Communications Bill

Public Bill Committee, 28 January 2003.

Standing Committee E

Communications Bill

Clause 302 - Local content and character of local sound broadcasting services

Peter Atkinson (Conservative, Hexham)

I remind the Committee that with this we are taking the following:

Clause stand part.

New clause 41—Local content of local sound broadcasting services

'(1) It shall be the duty of OFCOM to secure that appropriate local content is included in the programmes broadcast by local sound broadcasting services.

(2) In carrying out its duty in subsection (1), OFCOM shall—

(a) take all local sound broadcasting services receivable in any area together as a whole; and

(b) take into account the results of research carried out under subsection (7)(a); and

(c) take into account the extent to which the expectations of listeners for local content (under subsection (7)(a)) are being met by other services receivable within the area; and

(d) take into account the degree to which any action taken by OFCOM pursuant to this section may affect competition between local sound broadcasting services and any other class of service.

(3) OFCOM must draw up or agree a code giving guidance as to how the requirements of subsection (1) should be satisfied and, in doing so, shall have particular regard to the desirability referred to in section 3(3)(c) of promoting and facilitating the development and use of effective forms of self-regulation.

(4) The code may, in particular include guidance as to the relevance of different descriptions of local content included in local sound broadcasting services.

(5) From time to time, OFCOM may revise the code or direct that it should be revised.

(6) The code and every revision of the code should be published in such manner as OFCOM considers appropriate.

(7) Before drawing up or revising the code, OFCOM must—

(a) conduct research into listeners' expectations of local sound broadcasting services and other services receivable within any area concerned, including the extent to which they expect local content to be broadcast; and

(b) consult with persons holding licences to provide local sound broadcasting services or persons appearing to represent such persons, or both.

(8) In this section, ''local content'', in relation to a local sound broadcasting service, means content (including news or information) which is of particular interest—

(a) to persons living or working within the area or locality for which the service is provided; or

(b) to persons living or working within a part of that area or locality; or

(c) to particular communities living or working within that area or locality.

(9) References in this section to persons living or working in an area or locality include references to persons undergoing education or training in that area or locality.

(10) A code drawn up as a result of subsection (3) shall not have the effect of varying an existing sound broadcasting licence.'.

John Whittingdale (Conservative, Maldon and East Chelmsford)

Good morning, Mr. Atkinson. We have spent a little time already on amendment No. 302 and I shall do my best not to recap the arguments that have already been made. Nevertheless this is an important part of the Bill as it sets the framework in which local radio will have to operate in future. The Government have made some movement from their original proposals for ownership restrictions on radio stations and that is very welcome. In their place, this clause is there to protect the local character of a station. The Government are correct to focus less on who owns the station than what its programme output should be.

Rather like my hon. Friend the Member for South Cambridgeshire (Mr. Lansley), I was struck by the Minister's remarks when we were debating clause 301, particularly when he said:

''This is meant to be a deregulatory piece of legislation and we do not want to be too prescriptive in dictating how Ofcom . . . should draw up a localness code.''——[Official Report, Standing Committee E, 23 January 2003; c. 727.]

That is a very welcome principle, and perhaps it should also be applied to clause 302.

It has been argued that to provide the protection of localness against any possible risk that might be posed by the liberalisation of ownership and permitting overseas ownership, Ofcom should have a duty to protect and promote localness.

Hon. Members might remember that I referred to one of my local stations in Chelmsford, Dream 107, and the way in which it was committed to participation in its local community. The character of the station was very much based upon its local links and its participation in community activities. That was its selling point. That brings me to my central point:

for successful commercial radio operators, localness is a key component of their programming for commercial market-driven reasons and not because Ofcom has told them that that is what it should be. Anyone running a radio station recognises that.

I think that my hon. Friend the Member for Lichfield (Michael Fabricant) made the interesting observation that Clear Channel—and a lot of the discussion around ownership seems to get back to what Clear Channel might or might not do—had had to recognise in Australia that localness did matter, and having started off by rather abandoning the local identity of their stations, that had proved very unsuccessful, so they had to move back in that direction.

Brian White (Labour, North East Milton Keynes)

Is not one of the lessons of that that it is very hard to rebuild that localness having lost it and should we not be doing something to prevent it from being lost in the first place?

John Whittingdale (Conservative, Maldon and East Chelmsford)

I am not sure whether that is true. In particular, I point to my own experience in Chelmsford, where Dream 107 has recently been taken over by Tindle Radio. It has rapidly won back audience share because the station had not previously been identified as being locally based. There is a great willingness on the part of listeners to respond to local appeal. The dilemma is how to achieve that—whether it requires the intervention of Ofcom to prescribe local content or whether we should leave it to the market. Ralph Bernard, who addressed the Westminster Media Forum about the Bill last December, said:

''Localness is a key selling point to listeners—it has to be when our competitors are generally regional or national—and advertisers in an area are much more likely to support a radio station that is a vibrant local business with its roots deep in the local community. So we're experts on what makes a local station really hum, which aspects are relevant to our listeners, which events are going to draw a crowd, which local institutions deserve support.''

He continued:

''Against this background of in-depth local expertise, the Bill proposes that a regulator—based principally in London—should judge whether a station is local enough. The clause seeking to deliver another bit of dynamism to consumers takes no fewer than ten sub-paragraphs to meander its way through the subject—and yet this is something that, if we get it wrong, will cause our stations to lose audience and advertisers faster than any regulatory process could react to.''

Chris Bryant (Labour, Rhondda)

I am grateful to the hon. Gentleman. I presume that he is now about to make the point that the market alone is most likely to provide localness. However, Red Dragon FM in Wales and its sister station in London, Capital FM are virtually identical in terms of their play list. The only difference between them relates to a few populist events in the summer. So is it not essential to make sure that we jig the market a little bit? It will not do it all on its own.

John Whittingdale (Conservative, Maldon and East Chelmsford)

Obviously, I am not familiar with Red Dragon FM, although clearly if the situation is as the hon. Gentleman describes, listeners will look elsewhere for a local service.

Michael Fabricant (Conservative, Lichfield)

I am familiar with Red Dragon FM as I was involved in setting it up—[Interruption.] That was before I became a Member of Parliament. One of the reasons why Capital Radio took it over was that its audience figures were falling. The play list that the hon. Member for Rhondda (Mr. Bryant) referred to is more popular with its audience than it was previously.

Chris Bryant (Labour, Rhondda)

Because it is not local.

Peter Atkinson (Conservative, Hexham)

Order. This is an intervention, not a debate on Red Dragon radio station.

John Whittingdale (Conservative, Maldon and East Chelmsford)

My hon. Friend's intervention is most helpful. Perhaps we should attempt to find a radio station in Britain that he did not play a part in setting up. However, I am in some agreement with the hon. Member for Rhondda on one point. Nobody is saying that there should not be a requirement for some degree of local content and that is a trade-off for the relaxation in ownership rules, which most people would accept. It brings me to the key question: what is local? Most people who listen to a local radio station would say that local means that there should be regular local news items and local traffic reports saying what is happening in Acacia avenue. A local station should participate in local community events, and provide a platform for local musicians and entertainment groups. All that relates to content—about what is broadcast. I am not sure whether, in order to ensure that a station is local, it is necessary to prescribe the location of its studios, who it should employ and measures which are not to do with the content of what is broadcast, but its production.

Chris Bryant (Labour, Rhondda)

I would be absolutely delighted if Red Dragon, FM which I listen to every day when I am in Wales, provided a platform for local bands. I admit that Kylie Minogue has family from Maesteg, but I do not think that that makes her a local musician that Red Dragon FM is positively promoting by playing her and Robbie Williams 25 times a day. The play list is very prescriptive. That applies to many commercial stations, as they know that it is what succeeds in the market.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I do not think that there is a great distance between the hon. Gentleman and myself. I agree with him that content is important and I do not dispute the duty on Ofcom to promote local content, although I suspect that if Red Dragon FM played nothing except local bands in garages in the Rhondda and none of Kylie Minogue it might lose listeners rather rapidly, although I am sure that there are extremely good bands in the garages around the Rhondda.

Michael Fabricant (Conservative, Lichfield)

When Swansea Sound, the radio station based in Gorseinon, got its licence, its licence was concerned with the provision of Welsh language programming as well as ordinary programming. It built a recording studio as part of its radio station and now finds it under-utilised. Although people like hearing the news in Welsh, they are not so concerned about listening to Welsh music.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I am sure that the listeners and owners of Red Dragon FM will be fascinated that we have spent so much time arguing about whether or not

it is local. Let me move on to a more general point. My concern is not so much about content, but about the additional prescriptive nature of the clause in relation to the other factors that the Government appear to consider necessary to prescribe in order for a station to be local. Those are essentially contained in clause 302(4), which says:

''Those factors are—

(a) the employment or other use for the purposes of the service of persons living in, or otherwise having connections with, the area or locality;

(b) the provision to such persons, in connection with the provision of the service, of opportunities for training and development'

(c) the use of premises within the area''

It seems to me that who the station employs, how much they train them and how they use their premises are not central to whether or not the station could be defined as local. For that reason a number of the commercial radio companies regard clause 302 as far too prescriptive and that this provision is against the spirit of light-touch regulation. Indeed, the Commercial Radio Companies Association said:

''This is an astonishing leap from a proposed duty to protect output to a recipe for interfering in microregulation.''

It continues:

''Perhaps 302's greatest weakness is its apparent abandonment of listeners. Nowhere in these 10 sub-clauses is there any requirement for them actually to go out and canvass the views of real listeners. It is an entirely subjective clause which lets OFCOM decide whether or not it thinks that a station is genuinely serving its local listeners.''

Kim Howells (Labour, Pontypridd)

I thank the hon. Gentleman and I have enjoyed listening to him. If he puts down his brief from Mr. Ralph Bernard and his colleagues, is he saying that nobody from a locality should be employed by a radio station, nobody should be trained and that the premises should be somewhere other than the locality?

John Whittingdale (Conservative, Maldon and East Chelmsford)

Of course I am not saying that. I am saying that it should not be necessary to write into the Bill that Ofcom should be able to judge whether or not a radio station has premises that are local enough to its area in order for it to meet the requirements of the Bill. The broadcasters themselves should decide those matters and as long as the broadcaster is providing a content output that the listener believes to be local, that is what should determine whether or not they meet the local requirement.

Chris Bryant (Labour, Rhondda)

The logic with which the hon. Gentleman is enticing us is that he would be quite happy if Capital FM broadcast Red Dragon from central London, with nobody based in Cardiff or indeed South Wales. As far as he is concerned, it would still be a local broadcaster.

John Whittingdale (Conservative, Maldon and East Chelmsford)

My suspicion is that Capital FM would find it very difficult to meet the local content requirement if it were broadcasting from London and did not employ anybody from the Rhondda. However, if that were the case and if the listeners turned to the hon. Gentleman and said ''We think that Red Dragon is a brilliant local station. Its programming is becoming essential to our lives and to understanding the workings of our local community'', the fact that it

happened to be broadcast out of London rather than the Rhondda valley would not be very important. It might be quite difficult to achieve, but the important factor is what people are listening to. It is the key.

Chris Bryant (Labour, Rhondda)

I am sorry to harry the hon. Gentleman, but it seems to me that most commercial radio stations have learned in the past 10 years that it is valuable to them physically to place themselves somewhere where there a lot of footfall as local radio is about ownership. However that does not necessarily come from the market. Sometimes commercial broadcasters have to be told.

John Whittingdale (Conservative, Maldon and East Chelmsford)

The hon. Gentleman is right that broadcasters have learned that that is the case.

Michael Fabricant (Conservative, Lichfield)

Totally wrong!

John Whittingdale (Conservative, Maldon and East Chelmsford)

My hon. Friend is disagreeing with me now.

Michael Fabricant (Conservative, Lichfield)

No. The hon. Member for Rhondda (Mr. Bryant) is totally wrong. My hon. Friend is right.

John Whittingdale (Conservative, Maldon and East Chelmsford)

That is all right then.

The central point that I am trying to make is that the provision in the Bill should apply to the content of the programmes. I see no reason why the factors listed in subsection (4) should be necessary to be prescribed by statute in order to meet the local content requirement. If they fail to meet the local content requirement they will be in breach of the conditions laid down by Ofcom.

John Greenway (Conservative, Ryedale)

Even if, despite my hon. Friend's articulate rendition of all the arguments against the clause, the Minister still wants to keep the clause in the Bill, as he implied in his own intervention, does my hon. Friend not think that the Committee should consider the amendment tabled by my hon. Friend the Member for South Cambridgeshire on the basis that it provides an opportunity for a self-regulatory regime with the powers in clause 302 merely as a long stop should the kind of problems that the hon. Member for Rhondda is suggesting might occur. My hon. Friend and I do not think that they will, but if they did that would be a long-stop power. Surely this should be a self-regulatory matter.

John Whittingdale (Conservative, Maldon and East Chelmsford)

My hon. Friend is absolutely right. My preferred option would be that the Government take away clause 302, redraft it in a way that is far less prescriptive and less likely to micromanage the workings of individual radio stations. If the Minister is unwilling to do that, the amendment tabled by my hon. Friend the Member for South Cambridgeshire will at least represent an improvement on the way in which Ofcom will operate in future, so I would certainly strongly support it.

Michael Fabricant (Conservative, Lichfield)

Does it not demonstrate the ignorance of the hon. Member for Rhondda about the way in which broadcasting works, and indeed that of Labour Members, that Swansea Sound is based in Gorseinon near Gowerton, and not in Swansea and Southern Sound is based in Portslade and not in Brighton. The reason for that is that what is important

is what comes out of a radio loudspeaker and not footfalls as the hon. Member for Rhondda said.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I agree entirely with my hon. Friend, whose knowledge of the location of Welsh radio stations leaves me in amazement.

Chris Bryant (Labour, Rhondda)

Just to correct the hon. Gentleman, it is self-evident that the ''rocking tower'' which was Capital FM was a significant part of how that station sold itself. It would not have chosen to move to Leicester square unless it thought that its location was important.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I have probably tried your patience for long enough, Mr. Atkinson. It is now for the Minister to respond.

Kim Howells (Labour, Pontypridd)

One of the aspects of local radio that we value most is its localness—its ability to be part of the communities it serves, as my hon. Friend the Member for Rhondda pointed out. To support his argument, let me say that it is sometimes a lot quicker to get from Leicester square to the middle of Cardiff than to get from Treherbert in his constituency to the middle of Cardiff, because the economy is booming, the roads are packed and the railways are full. It is precisely because we value the quality of localness that we want to have a long-stop power to preserve it, and that is what the clause provides. It is not about imposing new obligations on local radio stations, nor about getting involved in the detailed management of stations. It is about ensuring that local radio continues to play a strong and valuable local role. The clause is essentially forward looking. It represents no criticism of what local radio is currently doing; it is about encouraging radio operators to preserve and develop precisely the aspects that make local radio good.

Let me try to put the change in context. We have taken enormous steps in the Bill to liberalise the radio market. From the current 70 owners of local radio, the new rules make it possible for us, in time, to have only two dominant owners of local radio in the United Kingdom—both of which, incidentally, could be foreign owned. We believe that those changes will allow the industry to grow. They will be in the interests of the listener, but only if localness is not the victim. While the existing companies argue persuasively that it is in their interests to be local, that could change in a dramatically changed market. The duty in the clause is the safeguard of localness and the quid pro quo for greater liberalisation in the radio market.

The clause places a duty on Ofcom. It is designed, first and foremost, to ensure that Ofcom takes seriously its duties towards localness. It requires Ofcom to draw up a code giving guidance to ensure the local content and character of local radio broadcasting. Ofcom will have to consult on that with both the industry and the listeners. The guidance will, in essence, codify and define the requirements already in existing licences: for example, licences may refer to material that is ''locally produced and presented'', and the code could define in greater detail what that means. The code may also influence

the way in which Ofcom considers matters such as requests for derogations from licence obligations, or its approach to issues such as an acceptable level of networking.

The intention underlying new clause 41 appears to be to prevent Ofcom, when drawing up a code on localness, from considering what might be regarded as ''inputs'' and make it concentrate instead on the extent to which a service takes into account ''the expectations of listeners''—a point made by the hon. Member for Maldon and East Chelmsford (Mr. Whittingdale). Even if we wanted to, we could not accept the new clause at this stage because it duplicates much of the effect of clause 302 without repealing it, thus causing great uncertainty about what Ofcom's duties will be.

Clause 302 allows the code to take into account matters such as local advertising, local employment, opportunities for training and development, and the use of premises in the area. It has been argued that the code goes too wide and that Ofcom has no business involving itself in matters such as premises and the amount of local advertising—a subject that we have just debated briefly—but I strongly believe that such arguments miss the point. The boundaries of the area that Ofcom will be able to examine have deliberately been drawn wide so as to catch all the matters that might be considered to influence the localness of a service. Ofcom does not have to include such matters in the code—that is for Ofcom to decide, but the decision lies largely in the hands of the industry. If it continues to provide good local services, the code is unlikely to touch on those matters; were the industry to drift away from localness, the code might need to be revised. That is the point. The code must be able to include all matters that might be relevant.

I should add that I do not accept the basic premise of the amendment, that inputs do not matter. It has long been recognised in broadcast regulation that inputs have a clear and definite effect on outputs. A moment ago, my hon. Friend the Member for Rhondda mentioned the importance of location; I agree that that is important. I would not want the example quoted by the hon. Member for Lichfield in a previous sitting, of an American company that tried to centralise production in Australia—the attempt failed miserably—to come to pass here

Andrew Lansley (Conservative, South Cambridgeshire)

My hon. Friend the Member for Lichfield said America. I said Australia.

Kim Howells (Labour, Pontypridd)

Perhaps I should have said, ''The example quoted by the Opposition, between them.''

Andrew Lansley (Conservative, South Cambridgeshire)

I hope that the Minister accepts that I intend no discourtesy to him or to the Committee, but I have to head out to lead a debate of my calling in Westminster Hall on the film industry. I hope that when I read the record, I will find that he recognised the value of self-regulation in the context of the localness code and bent towards amendment No. 603. Unhappily, rather than hear it, I shall have to wait to read it. I apologise to you, Mr. Atkinson, and to the Committee.

Kim Howells (Labour, Pontypridd)

I wish the hon. Gentleman well in his debate on the film industry. I am sorry that I shall be

unable to answer it—I understand that my right hon. Friend the Minister for Sport is to do so. I think he went to the pictures once, in the 1960s.

It is reasonable that Ofcom should be able to take a view on these matters. We expect it to take an interest in, for example, the degree of networking that is consistent with maintaining localness. It must be remembered that local radio broadcasters get valuable spectrum for free. In return, it is right that the regulator, acting on behalf of the Government, should be able to take a view on how the spectrum is used.

I am sorry that the hon. Member for South Cambridgeshire is not here to hear my response to amendment No. 603, which would require Ofcom to consider the extent to which the matters it is required to secure under the clause could be, or are already being, secured by self-regulation, and therefore whether it is necessary to draw up a code. I have some sympathy with the general thrust of the amendment, but I do not think that it is necessary. I hope that the industry will welcome the general thrust of the duty and take an active role in developing the code, which offers an excellent opportunity for the industry and the regulator to work together to develop a co-regulatory approach.

I welcome the comments made by the ubiquitous Mr. Ralph Bernard, the head of GWR, the largest radio group in the United Kingdom. He said:

''OFCOM and the industry work together to develop a sensible code, all agree on how the output of the codes will be judged a success or not, and then the industry gets on with operating the system without the need for much further input from the regulator. Trust us to regulate to pre-agreed rules and I am sure we will get a positive result with benefits for consumers, advertisers and the public as a whole''.

I could not have put it better myself. While I cannot pre-empt Ofcom's precise approach to that duty, I am sure that the Committee agrees that Mr. Bernard's approach is admirably positive, and equally sure that Ofcom will be encouraged by his words. The Radio Authority has stated:

''The new duty to be imposed on OFCOM, to safeguard the local character and content of local radio services, places the Radio Authority's existing approach into the context of modern regulation. We welcome the proposal which will in effect codify existing rules and requirements. We hope and expect that OFCOM will look to the station operators to give effect to these regulations largely on a co-regulatory basis, which will include a consultative approach to developing the required localness Code.''

I should add that clause 6 places Ofcom under a duty to review regulatory burdens. Subsection (2) states that Ofcom has to have regard to the extent to which its duties can be secured or furthered by effective self-regulation. I hope that the hon. Member for South Cambridgeshire will be reassured by those comments and agree that the amendment is unnecessary.

We are lucky to have such a good and successful local radio industry in the United Kingdom, and we want to keep it that way. Local radio stations have nothing to fear from a localness code. Localness is what they are good at, and the code will ensure that they continue to be good at it in a changing world.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I have to say that I am somewhat disappointed by the Minister's response. He seemed to recognise some of our arguments, stressing that it will be for Ofcom to decide what to include in the code as to what should be local. However, the fact that the Bill specifies in black and white various provisions to do with premises and employment seems to suggest that Ofcom will take it that those factors are important must be included.

The Minister quoted, with approbation, Ralph Bernard, but Mr. Bernard said, in the paragraph before the one that Minister read out, that the clause

''is akin to the regulator setting up a division to make sure that we remember to switch the microphone on when we want to broadcast an announcement.''

The clause seems far too prescriptive. I am disappointed that while the Minister accepted the thrust of the amendment, which sought co-regulation and the self-regulatory principle, he was unwilling to accept it. Although my hon. Friend the Member for South Cambridgeshire has had to leave us, the Opposition are keen to press the amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 14.

Peter Atkinson (Conservative, Hexham)

Before we move on to clause 303, I was remiss in not telling Members not present at the Programming Sub-Committee that the effect of its decision is that instead of the Questions on clauses being put at 11.25 am, whether or not they have been debated, those Questions will now be put at 5 pm.

Clause 303 ordered to stand part of the Bill.

Clause 304 - Conditions relating to competition matters

John Whittingdale (Conservative, Maldon and East Chelmsford)

I beg to move amendment No. 618, in

clause 304, page 262, line 28, leave out from 'appropriate' to end of line 29 and insert

'to promote the interests of consumers in markets relevant to the provision of licensed services or of connected services, where appropriate by promoting competition.'.

Peter Atkinson (Conservative, Hexham)

With this it will be convenient to discuss the following:

Amendment No. 619, in

clause 304, page 262, line 30, leave out subsection (2).

Amendment No. 645, in

clause 305, page 263, line 13, leave out subsection (2) and insert—

'(2) OFCOM shall not exercise any of their Broadcasting Act powers in relation to any matter to the extent that such matter is capable of being dealt with under the Competition Act 1998 (c.41).'.

Amendment No. 649, in

clause 305, page 263, line 17, leave out subsection (3).

Amendment No. 624, in

clause 305, page 263, line 34 after first 'a', insert 'Broadcasting Act'.

Amendment No. 625, in

clause 305, page 263, line 35 leave out from 'if' to end of line 41 and insert

'and to the extent that, that power is exercised by OFCOM in furtherance of the duty under section 3(1)(a) of this Act.'.

Amendment No. 650, in

clause 305, page 263, line 41, at end insert—

'(7A) For the purposes of this section, a Broadcasting Act power exercised by OFCOM will be deemed to be exercised for a competition purpose to the extent that such power is exercised pursuant to the fulfilment of OFCOM's duties under one or both of the duties in section 3(1)(a) or 3(1)(c).'.

Amendment No. 629, in

clause 306, page 264, leave out lines 24 to 30 and insert

'if, and to the extent that, the provision is made in furtherance of the duty under section 3(1)(a)'.

John Whittingdale (Conservative, Maldon and East Chelmsford)

It was with a certain degree of depression that I discovered that my hon. Friend the Member for South Cambridgeshire had been successful in his application for a debate on the film industry that would coincide precisely with the debate on clause 304. It is a complicated clause concerned with Ofcom's exercise of competition-related powers. If ever my hon. Friend happens to find himself on ''Mastermind'', I suspect that his specialist subject may be the workings of competition law, in which he is extremely well versed. I, on the other hand, have had to take a crash course because of his absence and I hope that the Committee will forgive me if I rely rather more on my notes than I have in previous debates.

I shall begin with a few words of introduction on the clause and the amendments, the purpose of which is to draw attention to some serious concerns about the fact that the Bill does not provide adequate safeguards in relation to the economic regulation of broadcasting. We hope that the Minister will clarify the Government's thinking on that aspect of the Bill, and that, if he is unable to support the amendments, he will at least consider whether it is possible to introduce additional or alternative amendments that will address our concerns.

The clause provides Ofcom with sector-specific competition powers relating to the broadcasting sector. Those powers will allow Ofcom to include a general fair trading condition in Broadcasting Act licences. It will also be able to exercise concurrent competition powers under the Competition Act 1998. We think that the sector-specific power is superfluous because, unlike its predecessors, the Independent Television Commission and the Radio Authority, Ofcom is given concurrent competition powers. There is potential for misuse, in that Ofcom might

attempt to use the sector-specific power instead of its concurrent competition powers, and thus manipulate markets in which no significant market power exists. The provision is unprecedented: to date, no other regulator has sought simultaneously to exercise both sectoral and general competition powers.

Clause 305 requires Ofcom to consider whether it would be more appropriate to act under its concurrent competition powers before exercising its powers under the Broadcasting Act 1996 when it is exercising the Broadcasting Act powers for a ''competition purpose''. That term is defined in clause 305(7), which reflects the wording of the general fair trading condition in clause 304. However, the Bill does not require or even encourage Ofcom to use its concurrent competition powers in preference to its sector-specific powers, despite the Government's stated position that concurrent competition powers should take precedence. That leads to considerable uncertainty about which approach Ofcom will take to competition issues in broadcasting.

Given that Ofcom will have concurrent competition powers, it is unclear why it requires competition powers under the Broadcasting Act, as well as an obligation under clause 3 to have regard to

''the desirability of promoting competition in relevant markets''

when that is considered to be relevant. If the Government included clause 304 because they believe that there are circumstances in which it would not be appropriate for Ofcom to use its concurrent competition powers when dealing with broadcasting matters, they have yet to explain what those circumstances are. It is extremely difficult to foresee a situation in which it would be legitimate for Ofcom to use its competition powers under the Broadcasting Act, but in which its concurrent competition powers were not available to it.

It would be inappropriate if clause 304 had been included merely because of the power that is available to the ITC and the Radio Authority. Although both are currently subject to a statutory duty to ensure fair and effective competition, they do not enjoy the concurrent competition powers that Ofcom will be given. Because of that, to discharge the duty to ensure fair and effective competition, the ITC and the Radio Authority need to be able to impose an obligation on the companies that they regulate via their licences. However, Ofcom will be able to apply and enforce the statutory competition regime and will not need to fall back on a general fair trading licence condition, as the ITC and the Radio Authority have done in the past.

We should recognise that to date no regulator in the communications sector has sought to rely simultaneously on a general fair trading condition and concurrent competition powers. When Oftel first introduced a fair trading condition into Telecommunications Act 1984 licences in the mid-1990s, it included in that condition a sunset provision that ensured that it ceased to apply when prohibition-based competition legislation came into force. That sunset provision was triggered on 1 March 2000 when the Competition Act 1998 came into force: from that date, the general fair trading condition in licences

under the Telecommunications Act 1984 ceased to apply. Oftel took the further step of confirming, in a statement on 1 July 2002, that its approach when faced by behaviour that could contravene both the Competition Act and the sectoral regime would be to use its Competition Act powers and not to rely on the sectoral regime.

In the light of that, allowing Ofcom to rely simultaneously on competition powers in the Broadcasting Acts 1990 and 1996 and its concurrent competition powers is unprecedented, disproportionate and contrary to the principles of good regulation. It also creates inequities between the ways in which electronic communications networks and services on the one hand, and the broadcasting sector on the other, are treated. Amendments Nos. 645 and 549 require Ofcom to use its concurrent competition powers in priority over its sector specific powers. Ofcom should not have the discretion to choose which route to take when it makes decisions, which is what the Bill as it stands provides.

The Bill is silent on the general question of the economic regulation of broadcasters. Part 3 gives Ofcom overall power to regulate the broadcasting sector via broadcasting licences. Under clause 206(2)(b), Ofcom's function in relation to broadcasting is

''to regulate . . . in accordance with this Act, the 1990 Act and the 1996 Act . . . television licensable content services that are provided by persons under the jurisdiction of the United Kingdom for the purposes of the Television without Frontiers Directive''.

Those licences are to be issued pursuant to the Broadcasting Acts 1990 and 1996, which give Ofcom the power to impose licence conditions on licensees and issue directions pursuant to the fulfilment of Ofcom's duties.

Although part 3 describes the regulation of content in the television broadcasting sector in detail, it is silent on how Ofcom should undertake the economic regulation of broadcasting, other than under the extremely wide functions given to Ofcom to regulate and licence the broadcasting sector. Ofcom could seek to include whatever conditions it considers appropriate in broadcasting licences. It has considerable scope to regulate broadcasters in ways that are unrelated or only peripherally related to content regulation, which could be outside the scope of Ofcom's concurrent powers and its sectoral competition powers. For example, Ofcom could seek to impose conditions on broadcasting licensees in the nature of economic regulation that is not for a competition purpose, but is pursuant to one of Ofcom's other duties.

For example, clause 3(1)(a) imposes on Ofcom a duty to

''further the interests of consumers''.

In performing that duty, Ofcom must have regard to the interests of consumers

''in respect of choice, price, quality of service and value for money.''

Under clause 3(1)(a) and clause 3(4), Ofcom may seek to determine that packages of television channels should be comprised of particular channels or a particular number of channels all sold at a particular

price in ''the interests of consumers''. Directions that Ofcom sought to impose on broadcasting licensees pursuant to the fulfilment of that duty would be in the nature of economic regulation, but would arguably not be pursuant to any of Ofcom's competition powers.

Similarly, Ofcom may seek to rely on its duty under clause 3(1)(c):

''to secure the availability throughout the United Kingdom of a wide range of television and radio services which (taken as a whole) are both of high quality and calculated to appeal to a variety of tastes and interests''.

Ofcom may seek to use that duty to impose on broadcasters licence conditions or directions regarding channel packaging and pricing, or other types of significant economic regulation that are unrelated, or only indirectly related, to the core matters of content regulation that part 3 of the Bill deals with.

I understand that in discussions with industry representatives, officials have advised that Ofcom would not use its licensing powers to undertake economic regulation of the broadcasting sector. The fact that the Bill leaves cable distributors of television services unregulated in these activities shows that they are not intended to be caught—otherwise, significant disparities between the regulation of competitors engaged in the same activities would arise.

Ofcom would have no jurisdiction over how cable operators package and price television channels, as the operators do not require part 3 licences to retail third-party channels. Their television activities are thus unregulated by the Bill. However, However, Ofcom could assume jurisdiction over the retail packages of satellite retailers that hold broadcasting licences. Ofcom could seek to regulate the prices of distributors of channels on satellite that happen to hold broadcasting licences, while satellite distributors that retail only the channels of third parties would remain outside the regulatory net as they would not need a part 3 television licensable content service licence for those activities; they could therefore price and package as they pleased.

In any event, the intention that Ofcom will not use its licensing powers to undertake economic regulation of that type is not reflected in the Bill, and there are no safeguards against Ofcom using its licensing powers in that way. Such concerns are not unfounded. Under the ITC regime, the regulator relied on its duties to ensure both the availability of a wide range of services and fair and effective competition in order to issue directions regarding the package of channels—the so-called minimum carriage requirement—and the EPG code.

Furthermore, the exercise by Ofcom of its powers in relation to the economic regulation of broadcasting under part 3 of the Bill—where matters do not fall to be dealt with under its concurrent competition powers—is not subject to sufficient procedural safeguards. The introduction of and any changes to codes, licence terms or general directions to the broadcasting sector are not governed by a set of tests and procedures for their introduction and modification that is similar to the set of tests and procedures in clauses 43 and 44, which apply to

electronic communications networks and services. Similarly, the bill does not provide full rights of appeal to the Competition Appeal Tribunal against Ofcom decisions in such matters.

At the moment, the Bill provides full rights of appeal in three circumstances, subject to a number of exceptions—

Peter Atkinson (Conservative, Hexham)

Order. I do not want to put the hon. Gentleman into any more difficulty, but appeals are covered in the next group of amendments.

John Whittingdale (Conservative, Maldon and East Chelmsford)

In actual fact, Mr. Ofcom, amendment No. 650—[Laughter.]

Michael Fabricant (Conservative, Lichfield)

It must be the heavy regulatory touch.

John Whittingdale (Conservative, Maldon and East Chelmsford)

As my hon. Friend suggests, Mr. Atkinson, it may be the heavy regulatory touch that caused me to call you Mr. Ofcom. I do apologise.

I was addressing amendment No. 650, which has been included in the group of amendments for this clause and which deals with procedural safeguards, including rights of appeal. The matter is dealt with in both clauses 304 and 305, and I assure you, Mr. Atkinson, that if I am allowed to consider these matters in the current debate on clause 304, I am less likely to speak at such length when I outline the case in favour of the amendments to clause 305.

Peter Atkinson (Conservative, Hexham)

The Committee might consider that a fair deal.

John Whittingdale (Conservative, Maldon and East Chelmsford)

Let us hope that this sets a precedent for relations between regulators and those whom they seek to regulate.

The Bill currently provides full rights of appeal in three circumstances: in relation to decisions that are taken under part 2, decisions that are taken under the concurrent competition powers, and decisions that are taken when Ofcom is exercising its powers under the Broadcasting Act 1990

''for a competition purpose.''

I have already mentioned that Ofcom could try to take decisions and impose licence conditions and directions that amount to economic regulation in connection with a number of its primary duties that it has not designated as being

''for a competition purpose'',

for which the only recourse under the provisions of the Bill as it stands is to go to judicial review. Thus, broadcasters will be denied rights that are available to, for example, telecommunications operators. It is bizarre and inconsistent that in a Bill that is based on convergence, Ofcom's ability to act in relation to electronic communications networks and services is subject to due safeguards and accountability, but that ability is not safeguarded in relation to broadcasting.

The amendments and new clauses tabled by my hon. Friend the Member for South Cambridgeshire go a long way towards rectifying those deficiencies. They would remove the unnecessary and redundant fair

trading condition in licences, tying conditions relating to competition matters to clause 3(1)(a), which states Ofcom's duty to promote consumer interests in markets that are relevant to the provision of licensed services or of connected services, where that is appropriate, by promoting competition. That would ensure that if Ofcom relied on that duty in exercising its powers under the 1990 Act, there would be a full right of appeal. Other procedural safeguards that are currently lacking would also be put in place: for example, consultation prior to the introduction of codes, licence terms or general conditions, and consultation prior to subsequent changes in its codes and licences.

The third amendment in the group, No. 650, goes further than my hon. Friend's amendments. It would ensure that a power exercised by Ofcom pursuant to clause 3(1)(a) and 3(1)(c) would be subject to proper procedural safeguards, including full rights of appeal. It therefore closes a hole in the Bill through which Ofcom might seek to rely on its clause 3(1)(c) duty and take decisions and impose licence conditions and directions. Such a course of action would amount to economic regulation, for which proper safeguards might not be provided and for which the only recourse would be judicial review. There is evidence from the current regulatory regime that the risk of a regulator using such a duty is not theoretical. The ITC has acted under both of its primary duties under the Broadcasting Act 1990—to ensure that there is fair and effective competition and to ensure that a wide range of services are available—to undertake matters of significant economic regulation.

I recognise that the Government do not intend to provide for a full independent appeals process on the merits of any decision, licence condition or direction made by Ofcom. I fully accept that the Competition Appeals Tribunal is not well placed to make judgments relating to, for example, taste and decency issues. However, our amendments are not intended to be open ended and they do not allow for such appeals in respect of Ofcom's duties in respect of standards in all television and radio services. The judicial review process will continue to provide the appropriate mechanisms and standards for appeals on matters relating to offensive and harmful material in television and radio services, unfair treatment in programmes, and infringements of privacy.

If there are other areas in which the Government think that full independent rights of appeal or proper procedural safeguards should apply, they should identify them, allow a proper debate to take place, and table the appropriate amendments to narrow the scope accordingly. That is standard better regulation practice, as supported by the Government, which requires transparency, accountability, proportionality, consistency and the targeting of cases in which action is needed. The Government are not meeting the standards of better regulation in respect of the power under discussion, because it is not targeted on cases in which action is needed.

This is not the first time that we have raised the issue of safeguards and appeals. In the debate on clause 187, I mentioned that its effect would be to

introduce full rights of appeal for decisions, directions, approvals and consents made under part 2. We agreed that it would put in place strong and necessary safeguards and I contrasted that with the provisions in part 3. In his response, the Minister for E-Commerce and Competitiveness said that

''Regulation of content is excluded from the scope of the directives and there is no EC requirement for an appeal on the merits involved. Matters of content regulation are strongly connected to public policy and we believe that it is wrong for courts to have the task of reviewing the merits of relevant public policy as part of an appeal process. The judicial review process provides the appropriate mechanisms and standards for an appeal. When powers in the Broadcasting Acts 1990 and 1996 are used to promote competition rather than regulate content, it is appropriate and consistent with the drafting for there to be a formal appeal to the tribunal. That is the distinction that the Bill makes.''—[Official Report, Standing Committee E, 9 January 2003; c. 403–04.]

However, it should be clear from what the Minister said and my comments on what he said that the issue is not as simple as that.

The fact that proper procedural safeguards and rights of appeal are not contained in EC directives is not sufficient grounds for their exclusion from the Bill. It is a matter of the Government's professed principles of good regulation that they are expanded in part 3, in which an element of economic regulation is involved. Pure matters of content, such as those covered by Ofcom's duty in clause 3(1)(d), are unlikely to give rise to questions of economic regulation that merit a full right of appeal to the Competition Appeals Tribunal. However, we have shown that the Bill leaves Ofcom with the ability to undertake matters of significant economic regulation under part 3 that may be unrelated, or only indirectly related, to content regulation. That might be done on grounds other than its concurrent competition powers or its sectoral powers for a competition purpose. In such cases, there is no right to a full appeal process, even though similar decisions made under part 2—for example, in relation to pricing and packaging of telecommunications services—provide such a right.

I hope that, in responding to this lengthy submission, the Minister will use the opportunity to clarify the Government's thinking about those aspects of the Bill and will consider tabling additional or alternative amendments to address the concerns that I have outlined, even if he cannot bring himself to support our amendments. Will he at least give us some assurance on how Ofcom will use both the powers that it inherits under competition legislation, and those that it can exercise under the Broadcasting Acts?

Kim Howells (Labour, Pontypridd)

I have to admit that I share with the hon. Member for South Cambridgeshire a kind of perverse enjoyment of matters relating to competition law and its implications for markets including broadcasting and telecommunications. The hon. Member for Maldon and East Chelmsford should not underrate his ability to give us the gospel according to BSkyB—he did a magnificent job. However, I do not agree with the amendments, and I shall explain why.

The effect of amendments Nos. 618 and 625 would be to give primacy to Ofcom's duty under clause 3(1)(a) to promote the interests of consumers where

appropriate by promoting competition. Amendment No. 650 seeks a similar outcome, but would also add Ofcom's duty under clause 3(1)(c)

''to secure the availability throughout the United Kingdom of a wide range of television and radio services which (taken as a whole) are both of high quality and calculated to appeal to a variety of tastes and interests.''

The amendments would widen the scope of the decisions that would be subject to the right of appeal on their merits to the Competition Appeals Tribunal. The effect would be unduly to limit Ofcom's statutory discretion in the application of its general duties under clause 3 and those functions that, rightly, should have a route of appeal to judicial review.

Clause 3 sets out an overall duty on Ofcom to further the interests of consumers in relevant markets, where appropriate by promoting competition. As a general duty, together with the other duties contained in clause 3, it applies to all of Ofcom's functions, including those set out in the clauses relating to its Broadcasting Act competition powers. The same is true of Ofcom's general duty to secure the availability of a wide range of television and radio services. Ofcom is required to resolve any conflict between its clause 3 duties in such manner as it thinks fit.

We have provided for those of Ofcom's decisions that are made for the purpose of ensuring fair and effective competition to be subject to a right of appeal on the merits to the CAT. Other decisions that Ofcom makes for policy reasons may have an economic effect, but that does not mean that they should be subject to a similar right of appeal. It is important that Ofcom, a specialist broadcasting regulator, should retain its discretion in that respect. We are satisfied that judicial review of those of Ofcom's decisions that do not relate to competition is entirely appropriate.

Amendment No. 645 would limit Ofcom's ability to determine the most appropriate route for intervening in a competition matter. The ''where appropriate'' test, in the current wording of clause 305(2), is in line with the concurrent powers of all other regulators in competition matters. That formulation acknowledges that regulators of a range of sectors, not only of communications, are best placed to determine whether to use general competition law or sector-specific competition powers. That is entirely the correct approach. Broadcasters can apply for judicial review if they consider that Ofcom has wrongly used its sector-specific powers when the Competition Act powers would have been the more appropriate route.

The hon. Member for Maldon and East Chelmsford raised the specific matter of ensuring parity and equity between platforms. He was right to say that cable packages do not require a licence under part 3, but nor does a packager of satellite channels. However, a cable packager that provided its own channels as well as or instead of simply distributing channels provided by others would need a licence for those channels. In that respect, therefore, cable and satellite are treated in the same way. It depends on the nature of the business and especially on whether the packager provides its own channels.

It is true, as the hon. Gentleman said, that no regulator has used both sets of powers simultaneously.

There is always a choice of route. He mentioned the Oftel statement of 1 July 2002, which stated:

''In some cases it may be appropriate to use sectoral powers. However, in the majority of cases that could potentially be caught by the Competition Act, but which do not arise from interconnection disputes, the Director General now expects to investigate, and where appropriate take enforcement action, under the Competition Act rather than under the sectoral regime. The proportion of cases dealt with under the Competition Act will increase.''

The hon. Gentleman could have quoted that statement. Oftel is not saying that it will not use sectoral powers—on the contrary. It went on to state:

''Oftel may decide at any stage in an investigation that it is more appropriate to carry out the investigation under the sectoral regime rather than under the Competition Act.''

It is clear that the regulators should, from time to time, have access to the necessary powers. As I have already outlined, there is good reason for that.

Those who argue against clause 304 believe that the Competition Act is sufficient to protect against anti-competitive behaviour in broadcasting. That is a cause of fundamental disagreement. Under the prohibitions in the Competition Act—those prohibitions on which Ofcom would largely have to rely were its sector-specific powers to be removed—intervention would be allowed only if there was an abuse of a dominant position, or if agreements existed that appreciably prevented, restricted or distorted competition. We are concerned about cases in which markets should be opened up to greater competition but where the legal tests required by the Competition Act are not met. That is when the anorak expertise of the hon. Member for South Cambridgeshire becomes important. I shall attempt to explain why.

The sector-specific powers contained in the Bill can be used to supplement those contained in the Competition Act. The Competition Act cannot be applied until the regulator has reason to believe that an enterprise has harmed the market by acting anti-competitively, or that the market has been harmed by existing agreements. As such, there are situations in which the use of sector-specific powers may be more effective, especially where advance action or action in a short time frame is required to ensure effective competition.

The opponents of that policy want us to leave the broadcasting sector to be determined by the Competition Act, which, I am sure the hon. Member for Maldon and East Chelmsford will agree, has very little broadcasting case law behind it. The Act is still relatively new. Our policy is to carry over the safeguards that the ITC and the Radio Authority have had to guarantee that Ofcom has that same flexibility to ensure fair and effective competition as the other broadcasting regulators had pre-Ofcom.

We have made changes to ensure that Ofcom cannot use those powers in a way that unnecessarily burdens industry. The policy's opponents might have lost sight of the fact that the Bill will ensure that Ofcom must not use its sector-specific competition powers where it considers that the more appropriate

route would be under the Competition Act. That is important. Any decision that Ofcom makes for a competition purpose will have a route of appeal to the CAT. Moreover, Ofcom must periodically review any of the prohibitions that it issues under its sector-specific powers to ensure that unnecessary burdens on the industry are removed. Given those safeguards, I hope that the hon. Member for Maldon and East Chelmsford will seek leave to withdraw his amendments.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I am not sure that the Minister's assurances take us further forward. He says, for example, that the regime applied to cable and satellite operators is the same, because if a cable operator were to provide its own channel, it would be subject to those powers, whereas a satellite operator that did not provide channels would not. That theoretical argument is undoubtedly correct, but the practical effect is that, in the present market, cable operators have to be outside the arrangements and satellite operators do not. The Bill's provisions appear to be discriminatory.

Although the Bill states that Ofcom should use its Competition Act powers in preference to its Broadcasting Act powers, it is left to Ofcom to decide whether that is the more appropriate way to proceed. That an appeal to the tribunal is available in respect of competition purposes is something, but the Minister appears to concede that Ofcom may use its Broadcasting Act powers for purposes that do not relate to, for example, content regulation, taste and decency, or standards, which come under part 3, but that do relate to economic matters, even though they do not necessarily come under the competition requirements of clause 3(1).

I have a feeling that the Minister is confirming my fear that it is at least possible that Ofcom may interpret its general duties to impose conditions using its Broadcasting Act powers, which most people would see as economic regulation rather than content regulation. Even though the Minister has not reassured me, I shall not press for a Division, as I suspect that the subject will be debated again later in our proceedings. We are to debate some procedural safeguards that might help under amendments to clause 305 that stand in the name of my hon. Friend the Member for South Cambridgeshire. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 304 ordered to stand part of the Bill.

Clause 305 - Exercise of Broadcasting Act powers for a competition purpose

John Whittingdale (Conservative, Maldon and East Chelmsford)

I beg to move amendment No. 620, in

clause 305, page 263, line 10, leave out 'and'.

Peter Atkinson (Conservative, Hexham)

With this it will be convenient to discuss the following:

Amendment No. 621, in

clause 305, page 263, line 12, at end insert

'and—

(e) every power of theirs to issue a code of practice or guidance to holders of such a licence.'.

Amendment No. 622, in

clause 305, page 263, line 20, at end insert—

'(3A) In any case where OFCOM decide to exercise any of their Broadcasting Act powers for a competition purpose, OFCOM shall give written notice to any person affected by that decision, stating that—

(a) the exercise of the power in question is to any extent for a competition purpose; and

(b) any person so affected may appeal to the Competition Appeals Tribunal against the decision in accordance with this section.'.

Amendment No. 623, in

clause 305, page 263, line 28, leave out from 'excludes' to 'to' in line 32 and insert

'consideration of whether any breach of subsection (2) has occurred or may occur, and accordingly that matter falls'.

Amendment No. 626, in

clause 306, page 264, line 15, leave out 'and'.

Amendment No. 627, in

clause 306, page 264, line 17, at end insert

'; and

(d) every condition imposed by them under or for the purposes of a broadcasting provision.'.

Amendment No. 628, in

clause 306, page 264, line 18, leave out 'his' and insert 'their'.

Amendment No. 630, in

clause 306, page 264, line 30, at end insert—

'(4A) If, and to the extent that, OFCOM determines that a provision subject to periodic review under this section is or may be expected no longer to be necessary—

(a) in order to secure fulfilment of their duties under section 3(1)(a); or

(b) because the market to which the provision relates is effectively competitive and no licence holder is able to exercise significant market power, as defined under section 74 of this Act,

then OFCOM shall be required to revoke or withdraw that provision, or modify it to the extent consistent with its continuing requirement under subsection (4).'.

New clause 42—Test for setting or modifying conditions or directions—

'(1) When exercising any of their Broadcasting Act powers for a competition purpose as defined in section 305, OFCOM must not—

(a) set a condition or issue a direction; or

(b) modify such a condition or direction,

unless they are satisfied that the condition or direction or (as the case may be) the modification satisfies the test in subsection (2).

(2) That test is that the condition, direction or modification is—

(a) objectively justifiable in relation to the services to which it relates;

(b) not such as to discriminate unduly against particular persons or against a particular description of persons;

(c) proportionate to what it is intended to achieve; and

(d) in relation to what it is intended to achieve, transparent.'.

New clause 43—Procedure for setting, modifying and revoking conditions or directions—

'(1) In relation to Part 3 of this Act—

(a) the way in which conditions or directions are to be set or modified when OFCOM are exercising any of their Broadcasting Act powers for a competition purpose is by

the publication of a notification setting out the conditions, directions or modifications; and

(b) the way in which such a condition or direction is to be revoked is by the publication of a notification stating that the condition or direction is revoked.

(2) Before setting conditions or directions, or modifying or revoking a condition or direction so set when OFCOM are exercising any of their Broadcasting Act powers OFCOM must publish a notification—

(a) stating that they are proposing to set, modify or revoke the conditions or directions that are specified in the notification;

(b) setting out the effect of those conditions, directions, modifications or revocations;

(c) giving their reasons for making the proposal; and

(d) specifying the period within which representations may be made to OFCOM about their proposal.

(3) That period must end no less than one month after the day of publication of the notification.

(4) OFCOM may give effect, with or without modifications, to a proposal with respect to which they have published a notification under subsection (2) only if they have considered every representation about the proposal that is made to them within the period specified in the notification.

(5) The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of such persons as OFCOM consider appropriate.'.

New clause 44—Setting and publication of guidance and codes—

'(1) Before setting guidance and codes which includes matters which will have effect to any extent for a competition purpose under a provision of this Part of this Act (other than under sections 291, 294 or 312), of the 1990 Act or of the 1996 Act, OFCOM must publish, in such manner as they think fit, a draft of the proposed guidance or code.

(2) After publishing the draft guidance or code, OFCOM must consult every person who holds a relevant licence.

(3) Subsections (1) and (2) apply to a proposal by OFCOM to revise any guidance or a code as they apply to a proposal to set such guidance or code.

(4) Where OFCOM set guidance or a code, they must publish the guidance or code in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by the guidance or code.

(5) Where OFCOM revise a guidance or code, they shall similarly publish the guidance or code containing the standards as revised.

(6) Where OFCOM publish a guidance or code under subsection (4) or (5), they shall send a copy of it to the Secretary of State.

(7) In this section a person who holds a ''relevant licence,'' in relation to draft guidance or a draft code, means—

(a) to the extent that the draft guidance or code relates to—

(i) television programme services,

(ii) the public teletext service, or

(iii) an additional television service,

a person who holds a licence under any of Part 1 of the 1990 Act (independent television services), section 18 of the 1996 Act (digital television programme services), section 25 of that Act (digital additional television services), or section 214 of this Act;

(b) to the extent that the draft guidance or code relates to radio programme services, a person who holds a licence under Part 3 of the 1990 Act (independent radio services), section 60 of the 1996 Act (digital sound performance services) or section 64 of that Act (digital additional services); and

(c) the BBC and Welsh Authority.'.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I shall not set out at great length the background to the amendments, because they

cover essentially the same issues as we discussed in our debate on clause 4. Instead, I shall outline the purpose of each amendment, as my hon. Friend the Member for South Cambridgeshire has explained it.

Amendments Nos. 620 and 621 would ensure that the safeguards in the clause applied not only to the items in subsection (1)(a) to (d) but to codes and guidance. Amendment No. 622 would require the issuing of a notice so that the availability of an appeal is fully transparent to those who might be affected. Amendment No. 623 would narrow the scope of subsection (6) so that the decision whether it was more appropriate to use powers under the Competition Act 1998 would be subject only to judicial review; but if in making such a decision Ofcom was alleged to have acted in contravention of subsection (3) and to have used its Broadcasting Act powers for a competition purpose when it had determined that Competition Act powers would be more appropriate, that, too, could be adjudicated on its merits. Judicial review would be too procedural in that instance, and it is important that there should be an opportunity to examine the merits of the decision.

Amendments Nos. 626 and 627 to clause 306 would require conditions applied for a competition purpose to be subject to review. Amendment No. 628 is a minor drafting amendment, which I hope that the Minister will consider acceptable. Amendment No. 630 would amend clause 306 as amended by amendment No. 627. It introduces a request that if, following a review, a provision is held to be not necessary to fulfil the duty to further the interests of consumers through competition where appropriate, that provision should be withdrawn or modified; and, as a separate test, if the market is effectively competitive, Ofcom should liberalise by disapplying the unnecessary provision. That would bring the competition provisions of the broadcasting part of the Bill more into line with the telecoms part, in which an effectively competitive market is not subject to conditions and there is a periodic review.

New clause 42 would provide for tests of proportionality, justification, non-discrimination and transparency in the application of competition-related powers. New clause 43 is procedural: it sets out how Ofcom should go about setting or modifying conditions and directives. New clause 44 sets out desirable procedures for the creation of transparent and accountable processes under which Ofcom can establish and publish guidance and codes where a competition purpose is involved.

The amendments and new clauses would provide a more complete structure of competition powers and safeguards, which Ofcom could use in relation to the broadcast industry. They build on the arguments that I advanced in relation to clause 304, and I hope that the Minister will consider strengthening the safeguards in the way that we suggest, because there is a widespread view in the industry that that is necessary.

Kim Howells (Labour, Pontypridd)

This may be an historic moment for the Committee, because I want to begin by thanking the hon. Member for South Cambridgeshire for

amendment No. 628, which I accept. [Hon. Members: ''Hooray!'']

I shall deal with the other amendments on four fronts. They are important amendments, and I know that the hon. Member for South Cambridgeshire would have argued strongly in favour of them had he been in the Committee. Several of them are designed to ensure that Ofcom carries out its functions according the best regulatory practice. We do not disagree with the principle behind the amendments that Ofcom should adopt appropriately fair and transparent processes for applying its sector-specific broadcasting powers, as for its other powers, but we believe that the Bill contains sufficient provisions to ensure that that is delivered.

In general, I believe that Ofcom is perfectly capable of developing and applying best practice in its procedures—indeed, it is under a duty to do so. Clause 3 provides that Ofcom should have regard to those principles that represent best regulatory practice, namely that its regulatory activities should be transparent, accountable, proportionate, consistent and targeted only on cases in which action is needed. In addition, clause 7 requires Ofcom to carry out an assessment of the likely impact of major or significant proposals. It is not necessary to repeat those important principles.

Clause 305 provides that Ofcom should not use its sector-specific broadcasting powers—that is, its powers in relation to broadcasting licences under part 3 of the Bill and under the Broadcasting Acts—if it considers that a more appropriate way of proceeding would be through the use of the general competition powers under the Competition Act 1998. Broadcasters are not at risk of double jeopardy. Once Ofcom decides that the more appropriate way of proceeding is under the Competition Act, it cannot then use its sector-specific broadcasting powers in that matter. That is at the heart of the clause. Finally, any decision Ofcom makes for a competition purpose shall have a route of appeal to the Competition Appeal Tribunal. I hope that that answers the points raised by the hon. Member for Maldon and East Chelmsford in moving the amendments.

John Whittingdale (Conservative, Maldon and East Chelmsford)

It has taken 19 sittings for me to have an amendment accepted—although it is an amendment that would leave out the word ''his'' and insert the word ''their'' and it was tabled by my hon. Friend the Member for South Cambridgeshire. Even so, I am extremely grateful to the Minister for accepting the major change to the Bill set out in amendment No. 628.

The remaining amendments would strengthen the safeguards in the Bill. The Minister is right to say that it will be the cause of some disappointment to my hon. Friend that the Government will not accept them. We hope that Ofcom will take account of the Minister's comments when using its powers, and I welcome his remarks; none the less, it would have been better if the Bill had been amended as we suggest. I suspect that we shall return to this whole question later in our proceedings, and on that basis, at this stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 305 ordered to stand part of the Bill.

Clause 306 - Review of powers exercised for competition purposes

Peter Atkinson (Conservative, Hexham)

After the Minister's dramatic announcement, we must now deal with amendment No. 628.

Amendment made: No. 628, in

clause 306, page 264, line 18, leave out 'his' and insert 'their'.—[Mr. Whittingdale.]

Clause 306, as amended, agreed to.

Clause 307 - OFCOM's standards code

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I beg to move amendment No. 522, in

clause 307, page 264, line 43, after 'are', insert 'appropriately'.

Peter Atkinson (Conservative, Hexham)

With this it will be convenient to discuss amendment No. 589, in

clause 307, page 264, line 43, at end insert

'from material likely to cause harm or disturbance'.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

Amendment No. 522 stands in my name and that of my hon. Friend the Member for North Devon (Nick Harvey). We want to tease out an explanation of how the Government expect the standards code to work. In particular, we want to examine the protection of persons under the age of 18. As a way of ascertaining what is intended, the amendment proposes to insert the word ''appropriately''.

It is worth considering the concern expressed to us that some concepts of a code might fail to recognise different degrees of acceptable content according to age, and might result in attempts to introduce a system of absolute rule for those under or over 18. The reality, as our system of film classification acknowledged, is that different types of content are appropriate for different ages.

We recognise that certain things are appropriate for teenagers: although they are under 18, they are old enough to watch some things that may not be appropriate to very young children. The way in which we have historically tried to respect children's right not to be exposed to inappropriate content is by means of the 9 o'clock watershed. Certain programmes that are not so extreme that they need to be shown after the watershed should nevertheless be shown at an appropriate time in the evening so that very young children do not watch them.

How does the Minister envisage the standards code working? Can he assure us that when schedulers are assembling programming, they will have a degree of flexibility that enables them to take a sensible approach to what is appropriate at 7 o'clock, 8 o'clock or 9 o'clock, rather than their having to treat programmes as either post-9 o'clock or pre-9 o'clock material? The latter approach would

devalue the schedule and would not reflect audiences' wishes.

John Greenway (Conservative, Ryedale)

Amendment No. 589 is similar in purpose to amendment No. 522, moved by the hon. Member for Sheffield, Hallam (Mr. Allan). This group of amendments is the first of several relating to Ofcom's standards code. I am sure that the Minister will agree that the clause is crucial, so it is important that we get it right.

It strikes the Opposition that a fundamental specificity is lacking from subsection (2)(a), which sets out the first of various objectives for Ofcom. Only half of the objective is set out—any definition of what persons under the age of 18 are to be protected from is left out. Paragraph (b) specifies that ensuring that

''material likely to encourage or to incite the commission of crime . . . is not included in television and radio services''

is an objective of the code. That is much clearer, as are the other objectives set out in subsection (2).

We want to tease out, as the hon. Member for Sheffield, Hallam said, the precise purpose of subsection (2)(a). I take the view that the 9 o'clock watershed is not a panacea, so I hope that the Minister's answer will not be simply that Ofcom's objective and duties will be satisfied if the 9 o'clock watershed is observed—which presupposes the existence of material to be broadcast after 9 o'clock that, were it broadcast before 9 o'clock, would be harmful or likely to disturb young people.

My more general point is that the Committee should understand clearly the purpose of the provision and that Ofcom should hold an accurate view of its duty. The wording that we have suggested might not be entirely to the Minister's liking—he might like to think about it. However, I am concerned about the prospect of a television or radio service broadcasting material that harms, or disturbs, or even traumatises a young person. Although the objective relates to persons under the age of 18, that might mean children aged six, seven or eight, who in many homes these days seem to have the opportunity to watch or listen to almost anything.

We want to help the Minister to establish the purpose of the provision, which I am sure all members of the Committee regard as a vital matter.

John Whittingdale (Conservative, Maldon and East Chelmsford)

The clause is perhaps one of the most hotly contested and controversial in the Bill. Many people feel very strongly about it. The purpose of our amendment, as my hon. Friend the Member for Ryedale (Mr. Greenway) has explained, is to get the Minister to say more about how he envisages Ofcom's role in enforcing standards and dealing with questions of content that some people might find offensive and others might view as harmful. There has been much discussion of that issue over the years, as well as recently.

Society's view of what is acceptable has changed in the past 10 or 15 years. We need only consult previous debates on the issue. The Video Recordings Act 1984 was one of the first measures to attempt to deal with content that, at the time, was perceived to be wholly unacceptable. In particular, I remember that acres of

newsprint were devoted to two films—''I Spit On Your Grave'' and ''Driller Killer''. Both were felt to be so far beyond acceptable boundaries that legislation was required to ensure that they were banned. However, I found ''I Spit On Your Grave'' in WHSmith about two weeks ago. It is now classified with an 18 certificate and is freely available to all those who want to buy it. That is an indication that standards have changed. I have not seen it, but I am told that it is a very poor film. One of the dangers that we should recognise is that branding things as wholly unacceptable or offensive acts upon some people as an advertisement, prompting them to seek out those things. Sometimes it is more effective to say that a film is a load of rubbish that should be ignored.

Other films that are much more serious contributions to cinema have provoked equally fierce controversy. For a long time, it was not possible to obtain ''The Exorcist'' on video because it was felt to have a potentially very harmful effect, especially on young people. Although it was considered acceptable for such a film to be released in the cinema, it was not acceptable for it to be released on video. However, it has now been released on video, and although I think that it has never been screened on television, it is only a matter of time. I do not object to that, because ''The Exorcist'' is a serious film with some merit, but the development still shows a change in standards.

A recent ruling by the British Board of Film Classification is also relevant. Although the Bill does not deal with the cinema exhibition of films, every film shown in the cinema will turn up on television sooner or later, so what the BBFC decides about the regulation of films is bound to have a major influence on Ofcom and those responsible for deciding which warnings to attach to a film when it appears on television. The BBFC's recent decision to remove the 12 rating and replace it with a 12A rating made my life as the parent of a boy of nine who was desperate to see ''Spiderman'' much easier. I have subsequently taken my son to four or five 12A films, including the new ''Lord of the Rings'' film, ''Die Another Day'' and, of course, ''Spiderman''. It is a step forward by the BBFC to say that parents are capable of dealing with such questions.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

Following the hon. Gentleman's train of thought, which was similar to mine about there being gradations of acceptability, has he noticed that continental television uses a similar form of classification? Many continental television channels display symbols in the corner of the screen to indicate a 12, 15 or 18 rating. Does he find that idea attractive?

John Whittingdale (Conservative, Maldon and East Chelmsford)

That is an interesting idea, which touches on the important issue of provision of information. Returning to the BBFC decision, it is up to parents to decide whether their children can see a 12A film, because the children cannot get into the cinema unless an adult accompanies them. However television is much harder to deal with, because it is not possible to enforce age limits for viewing in the way that a cinema can do.

Chris Bryant (Labour, Rhondda)

I accept half of the hon. Gentleman's argument. However, before it goes out on television, every film goes through a wholly separate process of review by the organisation broadcasting it and by Ofcom. Often in that process, large chunks of films are deleted. I presume that he expects that practice to continue.

John Whittingdale (Conservative, Maldon and East Chelmsford)

The hon. Gentleman is right. It is appropriate to apply a more rigorous approach to that which is shown on television—not just films; they are an easy example—than to that which is shown in cinemas. The same applies to videos, which carry the additional danger that they can be watched repeatedly, or certain scenes watched time and again, to more damaging effect. That was considered by the BBFC when it took on responsibility for the categorisation of videos.

It is easy to talk about the most extreme examples in terms of sexual content or violent content. However, I remember a discussion that I had with the late James Ferman, for whom I had a great regard. He was a liberal-minded man who pushed the boundaries in a sensible way, even though he occasionally attracted hostile comment from the Daily Mail. It was with sadness that I read of his death a few weeks ago.

One of Ferman's most controversial decisions was about ''Indiana Jones and the Temple of Doom'', which contains a scene in which the high priest tears out the heart of a sacrificial victim. He was concerned about the effect that the graphic portrayal of that event might have on a very young mind. He told me that he had a furious argument with Stephen Spielberg about it. Spielberg argued strongly that the scene was an important part of the film and that it should stay in, but Ferman's reply was, ''No. You will only get a PG certificate if you remove it,'' so Spielberg had had to take it out. Later, he came back to Ferman and said, ''You were right.''

The protection of children is much more important than the general question of the protection of society as a whole. That is why our amendment, which is to some extent a probing amendment, focuses on the role of Ofcom in such matters, and on the protection of those under 18. In the past few weeks, the issue has obviously become far more controversial. As society has accepted scenes of sexual or violent content that would not have been permissible five, 10 or 15 years ago, some of those who are involved in the criminal justice system have expressed concern. I draw attention to the remarks of Lord Warner, the chairman of the Youth Justice Board, who some two weeks ago said:

''It's very hard to escape the concern that violent videos, violent films, violent music, violent games do influence some of the more impressionable minds . . . I think there's a case for reviewing whether we should regulate more rigorously. There's certainly a coarsening of attitudes.''

Lord Warner is responsible for the Government's policy on youth crime, which is now a matter of huge concern. At the very least, we should take such warnings seriously.

The Minister himself has also expressed views about the issue. Given that he has commented already, I think that the Committee would welcome his saying a little more about how he thinks Ofcom will operate in that context. A few weeks ago, the Minister said:

''I watch my kids constantly playing blood-spattered video games. I don't think a child is going to turn out to be a killer or more violent as a consequence of playing those games . . . But it's the acceptance of that heartlessness that is at the centre of all those kinds of games''.

I have a lot of sympathy with the Minister on that issue, because he and I both have the difficult task—far harder than anything we ever do in this place—of bringing up young children. The problem is peer pressure: one says that a film on television or a game is rated 15, and they say, ''Well, all my friends watch it. Why should I be deprived?'' Sometimes I have cracked. I draw the line at 18, but, for 15, the choice is up to parents.

However, I worry about the long-term effects, and think that we should pause in our consideration of the Bill, because the issue is hugely important to many people, who are looking for some protection. I worked for Margaret Thatcher when the Broadcasting Standards Council was created to deal with that concern. Although Mary Whitehouse got a lot of brickbats, she fought a long campaign on the issue. In response to some of the concerns that she raised, the BSC was eventually established. I do not agree with a lot of what Mary Whitehouse said, but there is no doubt that a large number of people in the country are concerned, and have become increasingly so in the last few years. Those people will look to Ofcom to enforce standards.

I hope that Ofcom will adopt the same relatively liberal approach that the BSC adopted. I remember going with a delegation from the House to the BSC to see a demonstration of its work, in which we were shown a number of scenes that it had decided to cut. I was impressed by the debate that was had before taking a decision. It is very easy to cut something, but often harder to decide not to cut it. However, the BSC set out to protect the artistic integrity of the product, and cut only when it felt that that was absolutely necessary.

Although I do not always agree with the concerns raised, I think that organisations such as Mediawatch do a service in drawing our attention to concerns about the way in which more and more violent content is creeping on to our television screens. I think that the watershed is still a valuable concept. However, as technology improves and as the ability to schedule a time of the viewer's choosing rather than the programme maker's choosing increases, the watershed may become less important, and we need to look to other means.

I touched on the subject briefly earlier in our consideration of the Bill when we debated media literacy, because technological solutions or other devices can help protect children from harmful content. For instance, digital reception can require a code to be entered if material rated for over-18s is being shown, and I have my digital receiver programmer set so that before any classified material

is shown that is broadcast as being suitable for 18 year olds, a code has to be entered. That works well with children of seven or eight, but for children older than 10 the system will begin to break down. However, that sort of safeguard is an improvement, and technology may allow other safeguards. We need to educate parents about the fact that that facility is available.

At the end of the day, however, we must be concerned about what goes out on television. Mediawatch conducted a survey of films shown on terrestrial television in 2001, and it added up the number of scenes of violence, those with graphic sexual content and so on. The 200 films that it analysed included 987 scenes showing the use of firearms, 667 showing violent assault, 94 showing incidents of fire-raising and causing explosions, and 318 showing incidents that involved the use of knives. I realise that many of those programmes might be considered to be admirable works of art and that such instances might be considered to be an integral part of the plot. Indeed, in my view the list of films included some good films. For instance, ''Reservoir Dogs'' is an extremely violent film, but I think it is good for adults. Another is ''Dead Calm''.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I am interested in teasing out the hon. Gentleman's views. He talks of violence. I, too, find the depiction of casual violence on television disturbing. Does he distinguish between sex and nudity and violence, on which one can take differing moral views? Does he share my concern that we in this country worry excessively about sex and nudity but are too relaxed about violence? Many of the movies on in the early evening show plenty of casual deaths: we do not control that aspect sufficiently.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I think that I agree with the hon. Gentleman, particularly with the concern now being expressed about the effect on impressionable minds of graphic violence on television. Admittedly, only a small number are affected, but it could lead to criminal activity. The hon. Gentleman is right that violence is the most serious concern.

Although I have been talking about films, the Minister mentioned a television programme that he was particularly concerned about called ''Serious and Organised''. I watched it the other night because the Minister had mentioned it; it is a fairly typical commercial cops-and-robbers programme, but the Minister was right to say that it has a fairly high level of violence. It goes out just after 9 pm, but it is the gratuitous nature of some of the violent scenes that gives rise to most concern.

I have no problem with violent scenes that are clearly an important and integral part of the programme, but violence often seems to be thrown in for no good reason—other than the gratification of those who like that kind of thing—but there is a growing sense that we may have gone too far. I have always said to those who argue that there is too much violence or sex on television that the most effective censor is the off button. Indeed, switching channels or turning off the television is more effective than anything that Ofcom could do. In general, I am extremely reluctant to see more censorship, because I do not like censorship, as a matter of principle.

Michael Fabricant (Conservative, Lichfield)

I am listening to my hon. Friend with considerable interest. Does he not agree that Ofcom could provide a really valuable role in providing as much information as possible to viewers about the contents of a programme before it is transmitted? It is too easy to allow children to watch programmes that may be damaging or to prevent them from watching films, such as ''Trainspotting'', which raise important moral issues.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I agree with my hon. Friend. ''Trainspotting'' is a horrific film, but it is difficult to claim that it celebrates violence or that it glorifies drug taking, as some have sought to argue. Anyone who watches that film would be put off taking drugs for life. My hon. Friend's point is that the provision of information is the most important contribution that can be made, in that it empowers parents to take decisions about what is appropriate. Some sort of symbol, either before the programme or even on the screen throughout, might be a way of alerting viewers to a programme's contents, so that they do not unwittingly stumble across something that they find offensive. That would also inform parents, so that they could form a judgment about the programme. Most people would support such a measure, which would be relatively uncontroversial.

Brian White (Labour, North East Milton Keynes)

There is a danger of repeating the mistake made in the 1980s, when Channel 4 displayed a symbol before certain films. That only encouraged some people to come back from the pub to watch those films precisely because they were controversial, which defeated the objective for which the hon. Gentleman is arguing.

John Whittingdale (Conservative, Maldon and East Chelmsford)

As I said earlier, there is a danger that one will advertise the contents of a programme to people who go out of their way to watch that sort of film. That would need to be considered, and I hope that Ofcom will carry out research into that. Opinion is divided. Ofcom's decisions must reflect what is currently acceptable in society. The BSC has carried out a lot of work in that area. They commission regular studies of what people feel strongly about or find offensive, whether that is bad language, sex and nudity or violence. As I have sought to indicate, society's attitudes to such things change fairly quickly, so it is important that Ofcom should continue to research public opinion. Given some of the concerns that have been expressed in recent weeks, often after especially horrific incidents, there is considerable public concern about the issue. This is an opportunity for the Minister to set out his view about the extent to which Ofcom should intervene in this area.

Chris Bryant (Labour, Rhondda)

Several hon. Members have emphasised the significance of the clause. No one would disagree that how we regulate or censor the broadcast media is quintessential to the role that politicians should have, at arm's length, in the regulation of broadcasting. Few Members would not deprecate the culture of violence and aggression that is often perpetuated on television, in films and even on the radio. I sometimes wonder whether we need to take a longer look at the issue, rather than just looking at the situation today.

I went to the ''Aztecs'' exhibition two weeks ago, which was the most violent exhibition that I had ever seen. The portrayal of the sacrificial victim who has been flayed seems quite a pleasant image until one realises what it represents. There may be a degree of violence and aggression in every culture that we need to understand. It is difficult to know whether it is a question of chicken and egg.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The hon. Gentleman makes a valid point that the way in which we judge violence depends on the context. Whether it is an exhibition on the Aztecs or a historical television programme, a news clip or a piece of drama about them, there is an important difference—one is gratuitous, the others are informative.

Chris Bryant (Labour, Rhondda)

Indeed. When I lived in Peru in 1986, there was a news story about a man who had butchered six people. He turned out to be a police psychiatrist. The way in which the news media reported that story was far more gratuitously violent than any film I had seen in my life. They almost gloried in the gore. There was a debate in Peru, and in most of Latin American society, on how that kind of story should be portrayed. The assumption is that for the broadcasters not to show the whole truth—with all of its gore—would be some form of dictatorial censorship. Others were saying that if we glory in this, surely we are creating a culture in which violence is loved and valued.

That said, I do not think I would want to live in Midsomer, which seems to be the most violent place in the world. It is a small village, but there appears to be no one left standing. I do not know what constituency it is, but crime statistics must have gone through the roof. They all live in very nice houses, however. How many vicars are there in Midsomer? The vicars of Midsomer have been through nearly every sin in the book, and several that are not in it.

Several hon. Members have referred to the fact that taste and decency standards change rapidly. In the past 10 or 15 years, we have seen a more rapid change in taste and decency standards than in the past 100 years. I remember watching ''Men Behaving Badly'' on Christmas day or Boxing day a few years ago with some elderly in-laws. I was laughing my face off inside, but I was desperately hoping that the elderly relatives who were of a more conservative bent than myself would not understand the jokes. That would have been terribly embarrassing. There was a horrible moment when somebody said, ''Could somebody just explain that?''. I remember that that episode attracted quite a lot of criticism. Many people were offended. The timing was critical—it was shown at a time when many families would be watching TV together. The level of offence created was significantly higher than had the episode been shown at 8 o'clock or 9 o'clock on a normal weekday.

I remember too that there were practically no complaints when ''Queer as Folk'' was first screened in the UK. What the programme was about and whom it was for had been extremely well signposted in advance. Moreover, as the programme started it was announced

that there would be disturbing scenes from the outset, which, of course, makes everybody stay up to see what will happen at the beginning.

''Tales of the City'', which was shown on Channel 4 four years prior to that, received remarkably few complaints in the UK. However, the level of protest in the United States at the programme was so great that people did not want to commission a second series. That distressed many people in the UK who had enjoyed the first one. Therefore I am pleased to see a broadly liberal approach as long as we make sure that timing and scheduling issues are well noted and that there is good signposting. This also applies to advertising. I wish there were a way that we could ensure that advertisements were not broadcast at a louder volume than the programme they follow. When you are gently somnolent in front of the television, the advertisements will frighten you out of the room to make tea.

The clause is sufficiently well drafted to deliver all those outcomes. In particular, it will allow Ofcom the versatility to change over time. The hon. Member for Maldon and East Chelmsford refers to the work of the BSC, and I hope that Ofcom will adopt much of its modus operandi. The serious debate and intellectual rigour that the BSC has brought to news programming, films, comedy and satire have been very impressive and have made most Britons feel that the broadcasting ecology in Britain is not too far beyond the kind of world that they would like to see on television. I have a tiny question for the Minister on religious broadcasting. Clause 307(2)(e) states:

''that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes''

Peter Atkinson (Conservative, Hexham)

Order. The hon. Gentleman is moving on to religious broadcasting, which we will come to later; we are discussing children now.

Chris Bryant (Labour, Rhondda)

I shall therefore stop on that point.

Kim Howells (Labour, Pontypridd)

I thank members of the Committee for an interesting debate. When the hon. Member for Maldon and East Chelmsford was citing some of the movies that he has seen, I was trying to think of when I sensed a change in what was acceptable in film portrayal of in-your-face violence. I have always been a movie buff, and I sensed that it was in ''The Wild Bunch'' by Sam Peckinpah at the end of the 1960s that attitudes started to change. I remember the impact that ''Straw Dogs'' had with its violence and explicit rape. It is a very difficult question. As a kid I was brought up—like others in the Committee who are almost as old as I am—on cowboy films and reruns of Jimmy Cagney movies. There can be few scenes more violent than Jimmy Cagney standing on top of a gas tank telling his mother that he was on top of the world before blowing himself to pieces. We watched a great many war movies as well. I had a fascinating discussion on Saturday about ''The Dambusters'' and its portrayal of what happened; the fact that 30,000 Ukrainian slave labourers died was conveniently ignored. The figure might have been 3,000; it was a lot of people anyway.

Andrew Robathan (Conservative, Blaby)

Give or take 27,000.

Kim Howells (Labour, Pontypridd)

Exactly. I remember what ''The Dambusters'' looked like and the incredibly powerful music. It was a great post-war move that put the heroism back into an experience that people were trying to put behind them.

Michael Fabricant (Conservative, Lichfield)

Does the Minister not agree that films such as ''Saving Private Ryan'' and ''Stalingrad'', which attempted to show the realities of war more vividly, have also served a purpose?

Kim Howells (Labour, Pontypridd)

Yes. I was about to say that. I find it difficult to understand where—or whether—a line should be drawn. The hon. Member for Sheffield, Hallam pointed out that successive Governments have attempted to do that by endorsing the nine o'clock watershed, but even that has moved around. The first time that I saw ''Saving Private Ryan'', I came out of the cinema in a state of shock, wanting my kids to see it so that they would understand that we should never allow such a situation to happen; we have a duty to ensure that young boys are not blown to pieces. Then, I started to think that it was a bit obscene—there was a kind of glorying in the reality. That brings us back to the form and content argument. As my hon. Friend the Member for Rhondda said, go and take a look at the ''Aztecs'' exhibition. I came out of that thinking that the Spanish had done us all a big favour; it must have been the cruellest regime ever. However, it does not compare with the Nazis. Those are difficult arguments.

The hon. Member for Maldon and East Chelmsford talked about the sterling work that has been done by the British Board of Film Classification. I agree. My hon. Friend the Member for Rhondda listed some of its virtues. When I went there, having seen the huge lists of the masses of films, television programmes and advertisements that the censors have to watch, I said rather flippantly that when it came to the identical porno movies, it must be great to have a fast-forward button on the remote control. They did not laugh. They looked very seriously at me and said that they did not fast forward anything; every frame was important. It is a matter of freedom of expression and the liberty of individuals to access and watch the images that they want to see. That is a central issue. I do not believe in censorship but, by God, I am very worried about the pornography and violence that is around and I am glad that the hon. Member for Maldon and East Chelmsford quoted Lord Warner. I realised when he did so that I have been misquoting him, because he mentioned the ''coarsening of attitudes'', whereas I had been talking about the coarsening of our sensibilities. The issue is wider than just attitudes, it is about sensibilities and about what we expect.

I suspect that the difference between the gangster movies that starred Jimmy Cagney and ''The Wild Bunch'' and what came after it is that formerly an enormous amount was left to the imagination. We leave very little to the imagination now, and exploit the sense of prurience or inquiry that is in all of us to know what the inside of a human body looks like. People are making a lot of money out of live so-called art shows, and from Channel 4 television programmes of those autopsies.

Michael Fabricant (Conservative, Lichfield)

Was not the film ''Sleepers'' far more worrying in imagining what happened in a homosexual rave in a boys' home in upstate New York than it would have been had it vividly shown it?

Kim Howells (Labour, Pontypridd)

I agree—although I have not seen ''Sleepers''—because I suspect that the films that have remained with me for the longest have been those that disturbed me or extended my imagination and made me think about such things.

Chris Bryant (Labour, Rhondda)

My hon. Friend advances an interesting argument. It takes us to the edge of how the Greeks thought about depicting violence—it all happened off stage, which could make it seem far more violent. Sometimes the BBC faces difficult moments. For instance, possibly the most violent piece of literature in Britain is ''Titus Andronicus'', in which a character has his children served to him in a pie. The BBC had to decide at what time of day to show it.

Kim Howells (Labour, Pontypridd)

Yes, and I can think of many others—for instance, the fairy tales of the Grimm brothers are pretty grim, yet most of us have read those stories to young children and seen for ourselves the attraction that they have. I would be the last person to say that we should not read those stories or try to portray such things differently. It is a difficult problem, but we must not hide it away. It must be publicly debated.

It has never in any century been easy for any Government or regime to lay down the law on censorship and to say what we should and should not watch. God forbid that politicians should meddle in the subject, but it should be debated none the less. It should not lie in the hands of a tiny elite, whether a self-styled creative elite, or radio philosophers, or—heaven forbid—newspaper columnists, to decide what is and what is not good for us.

Andrew Robathan (Conservative, Blaby)

I have been listening to the Minister's thoughtful contribution, but is it not up to politicians to stand back and—as he did with his children's blood-spattered videos, to which my hon. Friend the Member for Maldon and East Chelmsford referred—make the connection between what is now being explicitly portrayed on television and in film and the behaviour of young people, particularly on the streets?

Kim Howells (Labour, Pontypridd)

Certainly we should discuss it. What worries me about the way events have moved in recent years is that we do not talk enough about the problem. It seems that it is not hip to talk about it—that it is a generational thing, and suits should not determine what young children watch. The hon. Member for Maldon and East Chelmsford reminded us that there are ways to stop some of the material being seen, especially by very young children, but I have to tell him that my children, who are now teenagers, put locks on the computer to stop me seeing what they watch, because I occasionally stumble on some of their programmes.

The purpose of the amendments is clear: that Ofcom's codes should expressly provide for the protection of children and young people. That is an important responsibility—indeed, it is one of the most

important placed on the regulator—and it goes without saying that the protection provided must be appropriate. Although amendment No. 522 was properly tabled by the hon. Member for Sheffield, Hallam, it calls into question other provisions in the Bill under which Ofcom could be expected to act appropriately without express provision to that effect. Furthermore, I am not sure what ''appropriately'' would add to the list of considerations to which Ofcom must have regard under subsection (4). I hope that hon. Members will remember that subsection.

Amendment No. 589 addresses the important question of what those under 18 are to be protected from. We considered that question long and hard, and I have a great deal of sympathy with the amendment. However, we concluded that in the context of Ofcom's responsibilities for standards in the broadcast media, it would not be difficult for Ofcom to answer that general question.

Once one starts to try to identify a comprehensive list, no matter how long it becomes, the risk remains that it will still omit certain mischiefs—for instance, some things to which children and young people should not be exposed would not necessarily pass the test of provable harm or disturbance. Indeed, is it necessarily harmful that children are bamboozled and their natural credulity exploited? I do not think that all such mischiefs would necessarily meet the test expressed in the amendment.

The detailed interpretation of the objective should be left to Ofcom, as that is the more secure route to achieving the policy objective. However, I agree entirely with hon. Members who contributed to the debate that we need an ongoing public dialogue about such questions.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I am grateful to the Minister for his response. I do not entirely agree about the Spanish doing the Aztecs a favour. We brought in a raft of diseases that killed millions, but the Aztecs repaid us with syphilis, so there was some equity—[Interruption.] Not us personally, but Europeans.

Some important points have been made about where the BSC has been and where Ofcom needs to be. The answer is somewhere in the middle, although that is a curious position. Some constituents have expressed their concerns about material that is inappropriate for children, whereas other people want a more liberal regime. It is right that Ofcom should aim to represent the mean, although that is a difficult position for Ofcom to take up because it will be open to criticism from everyone.

It is essential to provide information to parents. My general view is that parents, not the state, should decide what children watch. My hon. Friend the Member for North Devon has reminded me that the graphic used to show the category of a programme is called a dog—a digital onscreen graphic. Dogs have an important role to play in many countries.

Kim Howells (Labour, Pontypridd)

I forgot to comment on that. The hon. Member for Maldon and East Chelmsford acknowledged that we should think about the idea, which I endorse, with one proviso. I find extraneous images on the screen intensely irritating. If one is

watching a great movie—Sam Peckinpah's ''Cross of Iron'' is a great movie, although I did not much like ''The Wild Bunch'' and hated ''Straw Dogs'', both of which Peckinpah also directed—a symbol on the screen gets in the way.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I sympathise with the Minister because I, too, find it distracting. The general point about providing information is helpful, however. Sky should be congratulated on the fact that its electronic programming guide includes much classification information.

Violence figured largely in the debate. I have been turning off James Bond-type films recently. I think it has something to do with the juxtaposition of such films with news articles about the potential war. It has become offensive to watch a film that contains casual violence—it has stopped being funny. Context is important. I accept that violence is not always gratuitous when it is used in movies—indeed, it can be an essential part of a movie or television programme—and that it can be gratuitous in a news context.

The Minister said that the word ''appropriate'' should not be used in the provision because it would then have to be used everywhere in the Bill, but that it is implied. We shall think about that, although there is still a need to define the clause's provisions better, because, as the Conservative spokesman said, we need to know what we are protecting our children from. There is another side to that argument, which is about protecting them from blandness. It is possible to make television so sanitised that it becomes completely pointless and everyone will buy videos. However, on this occasion, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

John Greenway (Conservative, Ryedale)

I beg to move amendment No. 205, in

clause 307, page 265, line 14, leave out 'unsuitable' and insert 'misleading or offensive'.

Peter Atkinson (Conservative, Hexham)

With this it will be convenient to discuss amendment No. 206, in

clause 307, page 265, line 16, leave out 'unsuitable' and insert 'misleading or offensive'.

We have had a wide and interesting debate on the first group of amendments, but we must bear in mind the relevance of our debate to the amendments. Amendments Nos. 205 and 206, which relate to advertising, are fairly narrow.

John Greenway (Conservative, Ryedale)

I was about to say that after the programmes, the films and the videos, we now have a short advertising break.

Chris Bryant (Labour, Rhondda)

Sponsored by whom?

John Greenway (Conservative, Ryedale)

I think that this one is sponsored by the Advertising Association.

The amendments would remove the word ''unsuitable'' from the definition of advertising in television and radio services that is to be prohibited and replace it with ''misleading or offensive''. It has been suggested to us that ''unsuitable'' is an insufficiently precise word for the regulation of radio

and television advertising. It is unclear and has no basis in law, unlike ''misleading'', which does. There is also the danger that ''unsuitable'' will be all-embracing. The amendments confer the benefit of clarity and regulatory certainty: one knows what they mean. The definition of ''misleading'' is derived from the Control of Misleading Advertisements Regulations 1988, which implemented the Council directive on misleading advertisements.

The amendments also reflect the principles of current advertising codes. The rules in the Independent Television Commission and Radio Authority codes on advertising and sponsorship are generally derived from an intention to prevent misleading, offensive or harmful advertising, although we have not included ''harmful'' in our proposed definition. If the amendments appeal to the Minister, he might want to come back with his own that include that word. Those principles do not seem so far to have hindered the regulator's power to regulate advertising of various advertised product categories and there is no reason why there should be a problem with product categories that cannot be advertised at the moment, but for which advertising might be possible in future. I hope that my argument is clear. To summarise, why is a definition being included in Ofcom's standards code that is different to the one that the industry generally is used to and those who advertise are familiar with?

I shall resist the temptation to respond to the comment from the hon. Member for Sheffield, Hallam about blandness by suggesting that the adverts are often the best part of any hour of programming that one watches on ITV. My particular favourite—I cannot remember the product, but I shall get it next time, as I am sure I shall see the advertisement again—is the one in which a couple are in their living room, she says, ''Will you let the dog out?'' and the dog is seen jumping up at the window. Then one sees from outside that they are on the fourth floor of a block of flats. If hon. Members have not seen it, I assure them that it is very funny.

Kim Howells (Labour, Pontypridd)

The amendments would narrow two of Ofcom's standards objectives. As currently drafted, those objectives provide an obligation on Ofcom to prevent unsuitable advertising in television and radio services and unsuitable sponsorship of television and radio services. They are aimed at maintaining the current scope of protection. The Broadcasting Act 1990 currently gives the ITC wide-ranging powers to deal with advertising and sponsorship content, and we would not want to introduce anything in the Bill that would limit that unnecessarily. There is a danger that narrowing the objectives to prevent only the inclusion of advertising or sponsorship considered to be misleading or offensive could skew the operation of the relevant EC directive. I shall try to explain to the hon. Member for Ryedale why that is.

Articles 10 to 20 of the television without frontiers directive require the application of certain standards restricting the content of advertising and sponsorship. Some of the standards that that directive imposes would fall outside simply restricting advertising or sponsorship that was defined as misleading or

offensive. For example, there is a requirement to prohibit TV advertising of tobacco products and a related prohibition of sponsorship of TV programmes by someone whose principal activity is the manufacturing or sale of cigarettes or other tobacco products. Such advertising would be unsuitable, for no other reason than that it would be incompatible with the directive and must therefore be prohibited under Ofcom's code. That would be consistent with Ofcom's requirement under clause 307 to take account of international obligations when setting standards under the code.

I am sure that the hon. Member for Ryedale will agree with me that, regardless of the directive's requirements, tobacco is a good example of a product that we do not ant to advertise. If one narrows the objective to exclude adverts that are misleading or offensive, how do we protect against advertising products that, like tobacco, are harmful to health? They would not be misleading or offensive, but they would be harmful to health.

John Greenway (Conservative, Ryedale)

Would they not be banned by other legislation?

Kim Howells (Labour, Pontypridd)

Not that I know of. However, if, between now and the end of the sitting, the hon. Gentleman can tell me that other legislation bans them, I shall acknowledge that.

''Unsuitable'' means anything that is undesirable can be excluded. Why narrow the provision? We want to ensure that we have wide powers to ban all undesirable products.

Simon Thomas (Plaid Cymru, Ceredigion)

I am a little concerned by what the Minister says. I shall give an example of a product that was deemed ''unsuitable'' for advertising until fairly recently, yet is essential for 51 per cent. of the population. I am, of course, referring to tampons. Surely that shows why we must be careful not to give Ofcom too many powers to define ''unsuitable'', lest we rule out products that are perfectly acceptable and necessary.

Kim Howells (Labour, Pontypridd)

The hon. Gentleman makes a valuable point—we do have to be careful. On the other hand, he will acknowledge that if we narrow the wording too far, we start to exclude from the provisions services and products such as tobacco, which, in my view, poses a threat to people of all ages, especially young people. There are other areas of advertising in which the test of advertising suitability being misleading or offensive, or even harmful, would not be adequate, for example, the advertising of prescription medicines.

I do not want to run the risk of standards failing to be upheld because certain types of advertising fall between the gaps in the legislation's wording. The chosen word, ''unsuitable'', is sufficiently wide to prevent that, so I hope that the hon. Member for Ryedale will see fit to withdraw his amendment.

John Greenway (Conservative, Ryedale)

I am sure that those who are affected by this issue will have the opportunity to read and consider the Minister's remarks. If I

understand him correctly, in deciding to use ''unsuitable'', the Government have sought a wide definition. It was not our intention to narrow the provision in any way, but it was a good point to raise. With one or two more advertising breaks coming up shortly, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Andrew Lansley (Conservative, South Cambridgeshire)

I beg to move amendment No. 604, in

clause 307, page 265, line 23, at end insert—

'(k) that special regard is given to the unique status of the National Lottery and licensed lotteries.'.

Peter Atkinson (Conservative, Hexham)

With this it will be convenient to discuss the following:

Amendment No. 605, in

clause 307, page 266, line 10, at end insert—

'(6A) Standards set to secure the standards objective specified in subsection 2(k) shall, in particular, contain provisions designed to ensure that nothing shall directly or indirectly prevent, limit or restrict programme service providers from including in programmes material which—

(a) informs viewers and listeners of the benefits to the public from the National Lottery;

(b) informs viewers and listeners about the National Lottery and the features of licensed lotteries;

(c) educates viewers and listeners on how to participate in licensed lotteries;

(d) promotes the National Lottery and licensed lotteries.

(6B) In this section and section 312 ''National Lottery'' shall be as defined in section 1 of the National Lottery etc. Act 1993 and ''licensed lotteries'' means those lotteries licensed by the National Lottery Commission pursuant to section 6 of that Act.'.

Amendment No.606, in

clause 312, page 269, line 40, after 'sponsorship', insert—

'(bb) the National Lottery Commission about so much of the draft code as relates to or could affect the National Lottery or licensed lotteries;'.

Andrew Lansley (Conservative, South Cambridgeshire)

I apologise to the Committee for having missed the earlier interesting debates. I look forward to reading them.

We have moved on to the lottery show. Clause 307, in its application of Ofcom's standards codes, in effect recreates—but gives us the opportunity to consider afresh—the structure of, in particular, the ITC codes of programming and the standards codes. The context of the debate is provided by the fact that the national lottery has a unique status. It is run by a commercial organisation, but one that operates for a public purpose. Committee members will be only too familiar with the benefits that flow from the national lottery, but I imagine that they are equally familiar with the relative difficulties that it has recently encountered.

There are inherent difficulties in trying to sustain the take-up of a national lottery programme. Innovation is the necessary response to stimulate the interest of those who play the game and contribute to good causes. The future success of the lottery depends on its ability to innovate. The reason why we have a standards code is because the broadcast media—in particular, television—are an immensely powerful means of communication and can have dramatic effects. In its early years, the national lottery

prospered by virtue of its presence on the BBC through the national lottery show.

Michael Fabricant (Conservative, Lichfield)

Is my hon. Friend aware of the argument, often presented by the right hon. Member for Manchester, Gorton (Mr. Kaufman) and others, that Britain seems to be unique in that the show to which my hon. Friend referred is not paid for by the lottery in question, but is put on free?

Andrew Lansley (Conservative, South Cambridgeshire)

I understand that to be the case, but I am unsure what conclusion my hon. Friend wants me to draw from that. To put on a show of that sort is consistent with the BBC's wider purposes.

The question is in what ways the lottery can develop. Past experience in this country and overseas demonstrates that if the lottery is to maximise its contribution to good causes in the long term, some innovation will be required in its ability to promote the lottery through television. Certain constraints on its ability to do that arise from the BBC's sponsorship and advertising code. For example, trailers on the BBC that mention the lottery are regarded as advertising. In addition, because of the restrictions on sponsorship on ITV, even an effort to broadcast the national lottery show on ITV in the same form as it appears on the BBC would fall prey to the sponsorship and advertising code.

It is important to consider how the lottery might develop. The lottery might want to develop the nature of games beyond those that appear on the existing show. It might be desirable to the national lottery to

consider having a presence on ITV rather than on the BBC, or having a complementary presence on ITV on a different day of the week. Much as I have my worries about scratchcards and the ability under gaming policy to chase losses, it might be an advantage in the context of the lottery to be able to introduce a scratchcard game, related to a lottery show, with winners in the studio, so that viewers could watch the experience of winning. Such entertainments could enable the lottery to capture an additional audience, and thereby additional money for good causes.

The amendments would enable the standards codes to reflect the unique character of the lottery. The hon. Members for Milton Keynes, North-East (Brian White) and for North Devon and I have come together to table amendment No. 605 to try to secure the Government's acceptance of the amendments. If the amendment were accepted, the programming material set out in the amendment that informs viewers about the national lottery, educates them and promotes the national lottery and licensed lotteries, would be reflected in the legislation as material that will not be precluded by programming or standards codes. I hope that the Government will accept it.

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

Clause 307 - OFCOM's standards code

Roger Gale (Conservative, North Thanet)

I remind the Committee that with this we are taking the following:

Amendment No. 605, in

clause 307, page 266, line 10, at end insert—

'(6A) Standards set to secure the standards objective specified in subsection 2(k) shall, in particular, contain provisions designed to ensure that nothing shall directly or indirectly prevent, limit or restrict programme service providers from including in programmes material which—

(a) informs viewers and listeners of the benefits to the public from the National Lottery;

(b) informs viewers and listeners about the National Lottery and the features of licensed lotteries;

(c) educates viewers and listeners on how to participate in licensed lotteries;

(d) promotes the National Lottery and licensed lotteries.

(6B) In this section and section 312 ''National Lottery'' shall be as defined in section 1 of the National Lottery etc. Act 1993 and ''licensed lotteries'' means those lotteries licensed by the National Lottery Commission pursuant to section 6 of that Act.'.

Amendment No. 606, in

clause 312, page 269, line 40, after 'sponsorship', insert—

'(bb) the National Lottery Commission about so much of the draft code as relates to or could affect the National Lottery or licensed lotteries;'.

Brian White (Labour, North East Milton Keynes)

This morning, the hon. Member for South Cambridgeshire (Mr. Lansley) outlined the reasons for moving the amendment and highlighted several of the current problems. If one looks at overseas lotteries as they develop, the relationship between ticket sales and the television show becomes more important. Such synergies are critical to why we tabled the amendment.

The hon. Gentleman outlined several restrictions and I am sure that the Minister will address them. If we do not get the suggested changes to the code, there will be a problem future-proofing the way in which the national lottery moves forward. As interactive programmes and channels such as Avago TV come online, which will take betting and entertainment forward, the national lottery's unique position must be further emphasised, which is one of the reasons why we tabled the amendment. Ofcom is the right body to resolve that and the code is the right way to do it. If we

are to get the content position right, including the national lottery in the Bill is the right way forward.

When we spoke to representatives of the national lottery about its experiences and experiences overseas, one of the places that they referred us to was California, where the lottery is called ''The Big Spin''. I am not sure whether it was helpful to suggest that politicians follow that example.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The Liberal Democrats support the amendments that relate to the national lottery. There should be a distinction between the status of the national lottery, which was set up by statute and raises money for charities and other good causes, and that of other organisations. People have attempted to set up similar operations with more or less success, and I understand that gaming law addresses that. It is important that we do not end up with a situation in which all similar ventures are treated equally because the national lottery is a first among equals that is different from the rest because of its statutory base. Other people may set up lotteries for perfectly good causes and we may wish to support them, but they should not have the same status as a national lottery that was set up by statute. It is helpful to consider amendments that would ensure that the distinction is clear.

John Greenway (Conservative, Ryedale)

One of the few things on which the Minister and Conservative Members would be absolutely certain to agree is the importance of protecting and boosting the national lottery's fortunes. Given that, I am sure that, like us, he will be sympathetic to the amendments' objectives, and we look forward to hearing whether he thinks that the changes are needed.

There are two issues to consider, although they are slightly contradictory. First, no member of the Committee would want to pass primary legislation to prevent future television-programme-style promotions of the national lottery that would play a role in maintaining the lottery's income base and the stream of money for good causes. I am satisfied by Camelot's arguments that the BBC and the ITV arrangements at present create problems in that regard. The Government have an opportunity to make a change.

The slightly contradictory caveat is that there is also no doubt that the rest of the gambling industry deserves some recognition of the fact that the lottery already has a substantial advantage in promotion. On balance, however, we would favour ensuring that the legislation does not prohibit or restrict Camelot—or any future lottery operator, because we are looking many years ahead with the legislation—from taking new initiatives through the medium of television. That is particularly important if we consider the development of the multi-channel digital age, in which it may be possible for people to play the lottery on an interactive basis through their digital television receivers.

I hope that my hon. Friend the Member for South Cambridgeshire, who moved the amendment, will feel that those on his Front Bench generally support him. We in the Conservative party are very proud of having

created the lottery, and we wish it every success in the future.

Kim Howells (Labour, Pontypridd)

I confirm, in response to point made by the hon. Member for South Cambridgeshire, that the Government accept that the national lottery has been specifically provided for by Parliament and that it has a public purpose in raising money for good causes.

I am happy to make it clear to the Committee that the Government believe that it would be entirely appropriate for Ofcom to recognise, in the application of their codes, the national lottery's distinctive place in the life of this country, and its enormous contribution to good causes. It would also be right for Ofcom to take account of the public good derived from the success of the national lottery in its regulation of licensed services.

However, I must resist the amendment. I do not intend to be derogatory but, as my hon. Friend the Member for Milton Keynes, North-East (Brian White) hinted, the amendment is rather convoluted and may be defective. Having said that, its general purpose is clear. It aims to provide more scope for education and information about the national lottery, and its promotion in the broadcast media.

The amendment does not operate directly on the application of Ofcom's codes to the presentation of the national lottery. It does not state that the codes should not restrict the appearance in the media of the national lottery. However, it seems to require Ofcom to prevent broadcasters from doing anything that restricts the appearance of programme material of the sort described. What the result of that would be in practice is unclear, but it would be an unacceptable intervention in the editorial responsibilities of the broadcasters.

The amendments seek to allow more scope for the presentation of the national lottery on television. We should, therefore, examine what is currently prevented.

The national lottery draw appears on the BBC, and its appearance is regulated by the BBC in accordance with the producers' guidelines. It would be wrong to seek to intervene in the way in which the BBC governors interpret and discharge their responsibilities under the charter. The producers' guidelines already give a special place to the national lottery: it is covered in chapter 23 of the current edition. It is quite proper for broadcasters, including the BBC, to make their own editorial decisions about arrangements for the appearance of, for example, ''Lotto'' logos, bearing in mind their overall responsibilities to viewers and, in the BBC's case, licence fee payers.

What restrictions are there on the appearance of the lottery on commercial channels? There are no statutory bars on the appearance of the lottery. However, there may be general obligations on the regulator, notably under the TWF directive, with regard to distinguishing programmes from advertising.

In addition, under UK legislation, specific responsibilities may be imposed by the Independent Television Commission and, in future, by Ofcom. The general standards objectives are set out in the clause. We believe that those high-level objectives are right. It is therefore a matter for the regulator's discretion to interpret those objectives to ensure that they are met. It would be quite wrong to exempt the national lottery from those requirements.

On the other hand, there is clearly a margin of discretion for the regulator in deciding how the objectives are best met. It is quite right for the national lottery to examine with the regulator and broadcasters how members of the public could learn more about the benefits of the lottery in ways consistent with the overall objectives. Camelot recently provided a list of things that it wanted to do but felt that broadcasting regulation prevented. Officials from my Department discussed the list with the ITC and it appears that there may be more scope for the national lottery to appear in licensed broadcasting channels than Camelot was perhaps aware of. However, Camelot must bring forward specific proposals.

To summarise, nothing in broadcasting regulation specifically stands in the way of more extensive use of the broadcast media by the national lottery. There may be scope for the national lottery to appear in broadcast media in new ways. We and the ITC believe that there is, but the lottery operator will need to come forward with proposals that appeal to broadcasters which do not breach fundamental broadcasting principles—such as the broadcaster's editorial control of content and maintenance of the distinction between programming and promotion.

Michael Fabricant (Conservative, Lichfield)

The Minister has just made an interesting point. Does he have a view about a matter that we discussed earlier? Although it is not permitted at present, should a programme similar to that transmitted by the BBC be allowed to be screened by a commercial company?

Kim Howells (Labour, Pontypridd)

As I just tried to point out, and I am sure that the hon. Gentleman will agree, there is probably room for such a programme, but proposals must come from Camelot in order for judgments to be made.

Andrew Lansley (Conservative, South Cambridgeshire)

Is the Minister saying that, in so far as the high-level objectives to which clause 307(2) refers such as preventing the inclusion of ''unsuitable advertising'' or ''unsuitable sponsorship of programmes'', he would not expect the information, education and promotion of the national lottery to be described as unsuitable advertising or sponsorship?

Kim Howells (Labour, Pontypridd)

I cannot give the hon. Gentleman a definitive answer because the ITC and Ofcom would have to see what form the programme would take. However, I take his point because a distinction should be drawn. As I tried to say earlier, if proposals come forward in a substantive form, so that the ITC can consider them, that distinction can be highlighted. I see far fewer impediments to Ofcom using the media in

different ways than are probably envisaged by Camelot.

Many of the detailed concerns about ITC regulation that Camelot has expressed to my Department have not been tested because it has yet to develop proposals with commercial broadcasters. Camelot may also want to consider with the BBC whether the producer's guidelines are set at the correct level given the lottery's special status. Perhaps the hon. Member for South Cambridgeshire could also think about that important point. If the guidelines need revision and the issues need to be discussed with the BBC or ITC, Camelot should do so.

We do not believe that United Kingdom regulation has stifled the national lottery or that statutory change to communications legislation is necessary to its success. There is already scope for some of the things that Camelot wants to do. We look forward to constructive discussions between Camelot, the broadcasters and Ofcom. On that basis, I hope that the hon. Member for South Cambridgeshire will withdraw his amendment.

Andrew Lansley (Conservative, South Cambridgeshire)

I am grateful to the Minister for his constructive response to our short debate. If he feels that the construction of the amendments is too complex or that putting in a high-level objective in relation to the national lottery offends against the theology of the Bill, as it were, there are other mechanisms. Under clause 309(7), advertisements of a public service nature or party political broadcasts are expressly excluded from the operation of the standards code. That would be a simple mechanism for implementing the provision, and one that I also contemplated.

Unless he tells me otherwise, I take the Minister's reply to be positive, but that the Bill does not necessarily need amending and much more can be done without it. It will need changes; for example, the ''Big Ticket'' game was unable to succeed because as a consequence of the BBC's code, a TV game on the BBC cannot have the same name as the lottery ticket. That needs to be considered, but subject to the Minister's encouraging response to my recent intervention, if we can be increasingly confident that the national lottery will not be treated simply as another commercial company, and especially if it is not to be treated on the same terms as other forms of gaming—it has a different purpose and I would be the first to worry about the alliance between the power of television and the practice of gaming being taken too far—within these limits and a public purpose I would be happy to rest on the matter for the time being. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

John Greenway (Conservative, Ryedale)

I beg to move amendment No. 651, in

clause 307, page 265, line 25, at end insert—

'(3A) Before drawing up or revising the codes, OFCOM shall have regard to the extent to which matters they are required to secure under this section are, or may be, secured by effective self-regulation; and, in the light of that, to consider to what extent it

would be appropriate not to draw up, modify or withdraw a code under this section.

(3B) In determining for the purposes of this section whether procedures for self-regulation are effective, OFCOM may take account not only of self-regulation independent of those to whom it applies, but also of the extent to which the matters to be secured under this section are being, and are likely to be, secured without the further imposition of a code.'.

Towards the end of this morning's sitting the Minister challenged me to tell him where Ofcom's power to ban tobacco advertising might appear in the Bill other than in clause 307(2)(g) and (h) using the word ''unsuitable''. I will not pursue the point, but I am advised that clause 309(1) and (5) would give Ofcom such powers. I am sure that the Minister will want to discuss with his advisers whether in the light of that he might want to reconsider what we said in respect of amendments Nos. 205 and 206.

Amendment No. 651 relates to the advertising issue in a different way. We return to the question I first raised on clause 6 all those weeks ago—it seems like an eternity now—where the Minister in response kindly and courteously said he would consider the issue with the possibility of returning to the matter with a Government amendment if it was thought it would improve the Bill's wording. This amendment is proposed in a similar spirit. It would add new wording to the end of subsection (3), which states:

''The standards set by OFCOM under this section must be contained in one or more codes''.

We propose two additional subsections which would reinforce Ofcom's mandate either to draw up codes itself or to contract them out to an effective, independent and properly funded regulatory body, which the Minister acknowledged is an option for broadcast advertising to which the Government are attracted. Without these new subsections or something similar—perhaps the wording is defective—clause 307 could imply that the choice of contracting out to a self-regulatory body might not be available and that Ofcom would have to draft its codes notwithstanding the presence of such a self-regulatory system for advertising content.

The amendment purposely replicates the wording that my hon. Friend the Member for South Cambridgeshire used in amendment No. 603 to clause 302, on local radio content. We debated that last week and concluded our debate this morning. The issue is the same. I have already reminded the Committee that the Government said that they would come back with their own amendment, if that were necessary, to future-proof the extent to which Ofcom should have to regard to self-regulation in clause 6. For the sake of clarity, we think that self-regulation should be covered in the Bill—not only in clause 6 as regards Ofcom's general duties, but in clauses, such as clause 307, that place a duty on Ofcom to draw up codes. As has already been said in debate, the move to self-regulation will not be a free-for-all as Ofcom will have back-stop powers to ensure that a self-regulatory system to which it contracts out its functions is effective, is sufficiently independent of the persons who are subject to its procedures, and has adequate funding arrangements. Those back-stop powers are significant.

If the Government are serious in their desire to pursue self-regulation wherever practical—and I believe that they are—it will be important to ensure that Ofcom is not constrained in that task by the wording of the Bill, however well-intentioned that wording may be.

Andrew Lansley (Conservative, South Cambridgeshire)

My hon. Friend the Member for Ryedale (Mr. Greenway) has covered almost all the arguments and done so very well. I want to add just one point. My hon. Friend referred to the wording of my amendment to a previous clause. The second limb of the argument is not simply to cover self-regulation that may come about in future, but—in addition to what is currently in clause 6—to require that Ofcom consider the scope of the code. Otherwise, we could be in a situation where everything that is to be subject to the code will always have to be subject to a code, whether that code is Ofcom's own or that provided by a self-regulatory body. In this issue, as in considerations of localness or other issues where self-regulation arises, Ofcom could in future have scope to say that there was no need for a code to maintain the standards that are specified in legislation. That would allow Ofcom to have a standards code at a lower level than is required by the current complete listing in clause 307.

Kim Howells (Labour, Pontypridd)

As we said this morning, it is very important to maintain standards in the broadcast media. Those standards are established professionally and are based on research into public standards and attitudes. The maintenance of standards is one of Ofcom's principal duties, as established in clause 3. The mechanism for maintaining those standards is through the establishment of codes that broadcasters can follow when making their programmes. Given the power of the medium and the absence—rightly—of precensorship, it is especially important to have clear standards codes that are backed by sanctions.

We have also discussed the scope for increasing self-regulatory approaches. The hon. Member for Ryedale has just spoken about that. He is absolutely right to say that we could use the power in clause 309(6) to deal with banning tobacco advertising in the broadcast media. I congratulate him on his research capabilities. This is a power of Government direction and it is hardly a light touch. It is best to give Ofcom the high-level responsibility to protect children, for example, and the flexibility in the Bill to act in that way.

There are specific provisions for self-regulation, notably in relation to premium rate communication services. However, Ofcom is properly charged under the Bill with a public responsibility for maintaining standards. It can work with others and we expect it to work closely with industry to develop the codes. It can contract out to other bodies the responsibility for the day-to-day application of the codes or the handling of complaints, which is an example of the kind of work that all broadcasters have to do.

Ofcom can also adopt codes or parts of codes established by other bodies, but under the contracting-out arrangements Ofcom rightly retains the ultimate responsibility and accountability for the maintenance

of standards. It remains the best way to achieve public confidence in broadcasting regulation.

The amendment requires Ofcom to consider the options of not drawing up or withdrawing a code under clause 307. Such a proposal would undermine the regulatory structure of content regulation, which depends on a code and Ofcom's ultimate statutory responsibility for its effectiveness.

John Greenway (Conservative, Ryedale)

Is the Minister saying that the Government are not prepared to countenance any circumstance in which there would not be codes? We accept that the two new subsections would provide an opportunity for there not to be codes and I want to be sure that the Government are not prepared to countenance that. On the other side of the coin is the Minister equally saying that notwithstanding the wording of clause 307, it remains the Government's aspiration that Ofcom could look to self-regulation in this area, despite the existence of the codes?

Kim Howells (Labour, Pontypridd)

The hon. Gentleman has got to the heart of the argument. There should be codes, which should involve the industry at all levels and include speaking to the customers—the listeners and viewers. I see no problem with that; codes are the way forward.

I tried to explain that there is nothing to prevent a sophisticated and far-reaching degree of self-regulation but it must be based on the firm foundation of the industry having codes that we can see and measure and against which to test its performance.

John Greenway (Conservative, Ryedale)

I am not sure that the Minister entirely replied to my point about self-regulation. However, the matter has been covered sufficiently and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 307 ordered to stand part of the Bill.

Clause 308 - Special impartiality requirements

Nick Harvey (Liberal Democrat, North Devon)

I beg to move amendment No. 509, in

clause 308, page 266, line 22, leave out first 'national'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following:

Amendment No. 510, in

clause 308, page 266, line 22, leave out 'and national'.

Amendment No. 514, in

clause 308, page 266, line 22, leave out 'and' and insert 'or'.

Amendment No. 511, in

clause 308, page 266, line 23, after 'service', insert

'and radio licensable content service'.

Amendment No. 512, in

clause 308, page 266, line 25, leave out paragraph (c).

Amendment No. 515, in

clause 308, page 266, line 26, leave out 'or' and insert 'and'.

Nick Harvey (Liberal Democrat, North Devon)

We discussed in a previous sitting the general issue of impartiality in the broadcast media and I was pleased that the Minister confirmed his view

that impartiality should be sustained in future on a similar basis to the present.

The amendments move from the general realm of impartiality to specific provisions for local radio. For television and national radio, the Bill adheres to the principle that we must preserve due impartiality on the part of the person providing the service. The test is for local radio is rather less. A local radio station is simply prohibited from giving

''undue prominence . . . to the views and opinions of particular persons''.

The purpose of the amendments is to put the requirements for local radio on the same basis as that which the Bill requires for television and national radio.

In moving the amendments I do not suggest that there has been a problem to date in commercial or BBC local radio, but I know that hon. Members have complained about problems from time to time. The difficulty arises when local radio stations get into the realms of campaigning over particular issues in their communities. The examples that I have heard quoted include campaigns on whether there should be a directly elected mayor for an area, where a local radio station may take a firm view. It may not give

''undue prominence . . . to the views and opinions of particular persons or bodies'',

but it will find lots of persons and bodies who happen to adhere to its view. It can put them all on the radio and still conform to the requirements that are placed upon it in legislation. That is not balanced coverage and it is not in any sense impartial coverage.

I have also heard the complaint, although it grieves me not the slightest, that the local radio station played a particularly vigorously part in the campaign over Kidderminster hospital. That again would not conform to the sort of requirement that is put on national radio or television. As we consider the growing probability of cross-media ownership and as the Bill is relaxing some of the requirements concerning radio ownership, I wonder how members of the Committee would feel if their local radio station were run by the editor of their local paper? How would they feel if that editor started importing into local radio the sort of editorial techniques and approaches he or she currently uses in putting together a local newspaper? It could fundamentally change the character of broadcast media and some of the things that we have taken for granted.

From my previous experience fulfilling other roles for my party, I am aware that broadcasters at a national level are already pretty blasé when complaints are made that they are not observing proper requirements of impartiality. I discern from what I have read in newspaper columns that when other parties have complained to the broadcasters they have found them pretty blasé too. I would never dream of being rude to broadcasters but I gather that certain people around the Westminster village who are rude tend to read about it the following day in the newspapers.

If campaigning local radio stations were similarly blasé, we might come to regret the fact that we had not taken the opportunity offered by the Bill to put local radio on to the same footing as television and national radio so that at least one could bring a complaint. The current requirements may well prove inadequate. There appears to be a printing error in the last few words of subsection (1)(c). I cannot for one moment believe that the Minister will accept any of my amendments, so will he at least look at that? I have made my point that local radio should operate on the same basis as national radio and television. I look forward to hearing his comments.

Nick Palmer (Labour, Broxtowe)

I found the hon. Member for North Devon (Nick Harvey) quite persuasive. At this stage, there is still potentially a problem, because the overwhelming majority of local radio stations, like the overwhelming majority of local newspapers, are anxious to stay on good terms with all sections of the local community. Only in cases such as that in Kidderminster, in which a local lynch mob formed, do we see the radio jumping off the fence. I just wanted to flag up that issue. I do not propose to support the amendments, but it is worth bearing in mind for the future.

John Greenway (Conservative, Ryedale)

In the hope that it might stiffen the Minister's resolve, notwithstanding what the hon. Member for Broxtowe (Dr. Palmer) has just said, I think on reflection that we do not want to support the amendments. The hon. Member for North Devon referred to campaigning by newspapers, and I can see that, in the months and years ahead, local radio stations might adopt a similar approach.

Let me describe what is happening in my area. The Yorkshire Evening Press is pretty much a monopoly evening newspaper in York and most of north Yorkshire, although there is the Scarborough Evening News on the coast, and the Yorkshire Evening Post has some penetration. The YEP is campaigning against any upgrade of the RAF Fylingdales radar station or any involvement in missile defence. I happen not to agree with it, but I do not take objection to what is being done. I do not believe that any harm is done by the YEP taking that view, because it has to deploy its arguments, and a number of people have seen through them, but they still buy the paper, and I think that they would still listen to the radio programme.

There is a difference in respect of the use of a local medium, whether print, sound or even television, to highlight a local issue. Let us imagine that Radio Clyde in Scotland campaigned against a closure in the Clyde area, which it might well want to do. That would fall foul of the amendment if it were included in the Bill, and it could well be one role that these organisations, whether print or broadcast, would wish to fulfil. What is crucial is that there should be due impartiality in the case of the national channels, for which clause 308(1)(b) provides.

Nick Harvey (Liberal Democrat, North Devon)

The hon. Gentleman gives the example of a radio station campaigning against an unpopular closure. Does not he think that, in the interests of giving the listeners all the information that they need, it would have been appropriate for those

proposing the closure at least to go on the radio to state why they wanted the closure?

John Greenway (Conservative, Ryedale)

I have absolutely no doubt that that would happen. One does not necessarily need to micro-manage every single thing that a local radio station does. That is one reason why we took exception to clause 302, which we debated at length last Thursday and again this morning. I remain of the view that we can trust broadcasters to give everyone the opportunity to have their say. In any case, most of them have phone-in programmes, whereby people can go on air and have their three penn'orth.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The hon. Gentleman's argument could apply equally to the national medium. I do not see what distinction is being drawn between the two, particularly given that in many areas the most popular radio station will be the local station. Far more people will listen to that than to Radio 1, 2, 3, 4 or whatever, so why not release those from the requirement?

John Greenway (Conservative, Ryedale)

People do that out of choice. There is a much stronger obligation for impartiality on national radio stations. The majority of regularly listened-to speech stations are funded and broadcast by the BBC, which is a wholly different matter. It is interesting that the Liberal Democrats, whom many would think as the arch-local campaigners in politics, should take exception to the clause. I am not convinced by their arguments, and when it gets to the time of elections, the provisions in the various Representations of the People Acts ensure total impartiality. That has been my experience in fighting four general elections and one hard-fought local election, each one successfully.

Nick Harvey (Liberal Democrat, North Devon)

Will the hon. Gentleman give way?

John Greenway (Conservative, Ryedale)

No. I have had my say, the hon. Gentleman has had his, and there is a clear difference between us. We cannot support the Liberals on the point.

Simon Thomas (Plaid Cymru, Ceredigion)

God preserve us from Focus FM—[Laughter.] Nevertheless, there is some virtue in what the hon. Member for North Devon was saying.

Two points concern me about the clause. First, it provides the security that particular persons or bodies should not gain undue prominence on local radio, so it accepts that there is a danger that local radio could go that way. However, there is a reverse to that preservation, as it is possible for local radio stations to ignore what is going on in their own patch by not covering certain issues or individuals. People may say that the stations would suffer, but they could have a licence for several years, so it would be some time before they suffered. A hypothetical local radio station that never asked its local representatives to explain what they were doing might be said to be ignoring an important aspect of how local policies were made.

My second concern is about the definition of national and local. I had a careful look at section 239, which defines ''national''. It does not apply to BBC programmes so, in theory at least, the clauses do not apply to BBC Wales, Radio Cymru, Radio Scotland or Radio nan Gaidheal. However, the potential exists for a commercial service that is defined as local in the ambit of the Bill to affect a huge region of the United Kingdom, possibly most of Wales, Scotland or north England. It could cover a large area and not come under the national provisions of the Bill, but still have a significant impact in a region, or nation, of the United Kingdom. It could start campaigning using the freedom of the clause in a way that caused us to feel that we had allowed too much leeway.

I hope that the Minister will address those issues: when does local stop being local—I understand that we do not want to micro-manage—and start being influential, so that we need public interest safeguards?

Kim Howells (Labour, Pontypridd)

The hon. Gentleman has raised an interesting point. Is he arguing that a radio station in, for example, the west midlands that served some 6 million people should be accorded less significance than a radio station in Wales that has a potential audience of 2.9 million or in Scotland of less than 5 million? Where does one draw the line?

Simon Thomas (Plaid Cymru, Ceredigion)

That is precisely the question that I was asking the Minister. [Laughter.] I thought that he was going to tell me. My point was that I do not know when local becomes regional becomes national. I accepted that a radio station could cover a huge area of England and have a disproportionate effect on the politics in that area. The point does not simply relate to Wales or Scotland.

Once we have regional elections in England, the Minister's point will bear examination. I originally raised that point in the context of Wales and Scotland because we have separate electoral processes. Once there is a west midlands regional assembly, there may also be a west midlands FM broadcasting to all the electors in that area and once they start campaigning on an issue that the assembly will deal with, then defining what is local, national, regional, and so on, becomes a tricky marsh in to which we do not want to go. The wording of the clause is somewhat holey—a bit like a cheese with holes in it. I can see how, under the clause, we could get to a point where people who wanted to play a hardball campaigning game could get away with a lot in respect of local radio.

The two points that I wanted to mention are these. First, the Minister turned my first point back on me, so let us hope that we get somewhere by the end of the debate. Secondly, in spite of protection against undue prominence, the amendments have the virtue of seeking an overall balance within programmes. Undue prominence has a reverse side, which is that any broadcaster could ignore issues that should be covered in their area. That is not the same thing at all, but it is as vital to local democracy as undue prominence.

Kim Howells (Labour, Pontypridd)

First, I pay tribute to my hon. Friend the Member for Broxtowe. I loved his expression about what happens once the lynch mob gets roping. I know exactly what he means and we must be careful on that issue. I also congratulate the hon. Member for

Ceredigion (Mr. Thomas) on a great Aberdare expression. The hon. Gentleman said that the clause was a bit holey, meaning that it has holes in it. [Laughter.] I say to him that local radio—I guess that this is the best way of expressing it—is anything that is not a national licence. [Laughter.] That is defined in clause 239. There are currently just three analogue national licences and we believe that undue prominence remains the right level of constraint below national level.

I turn to the amendments that were tabled by the hon. Member for North Devon. The hon. Gentleman told us that they would extend the broadcasting impartiality obligations to local analogue and digital radio services and cable and satellite radio services. The distinction between the obligations on the most powerful broadcast media—television services and national terrestrial radio services—and the provisions that would apply to local radio and cable and satellite radio replicate the distinctions in the current legislation, which I believe work very well. The amendment is the first challenge to that distinction that I know of since we began the process of consultation in early 2000. The hon. Gentleman must feel good about making the first challenge.

Television and national radio services are to retain strong impartiality obligations, whereas local and satellite and cable radio services have an obligation only to avoid giving undue prominence to the views and opinions of particular persons or bodies on matters of political or industrial controversy, or on public policy. That distinction reflects both the different powers of the two media—television is much more powerful than radio—and the distinct nature of local radio services.

Such local radio services are many and varied, as the hon. Member for Ryedale informed us. They operate at local and community levels, often with few staff. They need to engage with their audiences and deal with local issues in a lively way. The lighter obligation to avoid undue prominence, which extends across the output of such stations rather than within a programme or a series of programmes, as pertains to the impartiality requirement, is appropriate if we are not to risk stifling some of our small, exciting radio stations. Such stations may not have the capacity to achieve balance in a narrow time frame and they may need to stimulate debate and engagement with local issues.

I would like to inform the Committee that I did a phone in on Saturday night, sad creature that I am, on the future of Welsh rugby and the lines were completely jammed. I am glad to say that I did not hear a single impartial voice on that programme, least of all my own.

Anyway, I hope that that addresses at least some of the issues that the hon. Member for North Devon raised and that he will take my advice that we must be careful about the small stations, especially, that need to engage with the public who they serve in as lively and imaginative a way as possible. On that basis, I hope that he will withdraw the amendment.

Nick Harvey (Liberal Democrat, North Devon)

I must say that I was rather disappointed by the Minister's response. His quaint vision of little local radio stations is all very well, but some are not that little—they are quite large. As he knows from lobbying on other clauses, there are people with aspirations to own a great number of such stations. If they succeeded in securing ownership of great chains of local radio stations throughout the country and if they wanted to pursue a particular political line through that chain, the total audience to which they would broadcast would be much larger than that of several smaller national stations that will be governed by regulations that apply to national radio.

I am disappointed by the Minister's reply, but if this is the first time that the issue has been raised during the two and a half years in which he has consulted, I shall withdraw the amendment. However, we may wish to return to the issue at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

John Whittingdale (Conservative, Maldon and East Chelmsford)

May I begin by raising a minor point before I address issues of greater concern? A triumph was achieved this morning, although the credit for that belonged more to my hon. Friend the Member for South Cambridgeshire than to me. Nevertheless, I moved the amendment that persuaded the Government to delete the word ''his'' and to replace it with ''their''. My attention is caught by line 17 of the clause, which currently states:

''The requirements of this section are . . . the exclusion, in the case television and radio services''.

The Minister may find that the word ''of'' is omitted. I wonder whether I could move a manuscript amendment to insert the word ''of'' in order to allow me to claim yet another triumph by changing the Bill.

Roger Gale (Conservative, North Thanet)

Order. I do not want to disappoint the hon. Gentleman—actually I do. I shall not be led up the blind alley of manuscript amendments. I believe that there is a facility for making what is called a printing correction without moving a manuscript amendment. If the Minister will accede to that, I am sure that we will make further progress.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I am not sure that a printing correction will reflect my full credit for changing the Bill, but I suppose that it will have to do.

Several aspects of the clause caught my eye. We could spend a huge amount of time discussing impartiality on television, but I do not propose to do that. Most of my constituents are convinced that most of the programmes that they watch, and especially those on the BBC, are biased. I shall not necessarily follow them down that road. We politicians should be able to defend ourselves and cope with anything that the ''Today'' programme throws at us.

One thing that has always caused me slight concern is reflected in subsection (4): the principle that impartiality can be satisfied across a series of programmes rather than in a particular programme.

That can lead to abuse, and strong complaints have been made that a single programme was not objective and presented a partial view. The broadcaster has come back and said, ''Well, yes, but we're going to do another programme in three weeks that will be part of the series and that will balance it.'' The problem is that chances are that the people who watched the first programme will not watch the second programme. I am worried that the provision could be abused in order to allow the broadcast of programmes that are not properly impartial. I merely flag that up as a worry that has been around for a long time. We certainly dealt with it in 1996 when the Broadcasting Standards Council was set up. It was not really addressed then, and I do not think that anything has changed since. There are still loopholes in the clause.

Another issue on which I spoke out at some length in 1996 was how to define impartiality. That is quite easy to do when dealing with news programmes; one can simply put on an alternative point of view. However, it is much harder when we leave the news and fact and enter the realm of fiction. Obviously, there is a long-standing tradition of playwrights reflecting political views in their plays. I would never suggest that the BBC or other broadcasters should not show left-wing drama, but I have a slight concern that the BBC, in particular, seems to show nothing but left-wing dramas.

Michael Fabricant (Conservative, Lichfield)

Does my hon. Friend recall that, at one point, the BBC would not show right-wing drama, namely ''The Falklands Play''?

John Whittingdale (Conservative, Maldon and East Chelmsford)

My hon. Friend says ''At one point'', but I believe that that is still the case. ''The Falklands Play'' is finally being shown on BBC 4, where as few people as possible will see it.

Michael Fabricant (Conservative, Lichfield)

And BBC 2.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I accept what my hon. Friend says. However, it took more than 20 years for that programme to be shown. The only recent example of a very political drama shown on the BBC was ''The Project''. I accept that that programme was an extremely powerful indictment of the Government and the way in which the idealistic principles of so many hon. Members have been distorted and abused, particularly by the Labour Whips Office. However, it could hardly be described as right-wing drama; in fact, it was an attack on the Government from the left, and it accused the Government of a betrayal of socialist principles.

Nick Palmer (Labour, Broxtowe)

I am grateful to the hon. Gentleman for his defence of socialist principles. Would not he agree that there is a systematic pattern in that, regardless of the colour of the Government, there is relatively little pro-Government drama?

John Whittingdale (Conservative, Maldon and East Chelmsford)

When the previous Government were in office, there seemed to be a lot of pro-Opposition drama. I have not noticed a great deal of pro-Opposition drama being shown under this Government.

Jim Murphy (Labour, East Renfrewshire)

It would be more a crisis than a drama. [Laughter.]

John Whittingdale (Conservative, Maldon and East Chelmsford)

The issue is difficult, and it is not easy to legislate for it. That brings me back to my central premise, which is that there should be an avenue for complaints of that kind. When I spoke on the issue in 1996, I raised the matter of what people should do if they wished to complain about a lack of impartiality on the BBC. I said that it was outrageous that the BBC would act as judge and jury on such complaints and that the issue needed to be addressed. At least I can claim consistency, as that remains the case. Impartiality is very important, and it generates a huge amount of controversy. I suspect that most hon. Members have received letters complaining about various programmes being biased. There should be a properly independent process for adjudicating on those complaints. As I have said before, that is lacking in the Bill.

Kim Howells (Labour, Pontypridd)

I take on board everything that the hon. Gentleman says. At least he did not say, as a member of his party once told me, that BBC stands for ''Broadcast by Communists''. His comments were much more measured. ''The Project'', which I watched for the first 10 minutes, was so dull and boring that I watched ITV instead. I forget what was on; I think that it was a hospital drama. Anyway, it was much better than ''The Project''.

The series provision mentioned by the hon. Gentleman is necessary to give broadcasters some flexibility, so that ''impartial'' does not have to equal bland. That is a real danger. The hon. Gentleman hinted that we could have a series of impartial programmes and end up with television that was completely unwatchable. There are enough strengths in the Bill to ensure that there will be impartiality—I would not wish to be responsible for pushing this legislation through if that were not the case. Impartiality is one of the cornerstones of democracy.

Question put and agreed to.

Clause 308 ordered to stand part of the Bill.

Clause 309 - Objectives for advertisements and sponsorship

John Whittingdale (Conservative, Maldon and East Chelmsford)

We should pause on clause 309, because it is a history-making clause and it would be wrong for it to pass without comment. This is the first time that the Government have been required to print in a Bill that a clause is not necessarily compatible with the European convention on human rights. The Government have decided to continue the prohibition of political advertising, and, in the main, we agree with that decision.

The subject has been debated by all parties. Like the Government, my party accepts that the prohibition of paid-for political advertising should continue. All parties are finding it difficult to raise money. Were we to have to spend money on television advertising, we would be even more destitute. Political advertising

would also be unfair to smaller parties that might find it even harder to raise money and match the advertisements shown by the bigger parties.

There are good reasons for the prohibition. However, when it considered the Bill, the Joint Committee on Human Rights questioned the Government's decision, despite a court judgment in Switzerland that upheld a complaint that a ban on political advertising was in breach of article 10. I understand that the Government's view is that the judgment does not necessarily set a precedent, and that a challenge in this country to the provision would not be upheld by the European Court of Human Rights. Nevertheless, there is obviously sufficient concern about the matter for the Government to make the statement in the Bill.

When the Joint Committee on Human Rights examined the Bill, it stated

''We noted that this did not mean that there could be no controls over political advertising on television and radio, but only that any control must be shown to be justified by reference to the criteria . . . It was implicit in the Court's judgment that avoiding discrimination against less favoured or less well-funded viewpoints was a legitimate objective under Article 10(2). The question, in each case, was whether the restriction went further than can be shown to be necessary to achieve the goal. While observing that it would be a formidable challenge to put the compromise hinted at by the Court—a more circumscribed ban applied more discriminatingly—in statutory form, and accepting that there was some room to doubt the applicability of the Court's decision to the ban proposed in the United Kingdom, we''—

that is, the Joint Committee on Human Rights—

''recommended that the Government should seek restrictions short of an outright ban which could be shown to advance one of the legitimate aims in Article 10(2)''.

The Joint Committee on Human Rights went on to say that

''the Government does not explain, in the Explanatory Notes, why it has decided not to include such lesser restrictions but rather to risk incompatibility.''

In the main, we agree with what the Government are trying to do. However, the Joint Committee on Human Rights has flagged up the fact that the Government could have taken an alternative route—to try to define the ban more narrowly, and thereby avoid a potential challenge under the European convention on human rights. It is incumbent on the Minister to tell us why they chose not to do that but decided instead to stand by the ban and risk a challenge to this part of the Bill under the Human Rights Act 1998.

Kim Howells (Labour, Pontypridd)

I am grateful to the hon. Member for Maldon and East Chelmsford (Mr. Whittingdale) for giving us an opportunity to explain this. He is right that the decision is important. As hon. Members will be aware, the Bill provides for Ofcom to have principle responsibility for regulating advertising in the broadcast media. We want standards applied to broadcast advertisements to be consistent with those applied to other forms of broadcast content and to ensure that citizens are protected from harm.

That will be achieved by setting standards codes with which licensed broadcasters must comply, which happens at present. That will ensure that standards are maintained and that advertising remains legal, decent,

honest and true. Standards set by Ofcom under clause 307 must ensure that the inclusion of unsuitable advertising and sponsorship on television and radio is prevented. Clause 309 deals with the specific objectives.

The standards set by Ofcom will include general provisions about required standards for advertising and sponsorship and will permit Ofcom to prohibit particular advertisements and methods of advertising and sponsorship. The clause also provides for consultation between Ofcom and the Secretary of State on descriptions of advertisements that should not be included in programme services and on the forms and types of advertising and sponsorship that should not be used. As under the present system, it also provides the Secretary of State with a power to issue directions to Ofcom on any of those matters.

In addition to containing general provisions on advertising, the clause also contains specific provisions on political advertising. As the Secretary of State explained on Second Reading, the clause, and specifically the provisions maintaining a ban on political advertising in the broadcast media, is the reason why we have been unable to make a statement of compatibility with the Human Rights Act 1998. However, I reiterate that that does not mean that the Government believe that the Bill or the ban are incompatible with the Human Rights Act. The decision to proceed with a Bill containing such a provision was exceptional and was taken only after careful deliberation and a full examination of both the legal arguments and policy alternatives.

Successive Governments have maintained a complete ban on advertising of a political nature on television or radio. The Government intend to continue with the current ban, which, by the way, was supported by the Neill committee in its 1998 report on the funding of political parties. We also intend to define more precisely what is meant by ''political'' so that Ofcom may continue to use the broad reading of the word that existing regulators use, which is achieved through subsection (3).

However, a potential complication exists in the form of a judgment by the European Court of Human Rights against Switzerland, which maintained an apparently similar ban. The Joint Committee on Human Rights noted that when it examined the draft Bill. In response to the ECHR's judgment and the Joint Committee's concerns, we looked hard at the current ban to see whether minor changes could give greater certainty that the Bill was human-rights compatible, which the hon. Member for Maldon and East Chelmsford asked about.

Michael Fabricant (Conservative, Lichfield)

Will the Minister give way?

Kim Howells (Labour, Pontypridd)

Let me finish this little bit, and then I certainly shall give way.

Unfortunately, any such change, and even a small change, would still allow substantial political advertising. I hope that there will continue to be cross-party agreement that that would not be desirable. The current ban safeguards public and democratic debate and protects broadcasters'

impartiality by denying powerful interests the chance to skew political debate.

Michael Fabricant (Conservative, Lichfield)

I would be grateful if the Minister explained the ramifications of being in breach by the European Court of Human Rights. Would we be likely to be fined? Who would pay and would the Bill or the clause fall into abeyance?

Kim Howells (Labour, Pontypridd)

That is a very good question, and I cannot give the hon. Gentleman any answers because I do not think that anyone has any, so far. There may be a bit of paper on its way and, if so, I shall return to that point.

I was interested in what happens in other countries. A contact of mine who is concerned with the equivalent issue in France asked why we were worrying about the matter. She said that, in France, ''If someone feels strongly enough to challenge us, they will take us on, and if they do not, they can just shut up.''

John Greenway (Conservative, Ryedale)

That is a very healthy attitude.

Kim Howells (Labour, Pontypridd)

It is. Having examined all the facts, and having taken extensive legal advice, the Government concluded that strong arguments could be advanced in favour of the ban in the Bill being compliant with the ECHR.

Members of the Committee will also have seen the full explanation given in the explanatory memorandum circulated on 10 December. I also note, and welcome, the strong support given to the ban in the Electoral Commission's recent report on party political broadcasting. With those explanations, I move that clause 309 stand part of the Bill.

Question put and agreed to.

Clause 309 ordered to stand part of the Bill.

Clauses 310 and 311 ordered to stand part of the Bill.

Clause 312 - Setting and publication of standards

John Greenway (Conservative, Ryedale)

I beg to move amendment No. 207, in

clause 312, page 269, line 26, leave out 'After publishing the' and insert

'In the preparation of any'.

When we debated amendment No. 651 to clause 307, to which clause 312 refers, the Minister made it clear that there would be a standards code. This amendment seeks to change the tense of subsection (2) about publication of the draft code from the past to the present and future tense. We believe that there should be consultation when preparing the code. The clause should not exclude the possibility of the regulatory body taking soundings from interested parties prior to the publication of a draft code for the purposes of transparency about, for example, the appropriate timing of a consultation.

I am sure that, if the Minister re-reads subsection (2), he will agree that it is not sensible to say that there will be consultation only after the publication of the draft code, albeit that that is a draft. We believe that it

would make more sense for soundings to be taken during the preparation of the draft, and that that would make the process of reaching agreement about a code simpler for Ofcom.

Kim Howells (Labour, Pontypridd)

I appreciate what the hon. Member for Ryedale says, but I believe that his amendment places a further difficulty in the way of Ofcom acting expeditiously in undertaking its regulatory functions.

In preparing a draft code, Ofcom will probably want to take soundings and respond to issues raised with it about previous regulatory practice and how it might need amendment. The most significant issues that concern Ofcom's various stakeholders are likely to emerge from that process, and will then be reflected in the draft code. It is that draft on which the Bill requires Ofcom to consult its licensees and others who have an interest.

That is a reasonable process, but it would be excessive to place a statutory obligation on Ofcom to go through two stages of consultation before setting standards, including changes to standards that could be comparatively trivial. That would work against Ofcom acting as a streamlined, modern and model regulator.

Under clause 3 of the Bill, Ofcom is already required to observe best regulatory practice, and that must apply to its consultation processes, among other things. However, the more bureaucratic Ofcom is required to be, regardless of the merits in any individual instance, the less effective and more costly the regulation will be for industry. On that basis, I hope that the hon. Gentleman will consider withdrawing his amendment.

John Greenway (Conservative, Ryedale)

The Minister has confirmed that there will be consultation and I do not want to labour the issue. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

John Greenway (Conservative, Ryedale)

I beg to move amendment No. 208, in

clause 312, page 270, line 6, leave out 'professional organisations' and insert 'organisations, bodies and associations'.

This is narrow point and I am amused by the extent to which some of the associations who are concerned about the wording of subsection (4)(c) are admitting to the fact that they are not sure that they are professional organisations, but are owning up to being trade associations. One thinks particularly of the Advertising Association, the Incorporated Society of British Advertisers Ltd. and the Institute of Practitioners in Advertising, which are all bodies that I am sure would appear to Ofcom to be qualified to give relevant advice in relation to the advertising of particular products. The amendment would make the clause refer to ''organisations, bodies and associations'', rather than to the narrower definition of professional organisations. In doing that we might give such persons the comfort that they are included in the list of people from whom Ofcom wish to take advice.

Kim Howells (Labour, Pontypridd)

In substituting a collection of ''organisations, bodies and associations'' for ''professional organisations'', the amendment would remove the requirement on Ofcom specifically to consult professional organisations that it regards as being qualified to give relevant advice in relation to the advertising of particular products.

I shall try to convince the Committee that the amendment is unnecessary in ensuring that there is consultation with the relevant bodies. It would remove the specific requirement to consult professional organisations, which is designed to direct Ofcom towards particular bodies. Such bodies might, for example, have the expertise to advise Ofcom on the acceptability of claims for medicinal products in order to ensure that it complies with its statutory obligations, notably under the Medicines Act 1968 and the regulations implementing EC directives. The ITC retains a panel of eminent consultants who are appointed, following consultation with the leading medical professional bodies, to advise Ofcom on health and the medical aspects of advertising. Appropriate arrangements of that kind should continue and the amendment would weaken the obligation.

In relation to other interested parties, we believe that the Bill as it is drafted provides for the appropriate consultation. I know that some advertising organisations are concerned about the loss of the specific reference in the Broadcasting Act 1990 to

''consultation with such persons or bodies appearing to the Commission—or Radio Authority—to represent, among others, advertisers as the Commission, or Authority, think fit.''

I can confirm that we think that bodies, such as those that represent advertisers, would fall within the provisions of clause 312 (4)(a), which refers to persons—that includes bodies—who appear to Ofcom to represent the interests of those who must take account of the contents of the proposed standard for advertising and sponsorship. That provision embraces those who represent the interests of broadcasting licensees and advertisers. I hope that, having been reassured, the hon. Gentleman will withdraw his amendment.

John Greenway (Conservative, Ryedale)

That was an interesting response. If I heard the Minister correctly, he said that the concern that the amendment is intended to deal with has been directed at the wrong subsection; that subsection (4)(a) covers what we are hoping to achieve and that (4)(c) has a different meaning—the Minister seems to have misconstrued my understanding of that. The Minister suggested that certain professional organisations have particular expertise about particular products. I am sure that those with an interest in the subject will read this exchange carefully and will seek to return to the issue if they are not satisfied with the outcome of our debate. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 312 ordered to stand part of the Bill.

Clause 313 - Observance of standards code

John Greenway (Conservative, Ryedale)

I beg to move amendment No. 209, in

clause 313, page 271, line 8, leave out 'themselves'.

When we were discussing clause 308, my hon. Friend the Member for Maldon and East Chelmsford suggested that a word was missing from subsection (1)(a). The amendment suggests that a word in subsection (2) of clause 313 is superfluous and could not only create ambiguity, but restrict the ability of Ofcom to fulfil its functions. Without ''themselves'', the meaning of the clause would seem at first sight to be the same.

The Bill creates the possibility for Ofcom to contract out its functions and, as the Committee is aware, broadcast advertising may be contracted out to an appropriate self-regulatory body that is approved by Ofcom. Subsection (2) suggests that only Ofcom itself can establish

''procedures for the handling and resolution of complaints about the observance of standards set under section 307.''

An essential prerequisite for effective self-regulation, as demonstrated by the Advertising Standards Authority model, is the handling and resolution of complaints by an independent self-regulatory body. The word ''themselves'' could prevent that from happening, even though Ofcom can contract out its functions in accordance with the provision. I hope that I have made myself clear. I look forward to the Minister's response.

Kim Howells (Labour, Pontypridd)

I was a little unsure about the significance of the amendment because I did not understand its material effect. However, I think that the hon. Member for Maldon and East Chelmsford has explained it very well. It would remove the emphasis in the clause that distinguishes the provisions of subsection (1)—which require there to be conditions in programme service licences requiring that procedures are established and maintained for the handling of standards complaints by licensees—from subsection (2), which makes it clear that Ofcom itself should also establish such procedures.

As stated in the communications White Paper, broadcasters should have the primary responsibility for handling complaints and for ensuring that they remain accountable to their audiences. However, there are complaints on which Ofcom should be able to act expeditiously, for example, in relation to a misleading advertisement when Ofcom needs its own procedures. Similarly, if a member of the public complains to Ofcom, it must have a procedure for handling that complaint whether it be by passing it to the broadcasters to deal with or taking regulatory action itself, notably when licence conditions seem to have been seriously breached.

The word ''themselves'' does not preclude a move towards self-regulation, effected by means of a contracting-out order under clause 1. Under such an order, a function of Ofcom can be contracted out to another party, but Ofcom itself remains responsible for the effective discharge of its statutory function.

Given that explanation, I hope that the hon. Gentleman understands the clause more clearly—I certainly do—and that he will withdraw the amendment.

John Greenway (Conservative, Ryedale)

To those listening, it must seem as though we are arguing on the head of a pin. Once again, our understanding of the clause is slightly different from the Minister's explanation of it. The best thing to do in the circumstances is to reflect on his reply I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 313 ordered to stand part of the Bill.

Clause 314 ordered to stand part of the Bill.

Clause 315 - Standards with respect to fairness

Nick Harvey (Liberal Democrat, North Devon)

I beg to move amendment No. 523, in

clause 315, page 272, line 8, leave out subsection (3).

The Bill takes the present procedures for considering complaints of unfairness in broadcasting and carries them forward, with the procedures currently used by the Broadcasting Standards Commission that will be adopted by Ofcom. Subsection (3) introduces into the existing BSC procedures under the 1996 Act new powers that, if implemented, could prove to be draconian. The new provisions concerning the disclosure of documents to Ofcom are too widely drawn and do not take account of well-established legal principles.

Subsection (3) states that, when considering a fairness complaint, Ofcom shall be provided with

''such other things appearing to OFCOM to be relevant to their consideration of the complaint, and to be in the possession of the relevant person, as may be specified or described by OFCOM''.

This leaves the obtaining of documents and other materials solely at Ofcom's discretion and does not take account of legitimate protection, such as legal privilege that is recognised by all statutes that deal with the disclosure of journalistic material, from the prevention of terrorism legislation to the Data Protection Act 1998.

The new provision does not take account of confidential material that the broadcaster may not wish to disclose because of undertakings of confidentiality to a source. A protection under section 10 of the Contempt of Court Act 1981 should be reflected in the subsection. Even the police do not have such wide powers to obtain journalistic material. The test in the Police and Criminal Evidence Act 1984 entitles the police to satisfy a circuit judge that journalistic material should be disclosed only when it is relevant and likely to be of substantial value to their investigation. In civil cases when parties to litigation are locked together, the disclosure rules require that documents should be disclosed only when a party relies on them, when they would adversely affect his or her own case, another party's case or, indeed, support another party's case. They must be of eminent importance to a case. It is not clear what the rationale is for giving Ofcom these new and seemingly

draconian powers. What deficiency have the Government identified in the way in which the BSC works at the moment, which makes them want to give wide-ranging new powers to its successor body Ofcom?

Kim Howells (Labour, Pontypridd)

As I am sure the hon. Gentleman will admit, the consideration of fairness complaints by the BSC has proved to be an effective means of redress for individuals and groups that believe that they have had their privacy unjustifiably infringed or have been unfairly represented. The right to pursue an inexpensive means of redress will be retained as an important remedy for those directly affected by a programme. The amendment would limit Ofcom's powers to obtain information in relation to the consideration of fairness complaints by deleting the requirement in clause 315(3) for the licence holder—the BBC or the Welsh authority—to provide Ofcom with additional information that appears to Ofcom to be relevant to its consideration of a fairness complaint. We included such a provision because experience has suggested that the current information requirements, which are contained in section 115 of the 1996 Act, do not go far enough. Under those requirements, the relevant person—the licence holder, the BBC or the Welsh Authority—must provide Ofcom with a copy of the relevant programme, a transcript of the programme and copies of any correspondence between the relevant person and the complainant or person affected. However, in practice, the BSC has found that, when considering fairness complaints, it would also be useful to obtain untransmitted footage—footage that did not make it into the final programme. Such footage could be relevant for all sorts of reasons—for example, to answer complaints of unfair editing and unfair presentation of material facts, or to provide evidence of doorstepping or other infringements of privacy.

I do not know how the hon. Member for North Devon feels about that, but I feel that the context—to explain how material was obtained and whether it was as a result of doorstepping or infringements of privacy—should be taken seriously. The general public are worried about doorstepping and, because of telephoto lenses, about invasions of privacy.

It may also be necessary for Ofcom to request copies of documents if the broadcaster referred to the documents, either in the programme or in a statement in response to a complaint, but then failed to produce them, or if the broadcaster failed to produce documents, known to be in its possession, that it felt might be damaging to its case. The latter situation has arisen on a number of occasions.

Based on our experience and the advice that we received from BSC, we decided to include a further provision in the Bill to say that Ofcom should be provided with other items in the possession of the relevant person that appeared to it to be relevant to the consideration of the complaint. In making such requests, Ofcom will have to act in a reasonable and proportionate manner. The hon. Member for North Devon appeared to be concerned that the provision did not offer sufficient protection in relation to legal professional privilege and the right of journalists to

protect their sources. That seemed to be at the heart of his amendment, and I see that he is nodding his head. We do not consider his concern to be well founded. Legal professional privilege is a well established common law principle. Indeed, it was recently described by the House of Lords as a fundamental human right. There is no need to include an additional express protection in the Bill.

The protection of journalists' sources is a fundamental aspect of press freedom. I am satisfied that sufficient protections exist to which Ofcom must have regard—in particular, under article 10 of the ECHR and, in domestic law, under the Human Rights Act. There is no need to repeat those protections in the Bill. In various contexts—including the Joint Committee on Human Rights—we have expressed the view that, where a proposed safeguard is co-extensive with the protection guaranteed by the Human Rights Act, the safeguard need not be repeated in a subsequent Bill. The Human Rights Act applies to all legislation and Ofcom, as a public authority, is obliged to have regard to the Act when carrying out its functions. It would be confusing and superfluous to repeat obligations that are already in the Human Rights Act. I hope that, with those reassurances, the hon. Gentleman will withdraw his amendment.

Nick Harvey (Liberal Democrat, North Devon)

I am grateful to the Minister for his reply. He gave a few examples of things that he thought Ofcom might wish to get its hands on—in particular, he mentioned untransmitted footage. His argument was good. However, it is a pity that the Government could not have pressed the BSC a little on some specific examples in order to make a list of material that they thought would, from time to time, be necessary. Instead, the Government have used the catch-all phrase:

''such other things appearing to OFCOM to be relevant''.

The Minister spoke about the Government's belief that protections exist elsewhere in the law. His statement this afternoon, which will be on the record, was helpful. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 315 ordered to stand part of the Bill.

Clause 316 ordered to stand part of the Bill.

Clause 317 - Proscription orders

John Whittingdale (Conservative, Maldon and East Chelmsford)

It is worth pausing to hear a little more about the clause, which is about the proscription of foreign television services. When we were debating the Broadcasting Act 1996, one of the great controversies was about a channel called Red Hot Dutch. My hon. Friend the Member for Salisbury (Mr. Key) told me that when he was Parliamentary Under-Secretary of State for National Heritage, he once found in his ministerial box six videotapes of Red Hot Dutch, which he was expected to spend his weekend watching.

Kim Howells (Labour, Pontypridd)

I am very grateful for that historical perspective, because I once found some tapes, too. Unfortunately, they were on my desk; I did not remove them from the room. They were of Satisfaction Channel Television, or something like that. I understand the dilemma; should one take the tapes from the Department or leave them there?

John Whittingdale (Conservative, Maldon and East Chelmsford)

I am afraid that I am unable to tell the Minister how his predecessor resolved that dilemma. I think that he took the tapes home, but I would not like to say so without consulting him first.

Things have moved on since then. At that time, Red Hot Dutch attracted a lot of controversy, but I think that it no longer broadcasts. However, on satellite, there are about a dozen channels called Red Hot, including Red Hot Wives and Red Hot Euro. I hasten to add I do not know if they are from the same company because I have never seen them; they are encrypted, and to view them one has to subscribe and get a pin number and so on. As we said this morning, it seems that such material is now more prevalent.

The Government have said in clause 317 that they wish to retain powers to proscribe any foreign services that

''offends against taste and decency'',

or falls into one of the several other categories listed. However, the Bill goes on to say that the section applies to those content services

''provided otherwise than by being broadcast from a satellite''.

That is not so much a loophole and a glaring chasm. I suspect that the truth is that there is not much that the Government can do about channels broadcast from a satellite. Even if the Astra satellite does not carry such channels, it is easy to get satellite dishes that can be moved around until they find a satellite that does.

Although I fully accept that the Government want to prevent the most extreme kinds of material being available, that is increasingly difficult to do for technological reasons. Why does the Minister think that it is necessary to maintain harsh proscriptions for the various delivery mechanisms over which we have control when anyone who really wants to see particular channels will be able to do so without too much difficulty? They will simply subscribe to a service over which the Minister does not have control.

Kim Howells (Labour, Pontypridd)

The clause applies to television and radio licensable content services provided otherwise than by satellite—satellite services are dealt with under section 177 of the 1990 Act—and

''(b) digital television programme services;

(c) digital additional television services . . .

(e) digital sound programme services; and

(f) digital additional sound services''

where they are not licensed in the UK.

The hon. Gentleman will be interested to know that proscription orders have had a significant effect in the past. In the 1990s, for example, five out of six proscribed direct-to-home foreign satellite broadcasters ceased to operate. That was partly, at least, because of the economic effects of the proscription orders.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The clause will not apply to satellite broadcasters. Is there any evidence of terrestrial broadcasters, which presume the clause will cover, having orders issued against them? What scope will the clause have?

Kim Howells (Labour, Pontypridd)

I shall try to explain that. Clause 317 and the following related clauses—that should give a clue to the explanation—close a loophole in the proscription powers given to the Secretary of State in 1990 Act. Under that Act, proscription applies to foreign satellite broadcasters whose services can be received in the United Kingdom without having to be retransmitted through a UK platform. Viewers gain access to such material by subscribing to the relevant services directly and using appropriate decrypting equipment. Since 1990, the development of UK digital multiplexes and the increasing choice offered by UK cable operators means that a foreign broadcaster might want regularly to retransmit foreign-originated pornographic or other unacceptable content.

Clause 317 sets out the criteria against which Ofcom would judge the acceptability of programme content. If it notified the Secretary of State, she would proceed, as now, under the current satellite proscription procedures. The Secretary of State has to have particular regard to the UK's international obligations, primarily under the TVWF directive, where the only exceptions to the duty to allow the unimpeded retransmission of another member state's broadcaster are on the grounds that it carries material seriously harmful to minors or incites hatred on the grounds of race, sex, religion or nationality.

The directive lays down a procedure to be followed that involves consultation with the broadcaster and the national broadcasting authorities of any member state in which the potentially offending service is licensed. If those consultations do not resolve the problem, the Secretary of State may make a proscription order, which is subject to negative resolution procedure. Thereafter, the European Commission must rule on whether the measures are compatible with European Community law. If not, they must be withdrawn forthwith.

The consequences of the proscription order are the subject of the next clause, which is the proper place to deal with them. In the mean time, I commend the clause to the Committee.

Andrew Lansley (Conservative, South Cambridgeshire)

I have been trying to work through the Broadcasting Act 1990, section 177 of which provides a power to the Secretary of State to proscribe foreign satellite services, so I apologise if I have missed something. Does the legislation also contain a provision that extends to Ofcom the same relationship with foreign satellite services as intended under clause 317 in relation to others? Is Ofcom providing the same role in relation to foreign satellite services?

Kim Howells (Labour, Pontypridd)

Indeed, that is my understanding. Additionally, the clause closes a loophole, as I have tried to describe to the Committee.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I do not want to continue the debate for too long, but I want to clarify my understanding. A

cable company in the UK could carry a Dutch channel, for example, and transmit it to viewers in the UK, and as it would not come through a satellite, it would not be banned. If Ofcom ruled against the programming on grounds of taste or decency, the UK company could appeal to the European Commission for unfair restraint under the television without frontiers directive. The Commission's ruling would then be supreme and could overrule Ofcom. Will the Minister confirm that that understanding is correct?

Kim Howells (Labour, Pontypridd)

I confirm that that is my understanding.

Question accordingly agreed to.

Clause 317 ordered to stand part of the Bill.

Clauses 318 to 320 ordered to stand part of the Bill.

Clause 321 - Party political broadcasts

Andrew Lansley (Conservative, South Cambridgeshire)

I beg to move amendment No. 591, in

clause 321, page 277, line 9, at end insert—

'(1A) The regulatory regime for every television licensable content service licence and every radio licensable content service licence shall include—

(a) conditions requiring the inclusion in that service of party political broadcasts and of referendum campaign broadcasts, if so prescribed under this section; and

(b) conditions requiring that licence holder to observe such rules with respect to party political broadcasts and referendum campaign broadcasts as may be made by OFCOM.'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following:

Amendment No. 592, in

clause 321, page 277, line 13, at end insert

', having regard to the number of seats being contested by each party in relation to the number of seats being contested in the election;'.

Amendment No. 593, in

clause 321, page 277, line 15, after 'broadcasts', insert

', having regard to levels of proven electoral support;'.

Amendment No. 594, in

clause 321, page 277, line 18, at end insert—

'(2A) The rules made by OFCOM for the purposes of this section may make further provision prescribing which channel and service, including a relevant service of the BBC, is to be required to include party political broadcasts or referendum campaign broadcasts as appropriate; and such provision may be made by reference to such thresholds, based on calculation of audience share, as OFCOM may prescribe, having regard to the views expressed—

(a) by the Electoral Commission;

(b) by licensed public service channel providers;

(c) by holders of licences for a television or radio licensable content service in respect of which an obligation to include party political broadcasts or referendum campaign broadcasts is proposed; or

(d) by the BBC.'.

Amendment No. 590, in

schedule 12, page 387, line 18, at end insert—

'2A (1) It shall be the duty of the BBC to include—

(a) party political broadcasts, and

(b) referendum campaign broadcasts

in each relevant service.

(2) In meeting its duty, the BBC shall have regard to—

(a) any views expressed for the purpose of this paragraph by the Electoral Commission; and

(b) any rules made by OFCOM under section 321.

(3) The BBC's duty under this paragraph is to have effect subject to sections 37 and 127 of the Political Parties, Elections and Referendums Act 2000 (c.41) (only registered parties and designated organisations to be entitled to party political broadcasts or referendum campaign broadcasts).

(4) In this paragraph—

''relevant services'' means those television and radio services which are prescribed as such in accordance with the provisions of section 321(2A),

''designated organisation'', in relation to a referendum, means a person or body designated by the Electoral Commission under section 108 of the Political Parties, Elections and Referendums Act 2000 in respect of that referendum,

''referendum campaign broadcast'' has the meaning given by section 127 of that Act.'.

Andrew Lansley (Conservative, South Cambridgeshire)

My hon. Friend the Member for Maldon and East Chelmsford took us into the human rights aspects of the ban on political advertising. The amendments substantially reflect the recommendations of a recent report by the Electoral Commission on the subject of party political broadcasts. It is useful just to make the connection. The ECHR case, to which the Minister and my hon. Friend referred, involved a complete ban on political advertising. It was not like the ban in the United Kingdom where we ban political advertising but political parties have what would be described as free and unmediated access, especially at election times, to broadcast media for political purposes.

The two cases would not necessarily be comparable, which is why it does not necessarily follow that the ECHR decision would be carried through in the same light here. Indeed, the Electoral Commission takes the view that it is possible that our current system would survive scrutiny if it were challenged in the same way as the previous ECHR case to which my hon. Friend referred. The report says:

''Any restriction on freedom of expression must be justified under Article 10(2) of the ECHR. Not only must the restriction be defensible in substance, but there is also a requirement that it be 'prescribed by law'. If the regime of free and unmediated broadcasts is to be robust as a counterbalance to the ban on paid political advertising, it should satisfy the same requirement. We doubt whether the existing arrangements for free broadcasts are sufficiently clear, formalised and predictable, as expressed in law, to satisfy this requirement as it has now been elaborated in the Strasbourg case law.''

The report then makes a number of recommendations about party political broadcasts that would make matters clearer and more predictable. Prescribing it in law would provide a much more certain remedy against the risk of a challenge to a ban on political advertising in the United Kingdom. We can see the merit in using the first available legislative vehicle to try to meet the Electoral Commission's recommendations. The amendments are substantially designed for that purpose, but it may be helpful if I quickly explain what they do and do not do.

One of the Electoral Commission's proposals was that the current broadcasters committee should be the

subject of a statutory duty on Ofcom to include the establishment of a committee composed of the broadcasters. As the Minister will recall, we have discussed the extent to which Ofcom should establish committees, and if we go down the path of requiring such a committee in statute we set up a new non-departmental public body with all that that implies. There is a power under the Ofcom Act for Ofcom to set up committees, so there would be no difficulty about doing this. I hope that the Electoral Commission would accept that there is no necessity for such a statutory duty.

I come now to the substantive recommendations. The report says:

''We recommend that regulation of the obligation to carry PPBs should be the same for all broadcasters, and that the BBC and S4C be brought within the scope of Ofcom for this purpose.''

I have not quite carried that into the amendment. Amendment No. 594 is designed to allow Ofcom to determine what are the relevant services of the BBC. To that extent, the discretion that is currently given to the BBC under the agreement to determine what the services are, in practice in line with the discussions in the broadcasting committee, would be removed from the governors and would subject to a decision or rules made by Ofcom.

Amendment No. 590, which relates to schedule 12, would place the obligation on the BBC and set out its requirements in respect of relevant services. As one would expect, it would do no more than apply the same regime to the BBC as would apply to the independent television companies. The amendment would not exactly allow Ofcom to set out these matters. It would give Ofcom greater power over the BBC and S4C services that carried party political broadcasts, but it would leave the BBC and the Welsh authority some discretion as to how they carried that forward.

Amendments Nos. 592 and 593 directly reflect specific language in the Electoral Commission report:

''We recommend that the legislation be strengthened to include criteria to which the regulator—''

Ofcom for these purposes—

''should have regard in making rules regarding qualification for PPBs and length and frequency of PPBs.''

That is the qualification whereby political parties should have party political broadcasts.

Amendment No. 592 reflects the Electoral Commission's suggestion about

''having regard to the number of seats being contested''.

Amendment No. 593 reflects its suggestion about

''having regard to levels of proven electoral support.''

Simon Thomas (Plaid Cymru, Ceredigion)

I accept the hon. Gentleman's point that a political party must pass thresholds, but will he accept that the current arrangements, some of which I understand are voluntary, allow that issue to be dealt with differently in, for example, Wales, Scotland and Northern Ireland? A party such as mine, which stands for election only in Wales, can therefore have a party political broadcast in Wales and nowhere else. The situation is similar for the Ulster Unionists in Northern Ireland and for Tommy Sheridan in

Scotland. It is important that the hon. Gentleman take that on board. We should not pass any amendments that would raise the threshold for political parties that are eligible within regions of the United Kingdom.

Andrew Lansley (Conservative, South Cambridgeshire)

I am grateful to the hon. Gentleman and I think that I can satisfy him on that point. I see nothing in amendment No. 592 that would preclude Ofcom having regard to the number of seats being contested by a party in Wales in an election in Wales. This is a competent amendment from the hon. Gentleman's point of view.

Amendment No. 591 and aspects of amendment No. 594 are also designed to reflect the Electoral Commission report:

''We consider that in the interests of reaching as wide a spectrum of electors as possible, PPBs should not be restricted to a narrow type of broadcaster. We recommend that any TV or radio channel which achieves prescribed audience reach and share thresholds should be required to include PPBs in their schedules. The requirement should apply to all UK broadcast channels for all major elections.''

Hon. Members will observe that I have not attempted to reflect precisely that terminology in amendment No. 594. I have left it more open by talking about the prescription of relevant services or which services and channels should carry party political broadcasts

''by reference to . . . thresholds, based on calculation of audience share''.

I have not reflected other thoughts that one might have. It is reasonable to argue that this should not simply be a matter of audience share. The questions that the Electoral Commission discusses in relation to the character of a particular channel, or the extent to which a channel is not a UK channel but has its origin elsewhere, might indicate that there would be different thresholds for the inclusion of party political broadcasts on some channels as compared to others. Audience share would not necessarily be the only consideration. Although I am trying to reflect the Electoral Commission's view, I must confess that I am not sure that the commission itself has quite got to the point that we need to reach.

Amendment No. 591 has the commendable purpose sought by the Electoral Commission of making it possible for the inclusion of party political broadcasts to be required on services other than public service broadcasterson all licensed television or radio services.

I have explained the purpose of the amendments, but they were tabled because of the Electoral Commission's approach to the Government and the Committee, which was very late in the day. I recognise that there is a debate to be had, not least in relation to the question of a threshold in audience share, and the difficulties associated with getting the drafting right. However, by tabling the amendments on the same day that I received the Electoral Commission's report, I hope to demonstrate that it is not inconceivable for us to take action during the passage of the Bill to achieve the commission's recommendations. There would be little point in us having had an Electoral Commission for the past couple of years if we did not take early and

substantial notice of its recommendations and try to include them in the Bill at the first available moment.

Kim Howells (Labour, Pontypridd)

I congratulate the hon. Gentleman on basing his speech on material that arrived very late. The Electoral Commission's recommendations comprise an impressive body of work that we will take seriously.

Hon. Members will be aware that the question of the allocation of broadcasting time for political broadcasts is always a matter of lively debate. Nevertheless, the arrangements have proved reasonably successful for almost 80 years. The hon. Member for Ceredigion intervened on the hon. Member for South Cambridgeshire to point out that the arrangements can sometimes be complicated, which is quite right. Any changes need careful consideration.

I am sure that the hon. Member for South Cambridgeshire will correct me if I am wrong, but the amendments appear to have three main effects. They would bind the BBC more closely to Ofcom's policies in relation to the provision of political broadcasts. As the hon. Gentleman knows, that would be contrary to our general policies for the BBC, whereby the relationship between the BBC and Ofcom is determined by provision in the BBC agreement. Specifically, the BBC's governors should have responsibility for maintaining the BBC's reputation for impartiality. Whatever our individual day-to-day irritations related to that impartiality, it is internationally recognised as having been second to none over the past century.

The BBC is already required to have regard to the views of the Electoral Commission in determining its policies for political broadcasts. Similarly, Ofcom is required to have regard to the views of the commission when making rules under clause 321. Despite the hon. Gentleman's comments, I am not convinced of the need to require the BBC by statute to also have regard to the rules of Ofcom.

We specifically provide in the agreement that the BBC shall have an obligation to include political broadcasts in future. It is therefore right that the BBC and Ofcom should co-operate closely on the matter, just as the BBC does with the present regulators. However, the subject is so important to our democracy that a range of views and judgments may contribute to detailed decisions.

The amendments would also extend the obligation to carry political broadcasts beyond public service broadcasters to cable and satellite broadcasters, but curiously, unless the hon. Gentleman corrects me, not to digital terrestrial broadcasters. The amendments would establish in statute certain criteria for determining which parties should be offered broadcasts and the length and frequency of those broadcasts. The criteria already form part of the policies of the BBC, ITC and Radio Authority. There should be a very good reason for providing a statutory basis, which has not been needed before, and for limiting the bodies' flexibility for responding to individual and often fast-moving circumstances in

ways that ensure that they meet their overriding obligations for impartiality.

Several arguments for placing the criteria on a firmer statutory footing were put forward in the recommendations on party political broadcasts that were published by the Electoral Commission as recently as 14 January, as the hon. Gentleman told us. I welcome the report, which gives a detailed analysis of arrangements for party political broadcasts. The Government take the recommendations seriously and will want to consider them fully.

We shall want to examine in greater detail the implications of the recommendations and the extent to which they would secure a more fair, robust and defensible element of our democratic process. We shall want to bring forward our detailed proposals and test them in consultation. I reassure the hon. Member for South Cambridgeshire that we shall bring any proposals for legislative change before the House.

We do not believe that we should adopt the amendments or that the major changes proposed by the Electoral Commission should be adopted into law without proper deliberation and Government consultation. There is no immediate urgency because terrestrial channels still attain an audience share of about 80 per cent. On that basis, I hope that the hon. Gentleman will withdraw the amendment.

Andrew Lansley (Conservative, South Cambridgeshire)

I do not want to delay the Committee and I entirely take the Minister's point. He is probably right that I did not include digital terrestrial, but I am content with that because, as I freely admitted, I was trying to demonstrate that we should respond to the Electoral Commission report in substance through this Bill rather than leaving things alone and hoping that everything will work out in the end.

I am especially content about the situation with regard to the BBC. There is a point to trying to include the BBC but if we retain the manner in which the BBC legislated for and regulated, it would be consistent for party political broadcasts to travel along with that.

I hope that the Government will find time to undertake work to reflect the Electoral Commission's amendments either on Report or in another place. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 321 ordered to stand part of the Bill.

Clause 322 - Retention and production of recordings

John Whittingdale (Conservative, Maldon and East Chelmsford)

I beg to move amendment No. 286, in

clause 322, page 277, line 41, after 'programme', insert

'(including any subtitling or other services relating that programme)'.

The clause addresses the requirement to retain recordings in order to allow adjudication on a future complaint, which is sensible. The amendment is very simple and would allow subtitling or other services to be retained so that they could be viewed. Technology

is changing so fast that many associated services, such as interactivity, may be provided with linear broadcasts. It is practically and economically difficult to obtain a recording in sound and vision of every possible combination of viewer experience, which is arguably required under the present licence. The obligation probably needs updating so that it is not to retain a recording of a particular programme including all possible non-linear elements in sound and vision, but to retain a recording of a linear programme in sound and vision and to retain records of all other non-linear elements in an appropriate form. That would allow a broadcaster to reproduce any element of what a viewer had seen on demand.

Kim Howells (Labour, Pontypridd)

Programme-related services accessible by audiences will usually form part of the programme material that Ofcom would expect to be retained, and clause 322(1) refers to the service licensed by the Broadcasting Act licence. We agree that it might be necessary to include subtitling because one could imagine that offence could be caused by an error of the subtitling of an inoffensive audio stream. However, the current provisions provide for that as subtitling is clearly part of the programme. We do not want to extend the obligation to programme-related material that is not part of the licensed service. Indeed, other related services might fall outside the licensable service—for example, through an internet connection—and it would not be appropriate to require them to be retained.

I hope that the hon. Gentleman will agree that the amendment is unnecessary and, to the extent that it would have any effect, it could only encourage Ofcom to require the retention of all programme-related material for the same period as the core programme material, regardless of the value for regulatory purposes or costs to licensees. On that basis, I hope that he will withdraw the amendment.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I am grateful for the Minister's comments. He has dealt with my main concerns. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Simon Thomas (Plaid Cymru, Ceredigion)

I beg to move amendment No. 192, in

clause 322, page 278, line 6, at end insert—

'(d) It shall be allowable for a service provider to enter into a contractual obligation with a third party in pursuance of compliance with paragraph (a) above.

The amendment would ensure that it was permissible for a broadcaster to make arrangements for the retention of its programmes by agreement with a third party. In its early days, S4C was a bit of a shoestring operation and did not have facilities to retain its own programme logs, so it sent them to the National Library of Wales in Aberystwyth. I know that because I catalogued them as they came in. I am pleased that that arrangement is still continuing. S4C's output is available in the library, which means that members of the public, and not only Ofcom, can see in the interests of research, or for other reasons, a programme that has been broadcast by S4C.

Legal documents are often not retained by legal practices, but are sent to a third party for safe storage. It is important that data, particularly old-fashioned

tape, is stored properly. We use copper rooms to protect such data from electro-magnetic interference. The amendment would make sure that a broadcaster who enters into a relationship with S4C or other channels and uses a third party to retain copies of its programmes remains within the law. In that way, there will not have to be physical retention of the programmes either within the curtilage of the broadcaster or his staff, so long as the programmes are retained in such a way that they can be made available to Ofcom for any purpose or investigation. I hope that the Minister can give us the appropriate assurances.

Kim Howells (Labour, Pontypridd)

As I have made clear in relation to functions of Ofcom that it might contract out under clause 1, it remains responsible for the effective discharge of the function, even though it may have contracted with another body to undertake the function on its behalf. The hon. Member for Ceredigion referred to the National Library of Wales at Aberystwyth and its copper rooms. Ofcom may look to such a body to undertake such functions on its behalf.

Similarly, a broadcaster or licensed programme service provider under the Bill can discharge through a contracted third party the requirement on it to retain recordings of programmes to facilitate Ofcom's monitoring for its regulatory purposes. The amendment is not needed. It does no more than call into question whether in other circumstances, when there is no specific provision, functions can be contracted out to third parties. I thought that the hon. Gentleman would table an amendment—God knows, I should not be drawing attention to the matter—on the length of time that it sometimes takes for a tape or other form of recording to be handed over. From matters in which I have been involved, I know that that can be a problem. I have no doubt that he will raise such issues on Report. In the meantime, I hope that he will withdraw the amendment.

Simon Thomas (Plaid Cymru, Ceredigion)

I thank the Minister for being extraordinarily helpful. He has clarified the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I beg to move amendment No. 633, in

clause 322, page 278, line 10, leave out 'ninety' and insert 'forty two'.

The amendment deals with the time for which records must be retained by broadcasters. There is no reason for having a difference between the period for which television broadcasts are retained and the period for which radio broadcasts are retained. Previously, the time for which records of television broadcasts had to be kept was increased from 60 days to 90 days. That was to satisfy the Broadcasting Standards Commission, which argued that its smaller staff meant that it could not deal with complaints as quickly as the ITC. That will not be the case with Ofcom so the historical anomaly is no longer justified. The time for retaining a television broadcast should be

the same as for a radio broadcast. We suggest that that time should be 42 days.

Kim Howells (Labour, Pontypridd)

For cable and satellite channels, the ITC requires tapes to be kept for only 60 days. For higher profile and more popular public service channels, the ITC retains the 90-day requirement. The 42-day limit applies to radio, but that reflects the different nature of radio, which tends to operate on a rolling and generally ephemeral basis, rather than by means of programmes that are likely to be repeated or made more widely available.

Occasionally, television complaints arise during the period between 42 and 90 days. That is more likely to happen with complaints to do with unfairness or unwarranted invasions of privacy. In such cases, the aggrieved party may not have seen the programme. It may therefore be a little time before they are alerted to the problem by acquaintances or through press coverage.

There are advantages in retaining flexibility. As hon. Members will be aware, we expect broadcasters to handle the majority of complaints while Ofcom concentrates on serious breaches where immediate action may be required. The complaints that Ofcom deals with are more likely than the others to arise in the period between 42 and 90 days. The experience of the ITC is that most complaints that arise during that period are because the complainant is dissatisfied with a broadcaster's handling of the complaint.

The longer period provides useful flexibility when dealing with infrequently monitored foreign language channels that are broadcast from the United Kingdom. Ofcom may have to require such channels to keep tapes for longer than 42 days.

With those reassurances, I hope that the hon. Gentleman will withdraw his amendment.

John Whittingdale (Conservative, Maldon and East Chelmsford)

I shall resist the temptation to enter into a debate on the ephemeral nature of radio. However, I am grateful to the Minister for explaining why the Government believe that it is necessary to have a differentiation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Kim Howells (Labour, Pontypridd)

I beg to move amendment No. 609, in

clause 322, page 278, line 16, leave out 'Chapter' and insert 'Part'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss Government amendments Nos. 610, 612, 611 and 613 to 617.

Kim Howells (Labour, Pontypridd)

As I explained in the letter that I sent to hon. Members of the Committee, these amendments correct an omission in the Bill relating to the provisions that roll forward current legislation for the recording of broadcasts by the ITC, Radio Authority and Broadcasting Standards Commission, for the supervision of programmes, and for the retention of recordings by broadcasters, in order that the regulators are able to undertake their regulatory functions.

Amendment agreed to.

Amendment made: No. 610, in

clause 322, page 278, line 17, leave out 'Chapter' and insert 'Part'.—[Dr. Howells.]

Clause 322, as amended, ordered to stand part of the Bill.

Clauses 323 and 324 ordered to stand part of the Bill.

Clause 325 - Promotion of equal opportunities and training

Andrew Robathan (Conservative, Blaby)

I beg to move amendment No. 634, in

clause 325, page 279, line 3, leave out subsections (1) and (2).

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following:

Amendment No. 635, in

clause 325, page 280, line 10, leave out 'to (3)'.

Amendment No. 636, in

clause 325, page 280, line 23, leave out '(6)' and insert '(4)'.

Amendment No. 637, in

clause 325, page 280, leave out lines 34 to 38.

Amendment No. 638, in

clause 325, page 280, line 43, leave out paragraph (a).

Amendment No. 639, in

clause 325, page 280, line 45, leave out '(7)' and insert '(5)'.

Amendment No. 640, in

clause 325, page 280, line 46, leave out '(8)' and insert '(6)'.

Andrew Robathan (Conservative, Blaby)

Clause 325 deals with the worthy aim of the promotion of equal opportunities and training. I am sure that no one would disagree with the spirit of the clause. However, it duplicates other legislation and places another unnecessary burden on business.

Our amendments would delete equal opportunity requirements related to sex, race and disability, because there is a comprehensive set of regulations covering those requirements, which must, under UK law, be met by every employer in the UK. It is therefore unclear why the communications sector should be subject to additional primary legislation on that matter, nor why a Bill that is claimed to be de minimis in approach should seek to duplicate provisions that already exist in common law.

I shall list some of the legislation that covers equal opportunities: the Employment Act 2002; the Maternity and Parental Leave (Amendment) Regulations 2002; the Statutory Paternity Pay and Statutory Adoption Pay (Weekly Rates) Regulations 2002; the Paternity and Adoption Leave Regulations 2002; the Sex Discrimination Act 1975, as amended in 2002; the Race Relations Act (Amendment) 2000; the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002; the Flexible Working (Procedural Requirements) Regulations 2002; the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000; and the Working Time Regulations 1998 as amended in 2002. I have left out one or two, in the interests of brevity.

Companies want to get on with their business and to thrive for our benefit and for that of the economy in general. They do not want to spend their time dealing with red tape and regulations. I suggest that the clause is unnecessary, which is why I have tabled the amendment.

The rest of the debate is in Hansard.