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Baroness McIntosh of Hudnall moved Amendment No. 29:

"( ) that sufficient high quality original drama is broadcast covering a range of issues in a variety of formats;"

The noble Baroness said: My Lords, my noble friend Lord Lea is unable to be in the Chamber at this time and so at his request I have undertaken to be his understudy in moving Amendment No. 29. I hope that noble Lords will not ask for their money back.

Your Lordships will recall that when this issue was raised on Report by my noble friend Lord Lea, his amendment drew support from all sides of the House. That prompted the Minister to offer a discussion on the subject. That discussion took place, and as a consequence, the Minister has now tabled a most helpful amendment, Amendment No. 30.

Both the amendments seek to protect and enhance the value of drama as part of the range of services available through public service broadcasting. We can be very proud of the range, quality and immediacy of UK television drama at its best, and of the people who produce it—our actors, directors, producers, technicians and above all our writers. I am grateful to the Minister for seeking through his amendment to protect their interests and thereby the interests of us all, and I look forward to hearing his response. I beg to move.

7.15 p.m.

Viscount Falkland: My Lords, I spoke to the amendment of the noble Lord, Lord Lea, on Report. I was unfortunately unable to be at the meeting, to which I was invited, but I am delighted that the Government are taking the matter seriously. As a country, we are very proud of our long-established culture of drama and literature, particularly of the way in which that has been taken up in broadcasting. The points were well made—I echo what the noble Baroness, Lady McIntosh, said.

Baroness Buscombe: My Lords, we are glad that the Government have responded to the good debate that we had on Report in relation to the amendments of the noble Lord, Lord Lea.

Lord Evans of Temple Guiting: My Lords, in Committee and on Report, the noble Lord, Lord Lea, moved amendments concerned with the place of drama in the public service television remit in what is now Clause 262. The Government were unable to accept the amendments as they stood. However, we have always made clear our view that drama programming must constitute a key element of the public service remit.

The list of programme types specified in Clause 262 already refers to drama as one aspect of the UK's cultural activity and its diversity. However, reflecting on the concerns raised in the earlier debates we have had a helpful meeting with the noble Lord, Lord Lea and the noble Baroness, Lady McIntosh. In the light of that we have concluded that it is right for the Bill to offer a little more detail as to how the term "drama"

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should be interpreted. Hence this proposed amendment to Clause 262, which makes clear that the term "drama" as used in the clause includes contemporary and other drama in a variety of different formats.

We see this new provision as encompassing both new ideas and new writing in the field of drama. It emphasises, too, the wide range of formats that television drama can take, whether it be one-off dramas, serials or themed series, to mention just a few examples. I should also emphasise once again that drama, along with all the other listed programme types, is covered by the overarching provisions in subsection (4) of Clause 262, which specify the purposes of public service broadcasting. These make explicit reference both to programmes dealing with a wide range of subject-matter and to programmes which embody high general standards with respect to content and quality. So quality of programming and diversity of subject-matter encompass the entire list of programming requirements, drama no less than the others.

The quota regime for original and independent programming by public service broadcasters will encompass drama, together with all the programme types included in the public service remit. I hope the House will agree that Amendment No. 30 provides a satisfactory way of meeting the points raised in the earlier debates. I would ask the noble Baroness, Lady McIntosh, speaking on behalf of the noble Lord, Lord Lea, to withdraw Amendment No. 29, with a view to my moving Amendment No. 30.

Baroness McIntosh of Hudnall: My Lords, I am grateful to my noble friend the Minister for that series of helpful observations. We are concerned to ensure that the reach, diversity, originality and innovation of UK television drama is protected. We can agree that the amendment introduced by the Government will do that. Consequently, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 30:

    Page 236, line 18, at end insert "; and

"drama" includes contemporary and other drama in a variety of different formats."

On Question, amendment agreed to.

Clause 268 [Enforcement of public service remits]:

Lord Phillips of Sudbury moved Amendment No. 31:

    Page 241, line 7, leave out from "serious" to end of line 8.

The noble Lord said: My Lords, the amendment relates to the strength or otherwise of the enforcement powers of Ofcom under the Bill. A great deal of energy has been expended in the House over the balance of the Bill between economic and market forces on the one hand and "cultural goods" on the other—the values and standards that are to be required under the Bill. Unless Clause 268 is equal to the task, all the hopes that the House—including the Government—has

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reposed in the public service broadcasting requirements in what are now Clauses 262 and 263 will be useless.

We on these Benches have one particular and specific anxiety about Clause 268. In order for Ofcom to form an opinion as to whether it can use the enforcement powers under the clause, it has first of all to decide whether the broadcaster has,

    "failed to fulfil the public service remit",

under Clauses 262 and 263.

In addition, if Ofcom decides that there is such a failure, it must come to the opinion that it is a "serious" failure. Then Ofcom has a discretion as to whether in those circumstances it will proceed to enforce its powers. That discretion depends on whether,

    "the situation requires the exercise of their powers".

Further, in reaching that decision, various factors are laid down in the clause to which Ofcom must, "have regard, in particular". One of those is the,

    "general economic and market conditions",

prevailing, which may impact on the failure concerned.

Noble Lords may think, "So far, so weak", but that is not the end of it, because even if all those tests are complied with, no enforcement is possible if Ofcom is satisfied that the failure is,

    "excused by economic or market conditions".

I have checked with the extremely helpful civil servants who are working on the Bill, and their and my belief is that the first test,

    "excused by economic or market conditions",

is particular and specific to the broadcaster that has failed to meet the public service broadcasting remit.

That seems to mean that, if a media group, as is typical, puts a particular broadcaster into a subsidiary and intentionally runs it on an extremely short and limited financial lead, starving it of any resources that it does not need imminently for broadcasting purposes and driving it into a programme of broadcasting that falls foul of the public service remit, Ofcom could not then take enforcement proceedings against that subsidiary company. Ofcom must be satisfied that the failure is not excused by the particular and specific economic conditions of the broadcaster concerned, or it has no further powers under the clause.

I hope that I do not to need to labour the danger of that potential state of affairs. It would allow a single broadcaster to burst through the public service remit net on the grounds of its own incompetence or, more likely, on the grounds that it did not have the wherewithal, having been starved by its parent company. It may not be able to meet the public service remit for that reason. One can think of many examples of a media group purchasing an overpriced television company and then not having the money to put into programming.

One can think of a great many circumstances in which the company concerned will be beyond the reach of Ofcom on the grounds in the clause.

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Therefore, we believe that the clause is seriously weakened unless those words are removed where they first appear in subsection (2). I beg to move.

Baroness Howe of Idlicote: My Lords, I believe that it was I who raised this issue in Committee in the first place. The noble Lord, Lord Phillips, has not only explained the matter much more succinctly than I did but has added other complications that could easily occur if the circumstances that he described arose.

It is absurd that there should be a double let-out, in that the clause says,

    "is not excused by economic or market conditions",

in a specific sense, before moving down to the,

    "general economic and market conditions",

which are part of the general aspects to which Ofcom must have particular regard.

I am absolutely behind the amendment, and am worried that the Government have not seen fit to take note of it and remove what appears to be a bias in favour of the broadcaster under these circumstances.

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