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Baroness Buscombe: I thank the Minister for his response. I am smiling to myself because I believe that we are about to discuss amendments which concern the concept of unsuitable versus suitable. I am disappointed that the Minister says that the Government accept the principle behind Amendment No. 258 but clearly it is unsuitable in its current form. However, I am grateful that the Minister assured me that the Government will table a suitable amendment at Report stage that we shall, I hope, be able to support.

I shall not detain the Committee at this late hour. I am clearly disappointed in relation to the Minister's response with regard to Part 3. As I say that, I look firmly towards the right reverend Prelate the Bishop of Manchester and the noble Baroness, Lady Howe. I thank them for their support for what I considered was a reasonable suggestion; namely, that, as stated in the White Paper, an appropriate review procedure within the regulator would look after the interests of those aggrieved by the provisions of Part 3. I urge the Government—I cannot put that strongly enough—to take that point away and reconsider what Members of the Committee including myself have said on that matter.

I depart most strongly from what the noble Lord, Lord Razzall, said with regard to judicial review in that instance. There are instances where judicial review is entirely appropriate but I believe that in the instance we are discussing it is not appropriate.

I thank the Minister for his extensive reply. There are a number of issues that I shall want to read with care in Hansard. I hope that the Government will bring forward an amendment that we can support. I am pleased that there are a number of principles in relation to other amendments where the Minister feels that there is some consensus. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 256 to 258ZCC not moved.]

Clause 310 agreed to.

[Amendment No. 258ZD not moved.]

Clause 311 [Review of powers exercised for competition purposes]:

[Amendments Nos. 258ZE to 258ZH not moved.]

Clause 311 agreed to.

Clause 312 [OFCOM's standards code]:

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[Amendment No. 258A not moved.]

Lord Gordon of Strathblane moved Amendment No. 259:

    Page 275, line 37, leave out "unsuitable" and insert "misleading, harmful or offensive"

The noble Lord said: I rise with some hesitation to speak to this amendment in the presence of the current chairman of the Advertising Standards Authority and in the presence of a former distinguished chairman of the same body.

Clause 312 gives objectives for Ofcom to set in its codes for programmes and advertising. My amendment seeks to replace the word "unsuitable", which appears to be a lovely portmanteau word which has been very popular today, with the terms "misleading, harmful or offensive". The merit that I claim for the words in my amendment is that they have the advantage of being concepts that already form the basis of the current ITC and Radio Authority codes of advertising standards and practice. Continuity and clarity will be very important.

Advertising is fairly well regulated in this country. It is done by a system of pre-clearance in broadcasting, because clearly advertisers do not want to go to the sometimes considerable expense of making an advert only to find that the basic concept will fall foul of the regulator. In television, we have the Broadcasting Advertising Clearance Centre, and in radio, we have the Radio Advertising Clearance Centre. Advertisers can come forward with an idea, clear it informally with the regulator, and go ahead and make the advert. In the case of television, that can be very expensive. In the case of radio, a commercial can be considerably less expensive.

Clearly it is very important that people know what they are taking about. "Misleading, harmful or offensive" are words that they have grown up with over the past 20 years. "Unsuitable" is a portmanteau word that is much wider than that, and will make for a lack of clarity, legal actions right, left and centre, and uncertainty. It is a bad idea, and we would be much better including the words in the amendment. I repeat that, if they were in the Bill, they would give Ofcom exactly the same powers as the ITC has at the moment. I beg to move.

Lord Borrie: I added my name to the amendment because I strongly feel that when Ofcom, under its duties in the Bill, is setting out standards and objectives under Clause 312, those objectives need to be more precisely stated in relation to advertising than the prevention of "unsuitable" advertising under subsection (2)(g).

At the end of the Second Reading debate on the Bill on 25th March, when the problems had been raised by one or two speakers, the noble Lord, Lord McIntosh of Haringey, said that "unsuitable" simply meant that advertising could be unsuitable for certain times or certain audiences, and was similar to the Independent Television Commission's current powers. However,

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"unsuitable" is capable of very wide interpretation and, if I may suggest it, misinterpretation. "Misleading, harmful or offensive" are more appropriate and precise words. Indeed, as my noble friend Lord Gordon of Strathblane said, they are concepts that are already in the ITC and Radio Authority codes.

I have a special interest as chairman of the Advertising Standards Authority, which is the self-regulatory body responsible for non-broadcast advertising. The code of advertising practice that we operate, like the codes of the Independent Television Commission and the Radio Authority, has precise criteria that give the much greater certainty appropriate for a creative business such as advertising than that of "unsuitable".

Furthermore, I should be most concerned if the broadcasting codes incorporated such a catch-all word. Surely we all understand that many advertising campaigns are increasingly run across several different platforms simultaneously. There would be extreme incoherence between broadcast and non-broadcast codes if "unsuitable" were used instead of something more precise, as the excellent amendment suggests.

Lord Thomson of Monifieth: I strongly support the amendment. I endorse the fact that "unsuitable" is very seriously unsuitable as a tool of advertising regulation. As the noble Lord, Lord Gordon, was kind enough to say, I speak from the experience of twice being an advertising regulator, once with the Advertising Standards Authority and once with the IBA. Although the backgrounds were a little different, the job of regulation of advertising was very much the same. I learnt in both roles that self-regulation was a great deal better than statutory regulation, provided that certain conditions can be fulfilled. Those are not necessarily always easy conditions. They were admirably set out by the noble Lord, Lord Currie, the chairman of Ofcom, in a speech to the Advertising Association's annual lunch. One critical condition for any self-regulatory system is that a sanction as fair and effective as possible should be attached to the regulation. In the old days, the ASA and the IBA had that. For that, as the noble Lord, Lord Borrie, has said, one needs clear, credible and precise language. The words "misleading", "harmful" and "offensive" are part of the dictionary of advertising regulation and are well held and well understood by those who have to operate them. They have a long history of use. "Unsuitable" is a very vague and inappropriate term to apply to advertising. It is not a good regulatory tool and it is so imprecise that is certainly susceptible to an immense amount of misinterpretation, leading to a great deal of confusion among the various interest groups concerned.

11.45 p.m.

Baroness Whitaker: As deputy chairman of the ITC, I would like to add my support to the amendment. As regulators, we agree that "unsuitable" is too vague and broad. We understand that the industry far prefers the

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wording before us. It is clear, unambiguous, effective and easy to administer, so I hope that the Government will accept the amendment.

Baroness Howe of Idlicote: I rise briefly to support the amendment. "Unsuitable" is a very vague word. "Misleading, harmful or offensive" can be interpreted in a number of different ways, but they are a little sharper than the vague "unsuitable". "Misleading" is fairly clear. The timing of the broadcast and its audience are the criteria we took into account when I was at the Broadcasting Standards Commission and when we were considering any of the adverts which caused complaints—and there were quite a number of them. If they appeared during children's programmes and might have been perfectly acceptable for a slightly older audience, that was regarded as unacceptable. I am sure that the amendment is an improvement and I willingly support it.

Lord Puttnam: I rise briefly to support the amendment. It is correct. In order to be entirely even-handed, having attacked the use of the word "suitable" in Amendment No. 207, it seems entirely fair that I also attack the use of the word "unsuitable".

Baroness Buscombe: I rise more briefly than I had proposed to speak to the amendment but only because it has been so eloquently spoken to and supported by a number of noble Lords. My name and that of my noble friend Lord Saatchi have been added to it. We feel very strongly about the amendment. At the risk of some repetition, it may appear a small and inconsequential amendment, but it is regarded by the advertising industry as extremely important. It is surely significant that broadcasters and staff at the existing advertising regulators, the ITC and Radio Authority, also support the amendment.

The Government have not so far supported it. While the issue was briefly debated in Committee in another place and again at Second Reading in your Lordships' House, the reasons given for opposing the amendment have been questioned by the advertising industry again and again. I know that it has remained in touch with the Department for Culture, Media and Sport to try and make a difference. The argument that "unsuitable" is needed to give Ofcom the same wide-ranging powers that the ITC had under the 1990 Act is highly spurious. A comparison of the 1990 Act and the 2003 Bill demonstrates that Sections 8 and 9 of the 1990 Act are already separately and individually replicated in various clauses of the Bill—I refer to Clauses 312, 314 and 315. In other words, with or without the word "unsuitable", the Bill already gives Ofcom exactly the same powers as the ITC was given by the 1990 Act.

The advertising industry believes that this is an important issue; the word "unsuitable" goes much further than existing regulatory powers. It is vague and inappropriate wording to apply to advertising and is not a good regulatory tool. The fact that it is so sweeping and imprecise a word means that it is capable of misinterpretation by interest groups in future. In contrast, as noble Lords have already said,

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"misleading, harmful or offensive" have the advantage of being concepts that already form the basis of the current ITC and radio authority codes.

I have an interest in this regard. It is a very outdated interest but I was involved in the advertising industry back in the 1980s. The words "misleading, harmful and offensive" were well known and understood by everyone then, so why change it? It "ain't broke", so why try and fix it? I have been waiting a long time to declare a vested interest, albeit an outdated one, to join so many other noble Lords who have already done so. We urge the Government to support the amendment. It is important to the industry. If we do not receive a satisfactory reply this evening, we will return to the issue on Report, divide on it and win.

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