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Lord Phillips of Sudbury: My Lords, I want briefly to make a point referred to rather vividly by the noble Lord, Lord McIntosh, when we last debated the Bill; namely, that the extent to which tests of the complex and rubbery kind which are implicit in his Amendment No. 85, which introduces the plurality test, can be the subject of intense legal bombardment by well-financed and resourced would-be litigators, should not be under-estimated by this House.

While undoubtedly the concession made previously and the tabling of the plurality amendment is most important, I believe that the rigour which would be added to it by the amendment in the name of my noble friend Lord McNally would carry the position much further. Amendment No. 85, introducing the plurality test, talks about,

Media lawyers will lick their lips at the extent to which that will give them endless prospect for muzzling and befuddling the poor old lawyers who will be working for Ofcom.

I invite your Lordships to look at some of the other great regulators we have set up in the past 20 years. Let us take, for example, the Serious Fraud Office, which in the past five years has brought only a single prosecution for insider trading while everyone in the City knows that it is an hourly and daily event. Why? Because the criteria for the bringing of a prosecution and the range of legal guns levelled against the authorities if they try to prosecute are such as to make an insider trading prosecution a farce. I put that point to the House as a practical consideration.

Baroness Howe of Idlicote: My Lords, I also wish to support the amendment of the noble Lord, Lord McNally. There are two points that I wish to make, both of which have been made already but they need emphasising. The noble Lord, Lord Crickhowell, pointed to the two tests that already exist and have been reaffirmed by the government amendment—the test of 20 per cent for both ITN and Channel 3. There really is no argument why the same restrictions should not apply to any would-be owner of Channel 5.

The second point is one that other noble Lords have expressed. It is about the involvement of Ministers. As noble Lords will know, I have always had a great concern about the telecommunications and contents side coming together—the techies and the fluffies—because there could well and truly be conflicts of

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interest. Naturally, the Minister for Trade and Industry will be the one to be consulted. However, there are two Ministers who are to be responsible for this Bill. It is important to know that both would be consulted before any decision was taken.

Having said all that, I agree entirely with the noble Lord, Lord Lipsey. We have had a tremendous response from the Government and we all applaud that. It is this continued worry that we wish to reinforce by testing the amendment of the noble Lord, Lord McNally.

Lord Borrie: My Lords, I would like to speak against the amendment of the noble Lord, Lord McNally, despite the fact that I admire his work in this field. As he made a comment on the strength of Government Whips, I add to my admiration the way in which the Liberal Democrat Whips have gathered such a splendid force behind him. Not for the first time, the Liberal Democrats are extremely good at filling their Benches in support of this important amendment.

This Bill, which will be passed in the very near future, is one which will stand for a considerable period of time. If I concentrate on Amendment No. 131 which specifically deals with Channel 5 licences, it says anyone having a national newspaper market share of 20 per cent or more shall not be allowed to acquire Channel 5. That is concentrating on the now and near future. What my noble friend Lord Puttnam, the noble Lord, Lord McNally and others of the pre-legislative scrutiny committee were really concerned with was to make the Bill future proof. They were not just concerning themselves with the temporary moment. They were to consider life as we go ahead in which there will be huge numbers of channels of various kinds—terrestrial, satellite and others whose names we do not yet know. Things will not be the same in five or 10 years.

If we look at the amendment more closely, it is such an inflexible position to say 20 per cent. While that may be a significant figure at the present time, who knows what will be the right figure in years to come? Who knows whether it is desirable that an owner of 19 per cent should be allowed freely to acquire Channel 5? The noble Lord may say if anybody does not fit the exact criteria of Amendment No. 131, then he may come within the plurality test which is to be introduced by the government amendment. It seems to me that the plurality test which has been moved before by my noble friend Lord Puttnam, but criticised by others today because of ministerial involvement, is much more future proof, much more sensible to put into a Bill which we hope will last for many years.

I cannot see a government of any complexion being particularly keen to have a communications Bill of any kind for years to come because of the difficulties of this one. Of course the plurality test involves Ministers because as noble Lords know, it fits into the structure of the Enterprise Act 2002. But that is not to diminish the role of the principal adviser on these matters—Ofcom. Its views would be known and made public. No government Minister with any sense, whether in an existing or future government, will override the

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carefully reasoned advice of Ofcom—assuming it is carefully reasoned. I do not believe that Ministers will go off on a wild tangent of their own in a matter of this sort.

My noble friend Lord Puttnam, the noble Lords, Lord McNally and Lord Crickhowell, and other noble Lords have promoted the plurality test for months. It is now shortly to be proposed by the Minister. This is something which can cater for all situations, for the future as well as the present. Having this extraordinarily inflexible amendment, which the noble Lord, Lord McNally put forward, is not necessary.

3.45 p.m.

Lord Maclennan of Rogart: My Lords, perhaps I may begin by saying to the noble Lord, Lord Borrie, that I am not here because anyone suggested that I ought to be here. I am here because his suggestion that this very large Bill could be made future proof in the way he suggests, is certainly not borne out by experience of earlier attempts in 1990 and 1996 to regulate cross-media ownership for all time. I do not imagine the present Bill will have any greater success in longevity. What is quite clear from my recollection of those Bills is that if one seeks to set up a framework to protect diversity, it is necessary to have figures which the noble Lord characterises as arbitrary. Percentage wise, it has been done before and no doubt will be done again. The nub of the opposition has not come so much on the merits of the particular amendments before us as the suggestion by the noble Lord, Lord Lipsey, that somehow if we were to carry these amendments we would be chancing our arm too far, pressing our luck too far. The suggestion is that the response of the Government might be less rational as a consequence.

What has characterised the debate on this Bill has been the degree of dialogue between the Government and many other interested parties. With a Bill of such major importance and of such gargantuan extent, it seems entirely appropriate that that should be the approach. I recognise that the time available to consider these matters has been very great, but I do not believe it has been too much or that the Government are likely to abandon the approach that they have taken which is to consider these matters on their merits. As my noble friend Lord McNally said, this amendment was not put forward by the Puttnam committee as an alternative to the plurality clause. As I read the report, this was seen as a belt and braces measure necessary because of the importance of this issue. I cannot think that at this stage the judgment of what we would be doing if we carried my noble friend's amendments and that of the noble Lord, Lord Crickhowell, would be any different in another place, where there is, properly, considerable unease about media concentration, not just now, but in the long term. Many of those engaged in this debate, and who will be engaged in further consideration of the Bill, took part in debate on the 1990 and 1996 Bills. The noble Lord, Lord Corbett, who participated in those debates, expressed concern about these matters at that time. I see no reason to believe that the

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judgments of principle made then would be any less focused today. I hope that we will not shy away from our duty to provide the best framework possible and that we will take the advice of the noble Lord, Lord Puttnam, and his colleagues in supporting my noble friend's amendments.

Lord Gordon of Strathblane: My Lords, I, too, support the amendment of the noble Lord, Lord McNally. I concede that, at worst, it is a belt and braces measure and that the clause might not be necessary if the plurality test is strong enough. However, in a matter as important as media ownership, which is pivotal to the future of democracy in this country, I would rather—save in the presence of the noble Lord, Lord Peyton—add a clause than take a chance on the issue not being caught. Given that there are already 400-odd clauses, I do not think that the rainforests will be endangered by the use of extra paper.

I agree with the noble Lord, Lord Maclennan, that the amendment addresses a subject different from the plurality test. It addresses a specific. At Second Reading, I said in passing that I cannot see why people are treating Channel 5 differently from Channel 3; after all, both are terrestrial television services licensed by the Independent Broadcasting Authority. Why are we treating one differently from the other? Two reasons can be alleged. The first is audience size. Surely we all recognise that that could change. Channel 5 could end up with a bigger audience, particularly allied to media promotion from a national newspaper. Channel 3's audience could well decrease, so that argument does not hold water.

The only argument that bears examination is that, at present, Channel 5 does not cover the whole of the UK. At present, the channel covers over 75 per cent, but that could change. Why are we treating Channel 5 so much differently from Channel 3? If it is logical to impose restrictions for Channel 3, it is also logical to impose them for Channel 5. This clause is a specific. It is not an alternative to the plurality test; it is an addition to it to ensure that there is no possible doubt about what noble Lords mean. At the moment, I support the amendment.

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