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Lord Dubs: My Lords, I am grateful for the correction because I think that where the Governors of the BBC fall down is that there is not the transparency which I would want to see associated with a regulator when it is acting on behalf of the public vis-a-vis the management of the BBC, in so far as the governors can put themselves in that position. I understand that that is one of their functions and that they have to represent the public as regulators.
I believe that any regulator should be open and transparent. Everyone should be able to see what are the issues on which the regulator has had to take action, whether that regulator be the existing ITC, the BSC or the Radio Authority at the moment, or Ofcom in the future. I should like the BBC to demonstrate an equivalent transparency when the governors are acting in a regulatory capacity. That has to be the bottom line in parliamentary regulation.
I am very much in favour of the amendment tabled by my noble friend Lord Lipsey. The arguments put forward about the BBC not becoming involved in some of these issues do not apply to new ventures in the commercial sector, where they go head to head with the commercial broadcasters. There I think it appropriate that Ofcom should be able to exercise the power.
Finally, when we consider charter renewal, which is some way ahead, I certainly am concerned to keep the BBC out of politics; that is to say, the fewer arguments the BBC has with any Secretary of State, the better for its independence. I shall look at the way in which the BBC should relate to Ofcom influenced by my wish to avoid the BBC becoming too entangled with any Secretary of State of the day.
Viscount Astor: My Lords, since my noble friend Lord Crickhowell was kind enough to refer to what I said in Committee, I rise to echo and agree with much of what he has said. One day the BBC will come under Ofcom. We have yet to persuade the BBC that it would be beneficial for it so to do.
I think that it would be extremely beneficial because I agree with what has just been said by the noble Lord, Lord Dubs. We do not want too much interference from a Secretary of State. I hope that, when we come to charter renewal, the BBC can be persuaded that it will be strengthened and that it will be given more power, as it were, to resist interference from politicians of any colour.
I recognise that the Government have moved on this in producing their amendments, which go a long way to satisfy the concerns that were expressed in Committee.
Baroness Howe of Idlicote: My Lords, I wish to intervene only briefly in the debate. Almost exactly the same arguments in support of one side or the other were advanced when we considered this matter in Committee. All those arguments were important and were put with the aim of achieving the best possible outcome both for our nation and, indeed, for the BBC. I belong to the group which says, "Not yet, and perhaps never". However, in my view, now is the time to wait until the charter review and until Ofcom is up and running and able to appreciate just how huge its task is.
The BBC is a huge asset: "A piece of genius", was how the noble Lord, Lord McNally, put it. It has set standards not only in this country, but throughout the world.
I shall not take up much of the time of noble Lords, but I want to say not only, "Not yet" or "When the time is right", but also, "Let us reach the right decision when we come to consider the whole issue again". As the noble Lord, Lord Crickhowell, pointed out, now that we have in place the requirements for future-proofing that he sought, once those have settled in, let us see whether the arguments are as convincing then as some would think.
Baroness O'Neill of Bengarve: My Lords, although the amendment before us may have much to commend it at the stage of charter renewal, there is one element in it which I hope that no friend of the BBC or public service broadcasting, or even of freedom of speech, would wish to see continued; that is, giving a regulator the power to approve or amend all BBC statements of programme policy. Noble Lords have hardly referred
to this aspect, but I think that it is, as it were, an intrusion too far. For that reason alone we should probably not support this amendment.6.45 p.m.
Baroness Buscombe: My Lords, perhaps noble Lords will allow me now to speak to my amendments in this grouping.
I begin by saying to my noble friend Lord Crickhowell that certainly for my part, once the Bill has been fully scrutinised, I shall certainly harry both the Government and the BBC to ensure that we in Parliament have full opportunity to debate and discuss charter renewal. The noble Lord, Lord Dubs, said that that was some way away yet but we are half-way through 2003 and charter renewal will take place in 2006. As we know, these Sessions go by so quickly. We must get on to that debate early in the next Session. The more that we can build relationships with the BBC on that issue, the better. I certainly intend, as Shadow Minister, to do that.
In speaking to Amendment No. 188, I also wish to speak in support of Amendment No. 112, tabled in the name of the noble Lord, Lord Lipsey. I would also like to reiterate the wholehearted support that I gave to the noble Lord, Lord Gordon of Strathblane, in Committee on Amendment No. 100. In addition, I commend the Government for responding to my amendment—I stress that it was my amendment—to future proof the Bill by facilitating the future incorporation of Ofcom's functions into the Royal Charter. With the imminent onset of the BBC Charter renewal process, it is imperative that the dominant broadcaster is not partially exempted from external regulation before the issue has been extensively debated by Parliament. We therefore welcome the Government's reference to the BBC Charter rather than the agreement alone in the relevant provisions of the Bill.
Amendment No. 188 seeks to ensure parity between the BBC and commercial operators in the matter of cross-promotion. It seeks to confer a duty on the BBC to make arrangements to secure that any rules made by Ofcom regarding the regulation of promotion of programmes, channels and related services are observed. This would ensure that any rules set by Ofcom which apply to commercial broadcasters apply equally to the BBC. Let me be absolutely clear that the intention of the amendment is not to attack the BBC or to prevent legitimate promotional activity, but simply to bring the BBC into line with the accepted standards to which all other broadcasters are required to adhere.
Having carefully considered the comments made by the former Minister, the noble Baroness, Lady Blackstone, on this issue during Committee, I remain of the view that this is an important issue where existing rules and regulations covering the BBC do not give sufficient comfort and the Government's response was therefore inadequate.
First, the Minister said that Ofcom will have concurrent powers under the Competition Act which will apply to the BBC as they do to other
organisations. It strikes me as highly damaging to the Government's own stated aims and objectives, at a time when we are trying to get the industry to work together to promote the benefits of digital TV, to suggest that the only recourse available for those who object to unfair cross-promotions is to pursue the matter through the courts under the Competition Act. This is hardly likely to engender a spirit of co-operation.In any case, the issue of cross-promotion involves wider public policy objectives than simply ensuring fair competition. The ITC's code is underpinned both by its competition and content functions, and the code is intended not just to prevent unfair competition but also to engender clear and accurate consumer information. There is surely an even stronger case for the BBC's cross-promotional activities to be assessed against such a consumer information test, given that it is public money which is being used to fund these promotions.
Secondly, the Minister highlighted that the BBC fair trading commitment goes beyond competition law, and is subject to annual audit. But the fair trading commitment is virtually silent on the issue of cross-promotion and contains nothing like the detailed requirements imposed on the private sector through the ITC code, which I set out in some detail at the Committee stage.
Thirdly, the Minister referred to the BBC published commercial policy guidelines. Again, we can see nothing in those guidelines which provides anything like the detailed commitments contained in the ITC code. Indeed, the proof that no such internal constraints currently exist can be found in the heavy promotional activity that the BBC is currently conducting. I referred during Committee to the ITC rules including prohibitions on excessive promotion of a particular channel, service or suite of channels or services; and restrictions on the promotion of a specific digital platform. It is self-evident to anyone who has seen the BBC's promotions for Freeview and its own digital channels that these promotions would breach the ITC guidelines or any equivalent guidelines in place within the BBC if they existed.
The Minister said that my amendment would place the BBC under the scrutiny of Ofcom, contrary to agreed policy. Even if I accepted that policy outcome, two important points need to be made. First, as I have already noted, the ITC's code is underpinned by both the ITC's competition functions and its functions in relation to content. As far as the latter is concerned, it is agreed that the BBC will fall within Ofcom's remit, so to that extent compliance with the cross-promotional code is already agreed government policy. Secondly, many in the industry might accept the BBC's remaining outside Ofcom's remit in the area if there was any sign of the BBC taking the issue seriously and moving to provide detailed internal rules on cross-promotion. But, as we have seen, existing rules are silent on the issue and the BBC's promotions would clearly breach the ITC code.
We accept that the BBC has a major role to play in promoting the benefits of digital television and dispelling customer confusion about the new technology. That its existing approach is manifestly not working was highlighted by a recent press article. Media Week reported the finding of a poll in which 60 per cent said that Freeview was the name for new BBC channels and services rather than a new free-to-air broadcast platform. Half thought Freeview was available via a BBC set-top box. I strongly believe that, to allay such confusion, the BBC should be required to adhere to accepted standards for cross-promotions.
I briefly wish to speak in support of Amendment No. 112, tabled by the noble Lord, Lord Lipsey, to which my name was added. It ensures that Ofcom could monitor compliance by BBC companies with any guidelines published by the BBC to which subsidiaries were required to adhere when performing commercial activities. I do not wish to repeat what was said in Committee. However, I believe that it is imperative that all commercial broadcasters, including the commercial arm of the BBC, compete on a level playing field.
I have one final point. In Committee, I addressed a question to the noble Baroness, Lady Blackstone, concerning the draft amendments to the BBC agreement. I do not recall receiving a reply. Simply put, will Parliament have the opportunity to debate those draft amendments to the BBC agreement and, if so, when?
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