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Baroness Miller of Hendon: I made clear that I would listen carefully to what the noble Baroness the Minister had to say. It is most reassuring that she tells us that the communications Bill will deal with the need for Ofcom to ensure that the regulation is not over-heavy and that it will deregulate where possible.
I agree with the noble Lord, Lord Holme, that it would be appalling to have a "policeman" as a member of Ofcom. I referred purely to my own experience on other boards where I was appointed to the board but was given a specific task. For example, I was responsible for training when on the board of the Crown Agents. My responsibility there was extremely light touch. However, in view of the remarks of the noble Baroness, I now feel confident about this matter, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7 p.m.
Baroness Anelay of St Johns moved Amendment No. 11:
- Page 2, line 10, leave out from beginning to "; and" in line 12 and insert "An order under subsection (7) may not be made unless a draft of the order has been laid before Parliament and has been approved by a resolution of each House"
The noble Baroness said: In speaking to Amendment No. 11, I shall speak also to Amendment No. 12. The purpose of the amendment is to change the status of the statutory instrument--the order-making power--in Clause 1(8) from one requiring a negative resolution procedure in each House to one requiring an affirmative resolution procedure in each House. Clause 1(7) allows the Secretary of State to modify the maximum and minimum numbers of members of the board of Ofcom.
I appreciate that the report from the Delegated Powers Committee states that the negative procedure is consistent with similar powers that the committee has approved in the past. However, the committee leaves it up to the House to determine whether this is regarded as a Henry VIII power. The danger is that in this case it could be.
So far, today's debates have shown concern about the size of the board and why it may or may not be increased in size. In the briefing by NTL, the cable company, there is the interesting point that it will be for the benefit of Ofcom's political independence if the appointment of extra members is resisted. NTL feels that there is a danger that the Secretary of State could appoint extra members simply to force through a revision of the existing board's decision.
A further example of an occasion when there could be political interference by appointing new or extra members is whether the power could be used to change the whole nature of Ofcom after Parliament has given its approval to the current structure in the communications Bill. As I have mentioned, the structure created by this Bill will continue beyond the passage of the communications Bill and its implementation.
I believe that this measure is significantly different from the usual circumstances in which the negative resolution is used, in that it applies to a body that has been created by a paving bill, creating a potentially powerful new body. Earlier the Minister quoted an occasion when a Conservative government had introduced a paving Bill. Perhaps two wrongs do not make a right, but I shall have to look into whether it was the right thing to do at the time. My concern on this occasion is whether the order-making power in this Bill is properly within the remit of the negative resolution procedure rather than the affirmative resolution procedure .
As a matter of principle, I believe that it is right, if and when the Secretary of State decides to change the upper and/or the lower limits of the numbers of members, that she should be required to submit that order to the more effective scrutiny in your Lordships' House of an affirmative resolution.
I turn briefly to Amendment No. 12. Clause 1 also includes a power for the Secretary of State to introduce provisions, through this order-making power, well beyond the appointment of members. That is why I believe that it is vital that it should be accomplished by means of an affirmative resolution. The Secretary of State will be able to put in the order provisions that are incidental, supplemental, consequential and transitional, which is a wide power indeed. Presumably, not only could the Secretary of State thereby introduce measures that Parliament had indicated during its debates on the communications Bill that it wanted, but the Secretary of State could also use it subsequently to change the whole nature of Ofcom.
In what circumstances would changes be made other than in response to the requirements of Parliament in the communications Bill? I hope that the Government will be able to give full reassurances on this matter and that they are able to accept that the proper way of dealing with such an order-making power is to submit it to the affirmative resolution procedure. I beg to move.
Baroness Blackstone: Amendments Nos. 11 and 12 relate to the power of the Secretary of State to make an order to modify the minimum and maximum numbers of members of Ofcom. We do not believe that modification to the size of the board in future should raise any major issue of principle. It is a matter of sensible, pragmatic policy. Therefore, the negative resolution procedure is considered adequate.
On earlier amendments, I have mentioned that once Ofcom has assumed its regulatory powers, it would be desirable for the Secretary of State to have power to make later adjustments to the size of the board in the light of the experience of Ofcom in carrying out its wide range of regulatory functions and possible changes in this fast-moving sector. We do not anticipate frequent use of this power. As the noble Baroness, Lady Anelay, has conceded, noble Lords will recall that the Delegated Powers Committee examined this Bill and did not object to the negative procedure, noting that it was similar to powers that have been approved in the past and that it was considered appropriate in this case also. I am happy to ask the committee to confirm again that that is its view, if that would help the noble Baroness. In the light of that, perhaps she will feel able to withdraw the amendment.
Baroness Anelay of St Johns: I appreciate what the Minister says about the report of the Delegated Powers Committee. As I mentioned in opening, the relevant paragraph of that committee's report leaves the House to decide whether the power is so wide that it is a Henry VIII power. I do not believe that the Minister has answered my question as to why the Government may want to increase the number of members of Ofcom other than in response to the requirements of the communications Bill. Does she wish to respond to that matter?
Baroness Blackstone: Perhaps I may add to what I have already said. Although we do not anticipate
having to use some of those powers, it may be helpful to provide one or two examples of the type of incidental, supplemental, consequential and transitional provisions--to use the jargon--that may be required in an order made under Clause 1(7) to modify the minimum and maximum number of members of Ofcom. There may be, for example, instances when, in reducing the number of members on the board, the Secretary of State may need to make consequential provisions connected with the removal of members. Similarly, there may be instances, in increasing the number of members of Ofcom, when transitional provisions would need to be made to cover the period prior to the time when the new appointments could be made. Of course, Parliament would have the opportunity to consider any order made under this provision. I hope that that is helpful and answers the supplementary question posed by the noble Baroness.
Baroness Anelay of St Johns: I believe that takes us a little further but not far enough. I am not trying to prevent the Secretary of State from having the opportunity to come to Parliament to ask that the number of members be increased or reduced, but I have difficulty in accepting what the Government say in regard to the vehicle. The negative procedure limits whether this House may amend such delegated legislation. The affirmative procedure gives far greater opportunity for debate and for consideration of changes. Of course, this House cannot make amendments thereto, unless there are changes in the way in which the House operates, but the affirmative procedure provides a better opportunity for considering how the Secretary of State may be trying to change the whole operation of Ofcom.
The Minister gave some interesting examples, relating to where it may be necessary to reduce the number of members of Ofcom in order to remove members. The Minister looks concerned, but I understood the Minister to say that there may have to be a change to the number of members of Ofcom if a member were to be removed. I took that to mean that one may have to go below a current minimum in order for Ofcom to continue to operate with fewer members in place. As the Minister does not contradict me, that must be the case.
I am firmly of the opinion that the affirmative resolution procedure is the better way to go in such matters. I shall wish to test the opinion of the Committee.
Lord Thomson of Monifieth: Before the noble Baroness comes to a conclusion, I must say that I have listened carefully to what she has said and I have a considerable degree of sympathy with her arguments. Did I understand from the Minister that she is prepared to ask the Delegated Powers Committee to take a further look at this matter? If so, perhaps the matter could be left open for the time being and, in the light of any fresh view from that committee, we could come to a final conclusion on this matter on Report.
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