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The noble Lord, Lord Roberts of Conwy, took the opportunity to expand the critique of our legislation with regard to Wales. I do not shy away from that or from criticism. It is perhaps a little unfortunate to say that this measure has taken rather a long time. It is challenging, and I note the Welsh Affairs Committee's conclusion that we need to keep an eye on progress. We want to see the translation of the will of the Assembly, where it is acceptable to the United Kingdom Government and the Secretary of State for Wales. We want to see the transfer of such powers done as felicitously and speedily as possible. I accept the noble Lord's point on that. The Government will respond to the committee's criticism in due course. I do not have a categorical response to give him, but the Government are all too well aware of these criticisms and will produce their response in due course. The Secretary of State for Wales made clear that there were teething troubles with the LCO process early on. We hope that

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those matters have been resolved and that the process is working a great deal more smoothly than it was at one time.

I heard the noble Lord's cry for clarity with regard to the law. He is right; we should not forget that our fellow citizens have to wrestle with the law too, and they are not involved professionally as often as we are. Clarity is of the greatest importance because if people do not understand the law, they cannot use it. However, that does not alter the fact that there are complexities, as the noble Lord, Lord Roberts of Conwy, is all too well aware. He referred to the environmental order that we dealt with last week. An element of complexity in that was that it had a cross-border dimension, which was bound to introduce difficulty with regard to the law. The provision of services across the border is bound to make things more complex. The noble Lord is right, and we maintain that we have striven to make this order as clear as possible. We make exceptions only where they are necessary because there is no doubt that any detailed exceptions from legislation that itself is difficult enough to understand will raise real problems for people interpreting them. In certain parts of legislation, but not in this, they will raise issues from time to time.

Who is better qualified than the noble Lord, Lord Roberts of Conwy, to criticise the legislative process? After all, he spent a fair bit of time producing complex laws on the relationship between England and Wales. I shall take a little gentle criticism, but only because it is always expressed in the most congenial way, and I accept it on that constructive basis.

Motion agreed.

Communications Act 2003 (Disclosure of Information) Order 2010

National Assembly for Wales (Legislative Competence) (Health and Health Services and Social Welfare) Order 2010
3rd Report from the Joint Committee on Statutory Instruments

Considered in Grand Committee

5.10 pm

Moved by Lord Davies of Oldham

Lord Davies of Oldham: My Lords, the order is a small but important part of the arrangements that we are putting in place to ensure the effective implementation of the European Union's audiovisual media services directive in the United Kingdom.

The regulations that we made last autumn to implement the directive in the UK gave Ofcom the responsibility for ensuring that on-demand programme services meet the minimum standards and requirements for such services. They also allow Ofcom to designate other bodies to act as co-regulatory authorities for these services and to carry out some of the regulatory functions. Ofcom has already consulted on proposals to designate co-regulatory bodies, and we hope that it will be in a position to make an announcement about designations shortly.

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Co-regulatory bodies are defined in the regulations as "appropriate regulatory authorities". This order brings them within the disclosure of information provisions of the Communications Act 2003, Section 393 of which places restrictions on how information about particular businesses can be shared. There are some exceptions to those restrictions, and this order makes use of one of them by designating any co-regulatory body as a "relevant person" for the purposes of information-sharing. This will allow Ofcom to share relevant information with the co-regulatory bodies, and allow the co-regulatory bodies to share information with each other, without having to go back to the business concerned. This ensures that they can carry out their functions effectively and efficiently. It means that they do not have to request the same information more than once, and that businesses and service providers will not have to provide that information more than once. It also helps to reduce the scope for delays in investigating and resolving complaints about on-demand programme services.

As I said, the order is a small but important part of the arrangements to ensure the effective implementation of the audiovisual media services directive. I note that Members of the Committee are well versed in the Communications Act 2003 and understand how this power follows on from that Act and is limited. Accordingly, I commend the order to the Committee.

Lord Luke: My Lords, I do hope that I will not speak for longer than the Minister, but I might speak for a minute or two.

We on these Benches thank the Minister for introducing this statutory instrument, which implements the European Union's audiovisual media services directive in the United Kingdom. The SI gives Ofcom the responsibility for ensuring that on-demand programme services meet the minimum standards and requirements, and allows Ofcom to designate other bodies to act as co-regulatory authorities for the services and to carry out some of the regulatory functions, as the Minister has said. This is a straightforward and logical arrangement. However, there are some small points that I would like to be clarified further.

Given that this policy is due to be enacted this month, will the Minister tell the Committee who the co-regulators will be and what kind of operational arrangements Ofcom will have with its co-regulators? How it is envisaged that they will all keep each other informed, and what will happen if Ofcom and one of its co-regulators happen to make contradictory decisions on an issue at the same time? Will the Minister clarify the Government's definition of video on demand? Will it include online services such as YouTube? What provisions are in place to manage watershed restrictions on video on demand to bring it into line with conventional television rules? What guidance or warnings will be made available to parents so that they can understand the workings of video on demand and best protect their children?

Finally, I am interested to learn how video-on-demand services will be regulated in a converged and global communications world. The key point about the audiovisual media services directive is that a broadcaster regulator in the UK is free to broadcast throughout

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the EU. Although individual member states can request the UK Government to ask that broadcaster to comply with their broadcasting rules, which might differ from ours, they cannot compel, nor can the UK Government compel, the broadcaster so to do. This is an interesting loophole, which obviously becomes an enormous gap when one considers broadcasters outside the EU which communicate through the internet. How do the Government plan to tackle such a loophole?

5.15 pm

Lord Clement-Jones: My Lords, I commend the Minister on the admirable brevity of his introduction. If it were not for the fact that I have had quite enough exercise today, I, too, would have brought in my copies of the Communications Act.

As the Minister indicated, this is the tail end of a process of implementation of the Audiovisual Media Services Directive 2007 and the Audiovisual Media Services Regulations 2009, which relate to on-demand services. We on these Benches agree that the current order is consequential on the 2009 regulations. We also agree with the so-called coregulation solution that has been put forward, which was enshrined in the 2009 regulations. It is both pragmatic and sensible. We agree with the noble Lord, Lord Luke, that it would be helpful to learn from the Minister whether, as the consultation has proceeded, the Government still have in mind the same scheme that was outlined in the Explanatory Memorandum to the 2009 regulations. The scheme envisaged a new coregulation body, with the ASA being responsible for advertising, iPlayer regulated by the BBC Trust and S4C regulated by what is described as the "Welsh Authority". It would be useful to know whether that scheme is what is anticipated.

I was interested in what the noble Lord, Lord Luke, said about the definition of on-demand services. I did not envisage that YouTube would be included. The description in the Explanatory Memorandum to the 2009 regulations did not include that. It would be interesting to know if that was intended, in particular when it comes to the regulation of advertising. If you include YouTube, what about Facebook and other social networking sites that provide the ability to download material on demand? However, in general we believe that the order should have a fair wind, and that it is the logical addition to the 2009 regulations.

Lord Davies of Oldham: My Lords, I am grateful to both noble Lords for raising pertinent questions. I confirm that we are proceeding broadly in line with the 2009 scheme. However, I am not in a position to do what the noble Lord, Lord Luke, hoped that I would; namely, to state what the coregulatory bodies are. I am sure that the noble Lords, Lord Clement-Jones and Lord Luke, are aware that the Advertising Standards Authority is an important consultee on this matter, as is the Association for Television On-Demand. However, it is for Ofcom to designate coregulatory bodies. There is no obligation for it to designate them if it does not wish to do so or if it cannot find suitable bodies that would be competent or effective in their roles, but it is highly likely that it will. We have indicated that we

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know the bodies that are likely to play a part in this. Ofcom will designate co-regulatory bodies when it is satisfied that the bodies it intends to designate are ready and able to carry out the regulatory functions concerned. Those discussions are ongoing, so I cannot be absolutely definitive.

The industry is broadly content with the order, and we have worked closely with it to develop the arrangements for regulating on-demand programme services. The industry expects it to be efficient, but as light-touch as possible, which are the objectives for which we will strive.

The noble Lord, Lord Clement-Jones, and, possibly, the noble Lord, Lord Luke, raised YouTube and asked why it is not covered by the regulations. We can regulate services under the directive only if they are established in the UK. Let us remember that we are working under the European directive. Services have to be established in the UK; YouTube is based in the United States of America and is outside our jurisdiction. We are not in a position to regulate on that, which is why that element is missing, as the noble Lord, Lord Clement-Jones, rather suspected.

However, we envisage further legislation shortly to complete the arrangements for the regulation of on-demand programme services. They do not directly implement any of the provisions of the directive, but they will help to ensure effective implementation and regulation. We still have more to do, but this order represents an important step forward.

On the general question of regulation, the noble Lord, Lord Luke, referred to the watershed and how we protect children from unsuitable online material. We are determined to ensure that our children are safe and protected from such material. The directive goes some way on this for the services that it covers, but we will have to keep this under constant review. If further measures are required, we will bring forward proposals in due course. I want to assure the noble Lord that the Government are concerned about those issues he outlined in his contribution. Our debates on the Digital Economy Bill are probably also informed by these discussions. As far as young people are concerned, security for them from material that can be harmful is a very important part of the Government's consideration on these matters. I commend the order to the Committee.

Motion agreed.

Infrastructure Planning (Decisions) Regulations 2010

Considered in Grand Committee

Infrastructure Planning (Decisions) Regulations 2010

4th Report from the Joint Committee on Statutory Instruments

5.22 pm

Moved By Lord McKenzie of Luton

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The Parliamentary Under-Secretary of State, Department for Communities and Local Government & Department for Work and Pensions (Lord McKenzie of Luton): My Lords, these regulations are of a technical nature and, while they are straightforward and uncontroversial, serve an important function. They ensure that decisions taken by the Infrastructure Planning Commission, the IPC, will be taken on the same basis that planning decisions are taken now.

Perhaps I may provide some background: as noble Lords will be aware, the Planning Act puts in place a new single consent regime for nationally significant infrastructure projects-NSIPs. It creates a single integrated consents regime for NSIPs-including large power stations, ports, road and rail-replacing eight separate and often overlapping regimes. A new independent body, the IPC, will be responsible for examining applications for NSIPs and, where a national policy statement-an NPS-has been designated, taking decisions on applications. The IPC will able to accept applications for the energy and transport sectors from 1 March this year. The Act provides for the Government to produce NPSs to provide clarity on the national need for infrastructure and to set the policy framework for IPC decisions and ensures a greater focus on pre-application consultation to ensure that promoters address the specific issues raised by each NSIP proposal before submitting an application.

In the past year, the Government have worked to develop the various packages of secondary legislation and guidance necessary to implement the new regime to ensure that everything that is needed is in place on 1 March, when the IPC begins to receive applications. The first two of these packages, which relate to consultation on NPSs and pre-application and application procedures, are already in force. The regulations under consideration belong to the third package, which relates to the examination of applications, although this is the only affirmative instrument in the package.

Turning to the detail, as I said, the regulations ensure that important matters relevant to decision-making on planning applications under the present planning regimes continue to apply to decisions under the Planning Act. Under planning law, there is a range of matters to which decision-makers-whether that is the Secretary of State or the local planning authority-must currently have regard when taking decisions on applications. These cover a range of important issues, including protection for our national parks, helping to ensure the safe use of hazardous substances and ensuring that biodiversity is given proper consideration. They are just a few items in a much longer list. In most cases, these matters will automatically apply to decisions made under the Planning Act.

However, two categories of matter will not. The first category is drafted in such a way that it will not automatically apply. In many instances, the requirements already apply to "any Minister of the Crown" and "any public body". One such example is Section 17A of the Norfolk and Suffolk Broads Act 1988. It requires any public body, which will include the IPC, to have regard to the purposes of the Broads where proposals might affect the Broads. Because the IPC counts as a public body for these purposes, the requirements drafted

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in this way will already apply to decisions made under the Planning Act, whether by Ministers or the IPC, and do not need to be specifically applied.

However, in contrast, Section 40(2) of the Natural Environment and Rural Communities Act 2006, requires a Minister of the Crown, a government department or the National Assembly for Wales, when carrying out their duty to conserve biodiversity, to have regard in particular to the 1992 United Nations Environment Programme's Convention on Biological Diversity. Since this duty is binding on Ministers, who currently decide most applications that will now fall to the IPC, it is appropriate that this duty should also be binding on the IPC. However, because the duty applies only to the specified bodies, it needs to be specifically applied to the IPC through these regulations.

The second category accounts for most of the matters specified in this order. As noble Lords will be aware, the Planning Act puts in place a single consent regime, which enables promoters to apply for one consent in respect of infrastructure development, where previously they may have needed to apply for several. The Act does this in two ways. It removes the requirement to obtain certain consents that were otherwise needed, which are set out in Section 33 of the Act, and in a few cases permits decision-makers to grant deemed consent.

However, where those consents include a requirement to have regard to one of the important matters mentioned earlier, it is vital that we ensure the protection provided is not lost. This SI therefore reapplies the tests contained in those consents to ensure that decision-makers have proper regard to them. For example, Section 33 of the Planning Act removes the requirement to obtain listed building consent under Section 8 of the Planning (Listed Buildings and Conservation Areas) Act 1990. Section 16 of that Act requires decision-makers, in considering whether to grant listed building consent for any works, to have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest that it possesses. Since the need to obtain consent is removed, the protection provided in Section 16 would also be lost if it were not reapplied by this statutory instrument. That is the essence of this short but important statutory instrument.

In closing, I want to set this in the context of the wider planning system. The requirements to have regard to certain matters exist across the planning system to ensure that decision-makers take proper account of the effect of their decisions on certain areas, such as national parks, biodiversity, and so on. Since the issues are cross-cutting, it is important that there is consistency across the legislative framework applying to decision-makers under both the Planning Act and the wider Town and Country Planning Act system. A change to one would necessitate a change to the others. It is therefore a basic principle of these regulations that they should not seek to add or remove elements of this framework. They should ensure that the status quo is maintained, and where that status quo changes in the wider context-where the requirements are changed, added to, or removed-these regulations will need to be amended to reflect that. I beg to move.

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Lord Bates: My Lords, the regulations are straightforward but I have a few questions on which I seek clarification from the Minister for the record. Our position was set out by my honourable friend Stewart Jackson when the matter was considered in Committee in another place. We have serious concerns about the democratic deficit in elements of the current establishment and proposal of the Infrastructure Planning Commission. Our position on that is clearly set out on the record.

Without adding to that, the wording used by the Minister in introducing these regulations intrigued me. Effectively, he was suggesting that the regulations are necessary to preserve certain things as they are, and that things would not be as they are without the regulations. He spoke of ensuring the status quo, how it was vital that protections which exist in the present framework continue in the future and that things must continue as they are. Surely that should have been addressed when the primary legislation was before the House. That would have seemed a sensible place in which to ensure that all the safeguards were put in place. Is the Minister saying that in retrospect the primary legislation was deficient and that it lacked certain guarantees? If so, that raises concerns that are widely felt about the speed of legislation going through and the lack of rigour that is applied to its scrutiny.

A couple of points are outlined in the Explanatory Memorandum rather than in the statutory instrument itself. Paragraph 7.1 states:

"Decisions will be based primarily on the National Policy Statements. The examination process will be streamlined".

We all welcome that. It continues:

"Questioning at hearings will be led by commissioners rather than being adversarial".

If it is the Government's view that consideration of planning applications that might have profound changes for local communities should not be conducted in an adversarial way, that will undermine the process of our parliamentary democracy, not to mention our judicial systems which are based on the principle that people should argue for or against their case with vigour and clarity. It is then for an independent group to decide. I think that people would be very wary of anything that is designed to suggest that there might be some kind of behind-the-scenes stitch-up for planning purposes.

I have a similar question about the point made in the paragraph above, which mentions,

"A new duty on promoters to ensure that proposals are properly prepared".

Does that mean that the previous legislation did not require proposals to be properly prepared? That is quite an odd way of phrasing things.

Finally, the Government are always very eager to declare their openness to hearing other points of view, although presumably, given the regulations, provided that such views are not put in an adversarial way. When we click on the hyperlink to the archived consultation, we are told that consultations are welcome and that some 75 pieces of relevant legislation were consulted on. We then find that, of those 75, the only two pieces of legislation to which paragraphs 8.2 and 8.3 of the Explanatory Memorandum refer were

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considered and rejected. I have a simple question for the Minister to which I would be very grateful for a response. What changes were made to the regulations as a result of the consultation on them and on the other 75 pieces of legislation and the responses to them?

Those are my only questions, and I reserve the right to ask them again in a non-adversarial way should some of them not be answered. I thank the Minister for presenting the order.

Baroness Hamwee: My Lords, I am standing in for my noble friend Lord Tope. He would have liked to be here as he is learning fast about the Infrastructure Planning Commission.

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