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Viscount Falkland: The noble Baroness has done the Committee a service in moving these probing amendments, which cover tricky, sensitive problems. We look forward very much to the noble Lord's response. My understanding is that the amendments would alter the current position on restricted covenants and other restrictions relating to satellite dishes and so on. It is still a difficult, complicated business that need not necessarily fall entirely within Ofcom's remit.
Committee Members may have been involved, as I have, in disputes about dishes. Satellite dishes, to which I shall restrict my remarks, are now smaller and less obtrusive, if that is the basic cause of a covenant or restriction. Nevertheless, there is still a difficulty in landlords allowing leaseholders a free-for-all to erect such dishes. They may or may not cause the problems on which a restriction was based originally.
I look forward very much to hearing the Minister's response to the noble Baroness's remarks. We remain to be educated on the issue. If it is produced at a later stage, perhaps we will be clearer about where we stand.
Lord McIntosh of Haringey: We must consider two key points behind these amendments. The first is whether it is right to give Ofcom a role that would otherwise be performed by the courts; that is, to decide, in the case of a dispute, whether it is reasonable for a landlord to withhold consent for something related to the provision of electronic communications services to a tenant. The second is the extension in Amendment No. 125A to freehold premises.
On the issue of Ofcom's role as compared to that of the courts, I emphasise that it is not a matter of Ofcom's expertise of the technology involved and nor is it a regulatory matter. Neither of the principal roles of Ofcom are involved. It is a matter of striking a reasonable balance, based on quite general legal principles, between the rights and legitimate interests of the parties, taking full account of relevant precedents, particularly from the field of property law. Those are matters on which the courts, rather than Ofcom, are well versed, and on which they have appropriate expertise. I see no advantage in transferring that responsibility to Ofcom.
The second issue is the extension of the approach of Clause 131 to freehold covenants. I declare an interest, as I am engaged in a battle with a building society from which I wish to raise money. It is causing difficulty about a covenant that has existed on my freehold house since 1925. Because the house was built on the
site of a tennis club, there is a covenant that no alcohol shall be sold on the premises—I can live with that—and that no alcohol shall be consumed on the premises. My solicitor has advised me that it cannot be enforced.Having opened my remarks on the matter in that way, I must say that we are not opposed in principle to taking an approach on freehold covenants comparable to that for leasehold agreements in Clause 121. But we are not convinced that any problems are being experienced, and I have not heard any evidence to that effect. The noble Baroness, Lady Buscombe, fairly reflected the answers to her arguments, which were put in another place. As she said, the main point is that we do not think it is right to issue new legislative requirements on such an issue, affecting the law on property, without full consultation on the substance of what we propose. If the analogy of Amendments Nos. 122A to 122D is to be taken seriously, I hope that the noble Baroness will appreciate that point.
Property law is complicated, and the precise form of any change must be carefully considered in consultation with all the relevant interest groups and professional interests. There is simply no time to deal with that in the context of the Bill. In the absence of convincing evidence of an overwhelming difficulty, I do not think that we should pursue the amendments.
The noble Baroness, Lady Buscombe, also said that, to an extent, the problem is answered by Amendment No. 329. But there is a difference between consulting on the substance of a provision and consulting on bringing into force a provision that has already been made. In this case, the consultation argument goes against the amendments.
Baroness Buscombe: I thank the Minister for his response. I take his point that perhaps this is an instance where it would be very difficult to seek to change a complex area of law. However, perhaps we could agree that at some point the Government might need to return to the issue if the situation changes such that it becomes more of an overwhelming difficulty, to use the Minister's words. That could happen through, for example, the development of technology or a wish by users to increase their choice of, and access to, different types of services. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Evans of Temple Guiting moved Amendment No. 124:
- Page 124, line 8, at end insert—
The noble Lord said: The amendments are in response to concerns raised by the Select Committee on Delegated Powers and Regulatory Reform as to why orders made under Clause 131 were not subject to parliamentary procedure. They will provide that the consent of the Secretary of State will be required for the making by Ofcom of orders under this clause, and that such orders are to be subject to the negative parliamentary procedure. That is consistent with the
Baroness Buscombe: We welcome these amendments. As the Minister explained, they were tabled in response to concerns raised by the Select Committee on Delegated Powers and Regulatory Reform. It is entirely right that Ofcom's order-making powers under Clause 131 are subject to parliamentary procedure. I understand that the matters were dealt with previously under Section 96 of the Telecommunications Act 1984, and that the procedure therein was negative. We are therefore content with the form of the amendment.
Viscount Falkland: We support the amendment.
On Question, amendment agreed to.
Lord Evans of Temple Guiting moved Amendment No. 125:
On Question, amendment agreed to.
Clause 131, as amended, agreed to.
[Amendment No. 125A not moved.]
Clauses 132 and 133 agreed to.
Clause 134 [Restriction on imposing information requirements]:
Lord Avebury moved Amendment No. 126:
The noble Lord said: This amendment would provide that there should be protection against self-incrimination in cases where the request for information under Clauses 132 and 133 may be a preliminary to action under the clauses mentioned and the imposition of penalties. As we have noted several times previously in Committee, Ofcom will have the power to fine companies up to 10 per cent of relevant turnover for breaches of condition and lesser amounts for other types of breach. These penalties are civil but they may be just as severe as, or in some cases more severe than, criminal penalties and are, in effect, akin to criminal penalties.
Human rights law in relation to the right to a fair trial provided under Article 6 of the ECHR provides such protection in relation to criminal matters. There is a very good precedent for providing similar protection in relation to civil penalties. The Joint Scrutiny Committee considering the draft Bill which became the Financial Services and Markets Act 2000 recommended the insertion of a provision which
The circumstances are directly comparable in that the Financial Services Authority has, and the Bill proposes that Ofcom should have the power to impose significant penalties. Parliament accepted the principle that in those circumstances there should be protection against self-incrimination on the lines of Article 6. That is what this amendment sets out to achieve. I beg to move.
Baroness Wilcox: I support the noble Lord, Lord Avebury, on tabling this amendment, which simply asks no more than that this Bill is consistent with principles upheld in the Financial Services Act. As the noble Lord has explained, the amendment seeks to provide protection against self-incrimination in cases where penalties may be imposed. This is standard practice in criminal cases and is in accordance with human rights law; that is, in relation to the right to a fair trial provided for in Article 6 of the European Convention of Human Rights.
With the Financial Services Act, this House accepted that the protection against self-incrimination also applied to civil cases where the penalties imposed could be significant. As, in this instance, we could be talking about up to 10 per cent of the relevant turnover of a company, it is only appropriate that similar protection is provided.
"( ) The consent of the Secretary of State is required for the making by OFCOM of an order under this section."
Page 124, line 9, at end insert—
"( ) A statutory instrument containing an order made by OFCOM under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament."
Page 126, line 21, at end insert—
"( ) In a case where requirement for information under section 132 or 133 includes a requirement for any person to answer a question, make a statement, provide an opinion or otherwise to provide information, whether orally or in writing, such answer, statement, opinion or other provision of information shall not be used by OFCOM in relation to any action to be taken against that person under any of section 34, 38, 93, 109 or 136 without the consent in writing of that person."
5.30 p.m.
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