§ 4.53 p.m.
§ Consideration of amendments on Report resumed on Clause 3.
§ [Amendment No. 2 not moved.]
§ Lord Phillips of Sudbury
moved Amendment No. 2A:Page 3, line 7, at end insert—( ) It shall be a further principal duty of OFCOM, in carrying out their functions, to further the purposes of public service broadcasting where relevant.The noble Lord said: My Lords, I am most grateful to the Deputy Speaker and to the Officers of the House for allowing me to rescue Amendment No. 2 on the Marshalled List in the form of what is now Amendment No. 2A. It was my own inadvertence—or lack of competence perhaps it is more truthful to say—which meant that Amendment No. 2 would fall because of its language if Amendment No. I was duly passed. The wording of manuscript Amendment No. 2A is indistinguishable, but, none the less, technically it means that the amendment survives; it can be debated; and, if necessary, voted upon.
I shall not keep your Lordships long because in Committee we had a debate of over an hour's length on a similar amendment also tabled in the names of the noble Baronesses, Lady O'Neill and Lady Howe, my noble friend Lord McNally and myself. The House will remember that a dozen or so of your Lordships spoke, and all were in support of the amendment.
I think that the reason can be put quite briefly. The Government passed the Competition Act in 1998 and the Enterprise Act in 2002. This massive piece of legislation provides a very fulsome competition set of arrangements and provisions which, I would say, rather dominate the Bill. It is the wish of those who spoke in Committee—and I would like to think that it is still their wish—that we should retain a balance in this keystone clause, Clause 3. between the commercial and the competition considerations and what one might call the "cultural" considerations. My amendment is based upon a common-sense proposition; namely, that these non-competition aspirations and considerations should firmly underpin the Bill no less than the competition ones.
§ 5 p.m.
§ Lord Phillips of Sudbury
My Lords, I am most grateful to the noble Lord, Lord Dubs, for saving me confusing everyone. Amendment No. 2A is effectively the same as Amendment No. 2 on the Marshalled List. I was trying to explain that, for technical reasons, Amendment No. 2 fell when Amendment No. 1 was voted upon and passed, so the amendment is in effect reconstituted. I shall read it in its reconstituted form. It states:It shall be a further principal duty of OFCOM, in carrying out their functions, to further the purposes of public service broadcasting where relevant".I hope that that is now clear.
The cultural goods at the heart of the Bill, which go beyond the economic goods, need to be reflected at the commencement of the Bill in the same way as the competition and citizen elements are reflected. I hope that the Government will give the amendment their full-hearted support because it swims with the tide of their own intentions.
Clause 260(4) defines "the purposes of public service television broadcasting". I have used that phrase in my amendment. The following Clauses 260 to 266 expand on the duties of licensed public service broadcasters in that regard as well as providing powers to Ofcom if any of those broadcasters fail to live up to the requirements of Clauses 260 and 261. Ofcom will have powers of enforcement, although I remind the House—and this underpins what I said earlier about the dominance of the Bill being in competitive terms—that Clause 266, the enforcement clause, sounds at best an uncertain note in that regard and explicitly puts economic and market considerations on a pedestal above all other factors.
At Committee stage, in responding to the hour-long debate on an equivalent amendment, the noble Lord, Lord McIntosh, made two principal points. His first point was that there was no definition in my amendment of what is meant by "public service broadcasting standards". I said then and I say now that the language I am using refers directly across to the language in Clause 260, which is very well defined. It contrasts markedly in terms of interpretation with the other language in Clause 3, which refers to the interests of consumers in relevant markets, which is very vague, and the interests of the community as a whole, which is also very vague.
The second objection raised by the noble Lord, Lord McIntosh, was that Part 1 of the Bill is not only about broadcasting but telecommunications generally. That point is covered by reference in my amendment to its application being "where relevant". That is a more suitable phrase than "where appropriate". Your Lordships will note that the word "relevant" already finds a place in Clause 3 and cross-refers directly to Clause 260(11), which describes "relevant television services" to include Channels 3, 4 and 5, public teletext, Welsh services and the BBC.
Some have wondered why the amendment does not embrace the whole of broadcasting beyond the six prescribed services and channels. The answer is that it 42 would have been much too ambitious to have sought to drag in the whole of broadcasting. But, given that Clause 260 requires those outlets to subscribe to the standards laid down in Clauses 260 and 261, it is wholly appropriate that this provision should be in the landmark or keystone clause, Clause 3.
Incidentally, Clause 3(6) gives Ofcom discretion to resolve any clash between its general duties under Clause 3 as it thinks fit. So, again, there cannot be any objection on that ground.
Without this amendment the balance of interests that the Bill should preserve between commercial and cultural matters will be tilted too far in the direction of mere competition. To use the phrase used by the noble Lord, Lord Puttnam, in Committee, we really must embed and make explicit at the start of this vital legislation,which moral universe this Bill is intended to inhabit".—[Official Report, 29/3/03; col. 583.]The amendment will go some considerable way towards achieving that. I beg to move.
§ Baroness Howe of Idlicote
My Lords, I support the amendment of the noble Lord, Lord Phillips. My only regret is that the additional words which seek to spell out Ofcom's public service duty have not been added as a further subsection to the amendment of the noble Lord, Lord Puttnam.
As the noble Lord, Lord Phillips, said, there is some concern that this would appear to favour one particular public service broadcaster—that is, the BBC. To say that I find it a little puzzling is an understatement. As the noble Lord, Lord Phillips, pointed out, Clauses 260 and 261 make it abundantly clear that the commercial terrestrial channels also have public service broadcasting responsibilities, even though they may be of a lesser nature.
As the noble Lord, Lord Phillips, said, the debate at Committee stage illustrated the crucial importance that every noble Lord who spoke—it was a very passionate debate—attached to the need to continue to uphold public service broadcasting in today's increasingly competitive communications world. It was quite clear that the Committee—like most UK citizens—knew what public service broadcasting was, recognised it when it saw it and equally recognised when it was absent. It also wanted it spelt out up-front, right there at the top of Clause 3.
We now have another opportunity. The Government have listened and made changes on other issues raised. I salute the Minister for the number of new clauses he intends to introduce on Report. I hope, therefore, that he will accept what is proposed. Even better, I hope that he will find a way to add this amendment to the amendment brought forward by the noble Lord, Lord Puttnam, which has just been agreed.
§ Lord Crickhowell
My Lords, I have difficulty with this. I am sorry to say that because one of the most important objectives of the Bill ought to be to protect one of the great glories of British broadcasting—that 43 is, public service broadcasting. I attach the highest importance to Clause 260 in which, for the first time in legislation, that is comprehensively defined.
The noble Lord, Lord Phillips of Sudbury, will know that after our last debate I suggested to him that perhaps the thing to do was to insert his amendment under Clause 3(2). He subsequently argued against that solution and produced the amendment printed on the Marshalled List, not the manuscript amendment. I would have been very happy indeed to support that amendment. I felt that by inserting the words "where relevant" he had dealt with the objections made by the Government Front Bench.
I wholly endorse the noble Lord's desire to have public service broadcasting referred to in Clause 3. I should like to see it there; I wish it could be there. I note that the Minister said on a previous occasion that we shall come to it in Clause 260 and other clauses and that that is where it needs to be. I do not agree with him. We need a reference in Clause 3.
A genuine difficulty is that we have just passed Amendment No. 1. This has led the noble Lord, Lord Phillips of Sudbury, for understandable reasons, to put down a manuscript amendment. But, having produced a principal duty of Ofcom in a balanced way—we had an interesting and powerful speech from the chairman of Ofcom about the importance of balance in these matters—to add another principal duty at this point seems to make life rather difficult for the chair of Ofcom. It does not provide clarity.
I wish that the noble Lord, Lord Phillips of Sudbury, had been content to get this reference, which I would love to see in Clause 3, into the second part of the Bill. But unless he has an easy explanation as to how it will work in simple terms when he responds to the debate, I have genuine difficulty in supporting the manuscript amendment despite the fact that I promised to support the original amendment when he first put it down.
§ Baroness Buscombe
My Lords, I support what my noble friend Lord Crickhowell has just said. Although I was fully supportive of the amendment of the noble Lord, Lord Phillips of Sudbury, in Committee, I have thought about it a lot since then. I have a concern about placing this duty on Ofcom, particularly in Clause 3(1). There is a clear conflict with the amendment which has just been passed. More than that, given that Clause 3 sets out the duties and parameters for the whole of the media industry, to include broadcasting and telecommunications, and given that the Bill is to liberalise ownership of the media, surely it should be a primary duty of Ofcom to consider all broadcasting—public service and otherwise—to ensure that we retain and maintain high quality programming.
In other words, Ofcom must keep a watchful eye over all programming to further the purposes of good and diverse programming for the viewer and listener. I say that, particularly given the words of comfort 44 from the noble Lord, Lord Currie, who said today that Ofcom had taken on board the need, as one of its first key aims, to review, with a view to monitoring and strengthening, public service broadcasting, which would be under Clause 260.
§ Lord Fowler
My Lords, I support the amendment of the noble Lord, Lord Phillips. I say in parenthesis that I hope it is recognised that in the proceedings of this legislation I now speak with a new authority. Referring to an amendment which will come before us later, the Guardian said last week:The amendment has the support of the influential Labour backbenchers Lord Bragg, Lady Jay, Lord Fowler and Lord Borrie".Rumours of my defection are slightly exaggerated—indeed, they are much exaggerated. But I hope that the Minister will now listen to me with an attention I am not sure I enjoyed previously.
I have two comments on the amendment, the first of which is the more general. The discussion on the Bill has been criticised, not least by the new Leader of the House of Commons, who has said that some kind of filibuster has been taking place. I deny that entirely—I simply do not recognise it. So I was fascinated to hear the chairman of Ofcom, the noble Lord, Lord Currie, say how this discussion had strengthened the legislation—a total justification.
My second point, using the small influence I now appear to have, is to urge the Minister to accept the amendment. I believe that the principles of public service broadcasting should be absolutely fundamental to broadcasting in this country. It sets us apart from what happens in so many other countries. We would be very foolish to weaken our stance in any way. We should do everything in our power permanently to embed the principles of public service broadcasting in our system. Obviously, the BBC is seen as the best upholder of public service broadcasting standards, and I think that it is. Noble Lords have mentioned the example of the World Service. But, as the noble Baroness, Lady Howe, said, the BBC is not the only upholder of public service standards; nor should it be.
My view is that the most important public service broadcasting standards apply to the reporting of news. In an age when so much reporting is slanted, when some papers advocate particular policies to the exclusion of all other arguments, it is important to have balanced and objective reporting. We should allow the public to make up their mind rather than be led by the nose. I am not saying that the standards of balance and objectivity will always be achieved. For example, there was great controversy during the reporting of the Iraq war, but at least the aim is to achieve balance. I believe that aims such as that are, and should be, absolutely fundamental in our broadcasting system. They are worth fighting for and, for my money, I agree with what the noble Lord, Lord Phillips, said. His aspirations are set out well in the amendment.
§ 5.15 p.m.
§ Lord Thomson of Monifieth
My Lords, I hope I do not embarrass the noble Lord, Lord Fowler, too much, after his accolade in the Guardian, if I now rise in warm support of the passionate speech he has just made upholding the concept of public service broadcasting. His argument is absolutely right. In many ways, this Communications Bill is historic because it seeks to reconcile the separate worlds of telecommunications and broadcasting. The public service tradition is Britain's particular contribution to quality in broadcasting. The role of public service broadcasting within that totality, within the balancing operation that the new Ofcom has to take on, is better spelt out right at the beginning of the Bill instead of in Clause 260. For that reason alone, I warmly support the amendment.
§ Lord McIntosh of Haringey
My Lords, just to show that I listened to the noble Lord, Lord Fowler, with the same undivided attention I give to my own Back Benchers, let me say that I agree entirely with what he says about the importance of public service broadcasting. So does the noble Baroness, Lady Buscombe; so does the noble Lord, Lord Thomson; so do we all. The Bill enshrines that concern for public service broadcasting. It is suffused with support for public service broadcasting.
In Clause 260, which is none the less important, I say to the noble Lord, Lord Thomson, because it is in Part 3 rather than Part 1, the Bill gives the best, most detailed, description of public service broadcasting that has ever appeared in legislation. In the clauses which follow, the Bill gives Ofcom teeth to enforce the achievement of those standards. I know that the noble Lord, Lord Phillips, has a caveat about a particular part of Clause 266. It is, I think, a misunderstanding on his part. I shall be glad to discuss it in its place.
To put a generalised expression of support for public service broadcasting in Part 1 is unnecessary. It is not simply unnecessary; it is unnecessary and undesirable. In 14 years of opposition I always enjoyed being told by the government that the amendments I put forward were either unnecessary or undesirable or, more frequently, both. This is both. It is unnecessary because Clause 3 specifies the duties of furthering the interests of consumers and the community as a whole. The purposes of public broadcasting are directed principally to the community as a whole and should not be ends in themselves. Similarly, Public service broadcasting is one element of the mix which assures the availability of a wide range of high quality broadcasting which meets a variety of tastes and interests, as required under Clause 3(2)(c). However, it is one means, not an end in itself. As I said, Clause 260 gives the best and strongest defence of public service broadcasting in legislation that there has ever been. That was recognised, I believe, in Committee.
Despite the qualification "where relevant", where it is relevant is in relation to Part 3 functions, which contains detailed provision to ensure the delivery of public service broadcasting objectives. I will not make much of it being harmful. However, the amendment suggests that, having 46 secured the place of public service broadcasting, Ofcom should be required, say, to assess its spectrum policy against the interests of the consumer and the community and then skew any decision in favour of public service broadcasting purposes. That cannot be right. If furthering the purposes of public service broadcasting had been the foremost broadcasting objective of current and previous regulators we would not have had the growth of the new platforms and channels that have led to extra choice and innovation for the benefit of viewers and listeners.
The spirit and intention behind the amendment are admirable. However, it cuts across the balance we have sought to strike in this Bill and I hope that it will not be pressed.
§ Lord Phillips of Sudbury
My Lords, I am grateful to the Minister and to all who have spoken. The noble Baroness, Lady Buscombe, suggested that this amendment does not clarify Ofcom's keystone obligations. However, Amendment No. 1, which we have just passed, deals with,the interests of citizens in relation to communications matters; and … the interests of consumers in relevant markets".In my view, that does not extend head on to issues of public service broadcasting. A detailed examination of the provisions on general duties in Clause 3—and I refer the noble Lord, Lord Crickhowell, to this, as he raised the question—reveals, in Clause 3(3)(a), a further specific reference to,the desirability of promoting competition in relevant markets".There is no reference anywhere else in Clause 3 to public service broadcasting standards. Although the noble Lord, Lord McIntosh, talks of unbalancing the Bill by including this reference at the front of the Bill, at the beginning of Clause 3, my proposition, which I think is supported by all who spoke, is that the reverse is the case. There is a superfluity of reference in the Bill to competition and a paucity of reference to public service broadcasting standards. As many have said, public service broadcasting standards do not even get a mention until Clause 260.
I listened particularly carefully to the reservations expressed by the noble Baroness, Lady Buscombe, and the noble Lord, Lord Crickhowell. I am anxious to carry them with me to a vote if to a vote it has to go. So I would now propose to withdraw the amendment, to speak with them further and, I hope, to bring back an amendment that will have their approval at the next and final stage of the Bill. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Buscombe
moved Amendment No. 3:Page 3, line 16, after "services" insert "(and in particular the diversity of elements within such services)The noble Baroness said: My Lords, the key purpose of this amendment is to address the need for Ofcom to secure in carrying out its functions the availability throughout the United Kingdom of a wide range of TV and radio services,and in particular the diversity of elements within such services".47 In essence we are seeking to ensure that, in addition to there being a wide range of services which are both of high quality and calculated to appeal to a variety of tastes and interests, there is sufficient diversity of all forms of creativity within those services. In contrast with the previous amendment, we believe that this amendment addresses all programming, public service broadcasting or otherwise.
The amendment is designed to ensure that Ofcom is required to take specific account of the different component parts of television and radio services when making an assessment of whether such services taken as a whole are both of high quality and calculated to appeal to a variety of tastes and interests. Without such clarification on radio services, for example, Ofcom could conceivably make a judgment on overall quality and diversity as long as it was demonstrated by, for example, news, sport and light entertainment programmes, without giving specific or sufficient regard to music and the performing arts.
The amendment was proposed by the music industry. We are pleased to support it, and encourage the Government to support it, because it is addressing the need for diversity of all forms of creativity. The importance of creative diversity—including music diversity—together with the absence of any provision in this entire Bill to require and enable Ofcom to act effectively on this issue has led us to conclude that this deficiency could be addressed by amending Clause 3. Our amendment would furnish Ofcom with an overarching responsibility to ensure that this vital element is given due regard when making its regulatory decisions.
While we understand that the Government are reviewing this important issue, we are keen to support that process by putting forward several amendments—we have later amendments on Report for scrutiny by your Lordships—aimed at bringing greater regulatory clarity for British music creators and audiences, and indeed in the wider public interest. I should like to thank the noble Lord, Lord McNally, and the noble Baronesses, Lady Warnock and Lady Howe, for their ongoing support on this issue and those respected voices from the Government's own Benches who sounded the alarm during earlier debates. I beg to move.
§ Lord McIntosh of Haringey
My Lords, I do not want to curtail debate, and if others wish to speak after me, that is fine, but I hope that I can help the House. We said in Committee that we would table amendments on Report that would address the main area of concern, which is about music on local radio. We expect to table amendments this week for debate next week. I hope that those will meet the concerns of the music industry. I think that I should add that this amendment seems to require diversity not only across services but within services. That would seem to me to mean that Classic FM would have to carry jazz and 48 pop, and that pop stations might have to include Stockhausen or Berio. I do not think that that is what is meant.
§ Baroness Buscombe
My Lords, far be it from me to inflict the wrong music on the wrong audience. I shall be brief in my reply. I am very grateful to the Minister, who is clearly taking this issue on board. In that well known phrase, let us watch this space and see what comes before us next week in our further deliberation on Report. On that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Earl of Northesk
moved Amendment No. 4:Page 3, line 29, at end insert—( ) the application, in the case of electronic communications network services, of standards that provide adequate protection to members of the public and all other persons from unwarranted infringements of privacy resulting from activities carried on for the purposes of such services;The noble Earl said: My Lords, if I may, like other noble Lords, I should like to take this opportunity to welcome the Minister to his new position and congratulate him on it.
I turn to the amendment. The Bill requires that appropriate privacy standards be secured in respect of all television and radio services. That is of course welcome. The effect of the amendment is to extend that requirement to "electronic communications network services". The substantive point is that, if it is sensible that the radio and television arms of media enterprises should be subject to appropriate privacy standards, it necessarily follows that their Internet or web-based arms should be too. A failure so to do not only creates a gaping hole on the face of the Bill, it also creates what the noble Lord, Lord Avebury, so eloquently described as a "philosophical inconsistency" in the Government's approach and attitude towards both this Bill and technological convergence more generally.
What was evident from our debates in Committee is that we are all, even the Government, agreed that this is a hugely important issue that needs to be addressed. As the Minister, put it:I do not disagree at all … if we have provision in Clause 3(2)(f) in respect of radio and television services, there ought to be comparable provision for electronic communication network service users—there is no doubt about that".So we are all agreed. This is an amendment of substance which it could be fairly said would improve the Bill. Yet, on the evidence of the Committee, the Minister will in due course reject the amendment. The grounds for so doing are outwardly reasonable. As he explained in Committee, and I have no doubt that the same argument will be deployed again today,any standards imposed by Ofcom would have to be consistent with the new European regulatory regime for electronic communications, including the new directive on privacy and electronic communications".—[Official Report, 29/4/03; col. 646.]I do not dissent from that. But perhaps the Minister will explain in what ways the amendment is inconsistent with the relevant directives? I do not 49 believe it is. Indeed, there are not inconsiderable advantages in adopting what could be called an anticipatory approach in this matter rather than leaving it in abeyance.
I acknowledge too the Government's commitment as expressed by the Minister:We intend to implement the directive in the UK by means of separate regulations under the European Communities Act 1972".—[0fficial Report, 29/4/03; col. 647]Again, that is eminently reasonable. What need of the amendment is there when the Government are going to legislate in the future by a different route? I have a number of concerns here. Self-evidently the Government are content to legislate on this matter as it relates to radio and television by means of primary legislation. As I say, that is welcome. Indeed it is wholly unsurprising. But when it comes to the electronic communications network services aspect of the problem, they are content to deal with it by secondary legislation. There are shades here of the "philosophical inconsistency" identified by the noble Lord, Lord Avebury. I return to the central tenet of my argument: if it is right to legislate in this area for radio and television services by primary legislation, then it must be right to adopt the same approach for electronic communications network services. After all, what is at issue here, far from being a matter of administrative detail, and thereby an appropriate candidate for secondary legislation, is a fundamental principle, the essential human right that an individual's privacy should not be infringed.
Nor should we lose sight of the problems associated with consigning these matters to secondary legislation. Your Lordships will be aware of the gestation periods of, for example, the code of practice for voluntary retention of communications data required under the Anti-terrorism, Crime and Security Act 2001, or the Information Commissioner's employment practices data protection code. The latter was three years in the making, while the former runs the risk of failing to meet its two-year deadline for implementation on 13th December this year. This begs the question of whether it would be sensible to run the risk of leaving this issue in limbo for such a long period. I do not believe that that is sensible. As I said, there is virtue in the amendment in the sense that it anticipates and preempts this risk.
There is the seductive argument that when it comes to information technology issues it is unwise to legislate unilaterally. As the Minister put it:We shall implement the directive and put in place a set of controls that will have the enormous virtue of covering Europe. It is not a UK matter, it is an international one."—[Official Report, 29/4/03, col. 647]How very true. It is a sound analysis, so far as it goes. The key here is the noble Lord's use of the word "international". The reality is that this is not an exclusively European matter either. It is global. So, if we are to be tempted into accepting the thrust of this argument, logic dictates that legislation should wait until such time as some form of global agreement is in place. However desirable, that prospect is some way off. Quite rightly, the Government are not advocating 50 that the matter should rest in abeyance as a result. In other words, the enormous virtue to which the Minister referred is but a glass half-full. None the less, if the amendment were inimical to the forthcoming directives, I would be the first to concede that it was an inappropriate addition to the Bill. But it is not. It has the virtue of anticipating the directives rather than preempting or compromising them.
So, as I observed in Committee, I find myself in a somewhat curious position. None of your Lordships has thus far dissented from the amendment's underlying principle. None of your Lordships has suggested that it is in any way defective or indeed inconsistent with forthcoming European legislation. In the circumstances, I find the Government's obduracy in resisting the amendment difficult to understand. I look forward to the Minister's reply in the, perhaps vain, hope that at least some light can be shone on the impenetrability of the Government's position. I beg to move.
§ Baroness Howe of Idlicote
My Lords, in supporting the amendment of the noble Earl, Lord Northesk, I shall try and be brief. I could not, in any event, argue a case as effectively and expertly as the noble Earl.
It is indeed a strange anomaly, as the noble Earl pointed out both today and in Committee, that something broadcast via the Internet should not be subject to Ofcom regulation while the same broadcast received by the more traditional methods of television and radio sets is. Issues about human rights and privacy are surely possible here.
Everyone is keen to keep the Internet free of regulation but I wonder whether it remains feasible in the long run. The noble Lord, Lord Puttnam, said in Committee that a globally agreed solution was needed. In the long term that clearly must be right. The interim problem remains. The Internet Watch Foundation does its best, but most of us have a growing feeling of unease about the kind of damaging material that can easily be accessed by an increasing range of receivers, not least 3G mobile telephones, which an increasing number of young people already possess or to which they aspire. The Minister told us in Committee that consultations had begun and that powers would be brought in via the European Communications Act 1972. Giving additional powers to Ofcom would therefore not be helpful or necessary. As I said in Committee, it may not be possible or everybody's wish to regulate the Internet but citizens' concerns about whether voluntary regulation is likely to remain sufficient are increasing, given the material that is easily accessed on the Internet. If only to future proof this legislation, which we are told will not be outdated for many years, it would make sense for Ofcom, which is to be responsible for regulating almost every other form of electronic communication network, to be given some role in setting standards at least for the 51 Internet if only to give the regulator powers to promote, oversee and agree codes of practice. I hope that the Government will support the amendment.
§ Lord Avebury
My Lords, having looked carefully at what the Minister said in Committee on 29th April I still do not understand how this is going to work. As the noble Earl, Lord Northesk, explained, we have one system of regulation of privacy when we are dealing with radio and television. Another system, as the Minister explained in Committee, is going to come into effect at some time in the future under the European Communities Act 1972. The Minister said that this was necessary because the regulations that are to be introduced under that Act would go beyond the remit of Ofcom. It would be useful if the Minister explained what is happening in the consultations which he spoke of in Committee. These started at the end of March and are still under way. What sort of solution does he think will be produced at the end of the day? Will the European regulations that he mentioned feed back into Ofcom's remit? Will they require Ofcom to apply the European directive into radio and television so that a uniform system applies across the board of electronic communications? Or are we going to have two completely different systems of dealing with privacy, one for radio and television and another for other forms of electronic communication?
Perhaps the Minister will also explain something that I find mysterious. We all agreed it was impossible to regulate the Internet, but at col. 647 of the Official Report of 29th April 2003 the Minister spoke about the directive introducing new e-mail and Internet controls. I am sure your Lordships would like to know more about that, and whether it is being dealt with under these consultations.
§ Lord St John of Bletso
My Lords, I support this amendment. My concern is the ever-increasing scourge of spamming. Certainly, the noble Earl, Lord Northesk, has spoken about the forthcoming European legislation, but there does need to be a standard to control abuses of the Internet. I am not referring only to spamming, but to distribution of malicious viruses, hacking and, of course, the proliferation of unsolicited pornography. I do not call for Internet regulation, as mentioned by my noble friend Lady Howe, but more a light-touch approach.
It is a commonly held view that the Internet was included in the Bill as an afterthought. I hope that the Minister, who has an excellent grasp of the exigencies of the world wide web, will look with some sympathy on the amendment.
§ Lord Lucas
My Lords, I wish to support the amendment, too. There is now no boundary between the Internet and radio and television. I spend more time listening to the radio on the Internet than over the airwaves now, as it is so easy simply to have it running in the background once one has a broadband connection. We are about to have parliamentary broadcasting over the web. Doubtless other broadcasters will follow as we start to get decent broadband connections.
52 The Internet is another extension of radio and television. Already services have started up that are available only over the Internet. Why start a pirate radio programme now, with all the difficulties of legislation and people trying to close it down, when the same thing can be done over the Internet with the same quality of reception? It is all one, and it is ridiculous that half should be in and half out.
§ The Earl of Liverpool
My Lords, I support the amendment tabled by my noble friend Lord Northesk, who spoke with much more authority than I am able to on the subject. The words that rang in my ear when he spoke were that an independent liberty should not be infringed. I support him. If he presses the amendment, I shall be with him in the Lobby.
§ Baroness Howarth of Breckland
My Lords, I want to ask a question rather than make a long speech. For 10 years I was a regulator in the premium-rate industry. At the end of that time in ICSTIS, we talked a great deal about convergence, rather as the noble Lord, Lord Lucas, just described. I thought that the Bill would look across the horizon to the future when all the services would converge. Indeed, since I left ICSTIS, there seems to have been even greater integration of services. Will the Bill look towards that integration, or will we have two kinds of regulation in future?
§ 5.45 p.m.
§ Lord McIntosh of Haringey
My Lords, in introducing the amendment, the noble Earl, Lord Northesk, very properly gave my reasons for resisting it last time. I am very grateful to him for that, and those reasons still stand. He described them as outwardly reasonable, but I think that I can show that they are both outwardly and inwardly reasonable. He asked me a number of questions, and other noble Lords have also asked questions, about what we propose to do. I had better repeat it—I caught myself almost saying "very briefly". If I do. I shall leave the Chamber. I am getting so angry with that phrase, which is followed by long speeches, so I stopped myself in time.
When we debated the amendment in April, we said that the use of the electronic communications networks was subject to a separate European directive on privacy and electronic communications, which will be implemented by 31st October this year using the provisions of the European Communities Act 1972 instead of other primary legislation. I shall answer all the points made about that, and why we consider it better to act that way.
The noble Earl, Lord Northesk, asked how his amendment was inconsistent with the provisions of the privacy and electronic communications directive. There are a number of detailed inconsistencies, but one of very great importance is that Ofcom is not the appropriate body to enforce privacy standards in networks and services. That role is to be performed by the Information Commissioner, who is of course the successor in role to the Data Protection Registrar. He 53 or she is a UK independent supervisory body reporting directly to the UK Parliament. He oversees and enforces the Data Protection Act 1998 and the Freedom of Information Act 2000.
The Information Commissioner has a wider range of duties including the promotion of good information handling and the encouragement of codes of practice for data controllers—that is, anyone who decides how and why personal data about identifiable living individuals are processed. He is responsible for the current regulations, and will be for the regulations that we shall introduce this year. That answers nearly all the points made by other noble Lords about the need for effective regulation. Regulation is much more effective if done by the Information Commissioner than by Ofcom, which has a different range of responsibilities.
The noble Earl, Lord Northesk, then said that the provisions by secondary legislation would be in abeyance, and that they would not meet the deadline of 13th December. The answer to that is that they will be in force by 31st October. They will meet the deadline; there will be no delay in implementing what he and other noble Lords want. He criticised the difference between primary and secondary legislation. We use secondary legislation when we are able to do so in law. There is no difference in effect between primary and secondary legislation. It is still the law of the land; however, we did not need to burden the Bill with that element of relatively uncontroversial primary legislation.
The noble Earl raised the issue of global agreement, because he thought that I was too welcoming of the idea that regulation through the European directive on privacy and electronic communications was to come into force throughout Europe. I think that he recognises that that is better than its doing so only for the UK. He is right, of course, in saying that the search for global agreement is rather further off, but I do not think that that supports his amendment.
We are doing everything that the noble Earl, Lord Northesk, wants with equal effect, and much more effectively in terms of the responsibility being with the Information Commissioner. We are also doing it on time. What more do we want?
§ The Earl of Northesk
My Lords, I am of course grateful to the Minister for that reply. Although he fleshed out what was said in Committee, I still find it slightly dispiriting that much the same arguments were deployed. However, as I concede, at least they were fleshed out.
The noble Lord, Lord St John of Bletso, rightly raised the issue of spam, and I was extremely grateful to him for that. I was grateful, too, for the contribution of the noble Baroness, Lady Howe. However, I should counsel her that, so far as I am concerned, the amendment does not bite in any way on content but solely on the issue of privacy.
I hear what the Minister says about the role of the Information Commissioner in respect of regulating privacy. But, to my mind, the amendment does not 54 seek to regulate; it seeks to impose a base standard in respect of infringement of privacy over which Ofcom could and should perhaps have oversight. Therefore, on that point I do not believe in truth that the amendment is as deficient as the Minister would like me to believe.
Ultimately, the privacy of the individual and his protection against unwarranted infringement is no small thing. If the amendment were attempting to ratchet up that protection or, indeed, to introduce a system of regulation in its own right, I could attach some credibility to the Minister's position. But I do not believe that it does; it merely seeks to replicate a regime that the Government believe to be fit for purpose for radio and television services and to apply it equally to electronic communications network services—as I said, not in the form of regulation but as a simple standard.
The Minister—indeed, all noble Lords who have spoken in this debate—agree that the issue is important and that doing something about it is right and sensible. I suspect that our only point of difference is one of methodology and of bridging the gap between Royal Assent for the Bill and whenever—the noble Lord says 31st October—the relevant provisions come in under the European directive.
However, I regret to say that, in so far as the Government persist in failing to understand that the Bill should also be about technological convergence, I remain unconvinced by the arguments advanced by the Minister. On that basis, I wish to seek the opinion of the House.
§ 5.50 p.m.
§ On Question, Whether the said amendment (No. 4) shall be agreed to?
§ Their Lordships divided: Contents, 99; Not-Contents, 160.56
|Division No. 2|
|Ampthill, L.||Craigavon, V.|
|Anelay of St Johns, B.||Crickhowell, L.|
|Ashcroft, L.||Denham, L.|
|Astor of Hever, L.||Dixon-Smith, L.|
|Baker of Dorking, L.||Eden of Winton. L.|
|Biffen, L.||Elliott of Morpeth, L.|
|Blaker, L.||Elton, L.|
|Blatch, B.||Erroll, E.|
|Bowness, L.||Ferrers, E.|
|Bridgeman, V.||Fookes, B.|
|Brougham and Vaux, L.||Fowler, L.|
|Burnham, L.||Gardner of Parkes, B.|
|Buscombe, B.||Garel-Jones, L.|
|Byford, B.||Geddes, L.|
|Caithness, E.||Glentoran, L.|
|Campbell of Alloway, L.||Gray of Contin, L.|
|Camegy of Lour, B.||Hanham, B.|
|Chalker of Wallasey, B.||Howe, E.|
|Chan, L.||Howe of Aberavon, L.|
|Colwyn, L.||Howe of Idlicote, B.|
|Cope of Berkeley, L.||Howell of Guildford, L.|
|Cox, B.||Hurd of Westwell, L.|
|Jenkin of Roding, L.||Park of Monmouth, B.|
|Knight of Collingtree, B.||Pearson of Rannoch, L.|
|Laird, L.||Pilkington of Oxenford, L.|
|Lane of Horsell, L.||Quinton, L.|
|Liverpool, E.||Rees, L.|
|Lucas, L.||Renton, L.|
|Luke, L.||Roberts of Conwy, L.|
|Lyell, L.||St.John of Bletso, L.|
|McColl of Dulwich, L.||Saltoun of Abemethy, Ly.|
|Mancroft, L.||Seccombe, B.|
|Mar, C.||Selborne, E.|
|Marsh, L.||Selsdon, L.|
|Masham of Ilton, B.||Sharples, B.|
|Mayhew of Twysden, L.||Skelmersdale, L. 51im V|
|Monro of Langholm, L.||Stoddart of Swindon, L.|
|Monson, L.||Soulsby of Swaflham Prior, L.|
|Mowbray and Stourton, L.||Stewartby, L.|
|Murton of Lindisfarne, L.||Stpddart of Swindon, L.|
|Nicholson of Winterbourne, B.||Swinfen, L.|
|Noakes, B.||Taylor of Warwick, L.|
|Northbrook, L. [Teller]||Trefgarne, L.|
|Northesk, E. [Teller]||Trumpington, B.|
|Norton of Louth, L.||Vivian, L.|
|O'Cathain, B.||Waddington, L.|
|O'Neill of Bengarve, B.||Weatherill, L.|
|Onslow, E.||Wilcox, B.|
|Palmer, L.||Williamson of Horton, L.|
|Acton, L.||Falkland, V.|
|Addington, L.||Farrington of Ribbleton, B.|
|Ahmed, L.||Faulkner of Worcester, L.|
|Amos, B.||Fearn, L.|
|Andrews, B.||Filkin, L.|
|Ashley of Stoke, L.||Fitt, L.|
|Avebury, L.||Fyfe of Fairfield, L.|
|Barker, B.||Gale, B.|
|Barnett, L.||Gavron, L.|
|Bassam of Brighton, L.||Gibson of Market Rasen, B.|
|Berkeley, L.||Golding, B.|
|Bernstein of Craigweil, L.||Goldsmith, L.|
|Billingham, B.||Goodhart, L.|
|Blackstone, B.||Gordon of Strathblane, L.|
|Boothroyd, B.||Goudie, B.|
|Borrie, L.||Gould of Potternewton, B.|
|Bradshaw, L.||Grocott, L. [Teller]|
|Bragg, L.||Hamwee, B.|
|Brennan, L.||Hardy of Wath, L.|
|Brooke of Alverthorpe, L.||Harris of Haringey, L.|
|Brookman, L.||Harris of Richmond, B.|
|Brooks of Tremorfa, L.||Harrison, L.|
|Campbell-Savours, L.||Haskel, L.|
|Carter, L.||Hayman, B.|
|Christopher, L.||Hilton of Eggardon, B.|
|Clark of Windermere, L.||Hogg of Cumbernauld, L.|
|Clarke of Hampstead, L.||HoUis of Heigham, B.|
|Clement-Jones, L.||Holme of Cheltenham, L.|
|Clinton-Davis, L.||Howarth of Breckland, B.|
|Cohen of Pimlico, B.||Howellsof St, Davids, B.|
|Corbett of Castle Vale, L.||Hughes of Woodside, L.|
|Crawley, B.||Hunt of Chesterton, L.|
|David, B.||Hunt of Kings Heath, L.|
|Davies of Coity, L.||Irvine of Lairg, L.|
|Davies of Oldham, L. [Teller]||Janner of Braunstone, L.|
|Dean of Thornton-le-Fylde, B.||Jay of Paddington, B.|
|Desai, L.||Jeger, B.|
|Dixon, L.||Jones, L.|
|Dormand of Easington, L.||Jordan, L.|
|Dubs, L.||King of West Bromwich, L.|
|Evans of Parkside, L.||Kirkhill, L.|
|Evans of Temple Guiting, L.||Lea of Crondall, L.|
|Evans of Watford, L.||Lipsey, L.|
|Falconer of Thoroton, L. (Lord Chancellor)||Livsey of Talgarth, L.|
|Lofthouse of Pontefract, L.|
|Macdonald of Tradeston, L.||Rennard, L.|
|McIntosh of Haringey, L.||Richard, L.|
|McIntosh of Hudnall, B.||Rodgers of Quarry Bank, L.|
|MacKenzie of Culkein, L.||Roll of Ipsden, L.|
|Mackenzie of Framwellgate, L.||Rooker, L.|
|Mackie of Benshie, L.||Russell, E.|
|Maddock, B.||Sawyer, L.|
|Mallalieu, B.||Scotland of Asthal, B.|
|Manchester, Bp.||Scott of Needham Market, B.|
|Mason of Barnsley, L.||Sharp of Guildford, B.|
|Massey of Darwen, B.||Sheldon, L.|
|Merlyn-Rees, L.||Shutt of Greetland, L.|
|Michie of Gallanach, B.||Simon, V.|
|Miller of Chilthorne Domer, B.||Smith of Clifton, L.|
|Milner of Leeds, L.||Smith of Gilmorehill, B.|
|Mitchell, L.||Steel of Aikwood, L.|
|Morgan, L.||Stone of Blackheath, L.|
|Moser, L.||Strabolgi, L.|
|Murray of Epping Forest, L.||Symons of Vernham Dean, B.|
|Newby, L.||Taylor of Blackburn, L.|
|Northover, B.||Temple-Morris, L.|
|Parckh, L.||Thomson of Monifieth, L.|
|Patel of Blackburn, L.||Tordoff, L.|
|Pendry, L.||Turner of Camden, B.|
|Perry of Walton, L.||Uddin, B.|
|Peterborough, Bp.||Walker of Doncaster, L.|
|Pitkeathley, B.||Walmsley, B.|
|Plant of Highfield, L.||Warner, L.|
|Puttnam, L.||Warwick of Undercliffe, B.|
|Radice, L.||Whitaker, B.|
|Ramsay of Cartvale, B.||Whitty, L.|
|Randall of St. Budeaux, L.||Wilkins, B.|
|RazzalLL.||Williams of Mostyn, L. (Lord President of the Council)|
|Rendell of Babergh, B.||Woolmer of Leeds, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.1 p.m.
§ The Earl of Northesk moved Amendment No. 5:
Page 3, line 29, at end insert—
"( ) the desirability of encouraging the best means of access to systems of delivery of high speed data transfer throughout the United Kingdom, and, as appropriate, encouraging competitive markets in such systems;"
§ The noble Earl said: My Lords, as with the previous amendment, my purpose here is straightforward. The aim is to widen Ofcom's remit so that it has a specific role to play in respect of the roll-out and take-up of broadband. All of us, from the Prime Minister down, accept the huge importance of that in terms of the economic health of our nation and, indeed, in terms of the potential for social good of the new technology.
§ So far as concerns the amendment, I have tried to reflect the very helpful comments of your Lordships during Committee. First, I have substituted the word "broadband" with the words "high speed data transfer". After all, it is that rather than any generic term that will unlock the full potential of the new technology and is therefore the desired outcome. I hope your Lordships will agree that it gives the amendment that much more technological neutrality and flexibility.
§ I should advertise my particular gratitude to the noble Lord, Lord Gordon of Strathblane, and my noble friend Lady Buscombe for their contributions in Committee. 57 The noble Lord, Lord Gordon, emphasised how important it is that we realise that competition-driven solutions will not always afford the appropriate remedy to the problems facing the broadband market. That is especially pertinent to the "digital divide" between rural and urban broadband, but more of that later. As my noble friend Lady Buscombe and the noble Lord, Lord Gordon, pointed out, take-up is as important an issue here as roll-out. Again, I hope that your Lordships will agree that the current drafting of the amendment adequately reflects those concerns.
I should perhaps explain the purpose of the amendment in more detail. I do not underestimate the importance and virtues of the Bill's hierarchy. The observations of the noble Lord, Lord Currie, about that earlier were especially pertinent. Therefore, I can accept the logic of the Government's position, as expressed by the Minister:
It would he inappropriate to seek to define broadband as being one of the specific and particular objectives of Ofcom in the Bill".—[Official Report, 29/4/03; col. 669.]
I do riot believe that that is what the amendment does. It is correct that broadband is but one element of the new technology—but as expressed in the phrase "high-speed data transfer" it is also one element upon which many other technological developments are dependent. It follows that in acquitting its responsibilities Ofcom's decision-making process should be informed by appropriate and sensible judgments about the roll-out and take-up of broadband, not so much in its own right, but because of its knock-on effect on other emerging technology. To my judgment, the Bill currently contains no such provision, and the amendment will rectify this.
So far, the Government have sought to rely on the sense of Clause 3(3)(a) to excuse this lacuna. As the Minister put it in Committee,
We have a perfectly good provision in Clause 3(3)(a), which sets out that Ofcom must have regard to the desirability of promoting competition in relevant markets".—[Official Report, 29/4/03; col. 669.]
This strikes me as a case of the Government falling into much the same trap as myself with my Committee stage amendment, on which the noble Lord, Lord Gordon, quite rightly, if gently, chided me. Implicit in the Government's position, not only in respect to the Bill, but to their policy approach more generally, is the presumption that most—if not all—the problems of broadband can be solved by market-driven solutions.
§ We should not underestimate the role of competition. For example, the respective positions of near-dominance by BT in the ADSL market, with the associated, woeful position in respect of local loop unbundling, and Ntl and Telewest in the cable market are indicative of how important competition issues continue to be in the sector. Nevertheless, while we might wish that all that is desirable in respect to broadband could be achieved by reliance on competition alone, that is not so at the moment.
§ This can be demonstrated in several ways. The noble Baroness, Lady Gibson of Market Rasen, advanced the proposition in Committee that high-speed data transfer services should be a universal service 58 obligation. The Government, to my mind quite rightly, resisted this. The aspiration is desirable, but at the moment the market is not sufficiently developed for this to be deliverable. Nor, indeed, is it simply a matter of the means of access to delivery of high-speed data transfer services. A host of other factors are at work—such as the affordability of hardware, the psychology of new technology use, and so on.
§ In other words, the problem is how to invigorate and develop the market to ensure that it reaches a position in which a universal service obligation is feasible. To my mind, a "mentorship" role for Ofcom should he in the Bill, an acknowledgement of its role as a champion of the cause of high-speed data transfer, so that the virtues of competition could march in step with the needs of consumers. There are echoes here of our first debate today. Hence the amendment. In this way the market should be able to achieve a situation in which a universal service obligation would be viable rather sooner than might otherwise have been the case.
§ The digital divide also creates huge difficulty. On the Countryside Agency's most recent figures, 95 per cent of urban households have access to a broadband connection, as compared with seven per cent for rural households. The technological constraints that have so far placed the regions and rural areas at disadvantage are well known, but we should not lose sight of the fact that for reasons such as those I have outlined, the divide—as expressed in terms of take-up rather than access—extends to many urban and inner-city areas.
§ The Government may have high hopes that the recent 3.4GHz spectrum auction, by enabling delivery of fixed-wireless access, will address the problem in rural areas and the regions. I am less certain. On the one hand, there is no obligation in the licence terms for successful bidders to roll out any service, let alone a broadband one; on the other it is likely that back-haul services for mobile telephony, or even sitting on the licences as an asset, offer a more attractive and commercially viable route to a return on the investment. Whatever the eventual outcome for the 3.4GHz spectrum, what matters is the real prospect that the divide will be perpetuated for some time to come—in terms of both roll-out and take-up.
§ I acknowledge the impetus that the Government have sought to give to broadband, particularly in recent months: Oftel's broadband market review listing of criteria for broadband service; Stephen Speed's appointment as director of broadband; the 3.4 auction, and so on. I pay tribute to the e-commerce Minister for the way in which he has brought technological expertise and clarity of purpose to his brief.
However, I remain firmly convinced that Ofcom can and should play a hugely important role in assisting the Government to achieve their policy goals. As John Wilson, a founder member of the "Access to Broadband" campaign has put it:
the UK has a real opportunity to take a European lead".
In passing, I point out that this is the oft-stated aim of the Government's targets in the area. He goes on to say that,
a proactive approach is needed to remove obstacles, bring all of this energy together, and allow new partnerships to move ahead positively".
In other words, Ofcom needs to have a specific focus on broadband issues, so that "all of this energy" and "new partnerships" can coalesce to drive the whole of the broadband agenda forward positively. I beg to move.
§ Lord Gordon of Strathblane
My Lords, I support the amendment. It is a better one than the noble Earl moved in Committee not least because it has changed "broadband" into "high speed data transfer". He is right to call for a proactive role for Ofcom in this field. There is a tendency for Acts of Parliament to be drafted by people who live in cities and competition crops up in this Bill every second line.
The real problem with high speed data transfer is not regulating competition but getting anyone to provide the service at all outwith urban areas. Let me again remind the House that one-third of the British public does not have the opportunity of taking up broadband—or high speed data transfer. I must confess that the shorthand of "broadband" trips off the tongue more easily. Let us forget the business of urban deprivation and so forth for the moment. No matter how well off you are, you will not receive broadband in rural areas. Are we just going to sit back and allow Ministers to talk about their higher take-up in some urban areas in order to keep everyone quiet or are we going to do something about it? If so, which body should be doing something about it? In my view, it should be Ofcom. Regulation is not a negative act; it is a positive act. It tries to bring about a better good. To that extent, it is a sound idea to give Ofcom a proactive role in bringing about the wider access to high speed data transfer.
I am therefore pleased that the noble Earl, while retaining his legitimate enthusiasm for competition, has inserted the words "as appropriate", recognising that it is not a universal system. He has also included the words "throughout the United Kingdom", emphasising the importance of universality of provision, which is a fundamental tenet of public service broadcasting.
There is a grave danger that we shall end up with urban competition and rural deprivation. We need to do something about that and I support the amendment.
§ Lord St John of Bletso
My Lords, in supporting the amendment, I want to raise three issues. One is that of definition. The noble Earl mentioned the delivery of high speed data transfer. There has been confusion about where narrow band ends and broadband starts. The Government appear to be using 128 kilobytes as the starting point, but most consumers expect broadband to be 500 kilobytes or more. What is the Government's definition of broadband speed?
I should declare an interest as chairman of the trustees of Citizens Online, which is a UK charity committed to universal, affordable access—and that by 2005. Broadband rollout in the UK is in its comparative infancy. While 45 per cent of UK households have access 60 to the Internet, only 13 per cent have broadband access. However, 66 per cent of United Kingdom households could have broadband if they wanted it. My concern is that there ought to be greater and more affordable access to broadband services outside the major cities.
While there are increasing numbers of competitors in the urban areas offering broadband services, unfortunately with the falling prices of bandwidth it is becoming increasingly uncompetitive for companies to operate broadband services in rural areas. For effective and affordable rollout in rural areas, it should not be left simply to the free-market forces. Here the Government need to play an important role. Her Majesty's Government need to promote broadband, particularly if they want to achieve their stated objectives of not only universal access by 2005 but also,the most extensive and broadband competitive market among the G7".That is not achievable if it is left simply to free-market forces.
It is well known that the Government took almost £22 billion from 3G licences. What provision has been made of that money to assist in broadband rollout? It is only right that Ofcom should play a proactive role in the rollout and for that reason I support the amendment.
§ 6.15 p.m.
§ Lord Crickhowell
My Lords, too, am happy to support the amendment. I listened to the noble Lord, Lord Gordon of Strathblane, with a particular sense of feeling. For more than half the year I live in an area of Wales where I am extremely unlikely to be able to obtain the benefits of broadband, at least in the foreseeable future. It is in a part of the UK where government are taking some valuable initiatives and I pay tribute to the Welsh Assembly for those.
However, during the weekend, I saw a map of those parts of the UK where one can receive the benefits of broadband. It is startling because it shows how confined in geographic terms those areas are. Virtually the whole of Scotland and Wales and large parts of England are not covered at all. I am therefore sure that there is a need for proactive measures.
I listened to the remarks made by the noble Lord, Lord St John of Bletso, about the nature of broadband. I sometimes believe that what we in this country are now taking credit for might be called "narrow country lane band" compared with the highways and motorways that are being planned and constructed in some other countries. The width is of great importance. If one provides adequate width, one can receive all kinds of services, but the providers will not attempt to enter the market if the lanes are too narrow.
Last year, some of us attended a presentation by BT. The chairman of BT, who is a good friend of mine, gave us an eloquent address on how well it was doing. I then said to him, "Okay, I know what you are doing, but what about what I call broadband?"—I meant in the sense to which I have referred. He said, "Oh, it will 61 take at least 10 years before we can contemplate that". I said, "I'm going to throw back at you a remark that was once made in a Cabinet committee by the then Prime Minister, my noble friend Lady Thatcher, when a similar remark was made by an unfortunate Minister. She said, 'You mean it's going to take longer than the duration of two world wars put together. Quite a lot of technological achievement was made during two world wars. Surely we can do better than that'".
We must realise that if we are to achieve what can be achieved we must set the sights high and take proactive measures. I am sure that Ofcom has an important role to play in that and therefore I warmly support the amendments moved by my noble friend.
§ Lord Avebury
My Lords, broadband communications for every citizen in the United Kingdom has become like motherhood and apple pie— it is something you have to have. What we can do to encourage Ofcom in this regard is worthwhile. However, Ofcom already has a general duty to further the interests of the community as a whole in relation to communications matters, so by extension it has a particular duty to do what is possible within its powers to further the extension of broadband to the remaining one-third of households in the United Kingdom which at present do not have access to it.
Under Clause 3(2)(b), Ofcom has a particular duty to promote,the availability throughout the United Kingdom of a wide range of electronic communications services",which must include high speed data communications.
In Clause 3(3)(e), it must have regard to,the desirability of encouraging investment and innovation in relevant markets".So Clause 3 contains several provisions which ought to encourage Ofcom to do the kind of things which the noble Earl, Lord Northesk, and everyone else would like to see.
They are gradually being done. The noble Earl, Lord Northesk, spoke about the 3.4 gigahertz auction that has just taken place which would enable the operators concerned to offer fixed-wireless access in areas not covered by the cable industry or BT. That could, who knows, include rural Wales. It would be fascinating to see how soon the licencen holders would roll out services to consumers. I agree with the noble Earl, Lord Northesk, that it was a pity that there was nothing in the auction that obliged the winners to roll out services within a given time. I hope that that will be borne in mind in the case of future auctions. The Minister, Stephen Timms, said that the Government's aim was that every community in the UK should have access to affordable broadband services. I hope that that means at prices similar to those that are enjoyed at the moment by users of cable and telephone services.
I welcome the development of wireless broadband, which could be a powerful stimulus to competition. Looking ahead to later amendments, can the Minister say whether the purchases of the 3.4 gigahertz licences will be deemed to have recognised spectrum access 62 under Clause 156 when the Bill comes into effect? When will the Government auction further parts of the spectrum to encourage the growth of wireless broadband, which is the only means of reaching the rural communities that everyone wishes to have access to high speed data communications?
§ Lord Baker of Dorking
My Lords, I support the comments of the noble Lord, Lord Avebury. I declare an interest as the chairman of an ISP company that provides broadband and conventional services. It is correct that broadband services are only available in major industrial conurbations and large cities. Many large rural towns are denied that service. To provide broadband services would require a substantial, and probably barely economic, investment in fibre optic landlines under the ground by the operators and cable companies. As the noble Lord, Lord Avebury, has indicated, the way forward will be wireless broadband. That will be the most effective way of reaching many of the more remote parts of the country.
That should be encouraged, not just by Ofcom. Even the original Oftel had an encouraging role. For example, it encouraged the competition of the Mercury network with BT. As the noble Lord, Lord Gordon of Strathblane, said, it had a positive role—not just an entirely negative or policing role. Ofcom should have that role in this area. I suspect that it probably has that role under Clause 3, and I suppose that the amendment reinforces that, so I shall certainly support it. However, the Government should also be encouraging in these matters. Ministerial statements saying that it is their objective that everyone should have access to broadband are fine and noble. but the Government are a government of adjectives. For them to say that everyone should have broadband, without providing more positive means of encouragement to achieve it is the great lacuna.
The matter depends upon positive government encouragement and not speeches. I hope that the Government will take that to heart, quite apart from Ofcom.
§ Baroness Buscombe
My Lords, I support the amendment. Actions speak louder than words. My noble friend Lord Baker has just said that, and I add the support of Her Majesty's Opposition to my noble friend's amendment.
§ Lord Lucas
My Lords, I support the amendment. We are looking at a technology that will, I suspect, over the next 10 to 30 years, give us the opportunity to transform our society and deal with a great number of the ills that we face now. Many of our troubles stem from shipping people around in order for them to get to work. The reason for having to go to work is that that is the only way in which one can communicate easily with other human beings. If one can be at the end of high speed data transfer—I agree, not broadband as it exists but, looking 10 years ahead, that envisaged by my noble friend Lord Crickhowell. Even further ahead—it will be possible, if we get this right, to be sitting 20 miles outside Aberystwyth and acting as if 63 one was in an office in the City of London. Many people will feel that 20 miles outside Aberystwyth is a better place to be on a summer afternoon than the middle of the City of London.
Therefore, we have an opportunity to bring commercial life back to parts of the United Kingdom that have been cut off. That might start from the peripheries, but could edge into any part of the countryside, including those day-deserted villages that we are all becoming used to in southern England, filled with commuting families who disappear during the day. All that has the potential to change and to produce a better environment, a better society in those localities, and to reduce some of the major problems which the Government have to tackle in terms of pollution and transport.
However, to do that requires the impetus to attract infrastructure that only a government can give. Operating ahead of time is something that requires Government initiative. I know that my own party has failed to understand that at times. That is why Docklands was for so long inadequately provided for. The party that is the Government now should understand—because it always did in opposition, the role that government has in such matters.
Here we are, faced with a need to achieve high speed data transmission around the country, and the need to have Ofcom see that as one of its principal and stated objectives. In various subsections of Clause 3, Ofcom has many other competing interests that it is supposed to balance. Unless that is stated as one of Ofcom's main objectives it will be merely one of its objectives that are not stated. and be reduced to "level two".
Several of my noble friends have referred to the radio spectrum. That appears to be crucial. It is difficult to see how we could extend broadband to Aberystwyth through fixed links. That probably has to be done through the radio spectrum, but crucial sections of the radio spectrum are hogged by various government and quasi-government entities. If I am correct, the crucial part of the spectrum is around 2 gigahertz, and the Government have no intention of freeing up any of that.
Ofcom is faced with the need to shift existing users in order to make room for something new, but at the moment the Bill does not give the impetus and direction to do that. We must realise that making room for broadband—rural means anything more than five kilometres from a decent-sized exchange—means dealing with areas that one might think of as semi-urban or commuter-belt England. One is not dealing with the wild, wet moors, but with great tracts of middle-class countryside. If those are left outside that development, and Ofcom is not given the direction and impetus required to make sure that business can operate as happily from a Hampshire village as from the middle of London, then one will have a continuation of the current transport and lifestyle problems that are causing difficulties for the Government in other areas. It is now time for the Government to think inter-connectedly, and to realise that they have the opportunity in the DCMS to solve 64 problems that are afflicting many other government departments if they give Ofcom the impetus. I hope that we shall see a change of heart.
§ Lord Northbrook
My Lords, I support my noble friend Lord Northesk in his amendment. I add my concern to that of my noble friend about the rollout of broadband via the 3.4 gigahertz spectrum. The auction ended with one company, PCCW, winning all but two of the licences on offer. At its peak, PCCW was a key player in the telecoms market, surprising the market with its purchase in 2000 of Cable and Wireless's HKT Hong Kong phone monopoly for 28.5 billion US dollars. Since then, PCCW shares have lost 95 per cent or so of their value. The debts incurred during those years have forced the company to sell its mobile phone arm. As the Economist stated in February:Its net debt exceeded the company's market value".Therefore, I ask whether PCCW is in any position to start rolling out broadband to rural areas. Should there not have been a role for the regulator to make a judgment on the financial quality of the bidders? As stated by my noble friend Lord Northesk, the terms and conditions of the auction also mean that successful bidders will not have to roll out services. In theory, the company could sit on those assets for another purpose, such as carrying mobile traffic.
We can see that auction does not seem to have produced a sensible list of bidders. We should note that the large companies did not feature in the auctions and that the chief executive of BT retail described it as stupid, although it yielded £7 million to the Government. As a result, it is entirely appropriate to support the amendment to require Ofcom to monitor the whole future process of high-speed data transfer delivery.
§ 6.30 p.m.
§ The Earl of Liverpool
My Lords, there has been a wide measure of support for the amendment from all quarters of the House. I should like to add my voice in support of it. The noble Lord, Lord Gordon of Strathblane, came up with an interesting statistic, which is that only 7 per cent of rural households have access to broadband; which means that 93 per cent do not. I think that the amendment will improve my chances, along with those of many of my friends both inside and outside the House, of getting broadband, so I support it.
§ Baroness Byford
My Lords, I shall briefly support my noble friend's amendment. I apologise that I was unable to take part in Committee. This whole question is extremely important to rural areas. Only 10 days ago, we had a debate on the state of the countryside in which six Members spoke of their concern about the lack of broadband provision—if I can use the word "broadband" in that way. Winding up the debate. the noble Lord, Lord Whitty, was surprised that so many had mentioned broadband—I found his surprise surprising, because broadband is essential.
65 As noble Lords will know, the farming community has been through some desperate years. Farming incomes have been absolutely on the floor. During the past year, they have improved a little. Farmers are always being encouraged to diversify, diversify, diversify. Something that would help them enormously would be access to broadband. So I wanted during my few moments here to support my noble friend. During that debate last week, I cited the figures, which are that 1 per cent of houses in remote areas have broadband; and 7 per cent of those in villages; compared with 95 per cent in urban areas.
Part—in fact, a large part—of the growth in small and medium-sized businesses is occurring in rural areas. They have struggled, but what a difference it would make to them if they had access to that new technology. I wholeheartedly support the amendment.
§ Lord Davies of Oldham
My Lords. as my noble friend Lord McIntosh pointed out on several occasions in Committee, broadband is an important policy area for the Government, and stimulating competition in the broadband market is a key part of our strategy. The target for the UK is to have the most competitive and extensive broadband market among the G7 countries by 2005. Competition, coverage and take-up of broadband are all still increasing.
I recognise the forceful points made in the debate about rural areas, to which I shall turn in a moment, but we should recognise how far we have come. According to independent consultants, we now have the third most competitive market in the G7—up from fourth a year ago and overtaking the United States. Of course, more remains to be done. Third glace is not our target, but we are moving in the right direction to surpass that. The latest figures from Oftel show that the number of broadband subscribers at the end of May was more than 2 million and rising by more than 30,000 each week.
Of course, we recognise that availability of broadband across the whole of the United Kingdom is a matter of great concern. At the end of March, 72 per cent of households were passed by a mass-market broadband service, cable modem, ADSL, or wireless. We have now caught up with the USA and are still ahead of France and Italy.
Turning to the rural market, the debate provoked several moving speeches about the needs of the countryside and rural areas. We take that most seriously. DTI and Defra Ministers have been working together on broadband in rural areas, where suppliers find it most difficult to make a business model. Recently, they appeared together in front of the Select Committee on the Environment, Food and Rural Affairs, which is holding an inquiry into exactly that subject: the availability of broadband. They also issued a joint statement confirming the Government's aim that every community in the UK, irrespective of location, should have the opportunity to access affordable broadband from a competitive market. They are announcing a joint team to tackle the issues.
66 However, I cannot agree that the way to achieve those objectives is by amending the Bill as proposed. Those are matters for government. It is not for an independent regulator to secure, to cite the amendment:the desirability of encouraging the best meansof broadband access. It is not for an independent regulator to decide what is the "best means" of access. Surely, that is for the market. I am not sure how an independent regulator is meant to secure,the desirability of encouraging",anything. How would a regulator set about meeting that objective?
More generally, Ofcom needs to look at a variety of markets and not be diverted onto a single market when other equally pressing issues may arise during the lifetime of this legislation.
§ Lord Gordon of Strathblane
My Lords, is it the role of Ofcom to promote the availability throughout the United Kingdom of a wide range of electronic communications services?
§ Lord Davies of Oldham
My Lords, indeed it is, but it does not have the specific duty of fulfilling that objective. The role of promoting broad access is for government action. I have already mentioned several ways in which we have begun to co-ordinate government departments to reach objectives that are shared across the House. We all recognise that we cannot have an information-rich and an information-poor section of the community. That would produce inequalities that we should not tolerate.
So we all agree that we must tackle those issues and recognise that some of them relate to the rural community. But this is exactly what the Government are doing. We have already acted in Cornwall, delivering 13 exchanges to create capacity for broadband. We have schemes to enable pilots in small communities such as Alston. The broadband aggregation project will make the most of £1 billion of public sector money to be spent on broadband for its own purposes. That is because the issue spans government departments and is a matter on which the Government as a whole must act—especially the significant allocation of resources that will he necessary in crucial areas to produce the results that we all desire.
§ Lord St John of Bletso
My Lords, can the Minister give a figure for the resources that the Government have put aside for broadband rollout across the United Kingdom?
§ Lord Davies of Oldham
No. My Lords, there is a range of different figures. 1 cannot give a particular figure at this stage. I have just indicated that we have an allocation of resources concerned with the question of the project to make the most of the money that we have available. I have indicated that a £1 billion public sector spend will be related to this area of improving capacity and access.
67 Of course, this is a rapidly changing circumstance, in which we all recognise that we must divert the wide resources of government to meet these needs. The amendment specifically requires Ofcom to do this. It is contended at the present time that this is not a specific objective. The noble Lord, Lord Avebury, made reference to the fact that the House voted to take out that part of the clause that gave Ofcom a duty to the community as a whole, and has translated that duty into more specific terms. It is even more incumbent on the Government to recognise that a range of strategies is necessary to serve the interests of the community.
Although I share, in every respect, the objectives that have been put forward by all those in the House who supported the amendment, I am unable to accept the amendment as being a proper and specific duty upon Ofcom. I mentioned the requirement that Ofcom should get into the position of encouraging the market to respond in these terms; that looks to be an odd specific requirement to place upon a regulator.
We recognise that Ofcom will give broadband a high priority. For instance, in a speech on 5th December 2002, the noble Lord, Lord Currie of Marylebone, as chairman of Ofcom, said that Ofcom would need to address the many key policy issues in the communications sector. He then listed those priorities, and first on the list was broadband roll-out. I do not think that we should, in any way, shape or form, suggest that the Government and Ofcom are not seized with the priority that needs to be applied to the question of extending capacity for broadband.
It is not right that we translate this into a specific requirement of Ofcom, given that there is a broad range of objectives. Making resources necessary for this stimulus to sustain and develop the market would involve a much greater spread of government contribution than is identified by Ofcom.
We have had an interesting debate that has given us the chance to emphasise rural needs and the needs of all those who do not at present have access to broadband. However, because of the limitations of the amendment, and because it narrows the purpose, I suggest that this responsibility should not be placed on the regulator.
§ The Earl of Northesk
My Lords, I thank the Minister for that reply, but it will come as no surprise to him that I am utterly disappointed by it. Things were going swimmingly until, as I understood it, he stated explicitly that broadband delivery should be exclusively a function of the market except, unless otherwise directed by government intervention.
I find that utterly extraordinary. We have all agreed that the market at the moment cannot alone bridge the digital divide. It cannot do the job. I am grateful to the noble Lord, Lord Gordon of Strathblane, for his contribution. In discussions that I had with him after tabling the amendment, he was concerned that the amendment should include the word "widespread". I am even more pleased therefore that he feels the use of "throughout the United Kingdom" to be adequate.
68 I found the case of my noble friend Lord Lucas compelling, and I thank him for that. I am also grateful to my noble friend Lord Crickhowell for drawing the comparison between us and our international competitors. I found that to be a telling point.
We all know that the noble Lord, Lord Avebury, is particularly expert in technological matters, but for me the point at issue here is not what Ofcom is already empowered to do, but to ensure that the regulator is properly charged in statute with an understanding of its proactive role in this area. That is simply not the case at the moment. The emphasis in the Bill is utterly competitive. Albeit—and I pick up on the point made by the Minister—the irony of the House's acceptance of Amendment No. 1 is not entirely lost on me.
I continue to be convinced that the current text of the Bill does not afford Ofcom the opportunity to give broadband the prominence that it merits. This is not about anything other than Ofcom understanding its proactive role, to use the vocabulary of the moment. Ofcom needs to be a stakeholder in this issue.
I am grateful to my noble friend Lord Baker. I could not agree with him more that positive encouragement from government is required. Acceptance of this amendment would have been an ideal manifestation of that. On that basis, I should test the opinion of the House.
§ 6.46 p.m.
§ On Question, Whether the said amendment (No. 5) shall be agreed to?
§ Their Lordships divided: Contents, 113; Not-Contents, 111.70
|Division No. 3|
|Addington, L.||Fearn, L.|
|Allenby of Megiddo, V.||Finlay of Llandaff, B.|
|Alton of Liverpool, L.||Fookes, B.|
|Anelay of St Johns, B.||Fowler, L.|
|Ashcroft, L.||Freyberg, L.|
|Astor of Hever, L.||Gardner of Parkes, B.|
|AVvebury, L.||Geddes. L.|
|Baker of Dorking, L.||Glenarthur, L.|
|Barker, B.||Gordon of Strathblane, L|
|Best, L.||Goschen, V.|
|Biffen, L.||Gray of Contin, L.|
|Blatch, B.||Hamwee. B.|
|Brougham and Vaux, L.||Hanham, B.|
|Buscombe, B.||Harris of Richmond, B.|
|Byford, B.||Howe, E.|
|Caithness, E.||Howe of Aberavon, L.|
|Carlile of Berriew, L.||Howe of Idlicote, B.|
|Colwyn, L.||Howell of Guildford, L.|
|Cope of Berkeley, L.||Hylton, L.|
|Cox, B.||Jenkin of Roding, L.|
|Craig of Radley, L.||Knight of Collingtree, B.|
|Craigavon, V.||Laird, L.|
|Crathorne, L.||Lawson of Blaby, L.|
|Crickhowell, L.||Liverpool, E.|
|Darcy de Knayth, B.||Livsey of Talgarth. L.|
|Dixon-Smith, L.||Lucas, L.|
|Elliott of Morpeth.L.||Luke, L.|
|Falkland, V.||McColl of Dulwich, L.|
|Mackie of Benshie, L.||Peyton of Yeovil, L.|
|Maclennan of Rogart, L.||Phillips of Sudbury, L.|
|McNally, L.||Pilkington of Oxenford, L.|
|Maddock, B.||Rees, L.|
|Mancroft, L.||Roberts of Conwy, L.|
|Mar, C.||Rodgers of Quarry Bank, L.|
|Mayhew of Twysden, L.||Rogan, L.|
|Michie of Gallanach, B.||Russell, E.|
|Miller of Chilthorne Domer, B.||St.John of Bletso, L.|
|Miller of Hendon, B.||Saltoun of Abemethy, Ly.|
|Monro of Langholm, L.||Sandberg, L.|
|Montrose, D.||Scott of Needham Market, B.|
|Murton of Lindisfame, L.||Seccombe, B.|
|Newby, L.||Selborne, E.|
|Noakes, B.||Selsdon, L.|
|Northbrook, L. [Teller]||Sharp of Guildf ford, B.|
|Northesk, E. [Teller]||Shutt of Greetland, L.|
|NortonofLouth, L.||Skelmersdale, L.|
|Oakeshott of Seagrove Bay, L.||Slim, V.|
|O'Cathain, B.||Smith of Clifton, L.|
|O'Neill of Bengarve, B.||Strathdyde, L.|
|Thomson of Monifieth, L.|
|Onslow, E.||Tordoff, L.|
|Paimer, L.||Trefgarne, L.|
|Park of Monmouth, B.||Waddington, L.|
|Patten, L.||Wakeham, L.|
|Pearson of Rannoch, L.||Walmsley, B.|
|Peel, E.||WeatheriU, L.|
|Perry of Walton, L.||Wilcox, B.|
|Acton, L.||Golding, B.|
|Ahmed, L.||Goldsmith, L.|
|Amos, B.||Goudie, B.|
|Andrews, B.||Gould of Potternewton, B.|
|Ashley of Stoke, L.||Graham of Edmonton, L.|
|Ashton of Upholland, B.||Grocott, L. [Teller]|
|Barnett, L.||Hardy of Wath.L.|
|Bassam of Brighton, L.||Harris of Haringey, L.|
|Berkeley, L.||Harrison, L.|
|Bernstein of Craigweil, L.||Haskel, L.|
|Billingham, B.||Hilton of Eggardon, B.|
|Blackstone, B.||Hogg of Cumbernauld, L.|
|Boothroyd, B.||Hollis of Heigham, B.|
|Borrie, L.||Howells of St. Davids, B.|
|Bragg, L.||Hughes of Woodside, L.|
|Brennan, L.||Hunt of Kings Heath, L.|
|Brooke of Alverthorpe, L.||Irvine of Lairg, I..|
|Brookman, L.||Jones, L.|
|Brooks of Tremorfa, L.||Jordan, L.|
|Campbell-Savours, L.||King of West Bromwich, L.|
|Christopher, L.||Lea of Crondall, L.|
|Clark of Windermere, L.||Lipsey, L.|
|Clarke of Hampstead, L.||Lofthouse of Pontefract, L.|
|Clinton-Davis, L.||Macdonald of Tradeston, L.|
|Cohen of Pimlico, B.||Mclntosh of Haringey, L.|
|Crawley, B.||Mclntosh of Hudnall, B.|
|David, B.||MacKenzie of Culkein, L.|
|Davies of Coity, L.||Mackenzie of Framwellgate, L|
|Davies of Oldham, L. [Teller]||Mallalieu, B.|
|Dean of Thornton-le-Fylde, B.||Mason of Barnsley, L.|
|Desai, L.||Massey of Darwen, B.|
|Dixon, L.||Merlyn-Rees, L.|
|Dormand of Easington, L.||Morgan, L.|
|Dubs, L.||Nicol, B.|
|Evans of Parkside, L.||Parekh, L.|
|Evans of Temple Guiting, L.||Patel of Blackburn, L.|
|Farrington of Ribbleton, B.||Pendry.L.|
|Faulkner of Worcester, L.||Pitkeathley, B.|
|Filkin. L.||Plant of Highfield, L.|
|Fitt, L.||Prys-Davies, L.|
|Fyfe of Fairfield, L.||Ramsay of Cartvale, B.|
|Gale, B.||Randall of St. Budeaux, L.|
|Gibson of Market Rasen, B.||Rendell of Babergh, B.|
|Renwick of Clifton, L.||Temple-Morris, L.|
|Richard, L.||Thornton, B.|
|Rooker, L.||Turner of Camden, B.|
|Sawyer, L.||Walker of Doncaster, L.|
|Scotland of Asthal, B.||Warner, L.|
|Sheldon, L.||Warwick of Undercliffe, B.|
|Simon, V.||Whitaker, B.|
|Stallard, L.||Whitty, L.|
|Stoddart of Swindon, L.||Williams of Elvel, L.|
|Strabolgi, L.||Williams of Mostyn, L. (Lord President of the Council)|
|Symons of Vernham Dean, B.|
|Taylor of Blackburn, L.||Woolmer of Leeds, L.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 6.56 p.m.
§ The Deputy Speaker (Baroness Cox)
My Lords, before calling the next amendment, I have been asked to make the following announcement: in Division No. 1 this afternoon, the number of noble Lords voting "Not Content" should have been 74, not 75, as previously announced.
§ Baroness Howe of Idlicote moved Amendment No. 6:
Page 3, line 29, at end insert—
- "(g) the availability of adequate means for considering and, where necessary, redressing complaints from the public about alleged lapses from the standards referred to in paragraphs (e) and (f)"
§ The noble Baroness said: My Lords, in moving Amendment No. 6, I shall speak also to Amendment No. 27.
§ I return with the same amendments I put down in Committee because I hope that the Minister will this time be able to convince me and others who have the same concerns that those who complain about fairness, privacy, taste and decency issues to Ofcom or its content board will have their complaints dealt with and decided upon not just by able and well qualified people, which members of Ofcom and the content board are, but by people who can be seen as being, in all respects, truly independent of the broadcaster complained of. As your Lordships know, it is my contention that members of a body that hands out and regulates licences and approves the codes whereby broadcasters operate will not always be so viewed.
§ I accept that broadcast material viewed as offensive for reasons of taste and decency is more difficult. In Committee, the noble Lord, Lord Pilkington of Oxenford, referred to such issues as "relative morality", but, even with most of the disputes left to be settled directly with the broadcasters, there will be occasions on which broadcaster and citizen refuse to be reconciled. If my experience at the Broadcasting Standards Commission is anything to go by, there will be plenty of such occasions. How are they to be dealt with by Ofcom? Are they to be dealt with by Ofcom, despite the powers retained in the Bill for it to do so? How will the complainant be reassured that decisions are made objectively?
§ With fairness and privacy, the principle of having complaints scrutinised and decided by lay people, such as the members of the Broadcasting Standards 71 Commission, who are independent of broadcasters and regulators, without the cost of going to court is even more important. As the noble Lord, Lord Pilkington of Oxenford, said in Committee, enormous distress has been caused to people whose privacy has been subject to unwarranted infringement and to people whom the broadcast media have treated unfairly. People have suffered not only distress but damage to their business or other form of livelihood. By no means will everyone concerned have the resources to take the matters directly to court.
§ As I said, the Minister said in Committee that Ofcom would have the same powers as its BSC predecessor to adjudicate such cases. He rightly emphasised that Broadcasting Standards Commission research showed that, in most cases, complainants were more concerned with safeguarding and restoring their reputation than with receiving financial compensation. But what is still not clear is whether the citizen has any assurance that he can invoke these powers and that they will be used on his behalf. The Minister, the noble Lord, Lord Davies of Oldham, in Committee on 29th April at col. 638 of Hansard, threw out a hint that without fettering the discretion of Ofcom, separate arrangements for hearing these complaints could be made. Could he make it plain that this is still a possible intention? It is only the guarantee that arm's length decisions are made that will eliminate charges of lack of independence.
§ One solution might be for Ofcom or the content hoard to set up themselves a completely independent but knowledgeable committee, the equivalent of three wise men and women. The responsibility could then be delegated to them. There is one final point on this issue: to whom—if anyone—would a dissatisfied citizen complainer be able to appeal after a ruling? A suggestion was made recently that for appeals against the dismissal of complaints by the Press Complaints Commission, an independent ombudsman should be established. It would be a strange outcome, if as a result of two parallel changes made this year, the right of the citizen to complain effectively about the written word was being enhanced, but his right to complain about the broadcast word was being diminished or taken away. I beg to move.
§ 7.00 p.m.
§ The Lord Bishop of Manchester
My Lords, I should like to add to the congratulations from these Benches to the noble Lord, Lord McIntosh of Haringey. His responses to the Bishops are sometimes robust, always courteous and occasionally supportive. Whether or not the Government support and accept the amendments of the noble Baroness, I hope that they will acknowledge that they highlight something of great importance. There is a need for Ofcom to take seriously complaints about alleged lapses from the standards to which these amendments refer. I have had a pile of letters about this issue from members of the public, particularly on the harm and offence issues. Many people feel that it is perhaps not even worth complaining because their complaints will not be taken seriously.
72 I do believe that the noble Baroness is expressing concerns that ought not to be put aside lightly. Whether or not she presses her amendment, I urge the Government to make clear that they will encourage Ofcom to provide adequate means for the redressing of such complaints so that the Government are seen to take this issue seriously.
§ Lord McNally
My Lords, in Committee my noble friend Lord Falkland with his usual absolute honesty, confessed that he and I had been discussing the Liberal Democrat attitude and had come to a conclusion. This transparent honesty caused the noble Lord, Lord Davies of Oldham, to tease us unmercifully about the nature of Liberal Democrat policy-making. I can say that between Committee and Report, I have given full consideration to this. I have also listened carefully to what the noble Baroness, Lady Howe, said. I think that she has posed a question that needs now to be answered by the Government. If it is not, it will come back and bite them.
Public opinion is very concerned about how legitimate complaints will be dealt with. As regards the existing bodies they know the avenues for redress. They want to be sure that those avenues remain open when this Bill becomes an Act. Therefore we need clear assurances from the Minister and we would certainly support the noble Baroness in these amendments.
§ Lord Davies of Oldham
My Lords, we did indeed discuss these amendments in Committee. I recall that on that occasion the noble Lord, Lord McNally, had to be more dextrous than he normally is. He still made a cogent speech on that occasion as he did on this. I recognise the strength of the points that both he and the right reverend Prelate have put forward and the strength of the case put forward by the noble Baroness. We regard the proper treatment of complaints from the public about unfairness in broadcasting or the unwarranted infringement of privacy as a very important matter.
That task, so effectively undertaken by the Broadcasting Standards Commission and before it by the Broadcasting Complaints Commission, is being handed lock, stock and barrel to Ofcom. We believe that it is best placed to discharge that responsibility and that there is no longer a compelling case for retaining an entirely separate body. Ofcom must—and I believe will—be able to demonstrate sufficient independence from broadcasters in this matter. I recognise the strength of the case made that any such work needs to be done by those totally independent from broadcasters.
Amendment No. 27 appears designed to ensure that the functions of the content board include, to the extent determined by Ofcom. functions in relation to the consideration of complaints about breaches of fairness standards and privacy. In the Bill as drafted, these functions fall within the list of functions in Clause 12 which Ofcom could give to the content board. But we do not believe that we should limit the discretion of Ofcom as to how or by whom that function is to be carried out. Providing they meet the 73 principles and follow the high standards of past practice, they should have the freedom to reach judgments on how this function should be carried out.
The danger is that if we were over-prescriptive at this stage, we might work against the very proper degree of independence which was the major point in the argument of the noble Baroness. As I have explained before, it may be that a separate committee might take responsibility for this function. However, if we are to have a regulator that can adapt to changing circumstances, we must not be too specific about its internal structure. As in Committee, major points have been made as regards the necessity for the independence of Ofcom. It is a hugely significant role, but it would not be right to be too specific about which committee or how Ofcom would construct its committee to carry out this particular function.
The issue of appeals came up about privacy decisions. Like the Broadcasting Standards Commission, Ofcom will adjudicate on complaints of privacy. There is no statutory basis for appeal, but Ofcom would be expected to set up a two-stage process encompassing the concept of appeal. It is also important for Ofcom to demonstrate the independence of the adjudicators on privacy. It might want to set up an entirely separate committee and perhaps bring in people from outside. But we are arguing to retain some flexibility while recognising that the principles embraced in these amendments are subscribed to by Ofcom. On that basis, I ask the noble Baroness to consider withdrawing her amendment.
§ Baroness Howe of Idlicote
My Lords, I thank the Minister for his reply and I am grateful for the support given by the right reverend Prelate the Bishop of Manchester and the noble Lord, Lord McNally. The Minister gave more grounds for optimism. There would be the independence which concerns not just me but a number of other people when making decisions about complaints, whether on taste and decency issues or, as we all agree, far more important because of the real damage to individuals, the fairness and privacy issue. I am happy to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Buscombe moved Amendment No. 7:
Page 3, line 30, after "OFCOM" insert "shall take particular account of the importance of applying, wherever possible, the principles of good regulation, namely transparency, accountability, proportionality, consistency and targeting only in cases in which action is needed and, subject thereto,"
§ The noble Baroness said: My Lords, I shall speak to Amendments Nos. 7 and 8 and I shall not move Amendments Nos. 13 and 15.
§ We return to a subject debated in Committee—the principles of good regulation. There was a considerable measure of agreement on all sides of your Lordships' House. We all accept, and are in favour of, the principles of good regulation.
§ On this side of the House, we beieve that the principles of good regulation should be overriding principles rather than merely a factor to which Ofcom must have regard. I am particularly concerned about 74 the expression "must have regard". It is an expression familiar to lawyers and has been considered by one of the judges of the Queen's Bench Division in an application for judicial review against the Police Complaints Board. For those who have access to law reports, this case is reported in the second volume of the All England Law Reports for 1983 on page 353.
§ In that case, Mr Justice McNeill held that a requirement that the Police Complaints Board had to have regard to guidance given by the Secretary of State meant no more than that the board was required to take the guidance into account. It did not mean that it was obliged to comply with the guidance. In this context, it is worrying with regard to principles of good regulation because we do not consider that it is acceptable that Ofcom merely has to take the principles of better regulation into account. It is not obliged to comply with those principles and is therefore free to depart from them. To all intents and purposes, Ofcom should be obliged to comply with those principles.
§ The principles should not merely be included as a factor or objective to be taken into account or to which regard must be had in subsection (3). The principles are overriding principles which must be observed in taking into account or having regard to the factors and objectives in subsection (3). They are on a very different level from those mere factors or objectives in subsection (3) and various factors or objectives may or may not be applicable in one case or another. In contrast, the principles of good regulation must apply in every case. It is important—indeed essential—that Ofcom must take particular account of these principles.
§ In Committee, the Minister referred to the distinction between subsection (2), which concerns matters that Ofcom can control, and subsection (3) which, on the whole, concerns matters it can only influence. That begs the question: in what circumstances would the principles not apply? Surely, if a regulator can ignore principles of better regulation, the Bill should specify them—and specify when. I am grateful to the Minister for the opportunity he gave between Committee and Report stages to discuss this matter. I hope that he has taken this issue on board. Our amendment meets the Minister's concerns in Committee. I beg to move.
§ 7.15 p.m.
§ Lord McIntosh of Haringey
My Lords, again, perhaps it would be helpful for me to intervene, thus curtailing further debate. We recognise the relevance of the principles of better regulation, particularly transparency and accountability. We recognise that there are still concerns on this issue. The noble Baroness, Lady Buscombe, has put forward an eloquent case for us to consider whether there is any way in which we can strengthen the references to the principles of good regulation. We accept that as a regulator these principles will impact directly on 75 Ofcom and should be central to how it will operate. We shall take this away for consideration, with the aim of producing appropriate amendments at Third Reading.
§ Lord Avebury
My Lords, I thank the Minister for his comments. In any further discussions which he may have in consequence of the promise that he made in Committee to look into this matter and determine whether a better formulation can be found—repeated again now—I should be most grateful if he would involve me in the discussions.
§ Baroness Buscombe
My Lords, I thank the Minister for his very encouraging response. I hoped that our amendment could be accepted. I believe that it meets all the criteria and concerns raised in Committee. I am sorry that we have to wait with bated breath until Third Reading. I hope that at that stage there will be a government amendment or amendments which we can support. For now, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 8 not moved.]
§ Baroness Howe of Idlicote moved Amendment No. 9:
Page 3, line 49, at end insert "consistently with the proper protection of other fundamental rights"
§ The noble Baroness said: My Lords, Amendment No. 9 concerns the legal balance between two fundamental human rights—namely, the right to privacy and the right to speak freely. Both those rights are spelt out in the European Convention on Human Rights, respectively in Articles 8 and 10. I am sure that I need not remind your Lordships that the ECHR was drafted by UK lawyers some 50 years ago and has, since the Human Rights Act 1998, been part of our domestic law.
§ Those two rights were then perceived, as they are today, as being of equal value; that has recently clearly been reaffirmed in more than one way. I cite first Council of Europe Resolution 1165 of 1998. Paragraph 11 states:
"The assembly reaffirms the importance of every person's right to privacy and of the right to freedom of expression, as fundamental to a democratic society. Those rights are neither absolute nor in any hierarchical order, since they are of equal value".
As drafted, this clause does not properly reflect that balance. I know that this is a point of law—I am no lawyer—but that view has been very clearly argued in an article in Legal Week, dated 12th December, by a partner in the well-known law firm, Peter Carter—Ruck and Partners—namely, Mark Thomson. He makes the point—so do I—that the reference in subsection (3)(g) to acting in a manner which,
best guarantees an appropriate level of freedom of expression".
implies that this right has some kind of priority over other fundamental rights. I would argue that this is incorrect both legally and practically and is contrary to the obligation of the United Kingdom under the European Convention on Human Rights.
§ Freedom of expression is specifically protected by the word "unwarranted" in subsection (3)(2)(f)(ii). An infringement of privacy made in the proper exercise of freedom of expression would obviously be "warranted". For example, where privacy is invaded in order to expose crime or wrongdoing, the invasion could not be described as "unwarranted". Subsection (3)(g) appears to go wrongly in the opposite direction, quite possibly in three respects, by the use of three almost superlative words—"the need to secure", "the manner that best", "guarantees", and so on. Put simply, the attempt to "guarantee" some kind of priority for freedom of speech manifestly goes too far.
§ I close by mentioning two cases decided by the courts, each of which started during my chairmanship of the Broadcasting Standards Commission: the Dixon case and most notably the case of Peck v United Kingdom. The Peck case ended up in the Strasbourg court, which held that the UK was in breach of its Article 13 obligations to provide Mr Peck with an effective remedy in order to provide sufficient respect for his privacy rights.
§ The Master of the Rolls, the noble and learned Lord, Lord Phillips of Worth Matravers, has subsequently commented that that case suggests that,
"either the Courts or the legislators are going to have to establish a tort of invasion of privacy if this country is to comply with the Convention's obligations".
§ If this clause is allowed to stand unamended, it risks being struck down as being out of line with our convention obligations. My amendment is designed to prevent that happening and to restore the balance that is required not only by the European convention, but also by any reasonable sense of balanced justice.
§ There is perhaps one other possible way to deal with this issue: that is, omit Clause 3(3)(g) altogether. I beg to move.
§ Lord McNally
My Lords, in Committee, the noble Lord, Lord Lipsey, referred to a complaint that had been made against a particular programme on which the Broadcasting Standards Council produced a censorious verdict and about which the programme makers had pretty well rejected the council's adjudication. At that point the noble Lord said that in his view what was needed was a cultural change in the relationship between the broadcasters and any regulators. That is probably true. I have often referred to what I think is the wholly healthy relationship between the advertising industry and the Advertising Standards Authority.
The noble Baroness, Lady Howe, does great service to the House and to the Bill by moving her amendments today. Amendment No. 9 again draws attention to areas where the broadcasters may feel desperately strongly about the right to freedom of speech. It is in the public mind a real concern and fear 77 that, if the balance is too wrong between the two rights to which the noble Baroness has referred, they will become the victims of that freedom of speech with little power of redress. Therefore, her points deserve firm consideration by the Government.
§ Lord Evans of Temple Guiting
My Lords, the Government are fully committed to the protection of fundamental rights as set out in the Human Rights Act. Since the Human Rights Act applies to the powers of both Ministers and Ofcom as they will be conferred on them by the Bill, there is no need to repeat those obligations on the face of the Bill.
The protection of privacy, human dignity and other fundamental rights is guaranteed by the Human Rights Act. It is true that freedom of expression is also guaranteed by that Act. Spelling out that right specifically on the face of the Bill reflects our commitment in the communications White Paper that the regulator's central objectives should reflect the balance between freedom of expression and the constraints on freedom of expression inherent in the regulation of broadcast content.
Clause 3(2) requires Ofcom to secure the application of standards that provide adequate protection to members of the public from the inclusion of offensive and harmful material in broadcast services and protection from unfair treatment and unwarranted infringements of privacy. In performing those duties, which, entirely legitimately and consistently with human rights legislation, require the interference with the right to freedom of expression, Ofcom is also required by Clause 3(3)(g), so far as is relevant, to have regard to doing so in the manner that best guarantees an appropriate level of freedom of expression.
We believe that this strikes the right balance. It in no way places freedom of expression above other rights, nor does it have any impact on the interpretation of the Human Rights Act as it applies to Ofcom, but it signals to Ofcom that the way in which it approaches its task in Clause 3(2)(e) and (f) should be the way that best guarantees the appropriate level of freedom of expression.
The noble Baroness, Lady Howe, mentioned the European Court decision in the Peck case. That case has been overtaken by events. The postion has now been rectified by the incorporation of the Human Rights Act into our domestic law. Mr Peck would now have a claim under the Human Rights Act against the local authority in question that would offer him a route to an adequate remedy where none was available before. With those reassurances, I hope that the noble Baroness will withdraw her amendment.
§ Baroness Howe of Idlicote
My Lords, I thank the Minister for his reply and the noble Lord, Lord McNally, for his support for the case I put forward. I am more than a little disappointed with the reply. The case I made underlined that the clause as it stands can be interpreted in a way that gives greater freedom to the broadcasters' approach than to 78 individual complainants. I shall consider what the next step is and I may return to the issue. For the moment, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Buscombe moved Amendment No. 10:
Page 4, line 9, after "Kingdom" insert "of' people of different ethnic origins and communities and gender"
§ The noble Baroness said: My Lords, in moving Amendment No. 10, I shall speak also to Amendment No. 11, which is proposed by the Government.
§ Amendment No. 10 was proposed to me by Women in Film and Television. While I strongly support their thinking and their overall case, when I first received it I was initially reluctant to table the amendment on the grounds that I believe strongly that the duties of Ofcom should extend to everyone on an equal and inclusive basis, and that no particular group or community should be singled out.
§ Your Lordships may say that people with disabilities, the elderly and those on low incomes are, for example, particular groups. However, in the context of Clause 3 that is not so since people with disabilities, those on low incomes and the elderly are present in all communities and live in all parts of the United Kingdom.
§ At Second Reading, the noble Lord, Lord Currie, said that some will find it tempting to shift metaphor, to see Ofcom as a Christmas tree on which to hang one's favourite decoration. He went on to plead:
"But let us ensure that those decorations enhance Ofeom and do not weigh its branches down".—[Official Report, 25/3/03; col. 683.]
§ I then saw the Government's Amendment No. 11. It responds to an amendment spoken to in Committee by the noble Baroness, Lady Howe. It clearly singles out people from different ethnic communities. In essence, it makes a special case for people from different ethnic communities. Perhaps that does not sound politically correct. However, I believe it creates a situation of special pleading. It addresses a particular group that does not necessarily exist in all communities, in which case, given that the Government have chosen to promote the interests of different ethnic communities, they must also have regard for other particular groups and communities. I very much contend that that includes the interest of women. Indeed, their interests should take priority, since women are in all communities.
§ Many women, myself included, have become increasingly concerned that the powers that be and people in general feel that women now face no problems and that they have a level playing field with men, both as audiences and in broadcasting. They feel that the effort should therefore be put into securing equal opportunities for people and communities of ethnic origins. Cultural diversity is increasingly taken to mean ethnic diversity and does not include gender diversity, which seems to have dropped off the agenda.
§ It is time to reintroduce gender diversity into cultural diversity discussions. A purely self-regulatory approach has not been effective. There are many 79 categories in which women feel there is not a level playing field; for example, women as programme producers and in the boardroom. They feel that there is a gender imbalance in technical areas; in directing and screen-writing; in training subsidies and working conditions.
§ All of these negative elements lead to a decline in standards. As budgets and schedules are squeezed, younger, untrained staff and freelancers are employed in place of more expensive but experienced staff. Those who have skills find themselves stretched because they not only have to work longer hours but spend more of their time informally training unskilled staff and/or correcting errors that have been made. So, while saving money in the short term, a strategy of employing untrained staff has a knock-on effect and results in a less skilled workforce overall, inevitably affecting standards in the long term.
§ There is also the question of long-term exhaustion of the workforce and unequal social representation. Long and irregular working hours combined with inadequate health and safety provisions mean that women—and men for that matter—who are the primary carers for children and other dependents are more likely to leave the industry. This impacts not only on the representation of parents and carers; it also impacts on the representation of certain minorities who are more likely to have a higher number of dependents living at home.
§ In moving the amendment, particularly in the light of government Amendment No. 11, I seek a level playing field in terms of Ofcom's need to have regard to the different interests of different people, including women. I beg to move.
§ 7.30 p.m.
§ Baroness Howe of Idlicote
My Lords, I support the amendment. When I first went to the Broadcasting Standards Commission, ahead of my arrival it had commissioned detailed research into the standing of women, both in the parts they played and in the management structures. It was pretty appalling. For example, there were very few news readers—if any—because that was not regarded by some in the broadcasting industry as a suitable role for women. There have been many improvements, both within the broadcasting workforce and on the management side, hut, as with other areas, the nearer you get to the top the more the gender imbalance becomes obvious.
Every year the ITC produced an annual report in which every commercial broadcasting company was required to state how many women it had in management and what it was doing about the clear imbalance. The power to do that has been brought forward into the new Ofcom regulations and therefore Ofcom is capable of following through with that procedure. However, I should point out that it was the most ineffective method of discovering what was happening. Completely inadequate statements were given about the companies not having any women but—tough—they were looking for them. It was not a very satisfactory situation.
80 I shall not delay the House longer. I am grateful to the Minister for introducing the government amendment on ethnic diversity. It enabled me, on behalf of others, to withdraw my amendment on ethnic diversity. The noble Baroness, Lady Buscombe, has added the issue of gender diversity and I support her in that regard.
§ Lord Dubs
My Lords, I am grateful that the Government have conceded the arguments in Committee and have brought forward Amendment No. 11. It is a sign of the times, with DCMS over DTI, but the Government speak with one voice and I should not dwell on that.
As regards the point about gender, which seems to me to have a certain force, I look forward to hearing what the Minister has to say about it.
§ Lord McNally
My Lords, like the noble Baroness, Lady Buscombe, we were approached by women in film and television, who provided an effective brief containing most of the telling points made by the noble Baroness. They note that there are no women in the main boardrooms of either Carlton or Granada, nor on Channel 4, which surprises me.
Amendment No. 10 covers better the thrust of government Amendment No. 11 in regard to the range of responsibilities. In making the concession on ethnicity, the Government have destroyed any argument for rejecting Amendment No. 10. I am sure that the noble Lord, Lord Currie, sits with sinking heart as he sees more glittering baubles being hung on his tree. But ethnic origins, communities and gender form a nice little trio. By hanging one of those baubles on the tree, the Government have conceded that the amendment would be no great breach of principle. I suggest that the best thing the Government and the Minister can do is withdraw Amendment No. 11 and accept Amendment No. 10, which I am sure he is about to do.
§ Baroness Whitaker
My Lords, I was poised to congratulate my noble friend on Amendment No. 11 until I heard the exposition of the noble Baroness, Lady Buscombe, on her Amendment No. 10, which is of course much more to the point. I support it.
§ Lord Davies of Oldham
My Lords, not surprisingly, I shall do exactly the opposite of what the noble Lord, Lord McNally, recommended—namely, I shall sustain the argument for Amendment No. 11 as best I can while, at the same time, hoping to persuade the noble Baroness, Lady Buscombe, to withdraw her amendment, with which I have the greatest sympathy.
We all recognise that the case put forward for women in film and television raised some pertinent points about the continuing inequity between men and women in a range of controlling aspects of our society, increasingly in significant television companies. Noble Lords are absolutely right to be concerned about the number of women on the top boards of media plcs—in one or two cases there are none, as has been amply demonstrated—and they are right to lament the fact 81 that low numbers of girls at school choose to train to become camera operators, sound engineers and special effects experts.
I was quite shocked a few years ago when I went to an FE college which specialised in training in this area. For some ridiculous reason the word "engineering" still has the most off-putting dimensions in our society. Far too few people become engineers in any case— although it is an absolutely wonderful background for anyone in any walk of life—and girls are put off the concept even though the least mucky form of engineering one can think of relates to many areas of the media. So I have the greatest sympathy with the case that has been put. The problem is that I do not think that the case has been made that Ofcom has a function that will impact on any of these areas and where its duties would apply in carrying out its functions. These issues should be, and are being, addressed by the industry and by the work that the Government are doing across the economy.
We all recognise why women play a less significant part in so many roles. In the past, there has been a terrible cost to careers created by childcare and limited support for women when they needed it to sustain their career as best they could. Furthermore, the general perception in society was that women's contributions were not valued as highly as those of men. We are in the business of changing that perception. I do not want to bore the House at this late stage, but there is a long list of very significant contributions that the Government have made over the past few years to try and reduce the gender gap. The measures that we are taking and our continued work to bring about equality for women in all workplaces will deliver real benefits in the area to which the group of speakers referred and which the noble Baroness very accurately reflected in her speech.
I am grateful to the noble Baroness for tabling the amendment, which has enabled us to have this extremely useful debate. It is not a question of any clash of principle but of the way in which we can best effect the necessary equality and equity for women in our society in the workplace.
I want to speak to Amendment No. 11, which I shall seek to move in due course. It is our response to the very similar amendment which the noble Baroness, Lady Howe, tabled in Committee. We said that we would take it away and consider it, and this is our response. I emphasise the valuable role that the noble Baroness has been playing in our deliberations. This is one obvious point in which she has had significant success. We believe that we should give Ofcom a duty to have regard to the diversity of the UK in carrying out its functions. However, as drafted, the Bill covers geographical diversity, providing that Ofcom must have regard to,the different interests of persons in the different parts of the United Kingdom and of those living in rural and in urban areas".Amendment No. 11 will close the gap by including the interests of the different ethnic communities in the list of matters to which Ofcom must have regard when carrying out its functions.
82 We regard the case as having been made strongly during the Committee stage. We are sympathetic to it; we said we would take the amendment away and produce our own in response. That is what Amendment No. 11 represents.
§ Baroness Buscombe
My Lords, before the Minister sits down, could I seek clarification with regard to the proposed wording of the clause? Does the Minister intend Clause 3(3)(1) to read: "the different interests of persons in the different parts of the United Kingdom of people of different ethnic origins and communities living in rural and in urban areas"? Does he intend the provision not to include people who are not of a particular ethnic minority or from a different ethnic origin? Or would the amended clause include people who are native to this country, if I can put it that way, as well as those of different ethnic origin?
§ Lord Davies of Oldham
My Lords, we are trying to bring in a specific reference to ethnic minorities. Obviously Ofcom has duties to the country as a whole, but we are seeking to bring in ethnic communities as a particular group for consideration. The reason we could not accept the same framework if the burden of the noble Baroness's contribution at this stage was why we could not embrace the position with regard to women is obvious enough. We can specify issues with regard to minorities but, as we all recognise. women form the majority of the population. That is why we are arguing the case—
§ 7.45 p.m.
§ Baroness Buscombe
My Lords, I am sorry to interrupt the Minister again, but I am not addressing the question of gender in Amendment No. 11. I am simply concerned that, as drafted, the clause refers to,the different interests of persons in the different parts of the United Kingdom and of those living in rural and in urban areas".If Amendment No. 11 is accepted so that Ofcom has regard to the different interests of persons in the different parts of the United Kingdom, the clause will only cover people of different ethnic origin and communities, and not those who may regard themselves as native to this country. In that case, priority will be given to those of different ethnic origin.
§ Lord Davies of Oldham
My Lords, when we talk about ethnic communities, we recognise that the whole of the population fits into one ethnic group or another. The particular reason for being specific about '"ethnic" is obvious: we are seeking to meet the point of those who are most disadvantaged.
I think I have now understood the noble Baroness's point. The amendment would not somehow exclude the white majority population in a particular area or those who were born here, or whatever the noble Baroness's definition is. We are identifying ethnic minorities as having particular needs, and having regard to that. In fact, the clause refers to all communities.
§ Baroness Whitaker
My Lords, I am very sorry to prolong this, but I am not quite sure my noble friend 83 is right. One can come from a particular ethnic origin or a combination of ethnic origins and be of mixed heritage, but one may not decide to affiliate—which is a matter of choice—to a particular ethnic community. In fact, the UK is distinguished by having lots of people from all sorts of ethnic origins who yet form one English nation.
§ Lord Davies of Oldham
My Lords, let me seek to make it clear; I apologise if I have not yet done so. The amendment does not refer to "ethnic origins" but "ethnic communities". Everyone belongs to some ethnic community. So everybody is included, but we have a framework in which Ofcom can be specific to discrete ethnic communities.
§ Baroness Buscombe
My Lords, I will not delay the House any longer on this point. To my mind, the amendment works only if the Minister accepts that we are all ethnic. That is the clarification that I am seeking; I am grateful to the Minister for providing it. That is great.
I am sorry that the noble Lord has felt disinclined to accept our amendment. I am very grateful to all those who have supported it—the noble Baroness, Lady Howe, the noble Lord, Lord McNally, and the noble Baroness, Lady Whitaker.
I believe this is an important subject. In recent years in particular, women have been dropped off the agenda when it comes to diversity. There is not a level playing field out there. I feel strongly that, with Amendment No. 11, Ofcom is now being asked to put an extra bauble on that Christmas tree, and socially to engineer in favour of ethnic communities but not in favour of women. I think that is extremely regrettable. I remind the noble Lord, Lord Davies of Oldham, that he said in Committee that Amendment No. 11 could, in effect, pave the way for a degree of potentially rather heavy-handed intervention in the form of box ticking and quota setting. I hope that that is not the case. Given the Government's refusal to accept gender as an important add-on to this amendment, women are once more pushed down the agenda in terms of a so-called level playing field, and that is regrettable.
I shall think hard about the Minister's comments and may well return to the issue on Third Reading, particularly given the support that I have had in the House today. For the moment, however, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Davies of Oldham moved Amendment No. 11:
Page 4, line 9, leave out "and of those" and insert ", of the different ethnic communities within the United Kingdom and of persons"
§ On Question, amendment agreed to.
§ Lord Evans of Temple Guiting
My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again not before 8.50 p.m.
84 Moved accordingly, and, on Question, Motion agreed to.