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Lord Puttnam: Perhaps I may ask my noble friend one question that may help him when we reach Report. Much of what he said was perfectly reasonable until he

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used the terrible phrase, "wherever possible". In my experience of legislation, "wherever possible" becomes a catch-all get-out and effectively makes everything meaningless. Perhaps the Government can return on Report with an illustration of what they mean by "wherever possible". When does "wherever possible" become a legitimate delay, and when does it become an escape clause?

Lord Evans of Temple Guiting: I am grateful to my noble friend for that intervention. We will hold discussions with him on the matter before Report.

Lord Crickhowell: I listened with considerable interest to the Minister's reply. Much of what he said reinforced the arguments advanced from my Front Bench and others who spoke in the debate. I was again worried by the repeated reference to the time that would be taken by stakeholders. We shall want to consider that carefully before Report, because we must not allow Ofcom to be dictated to by the actions of stakeholders. We must try to find a way around that and return to the matter on Report.

I was also interested in the Minister's argument about Amendment No. 38. Basically, he said, "Well, it should apply only to part of the Bill; it is a question of the extent of the coverage". I thought that that was a Minister saying, "Well, this is not actually a bad provision, but it needs a little amendment and modification so that it applies only to the relevant parts of the Bill". Again, we must consider that before Report.

We have not reached the end of this discussion, although I am most grateful to the Minister for elaborating on the arguments advanced in another place. He has given us enough material to see whether we can reach a more workable solution.

Baroness Buscombe: I thank the Minister for his response and noble Lords, including the right reverend Prelate the Bishop of Manchester, for their support. I begin with what the right reverend Prelate said about Amendment No. 35. Obviously, we do not want to put Ofcom in an impossible position by giving it unrealistic timescales. On the other hand, as noble Lords have pointed out, there is a history here of regulators' seeming inability to provide answers within a reasonable period. The phrase, "wherever possible", alludes to that problem.

The Minister said that Ofcom would be open to legal proceedings if it did not meet the time-frame but, using the example cited by my noble friend Lord Astor, the Office of Fair Trading has consistently failed in recent years to provide answers within a sensible time-frame. Legal proceedings are possible in that case, but they have never been able to stick.

Looking at the matter in as practical a way as possible, there is a history of problems with other regulators. The Minister said at the outset that to suggest that there might be a problem with Ofcom and to compare it with other regulators was unfair. That is the very reason for the amendments: we want to avoid Ofcom being, as the Minister put it, tarred with that

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brush. We want Ofcom to be a successful regulator, able to respond to different difficult situations with due promptness and as efficiently as possible.

This whole debate impinges directly on later debates, as my noble friend Lord Crickhowell said. The question of the ability to produce reports within a reasonable time frame will impinge directly on resources, which is a subject to which we shall return, I hope, later today.

I am somewhat disappointed by the Minister's response. All the amendments, including those in the names of my noble friend Lord Crickhowell and the noble Lords, Lord Puttnam, Lord McNally and Lord Hussey, are entirely reasonable. They would not put Ofcom in a difficult position; they would help to protect it from suggestions that it was spinning things out, creating a situation in which, as the noble Lord, Lord McNally, said, justice delayed is justice denied. We will go away and reconsider an amendment to table on Report that meets our concerns. For the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 36 and 37 not moved.]

11.30 a.m.

On Question, Whether Clause 8 shall stand part of the Bill?

Lord Peyton of Yeovil: I hope the Government will dismiss any lurking suspicion that the Motion to oppose the clause is in any way hostile or that it seeks to exacerbate the real difficulties now being faced by the Government, even though those are, to a certain extent, of their own making.

It is with concern, even dismay, that I point out that here we are, on the third day in Committee, having not yet disposed of Clause 8. Some 395 clauses and 18 schedules are to come. This could develop into an almost endless process which would be highly embarrassing to the Government and damaging to an industry which cannot tolerate protracted uncertainty. In my view, it will make your Lordships' House appear just plain silly. We shall look rather like mice in a cage, scrabbling about on the floor, not knowing where the door is or how to open it.

Let me make it clear in passing that I have nothing against Clause 8. It is simply the last of five or six clauses setting out the duties of Ofcom. I am happy to admit that the Motion to oppose could have applied equally to any one of those clauses. However, this appears to be the appropriate moment to consider the matter.

The first major point I want to make is that Bills of such huge dimensions are very nasty and unattractive objects. If Bills carry on growing at this rate, some of the weaker among us will need to seek the assistance of a caddie to carry the wretched things about. I hope that the Government will pay attention to that remark. Bills are becoming collections of suggestions that anyone may care to make. As a result they are far too heavy a meal, and clarity simply goes by the board.

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I remind noble Lords of paragraph 26 of the report of the Select Committee:

"The draft Bill as it stands does not provide the clarity of duties and objectives that the Government itself has sought".

I concede that improvements have been made, but I do not think they go anything like far enough. In a Bill of this length a good deal of confusion and uncertainty, along with lack of clarity, is bound to arise. I hope that the Government will record and take seriously the warning that if they pack a mass of detail into their Bills, then that mass will certainly attract suggestions as to how it could be improved. The discussion of suggested improvements is likely to take up a great deal of time.

It is of the utmost importance that Ofcom and its chairman should have sight of the wood and not become lost under the trees in a labyrinth constructed by those who believe that they are being helpful. I put in a plea to noble friends on my own Front Bench: as the Bill progresses, I hope that they will realise that the scene is changing from what it was when the Bill was handled in another place and that they will not become hog-tied to foolish advice received from party sources down the corridor. Indeed, that applies to both Front Benches.

An overload of duties, functions and guidance will be a major handicap to the noble Lord, Lord Currie. What he is going to need is the freedom to perform broad duties laid out in a way appropriate to Acts of Parliament. What he deserves—he is neither a fool nor a rogue—is to be trusted. I recognise that modern governments find it extremely difficult to trust almost anyone. They put people in important positions but will not give them the discretion and the freedom they need; they harass them at all stages. I see my friend the noble Lord, Lord Marsh, in his place on the Cross Benches, with whom I have dealt in the past on transport issues. I learned then that if Ministers do not trust those whom they appoint, the most ghastly muddle ensues. We are pretty good at creating the scenery in which such muddles can arise.

The noble Lord, Lord Currie, spoke clearly at Second Reading:

"I hope that your Lordships will avoid the temptation to add many more specifics on one aspect of the Bill or another. Ofcom needs some freedom of manoeuvre to carry out its duties".

He added:

"It is tempting, to shift metaphor, to see Ofcom as a Christmas tree on which to hang one's favourite decoration".

It had not occurred to me to compare amendments tabled in either House with Christmas decorations, thus suggesting that they are in any way decorative. Most are usually anything but, and they are not intended to be; they are usually rather ugly and not well framed.

The noble Lord's third point was one of great importance:

"We have a real opportunity to look afresh at the way we do regulation".—[Official Report, 25/3/03; cols. 683–4.]

Anyone ready and able to look again at the way we do regulation must be someone we would cheer to the echo and welcome with the utmost enthusiasm. When

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considering the morass of regulation that is shunted through Parliament day after day and week after week, no one could suggest that we should be proud of it. I wish the noble Lord, Lord Currie, well, in particular as regards his fulfilment of that promise.

The last of the quotations I wish to cite from the noble Lord is one that I believe to be singularly important. As Bills drag their weary way through Parliament, the point made by the noble Lord, at col. 684, is one that we rather ignore:

"But Ofcom has been long in the making and this has meant a lot of uncertainty for many in the communications sector as well as for the staff of the . . . regulatory bodies".

I believe those arguments to be unanswerable. I hope that they do much more than just puzzle the Government. The Government should pause, reflect, and see what can be done to meet them. Otherwise, the uncertainty and muddle we see already will become intolerable.

I hope that I have the Minister's attention because I have not finished yet. It is our habit in this country to set up organisations that are eminently satisfactory to those who conceived them, but nightmares to those who must operate them. I hope that the Government will take the opportunity in this short debate to say that they will look at the situation to see whether they can modify the Bill to accelerate its progress considerably; otherwise, the uncertainty will be very damaging, not least to themselves.

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