Joint Committee on Draft Communications Bill Report


25 July 2002

By the Joint Committee on the Draft Communications Bill




1. Communications and the media and the way in which they are regulated have a profound effect on our democracy, our economy, our culture, our entertainment and our education - in short, on the way we live our lives. The Government has decided radically to reform the legislative framework for the regulation of electronic communications. It is right that Parliament should be as fully engaged as possible in that process of reform - to ensure that legislative change reflects the realities and possibilities of changing technologies, promotes rather than inhibits dynamic and competitive markets and enhances rather than diminishes the contribution that electronic communications and the media make to the richness and diversity of public debate, culture, entertainment and education. This is the challenge that we have set ourselves in this Report and it is the challenge that Parliament as a whole will face in considering the legislation that will follow.

2. The draft Communications Bill we are considering arises from an extended process of deliberation and consultation. The Government, having initially decided to follow "an evolutionary path" in its Green Paper of July 1998, sought to reflect in its White Paper published on 12 December 2000 its belief that "the communications revolution has arrived".[2] The Government set itself three objectives for reform:

  • to make the United Kingdom "home to the most dynamic and competitive communications and media market in the world";
  • to "ensure universal access to a choice of diverse services of the highest quality"; and
  • to "ensure that citizens and consumers are safeguarded."[3]

3. The Government proposed to meet these objectives through the creation of a new single regulator for the electronic communications sector - the Office of Communications (OFCOM) - replacing the Office of Telecommunications (Oftel), the Independent Television Commission (ITC), the Broadcasting Standards Commission (BSC), the Radio Authority and the Radiocommunications Agency and combining sector-specific powers for the regulation of electronic communications, competition law powers for economic regulation, and licensing powers in respect of radio and television.

4. At the time of the White Paper there was an expectation of legislation to give effect to the proposals "at an early stage in a new Parliament".[4] Instead, the Queen's Speech at the start of the present Parliament promised the publication of a draft Communications Bill, together with a short enabling Bill to provide a statutory basis for OFCOM and to facilitate co-operation between it and the existing regulators. At an early stage in proceedings on that enabling Bill, the Government announced its support for the establishment of a Joint Committee to consider the draft Communications Bill.[5] The House of Lords voted to establish such a Committee to report on the draft Communications Bill on 29 April 2002; the House of Commons agreed and nominated its members after a short debate on 1 May; the House of Lords nominated its members on 2 May.[6] Members of the Committee, and their declared interests, are listed in Annex 1.

5. The draft Communications Bill, comprising 259 Clauses and 13 Schedules, was published on 7 May 2002.[7] The Government published three accompanying documents at the same time - Explanatory Notes to the draft Bill, a Policy document outlining proposals in the draft Bill and related policy decisions to which effect was not given in the draft Bill, and a Regulatory Impact Assessment for the draft Bill.[8] On 31 May the Government published eight further Clauses and an additional Schedule proposing to give effect to some policy proposals announced on 7 May relating to media ownership.[9] On the same day the Government also published proposals relating to amendments to the Agreement between the Secretary of State for Culture, Media and Sport and the British Broadcasting Corporation (BBC) that would govern the relationship between OFCOM and the BBC if the provisions of Clause 144 of the draft Bill had effect.[10] On 22 July the Government published a further 36 pages of the draft Bill giving effect to its policy relating to "must-carry"/ "must distribute"/ "must offer". These arrived too late for us to give any consideration to them; our analysis of these issues in this Report relies upon the policy account provided to us by the Government on 3 July rather than on examination of the draft Clauses.

6. We held our first meeting on 9 May. After our initial deliberative meetings, we issued a call for evidence seeking to identify the main themes for our inquiry and requesting written evidence by 10 June.[11] We received over 200 pieces of written evidence of immense value. Most of this evidence is being published in Volume II of this Report; unpublished evidence has been made available for public inspection; lists of all published and unpublished memoranda and information on how unpublished evidence may be inspected are given in Volume II. We took oral evidence at ten sessions from a wide range of organisations and individuals, concluding on 8 July with evidence from the Rt Hon Patricia Hewitt MP, Secretary for State for Trade and Industry, and the Rt Hon Tessa Jowell MP, Secretary of State for Culture, Media and Sport. Due to an innovative experiment by the parliamentary broadcasting authorities, all our evidence sessions were webcast live.

7. In addition to formal evidence-taking, we sought to gather views on the provisions of the draft Bill in more informal and original ways. We held two early private discussions with a range of experts on aspects of the technological background to the draft Bill and on key policy issues. We held two breakfast seminars with outside participation: the first focused on the regulatory challenges for OFCOM and the second on the opportunities and risks associated with foreign investment in British broadcasting; accounts of issues arising from those seminars are published as Annexes to this Report.[12] In addition, we decided to commission an online forum under the auspices of the Hansard Society and the Parliamentary Office of Science and Technology to accompany our formal evidence-taking. By doing so, we sought to encourage participation from a broader range of people in the pre-legislative scrutiny process and the development of a genuine dialogue about the provisions of the draft Bill. We received regular briefings on the progress of the forum at our meetings and we have sought to integrate in this Report the issues arising from that process as well as from our formal evidence-taking. The forum attracted nearly 400 registered participants; a review of the forum is published as Annex 5 to this Report.

8. The draft Bill includes extensive delegations of powers, primarily to the Secretaries of State, but also to OFCOM. We received a helpful paper from the House of Lords Delegated Powers and Regulatory Reform Committee, based in part on information provided to it by the Government on delegated powers proposed in the draft Bill as published on 7 May (although not on subsequently published draft Clauses and Schedules). At some points, the issues raised by the Delegated Powers and Regulatory Reform Committee overlap with those considered by us and some of our recommendations arise in part from its work. Some others examined by that Committee, however, are not referred to in our Report. We recommend that, in responding to our Report, the Government respond also to the points made by the Delegated Powers and Regulatory Reform Committee.

9. We appointed four specialist advisers to give us the benefit of their experience and expertise of the communications sector - Sir Bryan Carsberg, a former Director-General of Telecommunications and Director-General of Fair Trading, Paula Carter, a freelance broadcaster, Phil Kirby, formerly Public Policy Director of NTL, and Professor Tom Gibbons, Professor of Law at the University of Manchester. We also commissioned Peter Kiddle to prepare a paper on some radio and radio spectrum issues, which appears as Annex 8 to this Report. We are most grateful to our specialist advisers for their invaluable contribution to our work and to those many others who assisted the Committee in the course of our inquiry.

10. Under the orders passed by the two Houses, we were required to report no later than 7 August. This has meant that our inquiry has been a race against time. The constraints of our timetable have meant that we have taken evidence from fewer witnesses and for shorter times than we would have wished, and that we have not had the opportunity to explore all of the avenues opened up by the process of inquiry. This is a matter of considerable concern and we return to the matter in our final chapter.

11. It is evident to us that those within the Government responsible for preparing the draft Bill did much effective groundwork, consulting widely with industry and consumers. This has made our task considerably easier. In consequence of the tight timetable, our Report is not a comprehensive analysis of all aspects of the draft Bill. We have not examined some of its provisions which, whilst important, have not attracted sufficient evidence to pursue in the time available to us. Similarly, where aspects of the draft Bill have been generally welcomed and we have no concerns about them, we have not commented further. Since we have concentrated our limited resources on the elements of the draft Bill that have been the subject of debate, this may create an impression that its overall reception has been more critical than has in fact been the case. We commend the way the Government consulted industry and consumers in the run up to publication of the draft Communications Bill and recommend that future Bills also follow this route.

12. For the same reason of limited time, we have not undertaken a comprehensive analysis of the broader communications landscape within which the draft Bill is located. In particular, while we have sought to understand the underlying rationale for a new legislative framework, this Report does not survey the technological background and important issues regarding the impact on consumers created by convergence. We have not examined the case for a single regulator for electronic communications, in part because the proposal has previously attracted a broad consensus of support and in part because both Houses have already agreed to what is now the Office of Communications Act 2002 which establishes OFCOM. We have not examined the status of the Government's plans for "analogue switch-off" or "digital switchover" or for universal access to the Internet, except insofar as they relate directly to the provisions of the draft Bill. We have not examined the Government's broadband strategy as such, although in "future-proofing" the legislation, the growth of high bandwidth communications may be particularly significant and we have considered a number of issues in the Bill in the context of such developments. We welcome the fact that these matters have been, and will continue to be, the subject of parliamentary scrutiny by others.[13]

13. We have pursued our inquiry with three main objectives in mind:

  • inclusiveness: that those with an interest in communications and media and their regulation across the United Kingdom can have a genuine input into the process by which Parliament makes the law in this area;
  • influence on Government: that our work and our Report have a significant and discernible impact in making the final Bill presented to Parliament a better document than the draft already published; and
  • informed scrutiny: that the process of consideration of the final Bill in both Houses is more focused and more constructive as a result of our work.
  • It is against these three objectives that we hope and expect our work will be judged.

1   Plato's Republic, translation by Robin Waterfield; Oxford, 1994, paperback edition p 40. Back

2   Regulating communications: approaching convergence in the Information Age, Cm 4022, July 1998, p 4; A New Future for Communications, Cm 5010, December 2000, p 3. Back

3   Cm 5010, p 10. Back

4   HC Deb, 12 December 2000, col 490. The quotation is from the Rt. Hon. Chris Smith MP, the then Secretary of State for Culture, Media and Sport. See also Fourth Report from the Culture, Media and Sport Committee, Communications, HC (2001-02) 539-I, para 15. Back

5   HL Deb, 22 November 2001, col 1288. Back

6   HC Deb, 1 May 2002, cols 1013-1017; on the Commons composition of the Joint Committee, see also HC Deb, 30 April 2002, cols 920-921 and HC Deb, 13 May 2002, col 522. Back

7   Draft Communications Bill, May 2002, Cm 5508-I. Back

8   Draft Communications Bill Explanatory Notes, May 2002, Cm 5508-II (hereafter EN); The draft Communications Bill - The Policy, May 2002, Cm 5508-III (hereafter Policy); Draft Communications Bill Regulatory Impact Assessment (hereafter RIA). Back

9   Draft Communications Bill: Additional Media Ownership Clauses, Clauses 261 to 268 and Schedule 14. Clause 260 issued on that day is in the same terms as Clause 191 published on 7 May. Further consequential additions to Schedules 10, 12 and 13 were also published. Back

10   Draft Communications Bill: Proposed Amendments to the BBC Agreement, May 2002. Back

11   See Annex 2. Back

12   Annexes 3 and 4. Back

13   See, in particular, Second Report from the Culture, Media and Sport Committee, The Communications White Paper, HC (2000-01) 161-I; HC (2001-02) 539-I. Back

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