Office of Communications Bill [Lords]

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Paul Farrelly: I congratulate the hon. Gentleman. He has so anaesthetised me that I have completely forgotten what I was going to say.

Michael Fabricant: I did not mean to cause the hon. Gentleman embarrassment, although the note that he passed me earlier almost caused me to collapse. However, that is another matter.

I just do not understand what subsection (5) means. At best it is redundant and should be deleted. At worst, it is a meaningless subsection. I sit down with great anticipation and hope that the Minister will explain, when he gets the chance—I know that my hon. Friends have a great deal to say on the amendments—what it adds to the Bill. I do not think that it adds anything.

Mr. Robertson: I rise to make a brief contribution. I cannot follow my hon. Friend in his colour and extravagance, and his detailed knowledge of what we are discussing is to be admired; especially when he has just received such terrible news, which I have just seen, and when he had such a good night last night.

I, too, am rather confused by clause 4. At the risk of becoming monotonous through repetition, I regret that the Government have tried to do something that we do not disagree with as a whole in two Bills rather than in one. That adds to the potential for confusion and the potential to fail to set up Ofcom in the way that we want.

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I am concerned about the continuing absence of any guarantee about when the main communications Bill will be introduced. I mention that again because it leaves a big gap. If we go down the route suggested in clause 4, whereby existing regulators must do this and that, and Ofcom must do this but not that, and so on and so forth, and if there is a long time until the main Bill is published, we shall run into difficulties, especially in an industry that changes so quickly.

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I am confused. Clause 2(1) refers to

    ''the implementation of, or for securing the modification of, any relevant proposals about the regulation of communications.''

However, clause 4(1)(c) seems to give the same requirements and powers to the existing regulators. Is there potential for conflict? My hon. Friend the Member for Lichfield, who has temporarily left his place—I had better not go into the detailed reasons for that—mentioned the possibility of the existing regulators being muzzled. I do not know whether the provisions will muzzle them or do the opposite—give them the powers to determine the shape of Ofcom. I have concerns about that.

Clause 4—especially subsection 1(b), (c) and (d) and subsection (5)—seems to pass some duties from the existing regulators to Ofcom, but to keep others. I detect potential for great confusion, which I do not want. I want a very smooth transition. The White Paper correctly identified that the staffing of Ofcom and the quality of staff would be all-important. If there is to be a protracted period of transition, any confusion will serve only to undermine the position, and perhaps the employment prospects, of current staff.

It is important that the Government make clear the time scale, which I have mentioned before. They must also clear up some of the confusion that, to my mind, surrounds clause 4, about which my hon. Friends the Members for Vale of York and for Lichfield spoke at much greater length and with more eloquence than I have sought to do.

Dr. Howells: Hon. Members have expressed concern today and previously about the Bill's proposal that Ofcom and the existing regulators must work closely together to ensure a smooth and speedy transition to the new regulatory regime. I agree that it is essential that the existing regulators and Ofcom co-operate closely if the transition from the current arrangements to the new regime is to be completed smoothly and efficiently, without disruption to the industry or consumers. The purpose of clause 4 is to ensure just that. The clause is essential to ensure that the existing regulators have the requisite powers and duties to facilitate the implementation of relevant proposals, and that they can co-operate with Ofcom so that it can carry out its initial and future functions effectively.

Turning to amendment No. 43, Ofcom will be preparing to take on the responsibilities of the existing regulators and their associated functions, so it is vital that all the organisations work closely together to ensure that nothing they do unintentionally creates difficulties for anyone else. The purpose of clause 4(1)(b) is to require the regulators in carrying out their functions to secure that Ofcom will also be able to carry out its functions effectively.

That need for co-operation extends first to Ofcom's initial function of preparation, and then to ensuring that it will be in a position to carry out its future regulatory functions. Hon. Members will recall that clause 2(2) places Ofcom under a duty to co-operate with the existing regulators and not to interfere with their current work. The two provisions are intended to

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ensure that the regulators and Ofcom co-operate closely. Clause 4(1)(b) is an entirely sensible provision and it should be retained.

Moving on to amendment 63, in addition to the obligation placed on the existing regulators in clause 4(1)(a) to do everything that is necessary for Ofcom to prepare itself, clause 4(1)(c) enables those regulators to do such other things as they consider appropriate to implement relevant proposals or to secure their modification. It will be for the regulators to decide what other things it might be appropriate for them to do in this context. It is entirely for the regulators to decide, and Ofcom will not be able to force them to do anything they do not want to do.

In addition, just as it is vital that Ofcom should be able to secure the modification of relevant proposals, it is important that the existing regulators should be able to express views on the relevant proposals and, if they consider it necessary, to seek to secure their modification. Clause 4(1)(c) allows them to do that and should therefore be retained.

The hon. Member for Vale of York raised the question of amendment No. 64. Hon. Members will be aware that because the regulators are established and governed by statute, they are limited to doing only what statute permits. The purpose of the provision in clause 4(1)(d) is to empower the existing regulators, in addition to what they can already do under statute, to carry out their functions in a manner that promotes the interests of Ofcom. The provision provides the regulators with further flexibility to help Ofcom in its preparations. It is therefore essential to allow the co-operation that we all desire to take place.

Miss McIntosh: My hon. Friend the Member for Lichfield and I asked about the expression,

    ''promotes the interests of Ofcom''.

Should the purpose not be to promote the interests of the industry that Ofcom is to regulate? It is a particularly unfortunate turn of phrase.

Dr. Howells: I thank the hon. Lady for giving me the opportunity to tell her that the purpose is the promotion of the whole industry. She will recall, because I have told her 20 or 30 times, that the Bill is about setting up Ofcom. The sole purpose of the provisions in clause 4(5)—perhaps this will be of help to the hon. Lady—is to make clear that the new functions that the existing regulators will have as a result of the provisions in clause 4 are in addition to, and will not be prejudicial to, any existing powers that have been conferred by other Acts.

Michael Fabricant: Will the Minister give way?

Dr. Howells: No.

That provision ensures that there will be no conflict between the existing regulators' current functions and those that will be conferred on them. Amendment No. 65 is therefore not needed.

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Miss McIntosh: I would not like to jeopardise the possibility of a short debate on clause 4 stand part, so I would like all four amendments to be voted for en bloc.

The Chairman: The vote will be on amendment No. 43, not on any others en bloc.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 12.

Division No. 7]

AYES
Fabricant, Michael
McIntosh, Miss Anne
Robertson, Mr. Laurence
Taylor, Mr. Ian
Watkinson, Angela

NOES
Farrelly, Paul
Grogan, Mr. John
Harvey, Nick
Howells, Dr. Kim
Jackson, Glenda
Kemp, Mr. Fraser
Linton, Martin
Miller, Mr. Andrew
Pearson, Mr. Ian
Picking, Anne
White, Brian
Wyatt, Derek

Question accordingly negatived.

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

Miss McIntosh: I am most grateful for the opportunity to debate clause 4(1). There is concern in the industry that will be regulated by the new merged body about how the subsection will be applied. The White Paper provides some assistance, stating on page 85 in paragraph 9.4.2:

    ''Within the limits set by existing legislation, we also see scope for the existing regulators to prepare for this transition by continuing to develop greater co-ordination and integration of their operations and greater use of common principles applied sensitively to different sectors. This will add to the progress already being made in tackling the problems of double jeopardy and inconsistent outcomes which were raised in the consultation, through mechanisms such as the current formal concordat between the BSC and the Radio Authority.''

When responding to the previous debate, the Minister said that the existing regulators and Ofcom will co-operate closely. Those who are scrutinising the Bill should know the form and structure of that co-operation. There is some difference in that one of the existing regulators—the Radio Authority, I think—operates not as an independent regulator but as part of the Department of Trade and Industry, and is therefore a special case.

Given that a whole chapter, albeit a short one, of the White Paper dwells on the process of implementation, I cannot grasp why the Government did not take the opportunity presented by the Bill to describe the form of the discussions and consultations. The Minister commented on that only in response to our probing amendments. The White Paper states that the Government

    ''will work with the existing regulators to ensure a smooth transition to the new regulatory regime. We will set up pathfinder groups''—

that is not such bad news as that received by my hon. Friend the Member for Lichfield in a written note—

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    ''involving all the regulators at official level, building on the current arrangements for co-ordinating regulatory work. In preparing for that transition''

the Government will

    ''expect the Boards and staff of the bodies to continue to develop greater co-ordination and integration of their operations and to carry out their responsibilities in a way that will help deliver the goals we have set out.''

I accept that we not here to discuss the goals that the Government set out in the White Paper. That is a subject for debate by those hon. Members who are fortunate enough to serve on the Committee that considers the communications Bill. However, the Minister has not been called to account through the four probing amendments to the clause, so we want to take the opportunity afforded by this short clause stand part debate to establish precisely the form that the co-ordination of the existing regulators will take. In exercising their functions, will they have a duty to do everything necessary to facilitate the implementation of any relevant proposals on the regulation of communications?

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That is a key point, and once the Bill leaves Committee and proceeds to the Floor of the House the amount of time in which to debate it will be even more limited. As chapter 9 of the White Paper says,

    ''The skills and experience of staff will be essential to ensure a smooth transition from the current arrangements until the new regulator is established and beyond.''

At this key transitional stage, we need to establish from where the staff who are to man Ofcom will come. Will they purely be staff on secondment? That is relevant to the co-ordination that the Minister mentioned. The White Paper continues:

    ''The new structure will not work without good quality people. Staff at the current regulatory bodies will be fully involved in considering the issues relevant to them and we shall ensure that they are kept fully informed.''

That may be so, but the Government will not keep us—parliamentarians—fully informed.

The White Paper says that:

    ''The pathfinder groups will examine staffing and other transitional issues and, in keeping with our commitment to an inclusive approach, will maintain close contact with industry, representatives of the regulatory workforce and citizen and consumer representatives.''

Clause 4(1) gives the Government a unique opportunity to address precisely what consultations will take place and what Ofcom's staff representation will be.

We have had lengthy discussions about whether both Houses of Parliament should be involved in the appointment of board members. It is not only disappointing, but mysterious, curious and even unacceptable that the subsection fails to address the issues that are set out in some detail in the White Paper. I urge the Government to take the opportunity to rectify that omission.

 
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Prepared 5 February 2002