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If the Secretary of State is to appoint a manager to run a registry because it is not performing properly, there is no point in doing so if the manager is not able to do anything about the failure anyway. If the failure is an issue which was not within the responsibility of the registry, what on earth is a manager going to do? What is the purpose in putting in a manager? This provision will allow the use of some other external excuse in order to take over the management of a registry. This is a minor protection, one might say, because otherwise there is no point in putting in a manager.
Lord Lucas: My Lords, if the noble Earl were to broaden his remarks a little to say how big a problem would be required before a manager were put in, I might not have to move my next amendment.
The Earl of Erroll: My Lords, I wish to say something about the amendments of the noble Lord, Lucas, which I fully support for the same reason. When we were discussing the Computer Misuse Act and I wanted to change the word "likely" to "more likely than not", it was explained that "likely" meant "more likely than not" in legal terms. We have the same thing here: how serious is "seriously"? These qualifiers are needed to enable the normal person to understand it. However, if the lawyers assure the noble Lord, Lord Lucas, that "seriously" is implied by the previous mention of the word, that may clarify the situation.
Lord Young of Norwood Green:My Lords, what is proposed here is a further test of a relevant failure by an internet domain registry. The effect of the amendment is that a registry could delay or avoid action by claiming it could do nothing because it was not its responsibility. This would leave the Secretary of State powerless to act where a registry had taken reasonable steps, even when those steps had entirely failed to sort things out. We have already placed on record that we would not expect a registry to act beyond its powers to correct any failure that it could not reasonably address. However, to put this in the Bill would cause difficulties, as I have explained.
The Secretary of State is bound to act reasonably whenever he makes a decision because his decision is always subject to judicial review. I can assure noble Lords that such a decision would not be taken lightly. It is unlikely that a domain name registry would not have the authority and capability, for example, to
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I trust the noble Lord will feel sufficiently reassured to enable him to withdraw his amendment. I shall address the question posed by the noble Lord, Lord Lucas, when we come to Amendment 122.
The Earl of Erroll: My Lords, I find it greatly reassuring that the Minister believes that all Secretaries of State in the future will always act reasonably. I know that they have a duty to do so but, unfortunately, history shows us that this does not always happen.
It would have been nice to have this provision in the Bill because it clarifies matters. Judicial review can be expensive and time-consuming and is not a realistic route to take. Although I realise that it is there as a longstop, it would be a difficult process to go through. I am sad that the Minister will not accept the amendment, but I have no intention of pressing it.
Lord Lucas: My Lords, in order to hear the Minister's reply, I beg to move.
Lord Young of Norwood Green: I thank the noble Lord, Lord Lucas, for giving me the opportunity to address the point that concerns him. It picks up on the point made previously by the noble Earl, Lord Erroll. We believe that the Secretary of State is bound to act reasonably-not because he is always a reasonable person but because, whenever he makes a decision, his decision will always be subject to judicial review. That is the point I have tried to emphasise. Deciding whether the failure of the domain name registry is serious enough to warrant action is not an exception; neither is it a decision that would be taken lightly.
The effect of qualifying "adversely" with the word "seriously" would widen the grounds of legal challenge, with all the delay that would entail at a stage when urgent action against a registry may be necessary to protect businesses and consumers. It continues to be our view that it must remain within the Secretary of State's reasonable judgment to decide on the facts available whether the adverse effect is sufficiently serious to warrant intervention, and not within the judgment of the court.
The hurdle for taking action against a registry is already a high one; the trigger is not light, as I have explained. A set process must be gone through and the registry will have the opportunity to address the Secretary
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Lord Lucas: I am grateful for that reply. I beg leave to withdraw the amendment.
124: Clause 18, page 22, line 34, at end insert-
"( ) In subsection (3) "prescribed" means prescribed by regulations made by the Secretary of State.
( ) Before making regulations under subsection (3) the Secretary of State must consult such persons as the Secretary of State considers appropriate."
Lord Young of Norwood Green: My Lords, we have listened carefully to the points made in Committee by the noble Earl, Lord Erroll, about the need for prior consultation. It was always the Government's intention to consult before the Secretary of State decided to exercise the powers. The amendment establishes a requirement in the Bill for the Secretary of State to consult before making regulations prescribing either the practices considered to be a relevant failure of a registry or the arrangements registries have in place for dealing with complaints. I hope this will satisfy noble Lords. I beg to move.
The Earl of Erroll: I thank the Minister for this amendment, which to a large extent answers the concerns I raised on the last amendment. I should probably have grouped them together, but I had not fully understood the implications. I thank the Minister for listening.
Clause 19 : Appointment of manager of internet domain registry
Lord Young of Norwood Green: My Lords, it was never the Government's intention that a registry would have to pay compensation to any party affected by a serious failure of a domain registry. The words,
were meant to ensure that a registry would ensure that the failure concerned never happened again, as well as correcting the failure itself. We fully realise that these words could be open to misinterpretation so we
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The Earl of Erroll: I thank the Minister again. This goes a long way towards reassuring the registries, which are concerned that there are huge consequential loss implications.
Lord Howard of Rising: I add my thanks to the Minister for listening to the concerns expressed in Committee.
127: Clause 19, page 24, line 10, at end insert-
"( ) The Secretary of State must discharge the order before the end of the period of 2 years beginning with the day on which it was made (but this does not prevent the Secretary of State from making a further order in the same or similar terms)."
Lord Young of Norwood Green: My Lords, we considered the points made in Committee by noble Lords on the question of how long the appointed manager to an internet domain registry would be in place. We were particularly struck by fears that a manager sent in temporarily to correct the failure of a registry could end up as a permanent appointment. As I have said, nationalisation of a registry is certainly not the Government's intention. The amendment will put a two-year limit on the order appointing a manager. I hope this will satisfy the concerns expressed by noble Lords. I beg to move.
Clause 20 : Application to court to alter constitution of internet domain registry
Amendments 128 and 129 agreed.
6.30 pm
Clause 21 : Functions of C4C in relation to media content
130: Clause 21, page 27, line 45, at end insert-
"( ) In section 295 of that Act (involvement of C4 Corporation in programme-making) in subsection (1) for "programmes to be broadcast on Channel 4" substitute "content for C4C services" and accordingly in subsection (2) of that section for "programme" substitute "content"."
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Baroness Bonham-Carter of Yarnbury: My Lords, I declare an interest as an associate of an independent production company. As I have said, we on these Benches welcome the fact that the Bill extends public service broadcasting duties across all of Channel 4's platforms. However, I wish to move this amendment because of my concern, voiced in Committee, that there is nothing in the Bill to stipulate that the content of this extended remit must be commissioned from external sources.
The current wording allows Channel 4 to produce PSB programmes or online content in-house, provided it is not for the main channel. This could have serious negative consequences for the independent production sector. It also risks allowing Channel 4 to pursue a BBC-style route, while what we want is diversity in our broadcasting system. It is the very way in which Channel 4 commissions its programmes that has resulted in its unique identity and reputation for creativity and innovation. Channel 4 was conceived as an open broadcasting authority, commissioning from independent production companies-a publisher-broadcaster. In-house production goes against its whole ethos.
In Committee, the noble Lord, Lord Puttnam, sought to reassure me by pointing out that during the four years he has been deputy chair of the Channel 4 board, there has never been any discussion about production being brought in-house. The Minister gave the same reassurance in the letter that he sent me. My response is that if that is the case, why is there such concern about putting it in the Bill? More cynically, who is to say-and here I rather echo the noble Earl, Lord Erroll, on all Ministers following the same path-what will be discussed and agreed to once the noble Lord, Lord Puttnam, is no longer imparting his wisdom as a member of the Channel 4 board? I beg to move.
Lord Gordon of Strathblane: My Lords, I am not sure I can agree with the noble Baroness, Lady Bonham-Carter. After all, Channel 4, although publicly owned, is unlike the BBC, not publicly funded. I would therefore have expected that, in the current economic climate, where all media dependent on advertising revenue are going through a very difficult time and a major struggle even to survive, any amendment to the Bill would loosen the regulatory shackles imposed in an analogue age rather than extend them.
Bear in mind, too, that the balance of power has changed remarkably since 1982 when Channel 4 was introduced. We rightly needed to give maximum protection to independent producers faced with the then duopoly of ITV and the BBC. That pattern has now changed; some of the independents are now very big. While it is important, as the noble Baroness acknowledged, to recognise that Channel 4's core remit on Channel 4 itself remains subject to the same regulatory regime, it should be given maximum freedom to meet the broader remit that the Bill imposes on it.
Lord Puttnam: My Lords, I again declare my interest as deputy chairman of Channel 4. I will try to clarify the situation, as seen from the channel. First, there is an absolute, genuine, self-denying ordinance. Channel 4, as the noble Baroness said, was created as a route to market for independent production. I make no apology
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I speak for myself and not on behalf of the channel, but what the channel seeks to preserve is the ability to innovate. Innovation requires that we invest from time to time in material that has no commercial value whatever. I am particularly keen to protect our 4iP project. It is, effectively, the channel's R&D department. Total expenditure is around 3.5 per cent of the total content budget. To be unable to spend on R&D would, in the long run, potentially cripple the channel. None of us knows how successful the experiments being carried out in the digital area will be, and there is no way of knowing. What is certain is that we are moving into uncharted territory.
There is no commercial competition for what 4iP does. It works, where possible and most of the time, in partnership with other organisations. My hope-and, I think, that of the rest of the Channel 4 board-is that what will spin out of the activities of 4iP is a new industry, offering opportunities to new production companies in new ways to create new revenues. That cannot be done unless, within the channel, we have the freedom to spend our own money as intelligently as we can on research and development. There is nothing to look for behind that. It is why the channel is grateful to the Government for being given the freedom to pursue the matter in the way it presently does.
Baroness Howe of Idlicote: My Lords, sadly, I do not support the amendment. What we have just heard from the noble Lord, Lord Puttnam, is very important. Channel 4, with which I have had quite a few brushes over the years in one capacity or another, has nevertheless done a pretty magnificent job, particularly in its major role of public service broadcasting, especially for children. As the noble Lord, Lord Puttnam, said, not to have the capacity to spend on research and development at this time of enormous change would be a great pity. I am afraid I cannot support the amendment.
Lord Davies of Oldham: My Lords, I am grateful to noble Lords who have contributed to this short debate, and particularly to the noble Baroness for moving the amendment. I apologise for missing her first two or three sentences. However, I am well aware of her concerns in this area, and we looked at these issues in Committee. In many ways, the other contributors to the debate have largely made the case that the Government make in response to the amendment. Noble Lords are concerned that Clause 21 might encourage C4C to shift public service content from Channel 4 on to other platforms to get round the prohibition. However, I cannot articulate the position any more graphically than my noble friend Lord Puttnam, who has declared his interests. His expertise and knowledge of the issue are valuable.
We are not reducing Channel 4's public service obligations, so for the foreseeable future the bulk of C4C's public service content will continue to be delivered on Channel 4. Even beyond the licensed public service channel, the publisher-broadcaster model is likely to remain C4C's principal approach. Our worry is that a
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Baroness Bonham-Carter of Yarnbury: I thank the Minister for his reply. I accept the need for flexibility expressed by other noble Lords. However, that flexibility already exists. Section 295 of the Communications Act prevents Channel 4 making programmes in-house except to the extent that Ofcom may allow. Therefore, if Channel 4 wishes, it can seek Ofcom's approval to make programmes in-house. We are not proposing any change to that condition. We would have felt happier if we could have persuaded the Government of the need for this amendment. However, I beg leave to withdraw it.
Clause 26 : Report by OFCOM on public teletext service
131: Clause 26, page 33, line 22, at end insert-
"( ) OFCOM must publish every report under this section-
(a) as soon as practicable after they send it to the Secretary of State, and
(b) in such manner as they consider appropriate."
Lord Davies of Oldham: My Lords, we discussed these issues earlier this afternoon. This amendment requires Ofcom to publish each report prepared on the public teletext service. Ofcom will need to publish each report as soon as practicable after submitting it to the Secretary of State. I have been challenged on how quickly that will occur. I have indicated that the Secretary of State will seek to ensure that Ofcom meets its obligations in that regard.
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