Electronic Communications Code

880.     Clauses 102 to 115 provide for what is known as the "Electronic Communications Code". Under it, OFCOM may grant certain rights to providers of electronic communications networks and providers of underground conduits which enable them to install apparatus on or under land owned by others. If the owner's or occupier's consent to the installation is refused, the provider can apply to the courts for an appropriate order. These provisions engage Article 1 of the First Protocol to the ECHR, since they affect the "peaceful enjoyment of possessions": but it is considered that they satisfy the exception of being in the public interest; and it may be noted that no objection to the existing Code (see section 10 of and Schedule 2 to the Telecommunications Act 1984 which make essentially the same provision as in the Bill) has been raised on ECHR grounds.

Powers to require suspension or restriction of a provider's entitlement

881.     Clause 128 provides for the suspension or restriction, on public safety, public health or national security grounds, of a person's entitlement to provide an electronic communications network, service or associated facility. The JCHR were concerned that the clause as it was originally drafted, did not contain adequate safeguards against arbitrary decisions made by the Secretary of State, which may affect a person's rights to the enjoyment of their possessions under Article 1 of the First Protocol to the ECHR. The Government consider that the provision as drafted was compatible, but have amended this clause to provide expressly that the Secretary of State, before making a direction under this clause, is required to have reasonable grounds for believing that it is necessary to do so.

Information provisions

882.     Clauses 131 to 141 contain provisions about the gathering of information by OFCOM; and additional provisions are contained in clauses 166 (which enables OFCOM to require persons who establish, use or install wireless telegraphy stations or apparatus to provide information for statistical purposes) and 186 (under which OFCOM may require the provision of information by both parties to the dispute and others as part of their function of resolving disputes). The JCHR expressed concerns about the implications that the equivalent provisions in the consultation draft of the Bill had for rights to a fair hearing, to respect for private life, and to enjoyment of possessions. As a result, some provisions in that draft have been removed.

883.     However, the Government have not included in the Bill anything to provide express protection against self-incrimination or for items subject to legal professional privilege. Such provision is not necessary to ensure that the privileges in question (created under common law) are fully protected. The widespread use of such provisions could paradoxically have the effect of weakening the protection accorded to them, by suggesting that in legislation where such express provision is absent, Parliament did not intend the privilege to receive full protection.

Seizure and forfeiture

884.     In clause 177 and Schedule 7 (which provide for the seizure and forfeiture of wireless telegraphy apparatus which does not comply with section 7 of the Wireless Telegraphy Act 1967) some changes have been made to meet some concerns of the JCHR about minor aspects of these provisions as they appeared in the published draft. The Bill now provides that OFCOM must exercise discretion before bringing forfeiture proceedings and return seized apparatus if they decide not to proceed; forfeiture proceedings may not be brought without notice; and the court is given discretion about whether to condemn seized apparatus as forfeit, and also on whether to order security for costs to be given.

Disputes

885.     Clauses 180 to 186 provide for OFCOM to resolve disputes between private parties in respect of matters arising under the Bill and other wireless telegraphy legislation. In itself this procedure would not satisfy Article 6 of the ECHR, particularly since OFCOM, as the regulator, might not be regarded as impartial. Compliance is secured, however, by virtue of the fact that, until OFCOM makes a final determination, either party may bring court proceedings in respect of the subject of the dispute (clause 182(1)), which may lead to a stay of the OFCOM proceedings (subsection (3) of that clause); and a final determination is subject to appeal to the Competition Appeal Tribunal under clause 187(1)(a), with further appeal on point of law to the Court of Appeal or Court of Session (clause 191).

Replacement of Channel 3, Channel 5 and public teletext licences

886.     The clauses in Chapter 2 of Part 3 that concern the grant of new digital licences to provide the Channel 3 and Channel 5 services, and the licence to provide the public teletext service (see especially clauses 209 to 212, 216 to 218 and 219 to 224) could potentially engage the rights of licence holders to the enjoyment of their possessions under Article 1 of the First Protocol to the ECHR, especially where the implementation of must-offer obligations and the requirement to offer smart ("solus") cards to persons who can get their television by satellite only could impose economic burdens on licensees. The Government are satisfied that these provisions pursue a legitimate public purpose in ensuring the universal availability of public service broadcasting, and that the Bill makes adequate provision for licence holders to be compensated for those costs through the adjustment of the additional payments due under their licences.

Direction to licensee to take remedial action

887.     Clause 230 concerns the enforcement of licences to provide television licensable content services. In the published draft Bill, the contravention by the licence holder of a condition of a licence could have been remedied, where appropriate and without prejudice to the imposition of a financial penalty, by a direction to the broadcaster by OFCOM to include an apology or correction in the licensed service. This power presently exists elsewhere in the broadcasting legislation, too: see sections 40 and 109 of the 1990 Act, for example.

888.     The JCHR (see paragraphs 41 and 42 of their Report) considered that such provisions could violate Article 10(1) (which amongst other things guarantees a right to hold opinions). In the Government's view, the provision as drafted was compatible: as the JCHR recognised, it serves a legitimate purpose. Also, the power incorporates a right for the broadcaster to make representations to OFCOM before a direction is given, and permits him or her to distance himself or herself from the apology by announcing that it is being given pursuant to a direction. In any event, OFCOM, as a public authority, would be required by the Human Rights Act 1998 to exercise the power in a manner compatible with the broadcaster's rights under Article 10. Nevertheless, having regard to the JCHR's concerns, the Bill will replace the power to direct that an apology be given with a power to direct that OFCOM's findings on a licence contravention be published. The power to order a correction to be broadcast is to be retained. Similar powers in existing legislation will also be changed.

Penalties and other regulatory sanctions on broadcasters: procedural safeguards

889.     The JCHR were concerned about what they saw as the lack of procedural safeguards available to broadcasters when OFCOM make directions under clause 230 and other powers in the broadcasting legislation (e.g. sections 40 and 109 of the 1990 Act) to direct an apology to be given, and also when applying other sanctions, such as the imposition of a financial penalty or the revocation of a licence (e.g. clauses 231 to 233 and 244(3) of the Bill and see also provisions of the existing legislation such as sections 41, 42, 110 and 111 of the 1990 Act and 17, 23, 27, 59, 62 and 66 of the 1996 Act). They considered that the protections offered by the Bill were inadequate and did not meet the standards set by Article 6 (right to a fair hearing before an independent and impartial tribunal).

890.     In the Government's view the Bill as drafted is compatible with the ECHR. It is accepted that at least some OFCOM decisions in the areas mentioned above are likely to engage licensees' rights under Article 6 and that OFCOM will need to establish appropriate internal procedures for handling alleged breaches of conditions and for giving practical effect to broadcasters' rights to have a reasonable opportunity to make representations, but there is no reason to think that OFCOM will fail in that respect, and there could be disadvantages in tying OFCOM's hands by laying down statutory procedures that could deprive them of valuable flexibility. Such procedures, coupled with the availability of judicial review, would in the Government's view be found to meet the standards set by Article 6.

Negative content controls and ensuring standards of fairness and privacy

891.     Clauses 307 to 313 concern the negative content controls that are applied to all television and radio services. Such controls (and the penalties available for their breach) are in principle an interference with the freedom to receive and impart information which is protected by Article 10(1), but that right is not absolute. The securing of the objectives set out in clause 307(2) is a fundamental aspect of the regulation of broadcasting in the UK and serves, in particular, the purposes of preventing crime or disorder, protecting health or morals, and protecting the reputation or rights of others (including their right to receive information and ideas). The Government believe that these powers are justifiable within the terms of Article 10(2). The same goes for OFCOM's powers (which will be transferred to it from the Broadcasting Standards Commission under the Bill) under Part 5 of the 1996 Act to consider and adjudicate upon complaints relating to unfair or unjust treatment in programmes, or unwarranted infringements of privacy.

Objectives for advertisements and sponsorship

892.     Clause 309 imposes a duty on OFCOM to secure a general prohibition on political advertising and advertising related to industrial disputes in the broadcast media. The ECHR position with respect to this clause is set out in more detail in the explanatory note to clause 309 above.

Proscription of television and radio channels

893.     Clauses 317 to 320 contain powers for the Secretary of State to proscribe television and radio channels that are not licensed in the UK if they repeatedly contain material that is offensive or incites crime or disorder. These provisions constitute a potential interference with rights under Article 10, but these powers are, in the Government's view, compatible with the ECHR, since the kinds of programme content against which a proscription order may be made correspond to objectives that are legitimate under Article 10(2), and these powers are proportionate to those objectives.

Government control over licensed services

894.     Clause 324 allows a Minister of the Crown to require OFCOM to issue a direction to a licence holder to include a specified announcement in their service, or to require OFCOM to direct a licence holder to refrain from including a matter in a service. In complying, the licence holder may state that the announcement (or, conversely, the matter which has not been broadcast) has been made (or omitted) as a result of the giving of a Government direction. The JCHR and the Joint Committee on the Draft Communications Bill expressed concerns as to the scope of the power, indicating that it engages the right to freedom of expression under Article 10 and the right to property under Article 1 of the First Protocol.

895.     The Government's view is that that it is neither necessary nor appropriate further to delimit the exercise of the power. The clear effect of section 6 of the Human Rights Act 1988 is that the power may only be exercised in compliance with the ECHR. In particular, the Minister would have to have regard to the restrictions permitted under Article 10(2) of the ECHR and the proportionality of any restrictions imposed. By its nature it is not possible exhaustively to set out the circumstances in which the power could, in future, be exercised (but the fact that it appears to have been used only once to date illustrates the care with which it has been exercised). It should also be noted that broadcasters are explicitly enabled to state clearly that the matter arises out of a Ministerial direction and thus are able to dissociate themselves from editorial responsibility.

TV licence fees

896.     Clause 351 allows the Secretary of State - subject to obtaining the consent of the Treasury - to make regulations setting the fees payable by licensees to the BBC (i) on the issue or renewal of a TV licence; and (ii) in such other circumstances as the Secretary of State provides for in the regulations. Regulations may also allow for concessions, and provide for payment of the licence fee by instalments.

897.     It has been suggested that the present regime (which is substantially re-enacted in the Bill) may not be compatible with Article 10 of the ECHR, and in particular that the licence fee is an unjustifiable interference with the right to receive information and ideas without interference by public authority. The Government's view is that it is entitled as part of its wider broadcasting policy to arrange for the funding of the BBC by way of the licence fee, with the aim of ensuring high quality, distinctive and wide ranging broadcasting within the UK, without interference from advertisers and related commercial pressures. The Government is satisfied that the licence fee is compliant with the ECHR.

Media ownership: general

898.     For the most part, the effect of the Bill will be to relax the disqualifications and other restrictions that the existing legislation (notably Schedule 2 to the 1990 Act) imposes in relation to the holding of broadcasting licences. Those that will be retained are, in the Government's view, compatible with the ECHR, for the following reasons.

899.     Such disqualifications and other restrictions in principle engage rights under Article 10, since they affect a person's ability to become a licensed broadcaster (and it is an offence to be a broadcaster without a licence) and so can interfere with his or her freedom to impart information and ideas. They can also correspondingly affect potential viewers' and listeners' freedom to receive that information or those ideas. The partial disqualification for religious bodies also raises issues under Article 9 (freedom of thought, conscience and religion, including a freedom to manifest one's religion).

Ownership by religious bodies

900.     Clause 335 modifies the rules that disqualify religious bodies from holding certain broadcasting licences. The Bill will relax the current rules so as to allow religious bodies to apply for a wider range of licences. Under the Bill, in addition to those currently permitted by the legislation, such bodies would be able to apply for a digital television programme services licence (allowing them to broadcast on television multiplexes) or a local or national digital sound programme licence. They will also be able to hold restricted television licences (permitting broadcasting to a particular establishment or event) and digital additional services licences (on television or radio multiplexes). Religious bodies will still be unable to hold national analogue radio licences, radio or television multiplex licences, licences to provide the nationwide analogue television broadcasting services or analogue television additional services.

901.     The Government's view is that the retention of the disqualification for religious bodies to the extent proposed by the Bill is compatible with the ECHR. The aim of the ban (as summarised by the European Court of Human Rights in ruling inadmissible the challenge brought against the ban in the UK by United Christian Broadcasters) is—

"to promote the efficient use of scarce resources i.e. radio spectrum in order to safeguard pluralism in the media, cater for a variety of tastes and interests and avoid discrimination as between the many different religions practised in the United Kingdom."

902.     The Government are satisfied that the less wide-ranging ban proposed by the Bill pursues a legitimate objective in a proportionate manner and is compatible with the ECHR.

Other ownership restrictions

903.     Schedule 14 contains other rules limiting the ownership of broadcasting licences. One aim of such rules is to protect the plurality of ownership in the broadcast media, including where the ownership of broadcast and printed media impinge upon each other. Although such rules can in principle interfere with the freedom to receive and impart information and ideas that is guaranteed by Article 10, they serve also to promote and protect the rights of others to exercise those freedoms. The Government are of the view that the rules that the Bill (or orders made under it) will create or maintain are necessary in a democratic society and proportionate to the aims stated, and are therefore compatible with the ECHR.

COMMENCEMENT

904.     The provisions of the Bill and the Schedules will be brought into force on a day or days appointed by commencement order of the Secretary of State, save for clauses 27(1), 390 and 395, which will come into force upon Royal Assent.

APPENDIX 1

The following is a list of expressions defined in the Bill, and the clauses and Schedules in which those definitions are to be found.

APPENDIX 2

This table identifies which clauses of the Communications Bill implement which Articles of the four Directives set out below.

References in this table to:-

FD      = Framework Directive;

AuD     = Authorisation Directive;

AcD     = Access Directive; and

USD     = Universal Service Directive.