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Lord Bragg: My Lords, I rise to support the amendment of my noble friend Lord Puttnam. The word "ambiguity" lies at the heart of our concernsand not only of the famous "Gang of Four". Nine Peers from all sides of the House spoke during the Committee stage and all were convinced that the original formulation was mined with ambiguity. I believe that there is now a great opportunity to exorcise this legitimate anxiety and to rid ourselves of it once and for all.
Baroness Buscombe: My Lords, as all your Lordships are now fully aware, Clause 3 goes to the heart of the operation of Ofcom. I want to take us back to something that the noble Lord, Lord Currie, said at Second Reading:
We support the amendment because we believe that it gives clarity to the Bill. I refer briefly to another place, where my honourable friend the Shadow Secretary of State for Culture, Mr John Whittingdale, questioned whether only the interests of consumers should be given primacy or whether that should be extended further to cover the interests of citizens more generally. He gave the example of public service broadcasting, which, as he noted, is in the national interest, although only some may wish to consume it.
The amendment does not diffuse the need to promote competition, where appropriate. The noble Baroness, Lady Blackstone, said that the amendment makes no legal difference. Nevertheless, I believe that it negates ambiguity, simplifying and clarifying the principal objectives.
As to the definition of the word citizen, I agree with my honourable friend John Whittingdale, who said in another place that when we are talking about promoting the interests of citizens, we are talking about the national interest. The Minister was concerned about the use of the word citizen, when it was debated in Committee. I refer him to a speech, "Progressive Politics Maturing", made by the Prime Minister last week to the Fabian Society. The Prime Minister made several references to the citizen; I will quote only two. He referred to
Lord Currie of Marylebone: My Lords, I declare an interest as Chairman of Ofcom, and I should like to speak from that perspective. I was appointed just under a year ago to this position. We have been preparing Ofcom over this period, and have consulted widely with organisations that represent the public interest and with companies regulated by Ofcom in the telecoms and broadcasting fieldsall of whom have expressed support for the concept of the consumer/citizenship duality at the heart of the Bill as currently drafted. Ofcom has spoken little about the substance of the Bill, and that is because it is for Parliament to decide what Ofcom is to do and how that is to be done. We will seek to work within whatever remit Parliament decides to give us.
I made only one contribution on Second Reading, but I speak of these general duties today, because they can fundamentally determine the nature of Ofcom's duties and operations. This clause has been debated much more than others, and rightly so. It sets the fundamental architecture. During the debate the clause has changed significantly, and for the better. The general duties have been simplifiedas the joint scrutiny committee recommendedfrom 15 separate duties to an overarching one. The Government's draftsmen have helped to reflect in those general duties what we as lay people refer to as the citizen interest, although not expressed in those words.
The dual concept of the citizen/consumer has been at the heart of the appointments to the Ofcom board, in the selection of its senior management, and in the nascent processes that we are putting in place. The Ofcom board reflects a wide and appropriate range of experience, to regulate in the interest of both the consumer and the citizen. Although I am best known as an economist and dean of a business school, I also believe passionately in the interests of citizens and the role of the community as a whole. My work as a trustee of the Joseph Rowntree Reform Trust and its commitment to diversity and plurality attest to that. These issues are fundamental to the role of the citizen: plurality, impartiality, high quality, diversity, and effective support for democratic discourse are critical outputs of our society.
I and the rest of my board regard it as a crucial part of our remit to nurture and cherish those values. We are confident that we can work well within the general duties that the Bill now gives us. If the Bill is passed, one of our first tasks will be to undertake a major statutory review of public service broadcasting with a view, as the Bill puts it,
It is essential that the Government listen carefully to the points made this afternoon. I am sure that they will. I also hope that in responding, the Government do not so far change matters as to distort the fundamental architecture of Ofcom. That architecture has been two and a half years in the preparation. No doubt, there is room for some changes, but it is not the time to pull out foundation stones when the Bill is almost completeotherwise, the law of unintended consequences might kick in with a vengeance. I hope, therefore, that the Government can strike that balance, for this clause sets the fundamentals that drive all from this point forward.
Lord Peston: My Lords, before the noble Lord sits down, could he put on his economist's hat rather than his Ofcom hat, and agree that the concept of citizen is fundamentally different from that of consumer?
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, I must start by acknowledging the care that has gone into the preparation of these amendments. I also acknowledge the strong feelings that have been expressed in the House, both in Committee and today. I intend to respond in a positive spirit to the thinking behind the amendment.
We could be led a bit astray if we were to spend too much time talking about the words "citizen", "consumer" and "community". The noble Lord, Lord Peyton, started off badly by saying that he was indifferent as to whether we talked about consumers or markets, and then, interestingly, said something with which I agree:
It is not our intentionnor is it in the English languageto equate consumers with markets. The word that I have always used, in 50 years with the Labour Party, is that we have to be on the side of the "punters". I think everyone understands that. However, "consumers" is not the same as businesses in the market.
I will continue to refer to the noble Lord, Lord Peyton's speech, much of which I agree with, so that he may intervene on all that I say. Certainly, "consumers" is not the same as the market, in the sense that it is not the same as the businesses in the market"those who control the media", or, as he went on to say "the moguls". "Consumers" is not a doppelganger for the wicked and self-seeking market, which some people in the Chamber seem to fear.
Lord McIntosh of Haringey: My Lords, I agree with that, in particular with the words "quite wrongly". There is no sense in which our division between the phrase "community as a whole" and the word "consumer" should be taken to imply a subtle take-over by the market of the regulation which Ofcom is to undertake.
Let me respond to what I believe to be the thrust behind the amendment as well as to the wording of the amendment. We have always said that we want Ofcom to be a strong regulator. Its actions will be governed by the principles of good regulation and that is spelt out. But we should have no doubt that where intervention is necessary to further the interests of consumers and the community as a whole, Ofcom will have strong powers to act decisively. It will have powers to address market failures and it will have specific and well spelt-out powers in the Bill to deal with consumer issues. It will have the responsibility to uphold diversity and plurality and the powers to do so. It will also have the responsibility to preserve standards and the powers to do so.
In the past few days, I have read a great deal in the press about the dangers of dumbing down to American television standards. I have read in particular a vivid article by Professor Michael Tracey, which seeks to make the point about the Communications Bill. The difference between us and the United States relates not so much to ownership rules, but to the fact that they do not have content regulation. Content regulation is at the heart of what has been the feature of British broadcasting and it is maintained in this Bill.
However, I do not believe that anyone can say that because in some senses the Bill is deregulatory it is also soft. Where consumer interests and citizen interestsand I use that phrase in the widest sense that the Prime Minister was able to use it in his Fabian Society lectureneed to be protected, safeguarded and furthered, the Bill gives Ofcom very strong powers indeed. It will have concurrent powers with the Office of Fair Trading in respect of competition. It will uphold tough content requirements, including radio formats which ensure "localness" and quotas which will deliver regional and independent television production.
I turn to the difficult part about citizens. In daily life, we all use the word "citizens" in the way the amendment uses it. The Prime Minister used it last week and the noble Baroness, Lady O'Neill, used it in her Reith lectures and in her speech at Second Reading. It is entirely legitimate that we should do so, but it is unfortunate that legislation cannot. In legislation, the word has a more restricted meaning which is confined to that of nationality. If we were to start to use "citizens" here, even if we define it as is done in Amendment No. 14, the definition is in conflict with all of the undefined uses of citizenship in all other legislation.
It is a trivial point, I hope, because surely when philosophers, the Prime Minister and everyone else are talking in ordinary life about citizens, they are talking about the community as a whole. And that is the phrase that we use in the Bill. I cannot for the life of me see what is lost by avoiding the difficulties of legislative language and using the phrase "community as a whole". Politically, it means the same as "citizen" is often taken to mean in non-legal contexts.
I understand that there are calls to give Ofcom stronger direction about when the interests of the community as a wholeor the interests in non-legal terms of citizensshould take precedence. I understand that unless we give it a clear and unambiguous steer, there are worries that we could lose all the things that all of us want to protect. Let us be clear that at the heart of today's debate is the broadcasting tradition with which we have grown up, which is admired across the world and of which we are proud. We are protecting that in this legislation.
We are not being stubborn on this point. We are open to proposals but we have to recognise that we do not want to cause more difficulties than we are trying to solve. On that point, we have to listen to what is said by the noble Lord, Lord Currie. So let us all agree that this is a matter of crucial importance, but we are concerned that we are trying to amend general duties to address a specific concern about one aspect of the Bill. We have to consider those general duties across the full range of Ofcom's responsibilities.
We need to strike a balance between giving direction to Ofcom in legislation and giving it flexibility to make some very complex decisions. We are trying to put into place a Bill that will last. That means that we can anticipate issues that will arise in the future.
The principle of saying that in some instances or in some parts of the Bill Ofcom should give precedence to the interests of the "community as a whole" has its attractions. In practice, it sets out in the most public way at the very beginning of the Bill that we are expecting Ofcom to act differently depending on the matters with which it is dealing. Consumer interests do not cover the whole range of Ofcom's activities. But I wonder whether that is what we really want. It does not meet our aim of having a converged regulator.
There are already occasions when issues are regulated across more than one part of the Bill; for example, conditional access or electronic programme guides. How can we give definitive guidance to deal with those issues? We cannot predict what others will arise, so I urge the House to be cautious about trying to put in place different overarching principles in the general duties.
I am not saying that we do not recognise the concerns expressed today and in Committee. But when we have analysed them, we believe that they concentrate on the issues that will rest not so much with Ofcom's board but with the content board. It is here that we need to put beyond doubt that the content
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