§ 4.30 p.m.
§ The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(Baroness Blackstone.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Lockwood) in the Chair.]
§ Clause 3 [General duties of OFCOM]:
§ [Amendment No. 15 not moved.]
Lord Dixon-Smith moved Amendment No. 16:
Page 3, line 29, at end insert—
( ) In subsection (2)(c) to (f), "television and radio services" includes all television and radio services transmitted directly to electronic communications devices via cable, satellite or dial-up modem.
§ The noble Lord said: I apologise on behalf of my noble friend Lord Northesk. Unfortunately, his transport arrangements were made before the Committee began its very detailed consideration of amendments. He had expected to move these amendments himself on the first day of Committee. He has rather rashly asked if I would act as substitute for him.
§ It is worth repeating that my noble friend's view is that, although the amendment complements his Amendment No. 12, which was debated on the first day of Committee, it is distinct and merits separate debate. It is a much more general approach to the problem. Although last week's debate strayed into the area of content regulation—for example, the noble Lord, Lord McNally, questioned the feasibility of 9 year-olds accessing Dutch pornographic channels on their 3G telephones—it is questionable whether that provision would bite on the problem, except in so far as such content issues relate to "unwarranted infringements of privacy". This amendment, were it to find favour with the Committee, could have a direct impact. It is the "taste and decency" arm of my noble friend's amendments.
My noble friend's main concern is whether "electronic communications network services" of media enterprises, particularly their web-based activities, fall within the scope of the Bill. We know the official answer to that. As the Minister made clear last week, they do not. The fact that they do not is a deliberate and conscious decision on the part of the Government, despite the Minister's strenuous acknowledgement that it is a problem that must be
dealt with. As the noble Lord, Lord Avebury, put it, in the context of the Bill, that represents "a philosophical inconsistency" that generates,
a hard position [for the Government] to sustain".—[Official Report, 29/4/03; col. 644.]
If, as the Minister argued, it is right and proper for Ofcom to have oversight of the radio, television and print activities of media enterprises, it follows, therefore, that Ofcom should have oversight of their web-based activities also. As the Minister said,
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".—[Official Report, 29/4/03; col. 646.]
§ In principle, we are in agreement.
§ All of us agree that the global nature of the Internet—it is that platform that creates the difficulty—makes it desirable that its legislative framework should flow from international agreement. That is the background to the Government's position. But my noble friend will argue that that should not prevent our making appropriate, anticipatory but not pre-emptive provision in the Bill for any forthcoming directives or ensuring that the regulatory intentions of the Bill are construed in a comprehensive and seamless way.
§ There my noble friend parts company with the Government's position. The Minister appears to imply that it would be appropriate for Ofcom to have oversight of the areas represented in the amendment, but only when the final text of the relevant directives have been enacted by means of' separate regulations under the European Communities Act 1972. It is a case of, "Yes, you are right, but not right now and not in this way".
§ It is my noble friend's conviction that that approach will have the unfortunate effect of creating an unnecessary hiatus, both in terms of time and legislative provision, which will serve only to heap even more confusion on an already difficult situation. That leaves aside the conviction of many, including my noble friend, that the current texts of the relevant directives are, in any event, seriously flawed. To echo my noble friend Lord Brooke, it is a case of passing problems by because they are too difficult.
§ The way to resolve the "philosophical inconsistency" to which the noble Lord, Lord Avebury, refers, and to ensure that Ofcom can operate seamlessly across all relevant platforms is to give it some measure of responsibility for the activities carried out by media enterprises via electronic communications networks.
§ The amendment is fairly anodyne. Quite deliberately, my noble friend seeks to obviate the risk of Ofcom being drawn into areas beyond its remit. That is why it is linked back to the provisions of subsection (2)(c) to (f). It is conceivable, too, that the drafting may be less than perfect—that is not unusual in Back-Bench amendments—by perhaps being a little less technologically neutral than would be desirable, possibly when measured against the Government's 974 very welcome intention not to regulate the Internet. But that is a matter of understanding and perception as much as anything else.
§ The amendment's sole purpose is to give Ofcom the same oversight of the activities of media enterprises on the Net as it is already committed to in respect of television and radio in the normal broadcasting format. There is no attempt to draw the regulator into any of the wider issues of the Internet. What really matters—and it matters a great deal—is a fundamental point of principle to which we think the Government ought to attend. I beg to move.
§ Lord Northbrook
I support my noble friend's amendment. Following in his footsteps and in those of my noble friends Lord Peyton of Yeovil and Lord Brooke of Sutton Mandeville and the noble Lord, Lord Thomson of Monifieth, I apologise for being unable to participate in the Second Reading debate.
I declare an interest as an amateur "fluffy"—in the parlance used by the noble Lord, Lord McIntosh of Haringey, at Second Reading—having recently become chairman of a fledgling independent film production company. I definitely consider myself to be an amateur "techie". As a general observation on the Committee stage so far, I must say that it is remarkable how the first day demonstrated that different sides of the House agreed on many of the amendments made.
Amendment No. 16 continues with the theme included in Amendment No. 12 and addresses the issue by a different route. It would require Ofcom to secure, in carrying out its functions, the same availability, plurality and protection of standards for satellite, cable and internet broadcasts. I know that the noble Lord, Lord McIntosh of Haringey, said, in reply to my noble friend's amendment, Amendment No. 12, and in reply to Amendment No. 10. moved by my noble friend Lady Buscombe, that there was a,framework of European directives that will govern regulation of communication networks and services".—[Official Report, 29/4/03; col. 631.]The noble Lord stated:we intend to implement the directive in the UK by means of separate regulations under the European Communities Act 1972".However, the noble Lord admitted, in reply to my noble friend Lord Northesk, that,We started consultation on 2701 March".It seems that the whole European process could take a long time. The Minister also admitted, when referring to the consultation:we expect a large response".—[Official Report, 29/4/01 col. 647.]Would it not, therefore, be better to have it all in the Bill, to ensure that there is a level playing field and to provide the consumer with protection for a period of up to two years or more? Why should those forms of communication be outside Ofcom's remit, particularly when they can be received in the UK and often repeat what is broadcast by television and radio services?
§ Baroness Howe of Idlicote
I support the amendment. There was an earlier amendment, to which I spoke, raising concerns about the Internet and 975 other forms of electronic communication device. We heard earlier today about spam and various other forms of unpleasant e-mail and faxes that people receive. We have heard that the European directives in the making will be the means by which such things are dealt with. However, like the previous speaker, I am worried that it will take so long. In the mean time, Ofcom will be up and going.
Increasingly, it looks to me—and, perhaps, to other noble Lords—that we will need not just a European but an international directive to cope with some of the problems that we have seen already. Getting that would take even longer. At least with an overview, without total interference with the Internet and so on, Ofcom could have the duty and ability in the long term, if it became necessary—we are told that the Bill is flexible and can adapt to any circumstances—to make some codes of conduct. It is in that spirit that we ought to think seriously about the amendment and support it.
§ 4.45 p.m.
§ Lord Avebury
The noble Lord, Lord Dixon-Smith, explained the amendment well and clearly. If he continues in that vein, we shall not miss the noble Earl, Lord Northesk, as we will get the benefit of his advice indirectly, via the noble Lord.
The amendment would have a wider effect than the limited purposes that the noble Lord described. As I read it, the amendment would oblige Ofcom to secure that, whatever radio and TV services are provided, exactly the same variety should be on offer through the other media. An increasing number of people have broadband in their home, and, on the move, they will connect to the web through wireless LAN hotspots in pubs, airports, hotels, coffee bars and, now, in the whole of Soho, thanks to a bold scheme initiated by Councillor Wilder, of whom we have heard in another context, as the noble Baroness will realise. He has launched a plan for blanket coverage of central Soho, so that parking meter attendants, cleaners, noise inspectors and other officials will be able to link up to the council's IT system from anywhere in Soho. Among other benefits, the council will be able remotely to monitor noise levels around the clock with less expensive equipment and fewer staff.
The use of wireless LAN has been given a huge boost by the advent of integrated 802.11b in the Centrino processor, launched by Intel at the beginning of this year. That means that users who buy Centrino-powered laptops and ultimately, I suppose, an AMD equivalent will be able to connect to the Internet from any one of thousands of hotspots without the use of add-on cards. It would be possible for the whole of the Palace of Westminster to be enabled for wireless LAN, so that Members and staff with new laptops could log on wirelessly from anywhere on the premises.
Users of PCs and laptops will expect to be able to access TV and radio via their PCs or laptops, as they can to a certain extent already. With a broadband connection, one can get quite good video reception on a PC, and one can watch Colin Powell giving a press 976 conference in Beirut or Damascus or listen to the wonderful programmes of the BBC World Service without having to tune in at the exact time of the broadcasts. In fact, one can do the same on the Internet with public service broadcasts from other countries, including US PBS, Canadian or Australian broadcasting or Spanish language webcasts live and on demand via Spanish TV, for instance. The breadth and variety of the material accessible via the Internet is already superior to what one gets on conventional TV or radio, and the disparity is likely to become greater as the bandwidth available to the public at large increases. All major broadcasters will have to have a presence on the net, and they would do so without the intervention of Ofcom, which, in any case, deals only with UK broadcasters, a small fraction of those accessible via computers.
I suggest that, although, as the noble Lord, Lord Dixon-Smith, said, the amendment has some logic—in so far as, if the clause endows Ofcom with powers over radio and TV services, the powers should extend to all means of delivery of those services—it is unnecessary to extend them to the dial-up modem. That would conflict with the principle that the regulator does not have any say on what is provided on the web. Content is dealt with in paragraphs (e) and (f), and what is provided on cable or satellite is presumably already covered in the same way as for terrestrial radio and TV, and the variety is taken care of by the "must carry" provisions that we shall discuss later in Committee.
§ Baroness Wilcox
I support the amendment tabled by my noble friend Lord Northesk and moved so ably by my noble friend Lord Dixon-Smith.
§ Lord McIntosh of Haringey
I am slightly surprised by that last intervention. I had thought that it was a typical Back-Bench amendment.
The regulatory regime that the Bill introduces gives Ofcom regulatory powers over licensed television and radio content services provided by cable and satellite delivery for reception by the general public. The noble Lord, Lord Avebury, is right. The Bill does not bring elements of information society services delivered by the Internet, such as webcast, into the regulatory regime. That would mean an enormous increase in regulation. If the Conservative Party wants to support that officially, it should justify that in other places.
The amendment would also mean that 3G mobile phone services, delivered by satellite, would fall within the scope of Ofcom regulation. That is not something that the Government want. Of all new services, mobile telephones are the most individualistic. The industry recognises the problems which can exist for minors, who are enthusiastic users of mobile telephone technology, and the industry is devising a code of practice and other protective measures, which we have talked about, or restrictions on sales to adults.
Contrary to what the noble Lord, Lord Dixon-Smith, said, legislative provision would not be needed to extend regulation. The Secretary of State can, by order, consider in the future whether regulation, as in the case of video 977 on demand, is appropriate if these measures fail. But this is an industry in its infancy where self-regulation is the more important path.
Clauses 230(3) and 245(2) deliberately exclude from regulation any TV or radio services provided over the Internet or via a mobile telephone. For the viewer or listener, choosing to access content by these means, on individual request, is not like using conventional TV or radio. He expects to receive content which may go beyond that on conventional cable or satellite services. As these streamed services develop, it will be increasingly difficult to distinguish those which could be clearly categorised as television or radio.
The amendment would impose clearly inappropriate content standards, such as the availability throughout the United Kingdom of a wide range of TV and radio services which, taken as a whole, are both of high quality and calculated to appeal to a variety of tastes and interests. This is not the regulatory regime for these services.
Variety, even of a more dubious and tasteless kind provided it is not illegal in content, is the essence of information society services and can be provided by anyone. Some people might regret some of the content and we look to the industry to continue to develop blocking devices for the protection of minors. But there we should stop.
§ Lord Dixon-Smith
I am grateful to those who have spoken and, in particular, to my noble friend Lord Northbrook, who said that perhaps we should have some clarity on this matter on the face of the Bill. I have to tell the noble Baroness, Lady Howe, that, unfortunately, whether one is a lover of spam or not, this amendment was never intended to deal with that. Personally, I always found spam indigestible and indigestible it will remain. This is not an attempt to solve that particular problem.
I am fascinated that the implication of this amendment, as read, makes it a requirement that media, which already broadcast through conventional television or via satellite, would have to broadcast on the Internet. I did not think that that was the implication, although the noble Lord, Lord Avebury, seems to think that it is. That is not the intention. In his response, for which I am most grateful, the noble Lord, Lord McIntosh, made it clear that the Government do not want to go into this area. However, the purpose of the amendment simply is to give Ofcom a right to look at what media companies, who already are regulated, do when they use the Internet.
The reality is that the media and information services now use the same medium. There is no distinction between a BBC broadcast in digital form and a digital message technically going down the Internet. At some point, and somehow, we must bridge that gap. One way to do that would be the highly delightful way of deregulating media services completely. That might be the more intellectually 978 sustainable way to do it. But I see a lot of frowns at such an anarchic thought. At least that would present a consistent position.
We have had an interesting debate, which has not taken the position much further forward. The Committee is examining the Bill in great detail. It would be entirely superfluous to divide the Committee on this issue, although I had some pressure from my noble friend to do so. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 17 to 19 not meted.]
Baroness Howe of Idlicote moved Amendment No. 20:
Page 4, line 9, after "Kingdom" insert "of people of different ethnic origins and communities
§ The noble Baroness said: This amendment is intended to ensure that Ofcom has regard to the key role played by electronic communications in sustaining cultural diversity and promoting understanding between communities of differing ethnic origins. It is abundantly clear that Britain is fast moving towards being an ever more multi-ethnic and culturally diverse society. Those from different racial backgrounds should be and, above all, should feel themselves to be, included within the range of communities catered for by the communications industry.
§ Currently, despite full consultation prior to the publication of the draft Communications Bill, the Bill is, apart from some recognition within public service broadcasting clauses, quite unspecific about cultural diversity, leaving responsibility for this primarily to Ofcom to interpret as it sees appropriate.
§ The Race Relations (Amendment) Act 2000, which requires public bodies to promote race equality and monitor the effect of such policies, will apply to Ofcom as a public body. Members of the Committee may ask, why not leave it to the good sense of Ofcom? But if the ethnic dimension of difference—so important in communication—is not specifically stated when others are, there is a danger that it will be neglected or given a lower priority. In communication, the racial aspect of diversity surely is at least as important as that of geography and disability, which are made specific Ofcom duties under the Bill.
§ Your Lordships should be in no doubt that a laissez-faire approach will not work in this field. I am afraid that the experience with equal opportunities for women over the years—women form 50 per cent of the population, not 9 per cent like the different ethnic populations—shows how vital it is to have these duties specifically spelt out and acted upon if progress is to take place.
§ A purely self-regulatory approach has not been found effective here, and it has not been found effective in the United States either. A Broadcasting Standards Commission (BSC)/PACT delegation to the United States in 2001 found that the two public bodies responsible there—the Department of Commerce and the Federal Communications Commission—both felt that self-regulatory measures had not been successful.979
§ Therefore, it is hardly surprising that a report to be published by the Broadcasting Standards Commission and the Independent Television Commission—chaired by my noble friend, Lady Prashar—emphasises the importance of cultural diversity specifically written into the initial regulatory agenda of Ofcom. I am sure that the noble Baroness, Lady Prashar, will expand on its findings.
§ However, there are three particularly important areas mentioned which need attention. The first is the content of broadcast material where there continues to be significant under-representation of minority ethnic individuals, especially on television. From my own viewing, that situation appears to have got slightly better but the figures do not yet indicate it.
§ The second area which needs attention is the manner of portrayal where stereotypical and culturally inappropriate representations still persist. Thirdly, employment is an area where, if anything, there has been a decline in the number of people of different ethnic origins employed in the industry.
§ I am glad that Channel 4, in its latest briefing on the Communications Bill, has specifically backed this amendment. I hope that we shall have the support of the other terrestrial broadcasters as well as Members of the Committee. But most important, I hope that the Minister and the Government will accept the amendment and the important principle that lies behind the need to table it. I beg to move.
§ 5 p.m.
§ Baroness Prashar
I support the amendment moved by the noble Baroness, Lady Howe. In making this contribution I declare an interest in that I was a non-executive director of Channel 4 for about seven years in the 1990s. As the Committee knows, the Government have declared their vision of developing an equal, inclusive society where everyone is treated with respect and within which there are opportunities for all.
The amendment seeks to instil that desire into the Bill, allowing an important and influential regulator the basis upon which to act to ensure that those objectives are achieved. It is also designed to ensure that Ofcom's decisions and the regulatory structure comply with the requirements of the Race Relations Act 1976 and the Race Relations (Amendment) Act 2000.
After some considerable thought, I decided to support the amendment. Some would argue that it is unnecessary. In an ideal world one could argue that such a provision is unnecessary. However, as we have heard, progress thus far has been patchy. Therefore, it is essential that such wording should be included in the Bill. As the noble Baroness, Lady Howe, said, for the past six months I have been chairing the review that has been looking at diversity in the context of the Bill. The review, which was established by the Broadcasting Standards Commission, with the support of the ITC, will be published in due course.
After considering the detail on progress, the review concluded that this amendment is necessary because it will take the burden off the individuals of goodwill and 980 commitment within the organisation, who, of course, will come and go, and require everyone within the new regime to share responsibility for ensuring compliance, especially in those areas already mentioned: namely, content, portrayal, and, in particular. employment. It will also focus the minds of those running such organisations to ensure that we continue to make progress, which, as I said, has been patchy to date. I very much hope that the Government will support the amendment.
§ Baroness Whitaker
I support the amendment. I declare an interest as the deputy chair of the ITC, which also supports the amendment. As the noble Baroness, Lady Howe, said, it is also supported by Channel 4, as well as the trade union BECTU. Briefly, the United Kingdom is multi-cultural: that is a fact. However, it could become fragmented along cultural lines, or even polarised. That could happen. It has happened in many countries but not yet here in a general way, although there are gaps here and there in social cohesion.
We need to foster inclusion. Television and radio are uniquely powerful in creating culture and in reflecting society. Failures in catering for all groups have been recorded, not only as the noble Baroness mentioned but also in research carried out jointly by the BBC, the BSC, the ITC, and the Radio Authority. For that reason, Ofcom must have regard to the concerns for the interest of the full range of communities in our society—nations and regions, as the Bill says—and also the other communities that stretch across our geographical divisions.
§ Lord Dubs
In supporting the amendment, I must begin by declaring an interest as chair of the Broadcasting Standards Commission. As my noble friend Lady Whitaker said, the BSC, together with the ITC and other bodies, has carried out a good deal of research in the area, some of which, I hope, will be published shortly. It is because I believe in the good sense of government Ministers—at least of this Government—that I cannot help feeling that the amendment seeks to put right an obvious omission. It is my charitable view that the failure to include this provision must have been an oversight on the part of the Government.
It is perfectly clear that the amendment is both sensible and appropriate for this part of the Bill. Channel 4 supports it. Earlier this year, I noticed that ITV published a cultural diversity guide that also embodies at least some elements of what the amendment seeks to achieve. After all, the functions of Ofcom under this clause refer to those with "disabilities",the elderly and … those on low incomes",people from different parts of the country and the difference between urban and rural dwellers. A whole range of concerns is covered, so it is surprising that cultural diversity and ethnic minority concerns are not mentioned.
981 After the tragic events in New York on 11th September, I was asked to convene a meeting at the office of the Broadcasting Standards Commission comprising many broadcasters and leading members of the Muslim community in this country. We had two meetings to discuss such matters and to listen to the concerns of Muslims about the way in which the broadcasting media were covering certain events dealing with their community. They felt that the media were stereotyping their community and from time to time doing so in a pejorative manner. It was a very useful exchange of views which, among other things, convinced me that this amendment is appropriate.
When dealing with an amendment about public service broadcasting during the first day of Committee, my noble friend Lord McIntosh suggested that such an amendment was not in the right part of the Bill but that it should appear later in the legislation in the section that deals with television and radio. Taking that point to heart, I argue that the amendment is absolutely in the right place. Not only does it put ethnic minority concerns on a par with disability, and so on, but, with the convergence of media, surely we shall find that such matters cover not simply broadcasting but also a range of other electronic media, especially the Internet.
Indeed, research evidence suggests that some members of the Asian community use the Internet as a source of information more than is the case with other people in this country. They do so because they feel that through the Internet, more than through broadcasting, they can find matters of concern to them and their community. I argue that the amendment is proper; that it was omitted by oversight; that it is fully in keeping with the spirit of the Bill; and that it is in the right part of the Bill in order to be fully effective.
§ Lord Brooke of Sutton Mandeville
My speech could scarcely be briefer. I support the noble Baroness, Lady Howe, in terms of what she is seeking to achieve by way of this amendment. I apologise to her for the fact that I was not present in the Chamber at the beginning of her introductory remarks. I do not propose to add to any of the comments made by previous speakers, but I have a serious question for the noble Baroness. In terms of the sense of the amendment, does she agree that there ought to be a comma after the word "Kingdom"?
§ Lord McNally
Following the remarks made by the noble Lord, Lord Dubs, this is obviously a sensible and appropriate amendment. The noble Baroness, Lady Prashar, said that we had come a long way; that is certainly true. The broadcasting environment in which I grew up probably did not reflect my cultural background. The programmes broadcast on children's television were "Billy Bunter" and "Just William". Indeed, my mother listened to "Mrs Dale's Diary" on the radio. It was very much a white, middle-class, southern England view. We had to wait for John Osborne to 982 change things with his kitchen-sink dramas before we heard northern accents and all about working-class life—
§ Lord McNally
Indeed, my Lords. It is interesting that the one outpost of regional culture was music hall and light entertainment. I concede that to the noble Baroness. But I remember the BBC radio broadcasters had to change into dinner jackets in order to read the news, never mind the television news readers. We have come a long way since then.
Although I suspect that it abandoned the idea out of sheer embarrassment, one of the cable television channels recently broadcast a re-run of the 1970s "comedy" series, "Love Thy Neighbour". The basic premise was that of a black man who had moved in next door. It is absolutely excruciating to watch that series today, reflecting as it does a picture of racism. prejudice and stereotyping. Fortunately, however, it does highlight the sheer boorishness of the racist white neighbour, while the black neighbour is now safely ensconced as a character in "Eastenders".
Programmes have changed profoundly and our current affairs output reflects that. However, evidence is still being produced, not only from the usual suspects, to show that our communications industry tends to centre on London and the area encircled by the M25, and that it is still extremely difficult for ethnic and other minority communities to get into the system. The noble Lord, Lord Alli, who is not with us today, is probably the exception that proves the rule.
I was worried to learn that the noble Lord. Lord Northbrook, is seeking to become a film producer. I should warn him that the noble Lord, Lord Puttnam, has advised me that the way to make a small fortune out of film production is to start with a large fortune. However, that subject may be for another debate.
I hope that this will be the first occasion on which the noble Lord. Lord McIntosh, will leap to his feet and declare that the Government accept the amendment—hook, line and sinker.
§ The Lord Bishop of Manchester
There is a strong tradition of support from these Benches for those who belong to the different ethnic communities that increasingly make up this nation and add to its rich cultural heritage. It is in that spirit that I wish to add my support to the amendment tabled by the noble Baroness, Lady Howe.
I do so also because I am the bishop of a diocese which has within it the largest ethnic communities outside London both in terms of individual size, in the cases of the Jewish and Chinese communities, and in terms of their mix. Over the past few months I have been aware, when meeting people from those different communities, how very vulnerable many of them still feel, in spite of the efforts that have been made in this country to include them far more in all our doings.
983 So while I am aware that the Minister may well feel that the points which have properly been raised during our debate are covered by the clause, I hope that he will recognise that it is extremely important to spell out this matter so that there can be no doubt whatsoever as regards our good will and concern for people of the different ethnic communities.
§ 5.15 p.m.
§ Lord Davies of Oldham
We are all grateful to the noble Baroness, Lady Howe, for tabling this amendment. It has sparked a most interesting and constructive debate during which several substantial points were made. As has been so eloquently illustrated, we live in a richly diverse country and our media must reflect that. We believe that we have made provision in the Bill to ensure that it does.
The Government recognise the importance of the diversity agenda, and Ofcom will want to embrace it fully. However, while we are totally in accord with the sentiments behind the amendment that have been expressed so graphically in the debate, it is our view that the Bill already adequately provides for the needs of all members of the community, and we are not yet convinced that we need to add a specific reference to people of different ethnic origins and communities to the general duties clause.
Ofcom's general duties are fully inclusive. In carrying out its functions it must,further the interests of the community as a whole".Provision already exists in the Bill in Clause 260, the public service remit, to ensure that what we see on television properly reflects the cultural diversity of the United Kingdom. Furthermore, because we believe that the diversity of content is supported and enhanced through equality of opportunity and fairness in recruitment and employment, Clauses 24 and 330 ensure that the broadcasting industry is fully signed up to this agenda.
In addition to these provisions, the Race Relations (Amendment) Act 2000 will apply to Ofcom. The Act will require Ofcom to consider the specific needs and requirements of people from diverse backgrounds, both in terms of its own internal processes and as Ofcom deals with the external world. Ofcom will also be subject to Northern Ireland equality legislation and a Welsh language scheme.
Therefore, despite the persuasive arguments that have been advanced in support of the amendment, it is difficult to see what additional positive impact the amendment would have on broadcasting and what, if any, impact it would have on the networks and services provisions in the Bill. My concern is that it could, in effect, open the way for a degree of potentially rather heavy-handed intervention in the form of box ticking and quota setting, which we do not need.
I share the view of noble Lords that we need to ensure that broadcasting in this country embraces diversity. The case for that has been made splendidly this afternoon. However, I believe that the Bill as constructed already achieves this because we have provided for precisely those objectives. Having said 984 that, however, I have listened carefully to the debate and I shall consider the amendment further in the light of the comments that have been made.
§ Baroness Howe of Idlicote
I thank the Minister for his reply. He ended on a positive note so I am not quite as depressed by his answer as I might otherwise have been. I wish to thank all those Members of the Committee who have joined in the debate. I was most heartened to listen to what noble Lords had to say in support of the amendment. Perhaps I should apologise for not having declared earlier my now somewhat elderly interest, in that I am a former chairman of the Broadcasting Standards Commission.
I shall swiftly reaffirm my own view, having worked for so long in the field of equal opportunities. It is necessary to spell out these areas. It was necessary to do so again and again on women's issues, even though women comprise 50 per cent of the population. It is just as necessary now in regard to race issues, and to do so until the time comes when the message is completely absorbed. Where better than to spell it out as proposed on the face of the Bill?
For the moment I shall withdraw the amendment. I shall read carefully what all noble Lords have had to say and wait to see what may emerge from our discussions.
§ Amendment, by leave, withdrawn.
Lord Dixon-Smith moved Amendment No. 21:
Page 4, line 9, at end insert—
( ) the need to promote good practice in relation to the security of electronic communications networks;
§ The noble Lord said: I rise once again to move an amendment tabled in the name of my noble friend Lord Northesk. This amendment should come as no surprise either to Members of the Committee or to the Government. No doubt noble Lords will recall the promotion last year of the Computer Misuse (Amendment) Bill of my noble friend. Indeed, the Government and the Minister may even have thought to dig out and review the Second Reading debate for that Bill in preparation for today's discussions. It is sufficient to say that those proceedings, in their entirety and based on the contributions of all noble Lords who spoke, encapsulate the reason why my noble friend believes this amendment to be so important. But it is useful to update the background and factual information that underpins the amendment. In that way the Committee will gain a feel for the context in which it is intended to operate.
§ Inevitably, computer crime is a fairly recent phenomenon. As the technological revolution develops, so we become more and more aware of the myriad ways in which IT can be used for criminal or anti-social ends. For us, as legislators, it is a relentless process of catch-up, although there are senses in which we have not even begun to do so as yet. For illustrative purposes, it is worth considering a single subset of this problem, although I am bound to caution the Committee that this does not make any other aspect of IT security any less important.985
A recent survey carried out for the National Hi-Tech Crime Unit by NOP of more than 100 firms highlighted more than 3,000 separate incidents of sabotage of data, virus attack and financial fraud. Hacking and denial of service attacks accounted for one in five of these episodes. As Detective Chief Superintendent Len Hynds, the head of the National Hi-Tech Crime Unit, is on record as saying,
With 87 per cent of respondents reporting that they had suffered some kind of hi-tech attack it is not so much 'will you become a victim?' but rather 'when will you know that you are a victim?".
§ We are all aware of computer viruses and their huge potential for damage, but for most of us they are a threat that is only dimly perceived and even more dimly understood. At least in part this is a result of that sense of diffidence towards IT to which my noble friend alluded last week.
§ But there are some digestible facts. Industry experts estimate that the number of viruses and their variants currently in circulation is 62,000. According to a DTI survey in 2002, the rise in access attacks has gone from 4 per cent to 14 per cent in less than a year. Industry estimates that the average cost for a security breach is £30,000, with several companies reporting incidents which cost more than £500,000.
§ Typically, the fear of reporting IT crime to the police—notwithstanding the suspicion that many have that the law as it stands is ill-equipped to deal with the problem—stems from the belief that, in so doing, security shortcomings will be publicised and exposed. Not only that, but consumer and commercial confidence in their net presence may be undermined. Certainly reporting, even in confidence via the UNIRAS system, has yet to be taken up widely, although the National Hi-Tech Crime Unit seems to be making some progress with its confidential hot-line.
§ One or two companies have been willing to place on record reports of attacks on their networks, notably the Internet service provider, Tiscali. Its UK arm was severely impacted on 18th March this year—I apologise for my noble friend's "techie" approach to this issue but he is the expert and I defer to him—after a massive denial of service assault that downed the ISP's portal, denying customers net access and e-mail services. Nominet, too, has suffered, particularly at the hands of "spammers", and was forced to suspend the "WHOIS" service.
§ It is not only the private sector and individuals who are at risk; the public sector is equally exposed. The Committee will remember that, 18 months ago, the original Code Red virus wormed its way through the Internet, carrying a payload intended to cause a denial of service attack on the White House web server. The UK has not escaped its share of attacks from hackers. The No. 10 Downing Street website, on 23rd March this year, was briefly rendered inaccessible after a co-ordinated denial of service attack protesting the Prime Minister's role in the Iraq conflict. Separately, the Carder's group defaced more than 3,000 websites over a weekend early in March of this year.986
§ We—and the Government should be included in the use of that pronoun—should be under no illusions: the problem is immense. It is getting worse all the time rather than better. I have skimmed the surface of only one of its aspects. It is seductive to imagine that, serious as all of this may be, it is outside the scope of the Bill. What conceivable utility is there in a primary economic regulator having any measure of responsibility over issues more correctly dealt with elsewhere?
The first point to be made is that, on the Government's own admission, Ofcom is not intended to be exclusively an economic regulator. For the avoidance of doubt, Dr Kim Howells, the Minister for Tourism, Film and Broadcasting, said,
Ofcom is not purely, or even primarily, an economic regulator".—[Official Report, Commons Standing Committee E, 10/12/02; col. 76.]
§ Secondly, a point already made by my noble friend in the context of other amendments, the economic and commercial vitality and success of IT are inextricably linked with the levels of trust and confidence that consumers have in it. It is possible to over-emphasise the importance of this but, none the less, in so far as Ofcom is an economic regulator and thereby has a vested interest in the health and vitality of the sector, issues of business trust and confidence can he seen as integral to its work.
§ Thirdly, to a very major extent we have already had a template of the Government's own construction of the way in which co-operative effort can impact beneficially within the sector. It is only last year that the Government introduced the Mobile Telephone (Re-programming) Bill which Parliament very quickly turned round and enacted into law. We all agreed that its purpose was to respond to a specific and identifiable problem within the communications sector. We all agree that its drafting was informed by inputs from telecoms companies, from appropriate regulators and from the Government. I do not know how it has impacted on the scale of the problem of mobile phone theft—perhaps the Minister will help me on that in his response—but it is reasonable to suppose that it will have had an effect and eased the problem somewhat. Certainly we do not hear so much about mobile phone theft as we did 12 months ago.
§ The point at issue here is to ask ourselves how much better and quicker would we all have been able to respond to the problem of mobile phone theft had the relevant regulator been more proactively involved at the coal face, as it were, on a day-to-day basis. That is what the amendment seeks to achieve.
§ The Committee may feel that this is a rehash of Amendment No. 14 moved by my noble friend Lady Wilcox last week. It is not. That had some specific targets—copyright abuse, threats to children on the net and so on—but this amendment does not have that degree of specificity. It recognises that the role of Ofcom here is not that of creating regulation but of acting as a champion for security issues as they relate to ICT. If the objective of legislating for technological convergence is to be realised coherently, it is imperative that Ofcom should be placed in this position.987
§ As with other technology-based amendments, the Minister will no doubt argue—with some justification, it has to be said—that the body of IT security-related issues should be left to be dealt with under the terms of the forthcoming European directives. That has an element of substance, but the rub, as my noble friend would argue, is that, as with Amendment No. 16, all the proposition does is anticipate without in any way pre-empting the terms of those directives.
§ We should not be deluded into ignoring a crucial aspect of the commercial and economic health and vitality of the new technology sector which, after all, should lie at the heart of Ofcom's work, simply because it may be more convenient, or possibly tidier, to defer the matter by dealing with it via the European route. It is important that Ofcom should have its finger very firmly on the pulse of technological development and the way in which it may generate problems and difficulties in the future.
§ If we are sincerely to believe that the UK can take its place in the forefront of the new technology in the years leading up to the delivery of the Government's various targets, we cannot afford to tie Ofcom's hands here. It is crucial that the Office of Communications has a specific responsibility to promote good practice in relation to security of the entire electronic communications network. I beg to move.
§ 5.30 p.m.
§ Lord McIntosh of Haringey
I wonder if it would help the Committee if I said that the noble Lord, Lord Dixon-Smith, has answered his own amendment. The answer is indeed that Clause 4 places Ofcom under certain further duties in order to fulfil certain Community obligations under the framework directive. That includes, among those obligations, a duty to promote the interests of' the citizens of the European Union by, among other things, ensuring that the integrity and security of public communications networks are maintained. There is nothing in the amendment that is not done already in the Bill.
§ Lord Northbrook
I support Amendment No. 21 which says that Ofcom must have regard in particular, where relevant, to the need to promote good practice in relation to the security of electronic communications networks.
I am aware of the work being carried out by the European Union with its comprehensive strategy on network security, cybercrime and the forthcoming data protection directive on electronic communications. But, as with Amendment No. 16, I am worried about the speed of progress. Can I ask the Minister—
§ Lord McIntosh of Haringey
I am sorry to interrupt, but there is nothing that can be done more quickly by this amendment than is already being done in the Bill.
§ Lord Northbrook
With great respect to the Minister, I wonder if I could carry on with some points.
988 What progress has been made in the proposals made in the Council resolution of 28th January 2002, and on the more recent Commission proposal for a Council framework decision on attacks against information systems? In particular, is the cybersecurity taskforce, promised by mid-2003, running to timetable? This force is very important, since it is promised that it will become a centre of competence on security questions—that is, to develop with member states a concept for a European computer attack alert system and to improve cross-border co-operation.
In summary, I believe, as with Amendment No. 16, that this matter should be on the face of the Bill as the whole European process, however well intentioned, could take many years to implement.
§ Lord McIntosh of Haringey
This Bill transposes the framework directive—that is what it does. The third Community requirement specified by Clause 4 is to promote the interests of citizens of the European Union. Clause 4(2) ensures that the Community requirements are to be read in accordance with article 8 of the framework directive. The directive cites the need to ensure that the integrity and security of public communications networks are maintained as one aspect of the objective of promoting the interests of citizens of the Union. Therefore, although the words do not appear on the face of the Bill, the obligation applies to Ofcom just as if they did. This amendment is not necessary.
§ Lord Dixon-Smith
I am grateful to the Minister for his explanation. Whether my noble friend is as satisfied with it as I am at the present time remains to be seen, but I shall draw it to my noble friend's attention. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Buscombe moved Amendment No. 22:
Page 4, line 12, at end insert—
( ) the impact of developments in relevant markets upon creators and performers
§ The noble Baroness said: Before I speak to Amendment No. 22, I want to spend a couple of minutes in referring to a speech made by the Culture Secretary, Tessa Jowell, to the Westminster Media Forum last Wednesday 30th April. It is only right that Members of the Committee should know what the Secretary of State said in relation to this Bill, as it is entirely relevant.
Indeed, she went on to say of the Bill that,
most of it is now uncontentious".
§ It is also only right that Members of the Committee should know that, moving away from the specific words of the speech, the Secretary of State said that a consensus had been reached on the Bill. I questioned the Secretary of State as to whether we were wasting our time if it is the Government's opinion and decision 989 that whatever happens in this House, we will not be listened to. It is important for Ministers to be aware of what was said in last Wednesday's speech. The Secretary of State responded to me by saying that she felt that a consensus had, in large part, been reached, and that what she had said had a lot to do with the difference between our two Houses.
§ This is tremendously important, particularly given some of the interventions from noble Lords in the Bill's first day in Committee, when a real concern was raised as to whether the Minister would listen to what we had to say, given that pre-legislative scrutiny had taken place. I made it clear that noble Lords on this side of the House—and I believe I speak for all noble Lords—are not content to substitute pre-legislative scrutiny of the Bill for proper scrutiny in this House.
§ On Amendment No. 22, amid our concern with communications network and service providers, I am anxious that we appreciate the impact of regulatory change on our creative industries and on the music industry in particular. The Bill rightly focuses on the importance of independent producers in other areas, but I feel that we are in danger of overlooking an industry whose fortunes are linked inextricably with those of the communications industry more broadly.
§ The success of individuals and companies in the music industry is closely dependent on the opportunities for the creation of music for and broadcasting of music by national and regional radio and television services in the United Kingdom. Reform of the regulatory environment for communications directly impacts on the music industry. We recognise that Ofcom is taking on duties of enormous breadth and complexity, and that it will be required to balance a huge range of different interests. We do not seek to add to those duties unnecessarily. I genuinely feel, however, that the inclusion of an additional general duty to secure the best conditions for the creation and supply of new and quality creative content to television and radio services would be a welcome addition to the Bill. The British music industry is a significant economic and cultural asset, and if it is in our power to secure optimal conditions for its development, I feel we should do so. I beg to move.
§ Viscount Falkland
In supporting the amendment, I remind Members of the Committee that a similar amendment, put before the House of Commons, was judged to be over-specific. The argument was that accepting the amendment would compromise the flexibility of Ofcom on the grounds that it would place in balance the interests of creators in relation to other interests—the general public interest in particular. One could argue, and I would argue on this occasion, that that is not the purpose or thrust of this amendment. Rather, the amendment would provide an assurance that the regulatory body, Ofcom, took into account the interests of the creators, but not that those interests would be in any way pre-eminent.
I imagine the Minister will say that it is the purpose of the content board to ensure that those creative interests are considered. May one suggest that there should be a statutory duty for the regulator to take 990 account of those important forces in broadcasting who create the content that we all, by and large, enjoy? That would be preferable to referring the responsibility to a sub-board entirely composed of non-creative people or, to use the word in the amendment, without creators on it.
The House will explore the issue of the content board later in the progress of the Committee. It may be appropriate to suggest that it would be pertinent for Ofcom to consider the establishment of a creator's panel, the chair of which would sit on the content board for relevant purposes. I am sure that positive action in the area to which the amendment indicates that the Government may go would provide a great deal of assurance to the music-creating industry, which the noble Baroness, Lady Buscombe, mentioned. That industry's concerns about regulation and market developments would be properly considered.
In the meantime, we support the amendment, as it clearly attempts to enshrine the interests of creators in the legislation.
§ Lord Brooke of Sutton Mandeville
I make a brief contribution as the footnote of a scholiast to what my noble friend Lady Buscombe said at the beginning of her speech.
My experience of audiences addressed by Ministers is that they much enjoy their own textual analysis of what is said. I remember, when I was a Minister, someone who is now a noble Lord in this House saying that he always enjoyed after-dinner speeches by Ministers. He sought to detect the bits written in the department before the Minister set out and those hits that the Minister added during the drive to the dinner to add a personal touch. It is sometimes perfectly clear that the Minister has not actually read the speech at all before delivering it. I have been in the audience when that has happened. One can see him distancing himself from the text as he utters it.
I do not doubt for a moment that the Secretary of State had read whichever speech it was that she read out to the Westminster Media Forum, but it is just possible that she had not read it quite as carefully in advance of delivering it as she would have liked. In the course of the speech, as my noble friend Lady Buscombe said, she chose to distance herself from and to amend the speech orally. She may have realised that the speech had some downside in terms of its potential consequences. If the potential consequence was to give the impression that the Department for Culture, Media and Sport had given up on the scrutiny of your Lordships' House and was taking your Lordships' House for granted, I cannot help feeling that the Secretary of State might have been making a mistake.
§ 5.45 p.m.
§ Baroness Blackstone
Let me straightaway deal with the question of my right honourable friend the Secretary of State's speech. I was not there, so I did not hear what she said, but I can give all Members of the Committee who have raised the question the assurance that my right honourable friend is absolutely clear about the importance of scrutiny in this House.
991 My right honourable friend is also fully aware that there are some contentious issues. I believe that she was saying that many of the provisions in the Bill are the subject of general agreement. After all, the Bill has around 450 clauses. I am sure that the noble Baroness, Lady Buscombe, and the noble Lord, Lord Brooke, would accept that much of what is in the Bill is a matter of agreement throughout the House. That does not mean to say that there should not be very careful scrutiny—
§ Lord McNally
I am listening to the Minister, but this reminds me of a problem that came up on day one. When Ministers go to conferences, where there are various vested interests, they get carried away by the event and start giving assurances. They tell people not to worry because those troublesome meddlesome Peers are not going to do anything to the Bill. "Rest at night, lads", the Minister says, "because we will deliver the Bill".
The problem is that noble Lords read. They read these speeches and get mad about them. I urge the Minister to tell them down the corridor, in another place, that a little deference in this case could go a long way. I refer not only to Tessa Jowell but also to Mr Kim Howells. They give the impression that we are just a rubber stamp. They are going to be wrong.
§ Baroness Blackstone
I have had numerous conversations with both Mr Kim Howells and with Tessa Jowell. Neither of them has ever given me the impression that they think this House is just a rubber-stamping body. I do not know where the noble Lord, Lord McNally, gets that from. I am also sure that Tessa Jowell would not have referred in her speech only to "lads"; she would have talked about "lasses" as well.
I give this Chamber an absolute assurance that neither I nor my ministerial friends on the Front Bench, nor the Secretary of State nor the Parliamentary Under-Secretary responsible for broadcasting believes the House of Lords to be somehow irrelevant. I might remind Members of the Committee that my noble friend Lord Davies has just conceded that the amendment moved by the noble Baroness, Lady Howe, was something that we should take back and consider. There will be other examples where we shall want to do that.
I turn to the amendment we are discussing. The creative industries in this country, including the music industry. are essential to deliver the quality that we want in our broadcasting services. Their success contributes enormously to our economic well being. Developments in electronic communication services bring with them a whole range of extra scope for creativity. Important as that is, however, I do not believe that it is appropriate to single out that group as one of the matters to which Ofcom must have regard when undertaking its duties. We have emphasised from the outset of the legislative process, both in the White Paper and in the Bill, that it is the public interest that really counts in the regulation of communication services.
992 The noble Viscount, Lord Falkland, mentioned the content board. As we will talk later about the content board, I think that it would be wrong for me to engage now in what the board will or will not do except to say that the content board is part of Ofcom and any panels that it might set up will be a matter for Ofcom. As I said, I do not think that that should be put on the face of the Bill.
Where the work of creative performers has an impact on the public, we have focused on ensuring that Ofcom has the necessary responsibilities, notably in relation to the provision of high-quality and diverse services in the public service broadcasting remit and in the provisions for original production. In that way, we are creating real opportunities for creativity to flourish. I attach a great deal of importance to that.
There is already a fairly long list of matters to which Ofcom is to have regard and it is difficult to see what impact Amendment No. 22 would have on any particular Ofcom decision. It is to the public interest that Ofcom should look, and that is what the Bill provides for. I hope that in the light of what I have said the noble Baroness will withdraw her amendment.
§ Baroness Buscombe
I thank the Minister for her response. If I may, I should like to respond briefly in relation to my comments on the Secretary of State. I thank my noble friend Lord Brooke for his intervention. It was actually the Secretary of State's personal touch that was so damaging. The speech written by the civil servants was damaging enough, but I think that the Secretary of State made matters worse. It is a lesson for all of us.
I also thank the noble Lord, Lord McNally, for his interest in the matter. There were, of course, vested interests at the forum. Although the issue is particularly important to them, they were equally concerned that all the lobbying which they are continuing to undertake with all of us—and quite rightly so, as this is an important Bill—is not a waste of their time. I think that I was on the right side of the debate as it was I who received the applause.
I thank the noble Viscount, Lord Falkland, for his support for Amendment No. 22. He used the word "reassurance", which as much as anything else is what the music industry is looking for. It is tremendously important to show support for the music industry particularly now when it feels that it is being completely hammered by the Government in the Licensing Bill. We are speaking about an important part of the industry. Our music creators not only contribute significantly to our cultural life but are a commercial asset. I therefore think it right to urge the Government to urge Ofcom to take on board the interests of UK creators and performers and the impact on them of developments in relevant markets. For now, however, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 23 not moved.]993
Baroness Wilcox moved Amendment No. 24:
Page 4, line 14, after "consumers" insert ", including disabled, elderly and low income consumers,
The noble Baroness said: In moving Amendment No. 24 I shall speak also to Amendments Nos. 41, 62 and 81. Amendment No. 24 makes it clear on the face of the Bill that when Ofcom carries out its duty to further the interest of consumers, "consumers" refers not only to those who have the physical and financial capacity to use the latest technological developments but also to disadvantaged consumers such as those with disabilities, the frail and elderly and those on very low incomes. We welcome Clause 3(3)(i) which states that Ofcom must have regard to,
the needs of persons with disabilities, of the elderly and of those on low incomes",
but feel that this is an issue of such importance that it requires strengthening on the face of the Bill.
§ Different consumers will have different interests that need to be furthered and it is important that Ofcom takes that on board. Amendment No. 62 ensures that Ofcom bears in mind the differing experience of disadvantaged consumers when it conducts its consumer research. Amendment No. 81 makes the suggestion that when Ofcom publishes advice for consumers, it should be in a format that is accessible to those with disabilities.
§ Those who are most in need of having their interests protected by Ofcom are the disadvantaged consumers who are disabled, elderly or perhaps on a very low income. Those groups include the most vulnerable in society who must rely on technology more than others for safety, entertainment and to stay in contact with family and friends. Advances in technology open up real possibilities for an increase in the quality of life of those people, who because of disability, age or income are unable to be fully active in other areas of society.
§ Amendment No. 41 seeks to promote media literacy among disadvantaged consumers. Such literacy, by encouraging a deeper understanding of the technology involved by those who have so much to gain from it, would be of real value to those consumers and an excellent addition to the Bill. These groups also include those with special needs who require designs that are easy to use and understand. For, in an unfortunate paradox, those who have most to benefit from technological advances are those who are prevented from using them due, for example, to small letters and numbers that cannot be read, buttons that are hard to push and complicated systems that are difficult to understand.
§ Without referring at an early stage of the Bill to the different types of consumer need that Ofcom should consider, Ofcom will not have the legislative back-up to go the extra mile to ensure that the interests of all consumers are furthered. It seems to me that even without a regulator in sight, companies will be falling over themselves to meet the needs of the affluent, the technologically minded and the able-bodied proportion 994 of the population. Where a regulator can be of real use is in ensuring that companies do not ignore the disadvantaged. I beg to move.
§ Lord Brooke of Sutton Mandeville
I declare an interest. I appear on the letterhead of PHAB—Physically Handicapped and Able Bodied—but I do not do so in any executive capacity. Nor do I think that that particular disability is one that is particularly affected by Amendment No. 24. However, I recall from being a Member of another place for the best part of a quarter of a century the series of occasions when Members of Parliament were subjected to very considerable lobbying by correspondents on issues relating to the disabled and their reaction to the media. No one who has not experienced that should be in any doubt that it is an issue that resonates within those who have such disabilities. I cannot help feeling that it is desirable that it should be on the face of the Bill.
§ Baroness Wilkins
I speak to Amendment No 79, which is grouped with Amendments Nos. 24, 41, 62 and 81, which I support. The purpose of Amendment No. 79 is to ensure that the statutory representation of disabled and older people is continued in the new regulatory framework laid out in the Bill, enabling the consumer panel to give informed advice on all issues affecting disabled and older people to Ofcom and the service providers. Without that, the Bill will signify a severely retrograde step in meeting disabled and older people's needs and one which can only get worse over time.
Currently, there is a statutory advisory committee in telecommunications, called DIEL, which provides the regulator with invaluable advice on the interests and access requirements of disabled and older consumers. The DI EL committee has 11 members, which enables it to reflect the wide range of impairments among disabled people alongside the interests of older people.
The Communications Bill makes no comparable provision. It removes both the statutory representation and the comprehensive breadth of advice. Instead it offers possibly one person appointed to the consumer panel to represent disabled and older people. Even if the Minister could give the Committee the assurance that one person with disability expertise would definitely be appointed to the panel, that person could not possibly represent the needs of all disabled people, such is our diversity. This proposal would turn hack the clock about 30 years to the time when disabled people were grateful for any representation.
The current advisory committee, DIEL. has ensured that the telecommunications industry has avoided many pitfalls in relation to disabled and older people during its existence. In a letter to its chair, Bob Twitchin, the national manager of BT's Age and Disability Action section stated:I am most keen to see an advisory committee like DIEL in the new OFCOM structure with the specific remit of looking after the interests of older and disabled people. Consulting with a group like DIEL can be of more benefit than consulting with organisations representing people with a specific impairment as the committee is able to provide a balanced view without over emphasis on one disability over another".995 She added:I know that BT Payphones has also found the relationship highly valuable over the years and it would be a retrograde step for disabled customers if an advisory committee like DIEL were not to continue in the new Ofcom structure".There is a danger, which will be voiced many times during this Committee stage, that disabled people will be increasingly excluded in the information society unless their needs are fully protected by measures in the Bill. It is hard to see how Ofcom will be able to receive informed advice in this crucial area unless an advisory committee akin to DIEL is established under the auspices of the consumer panel.
Similarly telecom companies will be required to consult the panel on improving services for disabled people. How is the panel to give informed advice without the sort of depth and breadth of expertise and the legitimacy that DIEL could marshal? As the Disability Rights Commission has made clear in its briefing, on the Bill, equal access to communications services for disabled people is a matter of civil rights not social policy and an essential prerequisite of equal citizenship. If we are to achieve full social inclusion of disabled people, the building blocks have to be put in place in all aspects of society's structure. The ways in which we receive information and the ways in which we communicate are obviously basic to our functioning in society.
The Bill will lay down the framework for years to come so it is imperative that the needs of disabled and older people are fully protected on the face of the Bill. Providing for their statutory representation through an advisory committee which is composed of a majority of disabled people is one of the essential building blocks for ensuring that disabled people will not be left behind and shut out of the information society.
§ 6 p.m.
§ Lord Addington
My name is added to Amendment No. 79 in the group of amendments that we are discussing. I wish to speak in support of that amendment and, indeed, the entire group. If I did not recognise all the words that the noble Baroness used, I definitely recognised the tune. If we carry on at this rate we shall be able to come up with something we can all hum happily together.
As the noble Baroness, Lady Wilkins, has just said, Amendment No. 79 is concerned with retaining what we have. I refer to a situation where one person is bombarded by dozens of different people saying that they do not understand the position. As a disability spokesman I know exactly what will happen to such a person as it happens to me. Dozens of people say to me, "You do not understand my specific needs". One has to say, "Wait a minute; there are other people involved. I need to get a balance. I need to find out what is going on". It is incredibly difficult to get such a balanced view. One needs to consider many views. One needs a consensus view. I hope that Members of the Committee will adopt such a course throughout the Committee stage. We need to represent the views of all 996 groups involved in the matter. I commend Amendment No. 79 in particular but also the entire group we are discussing.
§ Baroness Darcy de Knayth
I commend Amendment No. 79 to which the names of the noble Baroness, Lady Wilkins, and the noble Lord, Lord Addington, are added. I support very much all that they said, in particular what the noble Lord, Lord Addington, said about one person not being beleaguered. The noble Baroness, Lady Wilkins, mentioned that communications service providers benefit greatly from the practical advice that they get from committees such as the one we are discussing. That is ably demonstrated by DIEL. It is vital that such provision should continue.
§ Lord Ashley of Stoke
There is nothing worse than arguments being repeated in this Chamber ad nauseum. Therefore, I propose to speak briefly. I endorse what the noble Baroness, Lady Wilkins, said about Amendment No. 79. The name that she mentioned, DIEL, is an odd one. I am not particularly keen on that name. It is to be abolished. The letters "DI" stood for disability and "EL" for elderly. However, the body has an admirable function. It has campaigned actively, aggressively and persuasively for disabled and elderly people. It has done a good job. That provision will be lost under the Bill. There is no similar provision. It is entirely wrong that the Government should omit that provision. This is a very simple amendment. I am sure that my noble friend will consider it sympathetically. As I say, it is a very simple and modest amendment but I hope that the Government will give a categoric assurance that they will take it away and consider it.
It is of paramount importance that the committee we are discussing should include a majority of disabled or elderly people. There is absolutely no point in having people with no experience of the matters they are to discuss. If the disabled and elderly are not represented on the committee they will be excluded. On the question of exclusion I commend the speeches that have been made on other amendments in the group we are discussing. I warmly accept the principles behind the amendments. The noble Baroness, Lady Wilcox, mentioned numbers that are too small to be read easily by elderly or disabled people who have sight impairment. It is not just a matter of not being able to press buttons or to read tiny text. What that really means is that they are completely excluded from television as a method of communication. No thought has gone into that matter. If accepted, these amendments would go a long way to including disabled and elderly people in the matter we are discussing. It is a simple but profoundly important point.
§ Lord Carter
Amendment No. 25, which stands in my name, tackles this problem in a different way. I shall make my main argument when speaking to that amendment. However. I want to pick up one point that the noble Baroness, Lady Wilcox, made. I believe that she referred to Clause 3(3)(i). However, I believe that Clause 330 refers to the employment of disabled 997 persons. It does not refer to access for disabled persons. If I read it correctly, Clause 330 deals only with the employment of disabled persons. We shall certainly want to discuss that matter when we reach that clause.
§ Baroness Finlay of Llandaff
I wish to speak briefly in support of what the noble Baroness, Lady Wilkins, and the noble Lord, Lord Addington, said. I remind the Committee that disabled people comprise a very diverse group but that another group must be considered within that; namely, those who have a temporary disability. Many hospital patients and people who are recovering from episodes are severely disabled. They also need to be considered. I do not think that it is possible for one representative with a disability remit adequately to represent the breadth of people who may be affected by the provisions in the Bill. Therefore, I support the wording of and the sentiments behind the amendments.
§ The Lord Bishop of Manchester
It would be strange if there were no support from these Benches for the amendments that we are discussing. The Committee will be well aware that as bishops and, indeed, clergy we come constantly into pastoral contact with those who are elderly, disabled and financially disadvantaged.
Many of the interventions that have been made have echoed points that would happily have been made from these Benches and I shall not repeat them. I gladly give my support to the amendments but not simply for professional reasons, as clergy from my own diocese would certainly endorse. During many years of my upbringing, my mother was confined to a wheelchair. I know very well the issues about access with which the amendments seek to deal, so I support them.
§ 6.15 p.m.
§ Lord McIntosh of Haringey
I am not at all surprised that there has been unanimity of support for the amendments around the Committee, not only for the reasons given by the noble Lord, Lord Brooke, on the efficiency of the lobbying, but because of the genuine feeling in favour of the issues raised. We are all united in our desire to see improved access to communications services for people with disabilities. We are anxious to see that the digital divide, as it is called, does not exclude disabled or elderly people, or people on low incomes.
The noble Baroness, Lady Wilcox, is right: we are concerned that there is a risk that the problem could get worse as existing and future services are delivered by electronic means rather than more conventional ones. That cannot be allowed to happen. We cannot be denied a fully inclusive society simply because of technological advances.
What is the government response to the issues? Let me come back to the general duties of Ofcom, which have been a common theme of our consideration of the Bill for a day and a half of Committee time now, as is quite right. Those general duties are the key. We have 998 to consider the amendments against the requirement in Clause 3(3)(i) that, where relevant in carrying out its functions, Ofcom must have regard to the needs of persons with disabilities, the elderly and those on low incomes.
We must also consider the amendments in the light of the role that the consumer panel will play. A number of speakers have dealt with that subject. Formally, people with disabilities, the elderly and those on low incomes are named constituents of the panel. It is true that the formal requirement is for only one person on the panel to represent those interests, but I hope that I can convince the Committee that the actual commitment goes a good deal further. The panel has to provide Ofcom with informed advice about their interests, and Ofcom will have to have regard to their interests in carrying out all its functions.
We have looked at whether the amendments will add anything real and tangible to what Ofcom will do. As well as the fully inclusive general duties to which I referred, the specific "have regard to" and the remit of the consumer panel have included specific provisions where most needed to ensure that everyone has access.
Let us consider the universal service provisions set out in the universal service order. By virtue of the provisions in Clause 3(3)(i), Ofcom will have to take into account the needs of people with disabilities, the elderly and those with low incomes. The current draft, which is out for consultation, aims to safeguard the interests of disabled end-users and to ensure access to, and affordability of, publicly available telephone services equivalent to those available to other end-users. It requires Ofcom to take specific measures to ensure availability of directory inquiry services, text relay services, priority fault repair services, specially adapted public call boxes, and the provision of contracts and bills in suitably adapted formats.
It is very important to have access to broadcasting for people with sensory impairments. That is why the Bill requires Ofcom to draw up, publish and ensure compliance with a code giving guidance on the extent to which television services should promote understanding and enjoyment by deaf and visually impaired people. The Bill also sets targets for the proportion of programmes to be subtitled, audio-described, and presented in or translated into sign language. Clearly, later amendments are relevant to that. In drawing up and regulating under the code, Ofcom would have to consider the specific needs of deaf and visually impaired people.
I turn to the amendments. Amendment No. 24, spoken to by the noble Baroness, Lady Wilcox, seeks to ensure that people with disabilities, elderly people and those on low incomes are treated as consumers for the purposes of Clause 3(4). However, the definition of "consumer" is set out in Clause 398(5). People, including people with disabilities, elderly people and people with low incomes who meet the very inclusive criteria set out there are "consumers" and will benefit from Ofcom's duty to consumers. When people do not meet the criteria, they will not be consumers, so adding 999 the definition to Clause 3(4), as the amendment proposes, would not make them consumers. Therefore, it would make no difference to the Bill.
Amendment No. 41 has to be seen in the same way. We have to weigh it against the general provision in Clause 3. The amendment seeks to prescribe more specifically to whom Ofcom should direct its attention when exercising its duty in relation to media literacy. Ofcom will exercise that duty in the interests of the public as a whole. The general provision in Clause 3(3)(i) ensures that Ofcom will take into account the needs of persons with disabilities, the elderly and those on low incomes.
I referred earlier to the work of the consumer panel in representing people with disabilities, the elderly and people with low incomes. We are sympathetic to the intention of Amendment No. 62 hut, because of Clause 3(3)(i), it would result in duplication of work carried out by the consumer panel. We are creating the consumer panel specifically to give Ofcom informed advice about the range of consumer interests in respect of provision of electronic communications networks and services. We have expressly provided in Clause 16(4) that disadvantaged persons, persons with low incomes and persons with disabilities are among the groups on which the panel must be able to advise.
The panel will have the power to carry out research, a point made by the noble Baroness, Lady Wilcox. Ofcom must give reasons when it chooses to ignore the panel's advice. We do not want to undermine the important and independent work of the panel, and we do not want to duplicate the effort. Of course, Ofcom may want to carry out or commission research itself into the particular needs of the groups. Under Clause 13, it is not prevented from doing so.
Amendment No. 79 was spoken to by the noble Baroness. Lady Wilkins, and a number of other Members of the Committee. Let me make it clear that the consumer panel must have members who have been appointed specifically to ensure that the panel is able to provide advice on the interests of, among others, persons with disabilities or the elderly.
I am not suggesting, nor are the Government, that one person on the consumer panel would be able to provide Ofcom with the advice on disability and the elderly. I say that particularly to the noble Baronesses, Lady Wilkins and Lady Finlay, and the noble Lord, Lord Addington. Consultation by Ofcom is going on at the moment on the general conditions, which includes a discussion of all the issues. However, the point is that the responsibility on Ofcom is to ensure that the panel as a whole—not only one person—is able to give informed advice about the interests of persons with disabilities and of the elderly.
I listened to what was said about DIEL. It is certainly true, literally, that DIEL is being abolished. However. DIEL was giving advice to Oftel only, and only on telecommunications matters. The panel has the power to carry out research—it will do so—and set up such committees as it thinks right to ensure that it can do that. Ofcom has an obligation to ensure that it has the resources that it needs to do its job.
1000 People with disabilities are named constituents of the panel. Their interest will form an important part of the panel's work. The panel cannot choose to ignore them in the face of competing pressures; it has a statutory duty to have regard to the interests of people with disabilities in carrying out all of its functions—these are listed in paragraphs (a) to (k) of Clause 15(3)—and to be able to give Ofcom informed advice on matters that impact on them.
We believe that disabled people, the elderly and those on low incomes will be better served by a consumer panel that can make its own choices about the best way to address their needs. There are plenty of options open to such a panel. It could set up working groups on particular topics. I have been very impressed by what has been said about the diversity of the needs of different groups of people with disabilities. That is why it would be inappropriate to force a framework on Ofcom and on the panel at this time. How it is done is a matter for Ofcom and the panel—rather than such a provision being on the face of the Bill. The working groups could be on particular topics rather than on marginalising the disabled viewpoint. However such an approach is organised, it is not essential for us to consider it now. The panel will have to make sure that it meets its objectives of providing Ofcom with informed advice and having regard to the interests of disabled people and the elderly in carrying out all of its functions. I do not think it would be right to constrain the independence of the panel by placing a requirement on it now. All of what is asked for in the amendments, particularly in Amendment No. 79, can and should be done by Ofcom and the panel.
The last of the amendments, Amendment No. 81, seeks to ensure, by including such a requirement on the face of the Bill, that in publishing information or advice in accordance with Clause 23 Ofcom must have,regard to the need to make the information or advice accessible to persons with disabilities".Of course that is right; and that is exactly what is provided for in Clause 3(3)(i).
The fact that we believe that our intentions are so close to the views expressed today, and the fact that I have taken so much time to reply—for which in a sense I apologise—is, I hope, evidence that we do agree with and understand the needs that have been expressed in this debate. To employ a phrase used by the noble Lord, Lord Addington, I would rather use an example from a song by the electric string band. I shall not sing it in the presence of the noble Lord, Lord Colwyn, but it said: "You know all the words and you sing all the notes, but you never quite learnt the song they sang". I hope that we are singing the same song.
§ Baroness Wilcox
I thank the Minister for taking the time to respond to the amendments—the importance of whichhe recognised. I thank my noble friend Lord Brooke for his support. I am delighted to know that his name still appears on the letterhead of PHAB. In speaking to her own amendment, the noble Baroness, Lady Wilkins, also supported the other amendments in the group. The noble Lord, Lord Addington, indicated 1001 that he did not recognise all the words but recognised the tune. I thank the noble Baroness, Lady Darcy de Knayth, and the noble Lords, Lord Ashley of Stoke and Lord Carter, the noble Baroness, Lady Finlay, and the right reverend Prelate the Bishop of Manchester for their support.
I am disappointed. I was quite encouraged when the Minister began his response, but ended up feeling again that an aspiration rather than a fact is being expressed. The experience of disadvantaged consumers is that, unless they are mentioned early on the face of a Bill, they have an uphill fight all the way. When I was chairman of the National Consumer Council—set up by the noble Baroness, Lady Williams, 28 years ago, continued by the Conservative government, and continued to this day by the Labour Government—its mandate was to be the voice of the consumer, with a special brief for the disadvantaged consumer. That made an enormous difference to the way in which we approached our work. Every time we examined an issue, we did so for the able-bodied consumer and for all of those who did not have a big enough voice; but because that requirement was on the face of our mandate, every time we examined matters we did so in relation to the disadvantaged.
I shall not press the amendments, particularly Amendment No. 24, at this stage. However, I ask the Minister to note the support expressed for them—not by people who do not understand how to read a Bill: they can read "must have regard to" and they can hear the wonderful aspirations expressed in the Minister's comments. But these are aspirations. My experience teaches me that that is not good enough. I ask the Minister to reconsider this matter. I know that we shall discuss other amendments tabled by the noble Lord, Lord Carter, and others who can speak personally of issues, even within their own families, who have great expertise and who always speak for the disadvantaged. But if I have any expertise to bring to bear here, it is based on the fact that for 10 years I spoke for the consumer, particularly the disadvantaged consumer. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Carter moved Amendment No. 25:
Page 4, line 15, after "choice," insert "accessibility and usability of services,
§ The noble Lord said: The amendment seeks to insert "accessibility and usability of services" into the general duties of Ofcom. The amendment is grouped separately. Although it seems to cover the ground that we have covered in relation to the previous group—so we shall not have a long debate on it—it approaches the matter in a different way. It would be helpful to the Government were they able to accept it.
Under the heading "General duties of OFCOM", Clause 3(4) states:
In performing their duty under this section of furthering the interests of consumers, OFCOM must have regard, in particular, to the interests of those consumers in respect of choice, price, quality of service and value for money".
§ The provision sees the issue entirely in market terms—it sees the consumer in terms of a market. The object of including the words "accessibility and usability" is to meet that point. It is all very well having choice, value for money and the rest, but if there are people who are not able to access or use the services, then their needs are not being met. The purpose of the amendment is to ensure that in interpreting and performing its primary duty and in furthering the interests of consumers, Ofcom takes into account issues of accessibility and usability alongside the other issues of affordability, choice and quality. As we have heard, if services are not accessible and widely usable, disabled consumers, those with literacy problems and many for whom the digital services are difficult to use will not be able to exercise real choice or to obtain the value for money mentioned in the Bill.
noble friend Lord Currie emphasised that Ofcom is a creature of statute. Therefore, what the Bill does or does not make explicit really matters. That was borne out in paragraph 16 on page 9 of the report by the Joint Committee:
If duties are not stated with sufficient clarity in legislation, there is potential for regulators to exercise their functions in a manner at odds with the intentions of Government and Parliament. In determining OFCOM's general duties, Parliament will do much to set the terms under which that body will perform its functions".
§ So there is an argument that the current wording could mean that Ofcom overlooks the vital issues of accessibility and usability while fulfilling its other functions under the clause; or indeed that it will take a less robust approach.
§ We believe that it is far better to be explicit and to state that that the Government expect the new regulator to work for the basic right of disabled and older people to access and enjoy the same information and resources as the rest of society.
§ In reply to the previous group of amendments, my noble friend Lord McIntosh pointed out the diversity of the requirements of disabled people. I declare a past interest which I should have declared at the beginning of my remarks. For nine and a half years before I entered government I was executive producer of the weekly "Link" programme for people with disabilities. Every week we had 15 minutes of television. I am well aware of the diverse requirements of disabled people, who have many different disabilities, and of the need for "accessibility and usability" to be clearly stated among the general duties.
§ Later amendments deal with particular aspects of a disability. We know that disabled people have a special requirement of "accessibility and usability". The later amendments involve audio description, sign language, subtitling and so on. The amendment is intended to ensure that in addition to those specific requirements—which, to some extent. are scattered through the Bill, as my noble friend explained in response to the previous group of amendments—there should be an overarching requirement with regard to disability in particular of accessibility and usability, and that that should be clearly set out in the general duties.1003
I am sure that my noble friend has a briefing that says, "resist" but I cannot for the life of me see why there could be any problem about including the words "accessibility and usability" in the clause, which refers to,
choice, price, quality of service and value for money".
§ I beg to move.
§ 6.30 p.m.
§ Lord Addington
The noble Lord pointed out that unless a provision is added to the Bill, particularly in this context, this approach will not become a prime requirement. We shall later consider various amendments relating to disability and much of our debate will be about how we have not got the best out of existing technology. We have not done so, but we could have done so with more of a will and more pushing here and there. Having "accessibility and usability of services" early in the Bill would be a great spur and help us to avoid those problems. It would also help us to deal with current technical problems, which the noble Lord discussed. I refer to the farcical history of audio description: there was a requirement to produce it but no one was able to use it. That is a smack in the face of the Government's protestation that we do not need such a provision. If it happened once, it will happen again. Technology will advance. There is the idea that technology will always be able to solve problems if we can bring it into the argument, develop awareness and ensure that producers know that they should be doing something in this regard. That is a huge part of this field, which deals with many disabilities and, in individual cases, disability packages. Unless such a provision is placed up front in the Bill, the Government will miss things, not through any lack of will or good intention but because the proposal asks too much. There should be a requirement to take action as a primary duty.
§ Baroness Darcy de Knayth
I too support the amendment. To pursue the remarks of the noble Lord, Lord Addington, someone from a disability organisation said:All too often in the past regulators with a weak accessibility remit have overlooked opportunities to strengthen the inclusion of disabled people".They cite the example of the awarding of licences for the new digital terrestrial service, which is a case in point. The ITC could have made accessibility for disabled people a key criterion in the awarding of the licences, but it did not. Nor did it use the opportunity to require bidders to demonstrate how they would provide access to audio description. The person who briefed me on this amendment wrote:so the new Freeview service is a disaster from that point of view".
§ Baroness Wilcox
I support the amendment, as one would expect in view of what I said on the previous group of amendments. I was very interested to learn about the weekly "Link". One learns much in this place about what other noble Lords get up to. "Accessibility and usability" are words that are precious to people who do not have easy access to services. As the noble Lord, Lord Addington, pointed 1004 out, we will increasingly access such services through technology. I am only too delighted to support the amendment. We are trying to introduce such a provision early in the Bill so that everything follows from it.
§ Lord McIntosh of Haringey
In light of my response to the previous amendment, it will be clear that I am far from antagonistic to the amendment's objective. When the matter arose in Committee in the Commons, we said that we should consider a way in which to achieve that objective. The proposal was moved in a similar manner in the House of Commons. As the noble Lord, Lord Carter, reminded us, Clause 3(4) requires Ofcom, in furthering the interests of consumers, to have regard in particular to,choice, price, quality of service and value for money".On the face of it, it would not appear to be too difficult to add to that list. However, the difficulty is that the amendment does not quite say what the noble Lord. Lord Carter, said. It refers to,accessibility and usability of services".However, the noble Lord and other Members of the Committee referred to accessibility and usability of services for people with disabilities, which is not quite the same as what is stated in the amendment. Agreeing to the amendment would have effects much wider than the disability issue. It could crop up all the way through the Bill in unexpected ways. We asked ourselves instead about what the role of Ofcom is and—this is Clause 3, after all—whether it is the most appropriate body to address what are essentially issues of design. I made it clear that I am very nervous indeed about the risk of the move towards electronic communication, which could be to the disadvantage of people with disabilities, as well as the elderly and those on low incomes. We will discuss the issue of design when we consider Amendment No. 39, which stands in the name of the noble Lord, Lord Ashley. I shall not go into detail at this stage.
The Government are already active in this sphere, both in Europe, where standards for product manufacture and design are agreed, and through the digital TV action plan. A key part of the digital TV action plan is to ensure that the equipment on offer is usable and accessible to the broadest range of people. The Technology and Equipment Group, which is made up of manufacturers, broadcasters, software/ application providers and consumer groups, is making an important contribution to this work. One of its early recommendations—to hold a workshop on inclusive design and usability—will be taken forward in early July. This week, the DTI is hosting an RN IB seminar on the current and future development of audio description services.
The DTI has appointed the "Generics Group" to carry out research on how consumers engage with digital TV. It will explore the issues surrounding the usability of digital television for all consumers, with a special focus on users with special needs, including the elderly. It will deliver by the end of July. Bringing 1005 together all the people who can make a difference in this area is the proper role of government, not of the regulator.
Clause 3(4), which is where the amendment would be inserted, lists some but not all of the particular matters that Ofcom must have regard to. They are the bare essentials; the list is not exhaustive, and I do not claim that it is. It is important that they should be read in the context of the commitment to the interests of persons with disabilities at Clause 3(3)(i) and by the specific provisions throughout the Bill, to which I referred earlier.
Looking forward to Amendment No. 39 and backwards to my account of what is actually being done by government and the regulator and to my response to earlier amendments—and in view of my response to this amendment—I hope that the amendment will not be pressed.
§ Lord Carter
I am grateful to the Minister. I shall obviously not press the amendment in Committee, which is the time to probe. That allows the Government to make a considered and constructive response and avoids the tedium of having to seek the opinion of the House at Report.
I thank all Members of the Committee who spoke. The noble Lord, Lord Addington, gave the good example of audio description. We shall return to that later. It is certainly available but it is neither accessible nor usable.
As I understood my noble friend the Minister, he accepted the objective of the amendment but said that the problem was in the drafting. I tried to make it as succinct as possible, but he said that that made it much too wide. If I had made it specific to disabled people, I am sure that he would have said that it was much too narrow. I was rather surprised when he seemed to find a problem with having wider "accessibility and usability" throughout the Bill. I thought that this was a communications Bill. So what is the problem with wider accessibility and usability? As always, I shall consider my noble friend's response. I am not convinced at this stage but, for the time being, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Wilcox moved Amendment No. 26:
Page 4, line 22, at end insert "and publish the reasoning for the resolution of any conflict between their general duties
§ The noble Baroness said: I wish to speak to Amendment No. 26, but I shall not move Amendment No. 28. This amendment requires Ofcom to publish a document in the event of a conflict between its general duties explaining how it reached a decision one way or another. It is a probing amendment.
As Her Majesty's Government have conceded that in the interests of transparency it is necessary for Ofcom to publish an annual summary of how it resolves conflict between its general duties, a further question remains to be asked: what does the Minister envisage will happen between times and what about
particularly difficult or controversial cases? Surely it is desirable, especially during the early years of Ofcom's existence and whenever a novel conflict of its general duties arises, to publish a document outlining its reasoning at the time of the decision. That appears to be common sense if the Minister for DCMS in another place, Dr Kim Howells, is correct, when he expects, and I quote,
Ofcom to be a model of good regulatory practice".
§ The first of the principles of regulation is transparency.
§ A short summary once a year is not sufficient to guarantee transparency. In order for communication users and providers alike to have confidence in the new regulator, it is essential that they are informed about the rationale behind the decisions that Ofcom makes, especially in the case of' appeals. Does the Minister envisage further publication by Ofcom on this matter above and beyond that included in the annual report? I beg to move.
§ Lord Thomson of Monifieth
I support the noble Baroness in moving this amendment. I await with great interest the Minister's reply. It seems to me that in some ways the amendment goes to the heart of the Bill and to its central dilemma, which is that to an unusual degree the Bill produces a marriage between two great departments of state which have widely conflicting responsibilities. On the one hand there are the broadcasting responsibilities that go with the DCMS and on the other hand there are the equally important responsibilities of the DTI for telecommunications and the global marketplace.
In any normal legislation that comes before the House it is normal for the department of state and the Secretary of State to reconcile the conflicts that inevitably arise. There is the famous remark of the Scottish left-wing MP of the 1930s, Jimmy Maxton: "If you cannot ride two horses in this bloody circus you are not much good at it, are you?" In this case there is not the normal issue of reconciling conflicts of interest within a normal department of state, but of' doing so within the two great departments of state that have conflicting interests and that have a history of representing important national interests.
I well remember when I was chairman of the old IBA being summoned to a meeting in the House of Lords by my Minister. That was at the time when we were just starting geostationary satellites and BSkyB was on the horizon. When I arrived here and went to the office of the Home Secretary in this House I discovered to my dismay that he was not there and I was directed to the office of the Secretary of State for the DTI. I was not very pleased. When I arrived at the office we had a discussion and I did not receive the impression that the Home Secretary of the day was very pleased with the arrangement because there was the first vivid example of the troubles that lay ahead with the development of telecommunication's technology, the increasing convergence of the issues of telecommunications and the national interests involved in that, and the interests of broadcasting.
I do not know the solution to that issue, but I believe that the amendment of the noble Baroness has pinpointed an important aspect of the Bill. It will be 1007 necessary for Parliament to be able to have the necessary evidence on a continuing basis, especially in the earlier years of the working of the new Act, of how the genuine conflicts of interest between two great departments of state will be resolved. I have seldom come across blander language in a Bill than appears in Clause 3(5) and (6):Where it appears to OFCOM that any of their general duties conflict with each other in a particular case, they must secure that the conflict is resolved in the manner they think best in the circumstances".We shall all want to know a great deal more about the circumstances as they emerge as the months and the years go by. I notice in the Explanatory Notes that there is a marvellous explanation:References to the Secretary of State in the Bill mean any Secretary of State. In practice, some of the functions conferred upon the Secretary of State will be exercised by the Secretary of State for Trade and Industry and the Secretary of State for Culture, Media and Sport jointly and others by only one of them".I believe that last week in Committee on this Bill I mentioned that just as two cooks in a kitchen are a problem, I foresee immense problems ahead with two major Secretaries of State involved. I do not conceal my own interest in trying to ensure that the broadcasting interest, which appears to be so important to the character and quality of our society, is adequately maintained in that conflict. It is a real conflict and requires adequate machinery of government to deal with it.
§ 6.45 p.m.
§ Lord Crickhowell
I had not intended to intervene, but I shall do so only briefly. I have been prompted by the remarks that I have just heard. I was a regulator—chairman of the National Rivers Authority—answerable to the Department of the Environment and to the Ministry of Agriculture, Fisheries and Food. On at least one occasion—I could think of others if I put my mind to it—the issues were so contentious that they had to be resolved by No. 10 Downing Street. I can confirm that where two departments of state are responsible for one body there are complex issues that are sometimes difficult to resolve.
§ Lord Borrie
The noble Lord, Lord Thomson of Monifieth, whose interventions in matters of this kind I greatly respect and always enjoy, has allowed himself to make a little fun of subsection (6) with its reference to the conflict of duties that may arise. As he is the former member of a government and a former regulator, I would have thought that he would welcome the openness and honesty of subsection (6) in which there is a recognition that conflicts of duty may arise and in which it states that Ofcom shall resolve such conflicts. That seems to me to be an excellent subsection. By the same token clearly, as consumers and as members of the public, we should all expect that Ofcom explains itself when it has the problem of resolving a conflict of duty. Therefore I believe that this is a good amendment.
§ Lord Brooke of Sutton Mandeville
In following the noble Lords, Lord Thomson of Monifieth and Lord Borrie, I apologise to the Committee for using an 1008 illustration that I have used on a previous occasion. I remember discussing the extraordinary kaleidoscope of strategies that were required under the Greater London Authority Bill that the Mayor was charged with setting up. I recall in Committee in another place asking Miss Glenda Jackson, who was the Parliamentary Secretary in charge of the Bill at that time, how differences between the various strategies would be resolved if they were in conflict. In response she made a very long speech at the end of which—it required a degree of textual analysis—she said that they would not conflict because the Bill prevented them from doing so. That is a nice and pious thought. If it was applied to the criminal law, prison numbers would melt at a stroke and penal policy would appear to be a great deal more effective than it had previously been.
The real world is not like that. Priorities must be calibrated. I support my noble friend's worthwhile exploration of this complex dilemma, on which the noble Lords, Lord Thomson and Lord Borrie, have also shed light.
§ Lord Gordon of Strathblane
I am emboldened to intervene briefly on some general aspects of this matter. At an earlier stage in the debate I said, that realistically it was not likely that in five years' time Ofcom would be reporting jointly to two Secretaries of State. I believe that it is important for the Government to give some thought to the mechanism for reporting. I suggest that there should be a Select Committee of both Houses which would receive a report from Ofcom once a year.
Otherwise, the DCMS and the DTI Select Committees in another place will want them and, I have no doubt, yet another committee. One will find Ofcom executives spending the greater part of the year preparing for hearings in front of several different Select Committees in another place. We need to focus and create one Select Committee. If we think we can create a single Ofcom, we surely can create a single Select Committee. The admirable work done by the committee of scrutiny under my noble friend Lord Puttnam surely is a good way ahead: a joint committee of both Houses, to which Ofcom would report once a year.
§ Lord Davies of Oldham
This is an interesting debate against the background of a substantial meeting of minds on the issue in another place. The Bill contains government amendments which were tabled in response to pressure from the Opposition with regard to these important issues. Let us be absolutely clear: the Government accept all representations which are made about the necessity for transparency on the part of Ofcom.
Perhaps I may deal with the original point raised by the noble Baroness about how frequently Ofcom will report on its decisions. In its annual report it will seek to identify the major issues which reflect its principles and the decisions which it has taken during the preceding year. It is fairly obvious why we cannot accept an amendment which looks as though every 1009 decision should be subject to such a report. If the board meets 10 times a year and there are 12 issues of substance which it debates at each meeting—which makes for a fairly substantial meeting—one would expect those decisions to form the basis of the annual report. As noble Lords have indicated, it is enormously important to all stakeholders and the wider public that full information is available.
However, the board will not concern itself with dozens or hundreds of decisions that Ofcom may be taking with regard to individual small stakeholders which raise no significant issue of principle. The board will not be debating them. Therefore, it would be very odd indeed to suggest that documentation was necessary to detail what might consist of hundreds of cases. Anyone who has been involved in a regulatory authority—and I am grateful for the slight nod of assent from the noble Lord, Lord Crickhowell—would appreciate that point. So of course we recognise that the major issues before the board will need to be transparently identified and how Ofcom has reconciled the conflicting interests must be made abundantly clear.
I add also that Ofcom already gives public notes on the deliberations of its meetings. Clearly, issues of substantial principle which the board is considering will not await an annual report and Ofcom will put those into the public domain. So, within that framework, I accept the contention of the noble Baroness that just the annual report would not be sufficient because of the inevitable factor of delay.
I turn to the more general issue first raised by the noble Lord, Lord Thomson. It caused me to shudder in my seat when he talked a little about the tectonic plates of two great ministries colliding. We do not see earthquakes ahead. We rather belong to an age of joined-up government where we expect our two departments to work in mutual amity and consideration. In fact that mutual amity, consideration and forethought is present in the Bill. That is why we all enjoy a broad consensual perspective on the merits of this Bill now that it has emerged from another place and is before your Lordships.
Of course there will be differences which will need to be identified. At present, I have no comment to make on the suggestion of my noble friend Lord Gordon. I recognise what he said. I shall certainly look at the matter, although I must say that it is for Parliament to make a decision on that issue rather than the executive. However, I recognise the fact that inevitably with a body of this kind, with its very substantial interests, there will be widespread interest in both Houses of Parliament with different perspectives on how to respond.
In general terms, I hope that I have given the obvious assurances that we think the Bill was improved in another place as a result of Opposition arguments and amendments, that led us to change this clause, to clarify the issues. I am a little saddened at the suggestion of the noble Lord, Lord Thomson, that perhaps the phraseology is a little bland. I thought that it was a masterpiece of draftsmanship and expressed 1010 the aspirations of all good people and true, and even Members of the Committee, in relation to the issues. Of course the objective is for this body to be transparent and open. Issues of principle must be before the public and stakeholders, otherwise they cannot organise themselves in response to these important issues.
I add that the Bill's approach reflects the recommendation from the joint scrutiny committee, which also accepts that requiring Ofcom to explain every decision by reference to its general duties would be unduly onerous. I hope that I have given assurances to the Committee. I hope that the noble Baroness will feel able, on that basis, to withdraw her amendment.
§ Baroness Wilcox
I thank the Minister for his explanation and for taking the trouble to answer my two questions which I still ask. First: what does the Minister envisage will happen between times? I think the answer I received was that he did not really envisage anything, but he hoped that the regulator will choose to report. My second question was: what about particularly difficult or controversial cases? That did not cover every decision but was for particularly difficult or controversial cases. However, as the Minister said, this is an aspiration. It seems that the Government are becoming more and more aspirational by the day. Hopes and aspirations are wonderful things, but they are not always met.
I am grateful for the support of the noble Lord, Lord Thomson of Monifieth, my noble friend Lord Crickhowell and the noble Lord, Lord Borrie—whom I know well from his days as the Director-General of the Office of Fair Trading. and I was very interested that he supported the amendment—to my noble friend Lord Brooke and to the noble Lord, Lord Gordon of Strathblane, who brought forward a very interesting idea.
I said that this was a probing amendment. So for the moment I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
Baroness Finlay of Handaff moved Amendment No. 27:
Page 4, line 38, at end insert—
( )In performing their duties under this section OFCOM shall have a duty to consult the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly over matters of specific concern, respectively to Wales, Scotland and Northern Ireland.
§ The noble Baroness said: I shall speak to Amendment No. 27, but my remarks may also be relevant to the other amendments in the group. Telecommunications and broadcasting are not devolved; they are a UK-wide industry subject to EU directives, regulation of frequencies, internal market regulation, and so on. But there are some specific issues that are pertinent to Wales which, I believe, are also pertinent to Scotland and Northern Ireland. Perhaps I may address some issues for Wales.1011
§ BBC Wales, Radio Wales and Radio Cymru, S4C, HTV and the independent radio channels are all important broadcasters focused specifically on Wales, the people of Wales and their needs. However, because of the topography, the roll-out of cable is restricted to south Wales and in large areas of Wales there is no mobile telephony coverage at all. Within Wales, the population is diverse. There are those who have Welsh as their first language; those who have English as their first language; some who have no Welsh at all. There is also a marked difference between the populations and their needs between the north and the south; the rural and the urban areas. Even within the urban areas, there arc the Welsh Valleys.
§ The proposal for an Ofcom office in Wales is to be welcomed, as is that for a Welsh representative on the content board, but that is not enough. We need a full consumer panel for Wales to cover the issues specifically relating to Wales, and to work with the Welsh Assembly government to meet the specific needs of Wales. The Welsh Assembly government does not have an executive role, but it must be consulted under the Bill through the statutory routes.
The Welsh Assembly government has an advisory group to a Minister, and the report of that group to the Minister for Culture. Sport and the Welsh Language was laid before the Welsh Assembly government on 27th March 2003 and submitted to the noble Lord, Lord Currie, the chairman of Ofcom, on 3rd April 2003. The report makes a recommendation entirely compatible with the amendment: the preferred option in the recommendation. I cite the report. There were two options for an advisory structure. Option 1 was,
That an Ofcom Wales Communications Council should be established to advise and assist the executive team in Wales"—
That was the option strongly endorsed. The other option, 'shish was not, was,
That no advisory structure be created by Ofcom, and that the executive team in Wales should rely instead on a structured relationship with the National Assembly and the Welsh Assembly Government".
§ My amendment is entirely compatible with the recommendation in option I. The amendment would acknowledge the interests of devolved bodies in matters that concern the economic and cultural development of devolved government not only in Wales, but, I suggest, in the other devolved governments in Scotland and Northern Ireland. I beg to move.
§ 7 p.m.
Lord Thomas of Gresford moved, as an amendment to Amendment No. 27, Amendment No. 27A:
Line 5, at end insert "and give due consideration to representations made by the National Assembly for Wales
§ The noble Lord said: Of course I support the duty to consult set out in Amendment No. 27, moved by the noble Baroness, Lady Finlay of Llandaff. Amendment No. 27A would add a specific duty to give due consideration to representations made by the National Assembly. It is one thing for Ofcom to consult the 1012 National Assembly; it is another for the Assembly to take the initiative by advancing concerns to Ofcom on which it wants Ofcom's consideration.
§ For example, on the first day in Committee, we were discussing jobs and creativity. One cannot imagine Ofcom picking up the telephone to ask, "How are things going with the creative companies in Caernarfon?" Those are matters of jobs—employment—that one would imagine the National Assembly would be anxious to take up with Ofcom in due course.
A proposal has been made that there should be concordats between Ofcom and the Secretary of State's office. That is unsatisfactory; that is not consultation with the elected representatives of the National Assembly. Although broadcasting is not a devolved matter, the National Assembly has and will continue to have an immediate interest in how a broadcaster serves the needs of the people of Wales. No doubt, following his answer on a previous amendment, the Minister will point to Clause 3(3)(1), which states 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".
§ But that is not enough. The decision was taken that there should be no national representatives on the board of Ofcom. There is no advocate for specific Welsh issues on that board, which, we have just been told, meets 10 times a year and which therefore will not have time to consider such matters in detail. As the noble Baroness, Lady Finlay, said, the provision of one member on the consumer and content panels is by no means satisfactory.
§ The fact is that Wales, like Scotland and Northern Ireland, has a democratic, policy-making forum that both creates and implements public policy in many areas in which Ofcom will also have responsibility. Mutual understanding and agreement will require close co-operation. That is a structural issue, not a cosmetic exercise. It is essential that Ofcom continually recognises that the cultural diversity of the United Kingdom must be reflected on our screens and through our radios.
§ Perhaps I may speak to Amendment No. 61, which has been proposed by a cross-party group. The proposed new clause sets out a statutory duty to establish consultative councils with membership determined only after the views of the National Assembly and the equivalent Scottish and Northern Irish bodies have been ascertained. That follows the recommendations made to the National Assembly, as the noble Baroness pointed out, if it is unacceptable to have a consultative council, we propose Amendments Nos. 59 and 78, which give specific authority for the board to establish committees and panels under Clause 12(5), which will have a similar effect. I shall speak briefly to Amendment No. 93, which would place a specific obligation on Ofcom to publish an annual report on its activities in Wales.
§ I am sure that the Government will accept that the amendments are intended to be helpful and to clarify the role of Ofcom and its subsidiary committees. I have 1013 no doubt that Ofcom will try to establish a good and effective working relationship with the National Assembly, but that should not be voluntary—a matter of goodwill that can be revoked at any time. If ownership is to be thrown to the four winds, it is essential that the regulators are properly informed and given the resources, advice and tools to maintain the quality of regional broadcasting.
§ A London-centric or multinational corporation will not understand the specific needs of our unique communications ecology in Wales. It will be tempted to cut down on hours and investment in Welsh programming and production. The amendments would assure that that will not happen.
§ The primary purpose of the Bill ought not to be to bow the knee to global institutions and corporations but to enrich and inspire the lives of ordinary people—in Wales as in the rest of the United Kingdom. I beg to move.
§ Lord Crickhowell
I shall speak to Amendments Nos. 61 and 93, to which the noble Lord, Lord Thomas of Gresford, referred, and which stand in my name and that of other noble Lords who are members of the Joint Committee. They are grouped with Amendments Nos. 27 and 27A but go further than establishing a link with the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly.
Amendment No. 61 would establish consultative councils for matters within the responsibility of the board of Ofcom in Scotland, Wales, Northern Ireland and each region of England covered by a regional Channel 3 licensee. The Joint Committee, at paragraph 56 on page 20 of its report, refers to the Bill's requirement that four members of the content board be appointed to represent the interests and opinions of people living in England, Scotland, Wales and Northern Ireland. The committee referred to what it described as,the challenging requirement that the English representatives appointed for this purpose should be 'able to represent the interests and opinions of persons living in the different regions of England'".If the handful of committee members will really be able to do that, they will be very remarkable people.
It must be understood that the needs of people in different parts of the United Kingdom are strikingly different. I am perhaps in a better position than almost anyone to comment, because I was chairman of the one licence-holder whose licence covered two separate regions—Wales and the west of England. We had to organise entirely different set-ups in Cardiff and Bristol. Welsh viewers wanted completely different kinds of programmes from those wanted by viewers in the west of England. The problems that we had to deal with in each case were entirely different.
I am sure that the same happens in many English regions. In my experience with the National Rivers Authority, when one tried to merge regions or to suggest that the interests of next-door regions in 1014 England were the same, one created outcries and much ill will. For example, the people of Cornwall simply do not believe that they have anything to do with the people of Bristol, with whom they are often linked. It is extremely important that the views of different parts of the United Kingdom are adequately referred to and dealt with.
The ITC, in anticipation of Ofcom's role. has been developing its existing viewer consultative councils in the nations and regions, with more representative content panels able to inform the content board about interests particular to the different parts of the United Kingdom. The ITC also saw merit in the establishment of streamline councils in the nations and regions to be chaired by the relevant members of the content board in providing a link to the devolved administrations.
Against that background, the Joint Committee welcomed the proposal for national and regional councils reporting to the content board through the designated national members. We recommended that formal provision for their establishment be made on the face of the Bill. We further recommended that, in establishing such councils, Ofcom be required to have regard to the views of relevant devolved institutions. We also recommended that Ofcom be required to include in its annual report accounts of its activities in Scotland, Wales and Northern Ireland. That is the point covered by the second of my amendments.
The Government responded that it was all a thoroughly good idea but it should be left to Mom. That is the reply that we have heard again and again from the Benches opposite today. But the Joint Committee believed that the issue should be included on the face of the Bill because of the importance attached to it in the regions and nations concerned. If the Government think it is a good idea, there can be no strong reason in principle why they should object to its inclusion in the Bill. It is a little hard to see why they should reject the proposition, particularly when it is so strongly supported by the National Assembly for Wales, among others, and other public bodies.
The case is particularly well summed up in the Welsh Assembly Government's statement of their current position on the Communications Bill:The Assembly Government is pleased that there are provisions in the draft Bill for designated members for Wales on the Content Board and the Consumer Panel. In order to support the work of the designated members for Wales on the Content Board and the Consumer Panel, the Assembly Government's response recommended that the Bill provide for the establishment of an Ofcom Wales Communication Council, which would be able to consider and advise on content, consumer and technical issues in Wales. The UK Government appears to be receptive to the concept of such a body, but its establishment is not included on the face of the Bill. It is important that viewers and the public at large in Wales have a channel to voice their opinions on content issues. The Independent Television Commission in Wales had its own Viewer Consultative Council until recently. Furthermore, we have the Welsh Advisory Committee on Telecommunications, which was established under the 1984 Telecommunications Act to advise the Director General of the Office of Telecommunications (OFTEL). This Advisory Committee will cease to function once Ofcom is fully established. The Assembly Government therefore attaches great importance to the need to establish a communications council or committee for Wales, and that this is included on the face of the Bill".1015 The debate on the subject in the Standing Committee in another place was unsatisfactory for two reasons. All the relevant amendments were moved by Mr Simon Thomas, the Plaid Cymru Member for Ceredigion. The merits of the amendments were then lost in a welter of politically charged accusations that they were all about extending devolution. The charge was completely unfair, but the Labour members could not resist playing politics with some sensible, practical proposals.
Mr Thomas also played into his critics' hands by tabling a new clause that probably went too far. It suggested that the Secretary of State should appoint the committee members after seeking nominations from the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales, and that the committee should then issue recommendations, not just on content issues to the content board, but on all the activities of Ofcom with their respective regions. The Minister, Dr Howells, in responding to the raft of amendments, concentrated almost entirely on that flawed clause. The difficulty is that, if one tables a number of amendments, skilful Ministers reply to one that is weak and pass over all the others that might have greater merit. That is exactly what happened on that occasion.
I draw attention to two particularly contentious observations by the Minister. Referring to the board members representing England, Scotland, Wales and Northern Ireland, he said:Through such mechanisms, the interests of the nations will most appropriately be represented".—[Official Report, Commons Standing Committee E, 12/12/02; col. 105.]I am bound to say that, without committees of that kind, it is extremely doubtful that they will be adequately represented.
On the question of appointments, the Minister produced what I think is one of the most tortuous solutions that I have ever seen devised by a Minister. He said that he could not see any reason for the formal involvement of the devolved Scottish Parliament or Assemblies, and added:When considering such appointments, we shall expect Ofcom to consult the relevant territorial departments and, through them, the devolved Administrations in order to seek nominations for suitable candidates. We envisage that such consultative arrangements could be set up in a memorandum of understanding between Ofcom and the relevant Secretary of State for each nation. The final appointments will, and must, be a matter for Ofcom"—.[Official Report, Commons Standing Committee E, 12/12/02; col. 106.]I understand that it is always a task in government now to find something for the Secretaries of State to do, but that is a bizarre way of approaching the system of appointment and consulting about them. We ought to do better than that. On that occasion, the Minister produced the argument that we will, no doubt, hear in a moment and say that Ofcom has the power to do everything that is necessary and that no more need be said about it.
As I have made clear, my amendments deal with content issues. Amendment No. 27, moved by the noble Baroness. Lady Finlay of Llandaff, is wider in scope. It deals with telecommunications matters as well. It has the 1016 support of the Welsh Advisory Committee on Telecommunications. The WACT acknowledges that telecommunications and broadcasting are not devolved functions and says that that is understandable, in the context of the overwhelmingly UK-wide structure of both industries and the regulatory framework for the internal market and competition, which derives from a nexus of European Union directives. However, the committee then raises some specific concerns. It says that there is a danger that, if consumer panel members are appointed and—perhaps more importantly—dismissed by the main board of Ofcom, the consumer panel will be perceived publicly as a tame poodle, rather than a watchdog. It then points to the important precedent of the advisory committee for telecommunications specified in the Telecommunications Act 1984.
At the appropriate moment, I shall move two different amendments, but I will conclude now by saying that I support the amendment moved by the noble Baroness. It is correct that Wales should be able to express its interest in and concerns about telecommunications matters, as well as broadcasting issues. I am sure that that goes for Scotland, Northern Ireland and the English regions as well.
§ Lord Prys-Davies
I support all the amendments in the group. As the Bill impinges on some of the major functions devolved to the Assembly, it is extraordinary that there is no provision in Clause 3 that requires Ofcom to consult the Welsh Assembly. There is no provision anywhere in the Bill about the relationship between the Assembly and Ofcom.
It is strange because the policy statement on the draft Communications Bill, published in May last year, was a helpful starting point. Paragraph 126.96.36.199 said:The Government expects Ofcom to consult the relevant Secretary of State and devolved administrations in making appointments".Paragraph 8.7 states:We will expect Ofcom to develop good links with the relevant policy committees and executives of the devolved assemblies and with representatives of the English regions".I understand, therefore, the dismay of Welsh Assembly Members, when they came to appreciate that the Bill placed no statutory duty on Ofcom to consult the Assembly. Amendments Nos. 27 and 27A would remedy that omission, and I support them.
As the Bill stands, there is the inevitable risk that specific Welsh interests, such as those relating I o the bilingual nature of broadcasting in Wales and television reception in Wales, will not receive the attention that they merit. On 3rd April, the then Welsh Minister for Culture, Sport and Welsh Language 'wrote to Members of your Lordships' House with an interest in Welsh affairs to alert us to the fact that the Assembly was not satisfied with the Bill. The Assembly wanted changes, and it wanted the changes that are proposed in the amendments. I cannot understand why the UK Government should refuse the reasonable requests made by the Assembly. How could the Government 1017 have thought it right that two persons—one on the consumer panel and the other on the content board—could properly represent the Welsh public interest?
That brings me to a matter touched upon by the noble Lord, Lord Crickhowell. In the Standing Committee in another place, the Minister, Dr Kim Howells, envisaged that,consultative arrangements could be set up in a memorandum of understanding between Ofcom and the relevant Secretary of State for each nation".—[Official Report, Commons Standing Committee E, 12/12/02; col. 106.]He also said that Ofcom could consult the devolved administrations through the Secretary of State. Is that really what is intended? I would be grateful if the Minister could elaborate on what the Government have in mind. I am bound to question whether such an arrangement would be adequate to protect the interests of Wales, particularly when the Secretary of State and the devolved Government do not share an allegiance to a political manifesto. Is it the Minister's intention that the Assembly should be a party to the memorandum of understanding?
There is a memorandum of understanding between the UK Government and the devolved administrations in being. It was presented to Parliament in July last year, and I shall ask the Minister a question about it. As there appears to be a disagreement—to use that term—between the devolved Government in Wales, on the one hand, and the DTI and DCMS, on the other, on the matters that we are discussing, should not the matter be referred to the joint ministerial council, under paragraph A1.7 of the supplementary agreement? We require clarification of that issue.
§ Having said that, I support the amendments.
§ Lord Roberts of Conwy
I shall confine my brief remarks to matters relating to Wales, although, with a little transposition, they will be equally applicable to Scotland and Northern Ireland.
My first point is that this matter is the first evidence of real discord between the United Kingdom Government and the Assembly Government in Cardiff over legislative proposals. That discord is evident in the difference between the position taken by the Government and that taken by the Assembly Minister, Miss Jenny Randerson. Amendment No. 27, tabled by the noble Baroness, Lady Finlay of Llandaff, rightly highlights the inadequacy of the Bill's provision for the national regions. The National Assembly appears to have had no role in the appointment of Professor Ian Hargreaves of Cardiff to the Ofcom board. It will have no role in the appointment of Wales-designated members of the content board and consumer panel. That is a dreadful slight to the Assembly.
§ Lord Crickhowell
If there is an implication that the noble Lord did not approve of the appointment of Professor Hargreaves, I must say that I cannot think of a more suitable candidate. I am sure that, given the chance, the Assembly would have endorsed him.
§ 7.30 p.m.
§ Lord Roberts of Conwy
Yes, but the point is that it was not given the chance. I believe that the Government's proposed concordat between Ofcom and the Assembly adds insult to injury. Concordats are normally between the Assembly and departments of state. As the Assembly Government Minister. Jenny Randerson, put it,any such arrangements will be purely voluntary and based on goodwill and could be revoked by Ofcom at any time".Having considered all that, I am not at all sure that the requirement of Amendment No. 27 for consultation with the national representative bodies is enough. It is less than half a loaf; it is only a crumb of comfort. We should take the much more positive line that my noble friend represented as a member of the Joint Committee. I am of course delighted that under Clause 1 Ofcom will have separate offices in Wales, Scotland, Northern Ireland and England and that presumably Ofcom will appoint people to run them. But in Wales, for example, with all its distinctiveness, including the Welsh language, who will advise the officers?
My noble friend is on the right lines with Amendment No. 61 which lays a duty on the content board to establish consultative councils. But is there not much to be said for more general advisory councils to correspond to the BBC's councils and other advisory bodies in the Ofcom field? Of course, that is true of Scotland and Northern Ireland as well as Wales.
Quite frankly, I must tell the Government that there is a head of steam behind this demand for a council in Wales and I believe that it makes a lot of sense. As we have already heard, there was a group set up to advise the National Assembly for Wales under the chairmanship of Geraint Talfan Davies, a former controller of the BBC. The group has certainly made the case and the Assembly has accepted it.
I shall not deploy the arguments; they are all there in the group's report. But I shall take a slight dig at the noble Lord, Lord Thomas, because he has always said—I am sure that many of us have heard him—that we should give the National Assembly what it wants. Are we going to give it what it wants or are we going to deny it, which is the case here?
§ I believe that we should concede the demand—
§ Lord Thomas of Gresford
Perhaps I may remind the noble Lord that Miss Jenny Randerson who he quoted is a Liberal Democrat.
§ Lord Roberts of Conwy
I do not think that even she, at the distance between us, can alter the argument or the case which I put. The noble Lord is aware of the advice that he has given this Committee on a number of occasions and the situation that I highlight now. Are we to concede what the noble Lord, Lord Thomas of Gresford, has frequently pressed upon us and give the National Assembly what it wants or are we to deny it? I believe that it is right on this occasion.
1019 Its broadband policy has shown that it has a degree of expertise that justifies its proactive involvement, a point acknowledged by the noble Lord, Lord McIntosh, on the first day in Committee on the Bill, at col. 668 of the Official Report on 29th April 2003. Therefore, I shall consider tabling an amendment on Report outlining the proposition that there should be councils advising Ofcom in Scotland, Northern Ireland and Wales.
§ Lord Thomson of Monifieth
I have added my name to. Amendment No. 78 and I wish to add a Scottish voice to what has been predominantly a Welsh argument. I want to make two points. Amendment No. 78 proposes that Ofcom should create committees for England, Scotland, Wales and Northern Ireland. We urge that from these Benches. However, I urge an additional point to those previously made.
As regards the quality of public service broadcasting in this country and the manner in which it has grown, its strength has lain in its arm's length relationship with the parliament and government of the day. What is good enough for the United Kingdom Parliament should be good enough for the National Assembly for Wales—if I may say so, with all deference—and for the Scottish Parliament. Therefore, while there is a need for Ofcom to ensure that it has the necessary committees to enable it to collect the views and interests of people throughout the United Kingdom, I regard public service broadcasting in this country as being one of the great cements that holds the whole United Kingdom together and creates a common climate of opinion, for all the diversities of geography and language. I would be very resistant to seeing the tradition established from the founding of the BBC that broadcasting organisations serve the public interest best by being kept at reasonable arm's length from the elected politicians, whether in the United Kingdom Parliament or in the Assembly or parliaments of other parts of the United Kingdom.
§ Lord Alderdice
Having added my name to Amendments Nos. 59 and 78, I am gratified to hear the case for them put so eloquently by my noble friends Lord Thomas of Gresford and Lord Thomson of Monifieth. In respect of Northern Ireland, there is a further important issue. The border—which stops many things, although not everything, as has been frequently noted—does not stop radio broadcasting, telecommunications, cell telephones or television. Indeed, a number of our broadcasters, particularly in the commercial sector, now receive a great deal of their advertising and their viewing from the other side of the border.
That is very important in terms of content. There are a number of people in Northern Ireland who, because of their sporting interests, their cultural interests or their wider intellectual and political interests, want to receive content which is not exclusively United Kingdom content. This is something that has been understood and achieved by broadcasters and broadcasting organisations because there are people from within Northern Ireland right across the communities making interventions and bringing to the attention of broadcasting organisations and regulators the needs of the people.
1020 There are also technical matters which are of great importance because people go backwards and forwards across the border. There are very real issues in terms of telecommunications. For example, as regards telephone numbers, frequently, those north of the border have found it more congenial and sometimes more effective to contact their colleagues in Dublin for an outcome rather than their colleagues in London, and frequently, through Dublin, London is more co-operative. Therefore, the idea of having something in Northern Ireland is very important for the people there.
This has been recognised in an international binding agreement. In the Good Friday agreement the question of broadcasting was included as one of the issues on which there would be co-operation. Therefore, I seek a response from the Minister as to whether the implications of that agreement have been understood and implemented in the conduct of the legislation and, in that sense, whether there have been consultations outside the United Kingdom—as evidenced by the activities of the Prime Minister today—which are a very important part of relationships with my part of the UK. That is not the only argument in respect of Northern Ireland, but it is in addition to the arguments already made by noble Lords in respect of Scotland, Wales and, indeed, the English regions.
§ Lord McNally
I am a signatory to Amendments Nos. 59, 61, 78, and 93. Noting the two horses that Ministers have to ride—the point made by the noble Lord, Lord Thomson, that broadcasting has undoubtedly been a great unifier of this United Kingdom of ours while at the same time recognising and reflecting national diversities and aspirations—I remind the Committee of just two points.
First, when this debate began some two years ago, much of the lobbying was for Scottish, Welsh and Northern Irish members of the full Ofcom board. Some of us resisted great pressure from our regional parties on the matter because we accepted the Government's argument that the main board should be kept small and not regionally specific. Secondly, my real point is one that reflects all these amendments and the arguments that have been made. The following advice is to be found in the recommendation contained in paragraph 59 of the Joint Committee's report:We are conscious of the fact that Parliament has already decided that the overwhelming majority of functions for which OFCOM is responsible should not be devolved. Nevertheless, it is right that the Bill provides further assurance that specifically Scottish, Welsh and Northern Ireland interests will not be neglected".All the amendments in this group reflect the fact that such assurances are not yet contained in the Bill. Ministers would be well advised to recognise that.
§ Baroness Buscombe
We have considerable sympathy for all the amendments, but I was especially moved by the words of my noble friend Lord Roberts of Conwy who spoke passionately in relation to the need to consider Wales. All noble Lords who have spoken have made useful contributions to the debate. 1021 However, it is important to balance the need for a board that is not too large and to avoid establishing committees for their own sake with the need properly to recognise the very distinct interests of those from our different devolved regions.
In relation to Amendment No. 93, I should point out to my noble friend Lord Crickhowell that one could more easily have deflected any charge that one is seeking to defend devolution for its own sake if that amendment included reference to "England". Indeed, it was the very fact that there is no specific reference to reporting the activities within England that deterred me from supporting the amendment.
§ 7.45 p.m.
§ Lord Davies of Oldham
When the noble Baroness, Lady Finlay, rose to introduce her amendment some three-quarters of an hour ago, as a veteran of devolution debates in the mid-1970s I noted that we were in for a late dinner hour. That has certainly proved to be the case. Indeed, we should have a very late dinner if I were equipped to answer in detail every point raised during this wide-ranging debate.
During the time when the debate seemed to be focusing overwhelmingly on the relationship between the Welsh Assembly and its role and on the position of Ofcom, I was enormously grateful for the noble Lord on his white charger, coming from Scotland, to remind us that broadcasting in this country is a reserved matter for a very good reason; indeed, broadcasting is absolutely critical to the unity of the end culture of the United Kingdom, as are the arrangements that we make in that respect—a point reinforced by the noble Lord, Lord McNally.
We all recognise that public service broadcasting, which relates to so much of the work carried out, is a national concept of a fundamental principle that none of us would wish to put in jeopardy. Therefore, we must carefully consider the question of the representational role and how we respond to local communities, to the nationalities, and to the regions, who have a proper stake in ensuring that broadcasting is also responsive to local needs and interests.
There is a balance to be struck. In the course of my response, I hope that I shall defend the balance that the Bill seeks to establish. I am sure that Members of the Committee are well aware of the measures that we have included in the Bill in order to meet our commitment to ensure that there is an effective relationship between Ofcom and all parts of the United Kingdom. Provision has been included in the legislation to place the main Ofcom board under an obligation to have regard to the interests of the different parts of the United Kingdom in carrying out its duties; for Ofcom—this provision was applauded by several noble Lords in the debate—to have offices in each nation and in the English regions; and for there to be designated members on both the content board and the consumer panel to represent the interests of each nation and the English regions.
I emphasise that the noble Lord, Lord Currie of Marylebone, in his capacity as chairman of Ofcom, has already visited Scotland, Wales and Northern 1022 Ireland and listened most carefully to the strong representations made to him on the way in which Ofcom should discharge that function, and on how it should organise both itself and its committees in order to meet those obligations. Such representations have been reflected in today's debate.
Amendment No. 27 would require Ofcom to consult the Scottish Parliament, the National Assembly for Wales, and the Northern Ireland Assembly on matters of specific concern to those bodies. Amendment No. 27A, tabled in the name of the noble Lord, Lord Thomas of Gresford, would modify that provision by requiring Ofcom to give due consideration to representations made by the National Assembly for Wales.
When carrying out its duties, Clause 3(3)(1) already requires Ofcom to have regard to the different interests of persons,in the different parts of the United Kingdom".The purpose of the provision is to ensure that the interests of the nations and regions are taken fully into account by Ofcom in performing its duties.
The Bill contains provisions throughout that require Ofcom to consult widely on its policies. The devolved administrations will be part of any consultation process that Ofcom undertakes in compliance with these requirements. Indeed, in recognition of the need to ensure that the devolved administrations are properly involved in the consultations that Ofcom undertakes, one of the measures that we expect Ofcom to put in place is to draw up a memorandum of understanding with each nation. Among other things, that would set out the arrangements for consulting the devolved administrations on particular issues of relevance to them.
Within that framework we envisage that the consultation in the first instance would be the appropriate territorial Secretary of State. Such Secretaries of State would not be fulfilling their duties unless they, too, took careful note of the representations made to them by the bodies of the nations involved. The appropriate formal arrangements that need to be developed in this area will primarily be the responsibility of the territorial Secretaries of State, but there is no way in which they could reach intelligent decisions without having due regard to the views of the Assembly and of the Parliament.
I am seeking to give clear reassurances that appropriate consultation is envisaged within the Bill, and that the framework within which it is being operated is one in which broadcasting remains a reserved matter. In doing so, Ofcom will need to give proper consideration to representations made to it. We believe that this will provide a sound basis on which to ensure that the devolved administrations are consulted properly and their views considered. Therefore, we do not accept the need for the amendments and I would ask the noble Baroness and the noble Lord to withdraw them.
Amendment No. 59 would require Ofcom to authorise the content board to establish committees to provide advice in relation to England, Scotland, Wales and Northern Ireland. Amendment No. 61 1023 would also require the content board to establish consultative committees for each nation, chaired by the respective national members appointed to the content hoard, and for the regions of England, the chairs of which will also serve as members of the board.
We have been considering with Ofcom what would be the most appropriate means by which to ensure that the content board receives the advice it will need in relation to the nations and the regions. There is a shared desire to ensure that the arrangements are right, but there are also resource implications for Ofcom—and, indeed, under the amendment, for the individuals serving on the content board—which must be taken into consideration. We hope to be able to discuss these proposals shortly with the relevant territorial departments and the devolved administrations to set out what those arrangements might be. That will provide greater clarity on this issue as the Bill progresses through the House.
I wish to emphasise that this is a changing situation, one which is evolving rapidly and needs to be worked out through the process of consultation. To that end, I can give the Committee a reassurance that before the Bill has completed its passage through this House we shall have a clearer definition of the nature of consultation which, at this stage of the process, is still being discussed. I hope that Members of the Committee will accept that it is difficult for me to be as definitive at this point as some have sought.
The Bill already contains a provision to enable Ofcom to authorise the content board to establish committees and panels to advise the board on the carrying out of its functions. We have tried to avoid being overly prescriptive, as what may appear to be necessary now may not be so in the future. We believe, therefore, that the existing provision is sufficient to provide the flexibility needed to allow Ofcom to establish the most suitable arrangements both now and in the future.
I turn now to Amendment No. 78, which would require the consumer panel to establish and maintain advisory committees for England, Scotland, Wales and Northern Ireland. Apropos Northern Ireland, I thought that my cup was already full, but it then ran over when the noble Lord, Lord Alderdice, introduced a dimension to the debate which I had not anticipated and feel singularly ill-equipped to respond to. However, let me give the noble Lord the fundamental assurance that I believe he is seeking. The Government fully recognise the role of broadcasting in the Good Friday agreement. The Bill as drafted does not conflict with the agreement. While I recognise the points made by the noble Lord and the emphasis he sought to lay on the very special dimension of broadcasting in Northern Ireland, I can give him that assurance and I have no doubt that, if it does not meet the point to his satisfaction, he will press me further at subsequent stages of the Bill.
Members of the Committee will be aware that the Government agreed with the recommendation made by the Joint Scrutiny Committee that the consumer 1024 panel should be given a greater degree of independence from Ofcom by being able to determine for itself what committees it wishes to establish. Clause 17 of the Bill allows the consumer panel to set up committees to provide advice about matters relating to its functions. If the consumer panel is now to enjoy exercising this additional level of independence, as recommended by the scrutiny committee and which we have provided for in the Bill, then it must be allowed to decide what committees to establish for itself. Therefore we do not propose to limit the panel's independence by placing a requirement on it, as this amendment would do, to establish either national or any other type of committee.
I turn finally to Amendment No. 93, which would require Ofcom to include in its annual report accounts of its activities in Scotland, Wales and Northern Ireland. The amendment seems to take as its starting point an assumption that Ofcom is otherwise likely to report on its activities only as they relate to England, which is a somewhat unlikely concept. Ofcom has a United Kingdom-wide remit, a point clearly made by the noble Lord, Lord Thomson of Monifieth, in his intervention. That United Kingdom remit can be met only ifOfcom's reports cover all its activities, including those which impact individually and separately on the nations of our country. I cannot see that Ofcom would ever want to limit the accounts it gives in its annual report to activities concerned with England alone. Similarly, where Ofcom carries out significant activities specific to a particular nation, I am sure that it will wish to report on those activities. Indeed, as we discussed in an earlier debate, the Bill demands from Ofcom a substantial degree of transparency in the way it carries out its activities. On that basis, I hope that the amendment will be withdrawn.
There appeared to creep into the debate on one or two occasions an implication that somehow the relationship between Ofcom and the devolved administrations will be largely dictated by Ofcom's whim. That will not be the case. Ofcom will agree memorandums of understanding with the relevant Secretaries of State covering issues such as consultation on relevant national appointments; it will hold regular meetings with the devolved administrations; and it will produce an account in its annual report of its activities within the nations. So Ofcom has clear obligations built into the Bill in relation to the administrations addressed by this group of amendments.
I apologise to the Committee for speaking at great length, and I apologise too for having had to glide over certain points that were made with some force during the debate. We are still at an early stage of the Bill. Certain aspects of it will become clearer over the next few weeks. If I have not been able to respond to the satisfaction of all Members of the Committee today, perhaps I will be able to do so at a later stage. On that basis, I hope that I have been able to respond in a manner that will satisfy the Committee at this point and that the amendments will be withdrawn.
§ Baroness Finlay of Llandaff
I thank the Minister for that reply and for his assurances with regard to the memorandums of understanding. I also thank all noble Lords who have contributed to the debate. While listening to the tone of our discussions, I was struck by the tensions that appear to exist between the devolved governments and the need for a UK-wide remit. I am not sure that I would agree with the noble Lord, Lord Thomson, that there is a degree of incompatibility in seeking to meet the needs of Wales as expressed by the National Assembly for Wales and maintaining a UK-wide responsibility in broadcasting to the whole nation.
All the contributions have been extremely interesting in relation to the way in which the devolved administrations will look at the rolling responsibilities and monitoring through Ofcom. At this stage, I would like to withhold any decision with regard to my amendments. I shall read carefully all that has been said.
§ Lord Thomas of Gresford
Before the noble Baroness formally withdraws her amendment, perhaps I may say a few words or I shall not have a Motion before the House.
In relation to Amendment No. 27A, of course I shall withdraw it if the noble Baroness withdraws her Amendment No. 27. However, I should like to make one or two comments on the Minister's response. A memorandum of understanding made with a Secretary of State is in no way satisfactory. As the noble Lord, Lord Roberts, pointed out, the noble Lord underestimates the head of steam which has built up on this issue. The Secretary of State, who, by the Government's own choosing is a part-time Secretary of State because he also spends time in Europe, does not have the direct confidence of the people of Wales enjoyed by the National Assembly. If the noble Lord thinks that the people of Wales are going to be satisfied with some kind of agreement hammered out with the Secretary of State, then he is much mistaken.
The Minister did not respond to the point that a conflict is arising between the Assembly and the Government and that, as the noble Lord said, it may very well come to machinery being employed to resolve it. The Minister will be building up a great deal of trouble if the views expressed today are not taken seriously by the Government. I beg leave to withdraw my amendment.
§ Amendment No. 27A, as an amendment to Amendment No. 27, by leave, withdrawn.
§ Baroness Finlay of Llandaff
I am grateful to the noble Lord, Lord Thomas of Gresford, for that intervention. Extremely serious points have been made and it may be very important to consult outside the Committee and to come back later to the House having considered all the points in hand. This is probably not the time to seek the opinion of the Committee and I beg leave to withdraw the amendment.
§ Amendment No. 27, by leave, withdrawn.
§ [Amendment No. 28 not moved.]
§ Clause 3 agreed to.
§ Lord Davies of Oldham
I beg to move that the House do now resume. In doing so, I suggest that the Committee stage begin again not before 9.1 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.