---

Lord Bernstein of Craigweil: I need to declare an interest. Until five years ago, I was a chairman of the Granada Group, which is the parent company of Granada Television. I am still a shareholder in the company, and I am crucially dependent on my pension to continue to live in the style to which I have become accustomed.

I was going to support Amendment No. 27, to ensure that the BBC was more fully brought within the ambit of Ofcom, but my noble friend Lady Blackstone has convinced me that the balance she has adopted is one which is suitable both to the unique characteristics of the BBC, as the noble Lord, Lord Thomson, has said, and which will also involve at least some degree of control by Ofcom.

The noble Lord, Lord Thomson, with the experience of having been chairman of the Independent Broadcasting Authority, said that there is a slightly more distant connection between the authority and the companies than the BBC governors and the management have. I can support that. I recall that in the past we had some very interesting and intriguing skirmishes between the IBA and Granada. It has been a benefit to public service broadcasting to have had the IBA with that relationship. I would also agree with the noble Lord, Lord Thomson, that the BBC needs to look at its governance afresh.

My noble friend Lady Jay made some interesting points about the role of the governors and their relationship with management. There is a danger that the BBC is moving away a little from its public service broadcasting traditions and it is up to the governors to ensure that that no longer happens.

The idea that in the next year, in the run-up to the main Bill, the BBC should be involved in a dialogue with the DCMS and with the public about its role in the future is excellent.

29 Oct 2001 : Column 1276

9.30 p.m.

Baroness Blackstone: I want to make a couple of brief remarks. However, before doing so perhaps I may correct something that I said earlier in a slip of the tongue. I suggested that there will be no requirement on the BBC to provide news and current affairs programmes in peak time. I should of course have said that there will be a requirement and I apologise for that.

The noble Lord, Lord Thomson, made many wise remarks, most of which are for the BBC governors. I hope that they read what he said and take it seriously. I am sure that they will.

As regards the particular point about transparency, the BBC introduced more transparent procedures following the 1999 review and perhaps we should acknowledge that. They were separately audited with the fair trading audit, published in this year's annual report. The BBC has been given a clean bill of health in that respect.

I am delighted that I was able to convince my noble friend Lord Bernstein that we have the balance about right. But of course as regards this issue we need to continue to think and talk to the BBC, and that we shall certainly do. I hope that the noble Baroness, Lady Anelay, will be convinced that when we debate the main Bill nothing we are doing in this Bill will pre-empt further consideration of the issues she raised.

Baroness Anelay of St Johns: I do not intend to test the opinion of the Committee on this matter tonight. In my earlier attempt to be brief, I omitted to explain to the Committee that Amendments Nos. 18 and 19 were paving amendments only. They were tabled simply to inquire what the Government might have up their sleeve with regard to other bodies in addition to the existing regulators. There are matters relating to other bodies to which we might want to return on Report.

As regards matters relating to the BBC, I listened to the thoughtful contribution of the noble Lord, Lord Thomson of Monifieth, based on his long experience in the sector. I am sure that we shall continue to disagree about when it is right to implement any changes for the BBC. I have as yet seen no willingness from it to co-operate immediately Ofcom is in its transitional stage in order to be in the same position of readiness as the other regulators. Therefore, at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 19 to 21 not moved.]

Baroness Miller of Hendon moved Amendment No. 22:

Page 3, line 5, at end insert--

"( ) In particular, OFCOM shall develop appeal procedures ensuring a parity of rights of appeal between economic decisions taken pursuant to the Competition Act 1980 (c. 21) and relevant decisions regarding the regulation of communications."

The noble Baroness said: This is a drafting amendment to cure what we believe might be a potential anomaly under which any decision of Ofcom

29 Oct 2001 : Column 1277

under the Competition Act would be subject to full appeal rights, whereas those under the projected communications Bill, so far as we can divine its contents, would, according to the White Paper, be limited to matters of procedure, law and fact, and would not include appeals on the merits of any decision.

In order to explain what I mean, perhaps I may paraphrase paragraph 8.10.3 of the White Paper. It states that the regulatory structure must embody a transparent and effective appeals procedure. So far, that is good. In line with draft EC directives, this will give the courts explicit scope to review errors of fact as well as errors of law and procedure. That is still very good, and I agree with it so far.

The White Paper states that where there is a need for appeals against regulatory decisions on content that will be met by appropriate appeals within the regulator--for example to a specific panel--backed by final resort to the High Court. That will probably be all right as long as the courts are told that they must accept such appeals and not refuse to interfere in the decisions of Ofcom unless it errs in law. But why is there no provision for internal appeals on fact and law and on the merits of a decision before the aggrieved party is compelled to go to the expense and incur the delay of resorting to the courts? This amendment ensures that the appeals procedure is consistent whether its decisions are under the Competition Act or the intended communications Bill, whenever that becomes law.

In any case, we cannot have a public body whose far-reaching decisions are apparently immune from challenge by way of appeal, even an internal one. Once again, the absence of flesh on the bones of the new Ofcom, and the as yet unpublished definitive communications Bill, is a problem. I look forward to an assurance that perhaps the Minister can give the Committee today that the new regulator will not be all-powerful and that its mere word as regards those whom it regulates will not be the final law. I beg to move.

Lord McIntosh of Haringey: I can certainly give the noble Baroness, Lady Miller, the assurance that she seeks. When Ofcom--this is my qualification--comes to deal with the economic issues and make decisions of the kind referred to in the amendment it will not do so without having an adequate appeals procedure in force. We come back to "dusty answer" time. This is a matter for the main communications Bill when it comes, not this Bill. I entirely share the desire to ensure that there are no contradictions between the appeals processes for comparable situations. We do not want inconsistency and unfairness and companies engaging in regulatory arbitrage. But Ofcom as established by this Bill will not take any decisions on economic issues until authorised to do so by the communications Bill. Therefore, there is no need for a provision in this Bill for appeals against these decisions.

Before we come to the main Bill the draft legislation will contain detailed provisions on the appeals procedures relating to Ofcom's future regulatory

29 Oct 2001 : Column 1278

activities. I am sure that Parliament as a whole will want to scrutinise these proposals in detail when they are published. In the White Paper we have given some indication of our thinking. We have indicated that Ofcom will have concurrent powers with the Office of Fair Trading under the Competition Act 1998 and the Fair Trading Act 1973. I referred to that in my closing speech at Second Reading. I said that, as is normal in cases of concurrent jurisdiction, Ofcom and the OFT will decide which of them is best placed to deal with specific issues or concerns in which both may have reason to be involved. What I did not say and could have said is that this is an arrangement that already works perfectly well between the OFT and Oftel. Therefore, it is not purely theoretical.

The noble Baroness referred to the proposed new communications directives. It is true that one of the provisions in those measures requires appeals against regulatory provisions to an independent court or tribunal. As drafted, it does not require reconsideration of the merits of decisions; it goes no further than the existing telecommunications directives, existing UK law and what is so far proposed in the main communications Bill. I can, therefore, safely confirm that the present situation is that there is no potential for conflict between the EC directive and what is proposed here. I return to the dusty answer: it is for the main Bill.

Baroness Miller of Hendon: This evening we have become used to listening to dusty answers, as the Minister describes them. However, the fact remains that we are pleased that this paving Bill provides us with an opportunity to raise questions. The response of the Minister to the effect that those points will be covered in the main communications Bill is comforting. Passing legislation in the dark, without knowing the detail, is dangerous. I should say that, despite the fact that Members on these Benches have been asked to restrict their points to matters covered in the paving Bill, we are glad that both Ministers have been receptive to our inquiries. They have taken the opportunity to explain how matters will be perfectly safe when later they arise.

Under the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

---