through to 2008. But the International Olympic Committee has a charter that says that it must ensure the widest possible audience for the Olympics. That is true to the Olympic spirit, but that is unique. No one else has such a charter, ethos, and culture, except perhaps the All-England club.
Today the Committee has the opportunity to correct a deficiency of the 1990 Act. In 1990 things were different. In 1990, Sky had no sports channel of its own—subscription or otherwise. It was its competitor BSB which had the Sports Channel. Sky merely offered Eurosport on behalf of the European Broadcasting Union and showed any big sports it bought itself on its general channel, Sky One. A month after the Broadcasting Act 1990 received Royal Assent, Sky and BSB merged. Some would call it a takeover. After that, Sky had its sports channel, and in 1992 it went onto subscription.
139 No one in 1990 could have forecast that today we would have one broadcaster dominating our sports in the way that BSkyB does. So it is understandable that in 1990 different decisions were taken by this place and by another place. But it is interesting to note that the then Minister in the other place has now changed his mind and believes that there should be regulation.
But today's debate is not about BSkyB or any other broadcaster. BSkyB has done well in expanding coverage of sport. The debate is about the ordinary viewer. About one-in-six households subscribes to Sky Sports, but 26 million viewers watched the 1966 World Cup. As things stand, it would be nice to believe that the market will protect the sports, the viewers and the listeners. But, sadly, we already have cases where satellite channels refuse to sell the rights on to more mainstream broadcasters; for instance, the Ryder Cup has been mentioned. I hope that Members of the Committee will have seen from the weekend's press that the contract for that event stated specifically that the BBC would not be able to show any coverage of that on television. Thankfully, the rights were sold to Radio Five Live. There is the cricket World Cup, and I hope that BBC's bid for rights to BSkyB is successful, but BSkyB was grudging in selling the radio rights, and we are still waiting on the TV highlights.
I urge the Committee not to be taken in by any BSkyB propaganda which states that the BBC did not bid for these events. In the case of the Ryder Cup, it was presented with a fait accompli. The contract stated that the BBC would not have rights. In the case of the cricket World Cup, the BBC's original offer was turned down in the autumn. Its new offer, the same as in the autumn, has been under consideration only because this debate is taking place today and the cricket World Cup begins this weekend.
§ 4.30 p.m.
My Lords, we must be clear about what the amendment states. It purely extends pay-to-view to subscription as regards events on the list. It is nothing to do with restrictions on Mr. Murdoch; it is nothing to do with highlights; it is nothing to do with consultation about what should be on the list; and it is nothing to do with many other issues that have been raised in the debate. It specifically extends pay-to-view to subscription.
It must be an anomaly that under the current law all eight events could be denied from terrestrial television; they could all be on subscription television. The Government have produced an extremely thorough and comprehensive consultation paper which allows the Committee to consider the issues while the Bill is before it. It has extended the debate and has given us the statistics and information which allow us to discuss the matter in a much wider context. I do not believe that we can debate the amendment without considering the complex matters of the right-holders. After all, we are talking about the rights to broadcast, which is the same as copyright and book-right.
140 We should think most carefully before pressing the amendment today because the Government have said that they will come forward with their views. Can my noble friend assure the Committee today that before the end of our debates on the Bill the Government will come forward with their proposals so that we can discuss them?
§ Lord Annan
There is only one real issue, which is: do we put the interests of the consumers—that is, the viewers—first? I very much hope that the Committee will believe that we should do that. The second point is that if the proposals contained in the amendment were not given top consideration and the amendment failed to be accepted, I wonder how long the licence fee would last. Surely the licence fee exists to ensure that terrestrial television should be able to show all events of this kind.
§ Lord Aberdare
I had no intention of speaking in the debate but the noble Lord, Lord Howell, mentioned my name and the noble Lord. Lord Wyatt, took up the point. Perhaps I should put the record straight. My comments are related to the claim by BSkyB that all the £400 million-odd which has been put into building magnificent new football stadia came from its sources. That is not true. My organisation, the Football Trust, of which I am happy to be chairman, subscribed approximately one-third of that money and it is proud of what has been achieved. It is also most grateful to the Government because, indirectly, that money comes from the reduction in the football pools betting duty via the football pools companies. The remaining two-thirds came from the clubs, which are deserving of considerable praise as regards the money that they have given, and no doubt they were helped to a large extent by the money that they received from BSkyB. That is the situation in reality.
Perhaps I may add that I came into the Chamber today not having made up my mind about the amendment but being unconvinced and undecided about what to do. However, from what I have heard I find the case for the amendment very convincing.
§ Viscount Caldecote
s: There is little more to be said in favour of the amendment, but I wish to make one point that has not yet been made. The issue is in danger of being seen merely as striking a balance between the financial benefits to sport and an excessive monopoly which is detrimental to the public interest. However, there is more benefit from sport than money. The public have given enormous support to sport, and without the expansion that the public have helped to generate there would not be nearly so much high-quality sport to be televised. The Central Council for Physical Recreation states in its briefing:Attempts to impose new restrictions on the thriving commercial market in televised sporting rights are likely to have a substantial negative impact on British sport".I do not agree with that. The vital issue is to give the greatest possible opportunity to everyone, in particular the young, to watch sport on TV. That is also in the best interests of sport and of improving the quality of life in this country.
§ Lord Donoughue
It is not flattering the Committee to say that this has been a marvellous debate and that we have had fine contributions from all sides. As a signatory to the amendment, I believe that nearly all Members—and I almost include the noble Lord, Lord Wyatt—one way or another ended up on our side.
I do not wish to make a long speech, but I shall try to focus on the points that have arisen. As was said in a nutshell by my noble friend Lord Callaghan, the central issue is to ensure that the nation can watch national sports and that no minority monopoly can shut out 85 per cent. of sports lovers. Accordingly, the amendment is based on the 1990 Act. The Minister, putting that Act through another place, stated his support for our amendment.
The amendment is not intended to ban sports from Sky television. It bans monopoly, whether it is Sky or terrestrial television. That is most important. The amendment is not against market forces. I am not against market forces. I believe that I am the only former member of the London Stock Exchange ever to sit on this Front Bench. I am certainly in favour of market forces. All will be free to bid non-exclusively for live coverage, for highlights, for news extracts. A later amendment covers the question of highlights.
The amendment is against monopoly control and its possible potential practices. Action taken today by the Director-General of Fair Trading, which I need not go into in detail, reinforces our anxieties. I should be surprised if the Government wished to extend the listed events into waters which potentially contain such practices. I have a copy of the Ryder Cup contract which illustrates how the public can be shut out.
I am not against sports receiving a fair return from broadcasting rights. A few sports governing bodies—and it is a few—are taking what I believe to be a short-term, money-only view. Not all, I may say. Today I saw that the Football Association made an excellently balanced statement. However, it is not in the long-term interests of sports to offer broadcasters what will ultimately be monopoly rights. It will be a monopoly because, as has been said, if the BBC and ITV do not receive a share of the sports rights they will shrink and will not have the resources to compete. When all the sports are in that monopoly cupboard the payments will be cut, because that is normal monopoly behaviour.
It is not in the interest of sports to shut out 85 per cent. of their supporters; to shut out the pensioners and the unemployed who in good times were able to go to the matches and who might be able to afford Sky television but certainly not the licence, which is 400 per cent. more than the BBC licence. As the noble Baroness said, it is not in the interests of any of us to shut out the youth of this country and to shut out young sportsmen so that they cannot see their good role models.
I now turn to what actually faces us today; namely, the consultation issue and whether to vote. Like the noble Lord, Lord Peyton, I must confess that it 142 crossed my mind that the consultation process was a sort of device to bypass this Chamber during the Committee stage. That happened to be my subsequent reaction. But, being a trusting man, it merely hovered a while. It occurred to me that the Bill has been two years in preparation. It was published last year. We had a magnificent Second Reading debate when, as has been said, the Minister made a wonderfully long speech. But there was no time to mention the point of consultation.
Who are they going to consult? Surely they have no need to consult any friends in Sky, or Sky Sport's clients, because their views are fully reflected in the consultation document which has nine quotes from Sky's PR document. In fact, the nation has already discussed the matter and thrashed it out. It has already been consulted and that has shown that 90 per cent. of the nation support our position; as, indeed, do two-thirds of Sky's sport viewers, among whom I am one.
The all-party Select Committee with a Conservative majority has already been consulted and, with that majority, was unanimous in support of our position. MPs in another place were polled over the weekend by MORI. That poll showed that a majority of Conservatives, and an overwhelming majority of all others, support our position. I believe that the Government should consult this Chamber today and not try to avoid it. There is no need for delay.
I wonder why the Government are still apparently siding with a minority monopoly. I would say to the Minister that if he can tell us today that the Government will go away and return with draft clauses or proposals which meet the spirit of our amendments and of what the nation wants, then I am sure that we would sympathetically consider withdrawing the amendment and supporting the Government on Report. Our amendment may be defective, but, as my noble friend said, many defective amendments have been put before this Chamber by the Government.
However, if the Government simply ask us for delay because of some potentially spurious further consultation to avoid the will of this Chamber, then I believe that we should vote to show that we do not like being bypassed; to show our opinion that the nation should have access to televised sport; to show that we are not toothless; and to show that, ironically, on this issue, as on a number of others, this Chamber stands in the mainstream of national popular opinion. I believe that it is our historic role to express our view in Committee and to send it to another place.
§ 5 p.m.
§ Lord Inglewood
The Government welcome the helpful and high quality debate that we are having on this important issue. Parliament has the last word in this matter and it is, therefore, for Parliament to decide; so a proper understanding of noble Lords' views is essential for us.
This is a topic which quite properly and understandably is of concern to many noble Lords. It is equally so to sporting bodies, to broadcasters, and to 143 the wider public, be they regular viewers of sport on television, occasional watchers, participants, or those children and young people who may be inspired to take part. The Government recognise those concerns and, as I said, we value what has been said in today's debate. We are grateful for the spirit in which the debate has been conducted. Perhaps I may thank noble Lords for their kind personal remarks about me, albeit recognising the fact that they were, normally, a shield for rather more barbed comment about the Government.
I should like to say something about the general issues which are relevant in considering new controls in this area. I shall then turn to the specific amendment that has been moved. But, before I do so, I want to respond to some of the procedural comments made about the Government's position paper which, as has been said, was issued last week.
The Broadcasting Bill before the House establishes new structures for digital terrestrial broadcasting, and sets out a new framework for the ownership of licensed services. Throughout the work that we have done bringing the Bill forward we have deliberately endeavoured to consult widely in respect of the matters that it covers. That process has, I think and hope, been generally welcomed and we intend to proceed with the Bill on that basis because it seems the right way of dealing with such legislation. It has enabled us to be more sure that we have got to the bottom of the issues on which we propose to legislate and that we have taken proper account of the legitimate interests of those affected by them.
The amendments that we are discussing today are entirely distinct from the proposals in the Bill as introduced. They seek to introduce new controls on broadcasting sports rights beyond those in the Broadcasting Act 1990. The issues may look relatively straightforward alongside some of the technical broadcasting matters that we shall debate later in Committee, but, in reality, they are no less complicated for reasons that I shall try to explain. Equally, they affect significantly a wide range of interests.
Hence, just as we did for media ownership and digital policy, we concluded after careful thought that it was right to put out a discussion paper to inform this new debate and to give those whose interests might be affected to their own detriment the opportunity to put their case. Surely that is only fair. It will also improve our understanding of the issues.
We accordingly published a discussion paper last week. It is just that—a discussion paper. It does not advocate any particular proposal. It derives much of its factual content from the Heritage Select Committee Report to the other place in 1994. Within the next fortnight we aim to conclude a series of discussions on it with groups of broadcasters, sports interests, regulatory bodies and bodies representing viewer and consumer interests. In the light of this, the Government will decide on the merits of proposals for possible legislative change. The timetable is compressed. That is because sports rights did not form part of the Bill as introduced before Christmas. We are proceeding with all possible speed, and I plan to make clear the Government's 144 intentions as to how they mean to proceed no later than Report stage. We will clearly need to take full account of opinions aired in this Chamber today, and shall do so. That will provide the basis for plenty of fuller discussion and debate.
I can specifically reassure Members of the Committee that that process is not intended to cut across parliamentary debate, but to assist it. I am most grateful to my noble friend Lord Peyton for his kind comments in reference to the remark about "a grubby manoeuvre". I was so busy working on problems relating to free-to-air broadcasting that I did not have any time to listen, so I was not actually aware of those comments.
I really believe that what we have done does not raise constitutional issues which damage, demean or in any way impugn the role played by this Chamber. On the contrary, I can assure Members of the Committee that today's debate will be a very significant contribution to our thinking. Noble Lords will have ample opportunity to return to the matter on Report and beyond, and to do so on the basis of fuller information on the implications of action in the area and of the Government's intentions. In short, further consideration of these matters can only increase noble Lords' input on this aspect of the Bill and our scope for influencing this matter for the best.
However, as we all know, there is increasing and understandable public concern that the next stage in the development of subscription television could pose a serious threat to the ability of terrestrial free-to-air broadcasters to provide coverage of key sporting events—those which have a wider resonance than just to the committed fan. In considering how to respond to those concerns, we need to reflect on and accurately and precisely analyse the complex and changing balance between the interests of the sporting bodies, the new cable, satellite and digital terrestrial television services, the traditional broadcasters, the general viewing public's wishes and aspirations and the interests of those who participate. In particular we must ensure the interests of the disadvantaged, the disabled and the least well off are not lost sight of.
It is clear, however, that the development of subscription television for sport alongside terrestrial television, whatever problems it may pose, has had some beneficial effects. Significantly increased income for broadcasting rights has benefited sport at all levels. For example, it has enabled the TCCB, to give but one example, to invest substantial sums in cricket training at grass roots level. More sport is covered on television and in greater depth than ever before because of the development of subscription services which are in turn part of a wider television revolution. Alongside increased provision on subscription services, many major events are still available on terrestrial services. It is worth noting that no listed event covered by terrestrial channels has been lost to subscription television.
There are no easy answers here. If there were, I should already have come to the Chamber with them. We need to find a measured balance between all the interests involved. In doing so we need to assess a number of matters. First, if guaranteed access to sporting events is secured to a particular category of broadcasters 145 through a list as in the 1990 Act, what events should be included in the list, and how should it be altered? Secondly, can guaranteed access to key sporting events on terrestrial channels be secured without undue damage to the ability of rights holders to exploit their rights in the interests of their sports thereby seriously harming the sports themselves?
Thirdly, what might be the effect of any change on subscription broadcasters' ability to develop their industry in the interests of the public at large? This may he an important element in determining the success or failure of digital terrestrial television. Fourthly, how far is any approach compatible with the flexibility needed at a time when broadcasting technology is changing rapidly? Finally, and arguably most fundamentally of all, will any of the suggested changes actually work, thereby delivering the benefits their proponents contend for them? No one should underestimate the legal and administrative technicalities involved, which have to be got right to get it right. That, as my noble friend Lord Whitelaw said, is important. We need to find out more of what are the views of those actually involved and the exact nature, scale and characteristics of the issues and problems involved in order to assess fully and responsibly all the implications for change included in the amendments before the Committee.
I now turn to the amendment proposed by the noble Lords, Lord Howell, Lord Peyton, Lord Weatherill and Lord Donoughue. The amendment is close to one of the possibilities canvassed in our discussion paper and which we wish to see examined in more depth as part of the debate about these issues. In detail we believe the amendment flawed. That does not mean that the idea underlying it is not one which might provide the basis for change.
We fully understand and recognise the concern underlying the amendment. It seeks to give effect to one of the options to which I have already referred. But the issues are perhaps not as straightforward as they appear at first glance. The amendment raises a number of general questions which the debate has left unanswered. It is also not clear that it will work. I am not talking about technical drafting deficiencies—I fully understand the comments made—but about possible major shortcomings leaving loopholes. I cannot see any point in legislation which does not work as it is intended.
Perhaps it would help the Committee if I were to illustrate briefly some of the difficult issues to which the amendment gives rise. It raises major questions as to regulation and enforcement which in turn highlight some general problems. It is proposed that the Independent Television Commission should do all it can to restrict live exclusive broadcast of listed events by pay-per-view and subscription television and to ensure the live broadcast of listed events on television services for general reception. How is the commission to ensure that listed events are included in television services for general reception, not least when it has no regulatory role in respect of the BBC? It has no powers of direction in this field. Nor can it be right that it should have the power to stipulate that a particular channel shows a particular programme at a particular time.
146 It is unclear how any restrictions of the kind proposed are to be made enforceable. Obviously, they cannot apply to sporting events where the rights belong to international bodies and which are negotiated with broadcasters collectively, such as the Olympics. More fundamentally, the controls as proposed could not prevent United Kingdom sports rights holders selling broadcasting rights to companies based abroad and providing entirely lawful satellite uplink services from outside the United Kingdom. That would appear seriously to undermine the value of the proposed restrictions. The amendment would also fundamentally and radically alter copyright legislation in a hitherto unanticipated manner.
As I hope I have made clear, the debate we are having is helpful for the Government, even though the amendment upon which it is hung is one we believe would be positively unhelpful to Parliament in achieving the outcome it wishes. We believe that that outcome can be best achieved by allowing the consultation process to go ahead as I have described. We believe that an amendment of the kind we are discussing can only box the Government in in their efforts to find the best and most satisfactory and workable solution to the difficulties that beset us.
Having heard what has been said this evening, we are now fully apprised of the sense of the Committee and we shall draw that into our deliberations. In the words of the noble Lord, Lord Callaghan, that is what the Committee should aim to achieve from this debate.
§ Lord Callaghan of Cardiff
The noble Lord has been so helpful in accepting the general view of the Committee that it occurs to me to ask why we should not reverse the normal process in the sense that the Bill has come to this Chamber first. We are the first Chamber to consider it and deliberate it. Why should we not ask another place to act in the way that we are normally asked to act, namely, as a revising Chamber? If there are defects in the amendment, let another place put the matter right after the Government have considered it. Would that not be the sensible way forward if this Chamber is to be given the respect it deserves?
§ Lord Inglewood
The noble Lord, Lord Callaghan, puts forward a sage proposition. It is not inconsistent with what I explained is inherent in our proposals. As I explained, I intend to indicate to noble Lords before Report stage what the Government's position is. That provides opportunities for debate on Report and Third Reading. I am sure the noble Lord is right. This may well be an occasion when it is appropriate for the other place to be the revising Chamber. I am delighted that we seem to be at one on that important point. If those noble Lords proposing the amendment bring it to a vote, I urge the Committee not to support it. We believe that to do so would reduce rather than increase the likelihood of successfully resolving what by any standards is a difficult and far from straightforward conundrum.
§ Lord Howell
I shall speak briefly because the debate has spoken for itself. I shall say little about the comments of the noble Lord, Lord Wyatt, except to say 147 that the 300 organisations represented by the CCPR, which he mentioned, were certainly not consulted. The people mentioned in the letter to which he referred were involved in spectator sports. I am grateful to the Minister for his normal great courtesy. Indeed, I am grateful to all the Members of the Committee who have spoken.
The Minister, with his great charm, placed before the Committee what is really a most ludicrous proposition; namely, that he can consult everyone in a fortnight and return to this Chamber with the results of that consultation, not having previously undertaken such consultation. The Ministers's noble friend Lord Astor, who has spoken, was for a long period the Minister in charge of the preparation of the Bill. So why did he not consult everyone before we reached this stage? Why is he only now telling us what we should be doing?
The Minister undermined what he said about consultation over the next fortnight by recounting a long list of matters which he said had to be considered. It is totally impossible to consider all those matters in a fortnight. What about the 30 million viewers who cannot watch sport on their televisions? How are the Government going to consult them in a fortnight? What machinery exists to carry out that extraordinary consultation exercise in a fortnight when that has not been possible in the past 10 years since the legislation came on to the statute book?
I want to say a word about the faulty wording of the amendment to which the Minister drew our attention. If it is faulty, I am sorry to say that it is the fault of the Government because the amendment repeats exactly the wording of the 1990 Act. I was very careful to do that because I thought that I would beat that kind of argument. Whenever I took the field as a football referee, I took care to know what I was doing and who was playing before I went on to the field. That is what we had to do on this occasion.
We are very grateful to the noble Lord, Lord Inglewood, for being so helpful and charming. However, my noble friend Lord Callaghan wins the day. The sap of the nation is rising. Not only is there anxiety about these sporting events, but there is also profound anxiety about the way monopoly television is going. That is why the nation is asking us to protect its interests and to protest. It is for that reason that we must press the amendment to a Division today.
§ 5.1 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 223; Not-Contents, 106.150
|Division No. 1|
|Aberdare, L.||Addington, L.|
|Abinger, L.||Airedale, L.|
|Ackner, L.||Aldington, L.|
|Acton, L.||Alexander of Tunis,E.|
|Allenby of Megiddo, V.||Greenhill of Harrow, L.|
|Annan, L.||Grenfell, L.|
|Archer of Sandwell, L.||Grey, E.|
|Ashley of Stoke, L.||Hamwee, B.|
|Attlee, E.||Harding of Petherton, L.|
|Baldwin of Bewdley, E.||Harris of Greenwich, L.|
|Balfour of Inchrye, L.||Hayhoe, L.|
|Bancroft, L.||Hayman, B.|
|Barnett, L.||Healey, L.|
|Beaumont of Whitley, L.||Henderson of Brompton, L.|
|Belhaven and Stenton, L.||Hertford, M.|
|Beloff, L.||Hilton of Eggardon, B.|
|Berkeley, L.||Hollis of Heigham, B.|
|Birk, B.||Howell, L. [Teller.]|
|Blackstone, B.||Howie of Troon, L|
|Blease, L.||Hughes, L.|
|Blyth, L.||Huntingdon, E.|
|Borrie, L.||Hylton-Foster, B.|
|Bridge of Harwich, L.||Ilchester, E.|
|Bridgeman, V.||Inchcape, E.|
|Bridges, L.||Inchyra, L.|
|Broadbridge, L.||Iveagh, E.|
|Brookeborough, V.||James of Holland Park, B.|
|Brooks of Tremorfa, L.||Jeger, B.|
|Bruce of Donington, L.||Jenkin of Roding, L.|
|Caldecote, V.||Jenkins of Hillhead, L.|
|Callaghan of Cardiff, L.||Jenkins of Putney, L.|
|Carnarvon, E.||Judd, L.|
|Carter, L.||Kilbracken, L.|
|Castle of Blackburn, B.||Kilmarnock, L.|
|Chapple, L.||Kimball, L.|
|Charteris of Amisfield, L.||Kintore, E.|
|Chorley, L||Kirkhill, L.|
|Clark of Kempston, L.||Lauderdale, E.|
|Cledwyn of Penrhos, L.||Lester of Herne Hill, L.|
|Clinton, L.||Lincoln, Bp.|
|Clinton-Davis, L.||Lindsey and Abingdon, E.|
|Cobbold, L.||Lloyd-George of Dwyfor, E.|
|Cockfield, L.||Lockwood, B.|
|Cocks of Hartcliffe, L.||Lovell-Davis, L.|
|Coventry, Bp.||Lucas of Chilworth, L.|
|Craig of Radley, L.||McCarthy, L.|
|Craigavon, V.||McConnell, L.|
|Crickhowell, L.||McGregor of Durris, L.|
|Cross, V.||McIntosh of Haringey, L.|
|Cudlipp, L.||Mackie of Benshie, L.|
|Dacre of Glanton, L.||McNair, L.|
|David, B.||McNally, L.|
|Dean of Beswick, L.||Mallalieu, B.|
|Dean of Thornton-le-Fylde, B.||Marlborough, D.|
|Desai, L.||Masham of Ilton, B.|
|Donaldson of Kingsbridge, L.||Mason of Barnsley, L.|
|Donoughmore, E.||Mayhew, L.|
|Donoughue, L.||Merlyn-Rees, L.|
|Dormand of Easington, L.||Merrivale, L.|
|Downshire, M.||Middleton, L.|
|Dubs, L.||Milne, L.|
|Dundonald, E.||Milner of Leeds, L.|
|Elis-Thomas, L.||Milverton, L.|
|Ellenborough, L.||Mishcon, L.|
|Erroll, E.||Molloy, L.|
|Exmouth, V.||Moore of Wolvercote, L.|
|Faithfull, B.||Morris of Castle Morris, L.|
|Falkender, B.||Mottistone, L.|
|Falkland, V.||Moyne, L.|
|Farrington of Ribbleton, B.||Munster, E.|
|Fisher of Rednal, B.||Murray of Epping Forest, L.|
|Fraser of Kilmorack, L.||Nicol, B.|
|Gage, V.||Ogmore, L.|
|Gallacher, L.||Oliver of Aylmerton, L.|
|Geddes, L.||Palmer, L.|
|Gilmour of Craigmillar, L.||Palumbo, L.|
|Gladwin of Clee, L.||Park of Monmouth, B.|
|Graham of Edmonton, L.||Pender, L.|
|Gray of Contin, L.||Peston, L.|
|Peyton of Yeovil. L.||Skelmersdale, L.|
|Phillips of Ellesmere, L.||Smith of Gilmorehill, B.|
|Plant of Highfield, L.||B. Stedman, B.|
|Plummer of St. Marylebone, L.||Stodart of Swindon, L.|
|Prys-Davies, L.||Stoddart of Swindon, L.|
|Quinton, L.||Strabolgi, L.|
|Quirk, L.||Taylor of Gryfe, L.|
|Rea, L.||Temple of Stowe, E.|
|Reading, M.||Templeman, L.|
|Reay, L.||Terrington, L.|
|Redesdale, L.||Thomas of Walliswood, B.|
|Richard, L.||Thomson of Monifieth, L. [Teller.]|
|Rix, L.||Thurlow, L.|
|Robertson of Oakridge. L.||Tordoff, L.|
|Robson of Kiddington, B.||Turner of Camden, B.|
|Rochester, L.||Varley, L.|
|Rodgers of Quarry Bank, L.||Weatherill, L|
|Runcie, L.||Wedderbum of Charlton, L.|
|Russell, E.||Westbury, L.|
|Sainsbury, L. St. Davids, V.||Westmorland, E.|
|St. John of Bletso, L.||Whaddon, L.|
|Sandwich, E.||White, B.|
|Sefton of Garston, L.||Wilberforce, L.|
|Serota, B.||Williams of Crosby, B.|
|Sewel, L.||Williams of Elvel, L.|
|Shannon, E.||Williams of Mostyn, L.|
|Shaughnessy, L.||Willoughby de Broke, L|
|Shepherd, L.||Winston, L.|
|Sheffield, L.||Wolfson, L.|
|Simon, V.||Young of Dartington, L.|
|Simon of Glaisrlale, L.|
|Addison, V.||Harmar-Nicholls, L.|
|Ailsa, M.||Harris of High Cross, L.|
|Archer of Weston-Super-Mare, L.||Harvington, L.|
|Arran, E.||Henley, L.|
|Ashbourne, L.||Holdemess, L.|
|Astor, V.||HohnPatricic, L.|
|Astor of Hever, L.||Hooper, B.|
|Barber, L.||Inglewood, L.|
|Barber of Tewkesbury, L.||Ironside, L.|
|Bethell, L.||Johnston of Rockport, L.|
|Boardman, L.||Kimberley, E.|
|Bowness, L.||Kingsland, L.|
|Boyd-Carpenter, L.||Knollys, V.|
|Braine of Wheatley, L.||Knutsford, V.|
|Brigstocke, B.||Liverpool, E.|
|Brougham and Vaux, L||Long, V.|
|Eturnham, L.||Lucas, L.|
|Butterworth, L.||Lyell, L.|
|Campbell of Croy, L.||Mackay of Ardbrecknish, L|
|Chelmsford, V.||Mackay of Clashfern, L. [Lord Chancellor.]|
|Chesham, L. [Teller.]||Mackay of Drumadoon, L.|
|Coleraine, L.||Manton, L.|
|Courtown, E.||Marlesford, L.|
|Cranbome, V. [Lord Privy Seal.]||Marsh, L.|
|Cumberlege, B.||Mersey, V.|
|Dean of Hamtree, L.||Miller of Hendon, B.|
|Denham, L.||Monteagle of Brandon, L.|
|Dilhorne, V.||Mountgarret, V.|
|Donegall, M.||Mowbray and Stoutton, L.|
|Eden of Winton, L.||Murton of Lindisfarne, L.|
|Elles, B.||Norfolk, D.|
|Elliott of Morpeth, L.||O'Cathain, B.|
|Elton, L.||Onslow, E.|
|Fairhaven, L.||Orkney, E.|
|Fanshawe of Richmond, L.||Oxfuird, V.|
|Ferrers, E.||Peel, E.|
|Fraser of Carmyllie, L.||Perry of Southwark, B.|
|Goschen, V.||Renwick, L.|
|Griffiths of Fforestfach. L.||Sandford, L.|
|Hailsham of Saint Marylebone, L.||Seccombe, B.|
|Shaw of Northstead, L.||Trefgarne, L.|
|Stockton, L.||Trumpington, L.|
|Strathcarron, L.||Tugendhat, L.|
|Sudeley, L.||Vestey, L.|
|Swaythling, L.||Vivian, L.|
|Swinfen, L.||Wade of Chorlton, L.|
|Swinton, L.||Wakeham, L.|
|Swinton, E.||Waterford, M.|
|Tebbit, L.||Whitelaw, V.|
|Thomas of Gwydir, L.||Wynford, L.|
|Torrington, V.||Young, B.|
Moved accordingly, and, on Question, Motion agreed to.
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 5.15 p.m.
§ Lord Howell moved Amendment No. 2:
§ Before Clause 1, insert the following new clause—
§ RIGHTS TO BROADCAST SPORTING EVENTS
§ "Rights to broadcast sporting events.
§ .—(1) The Commission and the Radio Authority, as the case may be, shall each have power to direct the holder of exclusive rights for the broadcasting of any sporting event to license rights, on terms that are reasonable in the opinion of the Commission or the Radio Authority, to any person providing a television broadcasting service or a radio broadcasting service for general reception, capable of being received in the United Kingdom for—
- (a) inclusion on a sound broadcasting service of a programme which consists of or includes the whole or any part of that event, and
- (b) inclusion on a television broadcasting service of a programme which consists of or includes a recording of the whole or any part of that event.
§ (2) In deciding whether to make a direction under subsection (2) the Commission and the Radio Authority shall have regard to the national and local interest of the sporting event.
§ (3) If the holder of the rights fails to comply with any direction made by the Commission or the Radio Authority under subsection (2) the Commission or the Radio Authority, as the case may be, shall refer the matter to the Director General of Fair Trading.
§ (4) Where a matter is referred to him under subsection (3) the Director General of Fair Trading shall determine the terms on which the rights, or any of them, are to be licensed.
(5) In this section—
national interest" has the same meaning as in section 182; and
local interest" means interest of persons living in the area or locality of a local sound broadcasting service.".").
§ The noble Lord said: I am glad to say that Amendment No. 2 will not take up much time. It deals with the subject called "unbundling". I can tell the Committee what that means in one sentence. In negotiations about television coverage the question of highlights has to be divorced from main television. As we have seen as regards one or two events recently, Sky has bought up all the rights, including radio, and is able to stop the BBC from showing highlights. That is wrong. I believe that Sky is beginning to realise that it is a mistake. The issue needs to be dealt with in the Bill. This clause deals with it. I beg to move.
§ Lord Inglewood
I am somewhat surprised that no other noble Lord wishes to speak to the amendment. As 151 the noble Lord said, it is an interesting subject. As he explained, the amendment brings about an unbundling of broadcasting rights so that a broadcaster with exclusive rights to televise a sporting event of national or local interest will he obliged to license rights to live radio or recorded television coverage to other broadcasting services for general reception if the ITC or Radio Authority decides that it should.
There is one fundamental distinction between this and the previous amendment. The previous amendment might be described as a "bolt-on" to an existing provision in the 1990 Act. Whatever the merits behind the proposal, it is important that we are all clear that this amendment introduces an entirely new concept. It has wide-ranging implications.
We recognise, of course, the concerns with which the amendment seeks to deal. Those Members of the Committee who have read the consultation document will appreciate that the amendment covers what is described by everyone who considers this topic as an "unbundling" approach. It is perhaps a rather loose phrase. However, just as I spoke of a number of technical problems with regard to the previous amendment, similar difficulties of definition, regulation and enforcement apply. The Government were unable to support Amendment No. 1 and, in the same spirit, they are unable to support this amendment either.
If anything, the problems with the amendment are greater because its scope is wider. Indeed, as drafted, all events of national and local interest, actual and potential, are within its scope. By any standards that is fairly all-embracing and it is defined only in the most vague and general sense. I hope that the Committee will allow me to illustrate, rather more selectively than I might have done, some of the problems that the amendment poses.
First, the amendment gives the Independent Television Commission and the Radio Authority powers to direct holders of exclusive broadcasting rights to license rights to other broadcasters—who may be commercial organisations trading in pursuit of profit for themselves—on terms that the commission and authority consider "reasonable". But what does "reasonable" mean in these circumstances? A subscription broadcaster will have paid a certain sum to a sports rights holder for exclusive coverage. That sum could be considerable. Without exclusivity, the value of the rights to the original purchaser will be substantially reduced. Will he be reimbursed in full? If not, would that be "reasonable"? Could the broadcasters who are to receive radio rights or recorded coverage rights afford to reimburse the original purchaser in full? What would happen if they claimed to be unable to do so?
In the debate on the previous amendment there was quite properly considerable discussion about the place of sport in the national consciousness. However, it is significant that scarcely a mention was made of the financial implications. That matters because, when considering such a subject, they are clearly relevant. Of course the implications were touched on, but how does the market place work? There was no discussion of that.
152 It matters when one goes into the detail inherent in such an amendment and it is at the heart of what we have been debating. The reason underlying the political discussion that we have had is that the terrestrial free-to-air broadcasters, for whatever reason, can no longer afford the price that such rights command in the free and open market.
In any event, how could the commission or authority make an assessment of "reasonable terms"? They are, after all, regulators, with no relevant expertise in the area and there is no elaboration of what might be involved in the proposals. Furthermore, the suggested reference to the Director General of Fair Trading does not seem to us to go far towards solving the problem. His responsibilities and expertise do not extend to arbitration or licensing.
The amendment goes to the heart of copyright law. No longer will a broadcaster be able to dispose of his copyright coverage of an event, he will be obliged to sell that material to someone else. It will be for the copyright tribunal perhaps to settle disputes, but it too would find it hard to define "reasonable terms".
There are further points and one which is particularly unfair in the position of the sporting bodies. The levels and extent of radio and recorded coverage will be a matter of considerable and legitimate interest to the sporting bodies. But the amendment gives them no status in the process whatsoever. In such a state of affairs as we are considering, it would not seem unreasonable for the potential purchaser of exclusive sports rights to be able to establish in advance whether the rights he proposed to acquire might be unbundled. Yet there is no mechanism for establishing that. Surely it is a serious and unjust omission. Moreover, would the provision apply to rights acquired before the coming into effect of that piece of legislation?
I have already referred to problems of definition and enforceability. It would be the height of irresponsibility not to think the issues through carefully before we seek to amend the statute. It has occurred to me that the proposed controls in the amendment could easily be circumvented by a broadcaster who bought up exclusive rights to all but a small part of a sporting event. He could, for example, make available 5 per cent. or even less of an event to other broadcasters on a non-exclusive basis. Then the controls as drafted would not apply. If I, as a comparative layman, saw that possible loophole, surely the broadcasters involved and their lawyers would be infinitely more expert in finding others.
I return to where I started. As I explained, the previous amendment was attached to and inherently connected with an existing statutory provision which has been understood and accepted for some time. What is being proposed here is something quite different and new. We are genuinely entering new territory. The point is relevant; we have been concerned about it and have raised it in the discussion document to which I referred earlier. I urge the Committee carefully to consider the important and fundamental distinction between this proposal and the previous one that we debated earlier this afternoon.
153 We need to think the issues through with great care and to consider their implications fully. In conclusion, I must say that it is somewhat of a surprise that the noble Lord, Lord Howell, moved the amendment so quickly on an important issue, not merely because the amendment is significant in itself in what it might achieve but because of the much wider legal implications that are inherent in it.
I believe that all Members of the Committee would agree that recorded highlights are extremely important with regard to subscription or pay-to-view television. We would also all agree that those highlights should be made available to terrestrial broadcasters or any other broadcasters on fair and reasonable terms. That must be common sense. It is a bonus for the subscription channel. Interestingly, at the moment BSkyB currently makes highlights available but the BBC does not always do so. The amendment does not take the BBC into account at all. It seems to me that, if we are to consider this important issue, it must be done in an amendment which covers the whole of broadcasting and not just one part. The amendment covers merely the commission—the ITC—which is not responsible for the regulation of the BBC.
To say the least, the amendment is complicated and the noble Lord did not explain how it would work. He simply said that it concerned bundling. However, it is not about bundling but about unbundling, so far as I understand it. We should not suddenly have the amendment whistled through the Committee on the back of the noble Lord's earlier success. I hope that we can consider it as a separate matter.
The noble Lord, Lord Howell, has raised an extremely important point, but the amendment goes nowhere in dealing with the issue. He should think again and come back to your Lordships' House with one that works.
§ Lord Elton
One does not often in Committee have to rely on the Government to explain the workings of an Opposition amendment. I hope that the noble Lord, Lord Howell, will forgive me if I ask him to be a little more specific about what he intends to be the effect of the amendment, apart from the obvious lacuna pointed out by my noble friend.
The release of one of the bundles is directed to,any person providing a television broadcasting service or a radio broadcasting service".Is the intention of that proposal that the authority shall direct that the company that has the licence shall make a sub-licence available to all the other participants in the medium, or is it to a particular participant? In either case, how will the price be decided, since there obviously cannot be an auction? Either it is released to all simultaneously or to one company on its own. Merely to propose this because the Committee is in a good mood with the noble Lord and has approved all that he said before would be a mistake, as my noble friend on the Front Bench said. It is an entirely different matter and I wish to know what the noble Lord is after.
As I understand the amendment, it applies solely where there are exclusive 154 rights. Dealing with the previous amendment, the noble Lord, Lord Donoughue, said that his amendment denied any exclusive rights. If the amendment which the Committee passed is correct and there are no exclusive rights, then the whole of this amendment falls. In fact, I disagree with the noble Lord, Lord Donoughue, as I tried to say before the Committee voted. It seems to me that the amendment on which we voted contains nothing to prevent a terrestrial broadcaster from obtaining exclusivity in respect of sporting rights. Had I been able to say that, perhaps the Committee might have voted differently.
§ 5.30 p.m.
§ Lord Lyell
I support the remarks of my noble friend the Minister on this amendment. When I examined subsection (1) I was somewhat chilled by the words. Indeed, the Minister covered most of my comments, and quite beautifully.
I too was surprised that the noble Lord, Lord Howell, introduced his amendment so briefly. With his memory, above all of the Government, let alone individual politicians, mingling in sport (not to mention the noble Lord's previous great sporting prowess) he will know that the Government's entry into sporting matters did not always meet with enormous success. I recall the dramas of the 1979 invasion of Afghanistan by the Soviet Union. The Government became heavily involved in 1980 in whether the team should or should not go to Moscow, and whether the 1980 Moscow Olympics should or should not be shown. I also recall the events of 1988, which will no doubt be seared into the memory of the noble Lord, Lord Howell—to wit, the proceedings on the Football Spectators Bill. Events in this Chamber and in another place showed that when government tried to become involved in matters of sport, let alone what is shown on television, they got into very great difficulty.
Subsection (1) contains the kernel of the amendment. My noble friend sets out what is "reasonable". He has also stressed the powers given to the commission, which is no doubt composed of reasonable people. Looking at my noble compatriot, the noble Lord, Lord Thomson of Monifieth, I think that nobody could be more reasonable than he is. Even he might admit that the powers in subsection (1) are pretty draconian. Perhaps they are not intended to be, but their effect certainly would be.
Perhaps the noble Lord, when he comes to speak, or the Minister, might lay my curiosity to rest on one point. Subsection (5) refers to the "national interest". I have not been able to grasp the definition in Section 182 of the original Act. Does "national interest" refer to the United Kingdom?
Perhaps I may explain matters in this way. Let us suppose that a young Scot does extraordinarily well in a skiing event. To my knowledge only one major international skiing race has been held in Scotland. However, given some good skiing weather, there could be events in the future. The young Scot does particularly well, and the rights to that event have been sold to Sky, to subscription television or to a pay-as-you-view channel. Suddenly, along comes the BBC or ITV— 155 terrestrial broadcasting organisations—and says: "There is great interest in Scotland. We want to cover this event". Will that event be broadcast by BBC transmitters covering Scotland? There might well be no interest in England. Perhaps my noble friend the Minister or the noble Lord will explain.
I have mentioned skiing and "Ski Sunday". It is a minority sport. I declare an interest as former chairman of the Lords and Commons Ski Club. I have been a skier for 23 years, together with my noble friend Lord Oxfuird, who is in the Chair, and with other noble Lords. I believe it was 20 years ago that the BBC introduced "Ski Sunday". One evening I took the step of telephoning the BBC to say thank you for what I appreciated was a minority sport being shown on terrestrial television. The BBC took an editorial view that there was sufficient interest in this particular sport to project it at peak time, apparently between "The Money Programme" and "Rugby Special". I am advised that 10 to 12 years ago the viewing figures were 41/2 million for "Ski Sunday" on BBC 2.
I rang the executive producer this morning. We spoke about the fees and the prices for sport referred to in the previous amendment. He told me that the cost to the BBC, thanks to the European Broadcasting Union, has quintupled over the past 12 years. The BBC is happy to pay that. That just shows what is covered by our £86 licence fee—in this case, a minority sport which only in exceptional circumstances can be practised within the United Kingdom under the scope of this Bill. The BBC needs the facility. I am delighted to tell the Minister and the Committee that the BBC is pre-eminent in this particular sport in the United Kingdom.
That said, I really do wonder whether the proposers of the amendment before us realise the draconian nature of the powers set out in subsection (I). Indeed, I wonder whether they mean what is printed there. I look forward to my noble friend's reply and to any corrections that he may wish to make.
§ Lord Campbell of Alloway
I draw the attention of the Committee very briefly to the distinction between the previous amendment, where it is provided that,The Commission shall do all that they cart to ensure",and the powers proposed under subsection (1) of this amendment, whereby the Commission "shall have power to direct". In effect, that usurps in this context the jurisdiction of the Director General of Fair Trading, which may be invoked only if the holder fails to comply with the direction. That is stated in subsections (3) and (4). These are very serious powers of direction. I entirely support the suggestion that we should give further consideration before accepting such a novel type of power.
§ The Marquess of Reading
I shall be very brief. As I understand it, the purpose of this amendment is to ensure that, where a subscription channel holds all the rights to a sporting event that does not appear within the group of eight listed events, the rights to TV highlights or live radio rights cannot be hoarded.
156 We all accept that sports will want to maximise revenues. We have set out a very limited list of events which the nation believes must he protected by legislation to show live on mainstream channels. However, there are many other events which, while not necessarily falling into the group of "crown jewels of sport" are nevertheless important events which people want to see in highlight programmes—for example, "Match of the Day"—or perhaps want to hear on live radio. If there is a powerful media player in the field with deep pockets and a virtual monopoly, that player is in a strong position to say to the sports body: "That's what we will offer and we want all the rights for that amount".
This amendment is necessary. It would ensure that, where a subscription channel has live rights, the rights to highlights or radio rights have to be sold on to other channels with a universal audience. The amendment would not be retrospective. There is no question that existing contracts would be hit. It could help the sports bodies to create a new set of secondary sporting rights. There will be live rights on TV, recorded rights and rights to highlights. There will be live radio rights. No large media owner will he able to tell the sports rights holders, "We will negotiate only if you sell your rights to us". They will be able to negotiate in different markets and extract the highest price in each. This amendment works in the interests of the viewer, the listener and the sports bodies. It is the best long-term bet to stop monopolies emerging. The World Cup Final could be bought by a minority channel and tiny numbers would see it. That cannot be right. The amendment is about events that unite our nation and allow us to share moments defining our culture and our heritage. I hope that the Committee will support the amendment.
§ Lord Peyton of Yeovil
I Wish to make a comment which I hope will be helpful to my noble friend and to the noble Lord, Lord Howell. I believe that those concerned with the last amendment have won an important argument. I suggest to the noble Lord who proposed the amendment that enough is perhaps enough for the day. If my noble friend on the Front Bench is prepared to say that he will carefully consider all the issues raised by this amendment along with the last one, I hope that the noble Lord, Lord Howell, will agree to withdraw the amendment. My name is not in fact attached to it. It raises very complicated issues, to some of which my noble friend has referred.
§ Lord Inglewood
Perhaps I may intervene. I confirm that we are already considering this matter in general terms and that we shall continue to do so. It is part of what I have described as. the general terms of our discussion paper and is inherent in our considerations.
§ Lord Thomson of Monifieth
I agree very much with what was said by the noble Lord who spoke a moment or two ago. I deliberately strayed into this amendment earlier. In some ways it raises issues of equal importance in terms of the public interest. Nevertheless, I recognise that we are in an unusual position because of the failure of the Government—to put it as politely as possible—to deal with the sporting 157 issues when drafting the original Bill. It is left to this Chamber to raise issues, well argued in the long preparation for this Bill and the new BBC Charter. As a result we have a series of new clauses which are very much Second Reading matters.
I wait to hear what the noble Lord, Lord Howell, has to say. I should not like the matter to pass from the Chamber without some acknowledgement of how much the issues are in the public interest. Certainly we must overcome any technical difficulties in order to ensure that unbundling—that dreadful word—is very much in the interest of the ordinary viewer of terrestrial channels.
§ 5.45 p.m.
§ Lord Howell
I apologise to the Committee if it thought I was peremptory in moving the amendment. I was trying to help the Committee. It was being urged upon me from all sides. "Get on with the vote." I rise now in a spirit of conciliation. As a football referee, I have never seen the need to play extra time when the match is won. That is the position at the moment.
I must ask the Minister to be more specific. Has no thought been given to the issues? We were told by the Minister and the noble Viscount, Lord Astor, that there was need for these matters to be thought through. Of course. That is what we have been doing. But it is not what the Government have been doing. We have been thinking the issues through. We have done that because of the Ryder Cup and the cricket World Cup. The knowledge that Mr. Murdoch wanted to prevent the highlights of those events appearing on BBC and put it in the contract should have stimulated the Government, as it stimulated the Opposition, to think the matter through.
I agree the issues are complicated. I was impressed by what the Minister said about the rights being sold overseas and then beamed back to this country. We seek to provide that the rights to live TV coverage, recorded coverage, and live radio broadcasting—it is important to include that—are sold separately and to prevent hoarding of material a broadcaster cannot use himself. That is what happened with the Ryder Cup. It is what was going to happen in the cricket World Cup until we tabled the amendment. As I said earlier, we have managed, in the case of World Cup cricket, to get Mr. Murdoch to sell to the BBC at a price he turned down two or three months ago. That is a significant advance. I do not in any way want to suggest that we should not take note of it.
I am advised that the proper place to decide the price, if there is a difficulty, is the copyright tribunal. I do not feel that the Minister or anyone else could object to the word "reasonable" appearing in an Act. In the 40 years I have been in Parliament I must have passed hundreds of Acts referring to reasonable people or reasonable men. If reasonable people do not agree, they go to the copyright tribunal.
The Minister wants to know the price in the market place. Mr. Murdoch and the BBC decided that this weekend in the case of World Cup cricket. They said that the price in the market place was £1 million. That was agreed. So it is possible for reasonable people to reach a sensible conclusion about the price.
158 I accept what the Minister said. There are difficulties. If he will give an undertaking, in a word or a nod, that at Report stage or on Third Reading he will take on board all the points we intend in this amendment and all the things which came out of the last amendment—in short, that the Government will seek to secure for this Chamber what it wants to achieve—I shall be happy to beg leave to withdraw the amendment.
§ Lord Inglewood
I am sure the Committee will understand that I am not in a position to give the kind of commitment described by the noble Lord. However, I can assure him that I shall come back, as I described in my speech on the previous amendment, and make the Government's position absolutely clear before Report stage.
§ Lord Howell
That is not very good. However, in the knowledge that we can come back and move the amendment again if the Government are in default on a matter where I judge the whole Chamber is with us, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Howell moved Amendment No. 3:
§ Before Clause 1, insert the following new clause—
§ HOLDING OF LICENCES: RESTRICTIONS ON INVOLVEMENT IN
§ ADMINISTRATION OF SPORT
(2) In subsection (1)(a), after "who" insert —
("(i) is involved, or any of whose employees, agents or representatives is involved, in the government or administration of any sport in respect of which he is the holder of any exclusive broadcasting right, or
(3) At the end there is inserted—
(8) In this section "exclusive broadcasting right" means any contract or agreement providing for the exclusive right to include in a broadcasting service any programme which consists of or includes the whole or any part of a sporting event, or of a recording of that event.".").
§ The noble Lord said: I shall not trouble the Committee too long. The amendment raises an important principle. I do not intend to press it to a vote, but I want to raise the issue. More and more the question of the executive duties of television companies dealing with subscription channels and the duties of executives dealing with sport are becoming interlocked. I find it increasingly difficult to know whether some sporting executives speak on behalf of their sport or on behalf of Mr. Murdoch. It happens the other way round, too, as we have all experienced in the past week or two.
§ The amendment seeks to declare what I believe to be a very sensible principle; namely, that the management and representation of television companies when negotiating with sports bodies about television rights should be separated from the management and governance of the sports concerned. That is what the amendment seeks to do. It seeks to assert that principle. Sport should be divorced from television when negotiations are under way; otherwise there is conflict of interest.159
§ Having stated the principle we seek to uphold and in the hope that the Minister will have some sympathy for the principle, if not with the wording, of the amendment, I beg to move.
I wonder whether the noble Lord, Lord Howell, has really thought this amendment through. I know that one of the main interests of the noble Lord, Lord Donoughue, is racing rather than sport. The amendment would particularly affect SIS. That is a broadcasting service in which the Racecourse Association is a shareholder. The amendment would prevent that kind of thing in the future and that may be damaging. I do not see why a sporting organisation cannot at the same time have some form of right or share in broadcasting. The amendment seems to me to be utterly unnecessary and ties up the open market with a whole lot of unnecessary regulation.
§ Lord Inglewood
I am sure that the amendment of the noble Lord, Lord Howell, seeks to deal with what can be a real problem in certain circumstances. No one can object to the sentiment underlying his remarks. Clearly everybody opposes those conflicts of interest. However, if impropriety occurs, that becomes a matter for the criminal law. It is for the sports rights holders themselves to take adequate measures to ensure that no such conflicts arise for their negotiators, and that is probably not a suitable matter for legislation.
To touch on the points raised by my noble friend Lord Astor, he is right that the amendment may prevent the development of new television services by sports bodies which would profit from the new digital opportunities to provide a wider range and higher quality of coverage for viewers. That is not a fanciful suggestion. I read in the newspaper only a few days ago that that was being proposed. We must therefore be careful, when thinking about such a proposal, that we do not end up throwing the baby out with the bath water; that is, damaging the potential of the digital world into which we are moving while trying to eliminate and excise what is obviously an abuse and indeed a crime where it occurs.
I am grateful to the noble Lord, Lord Howell, for bringing the matter before the Committee.
§ Lord Howell
I can assure the noble Viscount, Lord Astor, that the amendment is necessary. There have been cases, though not in horseracing, when one wonders whether the people making speeches on behalf of sport are in fact making them on behalf of subscription television. That is unfortunate.
I was seeking to find a clear dividing line. The Minister kindly says that he understands what I am trying to do and will presumably ask his advisers, and others, to look at the matter in detail. I trust that he will be in communication with us in that process so that when we reach Report stage we have an agreed approach to the problem. In that spirit, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.160
§ Lord Howell moved Amendment No. 4:
§ Before Clause 1, insert the following new clause—
§ ADVISORY COMMITTEE FOR BROADCASTING AND SPORT
§ (".—(1) The Secretary of State shall establish a committee to be known as the Advisory Committee for Broadcasting and Sport.
§ (2) The Committee shall consist of—
- (a) a Chairman appointed by the Secretary of State, and
- (b) fourteen members appointed by the Secretary of State representative of the interests of—
- (i) broadcasters,
- (ii) sporting bodies, and
- (iii) viewers of and listeners to broadcast services.
§ (3) The Committee shall—
- (a) review such matters relating to the broadcasting of sport as it considers appropriate, and
- (b) consider any matter referred to it by the Secretary of State,
§ (4) Any report or recommendations made under subsection (3) shall be laid before Parliament.").
§ The noble Lord said: Amendment No. 4 seeks to help the Government. Under the 1990 Act the way in which listed events are decided is that the Secretary of State must consult and then he can sit down and make an order. The matter does not even have to come back before Parliament. That cannot be satisfactory.
§ I assume that, from time to time, especially when digital television is in full flow, Ministers will want to make orders. For example, as I said at an earlier stage today, if the new chairman of the BBC thinks it right to go down a pay-as-you-view road with one of the new digital channels, and provided the cost is reasonable to all those whose interests are protected and who cannot afford Sky, then it would be sensible for us to consider the issue again. However, there is no machinery for the Secretary of State so to do and I have just had a cockshy in trying to provide some with the amendment.
Again, I shall understand if the Minister says that I have left out a lot of interests. I hope he does not say that. I have included,
broadcasters … sporting bodies, and … viewers of and listeners to broadcast services".
§ That seems to cover everybody, and if everybody can be properly consulted so that the Secretary of State can reach a conclusion and bring the matter before Parliament, that would seem to be an eminently satisfactory way to proceed. I hope, therefore, that the Minister will be as conciliatory towards Amendment No. 4 as he and I have been towards each other in the past few minutes. I beg to move.
§ Lord Boyd-Carpenter
It seems to me, as a small verbal point, that the first paragraph under which the advisory committee is named, is wrong. It would not be an advisory committee for broadcasting and sport; it would not be an advisory committee for vast areas of sport; it would be an advisory committee for broadcasting sporting events.
§ Lord Inglewood
I am grateful to my noble friend Lord Boyd-Carpenter for his intervention and to the noble Lord, Lord Howell, for explaining his proposals. I recognise the spirit in which the amendment is moved.
161 I must admit that I remain to be convinced of the overriding need for an advisory committee and have doubts about the remit and added value that it may have, not forgetting the problems of cost and bureaucracy. However, we are prepared to consider the issue further. On that basis I hope that the noble Lord, Lord Howell, will feel able to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Viscount Astor moved Amendment No. 5:
§ Before Clause 1, insert the following new clause—
§ CERTAIN EVENTS NOT TO BE SHOWN ON PAY-PER-VIEW TERMS
§ (".—(1) Section 182 of the 1990 Act is amended as follows—
§ (2) In subsection (1) after the words "Part I of this Act" there shall be inserted the words "or in any such service which requires payment to receive or view that service".
§ (3) In subsection (2) after the words "or the Welsh Authority" there shall be inserted the words "or in any such service which requires payment to receive or view that service".
§ (4) In subsection (3) after the words "national interest" there shall be inserted the words "and importance".
§ (5) In subsection (4) for the word "subsection" there is substituted the word "section" and after words "national interest" there shall be inserted "and importance".
§ (6) After subsection (7) there is inserted —
§ "( ) In drawing up or revising such a list as is mentioned in subsection (3) the Secretary of State shall have due regard to the representations made to him by those he has consulted, in particular—
- (a) in relation to a particular event, the representations of the person from whom the rights to televise the event may be acquired as to the financial consequences of being included in, or omitted from, the list; and
- (b) whether, in the event the relevant event is included in the list, the whole of the relevant event will be included in any television broadcasting service referred to in subsection (1) or (2)".").
§ The noble Viscount said: I tabled Amendment No. 5 in an attempt to allow the Committee to consider what events should or should not be on the list. We have had debates already in regard to protecting the list from subscription as well as pay-to-view television and on highlights. However, we have not looked at what should make up the list.
§ In that regard we are faced with two conflicting problems. I believe that, fundamentally, the Government should not interfere with intellectual property rights, whether they are sporting rights, broadcasting rights, book rights, music rights or any other kind of rights. I do not believe either that the public have some sort of divine right to watch sport on television. It is not a right; it is a service. Having said that, it is true that the service has become an accepted custom; but it is not a right any more than that one has the right to march into a football stadium and watch a match for free.
§ The Government made the right decision when they established the list under the 1990 Act. There are some events which the public should be able to see on free-to-air television. They are national events in which the nation has a stake. The difficulty is how to define what is a national event. What is it in which the nation has a stake?162
§ Those events should involve a national team—for example, Test matches and football World Cup finals. That does not necessarily mean that any sport involving a national team should be on the list. There are also national events like the Derby and the Grand National that are currently on the list and have nothing to do with the nation competing. The public enjoy watching them. We must consider whether or not they should be included on the list. Fundamentally, it should be up to the racing organisations to decide.
§ It is important that, where events are to be included on the list, proper safeguards are installed to protect sporting interests. At the very least the Secretary of State should consult the sporting bodies concerned and take account of any possible loss of revenue that may occur as a result of being on the list. Also, an event should not be included on the list unless the whole event cannot be broadcast live. We had discussions earlier today in relation to the Ryder Cup. It seems to me to be distinctly pointless to add such an event to the list because, when it was on the BBC, one saw only a tiny proportion of it. When it was on subscription television we were able to watch the whole match in its entirety. In such a case, it should not be included on the list. However, the BBC should have the opportunity to show the highlights and those problems are then solved.
§ We have had a good deal of debate about the broadcasters, but I sometimes wonder whether we are picking up the wrong end of the stick. Should we be regulating the sporting bodies and not the broadcasters? After all, it is they who own the rights and they sell the rights. They operate in the best interests of the sporting bodies but that does not mean to say that they necessarily get the right deals. They all have different needs. Not all of them want to sell to the highest bidder. Wimbledon and the Olympic Games are good examples of where the organisations concerned made sure that the event was sold so that it could be seen on free-to-air terrestrial television. Football had a different view and it has done very well out of it. Ten years ago football was getting just over £6 million for its rights. Now it is getting 10 times that amount. However, we must get the balance right.
§ My amendment attempts to look at how we should define what is on the list. It is purely a probing amendment. I am grateful to my noble friend for publishing the consultation document, which will allow us to consider all these issues in some detail. I move the amendment in order to give my noble friend a chance to reply if he has anything to say to it. I beg to move.
§ 6 p.m.
§ Baroness Trumpington
For clarification, perhaps I may ask my noble friend whether he was also speaking to Amendments Nos. 230 and 233, with which his amendment is grouped.
They are grouped, but they are not my amendments. I have to confess that I have not read 163 them with as much care as I might. But if anyone else wishes to speak to them with my amendment, they certainly can.
§ Lord Donoughue
We have not much to say on this amendment because we feel that what happened earlier on this subject rather pre-empts the field. We take that as the position. I was interested in a good deal of what the noble Viscount, Lord Astor, had to say. There was a great deal of sense in it. We have to look at the nature of the list. Indeed, on this side, we have already made a commitment that when in government we shall review the list. That is not a commitment to add or subtract, and in a later clause we have a proposal for a committee to be consulted and for the Secretary of State to consult in order to make sure that the sports do not feel they have to campaign on issues like this because they are excluded and are afraid of being there at the whim of the Secretary of State. They will have a right to express their view, as will the broadcasters and the public as well.
There are number of wider issues here which require consideration. However, on the basic issue of national access to national sporting events, the Committee has spoken.
§ Lord Inglewood
I am grateful to my noble friend Lord Astor for raising these points. As he said, and as was reiterated by the noble Lord, Lord Donoughue, these are important matters and they bear proper investigation and inquiry. These are the kinds of matters which we are, inter alia, planning to examine in our process of discussion and consultation.
I concur with the remarks of the noble Lord, Lord Donoughue. The Committee has made an important decision on the list and listed events. That has pre-empted a considerable amount of debate that could have been held profitably on my noble friend's amendment. I should merely like to thank him for raising these matters which we believe are important and into which we shall be looking.
The Earl of Halsbury
A suggestion occurs to me after listening to all the debates so far. The sudden upsurge of interest in the amendments before us this afternoon finds the Bill in a rather immature condition. That is why the Government published last week Broadcast Sports Rights: Informing the Debate. It occurs to me that, as an alternative to Report Stage and Third Reading, which are inhibited by the fact that no one can speak twice and so the cut and thrust of debate is not there, the noble Lord might consider that we re-commit this part of the Bill to a Committee of the Whole House after he has had the opportunity to organise the Government's thoughts on it.
§ Lord Boyd-Carpenter
I support that suggestion. I was wondering how the next stage of the Bill could be taken. It is necessary that it should be taken under conditions of flexibility, with the kind of conditions one has in Committee but not at the later stages of a Bill. As, my noble friend the Minister has undertaken to produce the Government's views in a clear way at the 164 next stage, surely we want to see that the next stage is a re-committed Committee stage rather than a Report stage.
§ Baroness Trumpington
Great note will be taken of both noble Lords' remarks. However, it is not for me to say. It is a matter for the usual channels. We are of course anxious to get on with the passage of the Bill.
I am grateful to my noble friend the Minister and to the noble Lord, Lord Donoughue, for what they have said. These are important matters. I look forward to the Government's announcement after their consultation. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Peyton of Yeovils had given notice of his intention to move Amendment No. 6:
§ Before Clause 1, insert the following new clause—
IMPLEMENTATION OF PART (LISTED EVENTS AND SPORT)
(".—(I) This Part, except for this section, shall come into force on the expiry of a period of three months beginning with the day on which this Act is passed; but this is subject to the following provisions of this section.
§ (2) Before the expiry of the period mentioned in subsection (1), the Secretary of State may consult the Director General of Fair Trading and representatives of—
- (a) broadcasters, including the BBC, Channel Four Television Corporation and S4C and any holder of a licence under Part I or III of the 1990 Act;
- (b) sporting bodies, including governing bodies of sports; and
- (c) viewers of and listeners to broadcast services, about the implementation of this Part.
§ (3) The Secretary of State shall lay before both Houses of Parliament a report of any consultation undertaken under subsection (2), and the report shall contain details of—
- (a) the consultation undertaken;
- (b) any representations received as a result of that consultation; and
- (c) any proposals which the Secretary of State may have for the amendment of this Part in the light of the representations.
§ (4) In giving details of the representations referred to in subsection (3)(b), the Secretary of State shall not disclose any information relating to a particular person or business except—
- (a) with the consent of that person or of the person carrying on that business; or
- (b) in such a manner as not to identify that person or business.
§ (5) Subsection (1) shall cease to have effect if, before the expiry of the period mentioned there and following the laying before both Houses of Parliament of the report mentioned in subsection (3), both Houses of Parliament resolve that it shall cease to have effect.
§ (6) If both Houses resolve that subsection (1) shall cease to have effect, the Secretary of State shall, within a further period of three months beginning with the day on which the latter such resolution was made, by order amend this Part to give effect to any proposals made by him under subsection (3)(c).
§ (7) Any order made under subsection (6) shall make new provision for the coming into force of this Part and shall be subject to approval by resolution of both Houses of Parliament.").
§ The noble Lord said: I have said quite enough in your Lordships' House today. I do not intend to move the amendment.
§ [Amendment No. 6 not moved.]165
§ Clause 1 [Multiplex services and digital programme services]:
§ Lord Desai moved Amendment No. 7:
§ Page 2, leave out line 12.
§ The noble Lord said: In moving this amendment, 1 wish to speak also to Amendments Nos. 8 and 20. I shall be very brief. As noble Lords will know, the Broadcasting Act 1990 made a distinction between domestic and non-domestic services. That was made to accommodate Sky, which was then transmitting from Luxembourg whereas BSB was transmitting on a UK frequency. Soon after the Act was passed, Sky bought out BSB, since when BSkyB has been transmitting on a Luxembourg channel and the domestic UK frequencies have been auctioned off to very many foreign transmitters. Although Sky News is sent out from Isleworth, we get it on a non-domestic channel.
§ My amendment says that to carry forward that domestic and non-domestic distinction into the 1995 Act does not serve very much purpose. Let us have a level playing field and let us abolish the distinction between domestic and non-domestic transmitters. I beg to move.
§ Lord Inglewood
I am most grateful to the noble Lord, Lord Desai, for expanding on the amendment and for his remarks indicating that he is anxious that the distinction between a domestic and a non-domestic satellite licence should be abolished.
As the noble Lord pointed out, it is the case that the non-domestic satellite licence relates to a broadcaster who may be operating from within the jurisdiction but who is actually broadcasting down part of the spectrum which is not in the UK's allocation. That is a clearly a very different state of affairs from the broadcaster who is broadcasting on a domestic satellite licence where both the business is established within the jurisdiction and the enterprise itself is using a spectrum which is part of the UK's allocated spectrum.
Against that background, there is a fundamental distinction between the two economic activities which are going on because of the fact that in one case the broadcaster is using a spectrum which, if I may put it this way, is within the gift of the United Kingdom while in the other the broadcaster is using a spectrum which belongs to another country; often another member state of the European Community. Where one has a material distinction of that kind there is a very good case for keeping the two categories of licence.
§ Lord Desai
I am grateful to the Minister for those remarks. I am trying as much as the noble Lord to find my way around these rather technical issues. I made the point that UK frequencies have been sold to foreign transmitters as Sky has already sold the UK frequency on which BSkyB is to transmit, to Swedish, Norwegian and Malaysian interests. The Sky broadcasts that we receive here are on the non-domestic channel.
it may be that we shall need to look at this matter very carefully because in the globalisation of the communications industry the domestic and non-domestic distinction is either redundant or it will 166 have to he made much more carefully. The best thing is to remove the distinction. But pending further thought on this matter, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clause 2 (Meaning of "independent analogue broadcaster" and "qualifying service"):
§ [Amendment No. 8 not moved.]
§ Lord Inglewood moved Amendment No. 9:
Page 2, line 22, leave out subsection (2) and insert
("(2) Subject to subsection (4), in this Part "qualifying service" means any service which
- (a) is provided by an independent analogue broadcaster falling within paragraph (a), (c) or (d) of subsection (1) who has notified the Commission, within the period of one month beginning with the commencement of this section, of his intention to provide a service specified in subsection (3) ("the corresponding analogue service") for broadcasting in digital form, and
- (b) as respects the programmes included in the service and the times at which they are broadcast, is identical with the corresponding analogue service.").
§ The noble Lord said: In moving this amendment 1 shall speak also to Amendments Nos. 10, 12, 60, 64, 77, 78, 186, 200 and 202. My first amendment to Clause 2 is one of a number which, taken together, seek to clarify the remit for S4C on its guaranteed digital capacity. The amendments concerned all relate to Clause 2 except the second insertion to line 31 on page 2 of the Bill, the amendment to Clause 25, the first new clause to be inserted after Clause 25, the amendments to Clause 30, the amendment after Clause 66 and the amendments to Clauses 68 and 69.
§ We are offering S4C a quarter of the capacity of the multiplex being offered to Channels 3 and 4 for it to broadcast its distinctive service for Wales. The simulcast arrangements for all the other existing terrestrial broadcasters, assuming that they take up the offer of reserve capacity, are very simple. They must broadcast in full and, at the same time, their analogue services. However, that does not make sense in the case of S4C. These amendments clarify what is to be required of them.
§ As I am sure Members of the Committee know, S4C's service in Wales consists of Welsh language programmes during the peak evening period and at other times during the day. When S4C is not broadcasting the programmes in Welsh, which are unique to that channel, it is required to broadcast Channel 4 programmes. But digital will allow Channel 4 to broadcast a full service for the first time to many parts of Wales. Welsh viewers of digital television will therefore be able for the first time to have a choice between Channel 4 and S4C.
§ That means that there will be no point in requiring S4C to simulcast its full analogue service. That would result in a duplication of Channel 4 programmes which will in any case he available. It is much better simply to require S4C to simulcast those programmes which distinguish its service from Channel 4—that is to say, its Welsh language programmes. That will provide S4C with the opportunity to offer new programmes specifically tailored to the tastes and interests of the 167 Welsh audience, whether in Welsh or in English, and if they wish to repeat existing Welsh language programmes at times when new audiences might be reached.
§ That is the purpose of this set of amendments. I can, if desired, explain in more detail the specific effect of each amendment, but at this stage I draw the attention of the Committee particularly to the amendment to Clause 25 and the insertion after that clause, which goes to the heart of the matter. The deletion of Clause 25(3)(d) has been called for by many noble Lords and is the subject of an amendment by Members of the Committee on the Benches opposite, as well as by S4C. I am very happy to remove that provision. It was meant to allow the Secretary of State to introduce arrangements of the kind the Committee now has before it, but I accept that the power it would have taken from the Welsh fourth channel authority and given to the Secretary of State was unacceptable. I can assure the Committee that there was never any intention to do more than make sensible provision for its digital service. The insertion after Clause 25 clearly establishes the nature of S4C's digital service and the requirement to simulcast its Welsh language programmes. I beg to move.
§ 6.15 p.m.
§ Lord Elis-Thomas
I particularly welcome these amendments put forward by the Minister. In particular, I thank the noble Lord for his amendment dealing with Clause 25(3)(d) which, as he indicated, was the cause of some concern. I am aware that it is not the Government's intention to intervene with the independence of S4C as a broadcaster or indeed with any of the other arm's-length principles relating to broadcasting. On that basis I welcome these amendments.
§ Baroness Dean of Thornton-le-Fylde
We, too, on these Benches welcome these amendments and thank the Minister for the way in which he has approached them. There are still a number of other issues about S4C that we shall come to individually as the amendments arise. We certainly welcome the amendments that the noble Lord has put forward.
§ Lord Thomson of Monifieth
Since the Minister has had a somewhat "up and down" day, perhaps I may give him a little joy by saying that I join with everybody else in thanking him for these amendments.
§ Lord Inglewood moved Amendment No. 10:
§ Page 2, leave out line 29.
§ Lord Elis-Thomas moved Amendment No. 11:
§ The noble Lord said: In moving this amendment it may be convenient to speak to Amendments Nos. 173 and 174 although they are not formally grouped. I am anxious to give the Minister a little further happiness this evening. This group of amendments relates to a broader issue, which is the capacity of the Welsh fourth channel to undertake additional services to the specific digital services which are specified in the Bill. I refer in particular to the central section of Amendment No. 173 which inserts subsection (1) in place of Section 57 of the 1990 Act.
I draw the attention of the Minister specifically to the changes set out in the amendment as regards the high quality of reception primarily in Wales. That will technically enable S4C to broadcast on satellite. The other subsection (1A) refers to,
such other services as may be licensed under the Broadcasting Acts 1990 or 1996 subject to their obtaining the appropriate licence".
§ Were that to be accepted it will enable the authority to undertake other commercial services under the ITC or the Broadcasting Acts. The purpose of these amendments is to raise the issue of the remit of S4C in terms of the other delivery mechanisms. It may well be the case that digital terrestrial coverage in Wales, certainly in its early period, is likely to be patchy. Therefore, it is important that viewers receiving digital terrestrial services should not be limited to those within reach of the main transmitters.
§ At Second Reading I raised the question of the 180 separate relays. We do not know the exact coverage. That will not be known until the NTL-BBC-ITC frequency plan is published. Therefore, we need to look at the possibility of a broadcasting authority such as S4C being able to use additional delivery mechanisms such as satellite and cable in order to offer the widest possible coverage of its services. That is particularly important in view of the position of S4C as an authority.
§ If this amendment were accepted, it would give the authority the right to broadcast on satellite enabling it to reach outside Wales. We estimate that there are more than 300,000 Welsh speakers living in England, Scotland and Northern Ireland. Indeed, it could enable noble Lords in this House to receive S4C in London should they so wish.
§ At present S4C is barred from holding an ITC licence which would be required in order to operate through different or additional delivery mechanisms. The amendment would enable S4C to hold such a licence. These issues concern the development of a broadcaster such as S4C in the digital age and the importance of enabling a "minority language" to reach the widest possible audience by the widest possible means. S4C may not wish to hold an ITC licence; it may decide not to take advantage of the satellite broadcasting option. But it is important to have that option available so that S4C does not become merely a terrestrial authority and is able to operate in the broadest context because of its 169 linguistic and cultural remit. There are other issues in relation to capacity and funding to which we shall turn at later stages of the Bill. I beg to move.
§ Lord Aberdare
I am pleased to support the amendment moved so ably by the noble Lord, Lord Elis-Thomas. On this side of the Committee we take great pride in S4C. It was introduced by a Conservative Government and two of our Members played extremely prominent parts, my noble friend Lord Whitelaw who was Home Secretary and my noble friend Lord Crickhowell as Secretary of State for Wales. Therefore, we are very interested in S4C, although I confess that its introduction was supported by all political parties at the time. It has undoubtedly been a very great success. One tends to forget what things were like before it came into being. A great deal of acrimonious argument sometimes broke into violence and civil disobedience. That was all solved by the arrival of S4C in 1980. Since then we have had 15 years of social harmony and a considerable boost to the Welsh language and Welsh cultural traditions. Moreover, a considerable number of independent companies have come into existence around S4C. They make films and television programmes or supply ancillary services. We must be very careful that that development, so favourable to Welsh life, is not damaged by the Bill. It would be a tragedy if the Bill were to affect its future performance or limit its facilities compared with other public service broadcasters. That is what the various amendments concerning S4C, to which I and other Members of the Committee have attached our names, wish to avoid. I am sure that that is supported by all parties. Our one endeavour is to ensure the future success of S4C.
As the noble Lord explained, the amendment is a paving amendment. It amends Section 57 of the 1990 Act. The noble Lord explained it far more lucidly than I could; I content myself with supporting him.
§ Lord Thomson of Monifieth
I am sorry that my noble friend Lord Geraint is not able to take part in this part of our discussions. The winter weather has probably prevented him from reaching us. I am an extremely inadequate substitute. However, I was fortunate enough to be chairman of the Independent Broadcasting Authority at the time S4C was launched. I join with the noble Lord, Lord Aberdare, in his tribute to the noble Viscount, Lord Whitelaw. His active statesmanship in very difficult circumstances was responsible for helping to create S4C. Tribute is also due to the noble Lord, Lord Cledwyn, who played a notable role in its creation.
I can say from my own general experience how much S4C has added to the richness and diversity of the United Kingdom broadcasting scene. A good programming tradition has been built up which has earned an international reputation for S4C and, through S4C, for United Kingdom broadcasting. Therefore, I am very happy to associate myself with what has been said generally about S4C.
From these Benches we support the amendment. S4C is in a very special position within the British broadcasting scene. In the face of very exciting but 170 slightly intimidating technological developments, S4C should be enabled to enjoy on equal terms the possibilities which arise from those developments. As the noble Lord, Lord Elis-Thomas, said, it may not wish to take them up but it is very important in terms of its sense of self esteem that it should feel that it is on equal terms with other broadcasters and that it has available to it those possibilities. We support the amendment and other amendments on the same theme.
§ Baroness Dean of Thornton-le-Fylde
From these Benches we support Amendment No. 11. I am pleased that Amendments Nos. 173 and 174 are being discussed with it because that makes sense. I must confess a previous lack of knowledge about S4C. I have been busily reading therefore the interesting debates which took place on the 1990 Act. I can well understand the need for the heavy lobbying from a small station like S4C. It says that it is doing a good job and, indeed, it is, according to the information I have. Why should it be subject to constraints? It would be sad to hold back S4C. The Bill is about opportunities, broadening choice and taking advantage of the new and exciting facilities which are available.
I wish to speak in particular to Amendments Nos. 173 and 174. Subsection (1A) makes clear that S4C will have to obtain the appropriate licences. It is not asking for a blank cheque to do what it wants. It will rightly have to comply with the provisions of the new broadcasting legislation. But S4C does not wish to be held back or discriminated against. It seeks to avail itself of all the opportunities. It is a small company but it has made a name for itself outside Wales. There is a big question mark as to whether the digital provision made for it is sufficient to allow it to produce the quality of broadcasting needed. If it feels that there is a market for satellite television, it should be able to take advantage of it.
I was pleasantly surprised to be told that although S4C is a Welsh language broadcaster it broadcasts beyond the border. It has been very successful commercially and critically. It has been successful in exporting such programmes as Shakespeare's animated tales and "Hedd Wyn", which was nominated for the best foreign film Oscar. Therefore, it is a small company which has attracted positive critical acclaim and produces good quality television programmes. I hope that the Minister will respond positively to the three amendments.
§ 6.30 p.m.
§ Lord Inglewood
I am most grateful to those Members of the Committee who have spoken so helpfully about the amendment, which, as has been described, would allow S4C to hold licences from the ITC to broadcast extra digital programme services or to broadcast via satellite. I can assure the Committee that I am sympathetic to the need properly to investigate whether anything further should be done to free S4C to exploit the opportunities of digital broadcasting, but that must be done carefully and with due regard to the nature of the remit which S4C has and to the funding relationship between its public service channel and any new service it might introduce.
171 My amendments seek to clarify the nature of S4C's qualifying service, and, as such, meet many of the objectives of these amendments. I am happy to assure the Committee that we shall pursue sympathetically with S4C itself any further issues surrounding S4C's use of digital frequencies. We shall bring forward further amendments if we are convinced of the case. In the light of that assurance, I hope that the noble Lord will not press the amendments.
§ Lord Elis-Thomas
I am grateful to the Minister for the tone and content of his response and to other Members of the Committee who have taken part in the debate. I well remember the days of the noble Lord, Lord Thomson, as chair of the Independent Broadcasting Authority, as it then was, and of the discussions that took place before the establishment of S4C.
As the noble Lord, Lord Aberdare, emphasised, the issue is a non-party political one, and I am pleased that it is. I am grateful also for the detailed way the noble Baroness, Lady Dean, has pursued the issues of Welsh broadcasting since she has been leading for the Labour opposition on the Bill. I know that that is greatly appreciated. It is matched by the championship of sport by her noble colleague. In the spirit of the Minister's response and willingness to discuss the matter, I shall not press the amendment. We are grateful to him within the authority and the other media organisations in Wales for the way in which his department has continued a long dialogue with the authority and broadcasters. I hope that that will continue, and that it bears further fruit as we progress on the Bill. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Inglewood moved Amendment No. 12:
Page 2, line 31, at end insert—
("(4) If the Welsh Authority notify the Commission, within the period of one month beginning with the commencement of this section, of their intention to provide S4C Digital, S4C Digital shall be a qualifying service for the purposes of this Part.").
§ Lord Inglewood moved Amendment No. 13:
Page 2, line 31, at end insert
("(5) In subsection (2) "programme" does not include an advertisement.").
§ The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendments Nos. 65 and 224. My fourth amendment to Clause 2 inserts at the end a new subsection (5). My second amendment after Clause 25 and my amendment to Clause 89 are also part of this story, and I hope that we can take them together.
§ The amendments are designed to allow the existing terrestrial broadcasters to include different advertisements in their simulcast digital services. We know that getting digital terrestrial television off the ground will be an expensive business. There therefore seems no good reason to stop broadcasters from raising income from the sale of advertising space on their 172 digital services separately from their analogue services, if they should wish to do so. In the early stages of rollout, they may well judge that the digital air time may provide different advertising opportunities for commercials targeted at different groups of consumers. The Bill as drafted would prevent that, and we have taken steps to correct that anomaly.
§ The amendment to Clause 2 therefore excludes advertisements from the simulcast requirement for all qualifying services. The insertion after Clause 25 provides for Sections 8 and 9 of the 1990 Act (which cover general provisions as to advertisements and the control of advertisements) to apply to any new advertisements included in qualifying services other than S4C Digital, which is covered by the application to it of Section 60 of the 1990 Act by dint of my first amendment after Clause 25. The amendment to Clause 89 simply adds qualifying services, other than S4C Digital, to the definition of a "licensed service". S4C Digital will, of course, be provided without a licence from the ITC by the Welsh Fourth Channel Authority under its powers derived from the 1990 Act. I beg to move.
§ Clause 2, as amended, agreed to.
§ [Amendment No. 14 not moved.]
§ Clause 3 agreed to.
§ Clause 4 [General licence conditions]:
§ Baroness Dean of Thornton-le-Fylde moved Amendment No. 15:
§ The noble Baroness said: I am moving the amendment in the absence of my noble friend Lord Ashley. It inserts into the Bill a reference to the Disability Discrimination Act 1995, which went through this place recently. We believe that it is in keeping with the Bill's philosophy of dealing with equal treatment for people. It makes sense to include it, because there is a specific reference to people with disabilities. I beg to move.
§ Lord Inglewood
I see that the noble Lord, Lord Ashley, has arrived, and he may wish to support his noble friend.
§ Lord Ashley of Stoke
I wish to support the amendment moved by my noble friend. I have no doubt that she spoke eloquently. She will have explained that the amendment's purpose is to enable the ITC to include conditions which it feels are appropriate in the licences it grants. The amendment draws attention to the duties imposed on providers of services by the Disability Discrimination Act 1995. It will emphasise to all future ITC executives the need to observe that important Act.
Disabled people have campaigned forcefully for anti-discrimination legislation. They have won some rewards, largely because of the justice of their cause. The Act did not give them all that they sought and all that they desired. We made that clear in this place and another place. It is essential to have something on the statute book to ensure that what is given is acted upon. 173 I hope that the Minister will take that point. That is the main purpose of the amendment to the provisions of that Act. I know that it is an Act of Parliament, but the point of the amendment is to highlight those provisions, especially as they relate to broadcasting. The key part of the Act is Section 21, which provides:Where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides, or is prepared to provide, to other members of the public, it is his duty to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change that practice, policy or procedure so that it no longer has that effect".It is important to place that on record in this debate, because we all recognise the importance of broadcasting in our society. I suspect that, if the great majority of people in this country were isolated upon a desert island with their discs, they would choose to take as their luxury item a television set that gave them British television.
Deaf, hard of hearing, and visually impaired people are no different from others. They want to share in the good and bad of television, the serious and the trivial, the sport, the quizzes, the news and the soaps. They want to be part of a world in which what people talk about in the office, pub or shop the following day is what was on television the previous night. Technology now enables them to do that on terrestrial television, thanks to sub-titling, signing and audio description for sight-impaired people.
It is essential that, as technology advances and we move into the digital age, those with a sensory disability advance as well. I wish to conclude by suggesting to the Minister that whether they recognise that the level of provision is deemed "reasonable" is a matter for debate. Later amendments are relevant to that. For now, the principle of equal access for all those for whom it is technically possible should be firmly established. The amendment seeks to achieve that.
§ Lord Inglewood
I am grateful to the noble Lord, Lord Ashley, for in his customary manner arguing so forcefully the interests of the disabled. It goes without saying that we warmly welcome the Disability Discrimination Act. I am aware that the provisions of the Act, and in particular Section 21, will apply to broadcasters just as they apply to other service providers.
However, I must confess that I see little that would be gained from writing these provisions into the current Bill or into the licence conditions of the ITC's licensees since by definition they apply already to those licence holders. As a general rule, using two statutes where one will do, would seem to be something worth avoiding. I hope that having replied to the matter in the Chamber I have made clear the position and have underscored the rules as they apply to broadcasters. In view of that explanation I hope the noble Lord will withdraw his amendment.
§ Lord Ashley of Stoke
The Minister will know that deaf, hard of hearing and blind people were anxious for the matter to be raised. The Minister is regarded as one 174 of the most co-operative in the House and in view of what he said I happily beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 agreed to.
§ Lord Donoughue moved Amendment No. 16:
§ After Clause 4, insert the following new clause—
DIRECTOR GENERAL OF FAIR TRADING
(".—(1) In exercising any of his powers or duties under this Part the Director General of Fair Trading shall in particular take into consideration whether any situation operates, or may be expected to operate, against the public interest.
(2) In determining for any purposes to which this section applies whether any particular situation operates, or may be expected to operate, against the public interest, the Director of Fair Trading shall take into account all matters which appear to him in the particular circumstances to be relevant.").
§ The noble Lord said: The new clause is not easy to read but it has great relevance to the issue and is made more prescient by today's developments. It is clear that the Director General of Fair Trading is very important in the regulation of the whole industry in order to ensure, first, that there are no improper practices and, secondly, in order to maintain that the public interest is always secured. That is the intention of the new clause because we are advised that it is not properly secured in the Bill at present.
§ I do not imagine that it is the Government's intention that the public interest should not be taken fully into account but that is the view of legal advisers and others even closer to the regulatory activities. Therefore, we are trying to help the Government. If they see a way of drafting the provision more helpfully we would be receptive to that.
§ In order to ensure that the Director General of Fair Trading is legally obliged to consider the public interest in exercising his powers and duties under the proposed legislation it is essential that that should be an express, mandatory, specific requirement of the Bill. That is not to say that the director general will not take into account the public interest. Even without such an express requirement he might decide to do so. Indeed, if the matter went to court it might be construed that it was his duty to do so and was implied.
§ However, we are advised and believe that it would be helpful to the regulatory authority if the Bill contained an express requirement. All uncertainty would be avoided by making it clear in the Bill that there was a legal obligation on the director general to consider the public interest when exercising his statutory powers and duties.
§ Requiring him to do that does not mean that he will ignore other relevant considerations. The public interest is only one consideration. Nor does the proposal mean that the public interest will override other considerations. However, as a result of discussions within the industry we are all aware that broadcasting is not an ordinary trading commodity such as hogs or potatoes; it is a special area in which society has a great interest because of the cultural and political significance of broadcasting. Therefore, there is always a public interest and one which might be 175 ignored or betrayed if matters were left only to the market. The market does not have to take into account public interest. We believe that it is not the view of the whole Committee that market forces alone should be involved but that the public interest should be taken into account. We are advised that it is most desirable that there should be an obligation on the director general to take into account the public interest. I beg to move.
§ 6.45 p.m.
§ Lord Thomson of Monifieth
I support the amendment proposed by the noble Lord, Lord Donoughue. The changes that the Bill presupposes in the broadcasting world, the multi-channel world of digital technology, and the changes in ownership which are also contained in the Bill have created a situation in which the public interest as regards those issues will be significant. At a later stage in Committee I shall seek to move amendments relating to media ownership but I prefer not to lay down percentage rules that are too rigid and to keep as free as possible the circumstances in which the market place can operate. I believe that we should apply to that a rigid test as regards where the public interest lies. In such circumstances, it would frequently fall to the Director General of Fair Trading in the first instance to express a judgment about where the public interest lies. Therefore, it is important to have a description of his duty in the Bill. I do not know whether the wording of the proposed new clause will command the Minister's support but the purpose behind it is important. I am happy to give strong support to the amendment.
§ Lord Inglewood
I am extremely grateful to noble Lords for explaining their support for the amendment. It is obviously the case that as regards broadcasting the Director General of Fair Trading has no specific duties under the Broadcasting Act. While there might be disagreement about the nuances, there is clear agreement across the Committee that we must deal with this part of the economy in a manner different from the way in which we deal with hogs and potatoes. The Government's approach is that the specific separate controls on broadcasting, the media and so forth, if and when needed, should be policed by the ITC and the Radio Authority and not by the Director General of Fair Trading.
We would be happy to consider any specific proposals supported by argument as to why that might be appropriate. I say that not necessarily holding out hope that the Government might be persuaded that this is a direction in which they wish to move but in order to investigate fully whether there are those who feel that this is a constructive contribution to the way in which the Bill might go. We would like to look at the matter in order to form our own view of the merits of the proposal. It is fortunate for the noble Lord, Lord 176 Donoughue, that we have a consultation process under way and we shall be delighted to hear about the particulars of his case.
§ Lord Donoughue
I thank the Minister for that reply. I am intrigued to know that one more difficult and technical area of consultation is added to the 132 that have already been taken on board for the next two weeks. I should be grateful if he would pursue the matter. I shall be as helpful as possible and provide him with background material. I think that the provision would be welcome in proper quarters. If the Minister comes back with a proposal at the next stage we will look upon it most positively. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness O'Cathain moved Amendment No. 17:
§ Before Clause 5, insert the following new clause—
§ DUTY OF APPROPRIATE REGULATORY AUTHORITY WHEN AWARDING
(".—(1) It shall be the duty of the appropriate regulatory authority when licensing any person or body to operate a conditional access system, network, local delivery service or other service for analogue or digital broadcasting services receivable in the United Kingdom, to ensure that—
- (a) there is fair and effective competition in the provision of such services and the access services connected with them, and
- (a) viewers and listeners are provided with automatic access to free to air channels and services whether or not those channels and services are broadcast free to air or encrypted.").
§ The noble Baroness said: In moving the amendment, I shall speak also to Amendment No. 18. The future of British broadcasting will be dependent upon the continuing health of Britain's network channels. Network programmes will continue to provide the foundation for Britain's television production industry with the consequent impact for employment and, indeed, for overseas earnings. It will also continue to provide the foundation for audiences continuing to have access to a wide range of high quality output and British programmes being shown on secondary channels. More important, however, is the maintenance of the worldwide reputation of British broadcasting.
§ The survival of network television in Britain is dependent upon its services being available to a truly nationwide audience. However, in the digital age, programmes and other audiovisual services will increasingly be distributed through a variety of systems. People can now choose whether to buy into the available cable networks. Industry predictions indicate that as many as 30 per cent. of homes will use cable systems to receive television services by the year 2000. In addition, as the use of our telephone system opens up the option of having television pictures down copper wires, more and more viewers will choose to leave the old rooftop aerials and set-top aerials and opt solely for cable and telephony means. Those are healthy developments. We are not trying to push them back. Genuine choice is making many more services available to more viewers. Often the quality of reception is better. We welcome those opportunities. But unless action as 177 outlined in the amendment is taken, both the availability and the future of existing public service channels will come under threat. The erosion of their universality would undermine the basis of the BBC's funding through a universal licence fee and the public service obligations already imposed on ITV and Channel 4.
§ The issue has been addressed in other countries. The mainstream broadcasters regret that the Broadcasting Bill is silent on the topic. They believe that action should be taken in the UK to ensure that British audiences continue to have universal access to public service channels in the digital age. The proposed amendments reflect a number of important measures. The so-called "must carry" and "must offer" requirements are the ones to which I am talking. They would ensure that access is maintained. The "must carry" measure would apply to public service channels and services on wired systems, and "must offer" would guarantee access to public service channels through gateways such as conditional access —black boxes —on satellite systems.
§ An interesting situation has arisen for users of cable services in south-east London. Many households have opted to use the cable services provided by Videotron. The area is directly in the shadow of the Crystal Palace transmitter. But local hills mean that the TV pictures received in homes with roof aerials have been of poor quality for many years. Shadowy pictures and poor reception have driven hundreds of homes to choose Videotron in order to obtain good pictures. Up to December 1995, buttons 1, 2, 3 and 4 on the hand control unit enabled people to receive BBC1, BBC2, 1TV and Channel 4, but, in January, Videotron chose to lake Channel 4 off the fourth button and move access to it from within the cable system alone.
§ Viewers in south London must now find button 40 in order to get Channel 4. Nothing has replaced Channel 4 other than a blank Videotron display card stating that the station is no longer available. That exemplifies the issue. The lack of legal requirements on cable or any other providers to give the mainstream channels priority means that they could drop BBC1, BBC2, ITV and Channel 4 at will and move around access to those channels with no regard to the problems that might be caused for viewers.
§ Amendments Nos. 17 and 18 seek to put right a situation which needs clarity and regulation. If the public are obliged to pay a licence fee to receive television pictures, they must have access to those pictures with ease. On Second Reading I alluded to the BBC Charter which obliges the BBC to carry government information at times of war or in a national emergency. That requirement is obvious, necessary and makes sound common sense. If we are to be consistent to that requirement in the charter, then all delivery systems should be obliged to carry and offer mainstream services. The amendments protect the healthy availability of the four terrestrial channels. I urge the 178 Government to accept the principle and the detail of the amendments and to incorporate them in the Bill. I beg to move.
§ Lord Ashley of Stoke
I support the amendments. They ensure that in a multi-channel environment publicly funded channels are available as a matter of course without viewers having to buy additional equipment. The provision applies to all delivery systems, a most important point.
Two basic truths have prompted the amendments. First, it is far too easy for the legislature to fail to anticipate future developments, especially where technology is concerned. Indeed, some of us are rather frightened of technology; I know that I am. We tend to shy away from it. It is easy for the legislature to look away. Secondly, parliamentary time is by no means always available to remedy omissions. The lesson is that we should play safe on important issues. That is what the amendments are designed to do.
I have to say that the Minister gave a most disappointing response to the noble Baroness when she raised the issue on Second Reading. He said that,it is only after an eventual switch-off of analogue that it possible, even in theory, that householders … would be unable to receive the services of existing terrestrial [sets]" —[Official Report, 16/1/96; col. 563.]The Minister went on to talk about the "strong possibility" of the development of "set-top boxes" which would receive all modes of transmission. Although he said that that was a strong possibility, it is still only a possibility and not a probability. That is an important point. Let us suppose that the development does not take place. Even if it does, what if the owners of cable or satellite decide that it is in their commercial interests to squeeze out the terrestrial programmes? That is very probable because commercial interests come first.
The requirements of "must offer", "must carry" and also of "open access", which are reflected in the amendments, make this a matter of public interest. Such requirements would guarantee that our present terrestrial programmes were available to viewers whatever the future developments and without the need for future legislation. Television has to be paid for in some way or another, but the best bargain of all now —and it is likely to remain so —must be the BBC's programmes when one thinks of the cost of the licence fee. That must remain the basic fixture of television for the foreseeable future. The amendments are about preventing the possibility of any operator squeezing out the BBC, which is the best television bargain in the world.
I know that the Government have not said that they do not want the continuation of current terrestrial programmes. I accept that fact. Nevertheless, the Government are simply sitting on their hands and doing nothing to ensure the future of current terrestrial programmes. I cannot believe that the Government are unaware of the risks. I hope the Minister will look favourably and sympathetically at the amendments.
§ 7 p.m.
§ Viscount Brentford
As I have added my name to these amendments I wish briefly to express my support 179 for them. They have been admirably explained and I shall not discuss them further. However, I believe it is important to ensure that British audiences can continue to have universal access to public services in this digital age. In the absence of a "must offer" obligation on satellite providers, homes that otherwise are dependent on satellite for digital reception would find themselves paying for, but being unable to view, public funded services. I believe that that matter needs attention.
My noble friend Lord Inglewood in his address at the end of the first amendment talked about a measured balance being required in the competition between the different forms of television. I believe that that is true in this case. I believe that these amendments will contribute to that measured balance for which he is asking and I very much hope that the Government will support these amendments and the principle embodied in them.
§ Lord Thomson of Monifieth
The noble Baroness has raised an important matter. I wait with great interest to hear what the Minister has to say. I heard what the noble Baroness said about Sydenham Hill; that is the area from where the television is broadcast that my grandchildren watch.
Something is worrying me that I had not realised could go on. However, I am conscious of the fact that I am in my dotage and that my knowledge of these things relates to the past. I thought the "must carry" rule was firmly applied by the appropriate authorities and I thought that the cable authority was put under that obligation when it was merged into the new ITC. I believed that the "must carry" rule was rigidly applied. I am rather worried by what the noble Baroness said. She has raised an important matter and I hope that the Minister gives us a satisfactory reply to that.
I rise merely to ask the noble Baroness where it is stated that the amendments are restricted to public service broadcasting. It looks to me as though they go much wider.
§ Baroness O'Cathain
My noble friend referred to public service broadcasting. When I considered this whole issue I thought that public service broadcasting comprised just the BBC because that is the body which is publicly funded by the licence fee. However, I realised that the term "public service broadcasting" includes ITV, Channel 4, and will include Channel 5.
§ Lord Donoughue
s: We on this side had assumed earlier that this matter would be discussed at a more prime part of the day as it is an issue that we consider to be of considerable importance. I must confess that until the noble Baroness, Lady O'Cathain, spoke on the matter at Second Reading I had missed it altogether. I do not count myself a great expert on the matter but I believe it is an issue of great importance that the "must carry" and "must offer" rules and obligations should be there.
Like the noble Lord, Lord Thomson of Monifieth, I am troubled that this area might be unsatisfactory and fragile. If we cannot deal with this matter satisfactorily this evening, it is absolutely the kind of issue that we should wish to return to at another point. I hope that the Minister 180 will be able to reassure us. It seems to me that this matter is on a quite different level and scale from many of the important but nitty bitty nuts and bolts that we deal with. This is an important issue.
§ Lord Inglewood
I wish to begin by making it absolutely clear to my noble friend that the Government are in full agreement with the aims behind her amendment. We want the services of existing public service broadcasters to continue to he available to all of the people of the United Kingdom. Indeed, that is one of the key principles on which our proposals for digital terrestrial television are based. We also want to ensure that the providers of all conditional access, multiplex and other services must provide services in a non-discriminatory manner to all those who seek to use them. This is important because those providers may exercise a "gatekeeping function" whereby broadcasters depend on their services in order to get their programmes to viewers.
I believe that our proposals will achieve both of those aims. If I may, I shall discuss the first of the amendments referring to access to free-to-air channels and to requirements for local delivery service operators to carry public service broadcasters. I shall begin by giving a general exposition of the position and then address some of the particular points that the noble Baroness raised. As I said at Second Reading, analogue terrestrial television services will not be switched off until the vast majority of viewers has acquired digital receiving equipment. Until then, households with television sets will continue to be able to receive the BBC and Channels 3, 4 and 5 in the same way as they do now. Those with digital sets will also be able to receive new services provided via the guaranteed digital capacity which will be offered to all existing broadcasters. And there is, of course, a strong possibility —given the clear consumer interest in such a development I think we may even call it a likelihood —that by the time analogue is switched off the industry will have developed receivers able to receive all three modes of transmission: terrestrial, cable and satellite. Even if that is not the case —and may I remind the Committee that we are probably talking, at the earliest, about the end of the first decade of the next century —and even if some households in the future have access to digital cable or satellite receivers but not to terrestrial ones, there will be every incentive for providers of cable and satellite transmission services to ensure that the public service channels are carried and that no separate charge is made to receive them. In practice, I understood that all cable companies with current franchises currently choose to carry the services of terrestrial broadcasters, without the need for statutory provision. This has been, and continues to be, important for them in gaining customers in their new markets. Indeed, the statutory requirements introduced in the Cable and Broadcasting Act 1984 were removed in 1990 in recognition of this fact. Certainly, as a deregulatory Government, we would need considerable persuasion to reintroduce that. After all, much more capacity is becoming available on digital cable, and there seems no reason to believe cable companies will not continue to carry the public service broadcasters as long as they continue to produce the quality programmes for which they are renowned. Those channels obviously will 181 be a significant attraction for viewers, so the BBC and other channels have a strong hand. The new cable services will need to carry their programming in order to develop or sustain market share. Indeed, I would not expect viewers to give up their terrestrial aerials unless they are assured by the companies providing other means of reception that they will continue to receive the public service channels. And, in the area of digital terrestrial television, the existing channels will, of course, themselves be given over to multiplex provision.
However, having said all that, I wish to repeat the assurance I gave to the Committee. The Government are committed to monitoring the situation as it develops.
I was most interested to hear what my noble friend had to say about Videotron. I must concede that I am unaware of the detail of the circumstances surrounding this case. I shall obviously want to look into that before returning to that point. If we could follow up that matter it would he most helpful. I have given an assurance that if something appears to require monitoring we should, as a first step, look into what is going on. We start undoubtedly from a position where we are unconvinced by the particular proposals contained in the amendment. However, I hope that the Committee will allow me to look further into the matter that was drawn to my attention this evening.
§ Lord Donoughue
Before the Minister sits down I hope that he can help me a little more on the matter of the switch-off date. I accept that we are discussing a technology that could take off like a rocket and be with us in no time or could be 20 years in arriving. At some point a difficult decision may have to be taken as regards the switch-off date for analogue. My understanding is that that could happen at a time when a significant proportion of the nation would not have access —or could not afford to have access —to digital services. I understand that the digital multiplexes have varying ranges. Therefore, there may be areas of the nation that were not covered, as it were. Does not that combination possibly lead to a situation in which people will not be receiving these services? All the monitoring that the Minister talks about may not secure those services. Can the Minister assure me that, in view of all the uncertainties, the analogue switch-off will not result in an unsatisfactory situation?
§ Lord Inglewood
First, in relation to the noble Lord's point about timing and the possible analogue switch-off, we shall come to amendments dealing with that subject later, and therefore I do not want to go into it in detail. However, it is the Government's policy that the matter should be reviewed after five years or when 50 per cent. of households are capable of receiving digital broadcasts, to establish whether that is an appropriate time for a date for analogue switch-off to be determined. I speak from memory, and I hope that I quote policy accurately. It is intended that analogue switch-off will take place only when the same number of households can receive digital broadcasts as can currently receive analogue broadcasts. In general terms, the basic coverage for digital broadcasts should be as extensive as it is for analogue broadcasts.
The noble Lord referred to the fact that some multiplexes will have wider coverage than others. The important point to appreciate within the debate is that 182 those multiplexes which have the widest coverage are those to which the public service broadcasters will be attached. Therefore, it is the public service broadcasters with whom we are concerned in the context of the amendment who will have the widest coverage. Therefore, we believe that the problem that the noble Lord identified will not arise.
§ Lord Ashley of Stoke
I welcome the Minister's assurance about monitoring. However, suppose that in the course of the monitoring the Minister finds that things are going wrong. Can he tell the Committee what he would do and what powers he has to do anything if the amendment is not carried?
§ Lord Inglewood
The answer to that question depends on what is going wrong. I believe that we can realistically predict with a degree of certainty in this uncertain world that further legislation on broadcasting will come forward with relative regularity. Were it then to become apparent that something was awry, that would be the time to introduce legislation to give effect to the appropriate steps.
§ Baroness O'Cathain
I thank my noble friend for his reassurance that he will look at the matter. He said that if something goes wrong the Government will look at it. I suggest that something has gone awry. Matters began to go awry when the statutory requirement was removed in the 1990 legislation.
My noble friend tried to give me some comfort by saying that the satellite and cable companies are continuing to carry BBC1, BBC2, ITV and Channel 4. However, the Minister conceded that that was what I see as a marketing ploy. That gives me no comfort that that situation will continue. I had discussions with one of the satellite television companies at which I made that very point. When I was asked why I was putting forward the amendments, I said that I was worried about whether the public service broadcast channels would continue to be carried. The reply was, "We will continue to carry them provided we are paid for them". That is not in the spirit of what the Government want.
Monitoring is all very well, but if there were a statutory requirement on the face of the Bill there would be no need to monitor the position because it would become apparent if the requirement was not complied with.
Having said that, I am not in favour of regulation but want as much deregulation as possible. However, I believe that in this case we should have another look at the position. I am grateful to my noble friend the Minister for saying that he will look at the position again. I hope that he will do so before Report stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 18 and 19 not moved.]
§ Clause 5 agreed to.
§ Clause 6 [Assignment of frequencies by Secretary of State]:
§ [Amendment No. 20 not moved.]
§ Baroness Trumpington
It may be appropriate to suggest that the Committee stage of the Bill be 183 adjourned now during pleasure until 8.15 p.m. Would that suit the Committee? We thought that Amendment No. 19 would be moved.
§ Lord Donoughue
We too thought that Amendment No. 19 would be moved. I believe that we have reached a suitable moment to adjourn. The next amendment to be moved may take a little while. Therefore, it is probably better if, as the noble Baroness suggests, we adjourn until 8.15 p.m.
§ Baroness Trumpington
In that case, I beg to move that the House do now resume and that the Committee stage begin again not before 8.15 p.m.
§ House resumed.