Joint Committee on The Draft Communications Bill Appendices to the Minutes of Evidence


Memorandum submitted by Colin Shaw[73]


  Clauses 17 and 18 of the Draft Communications Bill provide for the establishment by OFCOM of a Content Board. The draft leaves the functions of the Content Board largely to OFCOM to decide, but they are to include the oversight of OFCOM's discharge of its responsibilities to regulate the scheduling activities of its licensees and the promotion of media literacy. The Board is to exercise no separate authority of its own, acting only as an adviser to the OFCOM board on whose decisions, however, it is to exercise "at least a significant influence".

  Comment: No provision is made in the draft for any form of appeal by the Board, even if OFCOM is perceived to be consistently rejecting the Board's advice. As a result, very considerable powers over issues of content, which are frequently matters of subjective judgement, will be conferred on the numerically-smaller membership of OFCOM, one of whose complement, the Board's Chairman, can reasonably be expected already to be committed to the Content Board's advice by his or her role as its chairman. No amount of "light-touch" regulation is going to avert the rise to the top-table of a latter-day "Death on the Rock" or "Death of a Princess" over which critics may, justly or unjustly, invoke the national interest.


  In Part 3 of the Draft Bill it is proposed that, in future, the discharge of the public service broadcasting remit set for the public service broadcasters shall be judged by their performances "taken as a whole".

  Comment: This is a radical departure from the existing situation. At present, the performance of each of the broadcasting services with public service obligations, including the BBC and Channel 4, is judged individually. No aggregate total of transmission-hours has been computed, nor an overall tally compiled of the programmes broadcast and the genres, which they represent. Nor indeed could they be since the concept of public service broadcasting has been considered as much philosophical as numerical. The phrase characterised not simply a formula for regulation, but an approach to programme-selection and production applicable whatever the nature of the individual programme: popular light entertainment or Dennis Potter play. In recent years, however, in a more competitive environment, the philosophical element, reflected in the primacy of the programme, has been allowed to diminish in importance. The best that the draft Bill can manage by way of a contemporary definition of public service broadcasting is "the provision of a range of high quality and diverse programming". The public should be able to take "high quality" for granted as the aspiration of any programme-provider with or without a public service remit. But if the words are a coded substitute for "serious" or "minority" or simply "unprofitable", all of them sometimes treated as synonymous with public service broadcasting, the point of the underlying philosophy would have been missed: it can be applied to any class of programme, from popular light entertainment to a Dennis Potter play. Simply labelling certain kinds of programme as "public service" says nothing about their quality. The word "diversity" is more important. The Content Board, and OFCOM itself, cannot rely, as an individual can, on the simple formula of "I know it when I see it." The word will have to be defined in order to be measured for the purposes of enforcing the requirement. The draft Bill recognises the contribution, which Channel 4 is to make to the provision of overall diversity, to which the output of the BBC will add a further, major, contribution. The danger is that, in the interests of equality between the different providers, judgements, which should be qualitative will, to the detriment of innovation and imagination, be based on quotas and tallies. Too much reliance on figures in determining the share-out of responsibilities for the public service broadcasting remit could work to the detriment of quality. The power of the OFCOM board to set a national agenda for public service broadcasting, whether consciously or not, is potentially less democratic than the existing system where decisions on content are in several hands.


  Under Clause 183 of the draft Bill, the licensed public service providers from Independent Television will be required to provide annual statements of programme policy. Under its new Agreement, the BBC would be subject to the same requirement, although under the proposed new Agreement the BBC's status will ensure different treatment for its statements. These statements are to indicate any significant changes to an existing policy and to reflect any guidance given by OFCOM in the intervening period. The nature of this guidance is not described in the Bill and there must be concern at its possible impact on content. As time progresses, the annual statements are to be accompanied by the broadcasters' reports on the delivery of the policies published in previous years.

  Comment: If these statements and reports are to have value, then the process of scrutiny will inevitably be very detailed, particularly at the level of the Content Board on whose advice OFCOM, with a much broader set of responsibilities, must rely heavily. The rank-and-file membership of the Board, while excluding representatives of OFCOM, should include some individuals with particular experience of programme-resources, material and financial, and of scheduling. This need is desirable quite apart from the expert advice that may be available from the OFCOM staff servicing the Board. If met, it would help to counter criticism from the broadcasters that judgements were being made on professional issues by non-professionals, a charge levelled in the past against the IBA and ITC. There is an important distinction to be made between checking on the fulfilment of a set of licence-terms, a matter of box-ticking as the Culture Secretary has described it[74], and the interpretation of a remit. It is presumed that the forward-looking statements will confirm the broadcaster's intention to fulfil such requirements in the Bill for productions by Independent producers, original productions, regional programming, and non-metropolitan production as apply, together with the intention to comply with other OFCOM requirements. If OFCOM is to have an adequate overview of the services for which it is responsible, it will need to be gathering information over much longer periods than a single year. In the case of reports on performance, broadcasters, being human, may not always be sufficiently self-critical. OFCOM itself, while able to conduct different kinds of audience-research, is not, under the present draft, to be authorised to carry out its own regular monitoring of programming. It should, therefore, have the power to institute periods of closer oversight during which a company's performance can be more systematically assessed.


  OFCOM, under Clause 212, is to draw up one or more codes to set standards in a number of programme areas, for example, News and children's programmes. The Bill lays down a number of factors which OFCOM is to take into account in completing this process: for example, the likely size and composition of the audience for a programme, the likelihood of unexpected exposure to a programme, the audience's likely expectations of a programme. There has been insufficient time to give detailed attention to the new Arrangements proposed for the BBC (published on 31 May), but it is notable that the BBC will be expected to "comply" with OFCOM's code(s), whereas the draft Bill itself speaks only of observance of the code(s) by the remaining public service providers.

  Comment: While the factors OFCOM is to take into account are those which responsible broadcasters would themselves take into account before a particular transmission, caution needs to be exercised before translating them into legislation lest they have an unduly inhibiting effect on programming. There are dangers in a single code, which is to be interpreted by a small group of people. Some provisions may sensibly be mandatory, as the ITC Code has shown, but a lesser obligation on the broadcasters to "take due account" of others leaves room for manoeuvre in the borderline cases which will inevitably arise and gives less encouragement to litigation. Broadcasters have a general duty of care towards their audiences, but have the right to expect from the regulator an understanding of the circumstances, which may justify departures from that general duty. News would be particularly vulnerable to any over-detailed prescriptions.


  OFCOM will be under a duty to establish procedures for dealing with the complaints against OFCOM's code or codes on grounds of unfairness and breaches of standards which have hitherto been dealt with by the Broadcasting Standards Commission since the merger of the Broadcasting Complaints Commission and the Broadcasting Standards Council.

  Comment: From the time of their respective starts, the Commission and the Council consisted of lay-people, serviced by professional staffs. Where in response to complaints adjudications or findings had to be reached on the basis of opinion rather than on fact,—the great majority of Standards complaints—the principle followed was that the staff played only an advisory role, with the appointed members free, when necessary, to differ from what might be the professional broadcasters' orthodoxies. It is important, therefore, in the arrangements OFCOM makes for dealing with complaints that the primacy of lay opinions is maintained.


  OFCOM is to be given powers to conduct research into content and public attitudes to what is broadcast under the public service remit.

  Comment: An organisation required from time to time to express opinions on matters of subjective judgement, such as the content of an individual programme, is open to many different criticisms. To justify itself, therefore, it has need to conduct a regular programme of independent research, the results of which, funded by public money, should be made public unless there are reasonable grounds for withholding them in whole or in part. The organisation should not be bound to accept the implications of the research findings, but to give them significant influence.


  It is important for the integrity of the Content Board to be assured from the outset by its membership and the quality of its decisions. At the heart of many concerns about the creation of OFCOM is the concentration of editorial power which it represents, even if only potentially. In speaking at the meeting previously noted, the Culture Secretary referred to the need to preserve the integrity of broadcast News. Disclaiming any wish to prescribe content, she said that she did not wish to see bulletins resembling magazines in which the details of a pop-star's diet were rated more important than a report of a suicide-bombing and an explanation of the reasons for it. Neither do many of us, but it would be a dangerous route for OFCOM to follow if decisions of that kind could lie at its far end. The need is for OFCOM's independence in editorial matters to be safeguarded as strongly as possible.

June 2002

73   Former Head of Programme Planning Grp., BBC Television: Chief Secretary to the BBC; Director of Television, IBA; Director, Programme Planning Secretariat, Independent Television Coys. Assoc.; Founder-Director, Broadcasting Standards Council. Back

74   H. of C. on 14.5.02, at a public meeting organised by Voice of the Listener & Viewer. Back

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