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I also recently heard Stephen Carter give a speech to the Incorporated Society of British Advertisers, in which he went a little further, saying that he saw real problems if the existing parity between the duties were removed and priority had to be given to one over the other. He gave examples of possible conflicts that might occur in the future. For instance, Ofcom might want to allocate additional spectrum to free view, and it might be argued that that would be desirable, not only in the interests of citizens, but in those of consumers in due course. He pointed to the fact that several existing regulators—particularly the Independent Television Commission and the Radio Authority—have a twin duty, and that that has not caused a problem. The regulators are well used to dealing with twin duties, but if one duty were given priority over the other, as the Secretary of State suggested, a decision could be challenged by judicial review, which could cause real difficulties.
I therefore welcome the fact that the Government have attempted to meet the concern expressed in the House of Lords with the amendments that they have tabled today, especially with the additional requirement that Ofcom will have to publish a decision if it sees a conflict between those two objectives. It will need to set out precisely where that conflict lies and why the decision has been reached accordingly. That is an improvement. Given that the Government have proposed that requirement and the fact that Ofcom's chairman and chief executive have expressed concern, I accept the Government's argument that we should not support Lords amendment No. 1, and I am willing to support the Government amendments.
I wish to touch on only one other issue. Among the many listed duties that Ofcom will have to perform, Lords amendment No. 4 will give priority to the requirement that Ofcom abide by the better regulatory principles. Before that amendment, that requirement was No. 2 on a list of 14, and concern was expressed in the industry that it had not been given the importance that it deserved. We argued very strongly in Committee that the better regulation requirement should be put right at the front of Ofcom's general duties, but the Government were not persuaded at the time. I am delighted that the Government now appear to have been persuaded about that because I continue to believe that it is extremely important.
There is no doubt that Ofcom will be an enormously powerful body. I believe and hope that it will be a force for good, but nevertheless safeguards need to be built into its operating principles. In particular, the requirements that regulations should not be excessive and that there should be transparency and accountability are very important. I draw attention to the fact that chairman of the Better Regulation Task Force, David Arculus, recently wrote an article in which he drew attention to the tidal wave of regulation affecting businesses and said:
- "Some of the problem lies with independent regulators, who are keen to make the most of the new powers they have been given".
Mr. John Greenway (Ryedale): My hon. Friend very generously paid tribute to my efforts as part of the Front-Bench team, and, likewise, I wish to do the same for him, but does he recall making a lengthy and extremely well argued speech on this very matter at the beginning of the process? The length and vigour of his argument was misinterpreted at the time, but does not this example show that the Government now appear to accept most of the arguments that we put from the Opposition Front Bench in Committee? I am very glad that they have done so.
Mr. Whittingdale: My hon. Friend is entirely correct. We may find that a recurring theme in our debates this afternoon is the number of occasions on which arguments that we put in Committee, which appeared not to find favour with the Government, have been adopted by them subsequently. This late conversion is of course extremely welcome—there is nothing like a sinner who repenteth. My hon. Friend is right to draw to the House's attention that Lords amendment No. 4, accepted by the Government, was first advanced by us
in Committee, and I am delighted that the Government have now seen the wisdom of it. It is extremely important.
Brian White (Milton Keynes, North-East): Does the hon. Gentleman accept that the whole question of independent regulators being subject to the Better Regulation Task Force came out of the Puttnam report, and a number of references were made when we expressed concern about the independent regulator following Government policy?
Mr. Whittingdale: I would not want to claim exclusive authorship. As the hon. Gentleman, who sat through our debates in Committee, will recognise, however, we advanced the proposal at the time but were sadly unsuccessfully in persuading the Government in Committee. I will not dwell on the matter any longer, however, as we are all now united on the fact that it is important that Ofcom should operate under the better regulatory principles and that those should be given priority. I therefore welcome that amendment. Indeed, I will not oppose the amendments tabled by the Government.
Brian White: Unlike the hon. Member for Maldon and East Chelmsford (Mr. Whittingdale), I have been involved in this Bill for two years, as I was involved in the pre-legislative scrutiny Committee and some of the other preparatory work. One of the recurring themes of the White Paper and the Puttnam committee, however, was the issue of citizens. It was disconcerting in Committee to have the parliamentary counsel's advice that judges could not distinguish between "citizen" in terms of how we now understand it and in terms of the amendment, and the narrow definition in terms of nationality. I am glad that that taboo has finally been broken. That raises some questions, however, about the quality of parliamentary counsel's advice and about whether the kind of alternative advice that went to the Puttnam committee means that the monopoly on providing such advice to Government should be subject to some form of competition. No doubt we will return to that issue in due course.
A conflict of interest has always existed among the general duties of Ofcom. It is particularly important that Ofcom will have to explain why it makes particular decisions and how it resolves its conflicts of interests and the decisions that it has made. The part of the Government's amendment that requires that to be reported is therefore extremely important. I hope that it is also included in Ofcom's annual report to Parliament. With that, I welcome the Government amendments.
Nick Harvey (North Devon): As has already been observed, we have followed a long course to get to this point, and it is no surprise that we find ourselves yet again addressing questions of the main duties and citizenship. Those were raised, as has already been observed, in the pre-legislative scrutiny Committee, in the debate on Second Reading and several times in Committee. I am glad that eventually the rather more telling arithmetic in the House of Lords has had the effect that it has, and that the Government have had a late conversion to various points that they stoutly resisted earlier. In particular, they displayed a bizarre
reluctance to concede the word "citizen", as has just been mentioned, yet here we are considering at this late stage Government amendments with the word "citizen" in them. I welcome that because it is the right formula and the right approach.The process has been something of a battle. The first battle was to get the Government to accept that a general public interest—as I think that it was first formulated—existed. Initially, there was great resistance to the idea that there was anything other than a consumer interest. Of course, the two things are very different, and the interests of the wider public are not necessarily the same as the interests of the consumer of a particular product or service.
Brian White: Does the hon. Gentleman accept that that was highlighted in the Government's White Paper that gave rise to the Bill?
Nick Harvey: It might indeed have been highlighted in the Government's White Paper but nevertheless previous amendments that would have inserted such provisions into the Bill were stoutly resisted. I am pleased that we are proceeding by stages. Although such provisions are included in later clauses, the amendments to clause 3 will have far more effect. Lords amendment No. 1 would provide that citizenship issues would be Ofcom's primary responsibility, and the formula in the Government amendments strikes a perfectly sensible balance. We must bear in mind the possible effect of agreeing to a measure that could lead to many cases of judicial review. The Government have framed their amendments sensibly by putting the two duties alongside each other and I am happy enough to support those amendments.
I am pleased that Lords amendment No. 4 provides that better regulation principles will be absolutely at the top of Ofcom's agenda because I spoke up for such a provision in Committee. Ofcom has an incredibly important role and it is only right for it to work in such a way.
I add to the consensus by saying that I am delighted that we have reached a sensible view, even at this late stage. I am happy to support the formula that the Government have suggested.
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