Joint Committee on The Draft Communications Bill Minutes of Evidence

Memorandum submitted by Professor E M Barendt

  1.  My submission is confined to those parts of the Bill concerned with the regulation of television and radio services, in particular with the control of programme standards. They raise fundamental questions about the future role of public service broadcasting, and some important institutional issues on which the provisions of the Bill, as drafted, are unhelpful.

The Contents Board

  2.  OFCOM is required to establish a Content Board, the principal function of which to assist OFCOM in its control of broadcasting standards. It is unclear form the Bill whether OFCOM may delegate power to take decisions in this context or whether the role of the Board is only to be advisory. This should be clarified. Further, the Board should be given power to publish its views, even if its role is advisory (compare in this respect the power of the Consumer Panel to publish information about its advice and research, etc. conferred by clause 96(3)). The purpose of establishing this Board is, presumably, to strengthen control over programme standards, a role OFCOM will find difficult to discharge properly, given the range of its other functions. It is therefore important that the Bill is clear about the extent of the Board's powers.


  3.  It has always been unsatisfactory for the BBC to be constituted by Charter, rather than by statute. Its existence depends on Charter renewal by the government. This arrangement would be regarded as unconstitutional in France and Germany, where as a matter of principle public broadcasters are established by legislation.

  4.  The Bill enables OFCOM to regulate the BBC, to the extent that provision is made for this by legislation or by the agreement between the Secretary of State and the BBC. It is envisaged that powers will be given to OFCOM by amendments to the present agreement. These should be spelt out clearly in the Communications Bill itself. Otherwise, there will be no opportunity for members of the two Houses of Parliament to ensure that the BBC and private commercial broadcasters are treated in a comparable way; broadly equivalent treatment is one of the objects of the reform (see Policy document, para 8.2.1). In short, the Bill perpetuates, or indeed makes worse the present unsatisfactory position.

Enforcement of public service remit

  5.  As envisaged in the White Paper issued in December 2000, the Bill substitutes a system of self-regulation for many of the distinctive obligations hitherto imposed on public service broadcasters, principally the BBC, the Welsh Authority, Channels 3, 4 and 5 (see cl. 181-88). Apart from some specific obligations, notably to satisfy quotas for independent productions and original productions and to include high quality news and current affairs programmes, the public service remit for Channel 3 and 5 is defined simply as "the provision of a range of high quality and diverse programming" (cl. 182(2)). It is left to the public service broadcasters themselves to monitor whether they have complied with their remit. OFCOM is required to report only every 3 years whether public service channels taken as a whole have satisfied the general public service requirements of a balance and range of high quality programmes.

  6.  These public service obligations are weak in the following respects:

    (i)  OFCOM is only to have regard to the "desirability" of satisfying general public service requirements by ensuring that, for example, schedules include religious or educational programmes, or programmes of interest to children;

    (ii)  OFCOM is to determine whether the general requirements are satisfied by public services broadcasters as a whole, not whether each public service channel meets them (contrast the requirements imposed by Broadcasting Act 1990 and those imposed by French law);

    (iii)  OFCOM only has a duty to report every 3 years whether public service requirements are met;

    (iv)  The procedure for enforcement of self-regulation, or its replacement bt detailed regulation by OFCOM, is extremely complex.

  7.  The Committee might consider, therefore, recommending the addition of other specific programme requirements on public service broadcasters, for instance, to show programmes of interest to children. As drafted, the Bill's provisions do not guarantee the survival of public service broadcasting.


  8.  The Bill retains the prohibition on political advertising: cl. 214(2). As the notes to Clauses make clear, a recent ruling of the European Human Rights Courts suggests this ban is incompatible with freedom of expression; it should be reconsidered. Is there any justification to retaining the entitlement of the Secretary of State to issue directions to OFCOM in this context: see cl. 214(5)?

Government control over licensed services

  9.  I regret the Bill retains the power of the Secretary of State to order the censorship of a programme or a type of programme: cl. 223. This provision would be unconstitutional in Germany, the United States; there is no equivalent provision in the broadcasting laws in France. It should be dropped, or at least its exercise should be confined to national security grounds: see notes on Clauses.

June 2002

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