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Lord Addington: I thank the Minister for her response. The gist of it was, "Yes, you have identified a problem but, don't worry, the problem will disappear shortly". Answers like that remind me of the fact that although audio description is being produced, we cannot get a box. Thousands of hours of television are bring produced but cannot be accessed.

Is the Minister at this point prepared at least to guarantee the best efforts of the Government to ensure that not only is the work carried out, if it can technically be done, but that the service will be in an accessible format and the Government will give assistance to those who need it?

Baroness Blackstone: I am surprised by the noble Lord's question. I thought that I had made it absolutely clear that the Government would do all they can to encourage the technology group which is looking at these issues to ensure that the service is available. Therefore, I am not sure why he is asking me the question again.

Lord Addington: For the simple reason that it was technically available in the case of audio description but as no one was producing the box no one could get at it. We therefore want to ensure that not only is it possible technically to provide the service but that it is available. That is the real cruncher. It does not matter that it is possible technically to provide the service if it is not readily available.

Will the Government do their best to ensure that the situation is not repeated here? It is probably more important in this case. Will they give an undertaking at least to do everything they can within the current structures to enable that to happen?

Baroness Blackstone: I have already said that the Government are committed to ensuring that this particular group—the visually impaired and the deafblind—have as much access as is technically possible to the kind of services they may want to watch.

I cannot go beyond that. I cannot anticipate exactly how the technology will turn out. I understand the point the noble Lord makes about gaining access to the technology, but I can only say that what I said earlier will stand.

Lord Addington: I thank the Minister. At least we know where we are. In moving the amendment, I have received advice and speak for a coalition of interests. I would like to take the Minister's answer away and to allow those who have more technical knowledge to have a look at it. I believe that the Minister is trying to give me as good an answer as she is able, but whether it addresses the point is something which experts will have to look at. Under those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 215 agreed to.

Clause 216 agreed to.

Schedule 10 agreed to.

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Clauses 217 to 227 agreed to.

Clause 228 [Replacement of Channel 4 licence]:

[Amendment No. 169ZA not moved.]

Clause 228 agreed to.

Clause 229 [Meaning of "television licensable content service"]:

Baroness Buscombe moved Amendment No. 169A:

    Page 205, line 15, leave out "or sounds (or both)" and insert ", sounds or data (or any combination of the three)"

The noble Baroness said: In moving Amendment No. 169A, I shall also speak to Amendments Nos. 169B, C and D. During the first day of Report stage in another place, the Government brought forward a number of amendments to those clauses of the Bill relating to the television licensable content service—TLCS licence—in particular Clauses 229 and 230. Following discussions with various industry representatives, my Front Bench colleagues in another place had intended to put a number of important questions to the Minister concerning the workings of the clauses and the Government's amendments. Alas, these were not reached in the time available and were adopted without any debate.

I understand that my honourable friend the shadow Secretary of State for Culture, Media and Sport, John Whittingdale, then wrote to the Minister for Broadcasting setting out the questions which he had hoped to put to the Minister at Report stage, but he has yet to receive a response to the letter. I understand that responding to letters takes time, particularly those that deal with significant levels of detail. But we are anxious to get some answers to the questions raised in order that we can understand clearly the implications of the clauses to hand. I have tabled these essentially probing amendments to enable me to put the outstanding questions to the Minister in the hope that some clarity may be forthcoming.

Amendments Nos. 169C and 169D relate to the definition of "relevant ancillary service" in Clause 229(6). For those Members of the Committee unfamiliar with this part of the Bill, a "relevant ancillary service" falls under the same TLCS licence as the main service and does not require a separate licence. Clause 229(6) currently defines "relevant ancillary service" as,

    "a service or facility provided or made available by the provider of the main service that consists of or gives access to . . . any other service . . . which is ancillary to one or more programmes so included and relates directly to their contents".

Following government amendments moved in another place on Report, the definition now includes "a facility" as well as "a service". I understand that this term is intended to catch menus—for example, the interactive service menus that are accessed by pressing the red button on Sky's channels—and similar linking or jumping technologies that may not easily be seen as a service in their own right. There are concerns, however, that the inclusion of the term "facility" could unintentionally widen the scope of the licensing provisions so that it would potentially catch hardware; for example, set-top boxes or viewing cards and even

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other software and middleware contained in the set-top box as that might be said to be provided to give access to any other service.

Clearly, such facilities should not be licensed as a form of television services. Therefore, it would be helpful if the Minister could confirm that the addition of "facility" in this definition is not intended to widen the scope of a TLCS beyond the form of menus or other linking technologies, to which I have referred; and that a "facility"—as proposed by my amendment—is intended only to relate to on-screen navigation facilities or facilities made available for reception by members of the public. If the facility is broadcast "for reception", it would seem to preclude it from covering hardware or any software integral to that hardware.

Government amendments moved on Report in another place also amended the definition of "relevant ancillary service" by changing "relates" to "relates directly", implying a stricter interpretation of what ancillary services may be included within the same licence as the main service. That change could result in significant practical implications for broadcasters. Yet, given the lack of parliamentary debate in another place, the Government have not stated why they believe that there is the need for a higher threshold and therefore why the term "relates" is insufficient.

It would be helpful to know the extent to which the Government have considered the consequences of that change. For example, the need for services to be directly related could lead to an onerous process requiring separate additional licences to be obtained regularly for one-off programming where the material is only deemed to be related. At the very best, regular discussion will need to be held with Ofcom on whether a separate licence is required every time the main service provider is considering broadcasting additional content, in order to ensure that licences are required for all the correct services and facilities.

The stricter definition of "directly related" might be interpreted to require broadcasters to acquire a separate licence for content that it makes accessible through a multi-screen application, such as Sky's "Sky News Active". It is unclear when that might be required. The BBC has, for example, shown horseracing behind international rugby programming. Could that be said to be directly related? Channel 4 has shown "Big Brother" programming behind programmes such as "ER" and "Friends". Could that be said to be directly related?

Furthermore, would the test be applied across the range of programming on the channel, so that a general entertainment channel would enjoy greater flexibility in that regard than a dedicated sports or documentary channel, or would the direct relationship have to be with the programming being shown at the particular time? I suggest that the inclusion of the word "directly" has added another level of uncertainty for broadcasters without any commensurate policy gain.

Ultimately, a far more sensible approach would be to allow all services ancillary to the main service to come under a single licence. The system should be

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sufficiently flexible to permit third-party content providers to acquire a separate licence if they want to or, if they already possess a separate licence, for that licence to cover all the content they are providing. Such a position would still ensure that all relevant services were caught by the licensing regime while removing much of the complexity and subjectivity of the regime currently proposed.

My probing amendments, Amendments Nos. 169A and 169B, propose the inclusion of the word "data" in the text of Clause 229(5), in addition to the words "visual images" and "sounds". There is concern that the absence of that word unintentionally implies that certain services that are not currently licensed by the ITC may fall to be licensed as part of a TLCS. For example, the voting application on Sky News or "Big Brother" involves the transmission of data from set-top box to voting servers. That is not at present a licensed activity, as is such activity on-line, but may be caught by the currently proposed TLCS regime, as it would not be excluded as a two-way service.

I understand that the Government have resisted the inclusion of the word "data" so far on the basis that it may take certain services, such as those provided by Kingston Communications, outside the scope of the TLCS regime where data is transmitted one way to call up channels from the server and video images are sent back. If the Government feel unable to accept the amendment for that reason, it would in any case be helpful to have the Minister's assurance that all on-line interactive services, including those that involve the sending of data, such as voting applications, are intended to be excluded from the scope of TLCS. I beg to move.

3.30 p.m.

Lord Avebury: The Explanatory Notes state that two-way services, as defined in subsection (5), encompasses video conferencing, but they do not state what other services may be included. Presumably, the intention of the draftsman was to make the exclusion as broad as possible so that TLCS is not applied to activities such as Internet shopping. I recall that concern was expressed in the Joint Committee by the Internet Service Providers' Association that the definitions in the clause would inadvertently secure that Internet content would be caught by the licensing requirement.

I have not had time to ask the Internet Service Providers' Association whether it is satisfied that the concerns expressed in that memorandum have since been met. As I did not receive the answer immediately, I assume that something remains to be dealt with and that the conversations between the ISPA and the Government continue.

On Amendment No. 169C, I agree with the noble Baroness, Lady Buscombe, that the wording of the clause is ambiguous. Again, I turn, as I normally do if I am not entirely au fait with what a clause is intended to do, to the Explanatory Notes. I must congratulate the Government on providing such extensive Explanatory Notes. In this case, a long paragraph

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deals with what are ancillary services, giving a number of helpful examples, but the effect is spoiled when one reaches the end of the paragraph where one reads that,

    "everything would depend on the exact nature of the services and facilities offered and the circumstances in which they were offered".

So the question asked by the noble Baroness is legitimate: could the current phraseology include hardware, or is it, as she requests, confined only to on-screen interactive services of the kind described?

Amendment No. 169D would delete the word "directly". We need a definition, and I am glad that the noble Baroness said that it was a probing amendment on which we require further elucidation.

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