Memorandum submitted by Professor E M
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.
OFCOM & the BBC
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
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.