Joint Committee on Draft Communications Bill Report




Memorandum to the Joint Committee on the Draft Communications Bill


1. On 13 May, Lord Puttnam, Chairman of the Joint Committee considering the draft Communications Bill, wrote to Lord Dahrendorf, inviting this Committee to consider the delegated powers in the draft bill. We were pleased to receive this invitation, and this Memorandum sets out the Committee's views.

2. The Committee has in the past welcomed pre-legislative scrutiny as a way of improving the quality of legislation and enabling non-controversial issues to be settled before a bill is introduced. We are, of course, concerned only with delegated powers. Issues of policy are for the Joint Committee. Our only reservation about our involvement in the process is that we have had experience of bills where the significance of particular delegated powers has become evident only after the bill had been introduced. We therefore reserve the right to comment further on the bill when it has been introduced, particularly if the pre-legislative scrutiny leads to changes.


3. The delegated powers in the bill are identified in the Department's memorandum (Annex A) which provides a commentary on those powers. The Committee recognised that this had had to be written in great haste and accepted the invitation to seek further assistance from the Department. Accordingly we gave the bill preliminary consideration and identified the powers about which we needed more information (letter from the Clerk at Annex B). This was provided by the Department (Annex C). After considering this additional material we have decided that the only provisions to which we wish to call attention at this stage are those discussed in the following paragraphs.


4. Clause 11 places on OFCOM certain duties relating to the improvement of training, etc. of persons working in radio or television. Subsection (2) sets out a duty to promote equality of opportunity. Subsection (4) limits this to equality between men and women, different racial groups and between those who are or have been disabled and others. Subsection (6) allows the Secretary of State to amend subsection (4) by extending the scope of equality of opportunity.

5. When the Committee first examined the draft bill, it was concerned about the width of subsection (6) in the context of a clause placing on a regulator the duty of influencing the employment policies of the bodies it regulates - a provision for which we are not aware of a precedent. The Department says that the Henry VIII power to extend this clause to other forms of "equality" is intended to allow the clause to be brought into line with general equality law if that should be extended in the future, for example to age or religious discrimination. We find this explanation unconvincing, as any general extension would require primary legislation, and we take the view that legislation could itself make the appropriate amendment to the clause. We have considered the degree of Parliamentary control over this power, and concluded that negative procedure is appropriate here only if the power is to be used to reflect changes in the general law and not to make special provision for bodies regulated by OFCOM.


6. There are Henry VIII powers to vary maximum penalties in clauses 28, 32, 77, 91, 101, 132. The amount of the penalty in a particular case is determined by OFCOM and is recoverable by civil process. The powers are subject to negative procedure. The Committee always scrutinizes with particular care any delegation of a power to increase penalties. We consider that such a power should be subject to affirmative procedure unless it is to be used only to take account of the change in value of money. Paragraph 16 of the memorandum (Annex A) states that the power in clause 28 will allow the maximum to be raised if the Secretary of State "believes that the amount set as a fine is not sufficient to provide a deterrent effect" However, in response to our questions about these clauses the Department replied:

"any changes…. would not represent any change of policy, but simply maintain the effectiveness of the level of financial penalty applicable, principally in order to take account of inflation".

7. These powers are not confined to inflation proofing, and unless words are added to confine them in that way, we recommend that they should be subject to affirmative procedure. In any event, we suggest that affirmative procedure should apply to the powers in clauses 32(9) and 77(5) which are concerned with varying multipliers rather than sums of money and so cannot be needed for inflation proofing.


8. This clause includes a Henry VIII power to vary the list of "must-carry" services. Negative procedure is applied. In response to our inquiry the Department has suggested criteria which will determine what amendments should be made by an order under this clause. The Department envisages that the criteria used to add a service to the list of must-carry services will be :

  • its public service remit;
  • its importance for social inclusion, on a national or a local basis;
  • its unavailability by other means for a significant proportion of people using the platform.

We suggest that this is a subject which is of particular concern to Parliament and that either affirmative procedure should apply or the list of criteria should be added to the bill.


9. This clause is concerned with the electronic communications code which is set out in Schedule 2 to the Telecommunications Act 1984. One element of that code is concerned with compensation for damage caused to the property of third persons by works carried out on behalf of one of the telecommunications bodies. At present there is a lower limit of £50 below which compensation under the code is excluded. This limit was first set out in 1965 and the clause confers on OFCOM a power to change the limit. That power is not subject to Parliamentary control.

10. We see the need to update the limit but this could be done in the bill without conferring a power to vary it. If the power is to remain, we consider that it should be exercisable by the Secretary of State and not by OFCOM. If the power were to be used simply to uprate the amount in line with changes in the value of money, we consider that negative procedure would be appropriate. If, however, it were to be used to impose an increase in real terms it should be subject to affirmative procedure.


11. This clause gives the Secretary of State power to define what is a "television receiver" for the purposes of Part 4 of the draft bill (Licensing of TV reception). We are concerned that the draft bill should give the Secretary of State such wide power to define the scope of this part of the bill. We consider that it would be preferable to include, on the face of the bill, a definition of "television receiver" which takes account of the present state of television technology, while giving the Secretary of State the power to modify this definition in the light of future technological developments.

June 13 2002

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2002
Prepared 31 July 2002