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Baroness Buscombe: My Lords, I thank the Minister for his response. I accept what he says, to some extent, about the difficulty of changing property law when addressing a communications Bill. However, a problem clearly exists. It is difficult for me to suggest to the Minister that the industry has made representations when he does not believe that has taken place.
Lord McIntosh of Haringey: My Lords, I am saying not that there were no representations, but that we have not been given adequate evidence of significant problems.
Baroness Buscombe: My Lords, I thank the Minister for his clarity on that point.
I shall go back to the industry and put it to them that the way forward might be for them to provide the Government with the necessary examples. Clearly, I can do no more than that. I accept what the Minister said in relation to property law. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 134 [Restrictions on imposing information requirements]:
Lord Avebury moved Amendment No. 73A:
- Page 126, line 26, at end insert—
The noble Lord said: My Lords, when we debated this amendment in Committee on 20th May, I withdrew it on the basis of the statement made by the noble Lord, Lord Evans, to the effect that since the Human Rights Act 1998 came fully into force on 2nd October 2000, it is no longer necessary to include an express protection for the privilege against self-incrimination in order to ensure that that privilege is properly protected.
We believe that the Minister may have been wrong in that assertion because we are dealing here with protection against self-incrimination in relation to a civil matter, to which Article 6 of the European Convention on Human Rights does not apply. I think that the Minister's response was based on the incorrect assumption, which he repeated several times, that the Human Rights Act, which incorporated the convention into UK law, affords protection against self-incrimination in civil cases. I shall not weary noble Lords with other quotations from the noble Lord in which he made that assertion.
We assert that where penalties are available to Ofcom—they range up to 10 per cent of relevant turnover—while they may be civil sanctions, because of their severity they are in fact akin to criminal penalties. The Government's response, as well as their response to the joint scrutiny committee, completely misses that point. In stating that as a result of the Human Rights Act it is no longer necessary to include a specific provision to ensure that the privilege is properly protected, they are plainly wrong. The penalty is a civil sanction and so no privilege is available under UK law. That is why it is necessary in the case of these civil penalties, which are potentially extremely severe and therefore equivalent to criminal penalties whose purpose is to punish, to include a specific protection in the Bill.
In Committee I drew the attention of noble Lords to the precedent for providing such a protection in relation to civil penalties. It was contained in the draft Bill considered by a joint scrutiny committee, which then became the Financial Services and Markets Act 2000. The committee recommended the insertion of a provision, which became Section 174(2) of that Act, preventing the use of compulsory statements obtained under Section 123 as a result of which civil penalties might be imposed for market abuse.
The circumstances here are directly comparable, in that the Financial Services Authority has—as this Bill proposes that Ofcom should have—the power to impose such significant penalties. So Parliament did accept the principle that, in such circumstances, protection should be provided against self-incrimination analogous to Article 6 of the convention. In saying that it is not necessary to put anything in the Bill because the protection already exists, the Government imply that they accept that it is right for such a protection to exist, in which case they ought to be sympathetic to the amendment. I beg to move.
Lord Evans of Temple Guiting: My Lords, it is clear that there is a disagreement between the Government
However, having made those comments, because of the matter of our disagreement, I shall take away the points made by the noble Lord, Lord Avebury, read the detail in Hansard and come back to him. It is clear that this matter must be resolved. We are determined to do that when we return to the Bill next week. I thank the noble Lord.
Lord Avebury: My Lords, the Minister has been extremely helpful because, as he says, there must be a disagreement between the legal advice that is available to the Government and that which has been offered to us. We hope that this issue can be resolved by discussion before we reach the next stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 153 [Directions with respect to the radio spectrum]:
Lord Avebury moved Amendment No. 73B:
The noble Lord said: My Lords, this amendment and those grouped with it relate to recognised spectrum access, a subject which we covered in some detail in Committee. Noble Lords will recall that the Government did not accept our argument that the cost of RSA would be passed on to consumers.
The satellite operators say that they are already using the spectrum as efficiently as it is possible to do and that there is no scope for efficiency savings to be made upon the introduction of RSA. Therefore the additional cost burden that RSA is bound to generate will necessarily have to be passed on to the users of the satellite platform and, ultimately, to the consumers of the services.
As was pointed out in Committee, the operators also say that RSA may compromise the take-up of digital television and, as a result, the Government's switchover target. I am bound to accept that the advice from the operators of the satellite services is of some significance in this regard. If the technical advice they are giving asserts that the adoption of these technologies will be delayed, they are in the best position to know and, with respect, I think that their opinion ought to prevail over that of the Government's advisers. At any rate, if the matter remains unresolved in the discussions between the industry and the Government, we can say that there has been a gap in communications between the two
In pursuing the arguments put by the satellite industry, we also assert that recognised spectrum access is likely to stifle emerging broadband services, which require a greater use of spectrum than does broadcasting. The application of RSA will constitute a significant and damaging disincentive to innovation and the development of new broadband satellite services. Again, this is likely to affect disproportionately rural consumers, about whom we heard on the last occasion during the discussion on the amendment moved by the noble Earl, Lord Northesk. It may also reduce competitiveness in the broadband market by making the further development of broadband interactive satellite services prohibitively expensive. So it will certainly compromise the Government's objective of having in place the most competitive and extensive broadband market in the G7 by 2005.
I ask the Government to think again about the whole question of recognised spectrum access. If they cannot accept these amendments, I hope that they will say that they are at the least open to further discussions before this extensive provision is included in the Bill without any additional consideration. I beg to move.
Baroness Buscombe: My Lords, I shall not even attempt to say that I will be brief on this matter. Recognised spectrum access is a very important area. We had a considerable debate in Committee and I return to that discussion with our Amendments Nos. 74 to 99.
I am grateful to the Minister for the time that he has put into addressing the concerns I have raised. Moreover, I received a detailed letter, for which I am grateful. However, I am still unhappy that the Government have failed to provide sufficiently clear answers to these concerns. I now return to the issues to seek further clarification.
I shall start with the question of consultation, and my Amendment No. 74. RSAs are of huge concern to the satellite industry. If nothing else, the level of representations received, and the amount of time given over to this subject in debates in this Chamber and another place, stand testament to that. As the Minister also indicated in his letter to me, the majority of responses to last year's consultation were from organisations against RSA. I believe that it is vitally important for them at least to be clear that their concerns are to be taken into account, and are seen to be taken into account, in the implementation of this new system.
I do not think that the Government's reassurances on this matter have been convincing. As we have discussed previously, Clause 156 does, indeed, refer to Clause 396, which includes a requirement to consult and take account of the representations received. But Clause 396 relates only to Ofcom's powers to make regulations,
I should like to take a moment to contrast the Government's position on my proposal for consultation here and that which they took on the proposal for consultation on the implementation of my proposed new clause on restrictive covenants affecting freehold. There I proposed an amendment which would have required consultation before the bringing into force of the provisions of the new clause. In rejecting the new clause and amendment, the Minister replied that there is a difference between consulting on the substance of a provision and consulting on bringing into force a provision that has already been made. That is precisely the point that I am putting to the Minister today, yet, unfortunately, he appears not to accept its validity. Perhaps the Minister could explain this difference in approach, or preferably accept my amendment for the purposes of consistency.
Furthermore, the duty to carry out and consult on impact assessments under Clause 7 is entirely down to Ofcom's own discretion on what is important and, as we previously discussed, the better regulation principles may—unless the Minister changes his mind, and I am hopeful that he will—unfortunately be disregarded by Ofcom, also whenever it chooses to do so.
These are concerns that rest heavy with the industry. What the industry wants is a clear and guaranteed opportunity to make its concerns heard at an appropriate and timely stage of the decision-making process, not a vague commitment to consult at the convenience of the regulator which could in theory decide not to consult at all until the eleventh hour.
Moving on to a more positive outcome from our discussions I should like to thank the Minister for his expression of personal sympathy with the arguments that I put forward in favour of "grandfathering" the RSA proposals to pre-existing satellite transponder agreements which have not factored in the possibility of RSA. It is—as I think he acknowledges—important not to discriminate in providing such protection to terrestrial broadcasters' licensing agreements and satellite transponder agreements. I should like to press him a little further on that, however, and in particular on the difference between his personal views and his views as the Minister responsible for broadcasting.
In his letter he indicates that the timing of the introduction of charges for RSA will be a matter for Ofcom to judge. Yet, as I indicated in Committee, in the Government's own response to the review of radio spectrum management they indicated that spectrum trading and pricing as regards terrestrial broadcasters is not to take effect while they have existing licences which did not anticipate such pricing. If the
I should like now to turn to Clause 158(3), which provides for the auctioning of RSAs, and my Amendment No. 85, which seeks to delete this provision. As I argued in Committee, while it makes sense to auction an actual scarce frequency, it does not make sense to auction an RSA, which is merely protection against a particular terrestrial frequency being deployed to create interference. Surely if there is a risk of interference to a number of satellite broadcasters from the deployment of a terrestrial fixed link, all of them should be able to obtain protection against interference and not just one.
I put a number of questions on that issue to the Minister in Committee. How, for example, will the winner of the auction ensure that those who did not bid do not benefit from the protection which RSA granted to him provides? What happens to the loser who was prepared to pay but valued the protection less highly? Does he have to do without the protection? Unfortunately, the Minister appeared unwilling to engage in debate on these difficult questions in Committee and has not attempted to answer them in the letter either. Instead the arguments in favour of auctioning remain simplistic and generalised; that there is widespread support in principle both for auctions and for spectrum pricing, and charging makes the use of spectrum more efficient. Support in principle is all very well but auctioning is quite inappropriate in the case of RSAs.
I am afraid that I must ask the Minister again, therefore, if he will take this opportunity to outline the circumstances where an auction of RSA would be appropriate, and how it would be unaffected by the considerable flaws I have already outlined. As the Minister observed in Committee, Amendments Nos. 75 to 84 and 86 to 98 all relate to the way in which Ofcom will grant and regulate RSA. This is, I believe, an important and legitimate source of concern for those who stand to be regulated in this way. The Government should not simply dismiss it as predictable special pleading on the part of commercial operators. First, I believe there are outstanding questions to be answered in relation to Ofcom's ability to impose wide-ranging conditions on an RSA under Clause 156(5), for example, on the signal or what is broadcast on it.
The Minister indicated in his response in Committee that there may be a need to impose technical terms and conditions, for example, standards that equipment should meet,
On a related matter, Clause 161 allows Ofcom to limit spectrum use by specifying frequencies for which it will grant or make available only a limited number of RSAs or specifying uses for which on specified frequencies Ofcom will grant or make available only a limited number of RSAs.
Amendments Nos. 86 to 91 seek to address the concern that in effect these provisions enable Ofcom to ration the protection which is to be afforded by RSA and to impose restrictions on the use of satellite frequencies which are already subject to international co-ordination and agreement. If RSAs are to be made available, they must be available to all satellite operators and broadcasters. After all, RSAs are simply intended to enable satellite broadcasters to guard against terrestrial interference. Therefore, the number of RSAs granted should be determined wholly by the demand for them and nothing else. This is clearly not the Government's intention, however. Instead they regard RSA as a tool with which to shape the use of satellite spectrum rather than a simple protection from interference. As the Minister explained in Committee:
I move on to Ofcom's powers to revoke the grant of an RSA or modify the restrictions or conditions to which a grant is subject. In particular, I remain concerned that there is no constraint on the grounds on which Ofcom may modify or revoke a grant, other than when it includes in an RSA the self-denying ordinances in paragraph 7 of Schedule 5.
In his letter, the Minister argued that it may be necessary through modification or revocation to re-farm spectrum to make room for a new service. He said that RSA holders,
I believe that it is contrary to the legitimate rights of an RSA holder for Ofcom to have such unfettered power to amend or remove, albeit after the RSA holder has been able to make representations, an RSA during the period for which it has been granted. What is the value of an RSA that in theory protects against the possibility of signal interference, while at the same time provides a mechanism for greater regulatory intervention that would allow the protection to be withdrawn at the behest of Ofcom? Once granted, RSAs should not be revocable and should last their full term. Amendments Nos. 76 to 84 seek to ensure that that is the case.
Finally, I should like to address the issue of spectrum trading. My concern remains that Clause 165 would allow Ofcom to alter the conditions of an RSA, and require further payments to be made or financial security to be given, before giving its consent to any transfer. Such provisions could alter fundamentally the rights and values of the RSA originally granted, and are inconsistent with the underlying principles of property and human rights. The effect is that, on a sub-licensing of transponder capacity, it may not be possible to transfer any associated RSA protection. That will create problems for secondary trading in transponder capacity. As noted in Committee, the European Commission has been keen to see that flourish.
We believe that the Government have failed to justify the provisions. In Committee, they said that the amendments would be "unhelpful", without giving any reasons other than that they would dilute Ofcom's powers. The Minister's letter goes a little further, indicating that transfers of RSA could lead to "undesirable outcomes" and raise issues of,
With such significant powers of intervention handed to Ofcom on the matter, I urge the Government to be more forthcoming in their explanations. If they are unable to do so, I urge them to accept Amendments Nos. 92 to 99. They would not remove RSAs from the trading provisions, but would reduce significantly the ability of Ofcom to alter conditions requiring further payment or require its consent to be given.
"(7) In a case where a requirement for information under section 132 or 133 includes a requirement for any person to answer a question, make a statement, provide an opinion or otherwise to provide information, whether orally or in writing, such answer, statement, opinion or other provision of information shall not be used by OFCOM in relation to any action to be taken against that person under any of sections 34, 38, 93, 109 or 136 without the consent in writing of that person."
Page 141, line 33, leave out "3A" and insert "3"
5.30 p.m.
"to obtain a desired quality of service, or to deal with extraneous symptoms that may be received, or to deal with restrictions on the frequency limits or on geographical boundaries".—[Official Report, 20/5/03; col. 750.]
He has also added in his subsequent letter that,
"It may be considered desirable to limit the uses to which spectrum benefiting from RSA may be put in a particular frequency band, for example in the interests of promoting a particular service such as broadband".
I remain concerned at this clear broadening of the policy intention behind RSA, which my Amendment No. 75 seeks to address. The purpose of RSA is to protect the holder against interference to his satellite signal—nothing more. Surely, therefore, it runs wholly counter to this rationale that positive conditions are imposed on the RSA holder relating to his signal or what he broadcasts on it. The Minister has said that the provisions are needed to manage the spectrum but this should only mean providing protection against terrestrial interference. Other policy objectives such as the promotion of one particular type of service over another should not form part of the RSA rationale.
"Radio spectrum is a scarce resource. In some frequency bands, the need to protect one service from interference can constrain the deployment of other services in bands shared by satellite downlinks and terrestrial point-to-point fixed links. It is necessary to limit the grant of RSA, to prevent other services from being unduly restricted".—[Official Report, 20/5/03; col. 750.]
"will have a considerable degree of security in relation to revocation or modification",
in that they will have a right of appeal and that Ofcom will be required to act reasonably and give an appropriate period of notice, depending on certain circumstances. It is difficult to see how any holder of an RSA would feel secure in the light of such weak assurances. The Minister has already indicated that he
believes it reasonable for a licence to be revoked in certain circumstances, so I cannot imagine that Ofcom will find it too difficult to negotiate that particular hurdle. A longer period of notice is unlikely to sweeten the pill.
"competition or compliance with international obligations".
However, it again fails to expand on those policy reasons.
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