Select Committee on European Union Fortieth Report


Letter from the Chairman to Shaun Woodward MP, Parliamentary Under-Secretary of State for Creative Industries and Tourism, Department for Culture, Media and Sport

  Your Department's Explanatory Memorandum (EM) dated March 2006 was considered by Sub-Committee G on 11 May.

  We understand from your officials that things have moved rather rapidly since the EM was written and that a compromise revised text of the Recommendation may be considered for political agreement by the Council on 18 May. We are told you may be considering whether to ask for the scrutiny reserve to be lifted to enable the Government to vote in favour of political agreement at that meeting.

  That places us in some difficulty. Above all, we still do not know whether you are content to support political agreement at this stage and, if so, why.

  Nor are we confident that we are entirely clear what will be on the table for consideration at next week's Council meeting. The EM did not indicate any particular urgency when it was sifted for scrutiny on 27 March and it was not until last week that we were sent all the supporting documents to enable it to be properly considered. Even so, we are not sure that we have the full picture of what this Proposal entails and the background to the present position.

  The EM referred to the Government's reservations, which were based on extensive consultation of UK stakeholders, about the earlier text of the Proposal. It reported that, at that stage, the Government was still dissatisfied with the compromise text which the Commission had produced following amendments proposed by the European Parliament (EP). According to the EM, this document was too long, detailed and prescriptive for a Recommendation and painted a very negative picture of the internet and the media generally.

  In particular, the EM noted Government objections to references in an EP amendment to the need to enact legislative measures to protect minors over the content of all audiovisual and information services. The Government considered that this would be inappropriate in a Recommendation and that Members States should be left to decide for themselves how best to deal with these problems in the light of their own circumstances, national traditions and practices. The EM also mentioned other Government objections over how to deal with portrayal of the sexes in the media and advertising and over media literacy, although these were not fully explained.

  But the EM reported that negotiations were continuing and that the Austrian Presidency were trying to secure removal of the references to legislative measures. It also mentioned possible linkages, which it did not fully explain, to the draft Television Without Frontiers Directive (15983/05) which is currently held under scrutiny by Sub-Committee B. It suggested that the above Recommendation might be preferable, despite its shortcomings, to the potentially damaging regulatory controls which apparently might result from the Directive.

  Since then your officials have done their best to explain by telephone and by supplying additional documents how things have changed in further negotiation. Although improvements have seemingly been made, it is not entirely clear to us from the rather complex additional documentation which was produced on 9 May what those improvements are, how they relate to the original text and what the full implications of the revised text will be if it is approved at next week's Council.

  We note, however, that the text still contains seemingly objectionable references to legislative measures and that the Government still has other objections to the Recommendation, although again we are not entirely clear what they are.

  More surprisingly, in view of those objections, we understand that officials are now recommending that, since the UK is almost certain to be outvoted by QMV at Council, it would be tactically wiser to go along with the unsatisfactory compromise text in the hope that it would improve UK leverage when decisions have to be taken on the Television Without Frontiers Directive.

  We are unable to comment on that assertion, not least because it has not been fully explained to us, and it has not been possible in the time available to consult Sub-Committee B about the implications for the Television Without Frontiers Directive.

  We also need more time to consider the legal implications of the references to legislative measures in the Recommendation, which has apparently been raised in correspondence with the Commons Committee which we do not appear to have seen.

  We do try to be helpful to the Government whenever we can in clearing items from scrutiny at short notice where urgent Council decisions are needed and clearance can be justified. But, in this case, I regret to say that the notice is much too short and the information available insufficiently clear, to enable us to take such a decision with confidence, even if we were sure that it was what you wanted. The scrutiny reserve is therefore maintained and we will expect you to make that clear in discussion at next week's Council.

  We look forward to a full report on what happened at the Council meeting and how the Proposal stands as a result.

12 May 2006

Letter from Shaun Woodward MP to the Chairman

  Thank you for your letter of 12 May about this Recommendation, following the Explanatory Memorandum which we submitted in March and the contacts which officials here had with your own staff early in May.

  I hope I may first of all say that we regret any difficulty or confusion which there may have been as a result of the approaches which DCMS officials made. This was a complicated issue and there was not, as you say, a lot of time. For reasons which I expand on below we felt that there might be an argument for the UK—despite the reservations which we all have about this document—to vote in favour of it at the Council of Ministers in Brussels on 18 May.

  Our officials felt that it was worth discussing this with yours. But we do of course entirely accept the Committee's absolute right to reach its own judgement on these matters. When I attended the Council, I abstained from voting on this Recommendation and made it clear, as you have suggested, that it had not passed scrutiny in our Parliament.

  As compared with the document on which James Purnell commented in his Explanatory. Memorandum in March, the 18 May Council of Ministers discussed a revised text of the Recommendation, attached to this letter. The changes which had been made reflected discussion that had taken place since January among the Member States and between the Presidency, the Commission, and the Rapporteur.

  There had been some progress, though this was as you will know a difficult dossier for the UK and we were not been able to achieve as much as we should have liked. So far as the specific points which James Purnell made in the Memorandum are concerned, the dubious assertion that "legislative measures" needed to be taken to protect minors was still part of the text.

  However, the Parliament's reference to "appropriate measures" being taken in relation to the portrayal of the sexes in the media has been removed, and I am glad to say that Annex II, on actions in relation to media literacy, was much shortened and improved. It conveys a much more positive message than before and no longer contains the redundant material to which paragraph 2.22 of your Report quite properly drew attention.

  But many of the UK's objections to this Recommendation remained. In the event, the only speakers in discussion of this item at the Council on 18 May were the Dutch Minister, the Slovakian Minister, and me. The Minister from the Netherlands tabled a Declaration, which I am attaching to this letter, setting out some important objections to the Recommendation.

  As James Purnell's Explanatory Memorandum had suggested (at paragraph 26 onwards) there is a possible link between this Recommendation and the Commission's proposals for amending the Television Without Frontiers Directive (TVWF). We feet that there could be some merit in trying to explore with other Member States and the Commission the possibility of using a Recommendation instead of a Directive to cover the online, non-scheduled audio-visual media services which the draft revision of TVWF would cover.

  If we do that, we will want to argue for self-regulation for these services, and self-regulation is of course much better delivered by a Recommendation than by a Directive. There might then be an argument, though it may not necessarily be a very strong one, for the UK being sufficiently in favour of this Recommendation to have voted for it, despite misgivings. That might make it easier for us to support, or promote, any further Recommendation we wanted in a credible way.

  In my Council contribution on the Recommendation on 18 May, I therefore said that the UK supports a lot of what is in the text, endorsing in particular its emphasis on media literacy, on the importance of protecting children and young people from harmful media content, and the possibility of using industry self-regulation to achieve these objectives.

  I made it clear however that the Recommendation is too long, detailed, prescriptive and negative. I abstained from the vote on the grounds that the Recommendation had not passed Parliamentary scrutiny in the United Kingdom, and formally associated the UK with the Netherlands Declaration.

  But we were as you will know in a very small minority on this dossier, which fell of course to be determined by Qualified Majority Vote. Every other Member State except for Slovakia, which also abstained and supported the Dutch Declaration, voted favour of it. Even Holland, despite its Declaration, voted in favour. The Council reached political agreement on the text without amendments.

5 June 2006

Letter from the Chairman to Shaun Woodward MP

  Thank you for your letter dated 5 June which was considered by Sub-Committee G on 29 June.

  We are very glad to know that, quite properly, you abstained from voting on this Recommendation at the Council meeting on 18 May because Parliamentary scrutiny clearance had not been given. We are also grateful for your apology about the confusion over the paperwork which meant that, when a last-minute decision was needed before the Council meeting, we were not able to take one with any certainty.

  Although we are glad to learn that some belated improvements were made to the text in the process of negotiation, we note that the Government continues to have specific objections to some aspects of the Recommendation, as well as finding it generally too long, detailed, prescriptive and negative. It seems a great pity that all the other Member States except Slovakia, including even the Dutch who had their own formal reservations, should have voted for such an unsatisfactory Recommendation.

  In the circumstances, since the die is now cast, we will release the document from scrutiny. But, in doing so, I must stress that we are not satisfied with the outcome. We are still not entirely clear what the final text is likely to mean in practice. Some of your objections were not fully explained in previous correspondence. We also remain puzzled by the seeming inconsistency between the objectives that seek to protect children and control offensive material and the other aim of giving rights of reply. Nor is it entirely clear how the passing of this Recommendation might affect the Government's attempts to moderate the related Television Without Frontiers (TVWF) Directive, which remains under scrutiny by Sub-Committee B.

  Even if the Recommendation turns out not to matter much in itself, important and controversial issues of wider significance lie behind it. We would therefore welcome your clarification of the position regarding the Recommendation and of the Government's overall policy towards those issues, not least to assist our consideration of the TVWF Directive.

3 July 2006

Letter from Shaun Woodward MP to the Chairman

  Thank you for your letter of 3 July about the EU Recommendation on the protection of minors. I am grateful for your confirmation that the document is now released from scrutiny, albeit you continue, like the Government, to have reservations about it. You asked some further questions, in particular about what the passing of this Recommendation will mean in practice and how it relates to the Government's attempts to moderate the Television without Frontiers Directive.

  I am sorry that you felt that it was unclear precisely what the basis was for the Government's objections to the Recommendation, as summarised in our Minute Statement of 16 November 2004. Of course, the final Recommendation is much improved, but some of our concerns remained. First, the recommendation that Member States encourage the audiovisual and online information services industry to avoid all discrimination on various grounds and, especially, to combat such discrimination goes too far in the direction of interfering in editorial policy. That this should be done "without infringing freedom of expression or of the Press" seems to us, as a general proposition, an impossible task, since encouraging the media actively to combat discrimination would require intervention by Government.

  A similar point arises in relation to Article II 4, which effectively requires Member States to endorse a Recommendation directed not at Government action but industry action and goes so far as to suggest that audiovisual and online information services consider effective means of promoting a diversified and realistic picture of the skills and potential of men and women in society. This also seems to misunderstand the nature of online services, which are already diverse and disparate in themselves and accessed unpredictably by users; they cannot be treated as a coherent industry which could meaningfully respond to such a proposition, however apparently well-intentioned.

  Like the Netherlands, we have doubts as to whether the proposition that all Member States impose a right of reply or equivalent remedy in online media is either desirable or enforceable. To the extent that enforcement was attempted, we see this as risking chilling both free speech and the development of these media. In the UK we have a remedy in the broadcast media (the system of adjudicating on complaints of unfairness or unwarranted invasion of privacy by Ofcom—formerly the responsibility of the Broadcasting Standards Commission and before them of the Broadcasting Complaints Commission) which we believe works more to the benefit of members of the public and of journalistic standards than a simplistic right of reply. We also have arrangements under the Press Complaints Commission's Code of Practice which address these issues in a manner more appropriate to the print medium (although it is also applicable to online versions of PCC members' publications). We think that these arrangements address the truly mass media which are by definition those of most concern. There is a huge number of other online information sites to which it would be inappropriate to apply such requirements and where the easiest means of reply might, for example, be the establishment of an alternative online site. As the Dutch emphasised, these matters need to be addressed in ways sensitive to national traditions and culture and this argues for a high degree of subsidiarity. Against this background, the inclusion of the indicative guidelines of Annex 1, which reflect a particular model, are not helpful.

  Turning to the implications of adoption; of course, as a Recommendation, it is not legally binding on Member States and as the UK had serious concerns about it and we abstained from the vote, we do not plan any new measures in the areas covered by the Recommendation as a result of its adoption. The question is more, therefore, whether the Recommendation reveals a direction of policy development at the European level which we would see as unhelpful—the evidence of our discussions on revision of the Television without Frontiers Directive is that it does. Your sub-Committee B is, of course, planning to hold a hearing on the TVWF Directive later this autumn and we shall, if you wish, be able to expand on this point then.

  And, secondly, there is the question of what changes other Member States might make as a result of the Recommendation and whether the existence of the Recommendation might serve to inhibit the development of on-line services in Europe by having a chilling effect on free speech: we think that that is indeed a risk. In short, the Recommendation has proved to be an unhelpful dry-run for consideration of the revised TVWF Directive—the AudioVisual Media Services Directive (AVMS) as we must learn to call it.

  On the positive side, as I was able to indicate in Council, there is much in the Recommendation which lies fully with the grain of Government policy, notably our belief in the importance of media literacy and in working co-operatively at international level to improve co-ordination of action so as to secure a safer Internet especially for children. There is therefore an opportunity to extend initiatives of this kind, working either directly with Member States or through the Commission.

28 August 2006

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