Previous Section Back to Table of Contents Lords Hansard Home Page

Lord McNally: No, my Lords. On cable television there may be four or five specialist music channels playing various kinds of pop. If one channel took over another, its share would increase from 20 per cent to 40 per cent of the channels. Would that worry or trigger any of this legislation?

Lord McIntosh of Haringey: My Lords, I would be very surprised if it would. As I have just been saying, cable and satellite channels are not currently regulated and we would not expect them to raise questions of plurality. However, if someone were to take over all the music channels, I think that the "extreme and rare" case to which I referred might well come into force.

8 Jul 2003 : Column 166

The noble Baroness, Lady Buscombe, referred to the issue of the 20 per cent rule. I think that the point about these amendments in departing from the 20 per cent rule is that it is possible that someone with 19 per cent of the national newspaper market might raise plurality concerns, which is why we did not want cliff-edge regulation. The provision would enable Ministers to distinguish those with larger holdings in the event that the 20 per cent rule was removed. We do not have any plans to remove it, but a well-established plurality test may make removing it a possibility in the future.

The noble Lords, Lord Fowler, Lord Puttnam and Lord McNally, all referred to the Financial Times article, which of course I read. However, I have to say that I and the members of the Bill team do not know who the unnamed source was. Whether anyone is briefing against us, I do not know; it is not a matter on which I can comment. However, on the substance of the article, if the Bill is passed as it stands, yes, investment from non-EEA sources will be possible. However, although the plurality test will allow foreign investments to be made, if necessary they will be considered by the Competition Commission on a case-by-case basis. If they raise concerns, those cases can be targeted. If those concerns are found to be justified, those cases could be blocked. That is the point that we were making last week in the foreign ownership debate.

I should like to say to the noble Lord, Lord Puttnam, how grateful I am to him for his continued involvement in debate on this issue, at any rate over the time that I have been involved in the Bill's passage. I think that he carries a great deal of the credit for what is widely accepted as being improvements to the Bill. I pay tribute to him for what he has done. I agree with him that we need to get the general duties right so that they work with the spirit of the Bill. However, I can confirm that, pending that which has to be done in another place, this amendment, if we agree to it today, is in black and white. It clearly bites right across the range. The Government have taken a big step. I am grateful to the noble Lord, Lord Puttnam, for giving encouragement to the noble Lord, Lord Currie, in the way that he carries out the Bill's provisions.

The noble Baroness, Lady Howe, asked which Secretary of State would be involved. In legislation there is only one Secretary of State. The legislation applies regardless of whether the Department of Trade and Industry or the Department for Culture, Media and Sport is abolished. There will still be a Secretary of State who is responsible for carrying out the law. I do not think that she should place any significance on the fact that the Secretary of State currently responsible for competition policy is the Secretary of State for Trade and Industry, and certainly not on the personalities concerned. However, in so far as there are two Secretaries of State involved in these issues, they will, as they have been doing, work closely on the Bill.

The noble Lord, Lord Phillips, asked about precedents for conditions under the newspaper merger regime. There certainly have been headline cases where conditions have been thought to be ineffectual.

8 Jul 2003 : Column 167

However, there are many other cases where they appear to have worked well. Generally, we think that undertakings will be given effect to in broadcasting licences, which are readily enforceable, as I think is well recognised. Of course newspapers are not licensed, and for newspapers a merger can always be prohibited.

I hope that that deals with the points raised in debate.

On Question, amendment agreed to.

Lord Davies of Oldham moved Amendment No. 3:

    Page 3, line 38, leave out "particular" and insert "all cases to—

(a) the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed; and
(b) any other principles appearing to OFCOM to represent the best regulatory practice.
(4A) OFCOM must also have regard, in performing those duties"

The noble Lord said: My Lords, in moving this amendment I shall also speak to government Amendments Nos. 6, 7, 81 and 82.

We have been clear that Ofcom will be a good regulator. As we are giving it strong powers, that is only right. It is important that as Ofcom carries out its functions the principles of good regulatory practice should apply. We have listened to the concerns vigorously expressed by the noble Baroness, Lady Buscombe, that the provisions in Clause 3(4)(b) and (d) were not sufficiently robust to ensure that the principles applied when they should. We have therefore brought forward amendments to address the concerns that she expressed on that occasion.

We agree with the noble Baroness that the principles of good regulatory practice must always be relevant to Ofcom's decision-making and that Ofcom should apply those principles uniformly. There is to that extent a shade of difference between the application of good regulatory practice and the other matters to which Ofcom should have regard under Clause 3(4). Good regulatory practice is always relevant. The other matters may or may not be relevant in particular circumstances or in particular cases. We are happy to reflect that shade of difference through the structure of the clause.

The amendments retain the current drafting that Ofcom will have regard to the principles. It may be helpful if I explain why that is the right approach. For a person or a body to have regard to a matter when taking specified action is a substantial legal obligation. If they fail to have regard to the matter in deciding what action to take, or whether to take action, or have regard to it in the wrong way, the action which is taken is liable to be held by a court to be unlawful or legally ineffective. It will not be sufficient for Ofcom to consider the principles of regulatory practice for the sake of form only or to consider and reject them for no good reason.

8 Jul 2003 : Column 168

I hope that I have assured the noble Baroness that the phrase "have regard to" is a significant legal phrase and obligation and tightens up the inevitable obligations upon Ofcom. Good regulatory practice should be a consistent and central tenet in Ofcom's operations. I believe these amendments ensure that it will be. I beg to move.

Baroness Buscombe: My Lords, I thank the Minister for responding to our concerns which we raised throughout our debates, beginning with Second Reading, in relation to good regulatory practice. The Minister knows that we have always been concerned about the expression "must have regard". Therefore we are extremely pleased that the Minister listened to our concerns and brought forward these amendments. They are not quite the amendments that we would have liked but I am grateful that the Minister read almost verbatim from a letter addressed to myself dated 30th June which reassured me that we are talking about a substantial legal obligation. I am grateful to the Minister for that. We welcome the amendments.

On Question, amendment agreed to.

5.15 p.m.

Lord McIntosh of Haringey moved Amendment No. 4:

    Page 3, line 39, at end insert—

"( ) the desirability of promoting the fulfilment of the purposes of public service television broadcasting in the United Kingdom;"

The noble Lord said: My Lords, in moving Amendment No. 4, I wish to speak also to Amendments Nos. 27, 32 and 123, and, if the noble Lord, Lord Phillips, will allow me, speak also favourably to Amendment No. 5.

We debated in Committee, and on Report, earlier amendments tabled by the noble Lord which the Government found they could not accept, but I made it clear that we supported the spirit behind the amendments because the Bill aims to secure the future of public service broadcasting in this country.

We now have revised duties for Ofcom and I must say that the noble Lord, Lord Phillips, skilfully responded both to the Government's reservations and those expressed by noble Lords in earlier debates, as well as to the other changes to Clause 3, in bringing forward his revised amendment.

I have argued previously that it was undesirable to refer to public service broadcasting in Clause 3, given the detailed regime established in Part 3 of the Bill, but the proposal of the noble Lord, Lord Phillips, fits very neatly in the new structure of Clause 3 and much improves it. The Government are grateful to the noble Lord for the tenacity with which he pursued his aim.

I should have been happy to accept his amendment, except that there are slight drafting weaknesses which I believe our amendments address. They are simply to tie the Clause 3 duty more transparently and clearly to

8 Jul 2003 : Column 169

the fulfilment of the purposes of public service television broadcasting as set out in Clause 262, and to make consequential amendments to Clauses 227, 268 and 402. I hope that the noble Lord will agree that the government amendments give effect to what he sought to achieve. I beg to move.

Next Section Back to Table of Contents Lords Hansard Home Page