Joint Committee on Draft Communications Bill Report


Letter from the Clerk to the Draft Communications Bill Team

The Committee has given preliminary consideration to the draft Communications Bill and has asked me to seek from the Departments further material about certain of the clauses. The Committee is grateful for the assistance given by your draft Memorandum and accepted gratefully your offer to supplement it where it would help the Committee.

Clause 11 places duties on OFCOM in relation to employment in broadcasting. The Committee is not aware of a precedent for placing such duties on a regulator with respect to the employment policies of the bodies which it regulates. This makes more significant the power to add other forms of equality of opportunity to those covered by subsection (2). The Committee would value submissions as to why this Henry VIII power should not be subject to affirmative procedure.

Clauses 28, 32, 77, 88, 91,101 and 132 all contain powers to vary maximum penalties. The Draft Memorandum which you helpfully provided does not give a detailed justification for the delegation of these powers but states that "A power allowing the Secretary of State to vary a penalty provision is a standard delegation" (see, eg, paragraph 16). This is not the experience of the Committee. Indeed in its Special Report for 1999-2000 (HL Paper 30) the Committee stated that it considered it inappropriate to delegate the power to increase the severity of a sentencing power unless it were a power to update fines in line with inflation (paragraph 51). This comment was made in relation to criminal penalties but the Committee would need to be persuaded that similar considerations do not apply to civil penalties. The Committee would be helped too by argument as to why an order increasing a penalty beyond what is needed to allow for inflation should not be subject to affirmative procedure.

Clause 49 imposes "must-carry" obligations. Subsection (5) allows the Secretary of State to modify the list of must-carry services. This Henry VIII power is subject to negative procedure. Before the Committee decides whether this is appropriate it would be helped by a statement of the considerations which would decide whether or not a service should be added to or removed from the list of must-carry services.

Clause 82 confers on OFCOM the power by order to increase the limit below which the injurious affection of land does not qualify for compensation under the Compulsory Purchase Act 1965 (as applied by the electronic communications code). Is this power intended to deal only with inflation? Why was it thought right to delegate the power to OFCOM rather than the Secretary of State? What consideration led to the decision not to provide Parliamentary control over the exercise of the power? The Committee would also be helped by an explanation of how the provisions about compensation in the 1965 Act apply to utilities generally - is there power to increase the minimum level of loss which qualifies for compensation, if so, to whom is that power delegated?

The Committee would also be helped by an account of the consideration which led to the decision not to provide that regulations made by OFCOM under clause 56 or 124 should be subject to negative procedure.

The Committee would also welcome further help in relation to clause 117. The amendments made to the Wireless Telegraphy Act 1998 by that clause include an extension to the power to make regulations under that Act. At present that power is conferred on the Secretary of State and is subject to negative procedure (section 6(4)). However, the 1998 Act is further amended by Schedule 11 where paragraph 22 transfers the power to OFCOM and paragraph 25 substitutes a new section 6 which does not provide for negative procedure. What considerations led to these changes?

Finally, paragraph 3 of Schedule 8 sets out the public service remit of the Welsh Authority. The importance of the power given to the Secretary of State by sub-paragraph (4) to modify the paragraph is recognised in sub-paragraph (7) which applies draft affirmative procedure. The Committee notes the requirements in sub-paragraph (5) about consultation but wished to know whether there is a requirement elsewhere to consult the National Assembly for Wales.

29 May 2002

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