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The Lord Bishop of Manchester: My Lords, I, too, find much that is persuasive in the argument of the noble Lord, Lord Gordon. His amendment provides a clearer definition of the standards to which broadcast advertisers must adhere. It is akin to the standard required by the Advertising Standards Authority for non-broadcast advertisements.
The word "unsuitable" in this context is, as the noble Baroness, Lady Buscombe, indicated, difficult to define. In my view, it is more difficult than the words "misleading, harmful or offensive". For example, in the advertising slots in and around children's programmes, adverts for the latest craze toys at Christmas time are no doubt very suitable from the viewpoint of the children watching but they may be highly unsuitable from the point of view of their parents.
Again taking the example of children's programmes, I am concerned that there are occasions when the advertising slots between pre-watershed programmes are used to advertise more adult pursuits and products and more adult television programmes. I know that there are commercial pressures on broadcasters but I should like an assurance that Ofcom will be watchful and strict about such matters and, indeed, about all matters relating to the enforcement of the watershed.
If the Minister is not minded to accept the amendment, I look to him to give a robust semantic defence of the word "unsuitable" to show that it is more appropriate here than "misleading, harmful or offensive"; that its meaning, as teased out by the Minister, will be carefully and firmly applied by Ofcom to uphold standards in this area rather than to let them drift; and that, in any case, misleading, harmful or offensive advertisements will be proscribed.
An Act of Parliament should be drafted to leave as little room as possible for unintended interpretations by courts in the future. We know what we mean by "misleading, harmful or offensive", and have done so over many years. They are well tried terms which form the basis of the existing radio and television advertising codes.
I note from the Committee stage debate on 3rd June that the Government want the standards objective for advertising to be as broad as possible, to cover both undesirable product categories and inappropriate scheduling. I well understand their concern but, in my view, the new amendments would generally achieve both aims. "Harm" or "offence" can be used to apply to all kinds of things, including scheduling. For example, section 7.3.6 of the ITC code of advertising standards requires that appropriate timing restrictions be applied to advertisements which might harm or distress children or which would otherwise be unsuitable for them. This falls within the main section on "harm and distress" in Section 7.3 of the ITC code.
If the Government are going to persist with the word "unsuitable" as a standards objective for advertising they must produce good examples that would not be covered by "harm", "offence" or "misleading". In my experience, these terms have been usefully applied in a wide-ranging way by regulators to date. The words have been used very widely for a very long time and the self-regulation system of advertising standards has worked very well.
I am genuinely puzzled as to why the Government are resisting the amendment and making such heavy weather of it. I have not had the advantage of a letter from the Minister and so I cannot speak about that. We have more fundamental and serious matters to discuss at this stage of the Bill and I wonder why the Government are digging themselves in on this matter.
Baroness Carnegy of Lour: My Lords, I have not spoken on the Bill before and I hope that your Lordships will not mind me saying that I find it very strange how the Government are talking themselves into the odd use of words. Only the other day the noble Lord, Lord McIntosh, told us that, whatever our nationality, we must consider ourselves citizens if we
The concept of suitability is subjective. The right reverend Prelate made the point that it depends on who you are and what you consider to be suitable. The amendment makes a very good attempt to be far clearer. We do not want a regulator to decide about the "suitability" of something when the word is so subjective. It would be better for him to decide whether something was "misleading, harmful or offensive" because they are much clearer concepts. I support the amendment.
Baroness Howe of Idlicote: My Lords, I, too, share the concern and puzzlement expressed by the noble Lord, Lord Thomson, as to why the Government should be digging in their toes about this. Everybody who has spoken and who spoke on the previous occasion felt that the three words in the amendment were far more indicative of what we were all talking about than the single word that the Minister preferred. Not only that but, if I may say so, I think all three words give a concept to each one of the words used and help better to define the individual's interpretation.
I will repeat what I said last time. All the previous regulators took into account the timing of the programme, which is crucial, and I see no reason why that will not continue to happen. Obviously, at certain later times of the night things would be permitted which would not be permitted earlier or, rather, it would not be a question of finding against the advertiser. But a major problem is that adverts come upon you suddenly. Unlike the increasing encouragement to broadcasters to put warnings on their programmes, which are extremely effective in helping parents and others to decide whether to turn off, suddenly the adverts come on. That aspect needs to be taken very seriously.
Given all the things that have been said about combining the advertising standards approach and this amendment being the right way forward, I hope the Government will decide that they can change their mind.
Lord Davies of Oldham: My Lords, I am grateful for the debate and the attempt to clarify an issue which has exercised the Government and to which we have attempted to respond as positively as possible. Let us be absolutely clear: there is no real difference of principle between the Government, the regulators and the industry about what we are seeking to achieve. However, I will develop my response in terms of indicating that we are not holding fast to the term "unsuitable" so I will not respond to the invitation from the right reverend Prelate to produce a robust definition of the word. That would take me rather longer than your Lordships would bear.
I shall indicate, as we sought to indicate in our letter to colleagues who were signatories to the amendment, that we were prepared for further discussion. But I shall resist the amendments because they will not improve the Bill. Therefore, they ought not to be
The current advertising standards for broadcasting are generally considered effective, as the noble Lord, Lord Thomson, and others said. There is, it seems clear, no desire to limit Ofcom's ability to address issues of public interest and public concern in the most effective way. The question is simply whether, on the one hand, the amendment would provide the necessary scope to Ofcom and, on the other, whether "unsuitable" is too broad a term which would open the way to mischievous pressure to ban advertising on flimsy grounds.
Let me make it absolutely clear, therefore, that the Government's policy from the outset has been that Ofcom should have the same scope to regulate broadcast advertising as the ITC and the Radio Authority. The current statutory scope has obviously been wide enough to accommodate the current codes. I emphasise that it is not the issue of what is in legislation that is the determinant of the effectiveness of Ofcom's operation; it is the code, where the necessary terms will appear, that we need to address. That is why, if the Bill becomes an Act, we need a term which is sufficiently broad for the code to have the flexibility, over time, to define itself with some precision according to the needs of our community. The concept must be wide enough to address any future concerns
Lord Lester of Herne Hill: My Lords, I am very grateful to the Minister for giving way. Will he agree, however, that in view of the impact on freedom of commercial speech that regulation has in the context of, for example, the European Convention on Human Rights, reasonable legal certainty has to be achieved, either on the face of the Bill or in a legally binding code? Is not the virtue of the amendment that it achieves greater legal certainty than the very vague word that is there?
Lord Davies of Oldham: My Lords, I hear what the noble Lord says and treat it with respect, as I always do. But we consider that the term "harmful" in the amendment might well be open to the same problem of being difficult to define legally. If we relied upon "harmful" to deal with the watershed, we might have great difficulty in establishing the legal certainty of just how "harmful" a programme was in relation to whether it came before or after the watershed.
However, as in the 1990 Act, the Bill provides for the development of a code after consultation. It is the code which provides the clear rules and the regulatory certainty which is necessary. The three words in the amendment appear in the current codes which will be inherited by Ofcom. They could continue to form the core of any new codes developed by Ofcom or a co-regulatory body. As my noble friend Lord Gordon of Strathblane indicated in Committee, these words have indeed provided some regulatory certainty for a number of years. Nothing in the Bill prevents them from continuing to form the core of Ofcom's codes, but they do not necessarily justify all that is in the codes. That has not needed to be tested because the statute does not limit the codes to "misleading, harmful or offensive" matters.
We therefore cannot be confident that these words would provide a sufficiently secure basis for the regulation of broadcast advertising. If the amendment were accepted, Ofcom could be subject to challenge if it could not prove that the advertisement was "misleading, harmful or offensive" ultimately to the satisfaction of a court.
Our policy, therefore, is to roll forward the wide scope of the 1990 Act, with detailed rules set out in a code produced, of course, after wide consultation. I can assure the House that the Independent Television Commission and the Radio Authority have discussed these provisions within the department. They recognise the need for the wide scope of the 1990 Act and fully support the Government's policy of rolling that forward in the Bill.
I accept that we need to discuss the word "unsuitable" further, and we are prepared to have discussions with colleagues before Third Reading. However, I should explain why it appears in the Bill. It is because the Bill is structured differently from the 1990 Act. It sets out the high-level principles applying to broadcasting standards. These apply to advertisements in the same way as they apply to programmes.
The point has also been made that "unsuitable" might be misinterpreted by interest groups, but that is the problem with "harm" too. If it were to have the wide meaning necessary to maintain even the current levels of regulation, it would be open to the same challenge. But the regulator cannot regulate advertising on a whim. The current statutory provisions provide full regulatory flexibility, but the regulator has to come to a reasoned and defensible view on what should or should not be allowed. That is tested in the statutory consultation on the specific provisions of a draft code. The Bill's provisions require exactly the same and make it no easier than now for the regulator to act on inadequate evidence.
However, we are prepared to consider alternative ways in which to achieve the policy, which is not one of a clash of principles. We want to ensure that we have the chance to discuss matters further. I cannot promise to succeed but we shall certainly examine whether there is any scope to make further progress.
In summary, the draft Bill simply places the current statutory scope for broadcast advertising regulation within the new structures of standards objectives. It provides for clear regulatory rules to be defined in codes so that industry has regulatory certainty and knows where it stands. It provides a robust base for current standards to be rolled forward and for flexibility to address future concerns so that viewers' and listeners' interests are safeguarded. The amendments would not achieve that.
For those who take the view of the right reverend Prelate that there are anxieties about the Government's position as enshrined in the Bill, we are prepared to have further discussion. However, we do not believe that the case has been made by those who have presented the arguments for the amendments today. We shall seek to make progress on the matter.
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