Communications Bill

Public Bill Committee, 12 December 2002.

Standing Committee E

Communications Bill

Peter Atkinson (Conservative, Hexham)

Order. I shall suspend the Committee for a few minutes, so that the usual channels may confer.

Sitting suspended.

On resuming—

Ordered,

That the Order of the Committee of 10th December be amended as follows—

(a) in the Table, in respect of the third sitting, in the third column, the words '11.25 am' be omitted;

(b) in the Table, in respect of the fourth sitting, the words in the second column be omitted and the following words be inserted—

'Clauses 1 and 2, Schedule 1, Clauses 3 to 26, Schedule 2 and Clause 27 (so far as not previously concluded)';

(c) in the Table, in respect of the fourth sitting, in the third column, the words '5.00 pm' be inserted.—[Dr. Howells.]

Clause 3 - General duties of OFCOM

John Greenway (Conservative, Ryedale)

I beg to move amendment No. 138, in

clause 3, page 3, line 43, at end insert 'for equal or equivalent access to all forms of regulated communication'.

Peter Atkinson (Conservative, Hexham)

With this it will be convenient to take the following: Amendment No. 154, in

clause 3, page 4, line 3, at end insert—

'(n) the desirability of promoting apparatus and services which are accessible to, and usable by, as many people as reasonably possible and to the greatest extent possible without the need for special adaptation or specialised design.'.

Amendment No. 139, in

clause 3, page 4, line 5, after 'consumers', insert ', including disabled, elderly and low income consumers,'.

Amendment No. 155, in

clause 3, page 4, line 6, after 'service', insert 'access'.

Amendment No. 158, in

clause 10, page 10, line 34, leave out second 'and'.

Amendment No. 140, in

clause 10, page 10, line 37, at end insert—

'(f) To promote awareness and understanding of the issues in paragraphs (a) to (e) above among people whose disabilities, age or personal circumstances might otherwise impede their access to information.'.

Amendment No. 159, in

clause 10, page 10, line 37, at end insert 'and

(f) to bring about, or to encourage others to bring about, a better public understanding of the educational and literacy benefits of electronic media services for those with disabilities including subtitling for persons who are deaf or hard of

hearing and audio-description for persons who are blind or partially-sighted.'.

Amendment No. 141, in

clause 12, page 13, line 6, at end insert—

'(6A) In particular, OFCOM shall give consideration to the advisability of authorising the Content Board to establish a committee or panel to advise on the interests of people with disabilities or special needs resulting from age or personal circumstances.'.

Amendment No. 156, in

clause 13, page 13, line 25, at end insert 'with particular regard for variations in consumer experiences as a result of disability, age or personal circumstances.'.

Amendment No. 142, in

clause 13, page 13, line 36, at end insert—

'(g) the extent and nature of variations in consumer experiences as a result of disability, age or personal circumstances.'.

Amendment No. 143, in

clause 17, page 18, line 43, at end insert—

'(4A) The committees established by the Panel shall include a committee representing the interests of disabled and elderly people; and any such committee shall include a majority of members who are themselves disabled people or of pensionable age.'.

Amendment No. 144, in

clause 23, page 22, line 18, at end add 'having regard to the need to make the information or advice accessible to persons with disabilities'.

New clause 5—Function of promoting inclusive design—

'(1) It shall be the duty of OFCOM to take such steps, and to enter into such arrangements, as appear to them calculated—

(a) To bring about a better awareness and understanding of inclusive design principles, techniques and standards among—

(i) the designers and manufacturers of apparatus designed or adapted for use in connection with electronic communications services or associated facilities; and

(ii) the providers of electronic communications services;

(b) To encourage the designers, manufacturers and service providers mentioned in paragraph (a) to adopt inclusive design principles and techniques in the development of new apparatus, facilities and services; and

(c) to bring about a better public awareness and understanding of inclusive design in relation to electronic communications apparatus, facilities and services.

(2) References in this section to ''inclusive design'' are references to designs which result in apparatus and services which are accessible to, and usable by, as many people as reasonably possible and to the greatest extent possible without the need for special adaptation or specialised design.

(3) References in this section to electronic communications services includes websites.'.

John Greenway (Conservative, Ryedale)

We are grateful to the Minister for agreeing to move the knife. For the benefit of members of the Committee who are not party to such discussions, we believe that this group of clauses is likely to contain more important issues that might otherwise remain undebated than the following group contains. None the less, we are anxious to make progress.

The amendments relate to people with disabilities, the elderly and people on low incomes. We agree with the Government that it is vital that the needs and interests of such people, especially those with disabilities, are recognised and furthered under the

Bill. We warmly welcome clause 3(3)(i) and its specific statement that Ofcom must have regard to

''the needs of persons with disabilities, of the elderly and of those on low incomes'',

but, as the Minister knows, several organisations, in particular the Royal National Institute of the Blind, have questioned whether that reference goes far enough. The amendments probe whether the existing wording is adequate, or whether it needs to be strengthened to have the effect and impact that the Government intend.

Amendments Nos. 138 and 139 would ensure that Ofcom's general duties encompass a firmer focus on the importance of access for the disabled, the elderly and those on low incomes. It is important that access for those people should, as far as possible, be equal or equivalent to that for others. Amendment No. 140 would ensure that the disabled and other excluded groups benefited from Ofcom's media literacy work. Amendment No. 141 would enable the content board to give informed advice on the provision and quality of content services—such as subtitling, audio description and signing—for disabled people, and on the representation of disabled and older people in the media.

Amendment No. 142 would ensure that Ofcom does not overlook or under-represent the experiences of disabled and older people in its research work. Amendment No. 143 would highlight for the consumer panel the interests of those with disabilities, which could be an important part of its work. Amendment No. 144 would ensure that the advice given to disabled people is available in accessible formats. That is a big objective. I do not think that we have to take the Committee through what it would mean in practice for broadcasters, but we recognise what its effects would be. It is important that advice to disabled or elderly people is available in a format with which they are familiar and which ensures that they will receive the message.

New clause 5 addresses an important issue relating to those who design and produce apparatus such as televisions, radios and remote controls, as well as zappers—I have lost count of the number of those in my house. Such apparatus should be user-friendly for disabled and elderly people. Even at my tender age, I cannot read the wretched pages before me without my glasses, and it is absolutely hopeless trying to do so when one is driving down the motorway and must be in the Whip's Office to see the Chief Whip by 11 o'clock.

There is a standard joke in my house: when all else fails, read the instructions. Many devices are now highly technical, so it is important to ensure that people get maximum use from them. I commend the wording of new clause 5, because it does not put a requirement on anyone. It encourages and tries to persuade those who manufacture such devices to have a thought for the disabled and elderly who will have to use them.

The issue is not simply whether people can be expected to understand how equipment works; it is how they can make the best use of their equipment.

Some of the buttons are so small, and the lettering underneath so tiny, that people cannot see them. If we are to move into a digital future that even the elderly and those who are very short sighted—including those who can hardly see at all—can get the best from, it is important that we spend a few moments considering whether the Bill goes far enough in ensuring that those matters are properly addressed by Ofcom and the media industry. Although the Minister might suggest that the wording is already adequate, it is important that the Committee addresses the issue and provides time to consider the needs of vulnerable people so that we can ensure that they can enjoy all the benefits of the future digital age.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

We share many of the concerns of the hon. Member for Ryedale (Mr. Greenway) about access for disabled people. Amendment No. 154 tries to cover some of the same ground as new clause 5, which deals with access devices. It is important to address that matter because the Ofcom process is based on the assumption that the market will provide. In telecommunications and broadcasting, the market will often provide, but we are concerned that the market might not provide effectively for people with disabilities and specific access needs unless there is a stronger duty on Ofcom to ensure that they are able to talk to manufacturers and providers of services in a way that encourages them to offer such provision.

There are good examples of how the market is currently delivering. Microsoft has spent a lot of time and trouble building accessibility programmes into Windows software; that has become increasingly mainstream. However, as the hon. Gentleman said, access has still not been provided in many respects, specifically with regard to the physical layout of devices and the features that are available on hardware, as opposed to software in which there have been great strides forward. Amendment No. 154 seeks to tackle the issue by saying that Ofcom must intervene; it must have powers to take steps to encourage accessibility when the market is not delivering.

Amendment No. 155 is slightly broader in scope, although it, too, refers to access. It is clear that it means access for disabled people, but in the amendment we are suggesting that access should be a major driver for Ofcom in a general sense, in addition to the other drivers outlined in clause 3. We are suggesting that there should be a specific reference to access, so we are thinking not only about disability, but about issues such as quality of access to telecoms services and universality of access. The inclusion of the word ''access'' strengthens Ofcom's ability to act in such areas.

Amendments Nos. 158 and 159 deal with public understanding and media literacy especially in respect of disability. Ofcom could play a major role. When one visits other countries, one frequently discovers that they have higher levels of subtitling. That offers a good indication of where nations have got to with media literacy, and many countries have more subtitling on mainstream television than the UK has historically had.

The Minister stated that the Government intend to encourage more subtitling and to improve other forms of accessibility that have a significant impact on the quality of individuals' lives. We are seeking to put that in the Bill, or at least to initiate a debate about the way in which Ofcom will be able to do that and the extent to which it will have real teeth to encourage that process.

Subtitling is an old media example of accessibility; there are also new media examples. As radio is increasingly delivered in digital format, it can become less accessible in some ways, because more visual input might be required to access a radio service. Ironically, radio, which has traditionally been fine for people with sight impairments, can be made more difficult when it is combined with digital technology, because, in effect, one has to see what is on the screen to use the radio set. There is a range of complexities that technology will not resolve unless thought is put into its development. We would like Ofcom to have a role in ensuring that the thought is there and is conveyed to the manufacturers of equipment and the suppliers of services.

Michael Fabricant (Conservative, Lichfield)

The hon. Gentleman may be reassured to know that Blaupunkt in Germany is now working on large-screen displays and the BBC at Kingswood Warren are considering the use of a form of—believe it or not—attenuated subtitling with digital radio transmissions. Whether that will be practical in reality is a different matter.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I am grateful for that intervention. It is exciting to learn things so early in the morning—to be educated at 9:15 about the details of the new technology being developed. The hon. Gentleman has a point: technology works both ways.

Technology provides potential solutions, but they must be rolled out. Solutions can be cheap if they are mass marketed. Creating a hardware or software device that increases accessibility would be expensive as an add-on for a few consumers, but could be very cheap if it were built into all devices as standard. That is the type of decision that we want to be made.

The market will deliver in some areas. Where it does not, Ofcom is the appropriate body to deal with the matter, but only if it has an access remit. It is not there only to advise that services should be available. There was a long debate about citizens or consumers, but all the British public, to use that technical term, should be able to access the services available. That will require some thought to be given to the many consumers who have some difficulty in accessing mainstream services.

Amendment No. 156 mentions the consumer experiences of people with disabilities. We make explicit reference to that group because it is important that the requirement is fed into the Bill. If there are pressure points where a service is not being delivered effectively but could be if a small change were made, those points will be notified by consumers. That consumer voice must be taken to the heart of Ofcom, so that when there are grumbles and potential

solutions have been identified, they are fed through the consumer process and get to the decision makers. They are a valuable form of input.

The Minister will be aware of the many and various groups representing disabled people that effectively articulate their interests and convey them to decision makers, but if Ofcom is not set up to allow for such a channel of communications, the result could be a lot of needless frustration—people banging on the door rather than being invited in to sit at the table. Amendment No. 156 suggests that groups and individuals with particular interests in access for disabled people should have a seat at the table rather than having to batter down the door.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I shall not detain the Committee very long, but I wanted to add one or two comments to the speech made by my hon. Friend the Member for Ryedale, who moved the amendment.

In his response, the Minister will probably say that the Bill already includes provision for Ofcom to take account of the needs of disable people. That is undoubtedly true—see clause 3(3)(i). However, disabled people are concerned that their needs form only one of three categories in one of 13 different factors that Ofcom will have to take into account. Our purpose is to strengthen the need for Ofcom to bear in mind the wants and needs of disabled people. That is the purpose of many of the amendments. We will not necessarily press all of them, but we want the Minister to put on record that Ofcom must always have that important need at the front of its mind.

Much has been achieved already through the advance of technology. Digital television has enabled subtitling to be available on a wide scale, and many broadcasters have woken up to the fact that it is in their commercial interests to provide it. We are told that 1 million people use subtitling whenever they can, and 5 million people use it frequently. It may not only be deaf people who use it, but people who find it difficult to understand English. That is why broadcasters have seen a commercial interest to provide it.

The needs of people who are blind or partially sighted are a little harder to meet. Audio description technology is available, but often expensive to provide. I am reluctant to impose a great burden on small companies, especially those that might find it difficult to meet the cost of providing additional audio description. I am reluctant to mandate provision, but if it is possible to provide the technology at a cost that is not enormous, we should encourage it. I do not want Ofcom suddenly to extend its powers into the manufacture of electronic apparatus and remote controls, because that would represent a huge expansion. We must concentrate on promoting awareness.

New clause 5 relates to inclusive design. It is important because as more and more happens on our screens, the inability to access material on screen will make life harder and harder. It is important to make access to material on screen as easy as possible for people who might have difficulty. Inclusive design

is an important way of doing that, which is why new clause 5 contains terms such as ''bring about'' and ''encourage''. The new clause's purpose is not to mandate but to urge the industry that is responsible for manufacturing items to bear in mind that some people will find it very difficult to manipulate small keys or read small text. It might be quite easy to do something to meet those needs.

I have outlined the purpose of the amendments. As I said, we might not press them, but it is important to put on record the fact that the issue with which they deal is vital to many people.

Kim Howells (Labour, Pontypridd)

I welcome the points raised by the hon. Members for Ryedale, for Sheffield, Hallam (Mr. Allan) and for Maldon and East Chelmsford (Mr. Whittingdale). The Government are committed to an inclusive society. That is a central tenet of our policies and it is right that the Committee should thoroughly discuss of the interests of persons with disabilities, the elderly and people on low incomes. Although the Bill has been subject to mild criticism—nothing more than that—I believe that I can show that we are ensuring that the interests of several of the most vulnerable groups in our society are taken into account.

Clause 3(3)(i) requires Ofcom to have regard to the needs of persons with disabilities, the elderly and people on low incomes when performing all its general duties. Clause 16(4) requires Ofcom to ensure that when appointing members to the consumer panel, the panel will be able to give informed advice about, among other things,

''the interests of disadvantaged persons, persons with low incomes and persons with disabilities''.

Clause 16(6) gives the consumer panel a duty to have regard to such people. Clause 24(3) gives Ofcom a duty in relation to employment in broadcasting and training

''to take all . . . steps as they consider appropriate for promoting the fair treatment of disabled persons''.

Clause 325 requires holders of broadcasting licences who meet the thresholds to promote the fair treatment of persons with disabilities.

Clause 293 requires Ofcom to draw up, publish and ensure compliance with a code giving guidance on the extent to which television services

''should promote . . . understanding and enjoyment by . . . persons who are deaf or hard of hearing, and . . . blind or partially-sighted''

and the means by which that should be promoted. The code will apply to all licensed broadcasters including, for the first time, cable and satellite broadcasters. I will set out the targets for the codes because they are important: 80 per cent. of all programmes and 90 per cent. of programmes on Channels 3 and 4 are to be subtitled; 5 per cent. of programmes are to be signed; and 10 per cent. of programmes are to be audio-described. I will say more about that last one in a moment because the hon. Member for Sheffield, Hallam has raised the issue. It is an important matter and one that I am worried about.

We want those targets to be met by the 10th anniversary of the start of the service or of the

commencement of these provisions for cable and satellite broadcasters—who, by the way, have been extremely co-operative. They have been pioneering in some of their work and have been doing things off their own backs, which has been refreshing. The universal service order, a draft form of which will be available shortly, aims to safeguard the interests of disabled end users and to ensure access to, and the affordability of, publicly available telephone services that are equivalent to those enjoyed by all other end users.

The hon. Members for Ryedale and for Sheffield, Hallam spoke about audio-description models. We are making a lot of progress in other fields but I am worried about that one. I do not know what has happened over the years, but there seems to be a disruption between, on the one hand, the Royal National Institute of the Blind and other groups who represent the interests of people who are blind or who lack some visual faculty, and, on the other hand, the manufacturers and the Government.

About eight months ago, I pulled together a seminar of everybody involved and I was quite shocked at the lack of progress. I do not think that that is anyone's fault, but it is a problem. Part of the problem is in defining the market. How many people would want to buy such a service? How much would it cost? What about affordability and the right to access the service? Technical issues arise and I hope that Ofcom will ensure that progress is made. As I say, I was surprised and disappointed that progress had not been made in recent years.

The hon. Member for Ryedale made an important point about design. The market in this sector, as in many others, is completely bemused by meeting the demands of young, fit people. Some art colleges in this country are working very hard. For example, the Royal College of Art has a long-running programme on design for age, which addresses some of the problems that the hon. Gentleman raised—for example, the size of buttons, and whether people who are over 55 have enough strength in their hands to open bottles. [Laughter.]

The hon. Member for Sheffield, Hallam asked about the seriousness with which we take the size of visual displays and lettering on televisions and even on digital radio. People assume that, because we are switching to digital, everyone will benefit, but it may not benefit everyone. We must ensure that the change takes account of everyone's capacity, not only that of Mr. and Mrs. Average.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

As digital advances, the temptation is to make everything multimedia. By definition, that will mean that people have to use all their senses to get full enjoyment of the product. As the Minister suggests, the risk is that digital will encourage us to make things less, not more, accessible.

Kim Howells (Labour, Pontypridd)

Absolutely—I could not agree more. It is proper that we debate design, and I want Ofcom to encourage manufacturers to produce new equipment that is better designed for people with disabilities and without.

The Government have been active in raising awareness about information and communication technology among people with disabilities through initiatives such as ICT learning centres, IT for all and UK Online computer training, and through the provision of financial support for the work of the full mobility group, which is an umbrella group of disability organisations that has done excellent work in improving access to equipment for disabled people.

I repeat that the Government are committed to an inclusive society. The Bill will help us deliver that as part of a raft of measures and I would not have it any other way.

John Greenway (Conservative, Ryedale)

I am grateful to the Minister for his response. He has certainly taken on board all the points that have been raised. Should further queries emerge, there might, perhaps, be an opportunity to return to those matters when we come to deal with the relevant clauses. In the spirit of the Minister's response, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Simon Thomas (Plaid Cymru, Ceredigion)

I beg to move amendment No. 174, in

clause 3, page 3, line 48, after 'Kingdom', insert 'with particular regard to Scotland, Wales and Northern Ireland'.

Peter Atkinson (Conservative, Hexham)

With this it will be convenient to discuss the following amendments: No. 176, in

clause 7, page 8, line 23, at end insert—

'(4A) If the part of the United Kingdom referred to in subsection (2)(c) is Scotland, Wales or Northern Ireland, OFCOM must consult with the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly as appropriate before carrying out such an assessment.'.{**w8**}

No. 177, in

clause 11, page 11, line 20, at end insert—

'(4A) In making such appointments with respect to Scotland, Wales and Northern Ireland, OFCOM must consult with the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly as appropriate.'.

No. 178, in

clause 12, page 13, line 12, at end add—

'(7) It shall be the duty of OFCOM to ensure the establishment of advisory content committees for England, Scotland, Wales and Northern Ireland.'.

No. 184, in

clause 16, page 18, line 5, at end insert—

'(3A) In appointing persons to be national members of the Consumer Panel, the Secretary of State must consult as appropriate with the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly.'.

No. 186, in

clause 16, page 18, line 29, after 'State', insert 'in consultation with the Scottish Parliament, the National Assembly for Wales or Northern Ireland Assembly as appropriate.'.

No. 189, in

clause 17, page 19, line 5, at end add—

'(7) It shall be the duty of the Consumer Panel to establish advisory consumer panels for—

(a) England,

(b) Scotland,

(c) Wales, and

(d) Northern Ireland.'.

New clause 8—Duty to establish and maintain National Advisory Committees—

'(1) It shall be the duty of OFCOM to establish and maintain National Advisory Committees for England, Scotland, Wales and Northern Ireland.

(2) The Chair and membership of these committees shall be appointed by the Secretary of State.

(3) In making such appointments in respect of Scotland, Wales and Northern Ireland, the Secretary of State shall seek nominations from the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly respectively.

(4) The National Advisory Committees may review all of OFCOM's work in respect of their individual territories.

(5) The National Advisory Committees may issue such recommendations to OFCOM or the Secretary of State with respect to their territories as they see fit.

(6) The National Advisory Committees shall produce an annual report on their activities.'.

Simon Thomas (Plaid Cymru, Ceredigion)

The amendments relate to Ofcom's dealings with the devolved Administrations in Wales, Scotland and Northern Ireland. Before I launch into my explanation of the amendments, Mr. Atkinson, I apologise to the Committee for being late this morning. I am moving my flat as we speak, although as hon. Members can see, I am not physically present at the move, so I am taking a leap of faith. I hope that I shall return to a flat that is full of furniture and that I have not been moved out without being moved in.

It will help the Committee if I explain how the amendments hang together. Although they are grouped under clause 3, several amend other clauses, some are consequential to amendments to clause 3 and others are part of a belt and braces approach to what Ofcom might do. Amendment No. 174 would amend clause 3(3)(l), which currently states that Ofcom must take into account

''the different interests of persons in the different parts of the United Kingdom''.

I welcome that as a step forward. It would, however, be useful to refer specifically to Scotland, Wales and Northern Ireland. These days, when we say, ''different parts of the United Kingdom'', we know that that means the devolved Administrations. It will be interesting to find out what will happen in England in the light of regional assemblies Bill.

John Whittingdale (Conservative, Maldon and East Chelmsford)

If the clause is amended to say that Ofcom should pay regard in particular to Scotland, Wales and Northern Ireland, is not the implication of that that it should pay less regard to people who live in England?

Simon Thomas (Plaid Cymru, Ceredigion)

Far be it from a member of Plaid Cymru to suggest such a thing. We are asking Ofcom to consider the different needs of the different parts of the United Kingdom. The demands of the devolved Administrations will appear on Ofcom's radar very early on and it is important that we flag that matter in some of the duties that we give to it. The hon. Member for Maldon and East Chelmsford should not consider the amendment on its own. It is important that he

recognise that it fits into a pattern of amendments that are intended to amend the hierarchy to achieve a better integration between Ofcom and the devolved Administrations.

I readily accept that I will not get all these amendments. That is why I have taken a belt and braces approach, starting with the more minimal demands and moving on to demands for a more comprehensive infrastructure for Ofcom with regard to the devolved Administrations.

Chris Bryant (Labour, Rhondda)

I am glad that the hon. Gentleman accepts that he will not get all his amendments. I hope that he is letting himself down slowly.

Does the hon. Gentleman accept that amendment No. 174 to clause 3(3)(l) fails to acknowledge that there may be many more similarities between rural or semi-rural areas in England, Wales and Scotland than there are similarities between those countries?

Simon Thomas (Plaid Cymru, Ceredigion)

No, I do not accept that at all. The rest of paragraph (l) will still read:

''and of those living in rural and in urban areas''.

That is a UK-wide remit for Ofcom. I accept that there are rural areas in Wales that have much in common with rural areas in Cumberland, Devon and other places that might have trouble with broadband, for example, and I see no problem with that.

Kim Howells (Labour, Pontypridd)

Canary wharf.

Simon Thomas (Plaid Cymru, Ceredigion)

It may even come to that.

Amendment No. 176 would amend clause 7, which gives Ofcom the duty to produce impact assessments. My amendment makes it clear that if Ofcom produces an impact assessment that relates to activities in Wales, Scotland or Northern Ireland, it should consult with the devolved Governments in those territories. I think that the amendment is reasonable. Ofcom should, in terms of good practice, consult with the devolved Governments anyway, but I am keen to put the provision in the Bill because there is nothing in it at the moment that gives any direction to Ofcom about consultation with devolved Governments. We would be very remiss to take things forward as they are.

Amendment No. 177 would amend clause 11, which relates to the content board. The amendment would ensure that appointments to the board of members who represent people living in Scotland, Wales and Northern Ireland—a move that I welcome—are made in consultation with the devolved Governments. Amendment No. 178 would amend clause 12 to establish an advisory content board for England, Wales, Scotland and Northern Ireland. The advisory board would advise Ofcom on content issues, so there would be a wider panel of membership available to deal with the interface with devolved Governments. In an English context, there will soon be regional assemblies. The advisory content board would deal with regional government and would filter through the more pertinent issues for the Ofcom content board to deal with.

Amendment No. 184 would amend clause 16 similarly to how amendment No. 177 would amend clause 11, but would do so in respect of the consumer

panel. The Bill provides that people representing Wales, Scotland and Northern Ireland should be appointed to the consumer panel. Those appointments should be made in consultation with devolved Governments. Amendment No. 186 is consequential to amendment No. 184. It would insert an acceptance of the fact that, as the Secretary of State has the right to remove members from the consumer panel, he or she should consult, for example, the Northern Ireland Assembly before removing a member of the consumer panel representing Northern Ireland. It is a pretty reasonable amendment.

Amendment No. 189 would amend clause 17. It is similar to amendment No. 178, and would establish advisory consumer panels for England, Scotland, Wales and Northern Ireland. The amendment would be particularly relevant to the work of bodies such as the Broadcasting Council for Wales, which seems to be disappearing under the infrastructure of the Bill. It is worth keeping that body in the Welsh public political sector, and creating such bodies in the other devolved administrations.

New clause 8 would put a duty on Ofcom

''to establish and maintain National Advisory Committees for England, Scotland, Wales and Northern Ireland.''

I hope that the hon. Member for Maldon and East Chelmsford has now realised that I have not forgotten England in my amendments. Whether I include England simply depends on what is relevant to a particular passage in the Bill.

The national advisory committees would seek to assist Ofcom in its work in respect of the individual countries of the United Kingdom. The national advisory committees should be able to review Ofcom's work and, for example, publish an annual report for the devolved Governments. They would be independent of Ofcom because appointments to them would be made by the Secretary of State. They would introduce an element of wider citizenship into the debate on Ofcom. I will not repeat all my citizenship arguments from two days ago, but I will say more about the importance of citizenship in the context of Welsh public policy and in the wider context of devolved government.

Having explained my amendments and having told the hon. Member for Rhondda (Mr. Bryant) that I do not expect all of them to be accepted, I should tell the Committee where the amendments come from. Some hon. Members may consider them to be a narrow, nationalist plot dreamed up in the back rooms of Plaid Cymru. That would be a reasonable assumption for an hon. Member who had not read the submission from the Government in the National Assembly for Wales, who are not a narrow, nationalist Government but a Labour and Liberal Democrat Government.

All the amendments in my name, apart from No. 174, arise directly from recommendations and requests from the Liberal Democrat Minister for Culture, Sport and Welsh Language in the Labour Administration in Wales. I am therefore looking forward to seeing where support for the amendments will come from. Those requests came in a formal letter

about a decision of the National Assembly for Wales that was taken on 9 July. They are requests to the Secretary of State for matters to be included in the Communications Bill.

Of course, the National Assembly for Wales started with a bigger request that we cannot discuss during debates on this Bill because it was discussed during proceedings on the Office of Communications Act 2002. That bigger request was for a person nominated by the National Assembly for Wales to be on the Ofcom board. I understand that the Scottish Executive made a similar request and that the Northern Ireland Assembly also debated the issue, although I do not know whether it made a formal request to the Government. However, both Scotland and Wales asked specifically for a member from their territories on the Ofcom board.

We had that debate in the Standing Committee that debated the Ofcom Bill, and we lost the argument. However, I want to ask the Secretary of State, through the Minister, about hierarchy. The request from the National Assembly for Wales and the Scottish Executive to have a representative has been turned down, but the question then arises of how Ofcom will work with the devolved Administrations. We are Westminster MPs working on UK-wide legislation that will have a real impact in Wales, Scotland and Northern Ireland. In those areas, there are expectations and a democratic demand that will have to be met in the Bill.

As I say, the specific request for Wales, Scotland and Northern Ireland to be represented on the Ofcom board has been turned down. That means that when debating these amendments and considering the five existing regulators, we start from a position that is a significant step back from the position of the devolved Administrations. There is a Welsh board member on the Radio Authority; there is a Welsh board member on the Independent Television Commission; there is a Welsh Advisory Committee on Telecommunications; and there is the Broadcasting Council for Wales. Therefore, hon. Members can see that there is a pre-devolution infrastructure in Wales—predating the establishment of the Welsh Assembly—giving it a voice on broadcasting and telecommunication issues, which are the two main areas in the Bill. I am concerned that the infrastructure in the Bill does not seek to replicate even that level of representation for Wales. These amendments do not seek to move the devolution settlement forward. I am simply trying to establish that Ofcom and the Bill will operate in ways that replicate or extend the pattern of representation that we had in the past—even though that was inadequate on occasions.

The central issues arise in new clause 8, which would establish a type of communications council for Wales. The Welsh Assembly requested that. It wants a council to be established to deal with all the relevant issues, but not in a statutory way: the council should be able to debate and review all the issues arising from

the Bill, and then to present a report on its conclusions to Ofcom for consideration.

The Welsh Assembly seeks to establish, not a separate statutory infrastructure, but a citizens' voice in Wales to debate all communications issues and to which Ofcom must be prepared to listen. That council would be in a position to produce a report for the Welsh Assembly to debate, so it would have the weight of that august body behind it as well. That is the Welsh Assembly's central secondary backstop. Having failed to gain representation on Ofcom, it said, ''Okay, if we are not going to have someone in Ofcom, let us at least have a communications council for Wales.'' New clause 8 is designed to achieve that.

Two further issues centre on the activities of the consumer panel and the content board. I am grateful that the Bill will now place someone on those bodies who represents Wales, Scotland and Northern Ireland, because that is a step forward. However, that person will not be representing their nation's devolved Government. The amendment seeks to strengthen the ties between Ofcom and the devolved Governments and Administrations by saying that those representatives should at least be appointed in consultation with the devolved Governments.

The Strategic Rail Authority has a similar process. It is nothing new to have UK-wide bodies with members who represent parts of the UK—in particular, those that have devolved Governments—and for such members to be appointed in consultation with those Administrations. In the Strategic Rail Authority, that happens in respect of both Wales and Scotland, so there is an individual who—in theory, at least—can at any time produce a report of relevance to Wales and Scotland.

Chris Bryant (Labour, Rhondda)

The hon. Gentleman appears to be seeking a fully devolved responsibility for broadcasting. Would he like S4C to be devolved to the Welsh Assembly?

Simon Thomas (Plaid Cymru, Ceredigion)

First, I do not see how the hon. Gentleman can conclude from these rather tame amendments that I am going for fully devolved broadcasting in Wales. On the second point, the hon. Gentleman may care to read my party's manifesto because it is pretty clear about that. Of course Plaid Cymru's ultimate aim is to devolve broadcasting to Wales—our ultimate aim is to devolve most things from Westminster to Wales. However, it would stretch even the credibility of the hon. Gentleman to claim that the amendments do anything along those lines, because they fall short even of what the Labour Government in Cardiff requested.

In the amendments, I am trying to strengthen not only the integration and interface between the devolved Governments and Ofcom, but the views of consumers and citizens—or the public interest, if we cannot use the word citizens—in Wales, Scotland and Northern Ireland about the working of Ofcom. A further request from the National Assembly for Wales was that Ofcom should not meet only in London. I was pleased to hear what the Minister said on Tuesday about bringing Ofcom out.

It is valuable to refer to what the First Minister of Wales said last night. He made an important speech in which he rejected new Labour values and stated:

''In other words, in welfare markets, producer choice, rather than consumer choice, is too likely to be the outcome.''

Rhodri Morgan says that he wants a rejection of the increasing tendency of Westminster legislation to address only consumer choice issues; he wants it to address universal provisions instead. That is relevant to the debate surrounding Ofcom and to the debate that we had on Tuesday. Without revisiting that debate, I think that my amendments would strengthen the public interest in Wales, Scotland and Northern Ireland by giving the public in those countries—and in England, in several respects—a way off calling Ofcom to account. That would not be statutory, but Ofcom could be called to account using a democratic process through the devolved Administrations.

Several hon. Members rose—

Peter Atkinson (Conservative, Hexham)

Order. Before I call the next speaker, I remind the Committee that we have been sitting for almost an hour and we have to deal with 24 clauses and 13 groups of amendments by 5 pm. I ask members of the Committee to bear that in mind while they are speaking.

John Robertson (Labour, Glasgow Anniesland)

I shall try to be brief, Mr. Atkinson.

After reading the amendments, I find myself agreeing with the hon. Member for Maldon and East Chelmsford for what I hope will be the first and last time in Committee. That will certainly not do my political credibility any good. He is absolutely right that the hon. Member for Ceredigion (Mr. Thomas) showed a bias toward the Celtic nations and gave no thought to England. That is totally unfair because the Bill should not give special handouts but should be even-handed. Amendment No. 174 is slightly biased.

I believe that amendment No. 176 is a delaying amendment that would slow the process because an Assembly or Parliament would have to be consulted before anything could be done. That is not what Ofcom is there to do. It is there to act as quickly as possible and to get the job done, whether that is appointing and reappointing people or just doing its general work. If a precedent were set that there should be discussion with the Scottish Parliament or one of the Assemblies, the process would be automatically slowed. That is not what the people of this country want.

Amendment No. 177 is slightly different. It has merit because if one is going to employ somebody, perhaps some form of consultation should occur. However, such employment should not be decided by the Assemblies or the Parliament but by Ofcom. Ofcom is paid to pay such employees; the Assemblies are not paid to pay Ofcom to pay people.

Amendment No. 178 might also have merit, but if it were accepted, the body would grow. The body of Ofcom would develop legs called Scottish Ofcom, Welsh Ofcom and Northern Ireland Ofcom. If and when regional assemblies were introduced, we would have regional Ofcoms. The body would become so

large and unmanageable that the board would have great difficulty running the show.

Eric Joyce (Labour, Falkirk West)

Does my hon. Friend agree that the Bill permits the establishment of content bodies in Scotland, Wales or wherever Ofcom deem appropriate? It is simply a case of leaving things flexible rather than making them compulsory.

John Robertson (Labour, Glasgow Anniesland)

My hon. Friend makes a good point, which I must have missed. I agree that when Ofcom deems a body necessary, one should be established. However, the Scottish Parliament or the Assemblies in Northern Ireland and Wales should not be the powers that drive such bodies forward; Ofcom should be in charge of them. If there is too much political input into the body, we cannot be surprised if it makes political decisions.

One of the Opposition's complaints has been about who will be appointed to the Ofcom board. It would not matter who was appointed, they would still complain, but the more we politicise a body such as Ofcom, the more complaints there will be, from politicians as well as the general public. The most important thing is to provide a service to the people and not to have too much interference at the end of the day.

The hon. Member for Ceredigion says that new clause 8 is not a nationalist plot—he could have fooled me. It has the fingerprints of nationalism all over it. That he wants to separate us all into little boxes of Scotland, Wales and Northern Ireland, and that England is excluded is no surprise, especially to our opposition in Scotland. The hon. Gentleman tabled his amendments and will be disappointed. The only amendment that I can support in any way at all—I shall listen to the Minister's reply before I decide whether to support it—is amendment No. 195.

Nick Harvey (Liberal Democrat, North Devon)

I rise to support the general thrust of the amendments, although I share the concerns that amendment No. 174 is seriously defective.

The Bill makes Ofcom a United Kingdom-wide body, which is absolutely right. Certainly, many of the economic and market considerations that Ofcom will address are genuinely UK-wide issues and should be dealt with on that level. However, some cultural, consumer content issues that make sense for national or, in the case of ITV, regional considerations must be taken into account. I shall be interested to hear the Minister's response.

The hon. Member for Ceredigion observed that he had adopted a belt-and-braces approach in tabling so many amendments—that is certainly true. It would not make sense to implement all of them, but the Minister may entertain some of them.

On the duty to consult, the objection just raised by the hon. Member for Glasgow, Anniesland (John Robertson) was rather thin. We are talking not about statutory consultation with the general public but about consultation with the Minister responsible in each of the devolved Governments. I would not have thought that a phone call, fax or e-mail between ministerial offices exchanging a few biographies was

likely to delay matters unduly. At the most, it would be a question of only a few days. The Government would do well to entertain that amendment.

As for the suggestion of establishing the various committees or panels, as the hon. Member for Ceredigion said, several bodies in Wales and elsewhere already exist to deal with such issues. What objection can there be to some such body being included in the Bill? I accept that the Bill makes a nod in that direction, but the Government must be aware of the sensitivities that have surfaced in the past when Bills have merely made provision for bodies to exist rather than requiring their establishment. The general thrust of the amendments is sound, and I support it. I look forward to the Minister's response.

Michael Fabricant (Conservative, Lichfield)

I particularly wanted to speak to the amendments because I supported so much of what the hon. Member for Ceredigion said when we debated the Office of Communications Act 2002. I congratulate him for noting the change in the Bill. At least we now know that there will be representatives from England, Wales, Scotland and Northern Ireland on the content board as well as offices established. Previously that was not to be the case.

Kim Howells (Labour, Pontypridd)

That is not true.

Michael Fabricant (Conservative, Lichfield)

If not, the Minister can explain the matter to us in his response, but we discussed it in great detail at the time—[Interruption.]—The sedentary interventions of the hon. Member for Rhondda are only slowing me down. I am trying to make a brief speech. However, I shall give way to him.

Chris Bryant (Labour, Rhondda)

If the hon. Gentleman puts his memory back into gear, he will recall that, during discussions on the Ofcom Bill, the Minister made it clear that both issues would be met.

Michael Fabricant (Conservative, Lichfield)

Yes, but the hon. Gentleman is missing the point. The Minister said that such matters would be met only because the hon. Member for Ceredigion kept referring to them.

Kim Howells (Labour, Pontypridd)

God knows, I do not want to delay the hon. Gentleman, but if he can put his memory into gear, he will recall that that Bill was about setting up an organisation that could form itself, nothing else.

Michael Fabricant (Conservative, Lichfield)

It is not my intention to go out of order and delay proceedings. I wanted to make only a brief contribution to the debate. I recall there being a heated debate at the time. I congratulate the hon. Member for Ceredigion on speaking with such passion, but I do not recall great enthusiasm from Ministers for either representatives on the content board or regional representation. It is particularly important that such issues are being dealt with today. I also hope that the Minister will respond to the interesting point made by the hon. Member for Ceredigion, namely the fact that the Strategic Rail Authority has a structure for dealing with devolved bodies. I do not want to be too prescriptive, but if the Minister can stop chuntering and listen for a moment, perhaps I can ask him to explain the difference

between the structures of the Office of Communications and the Strategic Rail Authority.

Kim Howells (Labour, Pontypridd)

We are here to talk about Ofcom, not the Strategic Rail Authority.

Throughout the process of establishing Ofcom as a new fully converged regulator for the whole of the communications sector, we have made it clear that its board must remain small and not bogged down by bureaucracy. It must be flexible enough to respond quickly to fast-changing circumstances in a sector where change is happening at great speed.

To be effective, the Ofcom board must act collegiately and strategically. It cannot be representative of the many varied interests and stakeholders. In its recent report, the Better Regulation Task Force recommended that the boards of economic regulators should be made up of a mix of executive and non-executive members and that they should operate on a functional basis and not be made up of representatives of stakeholder interests. I endorse that approach.

Clause 3 obliges each member of the Ofcom board to have regard to the interests of different parts of the United Kingdom when carrying out their functions. The board as a whole is charged with that requirement, not just one member of it. Amendment No. 174 would require Ofcom to have particular regard to Scotland, Wales and Northern Ireland. As I have said, the obligation under clause 3(3) relates to the United Kingdom as a whole, and that obviously encompasses Scotland, Wales and Northern Ireland. As the hon. Member for Maldon and East Chelmsford reminded us, 49 million people happen to live in England as opposed to 5 million in Scotland, 2.9 million in Wales and 1.7 million—tops—in Northern Ireland. We must have a sense of perspective when considering such matters.

Chris Bryant (Labour, Rhondda)

Clause 3(3)(l) concerns those living in rural and urban areas. Will the provision allow Ofcom to consider in particular congruence between constituencies and areas in England, Wales and Scotland such as former mining constituencies?

Kim Howells (Labour, Pontypridd)

Yes, it certainly would—not that the hon. Gentleman represents a former mining constituency, although I am sure that he is not suggesting that he is. However, his question is important.

It is interesting to consider the make-up of this Standing Committee. I calculate that we have four Welsh Members, six Scottish Members and fifteen English Members. I want to break down the English membership; it is important to do so—although I can see you glancing at the clock, Mr. Atkinson. We have two from Yorkshire, six from the midlands—although what comprises the midlands is a subject for geographic debate—one from the east of England, one from London, two from the south, one from the north-west and two from the west.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I am the last person to advocate the idea of regions. My constituents in Essex do not consider themselves part of the same region as the constituents of my hon. Friend the Member for South

Cambridgeshire (Mr. Lansley). However, we both come under this Government's curious creation of an eastern region.

Peter Atkinson (Conservative, Hexham)

Order. We have had our fun, but shall we get back to the Communications Bill?

Kim Howells (Labour, Pontypridd)

The Government are committed to ensuring that the interests of the nations and regions are properly represented in Ofcom and in the structures that will be established. David Currie has visited Scotland and Wales and has listened carefully to the views of the devolved Administrations and others.

Huw Irranca-Davies (Labour, Ogmore)

Does the Minister acknowledge that the cumulative effect of many of these amendments will be to strengthen the hand of the devolved Administrations? I do not want to underplay the role of those Administrations, but does the Minister acknowledge the importance of Members of this House in setting up Ofcom in its regulatory role?

Kim Howells (Labour, Pontypridd)

My hon. Friend makes an important point, with which I agree. These are not devolved matters; they are matters for this House. The board is considering options for the structure of Ofcom and the needs of the regions and nations will be taken into account.

New clause 8 would require Ofcom to establish national advisory committees for each nation. Hon. Members must bear it in mind that the vast majority of the functions and responsibilities of Ofcom are not—as my hon. Friend the Member for Ogmore (Huw Irranca-Davies) has just made clear—devolved matters. They will be carried out by Ofcom on a UK basis. We acknowledge that there are areas of crossover with matters that have been devolved. However, we believe that our proposals for Ofcom are the most appropriate means of dealing with those areas. It would not be appropriate to require Ofcom to establish committees—especially committees empowered to review the activities of Ofcom and to make recommendations in areas where the nations' devolved Administrations have no remit. The provisions of the new clause 8 are therefore not acceptable.

The Bill already requires the content board and the consumer panel to have members who can represent the views of England, Scotland, Wales and Northern Ireland. Through such mechanisms, the interests of the nations will most appropriately be represented.

Many amendments demonstrate a misunderstanding of the methods of appointment to the content board and the consumer panel and the powers of both to establish different committees. Appointments to the content board will be a matter for Ofcom. Amendment No. 177 seeks to require Ofcom to consult the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly when making such appointments. However, those are not public appointments. Neither my right hon. Friend the Secretary of State for Culture, Media and Sport nor my right hon. Friend the Secretary of State for Trade and Industry will have any role in making those appointments. Quite rightly, the Westminster Parliament will not have a role either.

I cannot therefore see any reason for the formal involvement of the devolved Parliament or Assemblies, as required by amendment No. 177. When considering such appointments, we shall expect Ofcom to consult the relevant territorial departments and, through them, the devolved Administrations in order to seek nominations for suitable candidates. We envisage that such consultative arrangements could be set up in a memorandum of understanding between Ofcom and the relevant Secretary of State for each nation. The final appointments will, and must, be a matter for Ofcom.

Amendment No. 178 would require Ofcom to establish content advisory committees for each nation to advise the content board on carrying out its work. Ofcom already has a power under the Office of Communications Act 2002 to establish advisory or executive committees as it sees fit. The Bill will enable Ofcom to authorise the content board to establish advisory committees of its own.

We are likely to return to a discussion of the way in which the consumer panel operates during a later sitting. However, amendment No. 186 would require the Secretary of State to consult the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly on the removal of the chairman and members of the consumer panel. Clause 16(8)(b) relates to all members of the consumer panel and not only those who represent national interests. There is no need for the Secretary of State to consult with the Parliament or Assemblies on the removal of every member of the panel, which the amendment would require. The amendment is fatally flawed. I would expect the removal of members representing the nations to be preceded by the same type of informal consultation that preceded their appointment.

Amendment No. 176 would require Ofcom to consult with the Scottish Parliament and the Assemblies before it carried out an impact assessment under clause 7 and on any important proposals that were likely to have a significant impact on the general public in parts of the United Kingdom. I find it difficult to see what such a requirement might achieve. If Ofcom believes that such an assessment is appropriate, it will be important for that to be undertaken as quickly as possible. A requirement to consult would cause delay before the assessment could be started. The reason for an assessment would be to consider the impact that the proposals might have. Nothing will prevent the Scottish Parliament or the Assemblies from making representations to Ofcom about any assessment, and Ofcom would have to take such representations into consideration. Therefore, we resist the amendments.

Simon Thomas (Plaid Cymru, Ceredigion)

It will not surprise anyone when I say how disappointed I am by the Minister's response; I had hoped that he would say a little more. I am grateful to him for his explanation of the appointments system, and I think that the Committee can be grateful for that, but he should have explained more about how Ofcom relates to the devolved Administrations.

The Minister rejects the amendments on the basis that the issues are not devolved—full stop. However, economic development is devolved to the National Assembly for Wales, so it is spending millions of pounds on the provision of broadband throughout Wales. Is the Minister really saying that the National Assembly cannot have any consultation with Ofcom on a range of economic influences? [Hon. Members: ''He is not saying that.''] Well, that is the impression that I got. I got the impression that an assessment on such issues as broadband in Wales would take too much time if there were consultation with the National Assembly.

The Minister misrepresented amendments Nos. 186 and 189. It is clear that the Secretary of State's power to remove a member of the consumer panel in consultation with the devolved Administrations is appropriate, and it clearly relates to the person whom the Secretary of State appointed to the panel in the first place. The amendments are consequential. The Minister failed to answer any of the questions asked by his party's Government in Cardiff about how Ofcom relates to the devolved Administration.

I am grateful to the hon. Members for North Devon (Nick Harvey) and for Lichfield (Michael Fabricant) for their comments. They gave general support to the idea of ensuring that there is a fruitful working relationship between the devolved Administrations and Ofcom. I am afraid that that will not be the case. I am worried that the devolved Governments will jump up and down complaining about decisions by Ofcom which affect their economic areas, and that they will have no say in the decisions. That may create tension that could be resolved, if not by my amendments, then by amendments along the same lines.

Huw Irranca-Davies (Labour, Ogmore)

Although I have sympathy with the hon. Gentleman's arguments, many of his amendments would put into the Bill the requirement to consult the Welsh Assembly. In effect, he is trying to advance devolutionary arguments. As a pro-devolutionist, I hope that when that argument comes before the House, it will come through the front door, not scuffing its feet on the carpet of the tradesman's door, as some of these amendments do.

Simon Thomas (Plaid Cymru, Ceredigion)

We hear that argument from Labour Members time and again. However, I ask the hon. Gentleman, who is an intelligent, perceptive Member of Parliament, to consider the amendments carefully; there is no devolution in them. Nothing is devolved to the National Assembly for Wales in the amendments. [Interruption.] Nothing is devolved in the amendments. I am not going to debate the matter with the hon. Gentleman across the Room. The amendments do not devolve anything from Ofcom to the Assembly or any other body in the United Kingdom. All they seek to do is achieve a better consultation arrangement with the devolved Administrations.

It is clear that I will not get the support of the Government for my amendments. Nevertheless, there

is a point of principle at stake in some of them. They may not be perfect—they were produced by one person, not by a team—but although I shall withdraw amendment No. 174, I hope that I may press amendment No. 177 to a Division when the time comes. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Peter Atkinson (Conservative, Hexham)

I am prepared to grant a Division on amendment No. 177, but that will happen when we have debated the group of amendments under clause 11.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I beg to move amendment No. 132, in

clause 3, page 4, line 13, at end insert

'and publish the reasoning for the resolution of any conflict between their general duties.'.

Peter Atkinson (Conservative, Hexham)

With this we may discuss the following: Amendment No. 197, in

clause 3, page 4, line 13, at end insert

'and make public the reasons for their actions'.

Amendment No. 2, in

clause 3, page 4, line 24, at end add—

'(9) OFCOM's report under paragraph 12 of the Schedule to the Office of Communications Act 2002 (c. 11) (annual report) for each financial year must contain a statement by OFCOM summarising those circumstances where, in OFCOM's opinion, they have been required to reconcile general duties which have been in conflict with each other and how they have sought to do so in the circumstances.'.

New clause 6—Duty to publish and meet openness standards—

'(1) It shall be the duty of OFCOM to publish a statement setting out the standards they are proposing to meet with respect to openness in—

(a) the carrying out of their different functions; and

(b) providing reasons for any decision made to persons who, in their opinion, are likely to be affected by the matters to which it relates.

(2) OFCOM may, if they think fit, at any time revise the statement for the time being in force under this section.

(3) t shall be the duty of OFCOM in carrying out their functions to have regard to the statement for the time being in force under this section.

(4) Where OFCOM revise a statement under this section, they must publish the revision as soon as practicable.

(5) The publication under this section of a statement, or of a revision of a statement, must be in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by the matters to which it relates.

(6) OFCOM's report under paragraph 12 of the Schedule to the Office of Communications Act 2002 (c. 11) (annual report) for each financial year must contain a statement by OFCOM summarising the extent to which they have complied during that year with the standards set out under this section.'.

John Whittingdale (Conservative, Maldon and East Chelmsford)

At our sitting on Tuesday, we spent some time debating whether sufficient prominence was given to clause 3(3)(b), which is on the principles of regulation, as recommended by the better regulation task force. The Minister was clearly not persuaded by our argument that those principles should be given stronger prominence. The amendments focus on the first of those principles, that of transparency. They would strengthen the

requirement on Ofcom to be transparent in its decisions.

Amendment No. 132 refers to clause 3(6), which states that:

''Where it appears to OFCOM that any of their general duties conflict with each other in a particular case, they must secure that the conflict is resolved in the manner they think best in the circumstances.''

That is a fairly unremarkable requirement. The amendment would require Ofcom to publish the reason for its decision where there had been such a conflict between its various duties. As we have already debated, given the scope of Ofcom, its many duties, the speed of development of the technology in the sector for which it is responsible and the huge importance of the decisions, there is no doubt that conflicts will arise. Clearly, Ofcom will in some cases have a difficult task in deciding which requirement to give prominence to. Those who will be affected by that decision—both users and providers—should be entitled to know what has led Ofcom to reach a decision. That is the purpose of amendment No. 132. New clause 6 is designed to achieve the same objective.

During earlier debates, and particularly during the Joint Committee's debates, consideration was given to whether Ofcom should hold its meetings in public, and it was decided that that may not be appropriate. I do not wish to contest that. However, there is already a requirement on Ofcom to publish a statement on how promptly it is meeting its requirements. The purpose of new clause 6 is to place a similar requirement on Ofcom to publish a clear statement about what it is doing to achieve standards of openness. All Committee members want Ofcom to be open: it is important that everyone who will be affected by it—and, as I have said, they will represent a huge range of interests—understands the way in which it reaches its decisions and the factors that it takes into account. Both amendment No. 132 and the new clause are designed to achieve that objective.

Brian White (Labour, North East Milton Keynes)

I thank the Minister for his comments on regionalism. At this moment, I am also supposed to be on the Committee that is dealing with the Regional Assemblies (Preparations) Bill, so his remarks provide a novel way of combining my obligations.

Amendment No. 197 arose out of much of the evidence that the Joint Committee heard about the need for Ofcom to be transparent. Several comments were made about the need to understand where Ofcom is coming from, particularly with regard to appeals. The amendment is intended to ensure that when Ofcom makes decisions it explains why it has made them.

As the hon. Member for Maldon and East Chelmsford said, this is an area where there are fast-changing technologies; what may have been the right decision at one time may no longer be appropriate shortly afterwards, and if the reasons behind decisions are explained people can see what is happening. If Ofcom sets out its reasons, that will contribute to creating the culture of openness and transparency that we all want. Where there are conflicts—particularly

those involving European directives—it becomes much more important to accept the reasons.

Recently, there has been much criticism of regulators. It has been suggested that some of them have tried to undermine—or, at best, ignore—Government policy, and there are campaigns to make them more accountable to Government. It is important that Ofcom sets out the reasons for its decisions, but I am relaxed about how it does that; it does not matter whether it is done in an annual statement or at the time of the decision.

Where there are conflicts between the different stakeholders—such as the work force, different industries, the company making the complaint or the appellant—it is important for them all that the reasons for Ofcom coming to a certain conclusion are made transparent so that everybody understands what the issues are, rather than feeling that Ofcom's decision has appeared out of the ether. That is particularly true for those who make appeals.

Andrew Lansley (Conservative, South Cambridgeshire)

I shall speak to amendment No. 2, which is in my name and that of the hon. Member for North Devon. Its purpose is substantially the same as that of the amendment moved by my Front-Bench colleague, my hon. Friend the Member for Maldon and East Chelmsford, and that in the name of the hon. Member for Milton Keynes, North-East (Brian White). It differs from them simply in that, where Ofcom is seeking to reconcile conflicts between its general duties, it is required to set those out in a statement in the annual report. The amendment does not insist that Ofcom gives its reasons when each decision is made.

That is not to say that the reasons for decisions should not be offered when the regulator makes them. However, for the benefit of the wider stakeholders and businesses that are affected by Ofcom's responsibilities, it is important that individual decisions should have reasons attached to them, when that is appropriate. There should also be at least one statement in the annual report in which significant conflicts between general duties are brought together, so that Ofcom has an opportunity to set out how those conflicts are being reconciled. Those who would be affected by Ofcom's decisions, particularly in the early stages, should be able to see the manner of its thinking. That is as close as we could get in the drafting of the Bill to the proposal in paragraph 92 of the Joint Committee's report.

Our proposal tried to balance the desirability of Ofcom achieving the greatest possible transparency in its decision making and the risk that that would require it to provide a

''potentially formulaic explanation of all its decisions by reference to its general duties.''

That would be burdensome on Ofcom and tedious for the stakeholders, which is one reason why I felt that Ofcom should have the opportunity to address the issue by publishing in the annual report a synthesis of how it performs its general duties. However, any sensible regulator that encountered a novel decision would certainly publish reasons for such a decision.

In their response to the Joint Committee the Government generally agreed about the principle behind what was intended and the need to strike the balance that I mentioned, but they did not see a need for that to be expressed in the Bill. It would be extremely undesirable if Ofcom were to publish its annual report and not refer to that issue. Ofcom does not need that flexibility, so we could perfectly happily prescribe the duty in the Bill.

Michael Fabricant (Conservative, Lichfield)

I shall speak briefly in support of amendments, provided, that is, that I get no hostile interventions.

The Federal Communications Commission in Washington D.C., with which I am familiar, has an especially open policy. One of the reasons for that is to avoid judicial reviews. The Radio Authority has, on occasion, revoked a licence—usually quite rightly, in my view—and suffered a judicial review. That is because it does not have to give a reason, either for revoking or awarding licences.

I feel that the workings of Ofcom would be a little more reasonable if they were more open. The policy of both the Opposition and the Government is that government should be open and fair, and the amendment is a natural extension of that.

Kim Howells (Labour, Pontypridd)

I believe that the amendments are important and measured and I am glad that they have been raised. I will resist Nos. 132 and 197 and new clause 6. I will, however, explain to the Committee why I accept amendment No. 2 in principle.

We expect Ofcom to be a model of good regulatory practice. In some parts of the Bill that is explicit; for example, in clauses 6, 7 and 8. However, throughout the Bill it is implicit that Ofcom should be transparent and that it should be accountable for its actions. I am wary of new clause 6, which appears to provide a rather bureaucratic approach to an integral part of Ofcom's operation. The concept of a statement of openness is worthy, but I am not sure that that is necessary, particularly when one considers the Office of Communications Act 2002.

Paragraph 22 of the schedule to that Act makes Ofcom subject to the Freedom of Information Act 2000 and paragraph 23 applies the Public Records Act 1958 to Ofcom. Taken together, those provisions mean that Ofcom's duty to maintain records and respond to requests for information is the same as that of other official bodies. Clause 3(3)(b) requires that in its undertaking of regulatory activities Ofcom should have regard to the principles of good regulatory practice, which include accountability and transparency. My hon. Friend the Member for Milton Keynes, North-East made that the central theme of his contribution, as did the hon. Member for South Cambridgeshire. More specifically, we would encourage Ofcom as a matter of course to set out the reasoning behind its decision when there was a conflict between the duties.

I listened to the strong views expressed by the hon. Member for Maldon and East Chelmsford in support of amendments Nos. 132 and 197, which would insert

such a requirement in the Bill. I have noted those views and I am particularly sympathetic to amendment No. 2, which would require Ofcom to include in its annual report a summary of decisions made under subsection (6). That was also proposed by the Joint Committee and it suggested that that was the right approach. If the hon. Member for South Cambridgeshire does not press his amendment, I will be happy to accept it in principle and return with an appropriate amendment at a later stage.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I am grateful to the Minister. I am slightly hurt that he has picked out the amendment in the name of my hon. Friend the Member for South Cambridgeshire rather than the one in my name, but I am sure that it does not indicate any partiality.

I appreciate the Minister's promise to try to amend the Bill to reflect the wishes that are felt on both sides of the Committee. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.

Clause 4 - Duties for the purpose of fulfilling

John Whittingdale (Conservative, Maldon and East Chelmsford)

I beg to move amendment No. 30, in

clause 4, page 4, line 44, leave out from 'networks' to end of line 4 on page 5 and insert ', electronic communications services and associated facilities; and'.

Peter Atkinson (Conservative, Hexham)

With this it will be convenient to take the following amendments: No. 31, in

clause 4, page 5, line 32, leave out from beginning to 'for' and insert 'with the standards mentioned in subsection (10) to such an extent as is strictly necessary'.

No. 32, in

clause 4, page 5, leave out line 36.

John Whittingdale (Conservative, Maldon and East Chelmsford)

The purpose of the clause is essentially to ensure that the requirements under the various directives made by the European Union are properly transposed into UK law. Therefore it is important that the wording of the Bill should precisely reflect the requirements under the various directives. I am keenly aware of the widespread view that all too often when we implement directives through legislation there is a tendency to go a little further than is necessarily required. It is known as gold-plating and it should be resisted wherever possible. The amendments change the provisions of the clause so that they precisely reflect what is required under the various directives.

Amendment No. 30 focuses on article 8(2) of the framework directive. Subsection (3) is drafted in a way that gives a wider meaning than is intended by the framework directive. The framework directive requires national regulatory authorities to promote competition only in relation to the provision of electronic communications networks, electronic communications services and associated facilities, but subsection (3) extends the provision to any type of

service that is provided in association with those three categories. That could include television services.

Amendments Nos. 31 and 32 refer to subsection (9), which is intended to implement article 17(2) concerning standardisation. That subsection grants Ofcom discretion about whether to encourage compliance with standards; the directive provides that there shall be encouragement to use such standards only where ''strictly necessary''. Once again, the proposal goes beyond what the directive requires to give Ofcom slightly wider powers. The amendment would restore the wording of the Bill to reflect precisely what is required under the terms of the directive.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I shall be brief. Amendments Nos. 31 and 32 relate to the power in respect of European and international standards. The hon. Member for Maldon and East Chelmsford says that he does not want EU directives to be gold-plated, and I have much sympathy with that general principle. However, I am interested in how the standards, especially those referred to in the amendments, will be implemented by Ofcom, as there is potential for conflict.

Subsection (9) refers to standards to secure interoperability; subsection (6) states that one particular type of network technology should not be favoured, thus there is an inbuilt tension from the beginning. We are asking Ofcom to encourage the use of common standards for interoperability but saying that it must not favour one form of technology rather than another. Potentially, Ofcom will have to make some difficult judgments when implementing the requirements and taking real-life decisions.

I have been following a case that involves the use of power line technology for the transmission of data, which has been discussed by various agencies that will form part of Ofcom. In certain circumstances, the use of that technology can interfere with radio spectrum and decisions relating to it will therefore fall within Ofcom's remit. Those who introduce the power line technology will want to do so across the EU, and companies will seek an assurance on the basis that they are conforming to the EU standards referred to in the subsection. It will be a difficult judgment, with the potential to lead to drawn-out legal processes. If companies seek to introduce in the UK a technology that conforms to an EU standard, they will refer to that subsection, say that they are trying to be interoperable and market a product across the European Union, and seek protection from the framework directive. The precise definition, whether we accept the ''strictly necessary'' definition of the hon. Member for Maldon and East Chelmsford or the definition in the Bill, will be critical in determining whether companies can go ahead.

Michael Fabricant (Conservative, Lichfield)

It is interesting to note that the Minister referred in a previous sitting to radio astronomy and the application of frequencies. Is the hon. Gentleman aware that radio astronomers and the BBC World Service have said that the provision of data along power lines would interfere with their short-wave transmissions?

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I am grateful to the hon. Gentleman for that additional illustration. It is precisely such issues that will confront Ofcom. People are seeking judgment on new forms of technology all the time. They will cite European or international standards and look at the framework directive to govern how decisions are taken.

Chris Bryant (Labour, Rhondda)

I accept that if Ofcom were required to bring about mandatory standards there might be a problem, but a clause relating to interoperability is absolutely essential to the interests of consumers, otherwise there would be major problems for the buyers of, for example, Nokia telephones if they could speak only to the users of other Nokia telephones.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I will put my cards on the table: I am strongly in favour of interoperability and international standards and I want them to be observed. My natural instinct is to go with the wording in the Bill. However, the Conservative spokesman has teased out an important issue. An important distinction in future legal cases will relate to whether we accept the wording ''strictly necessary'' or what is currently in the Bill, which is ''consider appropriate''. My instinct is for international standards to be enforced.

That will also be significant for television standards, particularly digital television standards. Lively debates are continuing on whether we should have pan-European television standards. If we get to that stage, people will bring cases based precisely on what the clause says. People who want to advance common international standards will cite the fact that Ofcom has a duty to promote interoperability; those who wish to go with a proprietory standard will cite the fact that Ofcom should not prefer one technology over another.

I am merely asking the Minister to flesh out a little how he envisages the different powers working. Where might we find more detail on the implementation of the provisions, or will that come from Ofcom in future? The interesting and exciting thing is that Ofcom brings together all the different players in a way that did not happen before. The Radiocommunications Agency might have dealt with spectrum issues quite separately from those who were considering broadcasting or power line technology, for example. As I said, I am interested to know how we can get more clarity about the way in which the provisions will be implemented so that we meet the requirements of the framework directive.

Kim Howells (Labour, Pontypridd)

Through you, Mr. Atkinson, I apologise to the hon. Member for Maldon and East Chelmsford for upsetting him. He will be pleased when we have finished dealing with this group of amendments.

I shall talk about the significance of the clause, then address the issues raised by the hon. Members for Sheffield, Hallam and for Maldon and East Chelmsford. As hon. Members will know, a substantial part of the Bill is concerned with the implementation in United Kingdom law of four European directives on the regulation of electronic communications. Indeed, part 2 is largely taken up with those matters. However, one aspect of the directives is dealt with appropriately at this point,

immediately following the clause that we have just debated on the general duties of Ofcom.

Article 8 of the framework directive, in setting out the basic provisions of the Community regulatory scheme, sets out the policy objectives and regulatory principles that will govern the performance by the national regulatory authorities in respect of the responsibilities that are assigned to them in pursuit of the directives. As the hon. Member for Sheffield, Hallam made clear, when Ofcom assumes its regulatory responsibilities, it will become the national regulatory authority for the UK. It will also be the source of the information that he rightly flags up as being required after that point. The objectives required by the directives will therefore become in effect an additional set of duties governing the performance of Ofcom's functions so far as they fall within the scope of the directives.

The duties in relation to Ofcom, or ''Community requirements'' as the Bill describes them, are: to promote competition; to contribute to the development of the European internal market; to promote the interests of all citizens of the European Union; to carry out its functions so far as possible without discrimination between technologies or modes of electronic communication—that relates to the important point made by my hon. Friend the Member for Rhondda; to encourage the provision of network access and service interoperability; and to encourage compliance with international standards so far as is appropriate to facilitate service interoperability or to secure freedom of choice for consumers.

Mr. Whitt—Whittingdale is popping up again; it is a fascinating place, Mr. Atkinson. The Bill will form part of UK law and has to be construed using the conventions and principles of interpretation of UK law. As those are not the same as the conventions and principles of interpretation of European Community law—the point raised by the hon. Member for Maldon and East Chelmsford—it is not always possible to use the literal words of directives to obtain the intended effect. The aim is to transpose the effect of directives as faithfully as possible into UK law, and we believe that we have achieved it.

Members of the Committee will note that some of the duties that I have listed overlap with, or are similar to, the duties under clause 3—the promotion of competition, for example. Others deal with issues not covered by clause 3. Partly for that reason and partly to provide a clear and distinct implementation of the directive, those requirements are implemented through a separate clause. Because the requirements implement provisions of European law, Ofcom must, under clause 3(5), give them precedence over the clause 3 duties in any case of conflict. I hope that that explanation helps.

At first sight, amendment No. 3 looks like a laudable simplification of the Bill. It substitutes a defined term—''associated facility''—for what appears at first sight to be a passage effectively restating exactly

the same concept. However, subsection (3)(b) runs wider than the concept of associated facilities because it also covers associated services. It must do so because the directive requires it. In setting out the policy objectives of national regulatory authorities on promoting competition, the directive refers to electronic communications networks and services, and associated facilities and services. If we are to transpose the directive's provisions faithfully, we need the broader concept of ''associated facilities and services''.

Andrew Lansley (Conservative, South Cambridgeshire)

I appreciate the Minister's careful response to my hon. Friend the Member for Maldon and East Chelmsford. However, if the intention is to reflect the directive precisely and if amendment No. 30 does not quite achieve that because it should read ''electronic communications services and associated facilities and services'', why would an amendment in those terms be unacceptable?

Kim Howells (Labour, Pontypridd)

That is not the amendment before us. As the hon. Gentleman said, the wording must be precise. If I can move on, it should help to explain the position.

Amendments Nos. 31 and 32 are designed to replace

''to such extent as OFCOM consider appropriate''

in subsection (9) with

''to such extent as is strictly necessary''.

At first sight, it seems a more faithful transposition of article 17.2 of the directive, and we shall certainly examine the amendments carefully. If necessary, we shall table suitable amendments on Report. I therefore ask the hon. Gentleman to withdraw the amendment.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I can assure the Minister that the small degree of hurt that I felt earlier has largely been removed as a result of his contribution. My hon. Friend the Member for South Cambridgeshire made a good point about amendment No. 30, when he said that the Minister acknowledged that removing two paragraphs and replacing them with a much smaller form of words would simplify and improve the Bill. If the addition of the words ''and services'' to my amendment would negate the need for paragraphs (b) and (c), surely it would be an improvement.

Nevertheless, I accept the Minister's explanation and welcome his undertaking to re-examine the wording of subsection (9) in order properly to reflect the directive's requirement. I look forward to seeing his later conclusions and perhaps his tabling of amendments on Report. In the spirit of his response, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.

Clause 5 ordered to stand part of the Bill.

Clause 6 - Duties to review regulatory burdens

John Greenway (Conservative, Ryedale)

I beg to move amendment No. 204, in

clause 6, page 7, line 9, after 'secured', insert ', or may be furthered or secured'.

Peter Atkinson (Conservative, Hexham)

With this it will be convenient to take the following:

Amendment No. 128, in

clause 6, page 7, line 11, at end insert—

'(c) to seek the views of persons providing services and facilities in relation to which OFCOM have functions on which of these functions should be subject to review.'.

Amendment No. 3, in

clause 6, page 7, line 16, leave out 'and'.

Amendment No. 4, in

clause 6, page 7, line 18, at end insert 'and

(c) whether the procedures for self-regulation offer adequate opportunities for public scrutiny and for reporting on those activities to OFCOM, to the Secretary of State and to Parliament as appropriate.'.

Amendment No. 50, in

clause 6, page 7, line 18, at end insert—

'(c) whether persons with sufficient commercial knowledge of the persons who may be subjected to the procedures are consulted.'.

Amendment No. 122, in

clause 355, page 307, line 7, at end add—

'(4) OFCOM's competition functions should form part of the review of regulatory burdens by OFCOM as described in section 6.'.

New clause 2—Duty to establish and maintain Competition Board

'(1) It shall be the duty of OFCOM to establish and maintain a committee to be known as ''the Competition Board''.

(2) The Competition Board shall consist of—

(a) a chairman appointed by OFCOM; and

(b) such number of other members appointed by OFCOM as OFCOM may determine.

(3) In appointing a person OFCOM must have regard to the desirability of ensuring that the persons appointed are experts, both users and suppliers of electronic communications, working in the industry who have a commercial knowledge of the market.

(4) Before appointing a person to be chairman or another member of the Competition Board, OFCOM must satisfy themselves that he will not have any direct financial or other interest which would be likely prejudicially to affect the carrying out by him of any of his functions as chairman or member of the Competition Board.'.

New clause 3—Functions of the Competition Board—

'(1) The functions conferred on the Competition Board must include, to such an extent and subject to such restrictions and approvals as OFCOM may determine, the carrying out on OFCOM's behalf of—

(a) functions in relation to ensuring that there is a constant process of evaluating the level of competition in the market, assessing possible moves to self-regulation, and between ex ante and ex post regulation;

(b) functions in relation to determining the matters to which a regulatory impact assessment should relate; and

(c) functions in relation to addressing and managing the issues of concurrent powers between OFCOM and the Office of Fair Trading.

(2) The power of OFCOM to determine the Competition Board's functions includes power to authorise the Board to establish committees and panels to advise the Board on the carrying out of some or all of the Board's functions.'.

New clause 4—Duty to establish and maintain Economic Panel—

'(1) It shall be the duty of OFCOM, in accordance with the following provisions of this section, to exercise their powers under paragraph 14 of the Schedule to the Office of Communications Act

2002 (c. 11) to establish and maintain a committee to be known as ''the Economic Panel'' to give advice to OFCOM on economic theory and practice in relation to the exercise of their functions under this Act and, in particular, in relation to the following matters—

(a) the nature and operation of markets for electronic networks, electronic communications services and associated facilities;

(b) the interests of providers of such networks, services and facilities as well as those of consumers;

(c) the promotion of competition between such providers; and

(d) economic regulatory policy.

(2) The arrangements made by OFCOM under this section must also secure that the Economic Panel are able, in addition to giving advice on the matters mentioned in subsection (1), to make arrangements for the carrying out of such research relevant to the giving of that advice as they think fit.

(3) It shall be the duty of OFCOM, in the carrying out of their functions, to consider and, to such extent as they think appropriate, to have regard to—

(a) any advice given to OFCOM by the Economic Panel; and

(b) any results notified to OFCOM of any research undertaken by that Panel.'.

New clause 7—Industry consultation—

'(1) It shall be the duty of OFCOM to establish and maintain effective arrangements for consultation about the carrying out of their functions with—

(a) suppliers in the markets for the services and facilities in relation to which OFCOM have functions;

(b) suppliers in the markets for apparatus used in connection with any such services or facilities.

(2) The arrangements must include the establishment and maintenance of a panel of persons (in this Act referred to as ''the Industry Consultative Panel'') with the function of advising OFCOM.

(3) It shall be the duty of OFCOM, in the carrying out of their functions, to consider and, to such extent as they think appropriate, to have regard to the views given to OFCOM by the Industry Consultative Panel.

(4) The members of the Industry Panel shall be appointed by OFCOM and shall comprise a chairman and such other members as OFCOM may determine.'.

John Greenway (Conservative, Ryedale)

I will speak to amendment No. 204 and, if he catches your eye, Mr. Atkinson, my hon. Friend the Member for Blaby (Mr. Robathan) will speak to the other amendments.

On Tuesday afternoon, I raised the important question of self-regulation and the opportunity that the Bill and the creation of Ofcom, as a single overarching regulator, provide for self-regulation in television and broadcast advertising. It may be useful to remind the Committee about how broadcast advertising is currently regulated. It is subject to statutory control with pre-clearance by self-regulatory bodies. Television advertising is the responsibility of the Independent Television Commission and the Radio Authority regulates radio advertising. Advertisements are pre-cleared by the broadcast advertising clearance centre for television, and the radio advertising clearance centre for radio. Under clause 307, Ofcom will take over the ITC and Radio Authority responsibilities. However, clause 3 places a duty on Ofcom to have regard to the promotion and facilitation of self-regulation.

Clause 1 gives Ofcom the power to contract out its functions and clause 6 places a duty on Ofcom to keep its functions under review. Clause 6(2)(a), to which the

amendment specifically refers, requires Ofcom, in reviewing its functions, to have regard to the extent to which the general duties under clause 3 can be achieved by self-regulation. That is the framework that we are examining. However, subsection 2(a) is couched in the past, not the future, tense on the extent to which the general duties that Ofcom is

''required under section 3 to further, or to secure,''

stating that they

''are already furthered or secured by effective self-regulation''

However, there is no self-regulatory body for broadcast advertising.

I indicated earlier—and the Minister did not contradict me, although he had many questions to answer—that Ministers agree that self-regulation is a sensible development for Ofcom to pursue in the future. That is why we suggest, on the advice of the Advertising Association that it would make sense to do so, to cover the opportunity of future self-regulation by inserting into the Bill via amendment No. 204 the words:

''or may be furthered or secured''.

The subsection would then read:

''In reviewing their functions under this section it shall be the duty of OFCOM—

(a) to have regard to the extent to which the matters which they are required under section 3 to further, or to secure, are already furthered or secured or may be furthered or secured by effective self-regulation.''

My point might seem technical, but the drafting of clause 6(2)(a) needs attention. Either amendment No. 204 or something similar at a later stage is needed.

The issue is vitally important to the Bill and to the future of regulation under Ofcom. Broadcast advertising regulation is a prime candidate for Ofcom to achieve a less bureaucratic regime than has hitherto existed. There will be self-regulation, but Ofcom will retain back-stop powers. Clauses 307, 309 and 310 give Ofcom banning powers in respect of certain advertisements. We will debate those clauses later, but I do not want anyone in the Committee, or anyone who studies this debate, to think that self-regulation means that Ofcom will be powerless to deal with offensive material. It will not be—it has those powers now.

The Committee has to face up to the fact that television advertising will be a significant—perhaps the most significant—means of delivering new broadcast services. Developments in multichannel broadcasting, new approaches to retailing such as online sales, and changes in viewing and listening habits mean that we no longer live as we did when the Minister and I were kids, when people could watch only the BBC or ITV, and anybody who watched ITV saw the adverts. It is not like that any more. Traditional certainties of viewing patterns have been undermined by technological and sociological changes.

This nation leads Europe in the quality of our advertising, marketing and incentives industry. I remind the Committee of my entry in the Register of

Members' Interests, which shows my long association with incentives and promotions. We are market leaders in Europe. The industry recognises that brands now need to be able to advertise, market and promote their products across several platforms at the same time. That is not easily achieved with any speed or certainty if regulatory structures overlap. It is clearly undesirable for one important regulatory structure to require pre-clearance while all the others are self-regulatory. Within the European Commission, there is an advanced self-regulatory regime for sales and promotion throughout Europe. The self-regulatory tide is flowing in the right direction.

John Robertson (Labour, Glasgow Anniesland)

Does the hon. Gentleman accept that self-regulation has not worked? I am thinking about tobacco advertising in particular, where advertisers have misused self-regulation. Laws have had to be brought in to govern such advertising.

John Greenway (Conservative, Ryedale)

One should not consider the value of self-regulation throughout the media and marketing world on the basis of views on what should and should not be permitted in tobacco advertising. The House and the European Commission have come to a clear judgment on that, and I do not think that the tobacco industry is a particularly good example of self-regulation not working.

Brian White (Labour, North East Milton Keynes)

Will the hon. Gentleman give way?

John Greenway (Conservative, Ryedale)

No, I will not give way, because we are straying away from the point of the amendment.

The Minister will, I think, support the concept of self-regulation. We are seeing media convergence on a number of different platforms. We should try to achieve one set of rules for the different media and those rules should take account of the different contexts of those media.

Despite the interventions, I will not detain the Committee with a lengthy argument on the advantages and benefits of self-regulation—although I would gladly do so if time permitted. However, I will say that self-regulation is fast and flexible. As the Minister knows, the advertising and broadcasting industries are keen to develop proposals for consideration by Ofcom, with the support of the Advertising Standards Authority. All that is for the future, but it is important that the Bill allows for that opportunity. I urge the Minister to consider the amendment very carefully and to ensure that what we want is not accidentally, inadvertently and unintentionally constrained by the Bill's wording.

Before I sit down, I urge the Minister to resist amendment No. 4, which was tabled by my hon. Friend the Member for South Cambridgeshire and the hon. Member for North Devon. It makes no sense to impose a requirement on the new self-regulatory body to report to the Secretary of State and Parliament.

Andrew Lansley (Conservative, South Cambridgeshire)

If my hon. Friend reads the amendment, he will find that that is not a requirement. The amendment states that it should happen if

''the procedures . . . offer adequate opportunities . . . as appropriate.''

There is no requirement in the amendment.

John Greenway (Conservative, Ryedale)

I am grateful for my hon. Friend's assurance that the amendment is quite not as bad as it might be, but I still think that it is pretty bad. We are providing an opportunity for Ofcom to report to Parliament. Although a self-regulatory regime for broadcast advertising would be a welcome development, I understand that it would still be within Ofcom's gift to take back any duties, powers and functions that it sees fit. I hope that the Minister will look favourably on amendment No. 204 and resist amendment No. 4.

Brian White (Labour, North East Milton Keynes)

I shall be brief. The hon. Member for Ryedale talked about self-regulation. The Joint Committee recommendation that the Government accepted was about accredited self-regulation. There is a fundamental difference between the two. The powers rest with the regulator but the regulator actually uses the powers in self-regulation through codes of practice. The crucial difference is that the powers exist but the fact that they are exercised in a self-regulatory way makes them effective. Simply leaving things to self-regulation without such backstop powers gives rise to the problems about which my hon. Friend the Member for Glasgow, Anniesland talked. Accreditation is crucial, and transparency and accountability also matter.

Andrew Robathan (Conservative, Blaby)

I rise to speak to amendments Nos. 128 and 50 and to new clauses 2 to 4 and 7. They are complementary to what my hon. Friend the Member for Ryedale said but take things further. We know that all involved in this vital industry have huge concerns about the regulatory burden and how it will be reviewed. I suspect that we all want a light touch and as little regulation as appropriate, and the amendments reflect that.

The purpose of amendment No. 128 is to introduce a requirement to consult the industry on the regulatory functions that should be subject to review. I would have thought that that was eminently sensible. Ofcom's requirement to review the regulatory burdens that it places on the communications industry has been welcomed throughout the industry, as has talk of effective self-regulation. It is only sensible that the regulator makes a regular examination of its regulation to determine which aspects are outdated or unnecessary. We want to see whether we can improve those provisions and to include improvements in the Bill.

It is all too easy for a regulator to become detached from the industry that it regulates. New technologies and new developments will always call existing regulation into question, which was the experience with Oftel, the Independent Television Commission and others. An example of that is the emergence of interactive television, which developed rapidly beyond anything envisaged in the ITC's codes. Amendment No. 128 would insert a requirement that Ofcom should seek the views of service providers on the aspects of regulation that they believe should be reviewed. That neither undermines Ofcom nor requires Ofcom to act on the industry's views. However, it will be a useful mechanism and allow the industry to give its input into a regular review of Ofcom's regulatory functions. The

amendment is not offensive, and would help both Ofcom and the Government.

Amendment No. 50 is similar, but approaches the matter from a slightly different angle. As part of the regulatory review process, Ofcom will need to consult businesses with commercial experience of the particular markets under review. The size, variety and pace of development of converged markets will mean that often only the increasingly wide variety of businesses—both suppliers and users—working within the markets will have an appropriate understanding of when regulatory adjustment is required and in what way. Consulting with businesses will be particularly important when deciding when to move from ex-ante to ex-post regulation, a core issue when supporting the process of convergence.

Looking at the matter from a different perspective is the competition board proposed under new clauses 2 and 3. I am sure that Ofcom will be staffed by people who are highly qualified to make decisions about the required regulation, size, variety and closer development of converged markets, but because of that closer development, often only those working in the markets will know when regulatory reform is required and on what basis. To remain productive, Ofcom should listen to business on a more systematic basis than is currently provided for under the Bill. The effectiveness of the Bill will have a far-reaching impact on business competitiveness, which is why it is important that the business community has a proper statutory voice that is guaranteed in primary legislation.

Let us consider another angle; instead of a competition board, an economic panel could be established. It will be a particular challenge for Ofcom's board to balance the different demands on its time and resources. The consumer panel and the content board will go some way to ensure that their respected spheres of responsibility are regulated sensibly and consistently. They will act as champions for their areas. At present, however, there is no equivalent body within Oftel, for example, to deal with economic regulation and the amendment would correct that position in respect of Ofcom. Why should such a body be needed? I met some members of the Ofcom board last night at the Radio Authority's reception and very sensible they were, too.

Michael Fabricant (Conservative, Lichfield)

That is reassuring.

Andrew Robathan (Conservative, Blaby)

I was being polite. I was slightly concerned about the political leaning of one or two of them, but never mind.

The natural tendency of the Ofcom board is to focus on supposedly the more interesting area, the regulation of television content. The media have already commented on that. It would be useful for economic regulation to have its own champion. It is also worth noting that Ofcom will exercise concurrent jurisdiction under the Competition Act with the Office of Fair Trading. The economic panel's role should encompass guidance on how that jurisdiction relates to the sector's specific powers under the Bill.

At present, it is unclear how the main Ofcom board will address issues of decency and taste, on the one

hand—that will be interesting for the media—and, on the other hand, complex issues such as forward-looking, incremental cost modelling and price setting for the communications networks. The economic panel proposed under the new clause would fulfil a vital function for our beleaguered telecoms sector. Telecoms is a much bigger industry than the television sector. It is a highly capital-intensive business and, to invest, companies need to access global capital markets. The ability to raise capital, and the cost of doing so, is a constraint on the ability of companies to invest.

Both the availability and cost of capital are determined by the riskiness of the industry in which a company does business. By international standards, the United Kingdom regulatory environment has been seen historically as a relatively low-risk base for telecoms companies. By taking a consistent, intellectually rigorous approach to economic regulation within the communications sector, the economic panel would deliver much-needed certainty for such businesses.

I turn finally to new clause 7, which, again, is about industrial consultation. It is another way to ensure proper consultation with the industry that the regulations will affect. It concerns advice about the consequences of regulation. The Committee will have seen that all the amendments and new clauses are designed with one overriding purpose in mind. Consumers already have their panel—their voice—but industry does not. One has to ask where does the Department of Trade and Industry stand in the argument?

John Robertson (Labour, Glasgow Anniesland)

Should there be a place for employees? The hon. Gentleman has talked about consumers and industry, but not about employees.

Andrew Robathan (Conservative, Blaby)

I am happy to answer that point. Unlike the hon. Gentleman, I do not see the issue in terms of a division between employees and management, but in terms of all those who are involved in industry. I hope that every part of the industry takes account of employees' views, whether of the senior managing director or of the lowliest person in a company who has just joined as a teaboy at 16 or 17. However, I am interested to see old Labour rear its ugly head.

How is the DTI standing up for this important industrial sector; those creators of wealth? One might ask, ''Where is the DTI Minister?'' I understand that he is in Japan. Well, that is fine; I am sure that he has important business there. However, the DTI should be making its voice heard on the protection of important industrial sectors.

The value of broadcasting, and particularly of telecommunications, is immense and growing. That sector has huge economic importance. For example, hon. Members will be aware that the mobile telephone companies produced £22 billion in the Chancellor of the Exchequer's recent auction. We are sure that Ofcom will try to act wisely. One, or all, of the amendments—or even a similar amendment—would

give to this vital industrial sector a genuine voice regarding its regulation. Such a provision should be included in the Bill and we expect the Government to recognise that.

Andrew Lansley (Conservative, South Cambridgeshire)

The group of amendments covers different aspects of the topic of regulatory burdens. I endorse lead amendment No. 204. I imagine that the Government would argue that the purpose of clause 6(2) is to allow Ofcom to consider the extent to which the objectives and functions of self-regulation are currently being met and to consider where it might withdraw from future regulatory burdens. That would, by implication, leave room for self-regulation to develop. However, that is not accurately represented in the Bill.

The purpose is to permit the growth of self-regulation as a way to meet Ofcom's objectives. That would be difficult if the alternative to Ofcom fulfilling its functions directly were self-regulation, under which Ofcom would withdraw and leave the way open for that to happen. That would be to miss the purpose of the clause, which, as the hon. Member for Milton Keynes, North-East rightly suggested, is intended to promote a range of regulatory mechanisms, including co-regulation—what the Joint Committee called accredited self-regulation—which is the maintenance of a regulatory function in the hands of the industry with backstop powers for Ofcom. Amendment No. 204 would assist with that and amendment No. 4 would also help.

I am sorry that my hon. Friend the Member for Blaby does not agree. I received a fax last night from the Advertising Association, which disliked the amendment for the same incorrect reason. That body had not read the amendment carefully enough and did not realise that it would not reimpose self-regulation requirements. In fact, the amendment reflected the desire of those who drafted it to show the desirability of co-regulatory outcomes, for those who are engaged in self-regulation are not necessarily free from the obligations to transparency and accountability.

If we could escape from regulation—because self-regulation in the industry is so effective that reporting through Ofcom to the Secretary of State or Parliament is not required—that would be fine, and a genuine self-regulatory outcome. However, we are not looking at that alone. I hope that we are also studying where we can expand the frontiers of self-regulation to include more of the functions that would normally be conducted by the regulator. We hope that Ofcom will do more in this respect than has so far been the case.

Broadcast advertising is only one example. I hope that my hon. Friend the Member for Blaby does not think that we are talking about only a code of broadcast advertising; we are addressing a wide range of functions. In some instances, there may be every reason for there to be transparency and accountability back to the House, or to whatever mechanism is set up in this House. That is precisely what the Joint Committee suggested, in paragraph 71, should be one of the criteria that is reflected. That is reflected directly into clause 6(3). Clause 6 (3) (a) and (b) seem to relate directly to recommendations from

the Joint Committee, but that Committee went on to refer to the transparency and accountability of a self-regulatory body, including the requirement to publish a full annual report on its activities so that is available to Parliament.

I do not want to be as prescriptive as that about how that transparency or accountability might work, so the structure of amendment No. 4 permits Ofcom to see what opportunities would be appropriate for accountability through Ofcom to the Secretary of State and Parliament. I should be interested to hear from the Minister to what extent the Deregulation and Contracting Out Act 1994 presents a difficulty in respect of this line of accountability back to Parliament, and if it does present a difficulty other routes may be available. For example, if Ofcom wishes to do so, there is no reason in principle why it could not seek a regulatory reform order to achieve the same objective. That could then incorporate those mechanisms of accountability that we require. Therefore, I urge Committee members to support amendment No. 4.

The Joint Committee looked at other material relating to economic boards, competition boards, economic panels and so forth. It saw no rationale for the creation of an economic or competition board as such. The reason for that is straightforward. The Minister was wrong to suggest that Ofcom is not primarily an economic regulator; it is primarily an economic regulator. If one alienates from the board of Ofcom its function in relation to competition or economic analysis and regulation, I wonder what Ofcom would have left to do.

The content board is established because of the experience of having to deal with a range of those issues and the time and the trouble that it consumes.

Andrew Robathan (Conservative, Blaby)

Does my hon. Friend not think that, in the discussions that will go on in Ofcom about regulatory review, the voice of active and practical industrial experience should be heard? Things rapidly change in this fast moving industry. The purpose of these amendments is to ensure that Ofcom is well briefed—that it is forced to be so—about what is happening in industry. There is no reason why it should have to act on such information, but it must know what is happening.

Andrew Lansley (Conservative, South Cambridgeshire)

My hon. Friend is urging Ofcom to do the thing that Ofcom is free to do anyway; to establish an economic panel. Some of the other new clauses in relation to a competition board or an economic board seem to be alienating from Ofcom's board its primary responsibility. It is perverse to build that into the statutory structure. Ofcom will have to have regard to its impact on industry, but why is the consumer panel in the legislation? That is precisely what that is intended to achieve. If Ofcom feels that that is not sufficient, it has the discretion to add to it under the Office of Communications Act 2002.

Kim Howells (Labour, Pontypridd)

We want Ofcom to be an example of good regulatory practice. Clause 6 is one of the clauses that enshrines that principle. It puts in place a mechanism to ensure that regulatory burdens are

kept to a minimum, and that that minimum is the one that is necessary to achieve Ofcom's objectives. The mechanism is straightforward and transparent. Subsection (1) requires Ofcom to review its activities in order to ensure that it is not imposing or maintaining unnecessary regulations. Under subsections (4) to (6), it must publish a series of statements setting out how it intends to secure that requirement over successive 12-month periods. Subsection (8) gives Ofcom the flexibility to revise the statement if necessary.

Amendment No. 128 would require Ofcom to seek the views of industry on which of its functions should be reviewed. I am wary of putting in the Bill a specific reference to industry but not to other groups, including consumers, who are likely to have views. Ofcom needs to be inclusive and receptive to the needs of all of its stakeholders.

Andrew Robathan (Conservative, Blaby)

I understand what the Minister is saying, but surely the industry needs to be consulted in some way. That may happen anyway; we are trying to make that consultation a requirement in the Bill. There is a consumer panel, so why should not there be a statutory requirement to ensure that industry is consulted? In particular, the DTI—which is, allegedly, a champion of business and is co-sponsor of the Bill—is not, in this instance, championing business at all.

Kim Howells (Labour, Pontypridd)

I cannot speak for the DTI, but having served—as they sometimes term it—three and a half years at that Department, I am not sure that it does anything other than sponsor industry sectors. However, I am thinking hard and am sure that I will come up with something else.

Amendment No. 128 would require Ofcom to seek the views of industry. I certainly expect that Ofcom will do that. As hon. Members acknowledged, we have strengthened the role of self-regulation when it is not specifically provided for elsewhere in the Bill. The Bill puts in place a framework that will enable Ofcom to use self-regulatory approaches in carrying out its functions.

It is important that statutory regulation is not Ofcom's sole option, particularly as self-regulation can be an effective alternative. I more than take the point of amendment No. 204, which would allow Ofcom to consider not only whether self-regulation is already securing or furthering duties, but also whether it may do so still further. The amendment is sensible and would enable Ofcom to look to the future, as well as to the present. However, I am advised by parliamentary counsel that the use of the words ''may be'' to mean that something is likely to happen in the future is not as clear as it might be. There are lots of very wealthy lawyers in the world, and we must be careful about such things.

I am happy to accept the amendment in principle and, if the hon. Member for Ryedale withdraws it, I shall return with an appropriate amendment at a later stage.

John Greenway (Conservative, Ryedale)

I am very grateful to the Minister. I said that the matter was a technical one and that the wording might not be entirely accurate. Given how

such things used to work in Standing Committee, we probably would have sought to change ''may'' to ''shall'' had ''may be'' been in the Bill.

Kim Howells (Labour, Pontypridd)

Yes, I remember those days. I am not sure whether I regret their passing.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I am sorry to divert the Minister, but he made an interesting point about the fact that when self-regulation is possible, it is preferable to statutory regulation. There have been one or two rumours to the contrary. A good example of self-regulation is the Press Complaints Commission. Will the Minister make it absolutely clear that there is no question that Ofcom or any other body might seek to replace self-regulation with statutory regulation?

Kim Howells (Labour, Pontypridd)

I am not a man to indulge in rumours.

Peter Atkinson (Conservative, Hexham)

I think also that that matter is a bit beyond the scope of the amendments.

Kim Howells (Labour, Pontypridd)

Thank you very much, Mr. Atkinson. [Laughter.]

Andrew Robathan (Conservative, Blaby)

The Minister is off that particular hook.

Kim Howells (Labour, Pontypridd)

Quite.

Subsection (3) sets out two criteria that Ofcom will need to consider whether the self-regulatory body is sufficiently independent from industry, and whether it is adequately funded. I know that the hon. Member for Ryedale will have no argument with that. Ofcom can, of course, also consider any other criteria.

To be able to deliver full account if its activities, Ofcom would need to report on any self-regulatory activities. Accountability of the self-regulatory body is therefore implicit.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee E

Communications Bill

Roger Gale (Conservative, North Thanet)

I remind hon. Members that the Committee agreed this morning that proceedings up to the end of clause 27, including schedule 2, must be concluded by 5 o'clock, and not at the end of the morning sitting as is shown on the selection list.Clause 6 Duties to review regulatory burdens

Clause 6 - Duties to review regulatory burdens

Roger Gale (Conservative, North Thanet)

I remind the Committee that with this it will be convenient to take the following: Amendment No. 128, in

clause 6, page 7, line 11, at end insert—

'(c) to seek the views of persons providing services and facilities in relation to which OFCOM have functions on which of these functions should be subject to review.'.

Amendment No. 3, in

clause 6, page 7, line 16, leave out 'and'.

Amendment No. 4, in

clause 6, page 7, line 18, at end insert 'and

(c) whether the procedures for self-regulation offer adequate opportunities for public scrutiny and for reporting on those activities to OFCOM, to the Secretary of State and to Parliament as appropriate.'.

Amendment No. 50, in

clause 6, page 7, line 18, at end insert—

'(c) whether persons with sufficient commercial knowledge of the persons who may be subjected to the procedures are consulted.'.

Amendment No. 122, in

clause 355, page 307, line 7, at end add—

'(4) OFCOM's competition functions should form part of the review of regulatory burdens by OFCOM as described in section 6.'.

New clause 2—Duty to establish and maintain Competition Board

To move the following Clause:—

'(1) It shall be the duty of OFCOM to establish and maintain a committee to be known as ''the Competition Board''.

(2) The Competition Board shall consist of—

(a) a chairman appointed by OFCOM; and

(b) such number of other members appointed by OFCOM as OFCOM may determine.

(3) In appointing a person OFCOM must have regard to the desirability of ensuring that the persons appointed are experts, both users and suppliers of electronic communications, working in the industry who have a commercial knowledge of the market.

(4) Before appointing a person to be chairman or another member of the Competition Board, OFCOM must satisfy themselves that he will not have any direct financial or other interest which

would be likely prejudicially to affect the carrying out by him of any of his functions as chairman or member of the Competition Board.'.

New clause 3—Functions of the Competition Board

To move the following Clause:—

'(1) The functions conferred on the Competition Board must include, to such an extent and subject to such restrictions and approvals as OFCOM may determine, the carrying out on OFCOM's behalf of—

(a) functions in relation to ensuring that there is a constant process of evaluating the level of competition in the market, assessing possible moves to self-regulation, and between ex ante and ex post regulation;

(b) functions in relation to determining the matters to which a regulatory impact assessment should relate; and

(c) functions in relation to addressing and managing the issues of concurrent powers between OFCOM and the Office of Fair Trading.

(2) The power of OFCOM to determine the Competition Board's functions includes power to authorise the Board to establish committees and panels to advise the Board on the carrying out of some or all of the Board's functions.'.

New clause 4—Duty to establish and maintain Economic Panel

To move the following Clause:—

'(1) It shall be the duty of OFCOM, in accordance with the following provisions of this section, to exercise their powers under paragraph 14 of the Schedule to the Office of Communications Act 2002 (c. 11) to establish and maintain a committee to be known as ''the Economic Panel'' to give advice to OFCOM on economic theory and practice in relation to the exercise of their functions under this Act and, in particular, in relation to the following matters—

(a) the nature and operation of markets for electronic networks, electronic communications services and associated facilities;

(b) the interests of providers of such networks, services and facilities as well as those of consumers;

(c) the promotion of competition between such providers; and

(d) economic regulatory policy.

(2) The arrangements made by OFCOM under this section must also secure that the Economic Panel are able, in addition to giving advice on the matters mentioned in subsection (1), to make arrangements for the carrying out of such research relevant to the giving of that advice as they think fit.

(3) It shall be the duty of OFCOM, in the carrying out of their functions, to consider and, to such extent as they think appropriate, to have regard to—

(a) any advice given to OFCOM by the Economic Panel; and

(b) any results notified to OFCOM of any research undertaken by that Panel.'.

New clause 7—Industry consultation

To move the following Clause:—

'(1) It shall be the duty of OFCOM to establish and maintain effective arrangements for consultation about the carrying out of their functions with—

(a) suppliers in the markets for the services and facilities in relation to which OFCOM have functions;

(b) suppliers in the markets for apparatus used in connection with any such services or facilities.

(2) The arrangements must include the establishment and maintenance of a panel of persons (in this Act referred to as ''the Industry Consultative Panel'') with the function of advising OFCOM.

(3) It shall be the duty of OFCOM, in the carrying out of their functions, to consider and, to such extent as they think appropriate, to have regard to the views given to OFCOM by the Industry Consultative Panel.

(4) The members of the Industry Panel shall be appointed by OFCOM and shall comprise a chairman and such other members as OFCOM may determine.'.

Kim Howells (Labour, Pontypridd)

I was about to try to answer the question put by the hon. Member for South Cambridgeshire (Mr. Lansley). He asked whether the Deregulation and Contracting Out Act 1994 posed an obstacle to amendment No. 4. It does not pose an obstacle because the amendment deals with clause 6, which is about self-regulation, and that is not the same as contracting out in the terms of that Act. Ofcom will be able to contract out under clause 1(7). I am grateful to the hon. Gentleman for asking that question because I also know the answer to that now.

Amendment No. 122 seeks to ensure that Ofcom's competition functions will fall within the scope of clause 6. That is not necessary because the Bill already achieves that. The competition functions are excluded from the general duties by clause 3, which ensures that those functions that can be exercised by Ofcom or the Office of Fair Trading are exercised within a consistent framework, irrespective of which body acts. The exclusion of the duties is set out in clause 356(11). However, that applies only to clause 3 duties, and there is no such exclusion for clause 6. That is why this amendment is unnecessary.

I turn to new clauses 2, 3, 4 and 7. New clause 2 would place Ofcom under a duty to establish a competition board. That matter was fully examined by the Joint Committee, which concluded that there was no rationale for an economic or competition board with executive functions. New clauses 2 and 3 do not make it entirely clear whether it is intended that the proposed competition board would have executive functions—as opposed to, for instance, a purely advisory role.

New clauses 4 and 7 apparently envisage a largely advisory role for the economic panel, and an industry panel. However, I assume that a key aim of new clauses 2 and 3 is to ensure that Ofcom gives due priority to competition and to proportionate regulation in its decisions on policy and individual cases, and that it has access to expert advice from people with relevant industry and commercial knowledge. The hon. Member for Blaby (Mr. Robathan) asked me specifically about that. I agree that Ofcom must have constant and ongoing discussions of that kind, and I fully expect it to do so. If that happens, the arrangements that we have laid down in the Bill, and the steps that have been taken so far to create Ofcom, already make satisfactory provision for that without adding unnecessary complication to the structure and operation of Ofcom by the creation of several other boards and panels.

It is important to bear in mind that Ofcom will not be limited to internal sources of advice and expertise, significant though those are. On the contrary, it can obtain and will be offered views and advice from a wide range of sources in industry, commerce, the academic, technical and legal worlds, and the general

public. Ofcom will not go about its work in secret. The Bill obliges it to consult widely on all significant proposals—not only the general principles, but the detailed content and, especially, the impact on business. Additionally, the clause requires Ofcom to publish regular statements setting out plans for the continuous review of regulatory burdens, including proposals to remove or reduce existing regulations or to replace them by self-regulation.

We hope and expect that a wide range of industry groups and individual firms will contribute fully to all the consultations, as happens at present.

Brian White (Labour, North East Milton Keynes)

Does my hon. Friend accept the point made this morning that the work forces in the different areas have a key role to play and should form part of the consultations in which Ofcom indulges?

Kim Howells (Labour, Pontypridd)

Yes. I believe that the hon. Member for Blaby made the point, and probably in a different way than I will, that the work forces should do that. It has been one of the great weaknesses of British industry for a long time—I will not go on about this because we could talk about it for ever—that there is often a terrible schism between so-called top layers of management and everybody else, which sometimes includes senior managers but not the very top layers of management. It is important to try to tap the potential, skills and visions of people who are not necessarily chairmen or chief executives. I hope that we can work out ways of gathering such expertise and vision to enhance the information that Ofcom will receive about all sectors. It is an important issue.

In telecoms, for example, BT and other operators already feed important comments and views, either independently or through bodies such as the Operators Group, into the various regulators that we will combine into Ofcom. Under the Office of Communications Act 2002, Ofcom has the power to appoint both executive and advisory committees, if that is considered to be appropriate. If it considers that it is necessary to have additional and more formal structures in the light of experience, it can create them.

These mechanisms will be much more effective in ensuring that Ofcom receives the benefit of up-to-date specialist, commercial and industrial advice on competition, deregulation and the carrying out of its functions than specific boards and panels. That will allow Ofcom's board and staff to carry out their functions more flexibly and to respond to developments more quickly than if they were bound by statute to maintain such bodies.

The new clauses are unnecessary and undesirable and I urge the Committee to reject them. However, I repeat—because you were not in the Chair at the time, Mr. Gale—that I accept in principle amendment No. 204. I ask the hon. Member for Ryedale (Mr. Greenway) to withdraw the amendment.

Andrew Lansley (Conservative, South Cambridgeshire)

I am grateful to the Minister for the constructive response that he gave to the question relating to the Deregulation and Contracting Out Act 1994. Although he said that that presents no obstacle to amendment No. 4, he offered no reason why we

should not accept the amendment. Will he enlighten the Committee on why we should not accept the amendment?

Kim Howells (Labour, Pontypridd)

I think that I made a case against accepting any of the amendments except amendment No. 204, which I accept in principle and shall examine in future.

John Greenway (Conservative, Ryedale)

I am grateful to the Minister because at least he and I agree 100 per cent. on the two issues that I addressed. He, like me, does not think that we should accept amendment No. 4—I apologise to my hon. Friend the Member for South Cambridgeshire for that.

Andrew Lansley (Conservative, South Cambridgeshire)

If my hon. Friend and the Minister are in agreement, perhaps they will enlighten the Committee on the substantive reason why they oppose amendment No. 4.

Andrew Miller (Labour, Ellesmere Port and Neston)

Because you are wrong.

John Greenway (Conservative, Ryedale)

The hon. Member for Ellesmere Port and Neston (Mr. Miller) gives a reason that is not satisfactory to my hon. Friend.

I think that I explained that I accept my hon. Friend's point. We might be able to address later the extent of self-regulatory arrangements on which Parliament and the Government may have oversight. I accept his explanation that it was not intended that the self-regulated bodies themselves should report back to Parliament and the Government, which was my initial impression after reading the amendment. Nonetheless, if we are to move down the road of self-regulation, we should allow the self-regulatory bodies to be formed, established and adopted by Ofcom before we address the extent to which their work should be a matter for parliamentary scrutiny. I hope that that gives my hon. Friend an explanation from a Conservative Member.

Mr. Lansley indicated dissent.

John Greenway (Conservative, Ryedale)

I am sorry that my hon. Friend shakes his head.

We are talking about the future, which is why this is so important. I shall certainly withdraw my amendment although I suspect that my hon. Friend might have views on several others. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Roger Gale (Conservative, North Thanet)

My understanding is that the amendments and new clauses debated since 10.30 am have covered substantively the matters arising from clause 6. I therefore propose to put the clause to the Committee without further debate.

Andrew Robathan (Conservative, Blaby)

Mr. Gale, welcome back. The Minister and I were in a great deal of agreement and I especially agree with him that the work force has much to offer—

Roger Gale (Conservative, North Thanet)

Order. I thought that that was going to be a point of order. I was about to put the clause to the Committee, unless the hon. Gentleman wishes to make a case for something that has not been debated.

Andrew Robathan (Conservative, Blaby)

We wish to complete the debate on amendment No. 128 because we want to put it to the vote.

Roger Gale (Conservative, North Thanet)

Is the hon. Gentleman saying that he wants a separate Division on amendment No. 128? It would have been helpful if he had indicated that to the Chair previously. I hope that he will be kind enough to do that in the future, but in this instance, and in order to expedite matters, I shall assist him.

Amendment proposed: No. 128, in

clause 6, page 7, line 11, at end insert—

'(c) to seek the views of persons providing services and facilities in relation to which OFCOM have functions on which of these functions should be subject to review.'.—[Mr. Robathan.]

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 13.

Roger Gale (Conservative, North Thanet)

Just before we proceed, I should tell the Committee that I am the most mild-mannered of Chairmen, as everyone knows. I am perfectly prepared to admit a degree of levity within the Committee but it helps the Clerk to ensure that the result is correctly delivered if that levity is not extended during a Division.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 69, That the clause stand part of the Bill.

Question agreed to.

Clause 6 ordered to stand part of the Bill.

Clause 7 - Duty to carry out impact assessments

John Greenway (Conservative, Ryedale)

I beg to move amendment No. 52, in

clause 7, page 8, line 11, after 'markets', insert

'or on major communications users'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to take the following: Amendment No. 5, in

clause 7, page 8, line 23, at end insert—

'(4A) An assessment carried out under this section shall include an assessment, as appropriate, of the impact of the proposal upon the general duties of OFCOM and, in particular, the furthering of the interests of consumers through competition as set out in section 3(1).'.

Amendment No. 53, in

clause 7, page 8, line 26, at end insert

'or are lead to believe is important for significant users'.

Amendment No. 54, in

clause 7, page 8, line 30, leave out 'OFCOM's opinion' and insert

'a reasoned opinion by OFCOM'.

Amendment No. 56, in

clause 7, page 9, line 6, leave out 'OFCOM's opinion' and insert

'a reasoned opinion by OFCOM'.

John Greenway (Conservative, Ryedale)

The clause sets out Ofcom's duty to carry out impact assessments before implementing proposals, and its duty to publish any findings from those assessments. The addition of required regular impact assessments in the Bill is positive and welcome. However, decisions about when to carry out such assessments, who to consult and to whom the information is shown are very much left to Ofcom's discretion. We think that measures should be put in place to ensure that Ofcom's decision process is transparent and not carried out in an arbitrary manner.

It is important that not only businesses that supply electronic communications services but business users are consulted on the impact of regulation. Electronic communication tools have become an integral part of all United Kingdom businesses—although, thanks to your ruling, Mr. Gale, they are not integral to the proceedings of the Committee. Such tools represent a significant percentage of the cost base of firms. Consequently, the effect of regulation on them must be explicitly recognised.

I should like to explain the effect of amendment No. 52, which stands in my name and those of my hon. Friends. Under clause 7(2)(b), Ofcom, when deciding whether something that it plans to do in carrying out its functions is sufficiently important to warrant an impact assessment, must have regard to the likely impact of its proposal on persons carrying on business in the markets concerned. Subsection (2)(c) makes a similar requirement with regards to the general public. It is not clear that either definition includes major communications users. We suggest that it might be sensible to include those users in the definition for reasons I have outlined.

Similarly, amendment No. 53 includes the views and opinions of significant users as an important element of Ofcom's decision-making process on how impact assessments are to be carried out. The key issue is whether, and to what extent, Ofcom should consult the customers, particularly business and commercial customers, whose commercial interests may be affected significantly by any regulatory change that Ofcom may have in mind.

Subsection (6) requires Ofcom to provide an opportunity for representations to be made to it. It might be argued that amendments Nos. 52 and 53 are covered in that general provision. However, the requirement is restricted to the persons who, in Ofcom's opinion, are likely to be

''affected to a significant extent''.

Another way of trying to ensure that the views of significant business users are always sought is to place an obligation on Ofcom to give reasons why—that is to say, to give ''a reasoned opinion'', as in amendments Nos. 54 and 56, as opposed to just an ''opinion'', as it says in the Bill. I hope that the Committee will see the difference of accent.

In some respects, these are probing amendments, designed to place on the record the extent to which there will be proper consultation with business on the important issue of impact assessments. Businesses and business organisations are sufficiently concerned to have encouraged the amendments to be tabled. We look forward to the Minister's response.

Andrew Lansley (Conservative, South Cambridgeshire)

I wish to speak to amendment No. 5, which stands in my name and that of the hon. Member for North Devon (Nick Harvey). I shall not detain the Committee with a lengthy discussion about regulatory impact assessments, but shall point out that in subsections (4) and (5), the form that a regulatory impact assessment will take is established in rather flexible terms. In the first instance, Ofcom would be allowed to do what was deemed appropriate. Under subsection (5), however, that would be done by general guidance. The Committee might be aware, from some other context, of the way in which that guidance has developed in recent years to encompass a risk assessment, the presentation of options, including the option to do nothing, the inclusion of a competition assessment and small business impacts. However, general Government guidance on the subject of regulatory impact assessments that is promulgated by the Cabinet Office, or some other responsible body, does not, so far as I am aware, relate to the responsibilities of individual regulators, particularly utility regulators, or to Ofcom, which is a kind of converged market regulator.

Ofcom is required to consider a pattern of general duties that includes the principle duties under clause 3(3), which it could take into account and set out, under its permissive power in subsection (4). It would not, however, necessarily do that. We have discussed the necessity of considering the general duties, particularly in the early stages, and the necessity of understanding the basis on which Ofcom would reconcile conflicts between those general duties and the benefits of transparency in the market place if it does act in that way.

The regulatory impact assessment was published alongside the draft Bill in order to show the benefits to industry of the introduction of a single regulator. That documents refers, for example, to the benefits of the reduction in capital costs through a reduction in regulatory risk, which would be derived directly from greater transparency about how the regulator does its job. If we can require Ofcom to be more transparent about its general duties, and if we find out how those duties would impact on decisions, or vice versa, and how that can be reconciled through the RIA, that will make for decision making which is better and is much more transparent. Amendment No. 5 would achieve that objective. It might otherwise be achieved by

Ofcom, but it would be a matter for regret if Ofcom did not use powers under subsection (4) to achieve it. It is better for it to be specified.

Roger Gale (Conservative, North Thanet)

Before I proceed, I would say, and I intended to inform the Committee earlier about this, that the amendments largely brace the entire content of the clause. I shall not, therefore, be minded to permit a clause stand part debate. Hon. Members might wish to contribute at this point.

Simon Thomas (Plaid Cymru, Ceredigion)

I am interested in what the official Opposition and what the hon. Member for North Devon have explored through the amendments. Those matters are worthy of exploration. I have two points to put to the Minister. First, in moving his amendment the hon. Member for South Cambridgeshire couched his remarks in terms of a RIA. My understanding of clause 7 is that Ofcom is empowered to make wider impact assessments than simply RIAs across the whole range of their functions that would relate to the wider discussions that we have had, not just to its regulatory function.

Will the Minister say more about how the impact assessment system might work? When we discussed amendment No. 176 earlier, which related to clause 7, the Minister said that he did not want to see Ofcom delay any impact assessments by consulting with, for example, the National Assembly for Wales. These amendments seek to establish another kind of consultation through the impact assessment process with significant telecommunications users and industry interests. That is important and perhaps the Minister could take this opportunity to explain that further. If there is to be a proper impact assessment, surely there must be consultation and discussion with the parties that are involved, whether it is an industry body or another body such as the National Assembly for Wales or the Scottish Parliament and involves territorial issues. Whichever way we look at the clause, it gives considerable power to Ofcom to review the impact of its work on particular areas, both geographical and sectoral. The amendments would give us an opportunity to see how such a measure pans out in reality and how the Minister sees it working. We must ensure that Ofcom's work on an impact assessment is not done in the dark and launched on an unsuspecting public or industry. I hope that the hon. Gentleman will explain the process.

Kim Howells (Labour, Pontypridd)

I will come to the points made by the hon. Member for Ceredigion (Mr. Thomas) in a moment, if I may. I wish first, however, to deal with amendment No. 5, tabled by the hon. Member for South Cambridgeshire and the hon. Member for North Devon. It would require Ofcom to include in any impact assessment that it carries out an assessment of the impact of the proposals on Ofcom's general duties, in particular the furthering of the interests of consumers through competition. I fear that that would invert the relationship between clauses 3 and 7.

Clause 3 imposes duties to be complied with by Ofcom in carrying out all of its functions. That includes those functions that may lead to the need for an impact assessment under clause 7. Thus, anything that Ofcom proposes to do that leads it to carry out an impact assessment is subject to its duties

under clause 3 and could not have an impact upon them. In any event, subsection (2)(c) requires Ofcom to carry out an assessment if it would have a significant impact on the general public, which includes members of the public as consumers.

The hon. Member for Ryedale (Mr. Greenway) spoke to amendment No. 52. Clause 7(2)(b) is aimed at the providers of services, facilities and apparatus within the industry. The amendment would include the users of those services within the subsection. Although we agree that it is appropriate to highlight directly those most affected by regulation, such as the users of the services and facilities likely to be affected by the implementation of any proposals, they are already covered under subsection (2)(c) and any significant impact on them will be dealt with by Ofcom accordingly.

I turn now to the interesting points raised by the hon. Member for Ceredigion. We did not refer specifically to a regulatory impact assessment. Such a term has no statutory meaning. We have tried to keep the spirit of the IRA—RIA, not IRA! That reminds me of a friend who set up a company and asked me what I thought of its title, Ian Reekie Associates. We have tried to keep the spirit of the regulatory impact assessment, while recognising that, because of the breadth of Ofcom's functions—the point that the hon. Gentleman was making—it would be unlikely that a one-size-fits-all approach would work. To delve into a different area, I certainly expect Ofcom to take a more holistic approach to the way in which it regards the impact of its decisions. Obviously, we are worried about regulatory impact assessments, in particular, and their effect on core businesses.

Guidance and standards change, and good practice evolves. For example, competition assessments are now considered an integral part of an impact assessment, which is a different view from that held 10 years ago. For those reasons, we resist the amendments.

John Greenway (Conservative, Ryedale)

I am not sure that the Minister has entirely answered all our questions, but he said that it is the Government's view that business users are caught by the general public definition under subsection (2)(c). There is plenty of time for us to consult those concerned to determine whether that is satisfactory. However, in the light of what the Minister has said, I seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.

Clause 8 - Duty to publish and meet promptness standards

John Whittingdale (Conservative, Maldon and East Chelmsford)

I beg to move amendment No. 57, in

clause 8, page 9, line 9, after 'publish', insert ', and on an annual basis review,'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to take the following: Amendment No. 6, in

clause 8, page 9, line 16, at end insert—

'(2A) In relation to market power determinations under sections 75 to 79 or for a review under section 80, OFCOM shall not set a standard for completing such a determination in excess of six months, or a standard for a review in excess of four months.'.

Amendment No. 33, in

clause 8, page 9, line 23, leave out 'have regard to' and insert 'comply with'.

Amendment No. 58, in

clause 8, page 9, line 23, leave out from 'have' to end of line and insert 'due regard to the statement for the time being in force under this section with a view to compliance with the standards contained in it unless exceptional circumstances prevent this'.

Amendment No. 59, in

clause 8, page 9, line 23, at end insert—

'(4A) It shall also be the duty of OFCOM to publish each year, as soon as reasonably practicable after the end of the previous year, a report of their performance during that year in relation to the promptness standards described in the statement under subsection (1).'.

Amendment No. 60, in

clause 8, page 9, line 24, after 'Where', insert ', following a review under subsection (1),'.

John Whittingdale (Conservative, Maldon and East Chelmsford)

As we said at the beginning of the debate on this Bill, Ofcom will be an extraordinarily powerful body. It is therefore all the more important that its regulatory functions should be subject to the appropriate checks and balances. It should be required to meet standards and to demonstrate that it is doing so. We therefore welcome clause 8, which lays down a clear requirement on Ofcom to act properly, to set out its policy, to keep the achievement of that policy under review, and to publish its success. All those things are welcome. The purpose of our amendments is to strengthen clause 8 a little further and to clarify it a little more.

The amendments split into two sets. I will first talk about amendments Nos. 57, 59 and 60, which focus on the publication of the promptness standards and the review of that publication. It is fitting that Ofcom should expect timely responses from those that it regulates. It is therefore only fair that Ofcom itself should demonstrate its promptness. Amendment No. 57 would require Ofcom to review annually its statement of promptness standards and, later, to publish regular reports on how it has performed in achieving those standards. I acknowledge that clause 8(7) requires Ofcom to include a statement in its annual report on whether it has achieved its promptness standards. Amendments Nos. 59 and 60 seek to strengthen that subsection a little to provide the reassurance that a number of industries seek.

The second set of amendments in my name and that of my hon. Friends relates to clause 8(4). At the moment, the subsection says that, in carrying out its functions, it shall be the duty of Ofcom to ''have regard to'' the statement of promptness standards. We feel that the words ''have regard to'' are not sufficient. They provide Ofcom with a let-out to fail its promptness standards. The Bill should be strengthened. Amendment No. 33 does that by removing the words ''have regard to'' and inserting

the words ''comply with''. The statement therefore becomes much stronger.

The Minister may feel that that is expecting too much. I hope that he does not, but, in case he does, we have given an alternative formulation that makes the same point but in not quite such strong terms. Amendment No. 58 is also intended to tighten up the requirement on Ofcom to comply with its promptness standards. However, it does not impose what some may regard as an impractical obligation to comply. It requires Ofcom to comply with its promptness standards but it includes the words

''unless exceptional circumstances prevent this.''

I offer the Minister those alternatives. Both are designed to achieve the same thing but, if the Minister feels that he cannot go so far as to require Ofcom to comply with its promptness standards, he may, at the very least, consider amendment No. 58, which requires it to comply unless prevented by exceptional circumstances.

Roger Gale (Conservative, North Thanet)

Before we move on, I am of a mind that the amendments will permit a sufficiently wide debate on the clause for there to be no need for a stand part debate.

Andrew Lansley (Conservative, South Cambridgeshire)

I rise to support my hon. Friend, happily. [Interruption.] Given those interruptions, I should explain that I rose to support him last time and the Minister agreed, so we may go the same way. In addition, I wish to speak to amendment No. 6 in my name and that of the hon. Member for North Devon. To avoid any confusion, on this occasion, as on others, I speak directly to recommendations from the Joint Committee on which the hon. Gentleman and the hon. Members for Milton Keynes, North-East (Brian White) and for East Lothian (Anne Picking) served.

I remind the Committee of the four recommendations made by the Joint Committee on the subject of promptness standards. First, it recommended that the specification of time limits be included in the Bill, which the Government declined to do; secondly,

''that promptness standards . . . be determined by the Secretary of State following consultation with OFCOM and . . . interested parties, rather than by OFCOM''.

The Government have changed the draft so that the Secretary of State has the power to intervene to set promptness standards. There are no amendments to change that and, in practice, it ought to be sufficient, so I will not dwell on the matter.

Thirdly, the Joint Committee recommended that

''OFCOM be . . . under a . . . duty to account for . . . failures to meet time limits and promptness standards in its annual report.''

In substance, that is the thrust of amendment No. 59, and I happily subscribe to that intention. Fourthly, it recommended that

''a party aggrieved by a failure of OFCOM to determine a matter for decision in accordance with time limits or promptness standards be enabled to seek a direction by a court to OFCOM if the court is satisfied that there has been undue delay by OFCOM.''

That recommendation is analogous to a similar provision in the Competition Act 1998 which the Government have not seen fit to enact thus far—unless the Minister tells me otherwise.

In their response to the Joint Committee's recommendations, the Government stated that if Ofcom sets promptness standards and fails to meet them, it

''will be in breach of''

its ''statutory duty.'' I do not doubt that that is true, but it does not answer the Joint Committee's question. If Ofcom were in breach of its statutory duties to publish and meet promptness standards under clause 8, would anyone who felt aggrieved in relation to Ofcom's failure to act be able to go to court to secure a direction for Ofcom to act? Is that possible? If the answer is no, the Joint Committee's objective has not been met and there is scope for a beneficial amendment.

The purpose of amendment No. 6 is to insert specific deadlines. In recognition of the Government's objective, which is to retain flexibility for Ofcom when possible, I have circumscribed where the Joint Committee recommended the setting of timetables. In the amendment, we focused on two specifics: the undertaking of

''market power determinations under sections 75 to 79'',

which we will come to later; and

''a review under section 80'',

the periodic market review. Whereas the Joint Committee recommended a four-month standard in relation to the setting of market power determinations, I have included a six-month standard, just to make sure that the flexibility is not too constrained and that the reasonableness of the amendment can hardly be contested. A market review should be less complex than an initial market power determination, so I have reverted to the four-month standard proposed by the Joint Committee.

The idea that Ofcom must have complete freedom and flexibility is somewhat contradicted by the structure of legislation in relation to market power-type decisions. In many respects, the European Commission gives itself deadlines for completion of reviews of that kind. Article 20 of the framework directive seeks from national regulatory authorities a four-month deadline for resolving disputes. We shall discuss disputes and appeals later. Disputes in relation to market power determinations of that kind, or between undertakings are relatively complex. If those reviews can be completed within four months, it does not seem unreasonable to suggest that Ofcom should be able to complete them in that time too.

There is a powerful industry reason for setting a standard in relation to market power determinations. One of Ofcom's most important tasks will be to conduct market power determinations to establish where there is significant market power, so that it can have the power to set conditions. The longer Ofcom does not complete market power determinations, the longer significant market power goes relatively unconstrained, other than by pre-existing licence

conditions. It is important that Ofcom gets on with the job.

The Minister might say that Ofcom will set challenging promptness standards for itself. That may be true, but let us remind ourselves that Mr. David Edmonds, the director general of Oftel, was asked when giving evidence to the Joint Committee whether the provisions of clause 6 of the draft Bill, which is analogous to clause 8 of the Bill, would affect his work at Oftel. He replied:

''Promptness would not. I have tough targets already. We meet those targets . . . I think the promptness clause is important underpinning but in terms of how I operate at the moment it would not make a difference.''

I shall not get into a long discussion about whether the customers of Oftel think that it makes decisions in a sufficiently timely manner, and whether the targets that are placed upon it are sufficiently challenging. My conclusion is that it is not the case in all circumstances. If Mr. Edmonds, who is to be a member of Ofcom, thinks that the standards are sufficiently challenging, it is probably time that we put something into the Bill that sorted out the targets from the outset. I recommend amendment No. 6 for that purpose.

Nick Harvey (Liberal Democrat, North Devon)

This is an important group of amendments, and tabled together they offer a variety of ways of approaching the issue of promptness. During the deliberations of the Joint Committee, witnesses came forward time and again with the recurring complaint that existing regulators have been far too slow in dealing with cases that have been put before them. Those complaints were certainly in no small part directed at Oftel, but were not unique to Oftel. They also related to some of the broadcasting regulators, and indeed to the Office of Fair Trading, to which the sector had found itself referring things.

Clause 8 is a welcome acknowledgement of the need for promptness standards, but as currently drafted, it frankly lacks teeth. The exchange with Mr. Edmonds to which the hon. Member for South Cambridgeshire referred demonstrates that only too clearly. It is important that there be measurement of whether Ofcom is meeting its promptness standards from time to time. It is also important that the standards be rigorous. Ofcom will expect promptness from the various industries that it regulates when they respond to its inquiries. It is only reasonable to expect similar promptness from Ofcom, which is very important.

The amendments would tighten requirements for Ofcom to comply with its own promptness standards without imposing an impractical obligation on it. What is good for the industry should be good for Ofcom as well. That is especially important for fast-moving industries such as telecommunications and the internet. Businesses in those industries refer complaints to Oftel at present. The complaints often relate to fundamental issues to their business such as the bundling together of packages of services where anti-competitive behaviour is alleged, or single billing where other telecoms providers are using BT lines. An aggrieved telecommunications operator could go out of business if Ofcom—or Oftel, at present—took too long to deliberate and to reach conclusions.

I look forward to hearing from the Minister. A menu of different ways to approach the issue is before him. I hope that we will hear that at least some of the amendments are acceptable because the issue is fundamental to Ofcom's ability to be an effective regulator of the industries.

Kim Howells (Labour, Pontypridd)

As a former Department of Trade and Industry Minister, it was often extremely embarrassing and frustrating to wait for findings and decisions to come. That is especially true of findings from one of the offices that the hon. Member for North Devon mentioned—I certainly will not repeat its name here. The cases could go on for a long time. I do not want to contradict myself but I started to understand why they took such a long time, and I shall comment on that in a moment.

Ofcom's stakeholders and, especially, the industry need a degree of certainty about the time scales under which Ofcom will carry out its functions and any business connected with them. That is already set out in parts of the Bill. The hon. Member for South Cambridgeshire gave us the example of clause 183(5), which sets a four-month timetable for making a dispute determination, as required by article 20 of the framework directive.

Amendment No. 6 would set out a timetable for market power determinations. We believe that it is inappropriate to put that requirement in the Bill. As a matter of policy, we believe that setting promptness standards is an operational matter that Ofcom will understand far better than the Government or, indeed, hon. Members. It will be able to set its standards with an understanding of its resources, the urgency of each matter and the impact of not acting in a timely manner.

Brian White (Labour, North East Milton Keynes)

A danger of allowing Ofcom to set its targets is the fact that that would reflect its resources. Pressure would not be put on Ofcom to get its resources right because it would not have to adhere to an external deadline. Introducing an external deadline would concentrate Ofcom's mind, which was what the Joint Committee was getting at.

Kim Howells (Labour, Pontypridd)

I could not agree more with my hon. Friend that that would focus the mind. As somebody who spent a long time with the DTI, I think that the overriding priority is for the regulator to reach correct and accurate decisions. Nothing is gained by taking a quick decision that is overturned on appeal or that proves ineffective in practice. I saw that happen on several occasions, and it incurred greater delay and more heartache, and several companies suffered badly as a consequence. Getting a right decision on highly complex cases that can often involve dozens of issues and many operators is not an inherently fast process. Detailed analysis of markets, costs and contract conditions is usually required, and many interests need to be consulted and taken into account.

It may help if I explain briefly why, for market analysis, putting the timetable in the Bill could cause operational difficulties for Ofcom. Its ability to carry

out this work will depend largely on external factors such as its ability to obtain information. Unless analogous time limits are imposed on stakeholders, Ofcom may well not be able to meet its statutory time limits. Stakeholders will respond to requests for information in very different ways, certainly if the experience of the competition regulators is anything to go by.

Andrew Lansley (Conservative, South Cambridgeshire)

That those who are to be the subject of market power determinations might be able to frustrate the conclusion of such determinations seems to be an inherently bad reason to allow promptness standards to be more lax. Those determinations need to be completed quickly in order to restrict the operation of market power.

I turn to whether those who sat on the Joint Committee were a bunch of amateurs. As the Minister knows, before we made this recommendation, we discussed the matter carefully with, among others, Sir Bryan Carsberg, who was a former director general of Oftel and the Office of Fair Trading.

Kim Howells (Labour, Pontypridd)

I have great respect for Sir Bryan Carsberg. His experience came through in the evidence that he gave to the Joint Committee. However, if the hon. Member for South Cambridgeshire had asked Sir Bryan whether everyone responded promptly and in the way in which we would like them to respond when the regulators approached them for information—perhaps he did ask that question—I am sure that Sir Bryan would have told him that the response can often be very tardy. As a former Minister with responsibility for competition, I know that companies will hold out until the last moment, and then come forward with the evidence accompanied by some thinly disguised threats from very heavy lawyers about where they intend to move on those issues.

Nick Harvey (Liberal Democrat, North Devon)

Are not companies likely to respond more quickly if they know that the regulator has to deliver a verdict by a tight deadline, and that the regulator might assume the worst about that company if it does not respond quickly?

Kim Howells (Labour, Pontypridd)

No, I do not believe that. In a perfect world, that might well be true, but I think that sometimes they would rather cast shadows across the regulator than cough up the information that they have been asked to provide. Therefore, I do not share the view of the stakeholders on that matter.

The amendments raise valid points. We have not set out the standards in the Bill. Instead, we have given that task to Ofcom so that it can reflect on what happens in practice. Subsection (1) places a duty on Ofcom to publish a statement setting out the promptness standards that they expect to meet. Subsection (7) requires it to provide a summary of the extent to which it has complied with the statement in its annual report. I am unsure what amendment No. 59, for example, would add. We have ensured that Ofcom will be publicly accountable for its record. As for requiring Ofcom to review its standards annually, we have built into this clause the capacity for it to revise the statement of promptness standards.

I turn briefly to compliance. We come here to the concept, which has been raised before in the Committee, of ''have regard to''. This clause places a duty on Ofcom; it cannot simply ignore its promptness standards. If it fails to have regard to the standards, the way in which it carries out its functions could be the subject of a judicial review. However, a compliance obligation would imperil the proper carrying out of its functions; in particular, enforcement action that took slightly too long would be rendered invalid. It would force all decisions of a similar kind into the same time scale, unless those fell under the exceptional circumstances that are referred to in amendment No. 58, and lead to bigger and more complicated decisions being unduly rushed. I resist the amendments.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I am disappointed by the Minister's response. He acknowledged that promptness is important and the Opposition parties feel strongly that that needs to be included in the Bill. He also made various observations on the amendments. Regarding amendment No. 6, I am always slightly fearful that if one specifies maximum time periods, those become the actual time periods. I can understand why the Minister is reluctant to accept that. However, his arguments about compliance are not wholly persuasive.

It would not be going too far to require Ofcom to comply with its promptness standards, and doing so would indicate strongly that the Committee attached considerable importance to that matter. I accept that there might be exceptional circumstances.

Andrew Lansley (Conservative, South Cambridgeshire)

On the question of compliance, I can see why the Minister wants to retain the words ''have regard''. He has not, however, answered the Joint Committee's point about whether those who believe that there has been undue delay should be able to go to a court in order to direct Ofcom to reach a decision. It was seen fit to apply that to the OFT, although it was never brought into force. The Government seem to be evading that issue, but it would be desirable if it were included.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I do not want to make the Minister's arguments for him, but he referred to the possibility of a judicial review if there were an undue delay. That would be an option, but it seems to be somewhat like the nuclear option. There is a case for strengthening the provision at least, and making an allowance for the possibility of exceptional circumstances. I would be more inclined, for that reason, to press for amendment No. 58, rather than for amendment No. 33. Hon. Members feel strongly about that matter.

I beg to ask leave to withdraw amendment No. 57.

Amendment, by leave, withdrawn.

Amendment proposed: No. 58, in

clause 8, page 9, line 23, leave out from 'have' to end of line and insert 'due regard to the statement for the time being in force under this section with a view to compliance with the standards contained in it unless exceptional circumstances prevent this'.—[Mr. Whittingdale.]

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 10.

Clause 10 - Function of promoting media literacy

John Whittingdale (Conservative, Maldon and East Chelmsford)

No amendments have been tabled on this clause, but it will be worth while to detain the Committee briefly because the clause covers an interesting area—the duty of Ofcom to promote media literacy. We would like to explore that important issue with the Minister. What precisely does he have in mind for Ofcom and how he will bring it about? It is almost undeniable that a great deal of media illiteracy exists. I hope that something similar is not true of this Committee—although one occasionally has a faint suspicion.

Earlier, we discussed amendments relating to the needs of disabled people. We wondered how technology—for example, closed caption subtitling—could help them. It is pretty complicated to access such technology and we must help people to understand how to do so. Some elderly people may not have a great grasp of the most recent technological developments.

Later, when we discuss content, I suspect that we will discuss whether material is offensive or distasteful, and how best we can prevent children from accessing such material. Technology exists for that. I use parental locks—I strongly recommend others to use them—on, for example, set top decoders. PINs are also effective in ensuring that children cannot access material that may be suitable for adults but unsuitable for very young people. However, if we are to allow choice and not censor material that is suitable for adults, we must ensure that parents understand how best to take advantage of technology to use locks or other devices. There is a genuine need to increase understanding of the capabilities of technology in the area of media literacy.

I do not oppose clause 10 in any way, but I would be interested to know how the Minister sees Ofcom going about its function. Will a specific area of its budget be reserved for this purpose? How will Ofcom

achieve these objectives, which I think we would all support?

Michael Fabricant (Lichfield) rose—

Brian White (Labour, North East Milton Keynes)

I appreciate the enthusiasm of the hon. Member for Lichfield (Michael Fabricant).

When we discussed the general duties of Ofcom on Tuesday, I said that, due to my incompetence, I had not tabled an amendment to promote community media as a general duty. However, Ofcom will have a duty to promote media literacy, which will relate not only to existing media forms but to new forms as they appear. Community media is one of the most exciting new forms and I feel that Ofcom has a duty to promote it. I hope that one thing to come out of this debate will be a recognition by Ofcom's board that it has a key role in that. Clause 10 will be vital.

Community media covers not only radio but television. A number of pilot schemes exist up and down the country. Ofcom must have a role in presenting a range of options; it should not interpret this clause narrowly. In the White Paper, there is much about the need for people to be literate in new forms of media such as the internet. However, there are other new technologies and community media is the current one. Others will come along later and Ofcom will have a key role in their development, especially in the early stages.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I echo the points made by the hon. Member for Milton Keynes, North-East about the role of community media. The duties set out in subsection (1) relate to encouraging and enabling the public to understand how the media works, and how material is put together and edited. Quite simply, the best way to understand that process is to do it. There are some good examples of that. The best way to educate people is to give them a taste of the subject.

In my city of Sheffield, the BBC local radio station, Radio Sheffield, has on its ground floor an active community media centre, where people learn how to use the internet and create community websites that form part of the BBC website, which is the most popular website in the country and an important part of the media. Up the road, in what was the National Centre for Popular Music, a lottery-funded project that opened and then shut down rather rapidly, the ground floor is being put to good use by Sheffield Community Radio, which brings people in and shows them how radio works. It is particularly exciting that that radio station will no longer have to go off air when its temporary licence expires, because it continues broadcasting using real media across the internet. There are now good opportunities for community media, and that is by far the best way to promote media literacy.

Nick Palmer (Labour, Broxtowe)

Does the hon. Gentleman feel that the word ''community'' is defined too narrowly in amendment No. 228? Nowadays, one of the great attractions of the internet is that it makes it possible to form a non-geographical community. For example, I might feel

that I have more in common with the hon. Gentleman than with my neighbour, who does nothing but watch football.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I do not think that we are talking about any specific definition of community; we are talking about media literacy. I am not talking about amendment No. 228, which has not been selected, but about the entire clause and the appropriate response to it. I ask the Minister to respond positively, and to say that he believes that an appropriate way for Ofcom to interpret its powers under the clause is to try to generate active participants in media, as opposed to passive consumers. We do not want people to sit like couch potatoes and accept media; we want them to understand and engage with it. We now have the tools for that, and I hope that Ofcom, under clause 10, will interpret its role of promoting work with community media in the widest sense, through geographical, non-geographical, and other types of media. That is an important way that Ofcom could fulfil the obligations that have sensibly been set out.

Michael Fabricant (Conservative, Lichfield)

I simply wanted to add the question of the electronic programme guide. Sky television is to be congratulated on its development and use of such guides. I shall be curious to hear whether the Minister believes that there is a role for the electronic programming guide in promoting media literacy. I am particularly thinking of the issues raised by my hon. Friend the Member for Maldon and East Chelmsford, namely the quality of certain types of programme and whether they are suitable for certain age groups in terms of sex or violent content. Also, there is the issue of whether it should be made clear on the programme guide that subtitles are available for the hard of hearing. That harks back to our debate this morning. I feel that the electronic programme guide is the ideal medium by which clause 10 can be exercised.

Simon Thomas (Plaid Cymru, Ceredigion)

I rise to support the comments of the hon. Members for Milton Keynes, North-East and for Sheffield, Hallam (Mr. Allan) regarding the ability to use community media as a tool to succeed in promoting media literacy, which is the basis of the clause. I put on record that I am grateful for the clause, which is important. It gives Ofcom a huge opportunity to reach out to the grass roots.

Roger Gale (Conservative, North Thanet)

Order. The Committee is beginning to have a bit of a weekend feel about it. Could private conversations be held outside, please?

Simon Thomas (Plaid Cymru, Ceredigion)

Thank you, Mr. Gale.

Ofcom can use community media and the function of promoting media literacy to be real to the people on the doorstep. It is over 10 years now since I helped to establish a community radio station in Ceredigion—Radio Ceredigion—which unfortunately is no longer community-owned. It was taken over by a large newspaper group. Nevertheless, it still functions and has facilities for volunteers to go in and work in local radio. My experience 10 years ago of trying to put together my own radio programmes helped to shape a considerable amount of my understanding of the media. It would be useful for Ofcom to look at such possibilities.

I have two concerns relating to media literacy. First, I worry that Ofcom will be a big animal and will lack the subtle touch that media literacy and community media demand. It will not have the attention span necessary to meet the concerns mentioned by hon. Members. Would it be permissible for Ofcom to work with other institutions in delivering its functions under the clause? I have in mind such institutions as Cardiff university's centre for journalism studies, which is a high-class training ground in Wales. Could Ofcom work with outside institutions to achieve its functions of promoting media literacy, rather than try to do it all itself? I am concerned that, if Ofcom keeps everything in house, and does not work with bodies that may have more experience, it will have an iron fist rather than a more subtle approach.

My second point was touched on by the hon. Member for Sheffield, Hallam: it is increasingly the new media that people use for community media projects, such as online and digital radio, and the streaming of real video and radio, which are not specifically covered by the clause. Will the Minister confirm that promoting media literacy includes everything to do with what we currently call the internet and whatever it may become, even though that aspect is not, strictly speaking, regulated by Ofcom? I want to be sure that the clause is drafted sufficiently widely to include those aspects.

Kim Howells (Labour, Pontypridd)

I thought that this would be a short debate, but it has turned into a long one—and very refreshing it is too.

The hon. Member for Maldon and East Chelmsford spoke about the need for parents to understand what locking devices were available. However, it usually only took my kids about half an hour to work out how to unlock things, so I have to admit that after a while I gave up. My kids turned out to be all right, actually.

The hon. Member for Lichfield came up with an interesting suggestion, as usual. I am the only one in our house now who has to use the Sky zapper to get back to the main menu to find my way around the system. Every one else knows the numbers and they knock them out. [Interruption.] I do not know what my hon. Friend the Member for Rhondda (Mr. Bryant) said, but we had a discussion earlier in the week about better design. Locking elements could be incorporated into design, perhaps not on the surface of the device but in easily accessible software.

In response to the questions asked by the hon. Member for Ceredigion, I would certainly expect Ofcom to look for partners to work with. Some interesting projects are going on at the moment. The hon. Member for Sheffield, Hallam told us about the need for a pro-active approach, to make people aware of the possibilities that already exist.

I have an access radio station on my own patch—GTFM. It is in one of the poorest wards in my constituency and shares its administration with the university on the other side of the valley. It is fascinating to see the different ways in which those two communities have accessed the opportunity and, at the same time, linked up with the rest of that part of the valley. It has been an instructive experience. People

have learned much. They have learned that they have a voice, which they might previously have assumed was denied to them.

Some hon. Members asked whether there would be an iron fist approach to the issue, whether the boundaries to media literacy would be strictly determined and how such matters ought to be dealt with. I reassure the Committee that that is not the intention behind the relevant provision. Media literacy, by its very nature, must grow, expand and change with the various media that we use.

An important point was made at the end of the debate: we must be aware of, understand and learn about the interoperability and shading between the different media. Our use of personal computers and of the internet is part of that process. I am sure that hon. Members will agree with me that great work is being done by many of the outreach institutions of colleges, universities, and especially further education colleges, in helping people to get the degree of computer literacy that they need just to get started.

This is an important step forward and I am glad to hear that there is general agreement in the Committee that it should be taken forward.

Question put and agreed to.

Clause 10 ordered to stand part of the Bill.

Clause 11 - Duty to establish and maintain Content Board

Andrew Lansley (Conservative, South Cambridgeshire)

I beg to move amendment No. 7, in

clause 11, page 11, line 8, after 'OFCOM', insert—

'(aa) a deputy chairman appointed by OFCOM;'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to take the following:

Amendment No. 9, in

clause 11, page 11, line 11, after 'chairman', insert 'and deputy chairman'.

Amendment No. 171, in

clause 11, page 11, line 11, leave out 'a non-executive member' and insert 'non-executive members'.

Amendment No. 172, in

clause 11, page 11, line 12, leave out 'is not' and insert 'neither is'.

Andrew Lansley (Conservative, South Cambridgeshire)

I intend to speak to the whole group of amendments, as they are related and connected.

The amendments relate to the composition of the content board. Committee members, especially those who were involved with the Committee that considered the Office of Communications Bill, might recall that the Government limited the membership of the Ofcom content board to six people. The Joint Committee subsequently recommended that that number should be able to be increased and the Government responded by announcing their intention to use the powers in the Ofcom Act to increase the size of the board to nine and to include a sixth non-executive member. One reason why the Joint Committee came to that conclusion was that we were made aware, not least because of the presence of Lord Pilkington, of the amount of activity—the weight of

scrutiny—that is required of Ofcom, and of the content board on Ofcom's behalf, in relation to standards, complaints, fairness, privacy, and so forth. For such activity to be permitted to be divorced from Ofcom would be undesirable. Ofcom has—and should have—a legal responsibility for those matters. Although such functions could be devolved to the content board, there is a risk that it could acquire a life of its own and we might end up with two regulators rather than one. In order to reduce that risk, we felt that it was desirable that at least one, and preferably two, members of the content board should be non-executive members of Ofcom and that when the content board meets, its chairman should also be a non-executive member. In order for that to happen, we should prescribe that the content board should also have a deputy chairman and that both the chairman and deputy-chairman should be non-executive members of Ofcom. Of course, neither should be the chairman of Ofcom. There is a high probability, if not a certainty, that the content board would always be chaired by a member of Ofcom. Thus, at least one member of Ofcom would have a continuing familiarity with the content board's work and would be able to speak from a position of authority on how it is approaching its decisions.

There are two likely risks: the content board's decisions might become progressively separate from Ofcom, or instead of there being a single integrated decision-making process Ofcom might become too much of a court of appeal because it starts to second guess the content board. Those risks must be offset and these four amendments are designed to accomplish that: the Government said that that was desirable but that it was not necessary to specify these matters in the Bill.

John Greenway (Conservative, Ryedale)

I anticipate that you, Mr. Gale, will not wish to have a clause stand part debate. Therefore, I wish to ask the Minister a question about the content board. It arises from my reading of the clause. Subsection (4) states that there is to be a person on the content board who represents

''the following parts of the United Kingdom—

(a) England,

(b) Scotland,

(c) Wales, and

(d) Northern Ireland''.

That is sensible.

Subsection (5) states that the person who represents the United Kingdom should also be capable of representing

''the interests and opinions of persons living in all the different regions of England.''

I am unsure what kind of person that would be.

Kim Howells (Labour, Pontypridd)

That would be you, John—a Yorkshireman.

John Greenway (Conservative, Ryedale)

I am very grateful for that comment. I was not going to ask the Minister about remuneration and pension but he has now tempted me to do so: that might be a good job application to fill out.

Subsection (6) states:

''The validity of any proceedings of the Content Board shall not be affected by any failure by OFCOM to comply with subsection (4) or (5).''

That begs a question: what constitutes a quorum of the content board?

Kim Howells (Labour, Pontypridd)

I was hoping that another hon. Member would rise, because I am trying to find out the answer to that question.

These amendments would require Ofcom to appoint a non-executive member of Ofcom—other than the chairman—to be deputy chairman of the content board. I welcome the decision to designate Mr. Richard Hooper as the first chairman of that board. Currently, he is a non-executive member and the deputy chairman of the main board.

Subsection (7) states that the membership of the content board should predominantly consist of lay members—

''persons who are neither members nor employees of OFCOM.''

That lay membership is valuable; it will enable the board to be representative of many different aspects of public interest.

Other members of Ofcom may also be members of the content board, and I understand that Ofcom currently intends to appoint more of its members to the board. However, the Government do not believe that Ofcom should be burdened with even more detailed statutory obligations about the membership or internal structure of the content board. Ofcom should decide whether to appoint one of its members as deputy chairman or to leave that decision to their appointees on the content board. Flexibility will be crucial if Ofcom is to be effective.

We recognise the risk that the hon. Member for South Cambridgeshire identified of overload on the content board. I intended to make the following statement when we addressed clause 12, but instead I shall do so now: the Government intend to move an amendment that will increase Ofcom's flexibility slightly when determining the extent of the board's contribution to its work. That small flexibility was sought by Lord Currie. At present, any committee of Ofcom that is not solely advisory must include a member or employee of Ofcom. We propose to provide that any such committee that considers content matters may be formed with a member of the content board instead of a member or employee of Ofcom. That would allow Ofcom to establish a committee to consider fairness complaints, which would relieve the board of a resource-intensive task and provide a route of appeal for the remaining members of the content board. We envisage achieving that by amending the Office of Communications Act 2002 and I shall ensure that members of the Committee see the amendment in good time before we consider the relevant clause of this Bill.

I shall now address the question asked by the hon. Member for Ryedale about what constitutes a quorum for the content board because the answer has arrived from an unknown source. He will not be surprised to hear that that is for Ofcom to determine—

[Laughter.]—but as the law stands, a determination committee of Ofcom must contain a board member of Ofcom or an Ofcom official. I shall speak about that further when we consider clause 12.

Andrew Lansley (Conservative, South Cambridgeshire)

I am grateful to the Minister for his response. I understand that his objective, as shown by the additional amendment to which he referred, is to provide greatly flexibility for Ofcom rather than prescribing how it will work. I think that Ofcom will have to go down the route described in the amendments in practice, but if the Government want to resist the amendments, so be it. I shall not press the matter further and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No, 177, in

clause 11, page 11, line 20, at end insert—

'(4A) In making such appointments with respect to Scotland, Wales and Northern Ireland, OFCOM must consult with the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly as appropriate.'.—[Mr. Simon Thomas.]

Question put, That the amendment be made:—

The Committee divided: Ayes 3, Noes 17.

Clause 12 - Functions of the Content Board

John Whittingdale (Conservative, Maldon and East Chelmsford)

I beg to move amendment No. 148, in

clause 12, page 12, line 23, at end insert—

'(1A) At any such time that a function has been conferred on the Board that function shall not also be exercised by OFCOM.'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to take the following: Amendment No. 13, in

clause 12, page 12, line 26, at end insert—

'( ) functions arising under sections 307 and 315 of this Act;'.

Amendment No. 61, in

clause 12, page 12, line 38, at end insert—

'(3A) The Content Board's functions should have sufficient regard to persons who are likely to be affected and should be limited so as not to have a major negative impact on business competitiveness.'.

I am asked to inform the Committee that there has been a typographical error in the printing of amendment No. 13. It should read ''functions arising under sections 307 to 315 of this Act'', not ''307 and 315 of this Act''.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I do not want to spend too long on this, but it is undoubtedly true that the content board will take on responsibility for important matters that are likely to generate a lot of public controversy and interest. There is some concern that the boundaries of the content board should be properly defined.

Amendment No. 148 would address the worry that businesses overseen by Ofcom may face a double jeopardy. If Ofcom delegates a function to the content board, it may also be considered and perhaps overruled by the main board. Clearly, the main board must have the ultimate responsibility. I am not suggesting that it should not have such power. I hope that the Minister accepts that some businesses subject to oversight by Ofcom may make their case to the content board, which is given immediate responsibility, only to find that the main board will concurrently exercise judgment. The amendment is designed to flag up the concern about businesses facing a double jeopardy. Will the Minister reassure me about such matters?

Amendment No. 61 is concerned about decisions that are likely to have a significant impact on various businesses. Businesses should be properly consulted and there should be no chance of the content board overreaching the powers that have been delegated to it. The Joint Committee outlined the need for further clarification of the responsibilities of the content board, but the Government said that they expected Ofcom to provide a clear statement about the board's role. We consider that that is insufficient and leaves open the possibility for arbitrary and non-transparent exercise of powers. The amendment would ensure that the content board is not able to make decisions that could have untoward and negative repercussions on companies that use content as an integral part of their commercial service offerings. Will the Minister consider that and provide reassurances for businesses that will be affected by the deliberations of the content board?

Roger Gale (Conservative, North Thanet)

Before we start the debate, I must inform members of the Committee that this group of amendments, together with amendments Nos. 36 and 37, which we shall come to next, broadly embrace the content of the clause. I invite hon. Members to raise issues now rather than later.

Andrew Lansley (Conservative, South Cambridgeshire)

I can be reasonably brief. There was a difference of view between the Government and the Joint Committee about whether we should not only specify which provisions should be the responsibility of the content board, but provide executive and determinative responsibility for the content board when clarifying its functions. I understood from the Government's response that to do so would alienate the legal responsibility from Ofcom itself, and be undesirable. The amendment is not drafted in the same form as the Joint Committee's view, but it would provide greater clarity about the functions of the content board is doing, something that the Joint Committee wanted.

The Minister may say that the amendment would is repetitious because some of the provisions of clauses 307 to 315 are comprised within the language of clause 12(2)(a). None the less, the amendment would make clear to those who are considering the role of the content board the extent of its remit. It would be open to Ofcom to vary from that remit, but the powers of the content board would be set in a clear framework.

Michael Fabricant (Conservative, Lichfield)

On your advice, Mr. Atkinson, I wish to receive clarification from the Minister about the philosophy behind subsection (2), especially paragraph (a), which refers to the function of the board

''in relation to matters that concern the contents of anything which is or may be broadcast''.

I raise that point because historically, as the Minister may recall, the old Independent Broadcasting Authority and, before that, the Independent Television Authority were very proscriptive about programming to be broadcast. For example, television stations had to present pilots before programmes were broadcast; and, in the early days of independent broadcasting, radio stations—even though they were making local radio programmes—had to present pilots before the IBA would approve them for transmission.

Since that time there has been a lighter touch. The Independent Television Commission and, in particular, the Radio Authority have been retrospective in the way in which they have considered programming for broadcast. However, given that subsection (2)(a) uses the phrase ''may be broadcast'', the Minister may wish to describe how proactive the content board should be. Should it use as light a touch as that used by the Radio Authority or the ITC; or should its use an even lighter touch? What will its philosophy be?

Clause 12 talks about ''electronic communications networks'', but does that phrase embrace the internet? If it does, how does the board intend to control the internet—the perennial question—when much of the source material on the internet comes from outside the United Kingdom?

Nick Harvey (Liberal Democrat, North Devon)

I rise to speak in favour of amendment No. 13, which is a logical amendment. However, I am more interested in probing the implication and meaning of amendment No. 61, especially when it is read together with amendment No. 148. Amendment No. 61 seeks to impose a specific responsibility on the content board to protect competition. During deliberations on the Office of Communications Act and on the Second Reading of this Bill, the hon. Member for Maldon and East Chelmsford and his colleagues expressed enthusiasm for the BBC being regulated entirely by Ofcom. I, and others, have said that we might be persuaded of that in the fullness of time—specifically, when we come to charter review—if Ofcom proves itself a suitable regulator to take on that work. Were amendment No. 61 to be accepted, Ofcom could never be an appropriate body to regulate the BBC. By definition, anything done by the BBC—which has a privileged funding stream—distorts competition and impacts on

the competitive market. I urge the hon. Gentleman to think hard about this. One day, Ofcom may be suitable to regulate all the functions of the BBC. However, amendment No. 61, when taken together with amendment No. 148, would ensure that Ofcom would never be suitable for that task.

Michael Fabricant (Conservative, Lichfield)

The hon. Gentleman has raised an intriguing point. However, he will be aware that the BBC claims to have a fair trading policy. [Interruption.] My hon. Friend the Member for South Cambridgeshire sighs with disbelief, and many of us share that disbelief. Is the hon. Gentleman suggesting that the BBC does indeed distort market policy?

Chris Bryant (Labour, Rhondda)

Of course it does.

Michael Fabricant (Conservative, Lichfield)

There seems to be unanimity throughout the Committee that the BBC distorts the market by competing unfairly with commercial companies.

Nick Harvey (Liberal Democrat, North Devon)

I remind the hon. Gentleman that, in its general economic functions and its trading, the BBC will, under this Bill, be regulated by Ofcom. However, we are talking specifically about content and the content board. The hon. Gentleman's party colleagues have been urging that everything that the BBC does, including content issues, should be considered by Ofcom. One day, that may be appropriate. However, if Ofcom had a slavish responsibility to promote competition, it would be unfit for the purpose. For example, when new BBC services are to be approved, the content board might end up with responsibility for them because they would be content issues: however, if it had an absolute obligation in terms of competition, it would never be able to approve any new BBC functions or services. If I were a Conservative Member, I would approach amendments Nos. 61 and 148 with caution, because they might rule out the BBC in its entirety ever being under Ofcom.

Kim Howells (Labour, Pontypridd)

As hon. Members have said, these amendments are intended to specify more closely the functions of the content board, and to constrain it. Any effect that they had would make it harder for Ofcom and its content board to do their jobs.

Amendment No. 13 is intended to ensure that the functions of the content board include—to the extent determined by Ofcom—functions in relation to setting standards, codes and dealing with fairness complaints. Those functions fall within those that Ofcom is specifically expected to consider giving to the content board. However, it might, for example, prefer to establish, in conjunction with the content board, separate arrangements for handling code development. That should remain an option. We do not believe that it is right to over-specify how Ofcom discharges the responsibilities for which it will be held to account.

Amendment No. 61 would also skew the work of the content board. As we discussed in relation to clause 3, Ofcom must balance a number of factors, including its duty to promote competition, and its arrangements for the work of the content board must not upset that balance.

Amendment No. 148 would ensure that Ofcom and its content board do not undertake the same function. That has a superficial appeal, but it may be the case that, for example, Ofcom wishes to give the content board a function but to reserve to itself decisions with an impact beyond a particular financial threshold. That should remain possible. We anticipate that Ofcom and its content board will work to establish a memorandum of understanding—or something similar—so that their distinct roles are made clear internally and externally.

The hon. Member for Maldon and East Chelmsford asked whether the content board would exercise arbitrary powers. It is a central element of the Bill that the main board delegates as it sees fit to the content board. I doubt that the content board would act in an irresponsible way, but if it were to do so—such as in the way that, if I interpreted him correctly, the hon. Gentleman described—the main board will have oversight of it. I welcome the opportunity to put that on the record.

The hon. Member for Lichfield asked about the remit extending to the internet. It is likely to be necessary for the content board to research and advise on matters relating to the internet—notably in relation to media literacy. However, the board will be fully part of Ofcom, and it cannot have any regulatory functions or powers that Ofcom does not have. As the Bill does not provide for Ofcom to have any regulatory powers over internet content, the content board cannot have any.

The hon. Gentleman also asked about ''is'' or ''maybe'' broadcast. It is not intended that Ofcom should pre-censor, but it can examine journalistic methods—in particular, it can examine a complaint of unwanted infringement of privacy, as the Broadcasting Standards Commission currently does.

Michael Fabricant (Conservative, Lichfield)

I am grateful for those answers to my questions.

In light of the Minister's comments, is it fair to say that he does not envisage Ofcom being any more prescriptive than the Radio Authority and the Independent Television Commission, because they already have a light touch?

Kim Howells (Labour, Pontypridd)

Yes. We no longer use the phrase ''light touch'', although I cannot remember why. I confirm that that is one of the Bill's central thrusts.

Andrew Lansley (Conservative, South Cambridgeshire)

I am slightly confused because the purpose of my amendment was not to try to constrain Ofcom unduly, but to leave flexibility. It was to clarify the role of the content board. If anything, the Minister has made it more difficult to understand. He seems to be contemplating that some of the issues under clauses 307 to 315 might not only not be functions conferred by Ofcom on the content board, but might be conferred by Ofcom on some other body established through Ofcom.

Given that the content board is able to establish committees and panels under clause 12(5), surely it would be sensible to make it clear that the responsibilities under clauses 307 to 315 should, in

due course, be conferred upon the content board under all normal circumstances? That would help people to be clear about the respective relationships. Or is the Minister actually telling us that there is some expectation that functions may be conferred upon some other body?

Kim Howells (Labour, Pontypridd)

I regard the content board as the obvious candidate to do the tasks that the hon. Gentleman mentions. However, there is the opportunity in the legislation for Ofcom to set up committees and bodies as it sees fit if there are hybrid problems that must be examined—several have already been raised during the course of our proceedings. It may be the case that a body constituted specifically for a task may need to be set up.

Andrew Lansley (Conservative, South Cambridgeshire)

I will not go on at length: I have made my point. It would be better to be clear rather than pursue extravagant flexibility for Ofcom. It would be better to be clear about what the role of the content board is to be.

John Whittingdale (Conservative, Maldon and East Chelmsford)

In respect of the question of double jeopardy that I raised, which is dealt with by amendment No. 148, I accept that Ofcom should have the ultimate power. I hear what the Minister says about oversight should it be necessary for the content board to act in an arbitrary manner, so I do not intend to press the amendment.

The hon. Member for North Devon made some interesting remarks about amendment No. 61. He suggested that, were the BBC to be brought fully under the auspices of Ofcom and the amendment were to be accepted, no new services would be approved when the BBC applied to start them, because they might have an impact on the competitiveness of existing services. That is a fascinating debate. We will not have it now, but we will return to it in the course of our discussion of the Bill.

It is precisely because the BBC is launching a whole series of services that impact on existing commercial services that I do not think that such services should be approved. If the content board found that the BBC was going to launch a service that would replicate an existing commercial service and would pose unfair competition, it should say that that service should not be launched. That would be the result of our amendment.

Nick Harvey (Liberal Democrat, North Devon)

In circumstances in which a decision had to be made about whether the BBC should form a new service, the question is whether that decision should be made by Ofcom, as a regulator with overwhelming responsibility towards competition—which the hon. Gentleman advances—with, perhaps a note on its desk from the Secretary of State about the cultural issues, or by the Secretary of State with a note on her desk from Ofcom about the competition implications? I suspect that the hon. Gentleman and I would fundamentally differ about the answer.

John Whittingdale (Conservative, Maldon and East Chelmsford)

The hon. Gentleman is entirely right, we would fundamentally differ. We will have the debate later in our proceedings. I do not want to test the patience of the Chairman by having it today. The hon. Gentleman's observations about amendment No.

61 nearly tempted me to press it. Nevertheless, having listened to the Minister, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

John Greenway (Conservative, Ryedale)

I beg to move amendment No. 36, in

clause 12, page 12, line 28, leave out 'broadcast or otherwise transmitted' and insert 'transmitted, whether broadcast or otherwise'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to take amendment No. 37, in

clause 13, page 13, line 43, leave out 'broadcast or otherwise published' and insert 'transmitted, whether broadcast or otherwise'.

John Greenway (Conservative, Ryedale)

I shall be as brief as I can. These are probing amendments to ascertain whether the drafting of clause 12(2)(a) and clause 13(3)(a) is ambiguous. Clause 12 requires Ofcom to delegate to the content board functions that are related to broadcast content and media literacy. Clause 13 includes a similar requirement for consumer research. It is not clear whether the intention is that the content should include anything that is either

''broadcast or otherwise transmitted by means of electronic communications networks''

or whether the two alternatives are exclusive.

It is not clear whether the words

''by means of electronic communications networks''

are intended to refer back to ''broadcast'' or are meant only to refer back to ''or otherwise transmitted''. If the provision is intended only to refer back to ''or otherwise transmitted'', it seems to be contemplating a means of broadcasting that is not carried out over an electronic communications network. If that is the case, the content board's remit becomes ambiguous. It needs to be clarified.

The same issue arises in respect of the corresponding words in clause 13(3)(a). Clause 28 gives a detailed definition of an electronic communications network and describes it as

''a transmission system for the conveyance . . . of signals of any description''.

That appears to include all broadcasting. There may be ambiguity, but it may not matter either way because the same conclusion would be reached. However, the matter has been sufficiently exercising the lawyers at BSkyB and, as they are so frequently on the ball, it would be sensible for us to tease out from the Minister the meaning of the provision.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I want to pick up on amendment No. 36 and approach it from a different angle. The existing wording and the suggested change of wording refer to the definition of what the content board regulates. Now is the most appropriate time to tease out details of the scope of the content regulation, especially whether it covers the internet. The implication of ''electronic communications network'' is that the internet would be covered. In response to a point that was made about the previous group of amendments, the Minister said that it would not be. I assume that he was referring to the general duties of Ofcom under clause 3, which refer to it securing

standards in respect of ''television and radio services''. If we did not have the restriction in respect of general duties, the various forms of wording for ''otherwise transmitted'' could be taken as extending the duties to the internet.

I come to a point that needs to be considered seriously. I cannot find a definition of ''television and radio services'' in the Bill. That may not be essential, but it may become so. If the Government are successful, for example, in their broadband strategy and 5 million cable customers receive televisual output—or something that looks like a television programme—on their television set, how will we distinguish what is defined as internet and outside, and what is defined as broadcasting and, therefore, inside? It is important to define ''television''. Do the Government mean television as we currently understand it, in that it runs off a large transmitter on a hill, a satellite or a particular type of technology over cables? Reference was made earlier to the fact that community radio probably now uses the internet as radio more than it uses broadcast radio, because it is easier. We need a definition of what constitutes television or radio. Given the general duties under clause 3 along with the broad provision under clause 12 that refers to

''otherwise transmitted by . . . electronic communications networks'',

the content board may, by accident rather than by design, drift into such matters. It will be looking at its legal powers and receive complaints. Those complaints may well refer to something that has not historically been defined as television or radio. Who ultimately will arbitrate on whether such things should be regulated? That is a significant point.

If we are serious about the Bill surviving over the years, we should decide whether we need a clearer definition of what is inside and what is outside the television and radio sphere. Otherwise, we might simply rely on the fact that we have a current understanding of the one sphere, and a sort of understanding of the other—it is something to do with internet protocol packets, and involves websites and so on. Those spheres will increasingly converge. We can try to distinguish between the two at the moment, but I suspect that it will become harder to do so.

Simon Thomas (Plaid Cymru, Ceredigion)

The hon. Gentleman makes an important point. He says that the two spheres will increasingly converge, but surely they have converged already. Interactive digital television, for example, helps the viewer to use an online service, to join in online interaction or to vote online on the topic of the day. We are told that online video on demand, which is already being delivered via cable, is outside the scope of the Bill. However, the hon. Gentleman's point makes us think again about those issues, and I hope that he will get the answer that he expects from the Minister.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The hon. Gentleman reinforces my point. Someone using the Sky television service, for example, will, when looking at the television picture, presumably be within the gamut of the normal content regulation. That person might click on to Sky Active,

which is Teletext-serviced and is in some way regarded as television. If, through one of the online services, that person hooks on to something else, they may find equally or more offensive content, but at some point they will cross the boundary. The question is whether it is best to leave the boundary entirely vague in relation to technical matters, or to define the boundary more clearly. I see the sense in both strategies.

Our problem is that clause 12 does not clearly define the boundaries; it is not quite all encompassing. My understanding—the Minister may correct me—is that, on the internet point, we might be told that the Bill deals with television and radio regulation, and that it is therefore the definition of those that is important.

Andrew Lansley (Conservative, South Cambridgeshire)

There will be a lot of discussion on what constitutes the internet as distinct from broadcast services, and there are many subsequent definitions in the Bill. However, surely the content board can have functions conferred on it by Ofcom. If Ofcom is to have regulatory functions in relation to internet content, as it may well do—we shall discuss that later—that content can be referred to the content board. Clause 12 is not the place in the Bill to define the functions of Ofcom.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I am grateful to the hon. Gentleman for his interpretation. We tried earlier to define, in broad terms, the functions of Ofcom, and our discussion is leading on from that. If clause 12 passes as it is, and hon. Members have concerns about Ofcom being involved in internet content regulation, it may be too late to do anything about it later. I did not expect such a broad definition under clause 12. The clause would be an opportunity to limit further the definitions of the content board, if that were the intention.

The point was made that by having such a broad definition in clause 12, we have left the matter open and can later broaden the scope of the content board. I had assurances from the Minister that the scope was to be quite limited. That is my point about the broad definition,

''otherwise transmitted by means of electronic communications networks''.

I accept that we will come back to the issue later, but it was worth making the point now, because if we approve clause 12 unamended, we will create a wide definition, and there is a valid political view that it would be better to create a narrow definition of what the content board does while we are defining the content board, rather than later in the Bill.

Kim Howells (Labour, Pontypridd)

I suspected when I read the clause—about midnight some three days ago—that when we reached the amendments under discussion, a number of anoraks would start to unfurl themselves. I know that the hon. Member for Sheffield, Hallam would not be seen dead in an anorak.

These provisions relate to the functions of the content board and therefore to the content of anything that is broadcast or conveyed by means of an electronic communications network. They also relate to Ofcom's consumer research function as it relates to content. As we have seen, Ofcom's interest in content, in relation to media literacy, extends beyond broadcasting to other media, including the internet.

However, it does not extend to the regulation of internet content. I hope that that clarifies things a little.

I know that we are running short of time, Mr. Gale, but I want to draw the Committee's attention to part of clause 390, beginning at line 41 of page 332, which states:

'' 'television and radio services' means—

(a) programme services apart from those provided by the BBC; and

(b) services provided by the BBC in relation to which OFCOM have functions;

'television programme' means any programme (with or without sounds) which—

(a) is produced wholly or partly to be seen on television; and

(b) consists of moving or still images or of legible text or of a combination of those things''.

As the hon. Member for Sheffield, Hallam says, life is more complicated than that. He asked the Committee about whether we should leave the frontier vague or whether we should make it precise. My answer is that, at this stage, we should leave it as vague as possible.

I repeat that the content board will not regulate internet content. I suppose that we are asking for a content board that is, in a way, ignorant of the existence of the internet. However, I hope that I have explained things and have answered the specific question from the hon. Member for Lichfield. The content board will research, and advise on, matters relating to the internet and to media literacy. However, the board will be fully part of Ofcom, so it can have no regulatory functions or powers that Ofcom does not have. The Bill does not provide for Ofcom to have any regulatory powers over internet content; therefore, the content board cannot have such powers either.

Simon Thomas (Plaid Cymru, Ceredigion)

I am grateful to the Minister for that explanation. However, one thing still concerns me—the availability of what we would call television and radio programmes made by a service provider that is otherwise regulated by Ofcom but broadcast on the internet. Already programmes may be broadcast first on satellite and then on terrestrial television, in order to encourage people to move to satellite. What will happen if technology moves on in the next five or 10 years, broadband becomes much more available, and broadcasters broadcast their programmes on the internet first, before broadcasting on terrestrial? Would the content of such programmes be governed by the content board of Ofcom?

Kim Howells (Labour, Pontypridd)

That is the best reason I have heard so far for leaving the frontiers very vague. I expect that the House will have to examine such situations, which, in the context of this Bill, are outside the remit of Ofcom. I therefore ask the hon. Member for Ryedale to withdraw his amendment.

John Greenway (Conservative, Ryedale)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 ordered to stand part of the Bill.

Clause 13 - Consumer research

John Whittingdale (Conservative, Maldon and East Chelmsford)

I beg to move amendment No. 38 in

clause 13, page 13, line 44, leave out from 'network' to end of line 47.

Clause 13 deals with consumer research under the heading:

''Functions for the protection of consumers''.

The Minister has spoken about clause 390, which contains definitions. It is clear that, in this case, the definition of ''consumers'' goes a long way beyond what most people would imagine ''consumers'' to mean. In particular, the definition includes business customers. If one looks at the criteria on which research carried out by Ofcom will be based, it will become pretty clear that several criteria affect business customers but not domestic customers. Is the Minister confident that a requirement to respond to research requests from Ofcom will not place an undue burden on businesses?

The amendment would clarify a point that is accepted by the ITC and Oftel: television broadcasts are not services that are associated with electronic communications services. Broadcasters do not provide any form of electronic communications services to their viewers and their broadcasts are regulated only under part 3. Provisions in the Bill that indicate that television broadcasts are delivered to viewers as services associated with an electronic communications service must be changed to reflect that.

Subsection (4) states:

''OFCOM must make arrangements for ascertaining . . . the state of public opinion from time to time concerning programmes included in television and radio services''.

There is a suggestion that that might include video on-demand services. Will the Minister confirm that video on-demand services are excluded from any regulation under part 3?

Kim Howells (Labour, Pontypridd)

Consumers are at the heart of Ofcom's remit and decisions on what will further their interest will need to be underpinned by proper research. The amendment has no effect. Subsection (4) allows Ofcom to carry out research on public opinion concerning programmes included in television and radio services and on the effect of any material published by means of electronic media.

The hon. Gentleman is right to raise the issue because it allows me to state clearly that businesses should not be burdened with endless requests from Ofcom for information to further its research. I clarify that that is not the intention of the Bill. I hope that Ofcom would see itself as a partner with businesses to work out proper systems for obtaining key information that will help its work. Other sectors do that very well at the moment.

The hon. Gentleman will know that broadcasting and media industries have sophisticated technologies and systems for gathering information such as, for example, numbers of viewers. Such information is

useful for companies and those of us who are interested.

We want Ofcom to be able to find out what public opinion is, if that is relevant to its remit. It will use that knowledge to inform its decision-making process. Subsection (1) places Ofcom under a duty to make arrangements for ascertaining public opinion on how electronic communications networks and services are delivered and on the way in which associated facilities, such as electronic programme guides, are made available. Ofcom must also ascertain the state of public opinion on television and radio programmes.

Ofcom has a wide range of functions under part 3 relating to public service broadcasting, which we will discuss in due course. It cannot hope to fulfil its functions without an appreciation of the types of programmes that the public want to be included in television and radio services. Subsections (4) and (5) place Ofcom under a duty to do that.

The duties to carry out research are in addition to the power of the consumer panel to carry out research. Nothing will restrict Ofcom from making any arrangements that it considers to be incidental or conducive to the carrying out of its functions.

The hon. Gentleman raised a question on electronic services. His point is technically correct but I am not sure that I follow the logic of his further assertion. I know that the matter has been of great interest to BSkyB, among others. Perhaps we can discuss it later and get greater clarity. I hope that the hon. Gentleman will withdraw his amendment.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I am grateful to the Minister for his comments, and especially for his assurance that the research conducted by Ofcom will not result in businesses being deluged by a tidal wave of requests for information.

The Minister suggested that we might return to the issues raised by the amendment, and I look forward to doing that. In the interests of brevity, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.

Clause 14 - Duty to publish and take account of research

Michael Fabricant (Conservative, Lichfield)

I welcome clause 14, as it encourages a spirit of openness, but there are a couple of points about which I seek clarification.

The Committee has dealt with clause 1(5)(b). That stated that there is an obligation on Ofcom to

''promote the carrying out of such research and development by others, or otherwise to arrange for it to be carried out by others''.

That research and development will mainly be in engineering sectors.

Clause 14 does not explicitly mention this, but can the Minister confirm that subsection 1(b), which states

''to consider and, to such extent as they think fit, to take account of the results of such research''

does not just include the research detailed in clause 13, and that if research is undertaken by Ofcom—or someone it has contracted, as it is empowered to do under clause 1—it will publish that information under clause 14?

Subsections (3) and (4) contain sensible provisions to do with issues that should remain confidential. However, do they fully comply with the Freedom of Information Act 2000?

Kim Howells (Labour, Pontypridd)

I am confident that they do comply with that Act. We were very careful about this matter.

I welcome the hon. Gentleman's point that there are times when there will be a need for confidentiality, and one of the best things about sectoral regulators is that they have managed to do that successfully.

We want Ofcom to be as transparent as possible in the way that it operates, and clause 14 is part of our commitment to that. Placing Ofcom under a duty to publish the results of any research carried out by it or on its behalf under clause 13 ensures that all interested parties will be able to consider the same information to which Ofcom has access. I have to disappoint the hon. Gentleman by reiterating that that is limited to clause 13 so far as this part of the Bill is concerned, with the proviso that confidentiality will be protected—clause 14 (2), (3) and (4) prevent the publication of anything confidential.

Michael Fabricant (Conservative, Lichfield)

I am grateful to the Minister for his clarification on clauses 14 and 13. I ask him to think about whether there might be a relevant place later in the Bill for a Government amendment saying that broadcasting research will be published as it is at present by the ITC and the Radio Authority.

Kim Howells (Labour, Pontypridd)

Yes, I can give the hon. Gentleman that assurance.

Question put and agreed to.

Clause 14 ordered to stand part of the Bill.

Clause 15 - Consumer consultation

Andrew Robathan (Conservative, Blaby)

I beg to move amendment No. 39, in

clause 15, page 15, line 31, leave out from 'and' to end of line 32 and insert 'consumers and small business consumers in relation to such of the following matters as are relevant to either of those classes of consumers—'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to take the following:

Amendment No. 179, in

clause 15, page 15, line 32, leave out from 'to' to the end of line 27 on page 16 and insert 'any aspect of OFCOM's duties and the operational effectiveness of OFCOM in respect of delivering those duties to further the interests of consumers and citizens.'.

Amendment No. 198, in

clause 15, page 15, line 41, leave out 'financial and other'.

Amendment No. 40, in

clause 15, page 15, line 41, leave out 'such services or facilities' and insert 'the services or facilities mentioned in subsection (4)'.

Amendment No. 41, in

clause 15, page 16, line 20, leave out 'or of an electronic programme guide'.

Amendment No. 42, in

clause 15, page 16, line 31, at end insert 'nor the terms on which any such content is supplied'.

Amendment No. 180, in

clause 15, page 17, line 8, leave out subsection (9).

Andrew Robathan (Conservative, Blaby)

As you will not wish to have a clause stand part debate, Mr. Gale, I would like to make some general comments on this clause dealing with consumer consultation and the consumer panel.

The clause follows on, to some extent, from clause 13 and we find that its remit is considerably wider that it might appear, as the definition of a consumer includes small business customers. We are somewhat concerned about services and facilities that are referred to in clause 15(1)(a). The Minister talked about giving Ofcom a broad remit, but will he provide some examples of what exactly those services and facilities would comprise? Does he think that they are limited?

On amendment No. 39, we think that consumer panel advice should be required only in appropriate cases. The clause requires the consumer panel to provide advice regarding the provision of certain services to domestic customers, but the nature of the service means that it would not be provided at that level. Under the Bill, the consumer panel would give advice regarding the interests of domestic and small business consumers on various matters that could not always apply to domestic consumers. For example, it is difficult to see how an electronic communications network could be provided to a domestic consumer, as is stated in 15(3)(a), line 33. We need clarification on whether the provisions are intended to apply only to business users. There is a lack of clarity in the Bill about what services can be provided to domestic consumers. For example, in the context of digital television, it is clear that associated facilities are not provided at retail level to domestic consumers.

Amendment No. 41 relates to electronic programme guides, which are regulated at the wholesale level. An EPG service is provided to a broadcaster that wishes to list its channel, not to domestic consumers. It is hard to understand how an EPG could be provided to domestic users as a service under the Bill, other than as a broadcast service falling under part 3. In that case, it is a contents service and ought to be excluded from the ambit of the consumer panel by virtue of subsection (5). We ask, therefore, for references to EPGs in paragraph (4)(d) to be deleted.

On amendment no. 42, we are concerned that the panel's remit is wider than was intended and that it may encompass the pricing and packaging of pay TV services that is delivered through satellite and digital terrestrial television, but would exclude those that are provided by cable. It appears that in subsection (4) the consumer panel would cover the retail provision of pay TV services—services provided over an electronic communications network—in terms of a contract between the provider and the consumer. That would, however, exclude the provision of free-to-air services. It is understood by the ITC and Oftel that there is no intention to regulate the retail pricing and packaging

of satellite and DTT pay TV services under part 2 or part 3 of the Bill. That would be similar to the retailing of pay TV services by cable operators, which is not regulated.

The provision of content by a broadcaster is excluded from the scope of the consumer panel by subsection (5), neither would the provision of a broadcast signal to domestic customers fall into the ambit of the consumer panel, since that is not an electronic communications service. I understand that both the ITC and Oftel have confirmed that.

Chris Bryant (Labour, Rhondda)

Cable television is.

Andrew Robathan (Conservative, Blaby)

Yes, it is—[Interruption.]

The rest of the debate is in Hansard.