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Lord Phillips of Sudbury: My Lords, I am grateful to the Minister and to all who have spoken. The noble Baroness, Lady Buscombe, suggested that this amendment does not clarify Ofcom's keystone obligations. However, Amendment No. 1, which we have just passed, deals with,

In my view, that does not extend head on to issues of public service broadcasting. A detailed examination of the provisions on general duties in Clause 3—and I refer the noble Lord, Lord Crickhowell, to this, as he raised the question—reveals, in Clause 3(3)(a), a further specific reference to,

    "the desirability of promoting competition in relevant markets".

There is no reference anywhere else in Clause 3 to public service broadcasting standards. Although the noble Lord, Lord McIntosh, talks of unbalancing the Bill by including this reference at the front of the Bill, at the beginning of Clause 3, my proposition, which I think is supported by all who spoke, is that the reverse is the case. There is a superfluity of reference in the Bill to competition and a paucity of reference to public service broadcasting standards. As many have said, public service broadcasting standards do not even get a mention until Clause 260.

I listened particularly carefully to the reservations expressed by the noble Baroness, Lady Buscombe, and the noble Lord, Lord Crickhowell. I am anxious to carry them with me to a vote if to a vote it has to go. So I would now propose to withdraw the amendment, to speak with them further and, I hope, to bring back an amendment that will have their approval at the next and final stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Buscombe moved Amendment No. 3:

    Page 3, line 16, after "services" insert "(and in particular the diversity of elements within such services)"

The noble Baroness said: My Lords, the key purpose of this amendment is to address the need for Ofcom to secure in carrying out its functions the availability throughout the United Kingdom of a wide range of TV and radio services,

    "and in particular the diversity of elements within such services".

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In essence we are seeking to ensure that, in addition to there being a wide range of services which are both of high quality and calculated to appeal to a variety of tastes and interests, there is sufficient diversity of all forms of creativity within those services. In contrast with the previous amendment, we believe that this amendment addresses all programming, public service broadcasting or otherwise.

The amendment is designed to ensure that Ofcom is required to take specific account of the different component parts of television and radio services when making an assessment of whether such services taken as a whole are both of high quality and calculated to appeal to a variety of tastes and interests. Without such clarification on radio services, for example, Ofcom could conceivably make a judgment on overall quality and diversity as long as it was demonstrated by, for example, news, sport and light entertainment programmes, without giving specific or sufficient regard to music and the performing arts.

The amendment was proposed by the music industry. We are pleased to support it, and encourage the Government to support it, because it is addressing the need for diversity of all forms of creativity. The importance of creative diversity—including music diversity—together with the absence of any provision in this entire Bill to require and enable Ofcom to act effectively on this issue has led us to conclude that this deficiency could be addressed by amending Clause 3. Our amendment would furnish Ofcom with an overarching responsibility to ensure that this vital element is given due regard when making its regulatory decisions.

While we understand that the Government are reviewing this important issue, we are keen to support that process by putting forward several amendments—we have later amendments on Report for scrutiny by your Lordships—aimed at bringing greater regulatory clarity for British music creators and audiences, and indeed in the wider public interest. I should like to thank the noble Lord, Lord McNally, and the noble Baronesses, Lady Warnock and Lady Howe, for their ongoing support on this issue and those respected voices from the Government's own Benches who sounded the alarm during earlier debates. I beg to move.

Lord McNally: My Lords—

Lord McIntosh of Haringey: My Lords, I do not want to curtail debate, and if others wish to speak after me, that is fine, but I hope that I can help the House. We said in Committee that we would table amendments on Report that would address the main area of concern, which is about music on local radio. We expect to table amendments this week for debate next week. I hope that those will meet the concerns of the music industry. I think that I should add that this amendment seems to require diversity not only across services but within services. That would seem to me to mean that Classic FM would have to carry jazz and

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pop, and that pop stations might have to include Stockhausen or Berio. I do not think that that is what is meant.

Baroness Buscombe: My Lords, far be it from me to inflict the wrong music on the wrong audience. I shall be brief in my reply. I am very grateful to the Minister, who is clearly taking this issue on board. In that well known phrase, let us watch this space and see what comes before us next week in our further deliberation on Report. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Northesk moved Amendment No. 4:

    Page 3, line 29, at end insert—

"( ) the application, in the case of electronic communications network services, of standards that provide adequate protection to members of the public and all other persons from unwarranted infringements of privacy resulting from activities carried on for the purposes of such services;"

The noble Earl said: My Lords, if I may, like other noble Lords, I should like to take this opportunity to welcome the Minister to his new position and congratulate him on it.

I turn to the amendment. The Bill requires that appropriate privacy standards be secured in respect of all television and radio services. That is of course welcome. The effect of the amendment is to extend that requirement to "electronic communications network services". The substantive point is that, if it is sensible that the radio and television arms of media enterprises should be subject to appropriate privacy standards, it necessarily follows that their Internet or web-based arms should be too. A failure so to do not only creates a gaping hole on the face of the Bill, it also creates what the noble Lord, Lord Avebury, so eloquently described as a "philosophical inconsistency" in the Government's approach and attitude towards both this Bill and technological convergence more generally.

What was evident from our debates in Committee is that we are all, even the Government, agreed that this is a hugely important issue that needs to be addressed. As the Minister, put it:

    "I do not disagree at all . . . if we have provision in Clause 3(2)(f) in respect of radio and television services, there ought to be comparable provision for electronic communication network service users—there is no doubt about that".

So we are all agreed. This is an amendment of substance which it could be fairly said would improve the Bill. Yet, on the evidence of the Committee, the Minister will in due course reject the amendment. The grounds for so doing are outwardly reasonable. As he explained in Committee, and I have no doubt that the same argument will be deployed again today,

    "any standards imposed by Ofcom would have to be consistent with the new European regulatory regime for electronic communications, including the new directive on privacy and electronic communications".—[Official Report, 29/4/03; col. 646.]

I do not dissent from that. But perhaps the Minister will explain in what ways the amendment is inconsistent with the relevant directives? I do not

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believe it is. Indeed, there are not inconsiderable advantages in adopting what could be called an anticipatory approach in this matter rather than leaving it in abeyance.

I acknowledge too the Government's commitment as expressed by the Minister:

    "We intend to implement the directive in the UK by means of separate regulations under the European Communities Act 1972".—[Official Report, 29/4/03; col. 647]

Again, that is eminently reasonable. What need of the amendment is there when the Government are going to legislate in the future by a different route? I have a number of concerns here. Self-evidently the Government are content to legislate on this matter as it relates to radio and television by means of primary legislation. As I say, that is welcome. Indeed it is wholly unsurprising. But when it comes to the electronic communications network services aspect of the problem, they are content to deal with it by secondary legislation. There are shades here of the "philosophical inconsistency" identified by the noble Lord, Lord Avebury. I return to the central tenet of my argument: if it is right to legislate in this area for radio and television services by primary legislation, then it must be right to adopt the same approach for electronic communications network services. After all, what is at issue here, far from being a matter of administrative detail, and thereby an appropriate candidate for secondary legislation, is a fundamental principle, the essential human right that an individual's privacy should not be infringed.

Nor should we lose sight of the problems associated with consigning these matters to secondary legislation. Your Lordships will be aware of the gestation periods of, for example, the code of practice for voluntary retention of communications data required under the Anti-terrorism, Crime and Security Act 2001, or the Information Commissioner's employment practices data protection code. The latter was three years in the making, while the former runs the risk of failing to meet its two-year deadline for implementation on 13th December this year. This begs the question of whether it would be sensible to run the risk of leaving this issue in limbo for such a long period. I do not believe that that is sensible. As I said, there is virtue in the amendment in the sense that it anticipates and pre-empts this risk.

There is the seductive argument that when it comes to information technology issues it is unwise to legislate unilaterally. As the Minister put it:

    "We shall implement the directive and put in place a set of controls that will have the enormous virtue of covering Europe. It is not a UK matter, it is an international one."—[Official Report, 29/4/03, col. 647]

How very true. It is a sound analysis, so far as it goes. The key here is the noble Lord's use of the word "international". The reality is that this is not an exclusively European matter either. It is global. So, if we are to be tempted into accepting the thrust of this argument, logic dictates that legislation should wait until such time as some form of global agreement is in place. However desirable, that prospect is some way off. Quite rightly, the Government are not advocating

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that the matter should rest in abeyance as a result. In other words, the enormous virtue to which the Minister referred is but a glass half-full. None the less, if the amendment were inimical to the forthcoming directives, I would be the first to concede that it was an inappropriate addition to the Bill. But it is not. It has the virtue of anticipating the directives rather than pre-empting or compromising them.

So, as I observed in Committee, I find myself in a somewhat curious position. None of your Lordships has thus far dissented from the amendment's underlying principle. None of your Lordships has suggested that it is in any way defective or indeed inconsistent with forthcoming European legislation. In the circumstances, I find the Government's obduracy in resisting the amendment difficult to understand. I look forward to the Minister's reply in the, perhaps vain, hope that at least some light can be shone on the impenetrability of the Government's position. I beg to move.

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