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Communications Bill
Lord Crickhowell moved Amendment No. 29:
- After Clause 3, insert the following new clause—
The noble Lord said: In moving Amendment No. 29, I shall speak also to Amendments Nos. 311 and 312. I draw attention to page 31 of the report of the Joint Committee on the draft Bill, which deals with the duties of the Secretaries of State. The general policy of the Government has been made perfectly clear, and I respect it. It is that there should be a clear dividing line between the Government and regulators, and that the Government should set the overall legal framework and then allow the regulators independence to operate at arm's length from the Government within that framework.
However, the Government propose that they should have a range of additional powers over Ofcom. First, the Secretaries of State are able to issue directions to Ofcom in respect of networks or spectrum functions in the interests of national security or relations with a foreign country, for the purpose of securing compliance with international obligations or in the interests of the safety of the public or public health. The Government also propose to seek an additional power, subject to the affirmative resolution procedure, to further extend that range of purposes. Secondly, the Secretaries of State are able to issue directions to Ofcom in respect of broadcasting functions for the sole purpose of securing compliance with an international obligation of the United Kingdom. Thirdly, the Secretaries of State have wide-ranging powers to alter Ofcom's legal framework on a continuing basis by means of powers to issue more specific directions and to make secondary legislation.
The Joint Committee considered that, as a consequence of those powers, the Secretaries of State will be able to exercise functions that are regulatory by nature. That is indicated in Part 2 of the Bill by the fact that certain functions of the Secretaries of State are subject to appeal, in the same way as are those of Ofcom. It was those facts that led to representations from a number of organisations—the Royal National Institute of the Blind, in particular—to the effect that the general regulatory duties under the Bill should apply to the Secretaries of State, as well as to Ofcom.
That is not a new idea. It is not a novel concept. The Secretary of State is subject to the general duties under Section 3 of the Telecommunications Act 1984. It is a generally accepted principle, as we pointed out in the Joint Committee, that, in the words of the current Minister for Tourism, Film and Broadcasting,
Paragraph 42 of the Government's response to our suggestion that the general duties should, therefore, apply to the Secretaries of State said:
Having myself been a regulator, I am a little sensitive on the subject of general duties and the relationship between Secretaries of State and the regulatory organisations. I know that there are matters in which Secretaries of State get involved in one way or another. However, it is a more important matter that leads me to move the amendment. There is a matter of principle. If Parliament gives regulatory powers to Ministers, the nature of those powers should be made clear and should be limited. The Bill, after all, spells out the extent of and the limitations on the powers given to Ofcom. It must be right that it should spell out with equal clarity the extent of and the limitations on the powers given to the Secretary of State.
If Ministers believe that different duties should apply and that they should be specified differently, they should say so. The general principle that Ministers should not be empowered to do things without a set of principles that clearly define and limit their powers is an important one. That is the subject that I wanted to raise by moving the amendment. I beg to move.
Lord Puttnam: I support everything said by the noble Lord, Lord Crickhowell. I am supported in that by the noble Lord, Lord McNally, and the noble Lord, Lord Hussey, who is not in his place. In response to what the noble Lord, Lord Crickhowell, said, perhaps I may make an important general point which I hope I shall not have to raise again in Committee.
Along with noble Lords such as the noble Lord, Lord Crickhowell, I am a member of the joint scrutiny committee. It has been put to us that we are in danger of
Seventy amendments have been tabled in order to probe and encourage the Government to say in this Committee what they could just as easily—I think in a much more time-saving way—have said in their initial response. This is a very important issue. I doubt very much that my colleagues on the Front Bench will agree with it, but next time joint scrutiny is involved, I suggest that the Government take their response far more seriously and respond in a far more detailed manner.
Turning to the specifics of this amendment, the noble Lord, Lord Crickhowell, has covered most of the ground. Paragraphs 104, 105 and 106 of the joint scrutiny committee report make it clear that this is not a trivial issue. We suggest at the end of paragraph 106 that,
"APPLICATION OF GENERAL DUTIES TO THE SECRETARY OF STATE
(1) Except as provided for in subsection (2), in carrying out his functions under the relevant enactments, the Secretary of State shall have regard to the general duties imposed by virtue of section 3.
(2) The provisions of subsection (1) do not apply when the Secretary of State is carrying out his functions under—
(a) the provisions of this Act set out in—
(i) section 5,
(ii) section 20,
(iii) section 26,
(iv) section 27,
(v) section 129,
(vi) section 153,
(vii) section 160,
(viii) section 329,
(ix) Chapter 5 of Part 3,
(x) Part 4, and
(xi) Schedule 2;
(b) sections 5 to 7 of the Wireless Telegraphy Act 1949 (c. 54);
(c) section 7A of the Marine, &.c, Broadcasting (Offences) Act 1967 (c. 41);
(d) Part 5 and section 94 of the Telecommunications Act 1984 (c. 12);
(e) section 63 of the 1990 Act; and
(f) section 132 of the 1996 Act.
(3) In this section, "the relevant enactments" means—
(a) this Act;
(b) the enactments relating to the management of the radio spectrum (so far as not comprised in this Act and Part 6 of the Telecommunications Act 1984);
(c) the Telecommunications Act 1984;
(d) the 1990 Act;
(e) the 1996 Act; and
(f) the Office of Communications Act 2002 (c. 11)."
"General duties . . . set the framework in which regulators—both the regulatory authorities and the Secretary of State—exercise their functions".—[Official Report, Commons Standing Committee A, 29/2/2000; col. 232.]
"We believe the functions of the Secretary of State and Ofcom, as set out in the Bill, to be quite distinct. The Secretary of State would be carrying out her functions in the context of wider policy considerations. In doing so, it would be open to the Secretary of State to import broader considerations of public policy than could Ofcom in carrying out their functions in accordance with their general duties. We do not therefore accept that it would be appropriate in general for the general duties to also be applied to the functions undertaken by the Secretary of State".
I accept that there are certain functions of the Secretary of State that fall outside the general duties applying to Ofcom. It is for that reason that my amendment makes an attempt—I expect that I will be told that it is an imperfect attempt—to list the general duties that apply, except where they are exercising powers for public interest purposes. We understand that there are matters that should be exempted from any general duty application, and we have attempted to deal with that. The subsequent amendments deal with an outstanding element of the Joint Committee's recommendation 43, which was accepted in principle and relates to the reporting provisions of the Telecommunications Act 1984.
"Government should find it possible to draft the Bill so as to disapply the general duties from the Secretary of State where it is appropriate to do so. A general disapplication would appear to be at odds with the principles of earlier legislation".
The noble Lord, Lord Crickhowell, made that point very well. I am becoming very confused as to when a principle is a principle or when a general duty is a general duty because, as far as I can determine, the Telecommunications Act, the Utilities Act and this Bill seem to have taken very different lines. Therefore, three different regulators are being given three different forms of advice for three different forms of occasion. It is not tidy. I am the last person in the world to stand in your Lordships' House and suggest logic; I am anything but a logician. But there is a desperate lack of logic in the responses of the Government to what are important issues. I support the amendment wholeheartedly.
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