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Lord Peyton of Yeovil: My Lords, as my name is attached to the amendment, I rise briefly to support what the noble Lord, Lord Puttnam, said. I particularly endorse what he said about the present situation being altogether too slipshod. The need in this industry—perhaps above all others—for training is too obvious to be ignored. Frankly, I believe that it would be wrong if we allowed training to remain on a voluntary basis. The black sheep who default in the cause of training should be brought into line. I hope that on this occasion, if on no other, my endeavours to say something that pleases Ofcom will even commend themselves to the noble Lord, Lord Currie.
Lord Thomson of Monifieth: My Lords, we on these Benches strongly support the amendment moved by the noble Lord, Lord Puttnam. I should declare an interest. I have a daughter who is in the management of the BBC and who owes a great deal to the training that the BBC provided. It was postgraduate training of a very high quality. In those far-off days, the BBC carried an undue burden of training throughout the broadcasting industry. I believe it is fair to say, as the noble Lord, Lord Puttnam, indicated, that that burden is now far more evenly spread. However, some areas within the industry would require the kind of statutory compulsion provided by the proposed levy. I hope that the Government will deal sympathetically with what the noble Lord has proposed.
Lord Evans of Temple Guiting: My Lords, Amendment No. 50 seeks to insert a new clause proposing to give Ofcom power to impose a new training levy if it is not satisfied that adequate opportunities for training and retraining are being provided and if those failings cannot be remedied by exercising relevant powers under Clause 330. The new clause goes on to indicate how Ofcom should fix the levy and how receipts of the levy should be used.
As my noble friend Lady Blackstone made clear when we debated the same amendment in Committee, we recognise the crucial importance of a well trained
workforce to the broadcasting industry. Without the highly skilled workers it needs, the industry will struggle to remain competitive in the world media market place. The nature of the industry and the characteristics of much employment within it only serve to underline that stark truth.Because of our recognition of those facts, we have introduced the new, strengthened provisions on training in the Bill. For the first time, training obligations will apply to all television and radio broadcasters who meet the threshold conditions set out in the Bill, and Ofcom will have a new duty to promote training more widely in the sector.
In Committee, we also indicated that we would consider an amendment tabled by the noble Lord, Lord Crickhowell, designed to ensure that the training requirements apply to companies which, while individually small, are part of a much larger group of companies. We have tabled amendments for discussion next week on this topic. Those provisions put the broadcasting sector well ahead of most others, and we are confident that they will deliver the intended result.
Much will depend on the licence conditions that Ofcom imposes under Clause 330 and the action that it takes under Clause 24. Following a recommendation of the ITC's programme supply review, the Secretary of State asked Skillset, the sector skills council for the audio visual industry, to establish a task force and report back to Ofcom on these very issues. Skillset and all the key stakeholders are already well advanced in their task.
It is not clear from the amendment on whom the training levy would be imposed. Thus far, we have assumed that Clause 330 would apply to the licensed broadcasters, but the aim may be to catch independent producers who are not, of course, subject to Ofcom regulation. However, that would be extremely complex to achieve, requiring a whole new layer of regulation to ensure that independent producers identify themselves and to make arrangements for the levy and introduce sanctions if producers do not pay up.
That does not mean that independent producers cannot or should not play their part in contributing to industry training. They can and they should. PACT, the trade body representing independent producers, has been operating the Independent Production Training Fund, with the support of the main broadcasters, since 1993. The Skillset task force, which I have just mentioned, is looking, among other things, at the scope for raising the current ceiling on contributions to the fund from independent producers. PACT is represented on the task force and I hope that it will make a positive contribution to the discussions. In the light of what I have said, I hope that the noble Lord will withdraw the amendment.
Lord Puttnam: My Lords, in withdrawing the amendment, I want to make two points. One is that clearly I and those who agree with me are seeking some mechanism whereby Ofcom can use the significant and broad powers that it has to, as it were, encourage those
who believe themselves to be taking a free-rider position on training to join the body that pays and pays willingly. The noble Lord, Lord Davies, and I tend to meet—just the two of us—in this House only about once a year. On those occasions, we discuss the engineering and construction trade industries' training arrangements. There has never been a moment of dispute. The arrangements are regarded as very valuable by those industries and seem to work extraordinarily well. I suppose that, in essence, I am seeking a not dissimilar arrangement for the communications industry. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clause 28 [Transitional functions and abolition of pre-commencement regulators]:
Lord Avebury moved Amendment No. 51:
- Page 26, line 31, at end insert—
The noble Lord said: My Lords, no doubt because of the inadequacy of my explanation of these amendments in Committee on 15th May, the Minister was not at the time fully aware of their purpose. As the noble Lord, Lord McIntosh, was good enough to acknowledge in a letter of 2nd June, what we are dealing with in Amendments Nos. 51 and 233 is the passing on of charges which have been levied by Oftel, even though after commencement they will be payable to Ofcom.
As the Minister is now aware, the providers of masts and towers, who played a key role in the development of terrestrial radio and television services and who also license antenna space to mobile and fixed wireless operators, have clauses in all their contracts with these users to enable them to recover the charges imposed by the existing regulator. The amendments seek to ensure that the existing contractual arrangements continue to have effect as if any new charges levied by Ofcom were, for the purposes of those contracts, charges by the previous regulator.
Secondly, in Amendment No. 232, we deal with rights and obligations established by reference to definitions contained in previous legislation. As far as we could see, there was nothing in the Bill to cover existing arrangements between broadcast transmission providers and service providers, although the amendment is not limited to agreements of that kind. As the Minister knows, the agreements between landlords and the owners of towers and masts often confer rights on the operators which allow the sharing of these rights with holders of Telecommunications Act 1984 licences only. The disappearance of those licences and of the distinction between broadcasters and other providers of electronic communications networks means that key permitted-use clauses in agreements between the operators of towers and masts and their customers would be invalidated, and they would be obliged to renegotiate amended contracts with their landlords.
It appears that the Government have taken these points into consideration in their Amendments Nos. 227 to 231 and 234 to 235. We look forward to hearing their explanation of how the objectives that we outlined have been met—no doubt much more effectively than we were able to do.
However, as far as I can see, paragraph 2A of Amendment No. 227 appears to safeguard the position of persons holding 1984 Act licences, while paragraph 2B of Amendment No. 227 addresses the problem of agreements with persons holding such licences by others. We are concerned, however, with the wording of paragraph 2B(1) of Amendment No. 227, which refers to the,
With respect, we suggest that the amendment should make it clear that the expression "person under the agreement"—which could be taken as limited to persons party to an agreement—should be amended to,
In conclusion, there has still been no communication between the department and the operators of the towers and masts. It would have saved us time on the Floor of the House if there had been direct communication between officials in the department and those persons who are immediately concerned with these agreements. I hope that this residual point regarding paragraph 2B of Amendment No. 227 might be the subject of discussion between them before we reach Third Reading. I beg to move.
Lord Davies of Oldham: My Lords, I sought to rise early without pre-empting the debate, but no one else other than the noble Lord, Lord Avebury, is participating in the debate.
Your Lordships will recognise that the government amendments to which I am speaking at this point are an attempt to meet the representations made in Committee. The noble Lord, Lord Avebury, is doing himself a disservice when he suggests that he had not put the case sufficiently well for his amendments to be accepted. We understood the issues clearly, and we hope that we have now provided a framework in the Bill for meeting his concerns.
I am sorry to hear what he said about communications directly with the industry; the department prides itself on being as open as possible in discussions about the Bill. I do not know where the fault lies, but I doubt that it lies on our side. Nevertheless, our concern was that the issues having been raised by the noble Lords, Lord Avebury and Lord Crickhowell, in Committee, it was to those representations in the House that we directed our
Your Lordships will recall that certain amendments on these matters were tabled in Committee, and we indicated that the Government were sympathetic to their concerns. Therefore, I am happy today to outline our solutions. I also hope to persuade the noble Lord, Lord Avebury, that these amendments are helpful to the concerns of the transmission company, Crown Castle, which lie behind his contribution.
The Bill already makes transitional provision which is addressed to the effects which the advent of the new regime will have on private agreements. We sought input on these issues from the industry when the draft Bill was published last May, and accordingly included some provisions for such matters in the Bill—specifically paragraphs 8, 12 and 16 of Schedule 18. However, a group of legal experts—who were also advising the noble Lord, Lord Crickhowell, who is unfortunately unable to join us today—recently advised us that this provision is not wide enough. Their advice was that some of the impacts that were not caught could be adverse for the affected parties.
We have considered these concerns in drafting our amendments, which we think will be of material assistance. As it stands, paragraph 3 of Schedule 18 prevents the triggering, merely as a consequence of the ending of licensing under the 1984 Act, of any provision in commercial agreements which might cause those agreements to cease to have effect or to be capable of being terminated. However, we were advised that there are many kinds of provisions in agreements, other than termination provisions, which could be triggered by the ending of licensing. These would not be caught by paragraph 3.
We recognise that this could be a problem with serious consequences. The provisions in question might, for instance, trigger a situation of default under a finance agreement. It is impossible for the Government to know of all potentially affected agreements—much less to know in detail what is in them. We must therefore proceed with some caution.
However, we think it possible to produce an effective solution by a general substitution, providing that this general rule can be adjusted by a court if necessary, when the general approach does not properly reflect what the parties would have agreed had they contemplated the abolition of the licences. The amendments therefore have the effect that any provision in such agreements which might be triggered by the end of licensing will instead be triggered by a long-term suspension of the right to provide services. This seems to be the nearest equivalent in the new regime which the Bill will inaugurate to the revocation of a licence in the old regime.
In many cases, this substitution will be sufficient to prevent any seriously adverse consequences from the ending of licensing. Nevertheless, substitution of the most nearly equivalent event will not always be the right solution. We have therefore allowed for the possibility
We believe that this strikes the right balance. I hope that noble Lords who have taken a keen interest in these issues will find that the amendments effectively address the general concerns about agreements that are conditional on licensing which motivated in particular the amendments tabled by the noble Lord, Lord Crickhowell, in Committee.
As regards Crown Castle's agreements, the amendments will be helpful. They will ensure at least that the ending of licensing under the 1984 Act will not lead to automatic termination or invalidation of any of its agreements, which was one of its significant concerns.
I recognise that this will not meet every concern which the noble Lord has so clearly explained and that on many other points it may be necessary for Crown Castle to modify and update its agreements for the new circumstances. But, as I have emphasised, it is not possible for us to know all of the circumstances addressed by private agreements. Accordingly, we have to be cautious in making what after all is permanent provision once enshrined in the legislation.
Where the parties to such agreements are not constrained from adjusting them to suit the new circumstances and can equitably do so, it is not likely to be appropriate to make general statutory provision which may have unforeseen and adverse impacts in a particular case.
In the light of these amendments, therefore, I hope the noble Lord will feel we have addressed the issues raised by himself and the noble Lord, Lord Crickhowell, in Committee. We will examine the issue he has raised with regard to third parties and if we can improve the amendments to take it on board, we will do so at Third Reading. On that basis, I hope that the noble Lord will consider that the government amendments to be moved on Report meet the proper concerns that he has expressed.
"( ) Where, under contractual arrangements in place prior to the commencement of this Act, liability is established for payment of charges levied by pre-commencement regulators, such arrangements shall continue to have effect after the abolition of the pre-commencement regulators as if they applied to charges levied by OFCOM."
"rights or obligations of a person under the agreement".
This may not cover the agreements we had in mind, in which the landlord grants a power to the operators of masts and towers to let space to third parties who hold 1984 Act licences but who are not themselves parties to the agreement.
"person referenced under the agreement".
12.15 p.m.
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