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Lord Elis-Thomas: I have a problem with the amendment. I suspect that I am sometimes a bit of an old-fashioned liberal, therefore I flinch from putting a phrase such as "editorial control" on the face of legislation. Here we have the difficulty of deciding what is appropriate for legislation on the face of the Bill and what is appropriate for discussion with the ITC and the regulator. I can see where we are trying to go. The Minister has already indicated that he will talk to the ITC about the regional tranche of amendments. However, it is important to remember the principles that we brought out: that regional programming in music, current affairs and all the cultural output should continue to reflect the region from wherever the ownership or inward investment into a company may come. That is the issue to which we shall need to return; namely, how is it possible to maintain a framework in which regionalism is celebrated and where there is additional outside investment into the region through the new ownership of a regional company without undermining that regionality. I suspect that the balance lies somewhere between what the ITC does as a regulator and what is on the face of the Bill.

Lord Inglewood: I am most grateful to the Committee. This is obviously an important point and we have heard some helpful comments. Many of the difficulties relate to the core point made by the noble Lord, Lord Elis-Thomas. It seems to me that the "production" and "editing" that the noble Lord, Lord Kirkhill, wishes to add to the criteria that the ITC must examine are both encompassed within the wider concept of "making" a programme, reductions in the local proportion of which are included in the criterion at subsection (4)(b) of Clause 63. It may be that there are loopholes in the definition or that there are ways through via the mechanisms of programme-making which need to be addressed. I believe that the noble Lord, Lord Donoughue, seeks in his amendment to close a loophole whereby some parts of the production process could be performed outside the licence region. I shall certainly ask

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the ITC whether it would welcome some clarification or expansion of the concept of making a programme spelling out the position of particular component activities like production and editing. However, I rather doubt whether the idea of seeking to nail down where decisions are taken as opposed to where people are employed or processes carried out is practically enforceable, necessary or even directly relevant to regional character.

I see a similar problem in enforcing the amendment proposed by the noble Lord, Lord Crickhowell, who seeks to have the ITC judge by whom editorial control is exercised and the extent to which managers of a company are knowledgeable of the region served. It is perhaps unreasonable to burden the ITC with criteria that are not readily measurable and may be subject to challenge. The point about managers of companies having knowledge seems to imply that a manager could never be brought in from outside. There are a series of difficult problems with which we must try to get to grips. However, I see that there may well be a point to address. I hope that the undertakings I have given to consult will reassure the noble Lord.

Lord Kirkhill: When I moved the amendment I did not speak to it for reasons I have indicated. I thought that we covered the ground rather well earlier. In particular, the noble Lord, Lord Thomson of Monifieth, made the key point, and with success. I am now content to leave the Minister and his officials to consider all the comments made. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 164A not moved.]

Lord Crickhowell had given notice of his intention to move Amendment No. 164B:

Page 56, line 22, at end insert (", or
(d) the degree of editorial control exercised from within the area for which the service is provided and the extent to which the service is managed by persons with sufficient knowledge of that area,").

The noble Lord said: I am grateful for what my noble friend had to say on this amendment. He identified possible difficulties. The company of which I am a director, which covers two regions, believes it a good idea not to have the people from our Bristol office and south west region trying to produce programmes in Wales, and vice versa. We find that editorial control has to be exercised by those who are involved. Although we have executives who cover both, and the general management of the company covers both, the production of programmes is in the hands of people who come from one or other region. That is the point I seek to identify. I should be grateful if my noble friend would discuss it with the ITC and consider it further before Report stage.

[Amendment No. 164B not moved.]

[Amendment No. 165 not moved.]

Lord Kirkhill moved Amendment No. 166:

Page 56, line 23, leave out ("may") and insert ("shall").

The noble Lord said: I beg to move.

Lord Prys-Davies: Again, I should be grateful for some explanation from the Minister. I find it very

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difficult to reconcile the power in Clause 63(3) dealing with regional programmes and that in Clause 63(4) referring to the regional character of the service. The power in subsection (3) relates to the quality and range of programmes and is mandatory. The power in subsection (4) relates to proportionality and is not mandatory. Is that lack of consistency a mistake? If not, will the Minister explain why there should be two inconsistent approaches?

I am puzzled also by this possible situation. If the change of control leads to a marked reduction in the time given to the regional programme, is it intended that the commission shall not be under a duty to vary the licence, even though it can be demonstrated that it is prejudicial to the regional character of the service? That would be an extremely odd result.

9.15 p.m.

Lord Inglewood: Perhaps I can respond to the specific point made by the noble Lord, Lord Prys-Davies. The way the provision has been drafted is deliberate. The matters referred to in subsection (3) are those which it is felt are inherently such that it would be appropriate for the commission to vary the licence as a result of them occurring; while those referred to in subsection (4), if in reality they are prejudicial in the manner referred to by the noble Lord, would lead to a variation in the relevant circumstances.

We do not feel that if, for example, there was a five-minute shift in time, that would be something which should automatically trigger the variation. We intended to ensure that the ITC, as the authority which deals with the matter, had sufficient flexibility to be able to respond in a common sense way to what happened. As I said in my remarks when we began to debate these amendments before the dinner break, we are not endeavouring to entrench the status quo; we are endeavouring to make sure that the regionality, as it is manifest in the Channel 3 services covered by this provision, remains. That is why we felt it appropriate to have a degree of discretion in this regard in order to enable the system as a whole to be sufficiently flexible to evolve as the world moves forward.

Having said that, I am proposing to take all these clauses away to look at them. While we are not necessarily convinced by Amendment No. 166, I shall take it away to discuss it with the ITC.

The Earl of Kinnoull: In relation to subsection (3), if the change appears to be prejudicial, then under the three circumstances listed the commission shall vary the licence. I understand that. In subsection (4) the word "If" appears again, which indicates that on both occasions the commission has the right to consider whether or not to proceed, but on both occasions the term is prejudicial. I do not understand why there is a difference because on both occasions the word "If" appears at the start of the subsections.

Lord Inglewood: I hope that I can answer my noble friend satisfactorily by saying that, by definition, what the noble Lord, Lord Prys-Davies, was postulating was a change in regionality which does not jeopardise the

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quality and range of regional programmes, otherwise subsection (3) would apply. The provision seeks to deal with a lesser range of potential mischief. It is important that we do not completely corset the existing arrangements and pickle them so that there is no scope for any kind of evolutionary change in the event of the ownership of the licence which is underpinning the service changing.

Lord Kirkhill: I indicated that I did not intend to say anything at this stage. However, in view of the contributions that have been made in Committee, I am tempted to make a few remarks.

The purpose of Amendment No. 166 is to replace the option to vary a licence with a duty to vary a licence. The Minister indicated earlier that he would consider all the points which have been made, but perhaps he might give consideration, as a matter of consistency within Clause 63, to the suggestion that subsection (4) should follow the example of subsection (3) where "shall" is used rather than "may". It is a point to which I am sure he will give consideration. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 167 to 169B not moved.]

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