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Baroness Blackstone: I begin by saying that I am not taking sides on this issue. I think that both Mr Greg Dyke and Mr Tony Ball are utterly charming. It may not be the Lucie Clayton school of charm but, in my view, they are both delightful gentlemen to spend time with.
Lord McNally: She has just got herself half way to the next "I'm A Celebrity Get Me Out Of Here".
Baroness Blackstone: No thanks! I strongly identify with what the noble Baroness, Lady Buscombe, has just said. This is a BBC-inspired amendment. It concerns a particular dispute which is taking place and I am not sure that we should be amending primary legislation to deal with a dispute of this type in this way. I agree with quite a lot of what my noble friend Lord Lipsey said and, indeed, what the noble Viscount, Lord Astor, said. There are already provisions which allow the regulator and the broadcaster the platform to sort out such a dispute.
However, my main reasons for rejecting this amendment are technical. Amendment No. 102A seeks to amend Clause 71. As noble Lords will see, it relates directly to the new subsection (2A)(a)(ii) that Amendment No. 250A would introduce to Clause 304. This provision would have the effect of giving viewers the ability to manipulate their EPGs and, where the implementation of this necessitated the provision of a particular facility or piece of software, Amendment No. 102A would allow Ofcom to set conditions on EPG providers to ensure that they supplied the facility or software concerned within a reasonable period of time and at no more than a modest profit.
More fundamentally, I must underline the fact that Clause 71(2) has been drafted specifically to implement Article 5(1)(b) of the access directive. The precise reference—which I am sure that the noble Lord, Lord Avebury, will ask for if I do not give it—is Directive 2002/19/EC dated 7th March on access to, and interconnection of, electronic communications networks and associated facilities. It is related solely to the access-related conditions that national regulatory bodies may impose and provides that Ofcom is able to impose obligations on operators to provide access to EPGs and application programme interfaces on fair, reasonable and non-discriminatory terms.
Clause 71(2) already transposes article 5(1)(b) in full and to alter it in the way suggested would take it beyond the bounds of what is permitted by that provision. We are therefore debarred from doing what has been proposed. For technical reasons we have to reject this amendment, but I think the other reasons for rejecting this amendment were well expressed by the noble Baroness, Lady Buscombe.
Lord Avebury: I always think that governments must have very weak cases if they have to fall back on technical arguments for rejecting an amendment. It was a pity that the noble Baroness did not address the real problem. We are coming to the end of May, when the BBC is going free-to-air and when the question of how viewers will access programmes is of crucial importance. I think that there has been a certain amount of complacency in certain quarters—though not all—and I am grateful to those noble Lords and Baronesses who have supported the amendment, particularly the noble Baroness, Lady Howe, whose comments I greatly welcomed.
I do not think that the Government are sufficiently seized of the urgency of this problem. Whatever the noble Lord, Lord Gordon of Strathblane, may say, it is the intention of the BBC to go free-to-air at the end of this month. The question of what happens to the EPG and how consumers are to obtain the BBC1 and BBC2 of their choice is urgent. It is no good saying that somewhere—
Viscount Astor: Is the noble Lord aware that the only reason that the issue arises is not because the BBC wishes to broadcast "in the clear" but it wishes to have regional services available? If it puts off the introduction of the access to regional services, the main BBC programmes can be seen broadcast "in
the clear" without any problem after the end of May and for as long as anyone wants. Adding the regional element is the only difference.7.15 p.m.
Lord Avebury: Being able to access the BBC1 and BBC2 of your choice is of critical importance. As the noble Baroness, Lady O'Cathain, said, you are asking for consumers to be able to look at the programmes of their choice. Everyone agrees that that is a most important element of the new system being developed by the BBC, which is costing £40 million—or half of the savings it is making by not having to go through the encryption services of BSkyB.
Lord Gordon of Strathblane: What do we mean when we refer to the "main BBC service"? The one out of London? That is actually a regional service for London. Given the devolved situation that we have in Scotland, if you broadcast something that does not cover Scottish affairs, you are positively misleading the population. You could refer to a Minister for Education, a Minister for Housing and a Minister for Health who have no authority in Scotland.
Not only that, contempt of court regulations are different. To my certain knowledge, when my successor was at Radio 4 he was fined £10,000 because his radio station broadcast a Scotland Yard press release which was okay south of the Border but not okay in Scotland. There is no such thing as a mainstream BBC service. The service is regionalised throughout the country, much to its credit.
Lord Avebury: I am not quite sure what the noble Lord, Lord Gordon of Strathblane, is trying to say. I think he, as a Scot in London, was underlining the importance of being able to see the Scottish service. Equally, if an Englishman in Edinburgh wants to see a regional English service, he should be able to do so.
If we do not tackle the problem now, after 30th May we will have a situation where all the money being spent by the BBC—the £40 million—will be wasted from the consumer's point of view because he or she will not get the benefit of the regional services on offer.
The software referred to by the noble Lord, Lord Lipsey, and the noble Viscount, Lord Astor—who do not believe the BBC's contention that this a fairly modest alteration in the programme—does not matter. We are not putting a price on it. We are saying that the BBC should have to pay whatever the software alteration costs may be, plus a suitable profit margin. Whether that is £100,000 or £1 million is neither here nor there if we do not give Ofcom the powers contained in the amendment.
There is no alternative. The Minister did not refer to another solution. She merely said that we would not do well to pass primary legislation to deal with a dispute between two major corporations; that we should allow the regulators to sort it out. If she is of that opinion, she is condemning the industry to months, or perhaps even longer, of uncertainty. She is saying that consumers will not be able to access the important new services that would be available to them if the dispute was sorted out.
We shall not solve the issue on the Floor of the House today. I shall return to it at a later stage in the Bill. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 76 [Market power determinations]:
[Amendments Nos. 103 and 104 not moved.]
Lord Evans of Temple Guiting: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
- House adjourned at twenty minutes past seven o'clock.
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