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Baroness Buscombe moved Amendment No. 142:

"and should be appropriate and proportionate to the contravention in respect of which it is imposed and the size of the entity on which it is imposed."

The noble Baroness said: This amendment seeks to ensure that any penalty imposed by Ofcom for a contravention in respect of any provisions or limitations of a general multiplex licence is appropriate and proportionate to the extent to which the licence has been breached and the size of the body on which it is imposed.

As the Bill stands, the penalty may be determined,

    "as OFCOM think fit".

There is no requirement that the penalty imposed should reflect the extent to which the licence has been contravened. Without qualification, this provision would allow Ofcom to impose a fine that could be totally disproportionate to the actual contravention of the general multiplex licence. The only limitations placed on Ofcom, regardless of the contravention, is the maximum amount of fine that it can compel a body to pay—being 250,000 or 5 per cent of a company's relevant growth revenue. The clause fails to address the impact such a provision would have on small companies, for which a hugely disproportionate fine could be critical.

The amendment would ensure that not only would any penalty imposed be proportionate to the licence breach, but, additionally, that fines imposed by Ofcom would be enforced in a consistent manner, taking account of the nature of the contravention. I beg to move.

7.15 p.m.

Lord McIntosh of Haringey: I fully sympathise with the thinking behind the amendment. But I can assure the noble Baroness that the principle of proportionality which is embedded in the Bill—it is one of the essential features of Ofcom as a regulator—is universal and covers penalties as well. Under Clause 3, Ofcom is required, in carrying out its functions, to observe both the principle of proportionality and any other regulatory best practice. That covers Clause 173.

The noble Baroness has raised an additional, perfectly valid point; namely, that any penalty should be proportionate not only to the scale of the offence but also to the size and resources of the offender. That is exactly what Clause 173 does. It allows for a maximum to be either 250,000 or 5 per cent of turnover. That is a limitation, not an extension. It is an extreme case. I cannot imagine many cases where there would be a temptation to impose a penalty that was more than 5 per cent of turnover. But the point here is that we are recognising the size of the entity as a relevant consideration.

Following a recommendation of the Joint Committee on Human Rights, we have included a provision in Clause 385 which requires Ofcom to

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prepare and publish a statement of the guidelines that it proposes to follow and to which it must have regard in determining the amount of penalties that it imposes. I hope that the noble Baroness, if she has heard what I have just said about Clause 385, will recognise that that is a valuable principle. Were Ofcom to impose a penalty that was unreasonable or which was in contravention of its general duties or the principles set out in Clause 385, that could be challenged by way of judicial review.

I would add finally that similar powers under the Broadcasting Act exercised by the Independent Television Commission have not given rise to any problems of which we are aware. I believe that the amendment, however well meaning, is unnecessary.

Baroness Buscombe: I thank the Minister for his response. I absolutely accept what he says in terms of where we might find assurance, confidence and guarantees in other parts of the Bill.

I feel that this is one instance where, notwithstanding the fact that we should be adding to the wording of the Bill, the amendment would add clarity and reassurance. However, I accept what the Minister says and am grateful for his assurances. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 173 agreed to.

Clauses 174 to 177 agreed to.

Schedule 6 agreed to.

Clauses 178 and 179 agreed to.

Lord Thomson of Monifieth moved Amendment No. 142A:

    After Clause 179, insert the following new clause—

Nothing in this Part shall be interpreted as applying to the payment arrangements for a TV licence fee in lieu of installation of a television receiver, as set out in section 356."

The noble Lord said: This amendment stands in the names of my noble friends Lord McNally and Lord Falkland. It relates to problems regarding the enforcement of payment of the television licence fee. Many Members of the Committee will have received strong representations on the matter from the Citizens Advice Bureau. It is the policy of my party to support the main thrust of those representations.

To sum up the CAB's proposals, they indicate that in contemporary circumstances the present arrangements, which eventually make the non-payment of a licence fee a criminal offence, should be softened and changed so that, instead, it becomes an offence for the civil courts; and that at the same time we should seek to update the law in line with social and technological change.

By way of preface, I should say that the present arrangements relating to the broadcasting licence fee date back a very long time—in fact, to the days when the BBC was the only broadcasting organisation—and they have not changed a great deal since that time,

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despite the advent of new television channels. Now, in a world of 300 television channels, these arrangements require a serious review. Personally, I am not at all sure what is the final answer. The matter will require very serious consideration when the BBC charter comes up for review in 2006.

I noticed that at one stage the Secretary of State made a remark about the BBC licence fee. She said about,

    "it being totally improbable that such a splendid arrangement should in any way come to an end".

I think that she was being unduly optimistic. There will certainly be a very fierce debate about the best methods of financing the vital role played by the BBC in our public service broadcasting system. Meanwhile, we must deal with the present situation.

Not many years ago, enforcement of the television licence fee resulted in a substantial number of people going to prison. There has been a softening of that approach. The notes from the BBC indicate that, in 2002, the Home Office's provisional figures suggested that only 14 people were imprisoned for non-payment of the licence fee. That raises another significant issue. I am bound to say—we have all had representations from the BBC about this—that the BBC, conscious of the sensitivity of the issue in a multi-channel age, very properly makes vigorous efforts to provide easier methods to pay the television licence fee. It provides a whole range of options to make it easier to pay the licence fee, including "Cash Easy Entry" and "Monthly Cash Plan" by means of direct debits and stamps from the Post Office.

More than 95 per cent of people pay. Those who pay resent those who do not pay and get away with it. That is human nature. The present arrangements which keep the matter a criminal offence deserve a serious review. The evidence from the Citizens Advice Bureau sets out some fairly harrowing cases of how the arrangements work out in practice for some people, perhaps especially single mothers and so on, who are in financial difficulties and find themselves being hauled before the court.

The Citizens Advice Bureau argued in its report TV Sinners that,

    "summons and prosecutions in the Magistrates Courts are wholly inappropriate methods of licence fee enforcement; the effect is to criminalise people for failing to pay a bill for installation of a television—hardly an offence that harms others—and to bring them into the criminal prosecution process, which for many people can be a profoundly intimidating experience. Invariably having any sort of criminal record—registered with the Criminal Records Bureau"—

especially in these days of the "all-inclusive databanks"—

    "has a negative effect on employment prospects, social inclusion and ability to get credit".

I hope that, in their opposition, the Government will give a sympathetic ear to the suggestion that these arrangements should at least be softened and made more gentle.

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In the totality of the system in this country for parking fees and all kinds of fines and penalties, there are much more serious matters than the non-payment of a licence fee if one is in serious financial difficulties. A sense of proportion is required. The situation was understandable when the BBC was the dominant figure in our broadcasting landscape. However, those circumstances have changed greatly. The Government would be wise in looking to the future and the review of the charter to look at a radically different approach to the financing of the BBC, rather than this form of poll tax, which in a world of 300 channels becomes increasingly difficult to defend. When it creates cases of hardship it unnecessarily brings the BBC into some disrepute. I beg to move.

Baroness Whitaker: I support Amendments Nos. 309A, 309B, 309C and 309D for all the reasons given by the noble Lord. In view of the hour I shall say no more.

Baroness Howe of Idlicote: I shall also be relatively brief. It is highly desirable that the BBC should do its best to collect the revenue from those who do not pay their licence fee. However, I go back, probably about 20 years, to when I chaired a committee for NACRO which looked at fines on those who had not paid the licence fee. The fines were strongly levied against women because it was women who came to the door. Those women immediately went before the court on a criminal charge.

The time has come to change the law and to change the offence to a civil offence. I certainly hope that there will not be many defaulters. Nevertheless, if there are, it should be under that kind of procedure. I hope very much that the Government will give attention to this very serious point.

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