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Noble Lords: No!

Baroness Miller of Hendon: Yes, my Lords, I suspect that I shall. As my noble friend has made clear, broadly we accept both the need for the Bill and for its general principles. But that is where the problem lies. The Bill deals in generalities, not in detail. In the current cliche the devil is in the detail--details of which the Government have failed to communicate to us in a Bill about communications. The Government's White Paper, which is subtitled in paragraph one,

was published as long ago as December 2000. That was 10 months ago. It was debated for two hours by your Lordships on 28th February when no fewer than 23 noble Lords made important and constructive contributions in a debate excellently initiated by the noble Lord, Lord Gordon of Strathblane. But what has happened in the intervening eight months? Not much. We now have this small piece of legislation, a paving Bill.

Lord McIntosh of Haringey: My Lords, there has been an election in the meantime.

Baroness Miller of Hendon: My Lords, I suppose the Government should be congratulated on that even if I do not care for the result. However, the fact remains that a communications Bill was promised in the 1997 manifesto. Nothing as yet has appeared. We are being asked to spend time considering this little Bill when we do not know what it will deal with. The Government admit in their Explanatory Notes that the Bill is a

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preface to a real communications Bill which will be published at some unspecified date in the future and, one assumes, will carry out the Government's real objectives in the important field of communications. That is legislation which the debate on the White Paper and today's debate show will largely be uncontroversial--assuming, that is, that the Government stick to what they have already published about their objectives and intentions. I say that with hesitancy, because we have some reservations about certain aspects of the Bill, particularly as it affects--or rather does not affect--the BBC.

Leaving aside that small reservation, perhaps the Minister will tell us why the substantive legislation is not ready after this long lapse of time. He said a few moments ago that it was due to an election, but the Government must have had some idea of what they were going to do. When will we see the Bill--in what part of the spring that the noble Baroness, Lady Blackstone, referred to earlier this afternoon?

The Labour Party promised a communications Bill in its 1997 manifesto. We appreciate that there has been an election, but that manifesto was produced four years ago. We have had only the White Paper and this small Bill.

We also recall the fiasco in the last Parliament, when a utilities Bill was introduced in January 2000, but by February the Government had tabled 359 amendments to it and the telecommunications part of it had to be dropped. It seemed to us then that the Government may have wanted to delay disclosing their true intentions until after the recent election. It was possible that at the time they did not wish there to be any discussion about cross-media ownership--a subject that many noble Lords have mentioned this evening.

Perhaps the Government hope that, by taking the legislation in two stages, Parliament could be presented with a fait accompli. I sincerely trust that the Minister will be able to allay those suspicions by explaining to us what at the moment seems to be an inexplicable timetable.

I share the concern expressed by my noble friend Lady Anelay about the disclosure in the Towers Perrin report that final decisions on the structure will rest with the paving Ofcom Bill. A quick read of the summary, which I found on my desk today, suggests that the nature of Ofcom has already been decided. Given that the Minister who opened the debate restricted her remarks to the bare bones of this Bill and said that the noble Lord, Lord McIntosh, would do the same when he wound up, it is all the more necessary that we should examine the Bill with great care and diligence. The final decisions on the structure of the industry and the method of overseeing it should rest with Parliament, which must have some say. Such vital decisions should not be pre-empted by this new and powerful quango. We must not give it that power without knowing what the final communications Bill will say.

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We have already made it clear that we support the creation of a single regulator to replace the current patchwork of regulators. We entirely agree that that is a desirable objective. Apart from avoiding having too many cooks, it will prevent different regulators approaching similar problems in differing ways and applying different criteria. Even more importantly, with the rapid advances in communications technology, many aspects of communications now overlap. The need for a single, powerful regulator who will not get tangled up in demarcation disputes with other regulators covering overlapping jurisdictions is unanswerable.

However, the Bill does not give specific details about what the regulator will do and how he will do it. The Bill says that Ofcom shall,

    "do such things as they consider appropriate for facilitating the implementation of, or for securing the modification of, any relevant proposals about the regulation of communications".

What does that mean? As now frequently happens, we are being asked to give the Government a blank cheque for the substantive legislation, when it comes.

Talking of blank cheques, I refer again to the Towers Perrin report, which suggests that the cost of Ofcom will be considerably more than the £119 million already received by the five regulators that it is to replace. And it appears that it will be considerably more than the extra £5 million which the Explanatory Notes to the Bill suggest will be the case. Returning to this legislation, at least we can be grateful that the real legislation, when it comes, will be a primary Act and not a ministerial decree in the form of a statutory instrument, slipped in as unobtrusively as possible.

We are extremely concerned that the Government propose to leave the BBC out of the new regulatory regime. We consider it to be totally illogical--I believe that the noble Lord, Lord Bragg, made a very similar point--that when Ofcom is created to deal with the dual issues of content and free competition, somehow the largest broadcasting organisation of all should be outside the remit of the independent regulator, Ofcom.

The White Paper had claimed that the BBC would be placed alongside other broadcasters, creating for the first time a level playing field for British broadcasting. What sort of level playing field is it when the two teams have different referees and one of the teams is the referee itself? In its briefing notes, the BBC claims:

    "The BBC will be subject to the same set of obligations as other broadcasters. Ofcom will monitor BBC compliance with industry-wide obligations".

But there is one major difference. If, when the substantive Bill is unveiled, it follows precedent, Ofcom will have the power to inflict penalties on an offending broadcaster's turnover. Will the BBC fine itself? I do not think so. Will the Secretary of State, exercising what the BBC's brief describes as his "backstop powers", fine it? I do not think so. There is no level playing field not only so long as the BBC is judge and jury but while there is no executioner.

Where is there a definition of public service broadcasting? I believe, as do many other noble Lords, that that should be the major function of the BBC.

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I was gratified to learn that, during the hours following the events in America on 11th September, the BBC gave free access to its television broadcasts to many countries which did not have the facilities, including, for example, India and New Zealand. That, I believe, is certainly an example of public service.

However, it seems to me--again, noble Lords have referred to this--that the main objective is ratings. The noble Lord, Lord Borrie, made the point about "EastEnders" now coming head to head with "Coronation Street" on Friday evenings. The BBC is a publicly subsidised operation financed by the licence fee, which is a tax levied on everyone who owns a television set, whether they watch the BBC broadcasts frequently, rarely or possibly even never. It earns a portion of its income from commercial activities. However, the bulk of its finance, equivalent to more than many major companies on the Stock Exchange, comes from the public. It is in no danger of losing its financial support and business, however badly it performs, which, incidentally, I do not suggest that it does. I simply make the point that it is unlike any ordinary commercial programme maker.

My view that the BBC should come within the remit of Ofcom does not detract in any way from my admiration for it and for the work that it does. It has made many fine programmes recently; for example, "The World of Dinosaurs" and "History of Britain". Those are world-class, to say nothing of old favourites, such as "The Proms", "Question Time", "Crimewatch" and "Songs of Praise".

I now come to the matter of appeals procedures. The present Bill merely provides for the setting up of the office of Ofcom with no real day-to-day functions as yet. But when shall we learn about the accountability of the regulator--this powerful, all-embracing regulator? To whom and how can appeals be made against his decisions? In short, who will regulate the regulator?

In their White Paper the Government invited comment on the cross-media ownership rules. I was most interested, incidentally, in the views of the noble Lord, Lord Gordon of Strathblane, on this matter. The subject certainly provides food for thought. His view was one that I had not considered previously and I have not heard anyone else articulate it. However, unless I have missed something--I shall appreciate the Minister pointing it out if I have--where are the results of that consultation and what will the Government do about it?

In the absence of current facts, before the publication of the operative communications Bill and in the light of the rapidly changing technology, we on these Benches reserve our position. However, it is right to give the Government fair warning that, when they publish their Bill, this matter will receive careful scrutiny. We do not wish to have legislation in the blank and not know what will come afterwards. That is dangerous and should not be necessary with such a Bill.

This Bill involves creating a powerful regulator. When we discover what he will do--apart from, to use the words once employed by the noble Lord, Lord

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Steel of Aikwood; that is, to go and prepare for office--we trust that his powers will not be so great that he will be tempted to over-regulate an industry whose very basis is, within the bounds of the law, freedom of expression, whether in print or on screens of all shapes and sizes.

My remarks have been about as long as the text of the body of the Bill, and for that I apologise. We will, as I said, support the passage of the Bill, but we are unhappy that Parliament's time is being taken up with a proposal that should have been included in a substantive Bill that should have been introduced some time ago, but which as yet is not in sight.

10.55 p.m.

Lord McIntosh of Haringey: My Lords, I have very much enjoyed this debate because it has been full of wise words from people who know their subject intimately and who speak with a great deal of authority, and because I do not have to respond to much of what they said. Many comments that were made very legitimately represent the beginning--or the continuation--of consultation on the substantive Bill. My noble friend Lady Blackstone invited such a response.

I shall begin by defending and propounding the procedures that we are going through in this regard, from the Green Paper through to the final implementation of proposals to reform the system for regulating telecommunications. I shall then defend the specific element contained in the Bill; namely, the single regulator, which is called Ofcom. Then I shall deal with those issues that refer to the Bill--this little Bill, as the noble Baroness, Lady Miller, called it. Finally, I shall deal briefly and without commitment with some of the worries that have been legitimately expressed in this debate. In particular, I shall conclude by referring to what the Bill says and the Government's approach to the relationship between Ofcom and the BBC.

I start with the process. We have had a Green Paper, which involved consultation and which was followed by a White Paper, which appeared in December last year. That has now been followed by a paving Bill, which will be followed in the spring of next year with a draft Bill, which will allow for consultation. Several noble Lords rightly said that the quality and nature of the consultation will be critical to the success or otherwise of the Bill. I shall come to that in a few minutes. At the end of that process, a Bill will go before Parliament and it will have to be approved by Parliament before reform can be implemented.

That process is both transparent, in the sense that we are consulting at every stage and allowing for informed public and parliamentary opinion to play a role, and it is efficient, in the sense that the paving Bill will, when the consultation process and the legislative process are complete, allow implementation to take place at least six months--possibly as much as 12 months--earlier than would otherwise have been possible. The structural processes that are provided for in the Bill will now be concurrent with the policy

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decisions rather than follow on from them. That does what the noble Lord, Lord Chandos, referred to as illuminating and informing debate and it provides for a significant saving in terms of time. The other substantive element of the Bill is that it proposes a single regulator, who will cover both regulation of content and economic regulation. I have listened carefully to the debate and would say that about two-thirds to three-quarters of the speakers were unequivocally in favour of the single regulator principle and that the others expressed their views in perfectly legitimate ways. There is an argument about whether a regulator is the same thing as a consumer representative. I think not, but much regulation is based on the supposition that it is.

Clearly, from all that comes the conclusion that if we are to have a single regulator of that kind, it is difficult to see how we could define the objective of that single regulator, as the noble Lord, Lord Holme of Cheltenham, and others would wish, in a single word or phrase. One may wish to say that the core is competition or that it is public service broadcasting and then to seek a definition of that. Nevertheless, it is difficult to do that because we propose here, deliberately, explicitly and openly, a regulator which covers the wide spectrum of communications and broadcasting. We do that because the structure of the industry when those regulators were set up many years ago is changing. It may not be changing as fast as some people thought it would. It may be some years before the convergence between telephony and television, broadband and narrowband and all the technological elements is achieved. Nevertheless, it is happening. The noble Lord, Lord Eatwell, expressed that particularly well. He said that our proposal for a single regulator is a rational response to that convergence.

Another feature, which is explicit in our proposal of a single regulator, is that it must have an independent status, as stated clearly by the noble Baroness, Lady Howe, in her admirable maiden speech. I am able to answer the noble Baroness, Lady Miller, not in several months time but now. Ofcom will be an independent regulator accountable to Parliament. It will have to make a report to the Secretary of State, which the Secretary of State will have to lay before Parliament and which will be audited by the National Audit Office. That is not a new definition of independence of a regulator. It happens in many spheres of government and public life. There is nothing startling, difficult or innovative about it. It provides the guarantee of independence rightly called for by noble Lords.

I turn to the elements of the structure of Ofcom, which arise from the provisions of the Bill. It has to be a lean and efficient organisation, able to operate flexibly with a light touch. But a number of elements about its constitution and the way it is organised are yet to be determined. I was able to see the Towers Perrin report only over the weekend. I understand that most noble Lords have probably seen only the executive summary. Certainly, it raises many questions which it does not answer. It is legitimate for the noble Lord, Lord Eatwell, to say, as he did, that

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what is said in the Explanatory Notes about the cost of regulation is open to question. Paragraph 25 of the Explanatory Notes states that in the longer term there may have to be a more detailed assessment in the Explanatory Notes to the substantive Bill, and that it may well be that the figures on cost are for only the transition period.

I was glad to have support from the noble Lord, Lord Currie, the noble Baroness, Lady Young, and others, for the provision in the Bill for a board rather than a single regulator. Having been involved rather more closely than I would have wished with the establishment of a lottery regulator and then a lottery commission, I think that is entirely right.

The size of the board has deliberately been kept small, and that has been widely welcomed. In answer to the noble Baroness, Lady Anelay, who first raised the issue, although others raised it later, I say that ways will have to be found of dealing with the interests of regions and countries, because they, of course, are essential elements of public service broadcasting. The White Paper referred to the need for Ofcom to establish close links with the devolved assemblies. We are committed to that, and ways will have to be found of achieving it.

With regard to the timetable, we have made it clear that the chair of Ofcom will not be appointed until the spring. The other non-executives will choose a chief executive, which may take until the early autumn of next year. In response to the noble Lord, Lord Gordon, I honestly do not believe that anything would be gained by setting up the board only at Second Reading of the substantive Bill. I do not see any advantage in that delay. It would leave us with many administrative and structural changes to make after Parliament had made its decision on the content of the final Bill. However, I am perfectly prepared to say to the noble Lord, Lord Holme, that we will report back in six months' time, or at such time as seems appropriate to him, on the progress of the setting up of Ofcom under the terms of the Bill.

Of course, the issue of coverage involves the question whether we should have two regulators rather than one. I have already referred in general terms to why I think we have to combine economic regulation with content regulation.

The noble Baroness, Lady Howe, referred to the fact that the primary purpose of Ofcom is to manage the industry. She did so in order to put a perfectly legitimate argument, with which I agree, about the necessity for adequate regulation of content. I do not think that that is its primary purpose. The two go hand in hand and, as convergence proceeds, it will become clear that one cannot be considered without the other.

I have already dealt sufficiently with the issue of costs and the Explanatory Notes.

The noble Baroness, Lady Anelay, made a particular point about what the costs would be if Clause 4 were invoked and the whole process aborted. The literal answer is that the Government and the

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taxpayer would have to pay. There is provision for Ofcom to levy charges, but I do not think it could quite be used for that purpose.

I turn now to the issue that has concerned many noble Lords: pre-emption of future decisions and in particular the pre-emption of decisions of Parliament. The Bill includes specific measures in Clauses 2(5) and 3(4) to ensure that none of its provisions should be construed as dispensing with the need for any parliamentary approval that would otherwise be required. In other words, nothing in the Bill will pre-empt Parliament's role in considering the future regulatory regime. Ofcom will not have any regulatory functions until Parliament has had an opportunity to consider those functions and decide what they should be.

A number of noble Lords, including the noble Lord, Lord Lipsey, made the legitimate point that a Joint Committee of both Houses of Parliament proved to be invaluable in the run up to the Financial Services and Markets Act. Having been involved in the passage of that Bill, I certainly agree with that. I hope that we have enough time for a Joint Committee. It would, of course, be a decision for Parliament rather than for government. Both Houses of Parliament, rather than the Government, would have to demand it. It would be impertinent of the Government to impose it. But if there is time to do it, and if both Houses of Parliament ask for it, I cannot imagine that the Government would wish to resist it.

I say the same to the noble Baroness, Lady Miller, who spoke of final changes in the structure. These are not changes in the structure of the industry, as she seems to believe, but they are changes in the structure of Ofcom itself. It is simply not a case of Ofcom coming into full flower as the regulatory body when the final legislation has been passed and not having the ability to change its own structure. What is provided in the Towers Perrin report and in the regulators steering group is some valuable thinking that is designed to cut short later unnecessary delay about the way in which such a regulator could work.

Despite what was said by the noble Baroness, Lady Anelay, the noble Lord, Lord Gordon, and others, I simply do not see that anything in the work of the regulators pre-empts the future role of Ofcom. The noble Baroness, Lady Anelay, referred to paragraph 12 of the Explanatory Notes relating to the provision for committees. That is the power only to set up committees; it does not demand that committees should be set up or what they should be. The main decisions will ultimately be for the Ofcom board and not for any preliminary steering group of the existing regulators.

A number of noble Lords asked legitimate points about the relationship with the competition authorities. That is a difficult area and it always will be, but it is not a new difficult area. We stated in the White Paper that Ofcom will have concurrent powers with the Office of Fair Trading under the Competition Act and the fair trading legislation. That is normal in the case of concurrent jurisdiction. Ofcom and the

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OFT will have to decide which of them is best placed to deal with specific issues or concerns in which both may have reason to be involved.

I know that that is not a satisfactory answer to give the noble Lord, Lord Baker, because I know he wants me to commit myself in much more detail about the relationship than is possible at the moment, but it is the answer that has been given by governments successively whenever there is concurrent jurisdiction. There is, after all, the cheerful thought that a lighter touch in regulation implies that there should be less regulatory overlap than would otherwise be the case.

Similarly, while I would like to fall into the trap of the noble Lord, Lord Eatwell, of giving specific answers about local radio and the national radio network, I cannot do so. I believe that that must be subject to the normal concurrent jurisdiction rules.

The concerns which noble Lords expressed were particularly and understandably about content regulation. A number of speakers saw the economic regulation as leading the pack, so to speak. The White Paper recognises that the freedoms and responsibilities in broadcasting go hand in hand and Ofcom will have as one of its principal duties the protection of the interests of consumers and citizens, including those of children.

That goes with the regulator being independent. It means that the regulator, being independent, will have to make a meaningful decision about the issue of what is timely, as the noble Baroness, Lady Howe, rightly suggested. It means, as was said by the right reverend Prelate the Bishop of Wakefield, that the regulator will have clout to enforce its regulation. The White Paper goes into a great deal of detail on the way in which we approach content regulation and it is not unreasonable for me to suggest to the House that we should rely on the White Paper for the time being and see the policy develop under the supervision of Parliament. Similarly, I resist the temptation to define "public service broadcasting". I say to the noble Lord, Lord Holme, I do not believe that "definition" is necessarily equal to "clarity". When one has an organisation of this kind with complex objectives one does not necessarily benefit from extensive definitions of what is meant by "public service broadcasting".

I believe that in his wise maiden speech my noble friend Lord Corbett had some very relevant comments to make on this matter. In case there is any doubt about it, of course religious broadcasting is part of any such definition that I could recognise. The same is true of education, coverage of international news and many of those matters which over the years we have come to expect as part of public service broadcasting. The same is also true of regional broadcasting which has been an essential element in all the ways in which public service broadcasting has developed in this country. As is well known, it is an important part of the remit of the ITC and so it will continue under its successor.

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Finally, I should like to say something about the BBC and Ofcom. I have heard both sides of the argument. I believe that in expressing their views too many have sought to show that there is something in the Bill which predetermines the relationship between the BBC and Ofcom. There is not. All of these matters are for the main Bill which will be fully consulted upon when it is published in draft in the spring. This Bill is about the structure of Ofcom before it takes on its regulatory powers. It is of no structural importance to Ofcom whether it does or does not regulate the BBC. The Bill deals with the structure of Ofcom at this preparatory stage.

The noble Baroness, Lady Anelay, quoted Clause 2 and the transfer from existing regulators. The clause refers to,

    "transfer from the existing regulators or otherwise".

After all, there is an agreement between the Secretary of State and the BBC which is approved by Parliament. That agreement must be amended to accommodate the

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White Paper regulatory regime, whatever final decisions are taken about the BBC. If thought appropriate, it could well include an obligation to co-operate with Ofcom.

This debate has shown that there are many valuable thoughts on the value and role of the BBC. I have in mind in particular the very well informed, authoritative and persuasive arguments of my noble friend Lady Jay. All of these will take their place in the final consultative process.

I congratulated myself on not having to respond to all the points made in the debate, but I have still taken 22 minutes, for which I apologise. However, I am sincere in saying that, like the debate at the end of February, this one is a valuable contribution to public thinking on issues which will concern all of us, including Parliament, in the months to come. I commend the Bill to the House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

        House adjourned at twenty minutes past eleven o'clock.

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