§ 8.37 p.m.
§ House again in Committee on Clause 67.
§ Baroness Jay of Paddington moved Amendment No. 195C:
§ Page 59, line 23, at end insert ("taking into account the diverse interests of society, including women, different racial groups and disabled people,").
§ The noble Baroness said: In moving Amendment No.195C I shall speak also to Amendments Nos. 195D, 195F and 195H. Those amendments were previously grouped with Amendment No. 195ZC but, with the permission of the Committee, they form this later group. All the amendments deal with membership of the new Complaints and Standards Commission and the methods of appointing its members. Amendments Nos. 195C, 195D and 195F seek to ensure that the membership of the commission is representative of all the regions of the United Kingdom and of those with special cultural or community interests such as ethnic minority populations.804
§ They also require the Secretary of State to include those with specific sensory disabilities whose particular needs have been so vigorously advocated by my noble friend Lord Ashley of Stoke throughout the deliberations on the Bill. There is also a requirement for the Secretary of State at least to listen to and take account of representations from general consumer organisations such as the National Consumer Council.
§ The Committee may fear that all that augurs for a hugely unwieldy body in which members may be interested only in being present to promote their individual cause. I do not think that need be so. With judicious selection and good management, an organisation can be broadly and fairly representative without every single concern being individually reflected in an individual member.
§ However, I am afraid, particularly in view of my past experience in the National Health Service, that unless some explicit directions are given about membership, the composition of influential statutory bodies such as this may be influenced by "cronyism" and political patronage. That possibility, that fear, lies behind Amendment No. 195H which simply requires the Secretary of State to implement the recommendations of the noble and learned Lord, Lord Nolan, in making appointments to public bodies.
§ The Committee will recall that in his first report on standards in public life the noble and learned Lord required the appointment of an independent commissioner for public appointments to oversee appointment procedures. Unfortunately, so far there has been no move by the Government to make such an appointment. But the noble and learned Lord recommended also that public appointments should be subject to the advice of a panel which should include a substantial independent element. He recommended further that candidates for appointment should declare any significant political activity which may have been undertaken in the previous five years. Those recommendations are the basis of Amendment No. 195H and the wording is taken directly from the report of the noble and learned Lord.
§ The spirit and, indeed, the practical implications of those amendments have already been accepted in other branches of public life. For example, I know that they are being implemented in making appointments to the new unitary health authorities which will take over the NHS on 1st April. I am sure that the Minister's right honourable friend the Secretary of State has been supportive of those changes in the health service.
§ It seems entirely appropriate, in the interests of accountability, high standards and, indeed, consistency throughout the public service, that the recommendations of the noble and learned Lord, Lord Nolan, should be adopted in this crucially important new body which the Broadcasting Standards Commission will be. I beg to move.
§ Lord Inglewood
I am grateful to the noble Baroness for comprehensively setting out the reasons behind this group of amendments. I shall deal first with Amendment No. 195C. I can well understand the noble Baroness's wish that the Secretary of State should take account of 805 the full range of interests in society and the talent available to her in making appointments to the BSC. The amendment identifies some, but not all, important elements in that. Nonetheless, the Government do not believe it necessary or appropriate that the Secretary of State should be directed in this way: she would always as a matter of course wish to ensure the best possible appointments to an important body of this kind. It is also true to say that women, different racial groups and disabled people can advocate their own views and I am sure the BSC would receive and consider those views with care. Therefore, the Government would resist this amendment.
Amendment No. 195D would require the Secretary of State to appoint two members to the BSC who are sensorily impaired. The Government believe that it is undesirable to place such a requirement on the Secretary of State, as the Secretary of State gives the widest consideration to the qualities and experience required in appointees in order to achieve the right balance of quality and experience in the membership of the BSC. Placing a requirement in favour of only one particular group, however inherently attractive that may appear, raises the question as to whether other equally deserving groups should not be similarly favoured. We must not lose sight of the need to give the Secretary of State flexibility in arriving at the best possible combination of ability and experience, which in turn may change as membership changes. Therefore, the Government resist making explicit provision in the membership of the BSC for particular groups.
Amendment No. 195F is intended to require the Secretary of State to strive to ensure that appointees to the BSC are suitably qualified to represent the interests of a broad range of regional and social groups and, where appropriate, reflect the range of programmes on television and radio. As I explained a few moments ago, in any event the Secretary of State would wish to take into account the range of interests in society when making appointments to the BSC. However, such a requirement would fetter the discretion of the Secretary of State to ensure the best possible appointees to the commission.
Amendment No. 195H relates to the Nolan Committee. As the noble Baroness said, these are recommendations of the Nolan Committee on Standards in Public Life which the Government have already accepted in respect of all public appointees. The Government see no need to amend the legislation relating to each public body in order to incorporate that commitment. For that reason, the Government will resist this amendment as they did the others.
§ 8.45 p.m.
§ Baroness Jay of Paddington
I am grateful to the Minister for that detailed reply. I am somewhat disappointed that, although, as the Minister says, the Government have accepted the principle of the recommendations made by the noble and learned Lord, Lord Nolan, they are not prepared, in the spirit of those recommendations, to make them explicit, as they refer in particular to new bodies of this kind.
806 I draw the Minister's attention to the other more general recommendation of the Nolan Committee in which it is said in general terms, not relating to the specific requirements about appointments:The basis on which members are appointed and how they are expected to fulfil their role should be explicit. The range of skills and background which are sought should be clearly specified".That seems to me to be much more precise than the rather more general understandings which the Minister and his Secretary of State seemed to be content to rely upon.
I find the Minister's reply very disappointing and I suspect that we shall need to return to this matter at a later stage. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 195D not moved.]
§ [Amendment No. 195E had been withdrawn from the Marshalled List.]
§ [Amendment No. 195F not moved.]
§ [Amendment No. 195G had been withdrawn from the Marshalled List.]
§ [Amendment No. 195H not moved.]
§ [Amendment No. 196 had been withdrawn from the Marshalled List.]
§ [Amendment No. 196A not moved.]
§ Schedule3[TheBroadcastingStandards Commission: supplementary provisions]:
§ Lord Inglewood moved Amendment No. 196B:
Page 99, leave out lines 23 to 34 and insert—
("(2) The BSC shall send a copy of the statement of accounts to the Secretary of State and to the Comptroller and Auditor General within such period after the end of the financial year to which the statement relates as the Secretary of State may direct.
(3) The Comptroller and Auditor General shall—
- (a) examine, certify and report on the statement of accounts, and
- (b) slay a copy of the statement of accounts and of his report before each House of Parliament.").
§ The noble Lord said: As a result of brief discussions between the usual channels, it has been suggested that it may be for the convenience of the Committee if I speak together to all the government amendments, but obviously I shall move them as we come to them.
§ As regards Amendment No. 196B, the Government consider that the accounts of the BSC should be audited by the Comptroller and Auditor General and this amendment to Schedule 3 provides that the Comptroller and Auditor General be so empowered, in particular to examine the statement of accounts and to lay a copy of the statement and his report on the statement before your Lordships' House and in another place.
§ Amendment No. 200 is consequent upon a previous government amendment as a result of which the Welsh Authority will be able to provide a further service and arrange for that service to be broadcast in digital form. Therefore, the intention is that the BSC's duty shall extend to programmes included in that new digital service.807
§ Amendment No. 202 is also consequent upon that amendment and its intention is that the BSC's duty should extend to programmes included in the new digital service.
§ As regards Amendment No. 208B, in the handling of fairness complaints, it is of course important that the complainant is advised of the outcome of the complaint. This amendment requires the BSC to send a statement of its findings to the complainant.
§ I turn now to Amendment No. 220A. While it is proper that the BSC be required to publish reports on those complaints which it considers or entertains, it would clearly he unnecessary for it to do so where, for whatever reason, it has neither considered nor entertained a complaint. Therefore, this amendment removes that requirement.
§ I move on now to Amendment No. 220B. The Government's intention in this part of the clause is to enable the BSC, where necessary, to omit from its report of a fairness complaint any information which might identify any person connected with the complaint. The broadcasting and regulatory bodies and providers of licensed services would, however, still be identified. Amendment No. 221A is a proposed new clause which will complement paragraph (c) of Clause 80(7). It will require the ITC the Radio Authority, the Welsh Authority and the BBC to report back to the BSC on any additional action taken by the body in question, or by a licence holder, or by the maker or provider of the relevant programme. Thus, where the BSC has issued a direction to the effect that its findings on a particular complaint must be publicised, the broadcasters and regulators will now have to make inquiries to find out whether any steps have been taken in response to such findings, beyond mere publicity. That will have the effect of demonstrating the seriousness with which the BSC's decisions are taken by broadcasters. Conversely, where broadcasters choose to ignore the BSC's decisions, this will be displayed, in the BSC's published reports, to the public. Broadcasters will, therefore, wish to consider the potentially damaging effect on public perception of ignoring the BSC's findings.
§ I turn now to Amendment No. 222A. In view of the wide recognition of the valuable contribution of the Broadcasting Standards Council's research to the debate on broadcasting standards, it is the Government's view that the new BSC should perform a similar role in the debate surrounding unfair treatment and infringement of privacy in broadcasting. It is hoped that the amendment will enable the BSC to commission research which will be of value to individuals and broadcasters alike.
§ Amendments Nos. 223A and 223B would provide that a copy of the BSC's statement of accounts for each financial year and of the report of the Comptroller and Auditor General on that statement is to be sent to the broadcasting and regulatory bodies and, on request, to licence holders.
§ With regard to Amendment No. 223C, under the terms of its agreement, the BBC is required to contribute towards the costs of the Broadcasting Complaints Commission and will be similarly required to contribute towards the Broadcasting Standards Council, as determined by the Secretary of State.808
§ The clause as it stands effectively follows the wording of Section 149 of the Broadcasting Act 1990. However, because of the new formula for determining contributions, it would, as it is currently worded, require the broadcasting regulatory bodies, which do not technically include the BBC, and the Welsh Authority, to contribute 50 per cent. of the costs of the new BSC. The BBC's contribution would, therefore, be in addition to that 50 per cent.
§ Finally, I turn to Amendment No. 224. Members of the Committee may recall that a number of previous government amendments enable the Welsh Authority to provide a qualifying service in digital form and lay down certain content and scheduling requirements. The content and scheduling of qualifying services provided by the other terrestrial broadcasters are covered by the terms of their licences and are therefore defined here as a special kind of licensed service. In conclusion, I beg to move Amendment No. 196B.
§ On Question, amendment agreed to.
§ Schedule 3, as amended, agreed to.
§ Clause 68 [Power to publish guidance relating to avoidance of unjust or unfair treatment or interference with privacy]:
§ Viscount Caldecote moved Amendment No. 197:
§ Page 59, line 27, leave out ("may draw up guidance relating to") and insert ("shall draw up codes of").
§ The noble Viscount said: In moving the above amendment, I shall, with the leave of the Committee, speak also to Amendments Nos. 198, 199 and 201. I strongly support the merger of the BCC and the BSC to form the new, more effective BSC. I welcome the provisions of the Bill such as those in Clause 80 which give greater powers to the new BSC and which will make it more effective. But some further strengthening is needed, particularly in the references as to what the BSC "may" rather than "shall" do, and to guidance and codes. Amendment No. 197 would lay a duty on BSC to draw up codes rather than guidelines. Any regulatory authority or regulatory arrangements must contain rules or laws laid down by Parliament, and also codes of best practice and guidance, where needed, on related matters in descending order of severity and precision.
§ Perhaps I may take an analogy from the use of vehicles on public roads. Signposts or police notices may give guidance as, for example, on a recommended diversion to avoid a low bridge or a flood. However, it is left to the driver's discretion as to whether or not such guidance is followed. The Highway Code is much stronger. It provides a code of good practice. In most cases, it is not in itself an offence to break the code, but, if an accident occurs, it will certainly be relevant in apportioning blame and in any resulting prosecution. Finally, the Road Traffic Act contains mandatory requirements, rules and laws the breach of which constitutes a criminal offence for which the offender risks prosecution.
§ The Bill contains many such rules, but they are not appropriate for regulating matters which are the remit of the BSC. Clear codes of practice are the best way and codes are already referred to in the Bill in many places. 809 However, those references are confused and made less effective by the introduction of the concept of "guidance" which, in too many cases, programme makers feel is only guidance and may be ignored at their discretion. That is clearly unsatisfactory, even accepting—as I certainly do—the need to give adequate freedom to exercise creativity in programme content.
§ The amendment would replace the words "may draw up guidance" with "shall draw up codes". I submit that that is essential if the BSC is to carry out its task effectively. Similarly, Amendment No. 198 replaces the word "guidance" with the word "codes". Amendment No. 199 makes it mandatory for the BSC to publish the codes in force, to monitor them and to report on them. Again, "guidance" is replaced by the words "codes". The amendment is important also in that it would enable the public to judge whether the codes are sensible and whether they are being observed. Amendment No. 201 would move the unnecessary and weakening words "giving guidance" in Clause 69(1). The objective of all the amendments is to strengthen the hands of the BSC and to clarify the way in which programme makers must behave. I beg to move.
§ Lord Renton
I wish to support the amendments. My noble friend has raised an important matter. We all know that increasingly in recent years there has been too much invasion of privacy on television. I believe that it is right that there should be specific obligations such as would result from my noble friend's amendments in order to deal with the matter. Therefore, I hope that my noble friend the Minister will give the amendments a very sympathetic reception.
§ Lord Ackner
I, too, should like to support the amendments. It is, of course, axiomatic that no watch-dog should be toothless. That is the situation in regard to those clauses which it is sought to amend. Guidelines are a species of exhortation and a person who wishes to ignore them can simply say, "I had regard to them; but I didn't think that they applied to my particular case". In my submission, it seems to be obvious that, if regulation is to occur, then that which the regulation provides must be clear and unambiguous; and, indeed not the subject matter of a discretionary compliance according to the particular reaction of the person involved.
§ 9 p.m.
§ Viscount Tenby
I rise briefly to express my support for the amendments tabled in the name of the noble Viscount, Lord Caldecote, and of my noble and learned friend Lord Ackner. The amendments are clear and straightforward, but I hope that the Minister will agree with me that they lie at the very heart of regulation. I am afraid that for once I cannot agree with the Duchess in Alice in Wonderland, who advised Alice to,Take care of the sense and the sounds will take care of themselves".I prefer the recent comment of the ITC, which has an admirable record in this respect, that,the best and most effective regulation flows from clarity".810 In any walk of life—and broadcasters are no exception—uncertainty and lack of definition present untold opportunities for the skilful and unscrupulous operator to exploit. In the past the situation with regard to the BBC, for example, has been far from satisfactory in the matter of regulation. The fact is that there has not been parity with the independent sector. That fact has been classically acknowledged by the Government—and credit must be given to them for that—in the stronger provisions contained within the new Charter and Agreement. But the anomaly remains. The judge and jury are still to be the same under the proposals in this Bill. That is unsatisfactory enough in all conscience, but if one adds to that the fact that the new BSC will be entitled,to draw up guidance relating to principles to be observedan invitation is in effect being extended to unscrupulous broadcasters to get round such guidelines if they can in an unwelcome cat-and-mouse game. It will at the same time fill honest broadcasters with doubt about what can and cannot be done. Waffle never pays. People have the right to know unequivocally what the rules are, and they also need to know what will happen to them if they take a chance.
The Earl of Halsbury
I wish to support the amendment of the noble Viscount. I must warn the Government that if they do not accept it they will suffer from a progressive deterioration of standards. This creeping deterioration is already on us and we must bring a halt to it.
§ Lord Rix
I am happy to play a supporting role in relation to the amendments tabled by the noble Viscount, Lord Caldecote, and the noble and learned Lord, Lord Ackner. I must apologise if I speak for a moment longer than I should because I suspect that I shall not be present at the Report stage. Like the noble Viscount and the noble and learned Lord, I feel that it is wrong to give injustice or unfairness a much lower profile than sex and violence as issues of public concern. It might even be argued that while there are those who support the portrayal of sex and violence on freedom grounds, or because they enjoy that sort of thing, I have yet to hear anyone defend injustice or unfairness as being for the common good, or of personal benefit to those who like that sort of thing.
Nor am I persuaded that the definition of what is unjust and unfair is so much harder to agree on than that which is unacceptable in terms of sex and violence before the watershed, or at any time for that matter. What I think is true—here I come to my particular and perhaps predictable interest as chairman of MENCAP—is that sometimes it takes a certain amount of expertise, or at least long acquaintance with the subject matter, to recognise unfairness and injustice. For example, my hackles rise when people with learning disability are portrayed as dangerously antisocial, or prone to behaviour which will reduce the value of property. Those who have no personal knowledge of people with learning disability might assume that such portrayal was accurate. Therein lies the problem. If no one believed it, it would matter much less if someone said it.?
811 Similarly, if MENCAP or any other charity is unjustly portrayed in a poor light, that can do a great deal of damage when people assume the portrayal is accurate. I have no objection to just and fair criticism. That is a healthy check on accountable bodies. As an organisation, MENCAP has on the whole had—and, if I may say so, has deserved—quite good media coverage. I have sometimes at least found radio and TV willing to present positive images of people with learning disabilities. Sometimes, however, that has not been the case. In such cases I have found obtaining an apology and a correction a little like the proverbially frustrating gathering of grapes off thorns, or figs off thistles. Requiring the commission to write and publish codes of good practice and to monitor and report on their implementation could help considerably to avoid and, where necessary, make amends for the lapses from virtue to which even the best of broadcasting systems are sometimes prone. That would be to everyone's benefit. I am happy to support these amendments.
§ Lord McNally
I hope that the Minister will show a little courage in the face of this wave of political correctness that is washing over the Benches in this Chamber. There are, of course, dangers as regards irresponsible behaviour of broadcasters, but I warn the Committee that there are also dangers in the over-regulation of broadcasting. In this field, the artistic field and the political field, one is constantly chasing a will-o'-the-wisp in trying to draw up some tight code which will achieve perfection. When one talks about taste and decency, or the portrayal of sex, or due impartiality, one is talking about subjective matters, the perception of which often changes from generation to generation.
There comes a point when a free Parliament in a free society has to defend the rights and freedoms of its citizens in a culturally important sector such as broadcasting. Sometimes their freedom to make mistakes must also be defended. Tonight we are hearing the language of restriction which I believe could have dangerous implications for a broadcasting system which in other respects, as I said earlier, Members of the Committee frequently hold up to the rest of the world as an example of excellence. It is an example of excellence, but I am not sure it would remain so for long if some Members of the Committee had their way as regards the restrictions they propose.
§ Lord Renton
I wonder whether the noble Lord has borne in mind that in recent years there has been—as has been said in this debate—increasing invasion of privacy, too much sex and too much violence. That is largely because the broadcasters are entirely their own masters. There has not been enough regulation. Quite frankly, unless we do something about this, those abuses will get worse; they will not get better.
§ Lord Chalfont
Not for the first time, and possibly riot for the last, I must take issue with the noble Lord, Lord McNally. He used the term "political correctness". His speech was, in my view, a typical example of precisely that vice of political correctness. We heard the peddling of the idea that everything is subjective. 812 However, everything is not subjective. For the benefit of the noble Lord and the Committee I shall recount something that the editor of The Times once said to me when I was writing leaders for that newspaper. The editor was Sir William Haley who had also been director-general of the BBC. At the time of the famous Profumo case a leader writer said to him—the argument was conducted on very much the same lines as that used by the noble Lord today—"But Sir William, all these things are subjective". Sir William looked at him for a moment and replied, "No, they are not. Some things are evil and cruel and ugly and no amount of fine writing on your part will make them good or kind or beautiful".
There are things which are said and done on television and spoken on radio which are not subjective. There is open obscenity; there are gratuitous displays of sex on television which are totally unnecessary to the creativity of any artist; there is unfairness to people, ideas, organisations and controversies which is not subjective but one-sided and biased, and everyone can see that it is. I beg the Committee not to fall into the kind of political correctness that the noble Lord advocates.
As the noble Lord said, there are already codes of conduct, such as the code of the ITC, which are clear codes governing behaviour on television. There is the code of the Radio Authority, which I was instrumental in drawing up and which lays down clear rules about what is and is not permissible on independent radio. That has not led to any kind of obscurantism, oppression or fascism. It is a perfectly liberal and necessary regime.
I have a strong feeling that what the noble Viscount suggests is very much needed. We do not want any more guidelines which people can skate around. We do not want any more advice. We want some codes of conduct which can be enforced and which are so clearly and unmistakably drawn that those who flout them can be punished.
§ Baroness Park of Monmouth
I should like to add my strong support for the amendment. The issue here is that we want clarity and clear guidance. No sensible, competent organisation suffers from having that. Most of the troubles that the BBC has had from time to time have resulted from vagueness and people being able to say "I didn't realise that that was what was meant".
The BBC is so highly respected that it is all the more important that it should not allow itself, as it sometimes has out of political correctness, to be swayed into a tendency to rewrite history, using the most biased sources and in a spirit of arrogance. The need here is not to say that one will not do this or that but to make it absolutely clear to the people within the BBC who are doing the work what is acceptable and what is not and that what is not acceptable will no longer be tolerated.
§ Lord Inglewood
We have had an interesting and worthwhile debate. Before turning to the four amendments, I should like to begin by making quite clear that the Government believe that there must be proper rules relating to appropriate standards of broadcasting, and there must be proper enforcement of those rules, supported if necessary by appropriate disciplinary action.
813 On this occasion we are not talking about what those rules should be or their exact delineation. What we are talking about is the legal framework within which they will work. To use an analogy, it is rather like a piece of jewellery which comprises gems and a setting. The gems are the policies; what we are really talking about this evening is the setting. We must try to analyse how the system we have works and the interrelationship of the various elements of that system, which is part of the legal framework we are looking at.
My noble friend Lord Caldecote and the noble and learned Lord, Lord Ackner, in their Amendments Nos. 197 and 198, which relate to Clause 68, propose that the Broadcasting Standards Commission shall produce, and from time to time review, a code of principles to be observed and practices to be followed, as opposed to guidance relating to the principles to be observed and practices to be followed, in order to avoid unfair treatment and unwarranted invasions of privacy. I believe that the effect is much the same whether the requirement is described as a code or as guidance, because each formulation implies a similar if not identical compilation of principles to be observed and practices to be followed.
Since the purpose of the clause is to avoid a wrong—namely, unfair treatment and unwarranted invasion of privacy—I am doubtful whether a semantic distinction between the different verbal descriptions of the format in which identical principles to be observed are set has any material significance. In this context each of the words is, for practical purposes, a synonym for the other, in terms both of meaning and of overtone.
I was grateful to my noble friend Lord Caldecote for sharing with me the thinking behind the amendment. I continue to think, as I have explained to him, that there is no material difference in effect between use of the words "guidance" and "code" in this context. However, I believe it is useful to retain the term "guidance" in order to distinguish it from the BBC's "code" on the portrayal of violence and sexual conduct and standards of taste and decency.
The guidance relates to provisions which take direct effect on to the regulator, and through him to the broadcaster and the programme. The use of the word "code" in Clause 69 relates to matters which are directly applicable to the broadcast programmes. I should like to come back to that in connection with Amendment No. 201 which relates to Clause 69.
On the question of whether the guidance should be mandatory, in practice pressure from broadcasters and other interested groups might achieve this effect even if the provision remains discretionary. But, as with a number of the noble Lord's amendments, the Secretary of State has only recently been able properly to discuss their effects with the current chairmen of the BSC and BCC. I would ask my noble friend not to press this amendment at this stage because I should like to consider it further and the suggested form of words about review and bring the Government's response back at Report stage.
814 I now turn to Amendment No. 199 which is in part complementary to the two earlier amendments. The Committee will recall that I have agreed to consider the amendments further, although I have indicated the nature of some of our concerns about them.
On Amendment No. 199, I can confirm that various codes or guidance are published which one might wish to relate to documents produced by the BSC. I also stress that, regardless of whether it is voluntary or mandatory, the BSC's guidance is intended to set standards and not to be a prescriptive test for regulations. It therefore seems inappropriate for the BSC to be required to monitor and report on the extent to which its guidance has been implemented by broadcasters and regulators. This would place the commission in the position of a regulator, albeit one without power to enforce compliance.
The broadcasting regulatory bodies, the Welsh Authority and the BBC already have in place guidelines on good practice with respect to the avoidance of unfair treatment and infringement of privacy in programmes which, as I have explained, derive their content from the BSC's work. The Government are satisfied that they have sufficient powers to ensure that the practice laid out in these guidelines is followed, and we have no intention of placing those regulatory responsibilities which are properly the concern of those bodies under the scrutiny of the BSC.
Amendment No. 201 relates to Clause 69. Clause 69 mandates the publication of a code which in turn is directly applicable to broadcast programmes. The amendment seems to suggest that the BSC draw up a more prescriptive code on broadcasting standards than "a code giving guidance" would in their view be. I should like to begin by saying that the Government's intention is that the BSC should play a standard setting and advisory role rather than a directly regulatory role in the maintenance of standards. A code which gives guidance relies on intelligent interpretation by producers and programme makers. It respects the fundamental right to freedom of expression. A rigid, all-embracing code trying to cover all eventualities would be vulnerable and more easily found wanting than one which gives guidance and allows flexibility for programme makers, broadcasters and regulators to engage in worthwhile debate in the light of developing perceptions of taste and decency.
In short, the key to understanding the relationship between the BSC and the ITC is that it is for the BSC to benchmark or identify the appropriate standards and it is for the ITC and the BBC governors to ensure that the broadcaster adheres to them by drawing up rules whose purpose is primarily to ensure that standards are adhered to and only secondarily to be a device to punish those who fail to do so.
In his helpful remarks the noble and learned Lord, Lord Ackner, said that he felt the BSC should be a watch-dog with teeth. With respect, I think that his analogy of watch-dogs is helpful. Perhaps I might compare them with guard dogs. The BSC is a watch-dog. The function of a watch-dog is to bark and to alert people to what is going on. That seems to me to 815 contrast with a guard dog, whose function on occasion is to snap its jaws round some offender. That is the distinction which we see as central to the proper understanding of the relationship between the BSC and the regulators.
§ Lord Ackner
Will the noble Lord agree that the warning sign, "Beware of the watch-dog", does not mean, "Beware of a dog that only barks"?
§ Lord Inglewood
The sign "Beware of the watchdog" is an indication that the dog barks. "Beware of the guard dog" indicates that there are two dogs looking after the best interests of the person concerned. That seems to me to be the appropriate way of looking after the public's best interests in that context.
§ Lord Chalfont
The sign usually says, "Beware of the dog". That indicates an animal that barks but might also bite and that is what we want.
§ Lord Inglewood
s: I understand that what the noble Lord, Lord Chalfont, seeks is a dog with a huge bark and vicious teeth.
We feel that the amendment takes away an important part of the regulator's function and transfers it to the BSC. As I explained, that is not a substitute regulator or a kind of court of appeal or an alternative regulator. It is for those reasons that we cannot support the amendments, although they contain a number of aspects on which we intend to reflect further.
The Earl of Stockton
Before my noble friend sits down, he said that the guidelines were intended to produce compliance. I ask him: whither leads the road of good intentions?
§ Lord Inglewood
My noble friend's point is a good one. The problem which I and a number of people have faced in examining the provisions of the Bill and the relevant sections of the Broadcasting Act 1990, to which they relate, is that the words are not set in the wider context of what we are discussing.
In my opening remarks I explained that in regard to the distinction in the first amendment between a code or guidance, the important words are neither one nor the other. The important words to which that part of the amendment applies are,principles to be observed, and practices to be followed",in order to avoid unfair treatment and unwarranted invasion of privacy. The practical steps are the crucial part in ensuring that wrong does not occur, rather than the epithet attached to the provision.
§ Viscount Caldecote
I thank all noble Lords who have supported the amendment. There was strong support, with the only dissenting voice being that of the noble Lord, Lord McNally, in defence of freedom. However, he forgot that freedom must be used responsibly. Recent experience has indicated that too often freedom has been abused, as the noble Lord, Lord Chalfont, said. I wish in no way to denigrate the BBC, it is a fine organisation and probably one of the best in 816 the world. The intention of the amendments is to help the BSC to prevent the BBC making mistakes which lower its standards.
The Minister mentioned dogs barking and biting. It is an interesting analogy, but he did not draw the right conclusion. If a burglar hears a dog barking, but knows that it will not Hite, it will not stop him doing wrong. My noble friend made the point that my friends and I have been trying to make. We need teeth as well as barking in regulating for higher standards. I am not happy about that point.
I am sorry that my noble friend feels that there is no, or hardly, any difference between guidelines and codes. Experience has shown that programme makers see a difference. When on occasions complaints have been made they have replied, "But those are only guidelines which we use at our discretion". There is not complete agreement between myself, my noble friends and the Minister. Nevertheless, he has given a very sympathetic response in many ways and has promised to consider further the points that we made.
In view of the Committee's almost total agreement to support these amendments, I urge my noble friend to give very careful consideration again to what we have said, even though he argued this evening against them. On the understanding that he will do so and has promised to bring back some further ideas at Report stage, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Ashley of Stoke moved Amendment No. 197A:
Page 59, line 33, at end insert—
("( ) the unfair or negative portrayal of women, different racial groups and disabled people amongst the listeners and viewers").
§ The noble Lord said: In moving this amendment I believe that it will save the time of the Committee if, with the Committee's permission, I speak also to Amendments Nos. 197B, 200A, 207A, 214A, 214B and 214C. These amendments have a common theme related to disability and disadvantaged people and it would take a long time to cover them all separately.
§ I have been very disappointed with the Minister's response during the course of these debates and discussions to issues of disability. I hope that he will be more forthcoming in dealing with these amendments. They are matters of very great importance to people who are disabled and those who are disadvantaged in different ways.
§ With regard to Amendments Nos. 197A and 197B, it is absolutely necessary for the Broadcasting Standards Commission to consider the representation or the portrayal of women, racial groups, disabled people and those of differing sexual orientation. That is the purpose of the amendments. Those people, differing widely as they do, hold varying views about broadcasting. But the broadcasters tend to veer away from those people and certainly do not often portray them accurately. There are honourable exceptions but in the main those groups tend to be pushed aside.817
§ A good example of the kind of false portrayal of those groups is the presentation of disabled people as rather pathetic, incapable creatures, and certainly they are extremely patronised. Broadcasters nearly always show disabled people who have obvious disabilities, such as those in a wheelchair. They never deal with the complexities of those particular groups. It is surprising to me that that should be the case. People can see through the failures of the broadcasters. As the broadcasting channels proliferate, it is inevitable that those groups will be covered more and more. But they need to be properly portrayed. That is the purpose of the amendments.
§ Amendment No. 200A provides for the satellite television and licensable programme services that are already provided in this Bill for digital programme services. Although that provision has weaknesses, nevertheless it is very important. It calls upon the ITC to give guidance on the extent to which those with a sensory disability understand and enjoy the programmes. It calls on the ITC to do all that it can to ensure that the code is observed and for the publication of the code. So far as I am concerned, that is the starting point for strengthening access to television for deaf and visually impaired people. It is a matter of vital importance to those people.
§ There are two very strong reasons why the provision for a code should be extended to satellite and other services. First, it should be done because those forms of broadcasting are bound to grow in importance over time. Disabled people will want and deserve access to them as much as to other television programmes. Secondly, it is extremely unfair to expect some companies to provide subtitling and signing and not others. If some people are allowed to be excluded from those services, then they do not have to pay the cost and the people who are fulfilling the moral and in some cases legal responsibility carry a heavier financial burden. That is why it is important that all companies have the same responsibility. It is of real importance to deaf and blind viewers. Unless all television providers observe the same code there will be reluctance and resentment on the part of those who are bound by the rules.
§ Amendment No. 207A relates to the provisions in the Bill which require complaints about fairness and standards to be in writing. It is unreasonable to require people to communicate in different ways from those that are usual to them, such as signing or Braille. If they cannot write in the normal way because of their disability, then they are barred from making a complaint. I cannot believe that the Minister intends that. The Government should accept the methods of communication of those who are sensorily impaired.
§ I want now to deal with Amendments Nos. 214A to 214C. As the Bill intends to give power to the Broadcasting Standards Commission to pay allowances to those attending meetings, it is only fair that allowances should also be paid to any auxiliary helper; for example, a signing interpreter. After all, they have to eat. It is a crucial point. There are some circumstances in which there may be no communication without such a helper. If no expenses are paid it may be impossible 818 for the helper to attend. Sign language interpreting is a finely honed skill. It cannot be done by just any Tom, Dick or Harry—or Harriet, to be politically correct. This is a clear case of ensuring genuine fairness by ensuring that the means for it are made available. I hope that the Minister will be able to give not only sympathetic consideration, but also a positive response to the amendments. I beg to move.
§ 9.30 p.m.
The Earl of Stockton
I support this group of amendments. They cover an important area of broadcasting especially aimed at those who are least able to fight their own battles. I would be happy to extend that support to other groups such as the elderly, the single, the married and those of ethnic, cultural, religious or social traditions which are in any way different. In other words, the code should be extended in the same way as the group of amendments moved recently by my noble friend Lord Caldecote.
I am surprised to find myself rising in support of the amendment of the noble Lord, Lord Ashley, when no one on his Benches supported the amendment moved by my noble friend which would have embraced all the groups of which he speaks without particularising them. However, I am happy to continue my support not only for these amendments, but also for the subsequent ones that I know the noble Lord will be moving.
§ Lord Inglewood
We are all grateful to the noble Lord, Lord Ashley, for bringing his well-known expertise to bear on the specific points we are discussing. I begin with Amendment No. 197A which proposes that the BSC should draw up guidance specifically to be followed in connection with the avoidance of the unfair or negative portrayal of women, different racial groups and disabled people among listeners and viewers. The Government wholeheartedly believe that such unfair portrayal should be discouraged but do not agree that it is necessary to single out specific groups for explicit consideration in the way proposed.
The predecessor bodies of the new BSC have taken a keen interest in such matters in the past—for example, by responding to complaints about racist jokes and by conducting research into the portrayal of disabled people. On matters of unjust or unfair treatment or unwarranted infringement of privacy, with which Clause 68 deals, I have no doubt that the guidance which the BSC will draw up will be of general application and thus embrace matters covered by the noble Lord's amendment. Similarly, where such portrayal falls into the area of taste, it will generally be dealt with in the code on broadcasting standards to be drawn up under Clause 69. For these reasons, the Government would resist explicit reference to any particular group.
I now move on to Amendment No. 197B. The amendment proposes that, when the BSC draws up guidance relating to the avoidance of unjust or unfair treatment of individuals or interference with their privacy, such guidance explicitly includes the avoidance of unjust or unfair treatment in the representation or portrayal of disabled people. Again, of course the Government wholeheartedly support the principle that 819 disabled people should not be unjustly or unfairly portrayed by broadcasters, and in wider terms the Government have demonstrated their commitment to disabled people through the Disability Discrimination Act and the announcement of appointments to the National Disability Council. However, the Government believe that the BSC, in drawing up the guidance about the avoidance of unfair treatment, should do so in general terms which would be inclusive of the interests of disabled people and everyone else.
The research which its predecessor body, the current Broadcasting Standards Council, has conducted into the portrayal of disabled people demonstrates a track record of interest in this area and I have no doubt that the BSC too will pay attention to the portrayal of disabled people when drawing up and reviewing its code relating to broadcasting standards generally. The Government would resist explicit provision for any particular group.
In Amendment No. 200A, the noble Lord, Lord Ashley, proposes that the BSC should be required to draw up a further code giving guidance as to the extent to which understanding and enjoyment of programmes by the deaf and visually impaired might be promoted. The noble Lord's amendment also requires the BSC to do all it can to ensure observance of the provisions of such a further code. While the Government wholeheartedly believe that the interests of the deaf and visually impaired should be taken fully into consideration in matters of portrayal and treatment, they are concerned that the amendment takes the BSC into unexplored waters in two respects; first, in the direction of exercising a regulatory function in requiring the BSC to do all that it can to secure observance; and, secondly, in requiring the BSC to address the function of programmes and, arguably, choice in programming rather than their content, which is where the two predecessor bodies, the Broadcasting Complaints Commission and the Broadcasting Standards Council, built up their expertise.
In so far as the provisions of the amendment might bear on portrayal or unfair treatment, the Government believe that the BSC will take account of a diverse range of interests in drawing up its code on standards and guidance on treatment and do not believe it necessary to make explicit provision for particular groups. For that reason, the Government would oppose this amendment.
The noble Lord, Lord Ashley, proposes in Amendment No. 207A to make complaints available to BSC members and staff in forms accessible to sensorily impaired persons whereas the clause in question—Clause 75—currently refers only to complaints having to be in writing. The Government recognise that the consideration of complaints by sensorily impaired members of the BSC would be rendered more difficult if complaints could only be presented in writing, and they are therefore willing to consider the amendment.
Finally, I turn to Amendments Nos. 214A, 214B and 214C. In these amendments the noble Lord proposes an amendment to Clause 79 which would enable the BSC to make provision, either directly or through payment of an allowance, to enable full participation of people with impairments when they are attending the BSC in 820 connection with a complaint. The Government recognise this real concern and would like to consider the point with a view to bringing forward an amendment at Report stage.
I have covered all the various amendments to which the noble Lord has spoken and I hope I have adequately responded to each and every one in a way—
§ Lord Renton
Before my noble friend sits down, I wonder whether I may presume to reinforce his argument by referring to a very important point of drafting and interpretation. It is recognised that, if we express one fact or refer to one group of people, we are excluding others. It is best expressed in the Latin tag, expressio unius est exclusio alterius. The courts interpret statutes very strictly in accordance with that well-established principle.
§ Lord Inglewood
I am most grateful to my noble friend Lord Renton for drawing to the Committee's attention that important drafting consideration.
§ Lord Ashley of Stoke
Dealing with the serious points raised by the Minister, it is obvious that he and his officials have gone to a great deal of trouble on these amendments and I appreciate that very much indeed. I also appreciate the agreement he has made as regards some of the points that I raised. I am very glad that something is being done about them. As regards the other issues on which he was unable to meet us, unless we protect those vulnerable people in this Bill they will go on having very serious problems. I am hoping that at a later stage of the Bill something can be worked out to help them. I thank the Minister. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 197B to 199 not moved.]
§ Lord Inglewood moved Amendment No. 200:
§ Page 59, line 39, after ("Authority") insert ("or included in the service referred to in section 57(1A) of the 1990 Act").
§ On Question, amendment agreed to.
§ The Deputy Chairman of Committees (Lord Lyell)
Amendment No. 195J was wrongly placed on the Marshalled List. It is in the name of the noble Lord, Lord Donoughue.
§ [Amendment No. 195J not moved.]
§ Clause 68, as amended, agreed to.
§ [Amendment No. 200A not moved.]
§ Clause 69 [Preparation by BSC of code relating to broadcasting standards generally]:
§ [Amendment No. 201 not moved.]
§ Lord Inglewood moved Amendment No. 202:
§ Page 60, line 21, at end insert ("or included in the service referred to in section 57(1A) of the 1990 Act,").
§ On Question, amendment agreed to.
§ Clause 69, as amended, agreed to.
§ Clause 70 agreed to.821
§ Baroness Farrington of Ribbleton moved Amendment No. 202A:
§ After Clause 70, insert the following new clause—
§ EDUCATIONAL PROGRAMMES: BSC TO PROVIDE GUIDANCE ON STANDARDS AND PRACTICE
(". It shall be the duty of the BSC to draw up, and from time to time review, guidance as to standards and practices to be followed in connection with programmes which fulfil the obligation of the BBC to provide—
- (a) education; and
- (b) educational content.").
§ The noble Baroness said: I draw to the attention of the Committee that this amendment places a duty on the new BSC to draw up and review guidance on the contents and nature of broadcasting defined as "education" and broadcasting defined as having "educational content". It is a probing amendment which we recognise will require for completion at least the equivalent of Clause 69, subsections (5) and (6).
§ However, it is desirable that some provision should appear on the face of the Bill. The education broadcasting role was weakened by the decision in the Broadcasting Act 1990 to take away the obligation on ITV companies to include adult education programming.
§ Because ITV and BBC compete, that increases pressures on the BBC to squeeze one area of education programming, and that is adult education. The need for an amendment of this kind further arises from concern about recent changes during the past year. The BBC is seeking higher ratings by diluting its education mission. Evidence of that dilution is provided by the fact that, however entertaining, the chat-show "Esther" presented by Esther Rantzen and the antiques show "Going for a Song" are now defined as examples of programmes funded from the education budget.
§ The BBC's ring-fenced budget for adult education is now being transferred into general programming. The controllers of BBC 1 and BBC 2 have effectively been given the power to decide what programmes are educational and who should make them. Seventy per cent. of programmes will be made by independents or other BBC departments. The BBC justifies that by arguing and contending that any factual programme-maker can make education programmes.
§ Noble Lords on all sides of the Committee support the Government's stated support for the European "Year of Life-Long Learning", which is intended to be not merely the year itself but the beginning of an attempt to tackle the issue of education. Education broadcasting is an important part of attracting adults who may have failed at earlier stages of their educational careers to take advantage of opportunities. Education broadcasting is important.
§ I understand from listening carefully to the Minister's replies to earlier points that have been raised that it is possible that the Government will look with more favour on guidance as opposed to codes. In that context, I hope that the Minister will give a positive response. I beg to move.822
§ 9.45 p.m.
§ Lord Inglewood
The noble Baroness, Lady Farringt on, proposes an amendment focused entirely on the BBC which would be required to follow guidance to be prepared by the BSC on education or educational content in programmes. The Government are clear that the amendment is well beyond the intended remit of the new BSC and believes that the two predecessor bodies have had limited experience in this area. We are not prepared to accept this amendment because the imposition of such a duty would divert the energies of the new body from its principal functions of dealing with the treatment of individuals in respect of fairness and privacy and standards in relation to taste and decency. The amendment also seeks to treat the BBC on a different footing from that of other public service broadcasters and, in requiring the BBC to follow such guidance, may cut across the governors' own responsibilities for programme content.
It is of course the general object of the BBC in its Charter to provide sound and television programmes of information, education and entertainment. That provides the appropriate statement in law of the BBC's duties in respect of education. I should add that in its new Agreement the corporation will be required to contain in its home service programmes of an educational nature, including specialist factual, religious and social issues programmes as well as formal education and vocational programmes. I hope that what I have said enables the noble Baroness to understand our position and why we feel that we cannot accept the amendment.
§ Baroness Farrington of Ribbleton
It is disappointing that the Minister is not prepared to accept the need to strengthen the position of education programmes and of programmes with an educational content. However, I shall read carefully in Hansard what he said and at this stage I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 71 [General functions of BSC in relation to complaints]:
§ Lord Chalfont moved Amendment No. 203:
§ Page 61, line 15, after ("treatment") insert ("of individuals, of bodies of individuals or of matters of political or industrial controversy or relating to current public policy").
§ The noble Lord said: I should like to speak also to Clauses 72 and 73 which the noble Viscount, Lord Caldecote, and I are seeking to remove from the Bill.
§ The collective effect of those three changes—I recognise at once that this runs counter to some of the things that the Minister has been saying this evening—would be to constitute the new BSC as an independent regulatory authority with powers to adjudicate on genuine complaints about taste, decency, fairness, and objectivity, including any such complaint from any listener or viewer made about problems within the independent sector or in BBC programmes. I believed—at least I did until this evening—that that was in line with the declared intention of the Secretary of State for National Heritage who recently said that it is the Government's intention to strengthen the BSC's role. 823 I had assumed that strengthening it meant also giving it some teeth with which to enforce its adjudications. In all parts of the Chamber, with the possible exception of the powerful voice from the Liberal Democrat Benches, there seems to be a feeling that the BSC needs strengthening.
In one of the many excellent briefing papers which have been produced for the debate, one from the BBC put its finger precisely on one of the crucial issues. I quote from it:
As we enter the digital age, it will be essential to develop the right regulatory regime".
§ The truth of that is obvious to most of us, especially to anyone who understands some of the implications of digital technology. The cliché "The camera cannot lie", has always been a somewhat dubious proposition, but it has no validity at all now when the editing of digitally generated pictures places enormous power in the hands of unscrupulous producers, presenters and editors who might wish to manipulate the views and reactions of their viewers.
§ The need for independent, responsible broadcasting legislation, especially of television, takes on a new dimension. The amendments which I propose, taken together, are designed to strengthen the regulatory system and to make it apply more widely.
§ I shall, by implication, be speaking also to a great number of other amendments in the Marshalled List as they are consequential to the three to which I am now speaking. For the sake of the record, they are Amendments Nos. 204, 205, 206, 207, 208, 209, 210, 211, 215, 216, 217, 221 and 223. I shall not of course speak individually to any of those amendments, but what I say will apply to them as consequential amendments to my substantial ones.
§ The main purpose of the amendment to Clause 71 is to clarify the significance of the concept of fairness in the context of complaints made to the BSC which is being established under the Bill's provisions. The amendment is directed specifically to the reference in the Bill to "unjust or unfair treatment". That wording does not adequately define the nature of the unfair or unjust treatment upon which the BSC is required to adjudicate. Unjust or unfair to whom or to what? It is possible of course to be unfair to a person. It is possible to be unfair to a group of people, to an organisation. But it is possible also—this seems to be a ground of some misunderstanding—to be unjust and unfair in the treatment of an issue or controversy; for example, by presenting only one side of an argument, mixing factual reporting with opinion and commenting in a misleading way. There are many ways in which an issue, a controversy, can be treated unjustly or unfairly.
§ That aspect is at present referred to in shorthand usually as "due impartiality", although "impartiality" seems to be an unpopular word nowadays. It is dealt with in the independent sector of broadcasting in the codes published by the ITC and the Radio Authority. I suspect that the Government will say that the new BBC Charter and Agreement establish a similar duty on the board of governors to ensure compliance with the producers' guidelines. But I remain unconvinced that those safeguards are adequate.824
§ To use a much worn cliché—perhaps not as much worn as "the level playing field"—that approach perpetuates a situation in which the BBC is judge and jury in its own case.
§ Experience suggests that that has not been an effective regulatory mechanism in the past, when programme makers often persistently and openly disregarded the producers' guidelines. Furthermore, it may be worth mentioning that the governors of the BBC have no machinery for investigating complaints made against the BBC outside their own ranks. They have to ask officials of the very organisation being complained about to advise them on how they should respond to the complaint.
§ Perhaps I may give the Committee an example. It has been strongly argued by Mr. Norris McWhirter and others that the BBC's treatment of the bombing of Hiroshima and Nagasaki in two programmes which were broadcast in 1989 and 1995 was grossly unfair and unjust. As I shall be suggesting when I come to oppose the Motion that Clauses 72 and 73 stand part of the Bill, it is eminently reasonable that listeners and viewers should be able to complain to an independent regulatory body about this kind of unfairness, unjustness and lack of objectivity as well as about such things as matters of taste and decency.
As I have said, and as other Members have said on many occasions, there is a widespread belief that the governors of the BBC face an impossible task in trying to reconcile the role of corporate governance, the running of an organisation, with that of effective and independent regulation. Various suggestions about how we might resolve the dilemma were advanced in our debate on the Charter and Agreement. In the customary and accommodating way of the Minister, the Government undertook to consider them. But the Government subsequently decided that,
Any concerns expressed are already effectively addressed by the draft Charter or they do not enjoy such a level of support as to warrant a change in the proposals".
§ That is a dusty answer if ever I heard one.
§ That issue runs through all the amendments to which I am speaking. The amendment to Clause 71 is designed simply to introduce a concept of objectivity or impartiality into the complaints procedure of the BSC so that there is, as in the commercial broadcasting sector, an independent regulatory body to which complaints can be addressed about alleged lack of objectivity, impartiality or fairness in any programmes, including those of the BBC, which, as I have suggested, does not have an independent regulatory body.
§ I concede at the outset that my amendment, if accepted, would have one incidental consequence of which much has already been made in what was a slightly premature debate on my amendment. It would perpetuate, perhaps even aggravate, a situation in which the two existing independent regulatory bodies—the Independent Television Commission and the Radio Authority—would be subject to a form of second guessing by the Broadcasting Standards Commission, which might come to different decisions on a complaint from those arrived at by the ITC and the Radio Authority.825
§ Of course, that is likely to happen, but it happens already and it is bound to happen so long as there are a number of separate organisations charged with the regulation of broadcasting. Furthermore, it is not an entirely undesirable arrangement. I believe that the existence of a Broadcasting Standards Commission as a regulatory body with some real teeth would wonderfully concentrate the minds of the BBC governors and perhaps even on occasions members of the independent regulatory authorities.
§ As I have said on many other occasions, I should like to see a single regulatory authority comprehending the whole spectrum of broadcasting and concerned solely with regulation and with no responsibility for broadcasting. That lesson was learnt in the Broadcasting Act 1990, when the old Independent Broadcasting Authority, which tried to be a broadcaster as well as a regulator, was abolished. The ITC and the Radio Authority were set up not simply and solely but predominantly to remove that anomaly; in other words, to separate the regulator from the broadcaster. It is almost an axiom of broadcasting that you cannot be a broadcaster and a regulator of broadcasting at the same time.
§ In the absence of a single, over-arching regulator—and the Government do not seem disposed to contemplate that—there is an argument that the BBC governors should cease one or other of their activities. They should cease to be involved in managing the corporation. In other words, rather than being broadcasters they should become regulators in the public interest or vice versa, but they cannot do both. Indeed, when the Secretary of State made her splendid speech to the Television Society last autumn, I thought that that was what she had in mind. I paraphrase but she thought that the time had come for the BBC governors to stand back from managing the BBC and become regulators in the public interest. That is also called for by the National Consumer Council but it seems that the Government are now ruling it out.
§ Failing that separation of powers, it is important that the governors of the BBC, like broadcasters in the commercially-funded sector, have the safeguard and support of an independent regulator. Given the nature of the BBC Charter and Agreement, which is now, to some extent water over the down, the Broadcasting Standards Commission is the only body equipped to fill that role. That could require the BSC becoming larger and perhaps more costly than is envisaged at present but the whole transition to a digital environment will be an expensive business in any event. As the BBC has rightly said, regulation is one of the most important elements in the process. Unless the Minister has something new to say this evening, I have not heard any argument against that concept other than a financial and administrative one. I have heard no conceptual or logical argument against setting up BSC in the role of a really effective independent regulator. Although this amendment to Clause 71 is relevant to the others to which I am speaking, it is a useful amendment on its own irrespective of the success or otherwise of later amendments.826
§ I wish to have Clauses 72 and 73 removed from the Bill. They go right to the heart of my concern about the BSC. As the Bill is drafted, any viewer or listener is entitled to complain to the commission about standards. In other words, anyone may complain to the commission about matters concerning taste and decency. But complaints about fairness, however defined, may be made only by someone affected directly by the programme complained of or by someone authorised to make a complaint for him. That distinction seems to be based upon a curious system of values. It implies that if someone is offended by explicit sexual activity or obscene language in a programme it is quite right that he should complain to a regulator and that the regulator should adjudicate on the complaint. But if you, I or any other listener or viewer is offended by grossly unfair treatment of an important political or social issue which may have a direct impact on all our lives we may not complain unless we are personally targets of the alleged unfairness. That seems to me to represent a curious system of values.
§ The removal of Clause 72, taken together with the consequential amendments I mentioned, is designed to remove the distinction. Clause 73 is largely consequential. The ultimate purpose of the amendments—and I do not seek in any way to conceal it—is to make the BBC, like the commercial broadcasting sector, subject to the regulation of an independent authority. The present situation is clearly totally unsatisfactory and neither the draft charter, the agreement, nor the Bill in its present form, do anything to change it. I recognise that the amendments, if accepted, would have some administrative and financial side-effects. That is clear.
§ It is possible that the Government will be able to propose other means of achieving the same purpose as my amendments. Perhaps they will be able to propose some other machinery to bring the BBC under the aegis of an independent regulator and thereby remove the conflict of interest which is at present obvious in the dual role of the governors of the BBC. If so, I should be most happy to listen to such proposals. I very much hope that the Minister will be able to say in his reply that the Government will consider the amendments and that, even if they are not able to accept them in their present form, they will at least bring forward something which will have the same effect. I beg to move.
§ Viscount Caldecote
I should like to express my support for the amendments proposed by the noble Lord, Lord Chalfont. The noble Lord put forward the arguments most clearly and cogently and there is little to add. However, I should like to emphasise one or two points in a few comments. As the noble Lord indicated, the problem arises from the dual responsibilities of the governors of the BBC as regulators and in their corporate role, which is akin to that of directors of a plc.
When complaints are received, the governors naturally—and maybe rightly as leaders of a big organisation—are inclined to support their staff. Therefore, no proper adjudication is possible. The new BSC is strengthened compared to the old BSC and BCC 827 and that will provide a partial solution to the problem, but, as the noble Lord, Lord Chalfont, made clear, not on issues of impartiality.
The amendments aim to fill that gap and to bring impartiality into the remit of the new BSC as is the case with the ITC. Of course, that could have been done by amending the new BBC Charter and Agreement. However, when we made that case, it was not accepted by Her Majesty's Government. Therefore, some duplication will still remain in the complaints procedure as it has in the past. As the noble Lord, Lord Thomson of Monifieth, suggested, the problem could be tackled in a more logical way. The fact is that we must start from where we are and not from an ideal position where we would like to be. In fact, no serious problems have arisen as between the BSC and the BCC on the one hand and, on the other, the ITC, nor in respect of the BBC, except on some occasions where the governors have not accepted a complaint upheld by the BSC or BCC and have said so.
On a slightly different point, it has been represented to me that Amendment No. 203, which relates to Clause 71, would be further improved by including the word "religious" after the word "political" so as to make clear that the BSC would have a duty to ensure impartiality in programmes relating to religious issues, for example, as regards the customs of food preparation in some faiths. I believe that such controversies would be covered by the words "bodies of individuals" which are included in the amendment. However, no doubt the Minister will clarify that point when, as I hope, he accepts at least the principle of the amendments. This group of amendments would fill a serious gap in the present proposals of the Bill. They would further strengthen and make more valuable the work of the new BSC. I strongly support the amendments.
§ Lord McNally
Given the pattern of this evening's discussion, I do not think that the noble Lord, Lord Chalfont, will be amazed to know that I hope that the Minister will resist these amendments, especially as they introduce the matter of political adjudication by the BSC. We are now—
§ Lord Chalfont
I said nothing at all about political adjudication. I have spoken of impartiality and objectivity in matters of political controversy. That is a very different thing from making political judgments and decisions. It is important to make that point.
§ Lord McNally
I am reading the noble Lord's amendment. I read many of his speeches. I am what one might call a news addict. I watch news programmes on BBC, ITV, Sky, CNN or any other channel. Quite honestly, I do not recognise the coverage of news and public affairs as recounted in some of the remarks of the noble Lord, Lord Chalfont, and some of his noble friends. I believe that on the whole the coverage of news and current affairs on British television represents a strengthening of our democracy. When one hears some of the arguments that are put forward, one imagines that we have serried ranks of politically motivated broadcasters pushing out their propaganda to political innocents. Would it amaze the noble Lord to know that 828 in the political headquarters there are skilled spin doctors who use their professionalism to intimidate broadcasters, who encourage complaints and who try to set the framework in which newscasters do their job?
What we have to understand, particularly in discussing political coverage by broadcasters, is that there will constantly be tension between broadcasters and politicians. I have worked for political parties in government and in opposition. Certainly when I have worked for parties in government I have rarely known a time when those in No. 10 thought they were getting an absolutely fair deal from broadcasters. That to me is remarkably reassuring in a free society. We are living in a different age. The noble Lord, Lord Chalfont, said that Sir William Haley recognised only constants. I wonder what Sir William would think of The Times today. He would have noticed a few constants wobbling about there.
In a liberal democracy one has to allow one's broadcasters freedom to criticise and the freedom to be partial occasionally. As we said in an earlier debate, what we need are many sources of information and opinion. That is why I want a strong ITN. I do not want market forces to water down ITN into news bulletins. I want a strong ITN and a strong BBC news service. That is why I welcome the strength of Sky News. It is that which strengthens one's democracy, not layer upon layer of watchdogs with teeth and extended powers. That is not the voice of a liberal democracy. It amazes me that some of the characters who so often talk about deregulation in almost every other aspect of our life want to pile regulation upon regulation on our broadcasters. That is not good enough. The noble Lord, Lord Chalfont, talked about the strong voice from the Liberal Benches. If it was only one small voice, it would still be there because I believe that what he and his noble friends are proposing is basically illiberal and would endanger our democracy.
§ Viscount Caldecote
Before the noble Lord sits down, will he say whether he really believes that it would be quite in order for a broadcaster to portray, in a matter of controversy, only one side of the picture and not ensure that the other side was also given prominence so as to ensure impartiality of discussion and opinion forming?
§ Lord McNally
No, of course not, but there are many safeguards to prevent that already. The noble Lord, Lord Chalfont, said that I wanted no regulation at all. That is not true. The noble Lord discussed how the Radio Authority had used regulation. I want the BBC governors and the ITC to take responsibility in that matter. I swear to the Committee that within a few years of a BSC with teeth wandering around biting at will, noble Lords will probably still be complaining that some programme or other has offended them. It is not what the programme-makers do that is the problem; it is that Members of the Committee have opinions and prejudices. Out of thousands and thousands of hours of broadcasting by the news services they pluck out one programme from 1988 and another in 1989. That is ridiculous.
829 We have to ensure that our broadcasters are given as much freedom as possible in which to operate. If you put too many regulations on them, as we have seen with the broadcasting system in France, you get cowed broadcasters anticipating the will of their political masters. That is not the way forward.
§ 10.15 p.m.
The Earl of Stockton
After 14 years as a journalist and broadcaster and 25 years in publishing, and having worked for four-and-a-half years in France, I can speak with some of the authority that the noble Lord, Lord McNally, has addressed. I too would defend to the death the freedom of broadcasters and journalists to report and to comment, to create and to develop and to expand frontiers in broadcasting. I will not defend their freedom to use sloppy or partial thinking or corrupt intellectual practices, or to distort the truth, because that is a far greater corruption of freedom. Worse, it is the destruction of freedom itself.
I believe very strongly that the proposals put forward by the noble Lord, Lord Chalfont, which put the BBC on to the same footing as the independent television companies should be supported. That is not out of any sense of wishing to get back at my old employer, the BBC (I was very happy in my days there), but in the sense that I think that it is only right that if we are going to have that dreaded level playing field we should have it for all broadcasters, whether domestic or foreign, terrestrial or satellite, digital or analogue. It is totally unreasonable and unfair that one of the competing channels—competing not in a commercial sense but for our minds, our opinions and values—should not be subjected to the same rigorous defence of that fundamental freedom as the other.
The Earl of Halsbury
The basic distinction is between liberal democracy on the one hand and liberal anarchy on the other. My noble friend Lord Chalfont has many more years practical experience of distinguishing the two than anybody else who has taken part in the debate or is likely to.
§ Lord Renton
With respect to the noble Lord, Lord McNally, I think that if he reads carefully in Hansard tomorrow the speeches that he has made this evening he will find that he has contradicted himself more than once.
This is a very important group of amendments. I warmly support them. The most important point is that in our free society, where we believe in freedom of speech, normally people are answerable to the public, with or without a trial in the courts, and to the bodies which have statutory responsibility for overseeing them. However, we have to be very careful that when we give such immense power to those who broadcast, especially on television, we ensure that they are answerable in a responsible way and are not merely judges in their own courts. For them to be answerable to an independent body established by statute is absolutely right.
In order for that body's work to be effective it must not merely have the power to draw attention to mistakes that have been made; it should have the power to correct 830 those mistakes or to take some action which will lead to a correction. That goes a little further than the amendment of the noble Lord, Lord Chalfont. It is in respect of that last point that the amendments are of great importance. I hope that they receive careful consideration by my noble friend on the Front Bench.
§ Viscount Tenby
I support the amendments. Perhaps I may throw myself on the mercy of the Minister. If, as I suspect, this debate will run and run, I hope that he will excuse me if I depart before it ends because I have to catch a last train. I apologise.
As my noble friend Lord Chalfont said, we are today teetering on the brink of a digital revolution. As anyone who recently attended the very useful course on digital broadcasting run by the BBC will confirm, the future ability to amaze and, it has to be said, to deceive through new technology is awe inspiring. Those of us who have been at the receiving end of programmes compiled under the old technology will ruefully acknowledge how a bit of judicious splicing and transposing can give a quite different emphasis and interpretation. But all that will seem like the Ark once digital techniques come on stream.
It is therefore absolutely essential to have a workable and enforceable regulatory regime in place both in respect of matters of taste and of fairness. I say to the noble Lord, Lord McNally, that the point is to make it possible for people to complain, not just about sexual matters and matters of taste and decency, but also about matters of fairness. The two areas should surely be indivisible in the rights accorded to the viewer or listener.
I have always personally felt—I wish to make the point quite strongly and I know that my noble friend has made it too—that there should be one regulatory body covering all forms of broadcasting. Offair is how some wags would describe it. After all, the second report of the National Heritage Committee made just such a recommendation as long ago as December 1993. But the Government have resolutely refused to take that eminently suitable step and an opportunity has been sadly lost.
It is true that bringing the BBC within the new BSC's audit would not be particularly attractive to the ITC whose own procedures in that respect are undoubtedly effective as anyone who has studied its annual report, as I have, will confirm. But such a course of action might encourage the Government to place the governors of the BBC on the same footing as the ITC, leaving the running of the BBC to its own management team. What has not worked in the past, however, and is unlikely to work in the future is the BBC governors wearing two hats as regulators and as the ultimate management team in the corporation.
Individuals who feel that a programme is biased should have the right to complain to the BSC just as they will be able to do in matters of taste. To those who argue that such a step would be an open invitation to every crank in the country, the fact is that the number of such complaints received by the ITC in 1995 was 65, or 1 per cent. of the total, and of those only 16 were upheld—hardly an opening of the floodgates.
831 Experience has shown that the Broadcasting Act 1990 was seriously flawed in certain areas. Six years later we have a chance to put in place a regulatory regime which will be effective, stand the test of time and benefit not only the public but also the broadcasters because they will know where they stand.
§ Baroness Park of Monmouth
I wish briefly to add my voice. The noble Lord, Lord McNally, believes that when we talk about fairness in programmes we are talking about the presentation of the Government. I absolutely agree that the BBC has always proudly said that it is absolutely even-handedly anti-Establishment and that whichever government are in power they are liable to receive stick from the BBC. That is as it should be. I have no quarrel with that. The quarrel is with those programmes where improper methods are used to present situations as truth which are not.
I can give one example; I know that there are plenty more. A famous programme on Solidarity in Poland was totally destroyed in its value because the Polish Government were able to prove that the programmers had purported to interview Lech Walesa in some secret area and it had not occurred. They had used a technique that we, as governors, were told at the time was "wallpapering"—matching two pictures together. They had taken a photograph of the place and a photograph of Walesa and married them. That has happened on several occasions and it is the dishonesty in presentation that I am worried about, as we have a right to be. It will affect relatively few people, but the important tiny minority can discredit the BBC and its otherwise splendid reputation for good documentaries and history. I mind about history being tampered with and so do many others. It is proper for there to be provision for that kind of programme and unfairness to be identified and acknowledged. It is not unreasonable to expect that of an organisation with high standards.
I entirely accept the noble Lord's point that it is difficult for the governors, and always has been, to combine being managers of a large business with being regulators. Generally we have properly delegated that to the director-general. Nevertheless, that situation must continue and be made to work. It will work much better if we all ensure that there is a proper mechanism for catching the rogues—because we must face the fact that there are some rogues.
§ Lord Inglewood
My noble friend Lord Caldecote and the noble Lord, Lord Chalfont, have been fair in proposing the amendment and explaining the thinking that lies behind it. They propose that the Broadcasting Standards Commission should consider whether the treatment of issues in programmes—whether ITC-licensed or not—is fair. That means that it would have to consider complaints of general impartiality by individuals and representative bodies.
That is a large extension in the new body of powers for the two component bodies. In that context, the existing functions are twofold: first, to act as a standard-setter; to set a benchmark for the standards for the regulators to administer and for those involved in broadcasting to adhere to. Secondly, the functions are to 832 provide what I described earlier this evening as a user-friendly mechanism so that individuals could have some judgment on whether they personally had been treated to their detriment by actions taken by broadcasters.
Decisions about programme content and scheduling must be a matter for the broadcasters themselves. It is for them to decide how to meet their obligations to observe due impartiality in the treatment of controversial issues. I might have been forgiven at some point in the debate this evening for supposing that there were no regulators. There are those who are entrusted with the job of regulating matters: the ITC and the governors of the BBC. I shall come to the governors of the BBC in a moment. Inherent in the arguments promoting the amendment is that broadcasters should be subject not to one regulator but to two. It cannot be right that broadcasters should be subject to double jeopardy. A regulator is fine, but to have two bodies which might punish people for the same offence is not appropriate.
I wish to turn to the BBC. In the way in which the BBC is arranged it is for the governors to secure its compliance with its obligations on programme standards and on treating controversial subjects with due impartiality. We have heard considerable debate this evening and I know that the way in which the task has been carried out in the past has been controversial. The Committee may recall our debate last month on the new Charter and Agreement. I explained in detail the specific responsibilities being placed on the governors to ensure compliance with the BBC's impartiality code in order to ensure that their activities as regulators would not be subject to the kind of criticism to which they have been subject in the past, because the arrangements of the BBC would work more effectively.
I understand those who argue that the way in which the BBC is set up is inherently unsatisfactory. That was a matter which this Chamber considered on several occasions when debating the White Paper and the Charter. That is a matter which has been debated and, if I may be allowed to say so with respect, that chapter is now closed. Surely the right thing to do now is to give the new arrangements that are coming forward a chance to work. They are different.
The Earl of Stockton
When my noble friend says that that chapter is closed, is he in effect saying that the supremacy of Parliament in a parliamentary Bill has been overriden by a charter?
§ Lord Inglewood
In politics there is a debate about an issue, policy decisions are taken and then, in order for the system that one is endeavouring to change to work and for the rest of society to work, one cannot come back in every Bill and tinker with it. In this case, after long debate, the Government have concluded—I believe they are supported by Parliament— that the current arrangements for the BBC, whereby the governors are both the regulator and the trustees for the public and the corporation itself, provide the way in which this matter should proceed. We ought to give them a chance.
833 The noble Viscount, Lord Tenby, made one point referring to the role of the BBC in the digital future. It is important to be clear that the BBC's commercial services—and much of the BBC's activities in the new digital future almost certainly will be concerned with commercial services—will in fact be regulated by the ITC.
I should like to move on and come back later to the question of the BSC itself and its scope. Under the Broadcasting Act 1990, the ITC and the Radio Authority each have a statutory duty to draw up and enforce a code of practice on impartiality and other programme matters. The programme codes produced by the ITC and Radio Authority lay down detailed requirements for programme makers on maintaining balance in programmes and have worked well in practice. As the Committee knows, the regulators, in the case of things not going as they should, have various sanctions at their disposal including, ultimately, removal of the licence. The real concern, which has been expressed this evening—it lies behind these amendments and I touched on it earlier in my remarks—is that those responsible for regulating in the public interest are not exercising their statutory obligations as they ought. The proper response to that, I believe, is either to go to the courts if the law has been broken or to exert political pressure generally, and in Parliament in particular, if it is felt that those who lawfully exercise their judgment have been doing so in an inappropriate manner.
It may be of some help to the Committee to know that my right honourable friend the Secretary of State has recently spoken to the new chairman of the BBC, expressing the sentiments which were contained in her August speech and told him that her hope is that he will keep that tougher vigilance in mind. She will meet him regularly and keep that wish on her agenda.
As I hoped to explain this evening, I do not believe that introducing the BSC as a kind of intermediary between, on the one hand, the regulators—i.e., the ITC, the BBC governors and the Radio Authority—and, on the other, the courts and Parliament in respect of these general impartiality issues is either desirable in policy terms or helpful in practical terms. For those reasons, we cannot support the amendment.
§ Lord Renton
Before my noble friend sits down, he said several times that the governors are regulators as well as being responsible for the BBC. But surely there is a conflict of interest if they are in that dual position. Is it correct to say that they are regulators, because they cannot be totally impartial?
§ Lord Inglewood
My noble friend touches the nub of the problem. This is one of the aspects inherent in the debate about the appropriate form which the BBC should take. On the one hand there are advantages in having a system with the BBC established under Royal Charter and governors who have a regulatory role, who are the trustees of the public interest in respect of the BBC and who are also the embodiment of the corporation itself. On the other hand, there are also disadvantages.
834 In deciding which way one should go with the BBC it was necessary to weigh those matters in the balance. It was the Government's view—a view that I believe was shared by Parliament as a whole—that the former course of action was the appropriate one. A great deal of what we have been talking about this evening flows from that decision. What I am anxious to emphasise in respect of this amendment is that what I understand to be being proposed is the establishment of the BSC as a kind of alternative regulator to the regulatory system that is currently in place. I do not believe that that is desirable, for the reasons I have endeavoured to explain to your Lordships.
Members of the Committee suggested in opposing Clause 72 that the Broadcasting Standards Commission should no longer consider privacy and unfairness complaints only from individuals and their representatives, but that anybody should be able to make a privacy or unfairness complaint, whether or not they are affected by the matter that is the subject of the complaint, and whether or not they have any agreement from those who are affected.
As I explained earlier, that runs contrary to the original purpose of the establishment of the Broadcasting Complaints Commission, which was to consider issues of unfairness and invasion of privacy in television programmes as they affected individuals, and to provide a relatively simple and user-friendly consideration of their concerns so that they could assess whether or not they had been wrongly treated.
The continuing need for the protection of individuals in this area is evident in the increasing number of complaints received and dealt with by the present Broadcasting Complaints Commission. To remove the restriction on complainants, thus enabling any single person or group of people who felt moved to complain but who were not personally affected by the subject of the complaint, would, in our view—I recall the remarks of the noble Viscount, Lord Tenby, in this regard—be likely to expose the Broadcasting Standards Commission to a considerable increase in the number of complaints by interest groups about issues contained in programmes. That might well lead to gross infringements of an individual's privacy where an issue was taken up without either the consent or the knowledge of the person concerned.
People who are concerned about these matters have a direction in which they can go if they wish to take steps about it; that is, they may go to the relevant regulator in respect of the specific programme in question—the BBC in the shape of its governors, the ITC or, if appropriate, the Welsh Authority. It is not the case that we are arguing about this in vacuo. There exists a perfectly good line of action which people who are concerned about these points can go down if that is what they wish to do. What is being argued for is not the intended role of the Broadcasting Complaints Commission. Just as it was not the intended role of the Broadcasting Complaints Commission, it is not the intention of the Government that the Broadcasting Standards Commission should go in that direction.
835 Finally, I turn to the proposal in respect of Clause 73, where my noble friend Lord Caldecote and the noble Lord, Lord Chalfont, wish to remove the BSC's obligation to set up a separate committee to consider fairness complaints and the concomitant requirement that members of that committee be prevented from involvement with standards complaints.
It is proper that fairness complaints, which are of a different character from standards complaints—the consideration of which require different processes—be handled separately and in a manner appropriate to this kind of issue. The intention of this clause is to ensure that the work of the fairness committee is not vulnerable to possible accusations of impropriety in case of judicial review. It was originally felt that members of the fairness committee should dedicate themselves to working on such complaints so that they developed an expertise on that topic. However, after further reflection, the Government are now considering whether such ring-fencing may be unnecessary or even unduly restrictive. In the light of the meeting of my right honourable friend the Secretary of State earlier this week with the chairmen of the existing BSC and BCC, we are currently considering an amendment of our own to be introduced at Report stage which would effectively remove all but the first subsection. This would be amended to allow the commission as a whole to determine the method of publication of the findings of the fairness committee.
That concludes the remarks I wish to make about the three principal amendments. My understanding of the other amendments to which the noble Lord, Lord Chalfont, is speaking is that they are all consequential and therefore I do not see any need to say more about them.
§ 10.45 p.m.
§ Viscount Caldecote
Before the noble Lord sits down, can he explain why it is all right for matters of taste and decency in BBC programmes to come within the remit of the BSC but not matters of impartiality?
§ Lord Inglewood
My noble friend makes a good and fair point. The reason is that the impact of matters of taste and decency affect individuals' sensibilities as individuals in a way that matters relating to impartiality do not.
§ Lord Chalfont
I shall not delay the Committee overlong but I feel that a few comments are in order. I assume that the noble Lord, Lord McNally, was speaking for his party. I must confess that that has given me a new view of the Liberal Democrats' attitude towards regulation. He may be aware that the language of my amendment is taken directly from the Broadcasting Act 1990. There is nothing new in it at all. It had been my understanding that the Broadcasting Act 1990 had in this respect cross-party agreement. I am somewhat surprised to find that there is a new radical and polemical approach in the Liberal Democrat Party towards the whole concept of regulation. But that is what we have heard tonight.
836 The noble Lord said that he thought that because it was evident that broadcasting authorities were attacking No. 10, whoever was in it, they must be doing something right. But there is a fairly good argument on the other side that they are probably doing everything wrong. I think the noble Lord is relying upon a somewhat old-fashioned interpretation of bias or impartiality. No one is talking about Left and Right impartiality; no one is talking about whether people are in favour of the Conservative Party or the Labour Party, in or out of power; what we are talking about is the fair and objective treatment of matters of controversy. That has always been my complaint about a number of broadcasters—that they do not seek after the truth; they seek merely after those selective facts which will serve to buttress their own arguments. That is why the impartiality clauses, with the very wording contained in my amendment, were built into the codes of the ITC and the Radio Authority. All I am seeking to do now, through this amendment, is to bring the BBC within the ambit of those requirements.
Freedom is a dangerous concept to start discussing at this time of night, but the noble Lord thought that the freedom of the broadcaster was a matter of predominant and primordial importance. I can only remind him that in the more classic analysis of liberal democracy freedom is defined as being the freedom to do what you wish provided that it does not limit or damage the freedom of others. It is manipulating the facts and corrupting the truth that limit the freedom of the people who listen to radio and watch television. If the noble Lord, Lord McNally, wishes to place our broadcasting system in relation to that of the French, I can only say that, like those who are constantly denigrating American television, there are things in French television and in American television from which the BBC and indeed our independent broadcasters could learn some lessons.
Perhaps I may now return to the very elegantly phrased, as always, and cogent reply of the Minister. He spoke about the existing concept of the functions of the BSC and the BCC as though they were engraved in tablets of stone. This Bill takes us into the next millennium and it is supposed to set out the regulation of digital broadcasting well into the next millennium. It is no good trying to take lessons from what the BSC and the BCC do now. The Government have already had the good sense to amalgamate those two bodies. Let them now have the good sense to make sure that the body they form is effective and has some teeth with which to do its job. I am sorry to keep returning to the canine image. We really want a body that is effective.
The noble Lord said that it was for the broadcasters to decide on scheduling and programming—and it is—but when it comes to a matter of scheduling and programming being the subject of complaint about decency, impartiality, standards and objectivity, then it is not for the broadcaster to decide. The Government conceded that in 1990 when they abolished the IBA, which was a broadcaster, and set up independent regulatory bodies. At that moment they accepted and agreed that it was not for the broadcaster to make these decisions but for an independent regulator. That is all I am asking for now.
837 The noble Lord spoke of double jeopardy or second guessing. As I said in my earlier comments, that is already the case. The BSC adjudicates on complaints made to it which are also made to the ITC and the Radio Authority, and very often they come to different conclusions. That will always be so for as long as one has this proliferation of regulating bodies. I do not believe that there is anything particularly evil about that. If someone complains to the BSC that, for example, they have made a complaint to the ITC or to the governors of the BBC and it has not been upheld, is it not then fair that there should be an independent body to go to and say, "I believe that I have been badly done by. My complaint has been turned down when it should not have been"? I do not believe that this matter of double jeopardy is quite the bogeyman that the noble Lord has set it out to be.
The noble Earl commented on the "chapter closed" and that struck me, too. The Minister said that the chapter was now closed and that we must give the new arrangements a chance to work. For how long? To the next review of the BBC's charter or the next Broadcasting Bill? It seems odd to me that we should now be saying that we have a system which is based on the old system, as the noble Lord suggested when he mentioned the remit of the BSC and the BCC, and that we are now prepared, in his exhortation, to give it a chance. Give it a chance for how long? It could be another eight or 10 years and we could still be suffering from the paralysis of regulations, especially in the BBC, caused by the fact that the broadcasters are also the regulators. This is the time to do something about it and not wait until we have further mini-disasters of the kind we have been accustomed to in the past.
There is a good deal more that I could say. I shall make one final comment. Again, it is a fallacy; that of the opening of the floodgates. The suggestion is that if one allows the Broadcasting Standards Commission to take complaints from people about programmes in which they are not directly involved it will open the floodgates to a great mass of nutcases who will be sending in frivolous complaints and subjecting the BSC to mounds and mounds of unnecessary work. There are two things I say to that. One is this: it has not happened in the ITC and the Radio Authority. They have the right to take complaints about impartiality to anybody. It does not have to be anybody directly affected by the programme. Any complaint about impartiality may be made by any listener or viewer in independent television or independent radio. It is only in this instance that we are trying to make a distinction between them. The other is that the BSC would always in any case have the right to decide that the complaint was frivolous and throw it out. On both counts, the great nightmare about opening the floodgates simply does not stand up.
The Minister said that everybody has a perfectly good line of complaint already. They can go to the ITC, the Radio Authority or the governors of the BBC. I would only ask the Minister rhetorically whether he has ever been to the governors of the BBC with a complaint. I have, and the result has always been the same. The BBC closes ranks, as you would fully expect it to do.
838 I would be surprised and disappointed if it did not. It is behaving like a corporate body normally behaves, and that is what is wrong with it; it should not be a corporate body. It should be a body which has an independent regulator over its activities and somebody else to run the organisation.
So I come to my concluding remarks. Clause 73, as the Minister said, is largely consequential. It does not begin to hold up unless some of the other amendments are accepted. The Minister said that the amendments cannot be accepted by the Government. Clearly it would be irresponsible, to say the very least, to divide the Committee at this stage, although with the single exception of the noble Lord, Lord McNally, every speech has been a ringing endorsement of my amendment. However, on the understanding that the Minister will undertake to look at the problem again and assure us that he will try to find some way of meeting the concerns of myself and my colleagues, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 71 agreed to.
§ Clause 72 [Complaints of unfair treatment etc.]:
§ Baroness Dean of Thornton-le-Fylde moved Amendment No. 203A:
§ Page 61, line 38, at end insert ("or organisation").
§ The noble Baroness said: In moving this amendment, I should like to speak also to Amendments Nos. 208A, 208C, 216A and 216B.
§ I must first declare an interest. Until just over a year ago I was a member of the Broadcasting Complaints Commission. I have tabled these amendments following my experience as a member of the BCC, participating in and observing the process which takes place under the 1990 Act. The BCC is seriously underfunded and complainants have to wait far too long to have their cases dealt with.
§ When one considers the thousands of hours of broadcasting time over a year and also the very small number of complaints that are received, one has to accept that, by and large, our broadcasting is of good standard and good quality and is fair and accurate on balance. However, when we received complaints at the BCC, I was appalled at some of the programmes which were made by supposedly professional journalists and programme-makers. That small number of complaints gets the whole industry a bad name. I was appalled too at the sloppiness of some of the journalism and at the way in which some programmes seem to set the agenda for the outcome before they carry out the investigation. That affects just a small number of programmes.
§ We must remember that the BCC and the BSC are merging. We welcome that merger. We believe it is a step forward. It provides for members of the public an opportunity to complain where otherwise they would have to go to the courts. Referring a complaint to the courts cannot be the right way to deal with it. The complaints system that exists is important if we are looking at fairness and balance and at a broadcasting system which is there for members of the public.839
§ Amendment No.203A refers to direct interest which is a difficult area to define. Of that there is no doubt. We had hoped that the Bill would be clearer about direct interest. It is not. We understand the problems; nevertheless we think that a better shot could perhaps have been made of it. For instance, there can be a programme that looks at a narrowly defined area. It may be one for which there is a national body generally and publicly recognised as being an organisation where the subject matter of the programme is the essential main element or the raison d'être itself of the organisation.
§ Under the Bill as it stands, and indeed under the 1990 Act, there is no automatic right of complaint. What we have seen is broadcasters objecting to any complaint coming from an organisation. It has to come from an individual. I shall give one example. There was a programme made some two years ago—distant enough for it not to he controversial today—about single parents. It focused on single women parents. The National Council for One-Parent Families made a complaint about the programme. The broadcaster objected and said that there was no direct interest there. Yet the Government consult that body on matters affecting that group in our community.
§ Defining a direct interest, as I said, is difficult, but there are occasions when organisations do have a direct interest. We are not talking about party political broadcasts or similar programmes. There will not be a long queue of people in that category and, if there are, what happens to them under the new body will be what happened to them under the BCC. We refused to accept their complaints, and we did receive a number. The area of direct interest is a key element.
§ Amendment No. 208A deals with the provision of unedited recordings at the request of the BSC in respect of unfairness complaints. Again, that does not apply to all broadcasters. My experience is that there were a number of broadcasters who, when asked for the full unedited tape—the rushes, as they are called—handed them over voluntarily. One might wonder why they are important. There is an individual complainant who says, "This programme has not been fair to me." The BCC looks at the programme. The complainant will say, "Ah yes, but that is one little part of my interview. If you look at the whole interview, you will see that they have extracted out of context the points I was making." If the broadcasters are not required to hand over the full unedited tapes, the complainant does not receive a fair hearing. The BCC is put in a difficult position.
§ Amendment No. 208C requires that when a complaint has been accepted by the BSC as a legitimate one, that programme will not be rebroadcast until the complaint has been adjudicated upon. Where the adjudication finds in favour of the complainant, the part complained about will be edited out. There have been instances of a serious complaint being made by an individual, the company rebroadcasting the very programme, and the complaint being ultimately upheld. Where the complaint is not upheld, no damage is done. In some respects it negates the matter; it is like double jeopardy for the complainant.840
§ I do not intend to pursue the amendment tonight. I am not a parliamentary draftsman and I understand that in drafting the amendment I have included not only the programmes but the advertisements. The 1990 Act and Clause 89 of the Bill provides that the definition of "programme" is the content of the programme including the advertisements. Clearly, the Broadcasting Standards Commission does not cover advertisements. They are rightly covered by the ITC. It was never my intention to provide for that. The word "programme" is a lay person's term and appears in Clauses 69, 70 and 71. In the light of that legal difficulty, it is not my intention to pursue the amendment tonight but I have raised the issue and would welcome the Minister's comments.
§ Amendments Nos. 216A and 216B amend the Bill to provide that, where a complaint has been made, heard, adjudicated upon and found in favour of the complainant, the Broadcasting Complaints Commission will in most instances require its adjudication to be broadcast. In the past that has not happened and the balance has not been redressed as regards the complainant. For instance, the case relating to the one-parent families resulted in the BBC making a statement after the broadcast of the adjudication to the effect that it did not agree with the adjudication decision, and why. That negated the impact of the commission's decision.
§ Recently, Central Television broadcast an adjudication relating to one of "The Cook Report" programmes. Before the adjudication was broadcast, Mr. Cook appeared on the screen and stated that the company was required by law to broadcast the adjudication. He stated that it found the adjudication perverse. The adjudication was then broadcast and back on screen came Mr. Cook, who made a long statement in which he chose selectively to put his case. He concluded—and I paraphrase—that the company stood by every word it broadcast in the programme against which the adjudication had been found. The complainant was not invited on screen to make a comment, nor was the chairman of the Broadcasting Complaints Commission. That incident completely negated the impact of that adjudication and, I suggest, the integrity of the complaints system.
§ Fortunately, the story does not end there. About an hour ago, on the instructions of the ITC, Central Television rebroadcast that adjudication. It is to be hoped that the balance will be redressed. But such events should not occur and that is why I have tabled the two amendments. I apologise for taking 10 minutes but these amendments are important for individuals and for the viewers. They are tabled as a result of my observations during my membership of the Broadcasting Complaints Commission, which, despite lack of resources, does a worthwhile job. I beg to move.
§ Lord Inglewood
I am sure that all of us found the remarks of the noble Baroness, Lady Dean, most helpful, bearing in mind her wide experience in these matters. Amendment No. 203A relates to fairness complaints and to the fact that a person affected in this regard is already allowed to instruct another person to complain on his behalf to the Broadcasting Standards 841 Commission. That other person could, of course, be a member of an organisation such as a representative body.
As has been explained, what is not allowed is an organisation to make a complaint without the authorisation of the person affected. The Government would oppose such a proposal for the reasons that I gave tonight in respect of earlier amendments. The noble Baroness makes an important point about the problems relating to the definition of "direct interest". If she has any suggested improvements to the form of words which may help to deal with a difficult definitional problem, we should be very pleased to know about them.
In her remarks the noble Baroness referred to the "Panorama" programme entitled "Babies on Benefit." My understanding is that the National Council for One Parent Families did not represent an individual in that respect. The judicial review which arose from the complaint that it made found that the BCC acted beyond its powers in entertaining the complaint without a named individual. Therefore, it seems to me that that was not a matter of an individual who was affected by the programme not being able to bring a complaint. In fact, it was a complaint brought by an organisation which was outside the remit of the BCC because it was not brought by an individual who was affected.
I have explained some of our anxieties about the noble Baroness's amendment and, as a result, we cannot support it.
Amendment No. 208A seeks to require broadcasters, regulatory bodies and production companies to make available to the Broadcasting Standards Commission all unedited as well as edited material such as transcripts and recordings that had been gathered in the process of making a programme which is subject to an unfairness complaint. Already broadcasters and regulatory bodies are required to retain recordings and transcripts of all programmes broadcast in the event of a complaint. To require them to retain, in addition, all unedited recordings and transcripts that have gone into the making of a programme is in practice an almost completely open-ended obligation and the volume of material would be many times greater than that used in the actual recording. It seems to us that this is a disproportionate requirement because that would impose, in turn, an unreasonable demand on broadcasters, regulatory bodies and their production companies in both administrative and financial terms. That is our concern and that is why we resist that amendment.
Amendment No. 208C is concerned to extend effectively the role of the BSC to that of a censor and regulator by giving it the power to prevent the retransmission of a programme under investigation or a part of a programme on which the BSC has made an adverse ruling.
The BSC exists as a forum for public concerns in broadcasting and the airing of personal grievances, as I have already mentioned. To enable the BSC to prevent the retransmission of the whole or part of a programme would be to give it powers of censorship which do not 842 at present exist in the broadcasting regulatory framework. If this amendment were accepted it seems to us that there would be a possibility that pressure groups may go beyond the spirit of the amendment and take advantage by making a hardly genuine complaint to the BSC in the hope that it will be entertained in order to prevent, thereby, the retransmission of a programme which they disliked or with which they disagreed.
We believe that it would be wrong to extend the powers of the BSC beyond its present remit. It seems to us that the potential abuses with which this amendment is concerned are best left to the person who is responsible for the regulation of the broadcaster concerned. We believe that is the way to deal with that problem and that is why we oppose that amendment.
Finally, the noble Baroness spoke to Amendments Nos. 216A and 216B in which she proposes that broadcasting bodies and licence holders be prevented from adding their own comments alongside any published summary that they are required to make of the BSC's findings. The proposal is one with which the Government have considerable sympathy. With the agreement of the Committee, we would like to consider most carefully the implications of what is being proposed and to consult with the broadcasting and regulatory bodies and the Broadcasting Complaints Commission before making the Government's position clear in due course. I hope that we may be able to return to the matter on Report with some proposals in the area.
§ Baroness Dean of Thornton-le-Fylde
I thank the Minister for responding to all the amendments. I only moved Amendment No. 203A, but spoke to the others. The noble Lord gave me quite an interesting invitation as regards our bringing forward some further words on direct interest. If the Government would see their way to funding the Front Bench of the Opposition with researchers and secretarial support even to a minimal degree compared to that enjoyed by them, we would have some further words available in time for the Report stage. If the Minister would like to take up that counter invitation, we would be delighted to comply.
I accept that it is difficult to define the concept of direct interest. I also take the point about not representing an organisation. I believe that the Minister has been somewhat misled on the matter as regards the "Panorama" programme. I chaired that complaint, but I left the commission before the court case took place. There were two young women who actually went to the National Council for One Parent Families with their complaints. It is indeed a difficult area, and we will consider the Minister's response. Perhaps we could hire a lawyer who does not charge the normal fees and ask him to look into the matter. I invite the Government to do likewise. If it is just the question of words that is keeping us apart, I am sure that we can find a way to resolve the matter.
As regards pressure groups, my experience in life has been that those who get away with pressurising are those who are pretty well looked after; indeed, it is those in the vulnerable, small groups who do not know where to go, and do not even know that the system exists, who need help. Therefore, I was disappointed with that reply. 843 As regards Amendments Nos. 216A and 216B, clearly I am pleased with that response. We await to hear the Minister's further comments on Report. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 72 agreed to.
§ Clause 73 agreed to.
§ Clause 74 [Complaints relating to taste and decency, etc.]:
§ [Amendments Nos. 204 to 207 not moved.]
§ Clause 74 agreed to.
§ Clause 75 [Supplementary provisions as to making of complaints of either kind]:
§ [Amendments Nos. 207A and 208 not moved.]
§ Clause 75 agreed to.
§ Clause 76 [Consideration of fairness complaints]:
§ [Amendment No. 208A not moved.]
§ Lord Inglewood moved Amendment No. 208B:
Page 65, line 17, at end insert—
("( ) Where the BSC have adjudicated on a fairness complaint, they shall send a statement of their findings to the complainant.").
§ On Question, amendment agreed to.
§ Clause 76, as amended, agreed to.
§ [Amendment No. 208C not moved.]
§ Clause 77 [Consideration of standards complaints]: [Amendments Nos. 209 to 211 not moved.]
§ Lord Chalfont had given notice of his intention to move Amendments Nos. 212 to 214:
§ Page 66, line 6, after ("BSC") insert (" and the complainant").
§ Page 66, line 9, after ("BSC") insert (" and the complainant").
§ Page 66, line 12, after ("BSC") insert (" and the complainant").
§ The noble Lord said: The above amendments do in fact contain a new element which is not entirely consequential to the original amendment. However, as I shall be returning to the whole matter on Report, I do not propose to move the amendments tonight.
§ [Amendments Nos. 212 to 214 not moved.]
§ Clause 77 agreed to.
§ Clause 78 agreed to.
§ Clause 79 [Power to pay allowances to persons attending hearings]:
§ 11.15 p.m.
§ [Amendments Nos. 214A to 214C not moved.]
§ Clause 79 agreed to.
§ Clause 80 [Publication of BSC's findings]:
§ [Amendments Nos. 215 to 217 not moved.]
§ Viscount Caldecote moved Amendment No. 217A:
Page 67, line 9, at end insert—
("(d) a correction or an apology (or both).").
§ The noble Viscount said: The noble and learned Lord, Lord Ackner, has asked me to apologise to the Committee on his behalf as he has had to leave. He asked me to move this simple amendment on his behalf.844
§ It seems a sensible and logical proposal that if a complaint is upheld it is reasonable that a correction or apology should be made. I beg to move.
§ Lord Inglewood
This amendment requires the Broadcasting Standards Commission to publish an apology or correction that it has directed the broadcaster or regulatory body to make, after a complaint has been upheld. The Broadcasting Standards Commission, however, can only direct a broadcaster or regulatory body to publish a summary of its findings. It cannot direct them to make an apology or correction.
The mechanism for the broadcasting of apologies is contained in Section 40 of the 1990 Act in respect of licensed services, and in Section 109 in respect of licensed radio services. In the case of the BBC it would be incumbent upon the governors to determine where an apology or correction is appropriate. It is right that the responsibility for these matters should rest with the broadcasting or regulatory bodies. Where an apology or correction has been made, however, this would be reported to the BSC and included in the BSC's report through the requirement contained in government Amendment No. 221A. The Government will therefore resist this amendment.
§ Viscount Caldecote
I am not quite clear why. My noble friend says that the BSC could not have the power to do this, but surely the whole of Clause 80 gives the BSC power to issue directions, and this is simply an additional direction that it could issue if it so wished. Perhaps my noble friend will consider that point.
§ Lord Inglewood
Were there a power to compel a form of apology, the apology itself would ring entirely hollow. A self-regulating way of determining how a broadcaster responds to a finding of the BSC is to see whether or not he apologises, because the mechanisms we have put in place are intended to draw clearly to the wider public's attention whether or not any response has been given by the broadcaster. We believe that that is the best way to ensure that broadcasters will take seriously the findings of the BSC, because it will be made apparent to the wider world when a description of the upheld complaint is made public that the broadcaster has done nothing about it. That will lead to pressure from the press, the public and politicians. If, however, the broadcaster were simply compelled to issue a form of words which carried none of his sentiments, we believe that would provide the broadcaster with a way out.
§ Viscount Caldecote
My noble friend has made a logical case although I cannot commit the noble and learned Lord, Lord Ackner, to it, as he may want to raise the matter again on Report. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Chalfont moved Amendment No. 218:
Page 67, line 11, at end insert—
("provided that in the case of a summary as provided for in subsection (3)(b) above a clear statement is included as to whether each separate part of a complaint has been upheld or not upheld").
§ The noble Lord said: In moving this amendment, I wish to speak also to Amendment No. 220. These are simple amendments which I hope will commend themselves to the Government. They are merely designed to correct a situation where at the moment an adjudication can be made on a complaint without telling the complainant whether or not any part of his complaint has been upheld. Sometimes this can cause confusion and indeed dismay to the complainant if he has made a complaint in several parts and it is not made absolutely clear to him in the adjudication whether or not each part has been upheld. It is a simple amendment and I hope that the Government can accept it. I beg to move.
§ Lord Inglewood
The purpose of Amendments Nos. 218, 220 and 221 is to require the BSC to state for each part of a complaint that has been considered whether it has been upheld. In the case of complaints about fairness, Clause 80(11) as it stands already requires the Broadcasting Standards Commission to do just that. The BSC is required to make findings which state whether a fairness complaint is upheld, and those findings are to be made on each part of the complaint.
With respect to complaints about standards, we feel it is inappropriate to expect the BSC to consider and give findings on each part of a complaint. There are proper reasons why part of a complaint may not be considered. Those are laid out in Clause 75. Last year the Broadcasting Standards Council received a total of 2,838 complaints, of which it gave findings on 1,492. Those numbers can be expected to grow considerably with the advent of the merger. It would be a considerable drain on the resources of the BSC if it were required to state its findings on every part of each complaint.
I hope that the noble Lord will understand why I say that the Government consider that the amendments as drafted would place unnecessary burdens on the BSC and will resist them.
§ Lord Chalfont
The purpose of Amendment No. 221 is to remove a clause which would have become unnecessary if the other two amendments had been accepted.
This is largely a matter of wording. I was not entirely happy that the existing wording made it clear that an adjudication had to be made on each part. If that is the intention of the current wording in the Bill, and if it has the effect which I sought to achieve in Amendments Nos. 218 and 220, I am happy to beg leave to withdraw the amendment and to examine the position between now and Report stage.
§ Amendment, by leave, withdrawn.
§ Viscount Caldecote moved Amendment No. 219:
§ Page 67, line 19, leave out ("at such intervals") and insert ("monthly").
§ The noble Viscount said: At present the Broadcasting Standards Council publishes monthly bulletins setting out complaints received and whether they were upheld. As drafted, Clause 80(7) gives the BSC discretion as to how often it publishes such reports. No doubt the 846 intention is to continue to publish monthly reports, but in future that policy might be discontinued. Reports issued at half-yearly intervals would be of little value. The amendment seeks to place a duty on the BSC to continue to issue monthly reports.
§ The reason for my anxiety about the way the Bill is presently drafted is that from time to time pressure is put on departments to reduce expenditure. It would be simple for the BSC to save a few tens of thousands of pounds or more by issuing the report only once a year. Therefore, it is important that this simple and logical amendment should be approved so as to ensure that we continue to have the excellent monthly reports. I beg to move.
§ Lord Inglewood
My noble friend's amendment requires the Broadcasting Standards Commission to publish reports, giving details of its findings, on a strictly monthly basis. This would allow no flexibility or discretion for the new organisation in the management of its resources according to demands. It may be that there are so many findings in any one month that the Broadcasting Standards Commission decides that it should publish two reports within that month. On the other hand, it might be that the BSC wishes to miss a month due to there being an insufficient number of findings to justify publishing or to difficulties caused by staff absence or a holiday period. The amendment does not give the BSC the flexibility to do either.
The Government are willing to consider introducing at Report stage an amendment of their own requiring the BSC to publish its reports monthly or at such intervals as it sees fit. I hope that that will reassure my noble friend and that he will agree to withdraw his amendment.
§ Viscount Caldecote
I am most grateful to my noble friend for that very sympathetic and encouraging reply. On that basis I am happy to beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 220 not moved.]
§ Lord Inglewood moved Amendment No. 220A:
§ Page 67, line 33, leave out ("or 74(1)") and insert (" 74(1) or 75(2)").
§ On Question, amendment agreed to.
§ Lord Inglewood moved Amendment No. 220B:
§ Page 67, line 38, leave out ("complainant") and insert ("complaint in question").
§ On Question, amendment agreed to.
§ [Amendments Nos. 220C to 221 not moved.]
§ Clause 80, as amended, agreed to.
§ Lord Inglewood moved Amendment No. 221A:
§ After Clause 80, insert the following new clause—
§ REPORTS ON ACTION TAKEN VOLUNTARILY IN RESPONSE TO FINDINGS ON COMPLAINTS
(".—(1) This section applies where the BSC have given a direction under section 80(1) in relation to a fairness complaint or a standards complaint.
§ (2) Where the relevant programme was included in a licensed service, the appropriate regulatory body shall send to the BSC a report of any supplementary action taken by—
- (a) the regulatory body,
- (b) the licence holder, or
- (c) any other person appearing to the regulatory body to be responsible for the making or provision of the relevant programme.
§ (3) Where the relevant programme was broadcast by a broadcasting body, that body shall send to the BSC a report of any supplementary action taken by—
- (a) the broadcasting body, or
- (b) any other person appearing to that body to be responsible for the making or provision of the relevant programme.
§ (4) The BSC may include, in any report under section 80(7), a summary of any report received by them under subsection (2) or (3) in relation to the complaint.
§ (5) In this section "supplementary action", in relation to a complaint, means action which, although not taken in pursuance of a direction under section 80(1), is taken in consequence of the findings of the BSC on the complaint.").
§ On Question, amendment agreed to.
§ The Earl of Northesk moved Amendment No. 222:
§ Before Clause 81, insert the following new clause—
§ REGISTER OF BROADCASTERS' INTERESTS
§ (".—(1) It shall be the duty of the BSC to draw up and maintain a register of broadcasters' interests.
§ (2) The register shall contain details of—
- (a) consultancies, or any similar arrangements, whereby broadcasters accept payment or other incentive or reward for providing broadcast services;
- (b) any financial interests of broadcasters in businesses involved in providing broadcast services on behalf of clients;
- (c) broadcasters' membership of or affiliation to any political party or organisation; and
- (d) any other particulars which the BSC considers may affect the public perception of the way in which broadcasters provide broadcast services.
§ (3) Any person who is engaged in the production of current affairs or news programmes or who is the holder of a licence under the 1990 Act or Part I or II shall register any details under subsection (2) above.
§ (4) The BSC may make arrangements to enable any other person employed by a broadcasting body or by any holder of a licence under the 1990 Act or Part I or II to register any details under subsection (2) above.
§ (5) The BSC shall make arrangements for the public inspection of the register.").
§ The noble Earl said: The amendment requires the BSC to draw up and maintain a register of the interests, as elaborated in subsection (2), of certain categories of broadcaster as defined in subsection (3).
§ It is important to recognise that what has motivated me in this has little to do with impartiality per se. I am entirely comfortable to maintain that UK broadcasting continues to be the best in the world so far as concerns quality, integrity and impartiality. As a nation, we should count ourselves extremely fortunate that we continue to enjoy that considerable privilege.
§ Therefore, I could at a pinch be persuaded to accept that principles of impartiality are adequately buttressed by existing systems—the more so had the Minister been more receptive to the amendments of the noble Lord, 848 Lord Chalfont, and my noble friend Lord Caldecote. However, what should concern us is our responsibility, with the onset of digital, to sustain this reputation for pre-eminence combined with a recognition that the people need to be able to recognise in a tangible and concrete way that their interests are being properly protected and looked after.
In effect, my primary purpose with the amendment is to enhance the principle of accountability within the broadcast media. No one disputes the immense power of the broadcast media. I am spoilt for choice in finding quotations to support this supposition. For example, the paper of the Department of National Heritage, Media Ownership: the Government's Proposals, published in May of last year states that the Government recognise,
that broadcasters in particular use a powerful and instant form of mass communication, delivered through a limited number of outlets, which are in a strong position to inform and influence public opinion and to help set the agenda for public debate, and may also have an effect (for good or ill) on the outlook and behaviour of individuals".
§ This is serious stuff—"influence public opinion"; "set the agenda for public debate"! To my mind, it is arguable that we, as a nation, should be comfortable with the concept that an intellectual medium, with access to an essentially malleable constituency of quite literally millions, should be free to operate outside the remit of transparency and public scrutiny. Of course, I concede that the various regulatory bodies and practices within the industry exist as a check and balance in this regard. However, they do not address the core problem here of democratic accountability: that of the public being afforded the opportunity to see for themselves that the regulatory framework is operating effectively and adequately. It is my belief that this amendment would achieve that objective.
§ The other point I wish to make is that the primary purpose of the Bill before us is to establish a framework for digital for the future. Inevitably, this involves a degree of crystal ball gazing, but the one thing that can definitely be said is that digital will create considerably more capacity than currently exists in UK broadcasting. It does not stretch the bounds of possibility to suggest that there will be a proliferation of new channels and new broadcasters as and when digital comes on stream. A potential and undesirable by-product of such a proliferation could be a diminution in the high standards under which the UK broadcasting industry currently operates.
§ Thus, in holding to my belief that we in the UK still enjoy the best broadcasting in the world, I am keen to ensure that the situation can be maintained into the digital age and that new players in the field are left in no doubt as to the standards to be achieved, particularly with respect to accountability. Again, it is my view that my amendment would achieve that. I beg to move.
§ 11.30 p.m.
§ Lord Chalfont
I support the noble Earl's amendment. There is a delicious irony about the proposal. As I was reading the first draft of the amendment, I was checking my own entry in the House of Lords register of interests. It seemed to me that as 849 soon as the amendment made its appearance we would hear a loud uproar about infringement of freedom. There is an irony about considering the proposal this evening.
One area in which I am led to agree fully with what the noble Earl said and with the content of his amendment is this. I often wish to know when watching a television programme or listening to a radio broadcast—to use a trendy modern idiom—where the broadcaster is coming from. In other words, what emotional, political or ideological baggage has he carried with him into the studio. It is an important point. If one speaks to presenters, interviewers and programme-makers among the broadcasters, they will say in the idiom of their profession that they leave their political opinions at the studio door. However, I do not believe that that is always the case. It was the case in the old days when legendary figures in the BBC such as Grace Wyndham-Goldie and Huw Wheldon were running affairs. It would have been a brave BBC person who would take his own opinions into the studio, whether radio or television. However, it sometimes now happens. The concept of transparency and knowing where people are coming from deserves attention.
Like the noble Earl, I have no great confidence that the proposal will be met with universal approbation. I doubt whether the Government will be prepared to do much about it. However, the amendment is worth considering because it does something to cut across the feeling that we all have sometimes that we are listening to someone peddling a political line on radio or television under the guise of an objective comment.
§ Lord Inglewood
The amendment of my noble friend Lord Northesk would place a duty on the BSC to create a register of interests to which broadcasters would supply details of their consultancies or similar arrangements in return for payment or other reward; any financial interests of broadcasters in businesses providing broadcasting services on behalf of clients; their membership of or affiliation to any political party or organisation; and any other particulars that the BSC considers may affect the public perception as to the way in which broadcasters provide broadcasting services. My noble friend's amendment also requires any person involved in producing current affairs or news programmes or holding a licence under the 1990 Act or Part I or Part II of the Bill to register the same kind of details. The BSC is required to make the necessary arrangements, including those for public inspection of the register.
The BBC and those broadcasters licensed by the ITC are subject to strict requirements as to impartiality. In particular, the ITC is required to do all that it can to secure that every licensed broadcaster applies the requirement that any news given, in whatever form, in its programmes is presented with due accuracy and impartiality and that due impartiality is preserved in respect of matters of political or industrial controversy or relating to current public policy. The ITC is required to draw up appropriate codes to give effect to those requirements. In respect 850 of services licensed by the ITC, the commission must also satisfy itself that each prospective licensee is a fit and proper person to hold a broadcasting licence. The ITC is further required to ensure that the broadcasting licence holder is not disqualified by a number of criteria set out in Schedule 2 to the 1990 Act including political connections and circumstances where a prospective licensee is open to have influence exerted over him by another body giving financial assistance. The disqualification also extends to advertising agencies and those associated with such agencies.
As I previously said in respect of the BBC, we have made express provision in paragraph 7 of the draft Charter that the governors are under an express obligation to ensure that the corporation, its employees and all its programme-makers comply with codes and guidelines covering programme standards. The draft Charter specifies that all activities of the BBC should be carried out to the highest standards of probity and propriety. The Agreement between the Secretary of State and the BBC being considered in another place this evening contains a clear requirement that the BBC draw up a code relating to due accuracy and impartiality of treatment in paragraph 5.3 referring to paragraph 5.1(c). The BBC is required to do,all it can to ensure that the provisions of the Code are observed".There are many other activities where these kinds of standards are properly demanded. Yet doctors, lawyers and judges, to name but three, do not have to complete such a declaration. Indeed, it is only in the field of politics where an obligation to complete such registers may be required because politicians take decisions as decision-makers of government.
The general provisions of the 1990 Act applicable to the ITC's duties and the framework set out in the BBC draft Charter and Agreement are, in the Government's view, a sufficient safeguard against breaches of impartiality arising from potential conflicts of interests of broadcasters. It is a matter for the broadcasters themselves to secure that their employees and programme-makers act in accordance with obligations placed on the broadcasters. For example, the BBC's standard contract of employment expressly deals with those matters.
I refer the Committee to paragraph 19 of the monthly standard contract where it is specified that,You [the employee] will devote your whole time ability and attention during your working hours to the BBC and the performance of your duties. You will not allow your outside or private activities to interfere with your BBC work or your ability to carry out your duties effectively or permit any conflict actual or potential to arise between your BBC duties and your outside or private interests. You will not allow any outside or private interests to place the BBC in a position whereby it is brought or is likely to be brought into disrepute or its reputation for impartiality is likely to be affected irrespective of whether or not its reputation is actually affected".It goes on to say that,in case of doubt you should seek the prior written consent of your manager before entering into or commencing any additional employment or appointment whether voluntary or otherwise".851 It seems to me that an unwillingness to comply with that criterion is more or less a guarantee that the register will be improperly filled in. I am far from convinced that that approach will deliver the benefits that its proposers maintain.
In addition, the amendment would take the work of the BSC into areas considerably beyond its intended remit and into an area which is properly the responsibility of the regulators and the governors. The fact that broadcasting is subject to the regulatory regime of the BBC governors, the Welsh Authority, or in receipt of an ITC licence, should of itself be the guarantee of impartiality. It goes back to a great deal of what we have been talking about this evening. If that is not the case, it is a matter for those who have the job of exercising a regulatory function. It is not a matter which we believe should or could be well done by the BSC whose function, as I have explained, is different.
For those reasons, if my noble friend seeks to press his amendment, we shall oppose it.
§ The Earl of Northesk
I am grateful to the noble Lord, Lord Chalfont, and to the Minister for his lucid explanation of the situation. The noble Lord, Lord Chalfont, was absolutely right in foreseeing that my noble friend the Minister would not be wholly sympathetic to the amendment.
I am conscious of the lateness of the hour and have no wish to detain the Committee any longer than is necessary. I believe, as the noble Lord, Lord Chalfont, intimated, that there may be room to seek out a more useful airing of the subject when more people are around to discuss it. With that reservation and with the Committee's leave, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 81 [Power of BSC to commission research]:
§ Lord Inglewood moved Amendment No. 222A:
Page 68, line 6, at end insert—
("( ) the avoidance of unjust or unfair treatment in programmes to which section 68 applies and of unwarranted infringement of privacy in, or in connection with the obtaining of material included in, such programmes,").
§ On Question, amendment agreed to.
§ Clause 81, as amended, agreed to.
§ Clause 82 agreed to.
§ Clause 83 [Duty to publicise BSC]:
§ Lord Chalfont had given notice of his intention to move Amendment No. 223:
§ Page 68, line 26, leave out subsection (2).
§ The noble Lord said: As this will be, to my relief and probably to everyone else's, my last intervention in the Committee stage, I wish to express my appreciation to the Minister, not only for the constructive and helpful way in which he responded to the debate, taking us so carefully and effectively through it, but also for the co-operation that he and his officials have given to us all—certainly to me— 852 throughout the preparation of these amendments. I look forward to returning to the fray at Report stage, when I know that the Minister will come with great armfuls of government concessions. The amendment is not moved.
§ [Amendment No. 223 not moved.]
§ Clause 83 agreed to.
§ Clause 84 [Annual reports]:
§ Lord Inglewood moved Amendment No. 223A:
§ Page 68, line 41, leave out from beginning to end of line 2 on page 69.
§ On Question, amendment agreed to.
§ Lord Inglewood moved Amendment No. 223B:
§ Page 69, line 7, at end insert ("together with a copy of the statement of accounts for the year and of the report of the Comptroller and Auditor General on that statement").
§ On Question, amendment agreed to.
§ Clause 84, as amended, agreed to.
§ Clause 85 agreed to.
§ Clause 86 [Contributions towards cost of BSC]:
§ Lord Inglewood moved Amendment No. 223C:
§ Page 69, line 27, leave out from ("must") to end of line and insert ("be such that the aggregate of—
- (a) that total, and
- (b) the amount of any contribution towards the expenses of the BSC for that year which is received, or to be received, by the Secretary of State from the BBC, represents one half of those expenses.").
§ On Question, amendment agreed to.
§ Clause 86, as amended, agreed to.
§ Clause 87 agreed to.
§ Schedule 4 agreed to.
§ Clause 88 agreed to.
§ Clause 89 [Interpretation of Part IV]:
§ Lord Inglewood moved Amendment No. 224:
Page 70, line 45, at end insert—
("( ) any qualifying service (within the meaning of Part 1 of this Act) provided by a person other than the Welsh Authority,").
§ On Question, amendment agreed to.
§ Clause 89, as amended, agreed to.
§ Clause 90 agreed to.
§ Schedule 5 agreed to.
§ Clauses 91 to 93 agreed to.
§ 11.45 p.m.
§ [Amendments Nos. 225 and 226 not moved.]
§ Schedule 6 agreed to.
§ Clauses 94 and 95 agreed to.
§ Schedule 7 [Minor and consequential amendments]:
§ [Amendments Nos. 227 and 228 not moved.]
§ Schedule 7 agreed to.853
§ Schedule 8 [Repeals]:
§ [Amendment No. 229 not moved.]
§ Schedule 8 agreed to.
§ Clause 96 [Commencement and transitional provisions]:854
§ [Amendments Nos. 230 to 233 not moved.]
§ Clause 96 agreed to.
§ Remaining clauses agreed to.
§ House resumed: Bill reported with amendments.
§ House adjourned at thirteen minutes before midnight.