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Baroness Blackstone: That is because the content board is concerned with issues that particularly affect the interests stated in the Bill.
Lord Thomson of Monifieth: I am sorry to persist, but what about Sky, for example? Does it not make programmes and so raise exactly the same issues of conflict?
Baroness Blackstone: I am perfectly willing to take away the particular issue of Sky, and perhaps write to the noble Lord as to why Sky is not mentioned
in the Bill. However, the broader issues of telecommunications are not relevant, or are much less relevant, to the content board.
Lord McNally: Fully in line with the Peyton doctrine, subsection (8) can be subsumed by subsection (9). The Minister would do far better to look at strengthening subsection (9) rather than leaving subsection (8) with what seem some arbitrarily chosen organisations when, as my noble friend points out, many organisations could be put into the list. Instead of having a long list in subsection (8), a redrawn and tightened subsection (9) might do the job.
Baroness Blackstone: I have been reminded that other commercial interests are covered as well. I could write to the Members of the Committee who have raised the points and set out rather more clearly how we see them being resolved.
Amendments Nos. 43A and 44 would remove a simple and standard provision similar to ones already in the Broadcasting Act 1990, to ensure that the decisions of the content board are not invalidated by a simple procedural error in appointment. I shall respond to the noble Lord, Lord Brooke, and say that that safeguard will protect the validity of the proceedings of the content board, so that a simple defect in procedure does not invalidate what could be a number of decisions.
There is a similar provision in the Office of Communications Act 2002, as well as in many other Acts. I assure the noble Lord that such a standard provision is in no way intended to provide an excuse for deliberately evading the requirements of the legislation for proper representation. Without the provision, there could be serious consequences for the whole operation of the regime governing content standards.
I shall deal with Amendment No. 44. The content board will have the principal function of ensuring that the public interest in the nature and quality of television and radio programmes is sufficiently represented within Ofcom's overall structure. To do that, it will have to be representative of many different aspects of the public interest, including different political, cultural and religious attitudes. Members will need to be able to respond effectively and convincingly to many matters to which Ofcom is to have regard as set out in Clause 3, so far as they are relevant to their work.
Our first objection to the amendment is that the content board is not intended to be a balance of different interests. Each member has a responsibility to represent the wider public interest rather than a narrow sectional interest. The risk of a provision of such a nature is that, first, the content board would end up becoming simply a board representing the noisiest interest groups, and, secondly, any excluded group would challenge its validity. I am sure that Members of the Committee will see the sense in what I say.
Amendment No. 60 focuses on a particular bureaucratic solution to ensure that the interests of certain groups are taken into account. The key point is that the Bill establishes the various interests that Ofcom has to take into account, including, for example, the needs of persons with disabilities. The content board is part of Ofcom—I keep having to repeat that—so that applies to it as well, so far as is relevant to the functions that Ofcom gives it. How that is done is up to Ofcom and the content board to decide. For example, it could be done through advisory committees of the content board, through its relationship with the consumer panel or other committees, or through membership of the content board itself.
The amendment is unnecessary. However, I can tell the noble Lord, Lord Addington, that I of course very much welcome the appointment of Kevin Carey to the content board. That is one way in which it can be said that it will fully discharge Ofcom's duties in favour of people with disabilities. We must leave exactly how Ofcom wants to follow that up—for example, perhaps through separate advisory committees—to it.
Amendments Nos. 53 and 58 assume a particular relationship between the Ofcom board and the content board, and then seek to intervene in it. Ofcom has a broad obligation under Clause 3 to balance a number of factors, including its duty to promote competition. Its arrangements for the work of the content board must not upset that balance.
If Ofcom felt that it needed the content board to advise on the effect of its activities on competitiveness, the board could do so, but that again has to remain Ofcom's decision, with regard to obligations placed on it in other parts of the Bill. However, it seems more likely that Ofcom, two of whose non-executive members are currently on the shadow content board, will want to take their views of any risks to competitiveness which might arise in determining the extent of the discretion allowed to the content board. To ensure that there is no uncertainty once Ofcom assumes its powers, we expect it to provide a clear statement or memorandum setting out in detail the extent of the functions of the content board, giving its members, the public and the communications industry proper clarity about its role.
Amendments Nos. 47 and 49 are in a similar vein, and seek to ensure that the content board undertakes Ofcom's function to promote media literacy under Clause 10. Ofcom is currently developing the precise remit of the content board and its relationship with the main board. We made clear in Clause 12(2) that, whatever functions Ofcom devolves to the content board, they must include the contents of material broadcast or otherwise transmitted by means of electronic communications networks, and with the promotion of public understanding or awareness.
It therefore seems highly likely that the content board will have an important role in Ofcom's media literacy work. Indeed, the advertisements for content board members indicated that. However, it would be wrong to specify in legislation that the board should be
entirely responsible for the function. We should not, for example, preclude in the legislation the establishment within Ofcom of a separate media literacy committee at some point in the future.The matters referred to in Amendment No. 52 fall, with one exception, within the description of functions in Clause 12(2) that Ofcom must confer on the board, to such extent and subject to such restrictions and approvals as Ofcom may determine. The exception is the reference in the amendment to Schedule 8. That schedule does not confer any function on Ofcom, but simply identifies various decisions—albeit that such decisions may be made in pursuit of Ofcom functions—which are not subject to appeal.
Amendment No. 50 is also directed towards specifying more closely the relationship between the content board and the main Ofcom board; in this case, by ensuring that Ofcom and its content board do not undertake the same function. I recognise the risks of the possibility of double jeopardy occurring, where a business could be overseen by Ofcom and the content board; that was discussed in another place. Our position remains that despite its superficial appeal, the amendment could unhelpfully restrict the way in which Ofcom undertakes its functions. It may be the case, for example, that Ofcom wants to give the content board a function, while reserving for the main board decisions which relate to that same function, but which have an impact beyond a particular financial threshold. That should remain possible.
We have placed on Ofcom a responsibility to have regard to good regulatory practice, including transparency. We anticipate that Ofcom will therefore be aware of the potential for double jeopardy and of course seek to preclude it wherever possible.
On Amendment No. 57, although it may be appropriate at times for the content board to publish information, it would be undesirable for the legislation to place that discretion with the content board itself. I must repeat—in particular to the right reverend Prelate the Bishop of Manchester—that Ofcom remains responsible and accountable for the work and decisions of the content board. The work of the content board must fit in with Ofcom's overall strategy. Therefore, it should be for Ofcom to decide when and what to publish.
I hope I have explained fully why the Government, while sympathetic to many of the views that noble Lords have put forward in speaking to the amendments, believe that it would be wrong to include them on the face of the Bill. The Government will consider Amendment No. 43 further, but I ask the noble Baroness to withdraw it.
Finally, I turn briefly to Amendment No. 44A. The amendment simply corrects an earlier drafting error in order to make clear that paragraph 14(3) lies in the Schedule to the Office of Communications Act 2002. The earlier drafting omitted the word "schedule". I commend the amendment to the Committee.
Lord Brooke of Sutton Mandeville: Perhaps I may intervene before the noble Lord winds up. I followed
precisely what the Minister said about Amendment No. 43A. However, it appears to me that if Ofcom or the content board were to fail to fulfil any of the Bill's provisions—I am not suggesting that they would be perverse—the wording of the amendment would offer them an amulet against judicial review. That seems curiously comprehensive, but I totally understand that the Government are trying to protect them against a simple slip of procedure.
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