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Lord Borrie: I hope that the Minister will forgive me for intervening after he has spoken. I point out that in Clause 2(1), the only initial function of Ofcom is given as,
- "to do such things as they consider appropriate for facilitating the implementation of ... any relevant proposals about the regulation of communications".
I know that the Minister was trying to be helpful but he is also being consistent in his answers by pointing out that this is only a paving Bill that merely assists with the implementation that will come later. I am bound to say that the reference in Clause 2(1) to "relevant" proposals about the regulation of communications is singularly unhelpful; it does not even say--either in the terms that the noble Baroness,
Lady Miller, mentioned, or, so far as I can see, anywhere else in the Bill--that, in due course, those proposals will be put forward to regulate communications in the interests of, to put it briefly, competition and the consumer. One would have thought at the very least that the Minister might be able to say somewhere in the Bill that the ultimate purpose of assisting consumers and competition exists. Without that, we merely have the extremely vague and unhelpful phrases in Clause 2(1).In other words, I am saying that I have every sympathy with what the noble Baroness is trying to do. I wonder whether, perhaps at Third Reading, something--it could be phrased in even the most general terms--could be added to the Bill to say what the ultimate objectives are that we are paving the way for.
Lord McIntosh of Haringey: That is an interesting philosophical point, is it not? Much of the time that we have been considering this Bill has been spent defending the paving Bill against those who are afraid that we are in that Bill committing ourselves in the longer term to things to which we do not want to commit ourselves until the communications Bill has been presented to and debated by Parliament. My noble friend Lord Borrie suggested quite the opposite; he said that in the Bill we should express the objectives that will constitute the main thrust of the final Bill. I do not see how we can do that. I do not see how legislation that is debated in October 2001 can say what legislation in 2002 or 2003 will be. It is much better for us to rely on the modest objectives of what the noble Baroness, Lady Miller, called "this little Bill" and to allow for the fact that, by establishing this organisation in advance of the final legislation, we are saving much time and money and enabling the wishes of Parliament to be carried out more effectively than they would otherwise be.
The White Paper states which topics will be given to Ofcom if government proposals are approved by Parliament; but they are not, of course, being approved by Parliament in the course of this legislation. The main Bill will set out the general duties of Ofcom. I confirm--there is no difficulty about this--that they will include competition, consumer protection, universal access and so on. However, that is not in this Bill.
Baroness Miller of Hendon: I thank the Minister for his answer and the noble Lord, Lord Borrie, for his support. The amendment raises one of the Bill's real dilemmas. The Government clearly want to restrict our debate to the paving Bill. Out of curiosity on all sides of the Committee we want to know what we are paving the way for. We are trying now and then to get some information from either of the Ministers about that. I am acting with quite a lot of restraint; it seems that the nicer the answers, the easier it is on this side of the Committee to withdraw an amendment and say, "Oh well, that sounds all right". We cannot push the amendment further. It would have been nice if we had a little more information but we are clearly not going to get it.
The Minister said that he was pleased that I had talked about the communications side instead of merely the broadcasting side. On a previous occasion I pointed out that in the White Paper telecommunications is mentioned on 78 occasions whereas broadcasting is mentioned on 592 occasions. A quick read of the White Paper suggests that it is concerned only with broadcasting. It clearly is not. Obviously we have much more to do. Given the kindness and the gentleness of my nature this evening, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 16 and 17 not moved.]
9 p.m.
Baroness Anelay of St Johns moved Amendment No. 18:
- Page 2, line 42, leave out "whether"
The noble Baroness said: In moving Amendment No. 18, I shall speak to Amendments Nos. 19, 20, 26, 27, 41 and 44.
We have returned to broadcasting, but we shall shortly be discussing telecommunication matters again. As my noble friend Lady Miller said, the world converges and it is sometimes difficult to tell the difference between broadcasting and telecommunications.
The purpose of the amendments is to place a duty on the BBC to prepare plans by which the regulatory functions of the board of governors might be transferred to Ofcom if that is what is decided in the communications Bill. They would also put a duty on Ofcom to work with the BBC for the same purpose. The question of whether it is right or not to bring the BBC fully within Ofcom cannot of course be decided tonight. It will be determined when we debate the communications Bill.
However, Parliament's opportunity to make that decision will be fettered unless we take steps in this Bill to ensure that the BBC is as ready to join up to Ofcom as any other regulator.
Clause 2(1) gives Ofcom the function to do just about anything that it considers appropriate for implementing or modifying proposals covering regulation. It is limited by subsection (2) to working only with the Secretary of State and existing regulators. There is no mention in the Clause 5 definition of existing regulators of the regulatory function of the BBC governors.
I strongly believe that if the BBC is left out of the loop now, it will be too late when we come to the communications Bill to bring it fully within Ofcom if that is then Parliament's wish. Ofcom will have worked throughout the transitionary period without building up a relationship with the BBC. The noble Lord, Lord McIntosh, in the debate on the previous amendment, referred to the fact that the whole point of a paving Bill is to save time and money by setting up an organisation that is ready for the off as soon as the communications Bill has been passed. That is a laudable objective. I would argue that that laudable
objective will be compromised unless the BBC is also ready, willing and able to join the same escalator as the other regulators are currently on.On Second Reading, the noble Lord, Lord McIntosh, said that the provisions of Clause 2(3)(a) allowed the Secretary of State to bring the BBC within Ofcom at some later unspecified date if she so wished. That seems to me like a case of this year, next year, some time, never. It is an unacceptable uncertainty.
The transitional Ofcom may well be into maturity by the time that Parliament has the opportunity to consider the BBC's position with regard to the Bill. It may not have its regulatory powers, but it will have already taken on its own culture. The shadow Ofcom should not be set up in such a way that it becomes difficult, if not impossible for Parliament to bring it wholly within Ofcom in two or three years time, or when the Bill is passed.
Although we are not deciding tonight whether BBC regulatory functions should come fully within Ofcom, I anticipate that Members of the Committee may wish to express their views, as some did on Second Reading. They legitimately form a back-cloth to our debate on the amendments. It is illogical to establish a single converged regulator and then exclude from its remit those services that represent a major part of broadcast television and radio.
The Government often say that their aim is to create a single regulator for the communications sector. But in reality, as the Bill stands, there will continue to be two broadcasting regulators--Ofcom and BBC governors. As the National Consumer Council said, that would be retaining two disconnected streams of regulation, which would not be in the consumer's interest. That could lead to messy turf wars between the governors and Ofcom, which could further lead to chaos and confusion.
At Second Reading, the noble Baroness, Lady Young of Old Scone, wanted to leave the BBC half in and half out of Ofcom. She argued that the BBC is different from other broadcasters, that its sole role is public service broadcasting.
I recognise that there is a difference between the BBC and other broadcasters in its constitution and remit, and I have treated the others somewhat differently in my amendments. The difficulty is that the BBC does not always act differently. Therein lies the problem. In its determination to chase ratings, the BBC has often appeared too much like every other broadcaster. Last Christmas, it broadcast a whole Harry Potter book non-stop. That was fine. I thoroughly enjoy Harry Potter books--I have read them all. It is like going back to childhood and enjoying it all over again. The BBC could chase ratings over Christmas simply because BBC Worldwide had bought the company--Cover to Cover--that owned the rights to the audio tapes. That is fine in itself and a good example of successful, aggressive commercialism. But how does that make the BBC different from commercial broadcasters?
Could we argue that Ofcom simply will not be competent to deal with BBC regulation? If that is so, why not? Surely it will have to have the expertise that is necessary to take decisions, bearing in mind the different needs and status of different service providers. If Ofcom does not have that competence, it will not be competent to regulate other public service broadcasters such as Channel 4--or, indeed, those which are not public service broadcasters. Either the Secretary of State has confidence in Ofcom, or she does not. If not, why is she taking the trouble to introduce this legislation? If she does have confidence in Ofcom, surely the suspicion must be that she wishes to control the political direction of the BBC to a greater level than would be achievable via an independent regulatory body. I hope that we shall be told that that is not the case.
I will not take time at this late stage in the evening going through the technology of each of my amendments. I have not followed the route chosen by the noble Lord, Lord Gordon of Strathblane. That is not because I disagree with him; I do not; I support his objectives. But my amendments may offer a more appropriate way of achieving the same objective. They are simple, fair and practical as a way of ensuring that this paving Bill does not leave the BBC behind, half in, half out of Ofcom. It will also ensure that Parliament can make its decisions in regard to the BBC in the communications Bill unfettered. It is all a matter of keeping our options open. I beg to move.
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