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Harbours Bill [HL]

Report received.

European Parliament (Representation) Bill

3.17 p.m.

The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): My Lords, I beg to move that the Commons amendment be now considered.

Moved, That the Commons amendment be now considered.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

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[The page and line refer to HL Bill 29 as first printed for the Lords.]

15After Clause 21, insert the following new clause— "Jurisdiction of courts
(1) Without prejudice to the generality of the power under which it is made, subordinate legislation to which this section applies— "(a) may take provision for a judge of the Supreme Court of Gibraltar to be appointed as an additional judge (with the two judges acting under section 123 of the Representation of the people Act 1983 (c. 2) as applied for the purposes of European Parliamentary elections) for the trial of an election petition relating to the election of MEPs in the combined region; and
(b) may, for the purposes of such an election petition—
(i) confer the powers, jurisdiction and authority of a judge of the High Court on any Gibraltar judge who is so appointed; and
(ii) make any other provision necessary to secure that a Gibraltar judge so appointed is treated as if he were a judge of the High Court.
(2) Without prejudice to the generality of the power under which it is made, subordinate legislation to which this section applies may—
(a) confer jurisdiction over any matter connected with the election of MEPs in the combined region on an election court constituted under section 123 of the Representation of the People Act 1983 (c. 2) (as applied for the purposes of European Parliamentary elections);
(b) confer jurisdiction over any such matter(not being a matter within the jurisdiction of the election court) on—
(i) one or more courts in the United Kingdom;
(ii) one or more courts in Gibraltar (whether specified in the regulations of left to be determined by or under the law of Gibraltar); or
(iii) one or more courts in the United Kingdom and one or more courts in Gibraltar.
(3) This section applies to—
(a) an order under section 11;
(b) regulations under section 16; and
(c) regulations under section 7 of the 2002 Act."
The Commons agreed to this amendment with the following amendment:

15ALine 28, leave out "regulations" and insert "subordinate legislation"

Baroness Scotland of Asthal: My Lords, I beg to move the House do agree with the Commons in their Amendment No. 15A to Lords Amendment No. 15. I would ask the House to return its attention to this Bill only briefly. As noble Lords may remember, we made a moderate number of amendments to the Bill as it passed through its stages in your Lordships' House. The other place yesterday agreed to our amendments and we can feel confident that our scrutiny has left the Bill a better piece of legislation.

It has emerged, however, that there was a minor technical error in the drafting of the new specific clause on jurisdiction that we inserted into the Bill by our Amendment No. 13 in Grand Committee. As your Lordships may remember, the new clause is intended to enable the conferring of jurisdiction on the courts to be

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made either under regulations or an order. At present one of the references in the enabling power is erroneously restricted to "regulations". An amendment to the original amendment agreed yesterday in another place corrects that error, and ensures that the clause can work as intended. I commend the amendment to the House.

Moved, That the House do agree with the Commons in their Amendment No. 15A to Lords Amendment No. 15.

Baroness Rawlings: My Lords, we on these Benches welcome the acceptance of the amendment and take the opportunity to say how much we welcome, too, the aims of this legislation, especially as we have campaigned for a long time for a better deal for the people of Gibraltar.

Lord Roper: My Lords, we on these Benches also welcome the Commons' agreement to the amendment which we made to the legislation and accept the technical amendment that they have made to it.

On Question, Motion agreed to.

Communications Bill

3.19 p.m.

The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Blackstone.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 [Functions and general powers of OFCOM]:

On Question, Whether Clause 1 shall stand part of the Bill?

Lord Thomson of Monifieth: Before the clause passes, perhaps I may ask what I hope is a simple question and gain a simple answer. Subsection (5)(c) refers to what Ofcom will do in the matter of instituting criminal proceedings in England, Wales and Northern Ireland, but there is no mention of what will happen if proceedings have to be taken in Scotland.

Baroness Blackstone: The noble Lord, Lord Thomson of Monifieth, did not give me notice that he wanted to ask such a precise, technical question. I regret to say that I will have to write to him in order to give him the answer.

Lord Thomas of Gresford: I welcome the pre-legislative scrutiny that has occurred in relation to the Bill. Clause 1(6) is a clear commitment that Ofcom should maintain offices in Wales. We regard it as a step, but not the whole journey.

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The draft of the Bill was sent to the National Assembly for Wales, which consulted widely throughout Wales and considered representations by members of the public, consumer and professional groups, broadcasters and regulatory broadcasting and communications bodies. Wales' specific concerns are the language, culture and technical problems which hinder the viewing and broadcasting of Welsh programmes, particularly in the marches of Wales.

We are therefore grateful that the Bill provides that there should be offices in Wales for Ofcom, but a number of National Assembly recommendations do not appear in the Bill before us. We will come to those issues in due course, as amendments are debated, in particular the establishment of the Ofcom Wales communication council to advise on content and consumer and technical issues to replace the existing consultative bodies; power for the National Assembly to appoint the Welsh representatives on the content and consumer panels; a general duty on Ofcom to consult with and give due consideration to representations made by the National Assembly; and an obligation that Ofcom will ensure that audience research is carried out on a Wales basis and that it will publish an annual report on its activities in Wales. We shall debate those recommendations, but unlike that in Clause 1(6) they do not appear on the face of the Bill.

It is essential that the principles of the Bill and its provisions reflect the spirit of devolution. Calls from the Welsh Assembly government for a strong voice for Wales throughout the regulatory structure should be explicitly provided within the Bill but have so far been ignored. I take this opportunity to flag up the various issues which we shall come to in due course.

Baroness Blackstone: I am grateful to the noble Lord, Lord Thomas of Gresford, for flagging up those points. We will have ample opportunity to debate those aspects of the Bill that are concerned with devolution and the particular issues in relation to Ofcom and its operations in Scotland, Wales and Northern Ireland.

Clause 1 agreed to.

Clause 2 agreed to.

Schedule 1 agreed to.

Clause 3 [General duties of OFCOM]:

Lord Puttnam moved Amendment No. 1:

    Page 3, line 3, after "the" insert "principal"

The noble Lord said: The purpose of this first group of amendments tabled by myself and other noble Lords, including members of the joint scrutiny committee, is to establish which moral universe this Bill is intended to inhabit. It is hoped that the first amendment will provide an unambiguous basis on which Ofcom can address even the most complicated issues falling within its remit, most particularly those which touch on the public interest.

The Government have gone a long way in meeting many of the suggestions for improvement set out in our report and I am sure that the Committee will join me in recognising that. But at the same time they have

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tied themselves up in knots in persisting with a number of unfortunate notions, among them being a belief that one can legislate for, at all times, giving equal weight to the imperatives of the citizen and the market. It is precisely this issue—the competing claims of the citizen and the market—that lies at the heart of these and many other amendments the Committee will be considering in the coming weeks and months.

This notion of the Government tied up in knots will attract differing levels of sympathy within the Committee, but the job of this group of amendments and others that follow is to ensure that Ofcom is itself saved from being bound up in similar knots.

Governments come and go, but in the coming weeks, if we in this House do our job well, Ofcom can look forward to a secure and productive future. That is why it is so important that we prise the Government—and from time to time the Opposition Front Bench—away from some of the more unnecessarily destructive positions that they appear to have adopted.

Let us start with the concept of co-equality. When looked at objectively it is honestly little more than a seductive chimera. It even has the potential to be positively dangerous. It would, over time, be surprising if many, if not most, of the challenges facing Ofcom do not present themselves as being capable of commercial or market-driven solutions. In fact, the entire Bill is predicated on that assumption.

But not all of Ofcom's decisions can or should be dealt with in that way. This first amendment is intended to give the clearest possible signal to Ofcom that when the public interest finds itself even marginally at variance or in conflict with the workings of the marketplace, it is the public interest test that must be judged not as co-equal but as being of paramount importance.

In a well-run world, it might be unnecessary to insist on any such clear distinction. But such are the powers of persuasion available to the marketplace, and so fragmented and under-resourced are the public interest voices raised in its defence, that it is vital that any unnecessary ambiguity becomes impossible and that a clear distinction finds its way on to the face of the Bill.

These arguments were fairly well rehearsed on pages 11 and 12 of the report of the joint scrutiny committee. We pointed out that the self-same Minister who guided the Utilities Act through another place bore the burden of this present Bill, and that in referring to Section 9 of the Utilities Act, which sets out the principal objective of gas regulation, he made it clear that this principal objective was:

    "to further the interests of the persons who are customers . . . wherever appropriate, by promoting effective competition".

Members of the Committee will note the use of "wherever appropriate"; none of this "co-equal" stuff found its way into the utilities legislation.

Dr Howells made it crystal clear—and quite rightly—that it is the customer—or in this case the citizen—who counts. In fact, the Minister went even further at the time of the passage of the Act, saying that:

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    "the duties form a hierarchy which is designed to assist regulators in resolving potentially conflicting regulatory objectives".

I am forced to ask the Minister the same question as was asked by the joint scrutiny committee. Can she explain why the common-sense approach that the Government brought to bear in achieving the passage of their utilities legislation has been abandoned, when surely it must have been apparent to Ministers and their officials that Ofcom was likely to be confronted with similar, and I would suggest even far greater, conflicting regulatory objectives?

It is all too reminiscent of that short-lived concept of "light touch". It might have served its purpose as a headline grabber, but when things got serious the Government got real and sensibly decided in favour of seeking legislation that was appropriate and proportionate. That was probably what they meant all along, but I guess they just needed to hear the argument.

So it is, or ought to be, with "co-equal". It should go the way of "light touch". Bin them both, I say, because both are confusing, both invite dispute and both, as I have suggested, have the potential to be dangerously misunderstood, even so far as leading to the possibility of judicial review.

The Government in their communications Green Paper of July 1998 stated, without caveat, that:

    "The regulatory process starts with government. Regulators must have a clear legislative framework within which to operate".

Surely, all the more reason to listen, as did the joint scrutiny committee, to the advice of the regulators themselves. We were extremely fortunate to have that doyen among regulators, Sir Bryan Carlsberg, advising us throughout the whole of our deliberations. We found ourselves in unanimous cross-party agreement with Patricia Hodgson, the chief executive of the ITC when in evidence she advised that failing to achieve such a hierarchy—the same one which was recommended by Dr Howells—may,

    "have a danger of paralysing decision-making".

This is an area in which speed of intervention is important. A constant theme of the evidence presented to the joint scrutiny committee was that,

    "slow regulation is ineffective regulation".

I beg Members of the Committee to listen, as we did, to Mr Nick Lovegrove, head of McKinsey's telecoms, media and technology practice, who, writing in the Financial Times of 26th November, said,

    "All of us care as consumers and citizens what happens in these sectors . . . These sectors really matter to our everyday lives, and OFCOM will need to connect with citizens and consumers across the range of issues".

He added,

    "OFCOM will need to remind itself of its primary objective, to protect the interests of citizens and customers. That will require constant vigilance over market structure and conduct since consumers are always the [first] and most direct victims of monopoly abuse or dysfunctional competition".

That is not the plaintive voice of the consumer lobby, but hard-edged, practical advice from someone who spent every day of his working life immersed in

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these complexities and on behalf, primarily, of commercial interests. Indeed, the Secretary of State herself, in a briefing before the House of Commons Second Reading, made it clear in her own words that,

    "Consumer interests remain at the heart of OFCOM's focus".

So why this lingering and unnecessary ambiguity when it is clearly not intended to be such? It is possible that the Minister and the noble Baronesses on the Opposition Front Bench will find entirely persuasive these and other arguments advanced in favour of these relatively simple but important amendments. I sincerely hope so. Should the Government decide otherwise I am sure that the Committee would be grateful if the Minister were to spell out in some detail the way in which the Government imagine that their doctrine of co-equality might work in practice. One or two hypothetical cases with clear, unambiguous resolutions may well go some way towards reassuring the Committee that the day-to-day, week-to-week functioning of co-equality is in fact possible. What is certain is that she is likely to be offered any number of, I hope, useful hypothetical cases from all parts of the House, which I anticipate will establish that the Government will be doing few favours to themselves and even fewer to Ofcom if they press ahead with this clause unamended. I beg to move.

3.30 p.m.

Lord Thomson of Monifieth: I begin with an apology to the Committee that I rise to speak in connection with the very first group of amendments when I did not do so at Second Reading. I was prevented from doing so by a family funeral. I have another declaration of interest to make. I have a daughter who is a member of the management of the BBC as well as myself being president of IBA and ITC Pensioners Association. I hope that due impartiality between the two main broadcasting organisations may be some evidence of that on my part.

I am happy to follow the noble Lord, Lord Puttnam, in what he has said. It is particularly appropriate that this very important Committee stage of a major Bill should begin with a group of amendments that go to the heart of the challenge in the Bill. The noble Lord, Lord Puttnam, spoke about making effective arrangements for co-equality. I use a gentler metaphor and say "to contract a happy marriage" between the interest of Britain's global telecommunications industry on the one hand and its essentially domestic broadcasting services with the major core of public sector broadcasting on the other, which, I believe it is fair to say, is the envy of the rest of the world.

As recently as the 1980s, when I was chairman of the IBA, telecommunications and broadcasting lived reasonably happily and largely in separate houses with neighbourly but distant relationships. Now the walls are totally down. Under the Bill, the board of Ofcom will be simultaneously responsible to two Secretaries of State for major departments with important, different and sometimes conflicting interests. Indeed, that is reflected in the rather unusual wording of the clause, in my experience of legislation.

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It is a case of two cooks in the same kitchen. I am sure that the noble Lord, Lord Currie, and his colleagues will have their work cut out. It is for that reason that I believe there is immense force in the arguments of the noble Lord, Lord Puttnam, for very serious reconsideration by the Government of their attitude to this matter.

There is now a global market place in telecommunications and some stunning communications technology is competing there. As I know very well from my own experience, that offers very seductive temptations to government. I was a member of a government which trusted too much in what was called, in a famous phrase, "the white heat of the scientific revolution". A lot of good it did for us in the end. I believe that a greater and, I hope, more enduring British achievement lies in our public broadcasting system, from its birth in the BBC, with the creation of a publicly-funded organisation, to an advertising-funded ITV and on to a fourth channel. They are all creations to the credit of the Opposition Front Bench and Conservative governments.

From these Benches we strongly support the amendment moved by the noble Lord, Lord Puttnam. In a media-dominated age the quality of our lives in the 21st century will be greatly affected by the quality of our media and the degree to which we can, in the words of my noble friend Lord Phillips of Sudbury,

    "uphold the principles of public service broadcasting".

I hope that the Government will be persuaded to accept the arguments of the noble Lord, Lord Puttnam. It would also be helpful if they were to accept the modest amendment of my noble friend Lord Phillips and to put the words I have just quoted on the face of the Bill.

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