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4 Mar 2003 : Column 748—continued
Mr. Timms: First, I wish to say that Government amendment No. 234 will amend the Bill to take account of Scots law, by adding the Scots law terminology in relation to the definition of a lease contained in clause 130.
4.45 pm
In relation to the other amendments tabled by the hon. Member for Maldon and East Chelmsford (Mr. Whittingdale), I shall start by outlining briefly the purpose of the clause. Essentially, it re-enacts, with some updating and improvement, section 96 of the Telecommunications Act 1984, which was aimed at stopping landlords using restrictive terms in leases unreasonably in relation to the running of telecommunications systems or access to telecommunications services by lessees. That provision has now been extended to include restrictions that limit a lessee's choice of electronic communications service provider to their landlord or a person selected by their landlord. It is intended to follow, as far as possible, what is currently provided for under existing
telecommunications licences, which will, of course, cease under the new general authorisation arrangements in the Bill.In relation to tenants' access to electronic communications services, clause 130(4)(a) and (b) deal with restrictive provisions in leases or premises arrangements, as they apply to things done inside a building, or for purposes connected with a provision to the lessee of such services. It is drawn widely to make it unlikely that any kind of electronic communications matter of any relevance to the lessee could fail to be caught by one or other of those subsections. With the amendment to the definition of electronic communications apparatus that I propose to move today, that would include restrictions relating to the installation of apparatus such as satellite dishes when such installation was connected with the provision of an electronic communications service to a lessee. I believe that the clause in its current form is sufficient to ensure that tenants' right of access to electronic communications services, and their freedom of choice in relation to their supplier, is not unreasonably curtailed by their landlord.
Let me deal in a little more detail with the amendments one by one. Amendments Nos. 103 and 104, as the hon. Gentleman explained, would apply the clause to leases or premises-related agreements running for any period of time, as opposed to only those of a year or more. The restriction of a year or more follows section 96 of the Telecommunications Act 1984, which is a reasonable threshold at which the clause should bite. It is consistent with what was on the statute book previously. Under amendment No. 108, the key principle, as the hon. Gentleman explained, would become not just freedom to secure access but freedom of choice of supplier. I am not against the substance of that broader principle, but I am not certain that a change in the principle is needed. The removal of unnecessary restrictions on a lessee's choice of supplier is already adequately addressed in the clause. If I am missing something in that regard, I would be interested to see a little more detail on the issue. The two new subsections added by the rest of the amendment would make a significant change in assigning to Ofcom a role that would otherwise fall to the courts in considering the test of reasonableness. My view is that the courts should consider the test, and that that is not an appropriate role for Ofcom.
Amendment No. 109 directly addresses the concern raised by the hon. Member for Lichfield (Michael Fabricant). It would remove the power that Ofcom has under subsection (6) to exclude any kind of restrictive provision from the scope of the clause. That would be wrong for the reason that he suggested: there could be occasions when restrictions are reasonable, such as preserving the character of a conservation area. No previous experience exists of how these provisions will work, because the provision of the Telecommunications Act on which the proposal is based was never brought into force. Perhaps it would therefore be wise to retain the current flexibility to make exemptions, for the reason that the hon. Gentleman stated, and to see how that works.
Amendment No. 110, by deleting subsection (9), would apply the clause automatically to any lease or agreement granted or entered into before the commencement of the section, as well as to new ones. It is an important safeguard that Ofcom has the discretion to determine whether the section should have effect in relation to any pre-existing leases. I therefore suggest that the power needs to be retained.
I can understand why the hon. Member for Maldon and East Chelmsford has proposed new clause 12. It would extend clause 130, which applies to leasehold and similar tenures, to cover any restrictive covenants affecting freehold property. There would certainly be logic in extending the arrangements in that way, but we have to be cautious. Making changes in property law is a hazardous undertaking, affecting the rights of property owners—possibly significantly. Changes made with the best of intentions may have quite unintended consequences. I can understand the argument for making changes, but I am not sure how serious and pressing the issue is in practice. However, if we were to make changes, they would need to be carefully and fully considered and consulted on. The hon. Gentleman may accept that that would take significantly longer than the time that will be available to us during the passage of this Bill.
The hon. Gentleman raises interesting points and there is potential for extension in future. The best reassurance I can give him is that we will review this issue in our review of the working of the new provisions in the Bill.
Mr. Whittingdale: I am grateful to the Minister for his response. Of course, I accept that tinkering with property law should be approached with some trepidation—although clause 130 does, in fact, tinker with some property law. If there are problems to do with freeholds and restricted covenants, the Minister may reconsider the issue if we are able to supply specific instances. That also applies to some of the other points in our amendments to which the Minister responded.
I am disappointed that the Minister does not want to streamline the procedure by giving the responsibility to Ofcom rather than the courts. I can understand why he prefers the courts, but there is no doubt that that will act as a disincentive in some ways. Nevertheless, the Minister's remarks have been helpful in clarifying the Government's intentions. At this stage, we will not press this new clause and the other amendments in the group. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 19
National Advisory Committees
'(1) It shall be the duty of OFCOM to establish and maintain National Advisory Committees for England, Scotland, Wales and Northern Ireland.
(2) The Chairman and membership of these committees shall be appointed by the Secretary of State.
(3) In making such appointments in respect of Scotland, Wales and Northern Ireland, the Secretary of State shall seek nomination from the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly respectively.
(4) The National Advisory Committees may consider and advise on all aspect of OFCOM's work in respect of their individual territories.
(5) The National Advisory committees may issue such recommendations to OFCOM or the Secretary of State with respect to their territories as they see fit.
(6) The National Advisory Committees shall produce an annual report on their activities.'.—[Pete Wishart.]
Brought up, and read the First time.
Pete Wishart (North Tayside): I beg to move, That the clause be read a Second time.
Madam Deputy Speaker : With this it will be convenient to discuss the following:
Amendment No. 206, in page 3, line 48 [Clause 3], at end insert
'including through representations made by the devolved administrations of Wales, Northern Ireland and Scotland'.
Amendment No. 207, in page 4, line 24 [Clause 3], at end insert—
'(6) In performing their duties under this section OFCOM shall have a duty to consult with the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly over matters of specific concern to Wales, Scotland and Northern Ireland.'.
Pete Wishart: We consider new clause 19 and amendments Nos. 206 and 207 to be modest and reasonable. They would ensure one thing—that the devolved institutions are fully engaged in the new environment that will be established once the Bill is enacted. We were disappointed that the devolved institutions were, in effect, locked out when the Bill was published. The new clause and the amendments seek to address that deficit, but they fall way short of our ideals and ambitions for broadcasting in Scotland—the full devolution of broadcasting powers to the Scottish Parliament, as initially envisaged in the Scotland Act 1998. Of course, we realise that we will not achieve that; what we want to achieve with the new clause and the amendments is that the distinct broadcasting and media environment in Scotland is addressed.
After all the consideration of this Bill—whether in discussions of the draft Bill, in pre-legislative scrutiny, or in the Standing Committee—this is our last opportunity to ensure that the devolved institutions have a voice in the new broadcasting regime. We were immensely disappointed that, when the Ofcom board was established, it contained no representatives from Scotland, Wales or Northern Ireland. We could not secure a place at the top table. If broadcasting could not be devolved, we should have been given the second-best option: a place at the top table for all the nations of the United Kingdom.
The establishment of the new Ofcom board has resulted in a diminution in our influence in the broadcasting regime. Previously, Scotland, Wales and Northern Ireland had a place on the Independent Television Commission, just as we had a place on most of the regulatory bodies. We were confident of progress on this issue, because we had powerful and influential friends who supported us. First among them was Scotland's First Minister, Jack McConnell. He was rightly concerned that the "cultural and democratic dimension" of Scottish broadcasting be protected under the new regime. He was so concerned that he wrote twice to the Secretary of State for Scotland, but he did not even get a reply on either occasion. When he eventually
received a reply, he was fobbed with the offer of places on the content board and the consumer panel, and with a vague pledge to establish Ofcom offices in Scotland, Wales and Northern Ireland.Like us, the First Minister agreed that Scottish listeners and viewers should be represented at the highest possible level to defend aspects that are peculiar to Scotland, such as devolved and regional television programmes, our national and regional news coverage as well as the Gaelic service and our dynamic media sector. He was convinced that they needed protecting, and rightly so. However, is it not a pity that his London-based colleagues could not be convinced? Is it not a pity that Scotland's champion in the Cabinet could not be convinced and was working not for the Scottish interests but against them? More than anything, that convinces us that the Scotland Office and the Secretary of State's post should be abolished and that the money secured should be put into front-line services in Scotland.
I read the transcript of the Committee proceedings, and I do not know whether it was better to be involved in the Committee or to read the report. However, I saw that six Labour Members were on the Committee and none of them supported the case for an enhanced role for Scotland in the new broadcasting environment. All of them supported a diminished role for Scotland.
Given that we shall experience a diminishment in our influence in the new regime, we tabled the new clause and amendments to try to get not the best solution for Scotland and not even the best solution for Scotland, Wales and Northern Ireland within the United Kingdom context; we seek a very poor third choice, which is simply that the devolved institutions have a role in the workings of Ofcom. Instead of being enabled to, Ofcom should be compelled to establish national advisory committees in Scotland, Wales and Northern Ireland. We want better integration between Ofcom and the devolved institutions.
As a matter of good practice, Ofcom should consult the devolved bodies anyway, and I understand that David Currie has had communications with the devolved Assemblies. However, the Bill should make it clear that that should happen and Ofcom should receive direction on the type of consultation that it should have with the devolved Governments. Amendments Nos. 206 and 207 try to deal with that point.
- "Ofcom shall have a duty to consult with the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly over matters of specific concern to Wales, Scotland and Northern Ireland."
- "It shall be the duty of OFCOM to establish and maintain National Advisory Committees for England, Scotland, Wales and Northern Ireland."
Our proposals are sensible and reasonable. As I have said, Scotland has a distinctive broadcasting environment, so it is sensible to have a distinct body that could communicate and advise about the distinct issues that will arise within the nations of the United Kingdom. The new clause and amendments simply seek to establish that Ofcom would operate under the Bill in ways that would replicate or extend the pattern of representation that we had in the past.
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