Office of Communications Bill [Lords]

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Michael Fabricant: I rise to support the amendments, primarily for a reason that my hon. Friend the Member for Vale of York has not cited. Clause 4 (1)(b), (c), (d) and (5), which the amendments would strike from the Bill, are somewhat redundant in relation to the rest of clause 4. Without them, it would simply read:

    ''The functions of each of the existing regulators''—

defined in clause 6 as the Broadcasting Standards Commission, the Director General of Communications, the Independent Television Commission and the Radio Authority—

    ''shall (subject to subsection (4)) include—

    (a) a duty to do everything that is necessary for facilitating the implementation of any relevant proposals about the regulation of communications''.

Given the all-embracing nature of subsection (1) and (1)(a), there is no great need for paragraphs (b), (c) and (d) and subsection (5); unless, of course, my hon. Friend the Member for Vale of York was right that there are additional reasons that will not necessarily help the industry.

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It is useful to consider one by one the parts of the clause that the amendments would delete. Amendment No. 43 would remove paragraph (b), which, as my hon. Friend said, seeks to muzzle the existing regulators—[Interruption.]

The Chairman: Order. The hon. Gentleman must continue his remarks.

Michael Fabricant: I am sorry, Miss Widdecombe. I have been given an interesting note by the hon. Member for Newcastle-under-Lyme (Paul Farrelly), which is extremely distracting. I suspect that it is a ploy by the Government Whips.

There will be a period of indeterminate length after which Ofcom takes over, centring on the question of when the main Bill is published and finally passes through Parliament. The uncertainty is having a detrimental effect on the morale of people in the existing regulatory bodies who do not know whether to apply for jobs with Ofcom or to stay loyal to their current employers. Paragraph (b) creates a conflict of interest. It refers to

    ''a duty to carry out all that regulator's functions in such a manner as appears to that regulator best to secure that OFCOM''—

and so on. In other words, it stipulates that the main role of the existing regulators should be subordinate to that of Ofcom.

The Minister has said that Ofcom will be a light regulator. Indeed, he has chastised me for using the word ''regulate''. He says that Ofcom is there to stimulate the industry, and I hope that that is precisely what it will do. However, I do not see how the existing regulators can help to stimulate the industry if they have to subordinate their activities to ensuring that Ofcom carries out its new function. We do not know when Ofcom will become operational in its main form, rather than the shell form it will take if the Bill is enacted. I have great concerns about paragraph (b), which will not only distort the industry as it presently stands, but create difficulties for the existing regulators.

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Amendment No. 63 seeks to delete paragraph (c). Again, if the function of clause 4 were to ensure that the existing regulators co-operated with the shell organisation of Ofcom, paragraph (c) should not be necessary. However, it states that there should be

    ''a power to do all such other things as that regulator considers appropriate for facilitating the implementation of, or for securing the modification of, any relevant proposals about the regulation of communications''.

Either paragraph (c) is redundant because of subsection (1)(a) or, yet again, we are seeing a desire to give broad powers to the shell Ofcom, which is to be ready to go into action when the main communications Bill is enacted. If that is not the case and we are going to witness this behemoth—a word used earlier—of 1,111 people in a shell organisation, the whole object of having a paving Bill is defeated. Paragraph (c) is almost saying that far from Ofcom being a shell organisation, we shall see two organisations working in parallel, and possibly in conflict, with each other.

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That is at a time when, as the hon. Member for Hampstead and Highgate (Glenda Jackson) has rightly stated, independent television and the communications industry are going through a period of difficulty and strain; that is happening not only in the United Kingdom, but elsewhere. Now is not the time for there to be overlap, confusion and possible tensions between two regulators operating in parallel.

The Minister will stand up at the end and say that that is a load of twaddle because clause 4 means nothing of the kind. If that is the case, why is subsection (1)(a) not sufficient in itself? What new powers do paragraphs (b), (c) and (d)—and clause 5 when I come on to it—deliver if subsection (1)(a) does not already provide the infrastructure for the existing regulators to co-operate with shell Ofcom, unless it is not going be a shell organisation? That is what I find so worrying.

Angela Watkinson: I wonder whether my hon. Friend has noticed that paragraphs (a) and (b) start with the words ''a duty'', but paragraphs (c) and (d) commence with the words ''a power''. The functions of the existing regulators will include a power to do all the things described in paragraph (c), but not a duty. Does he interpret that to mean that paragraphs (c) and (d) are optional?

Michael Fabricant: My hon. Friend has noticed, with her customary eagle eye, something that my hon. Friend the Member for Vale of York and I had missed.

Paul Farrelly (Newcastle-under-Lyme): Will the hon. Gentleman give way?

The Chairman: Order. We cannot have two hon. Members on their feet. Is the hon. Gentleman giving way?

Michael Fabricant: No, but I shall do so in a moment. I had not noticed that the hon. Gentleman had risen because I was looking at the Bill.

Clause 4 might be badly drafted, but I do not think so; the parliamentary draftsmen usually do a good job. In that case, we must ask ourselves why paragraphs (a) and (b) are duties and paragraphs (c) and (d) are powers. It is interesting to use the word ''power'' in paragraphs (a) and (b) to see whether it makes sense, and to use ''duty'' in paragraphs (c) and (d). ''Duty'' means that there is a burden to do the work, but ''power'' confers a power on the shell organisation, which is what I find so confusing.

Time and time again we have heard from the Minister that Ofcom will be just a shell organisation, and that we are spending so much time debating a paving Bill to establish a shadow organisation that will not interfere with the existing regulators. We have been told that nothing will change until the main Ofcom is established, but suddenly we read about duties, powers and control being exerted by this so-called shell organisation on the existing regulators. To repeat the point made by the hon. Member for Hampstead and Highgate, this comes at a time when

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bodies are finding it particularly difficult in commercial markets. This is not a time at which the existing regulators should be distracted because it will be a distraction to perform duties and to work with the shell organisation of Ofcom.

Amendment No. 64 would delete paragraph (d), which contains a word that worries me. It is not the lack of the word ''duty'' and it is not the existence of the word ''power'' that worry me; it is another word, ''promotes'', that worries me. It worries me because I know of other legislation in which the word ''promote'' has been used and has caused difficulties. I shall not speak about this at length because it would be out of order, but it is relevant. The word ''promote'' has already been exposed as not having a great deal of meaning in law; I am referring, of course, to clause 28.

The Chairman: Order. The hon. Gentleman will not refer to clause 28.

Michael Fabricant: Miss Widdecombe, I will obey your command.

There have been instances in which it is clear that the word ''promote'' has many meanings in law. Whatever one might think the word ''promote'' means in the everyday world, it means something completely different in the clause that dare not speak its name—[Interruption.] My hon. Friend the Member for Tewkesbury (Mr. Robertson) says that I may not speak its name. The word ''promote'' poses difficulties not only for the teaching profession, but for the existing regulators. I would rather have seen a wording different from

    ''promotes the interests of Ofcom.''

In other legislation there has been confusion between the words ''promote'' and ''encourage''. The difficulty is caused by those two different meanings, and yet we know in practice what the meaning of ''promote'' was intended to be.

I shall return strictly to the Bill, rather than discussing other legislation to which I personally take a liberal attitude. I am concerned about the use of the word ''promotes''. It is bad drafting, and results in subsection 1(d) being pretty meaningless. I support my hon. Friend's argument that paragraph (d) should be deleted. There are further reasons. I believe that the whole object of Ofcom should be not to regulate, but to assist and, dare I say it, to promote the industry's interests generally.

I do not think that that is going to happen if the Bill contains paragraphs (b), (c) and (d). The industry, at a difficult time, will be hampered, and paragraph (d) will hamper it the most. The Radio Authority and the ITC should be helping television companies and radio stations. Oftel, which I have not yet mentioned, should be encouraging BT and other companies to spread out broadband communications in the UK by satellite, digital subscriber line and asymmetric digital subscriber line. I am concerned that, instead, they will spend a great deal of time concentrating on how to ensure the best interests of Ofcom, not of the industries. I support amendment No. 64.

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Amendment No. 65 would delete clause 4(5), which should be deleted because I do not understand it. I have read it over and over again and it does not make a great deal of sense to me. I must confess to my hon. Friend the Member for Tewkesbury on the Front Bench that I had a very entertaining late night last night with a constituent of mine who is a pig farmer and, as a consequence, my brain cells might not be working quite as fast as usual. However, subsection (5) states:

    ''The functions of the existing regulators by virtue of this section''—

so far, so good—

    ''are in addition to, and without prejudice to the extent of, any of their powers apart from this Act.''

I do not understand ''apart from this Act''; perhaps my hon. Friend the Member for Vale of York or the Minister will explain it. I just do not understand what it means. Can someone intervene and explain? I am getting blank looks from everyone. I am getting blank looks from the Minister. I am getting blank looks from the officials. At this point, I shall give way to the hon. Member for Newcastle-under-Lyme, who has given me rather bad news.

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