Joint Committee on The Draft Communications Bill Minutes of Evidence


Examination of Witness (Questions 478 - 499)

MONDAY 17 JUNE 2002

PROFESSOR ERIC BARENDT

  Chairman: Professor, thank you for joining us.

Lord Hussey of North Bradley

  478. Good afternoon. The main broadcasters on both television and radio have criticised the Cave proposals for spectrum pricing for broadcast spectrum, arguing that it simply adds to the cost of what is deemed a public good—public service broadcasting—and provides no real incentive for increased efficiency in use since universal service obligations reduce the scope for savings. How do you feel about that?
  (Professor Barendt) I have not thought very much about the spectrum allocation aspects of the Bill. It is not a subject on which I am particularly expert and so I think I would rather, to be honest, not give you a full answer to that question.

  479. How does the constitutional and legal protection afforded to broadcasting in, for example, Germany or France make any difference to the quality of broadcasting experienced in those countries?

  (Professor Barendt) That is a very good question! One is tempted to say, of course, the law does not make any difference at all but I do not think that is a very serious answer. I think the principles which have been established in various other countries, particularly Germany and France, are ones which, my Lord Chairman, we would have taken for granted in this country, that is the independence of both public and private broadcasters from the state, the desirability of pluralism and freedom of expression, and encouraging a lively public broadcasting sector as well as allowing since the 1950s private broadcasting to compete and exercise, take a complementary role. Now, all these factors have, of course, been made the subject of constitutional rulings in Germany, where for historical reasons broadcasting suffered a very bad period in the 1930s and, of course, our influence after the war was enormously influential in the development of the German broadcasting system. I think there are certain respects in which German broadcasting in particular is more free from state influence—not so much directional control—than broadcasters in this country. I have in mind in particular, and I know this is not something covered by the Bill, the arrangements for fixing the licence fee which are, in this country, determined by government in general and in particular by the Secretary of State. Now that arrangement, whatever its general merits and whatever the politics of it, has been held unconstitutional in Germany because that enables the state in effect, if it so chooses, to cut public broadcasting down to size, to exercise indirectly some influence on the public service remit, and the German constitutional court has ruled that is wrong and, therefore, the German equivalent of the licence fee is fixed by an independent commission. That seems to me to be a much more desirable process which certainly shows that constitutional law on legal principles can exercise an important influence.

Lord McNally

  480. But does it give bad public service television? I am not sure that even if it is protected by the constitution it necessarily produces public service broadcasting in either Germany or France that we should be seeking to emulate.
  (Professor Barendt) I think that may be right. My own experience of watching German broadcasting is that it is often extremely serious; it shows a range of programmes which would be regarded as rather unsexy and unattractive to put on at peak hours or even at nine or ten in the evening, and therefore would not be shown here, but there is I think sometimes a seriousness about German and I believe, though I could not give you any expert knowledge on this, Scandinavian television because of the legal principles of public service broadcasting which are valuable.

Lord Hussey of North Bradley

  481. If I may say so, some of us twice had to agree the licence fee with the government, and I would not expect you to agree that.
  (Professor Barendt) That is certainly a view but I think it is important that, in principle, the licence fee is fixed by an independent commission and not by the government.

Lord Pilkington of Oxenford

  482. A frivolous question: you do believe that public service broadcasting can be serious?
  (Professor Barendt) Yes, I do.

  483. And possibly in America it is more serious than here?
  (Professor Barendt) It is though, of course, it has played a very minor role in the general television landscape; it is watched by very few people but that, of course, is I think a result of the totally different political and cultural history of broadcasting in both radio and television in the United States. In a way the American system is not a pattern we would want to emulate over here. It is totally different.

  484. Some jolly good programmes though which I get the tapes of!
  (Professor Barendt) Yes.

Anne Picking

  485. My question is about the role of the Content Board. You point out that the Draft Bill is unclear whether the role of the Board is to be executive or advisory. Which would you prefer?
  (Professor Barendt) The arguments are nicely balanced. I think I prefaced my remarks by saying that it seems to me that the role of the Content Board has not been properly thought out and this is one issue which I think the Committee should make serious representations to the government on. It does look a little bit like window dressing or camouflage to persuade Parliament and the public that public service broadcasting and contents control or regulation, call it what you will, is to be taken seriously. As I read the Bill, in conjunction with the Act, it is likely that the government's intention is that this be a committee which reports to OFCOM. I think there is a serious danger that content control regulation, which I am convinced remains an important aspect of broadcasting law and regulation, will be lost sight of because of the general concerns of OFCOM with telecommunications, with bringing out spectrum and the other concerns which have been widely discussed. There is, therefore, I think an argument that the Content Board should have some clear role. Whether it is better that it be entirely independent I do not think the government would contemplate, my Lord Chairman; I think it would see it as a committee of OFCOM. I think the important point to establish and persuade the government of is that the Content Board publishes reports, that it behaves and acts in a transparent way so that there can be real public debate about its conclusions and its recommendations, albeit that OFCOM at the end of the day may have the final word.

Chairman

  486. Can I press you a little on that, although my instinct tells me that you are right? Were you to be asked to be the chair of the Content Board but you found yourself in an environment in which the chair of OFCOM and its director general at the time were highly fee regulatory and market-purposed, what sort of protection would you wish to have in your relationship with Parliament to ensure that your voice as chair of the Content Board was being heard?
  (Professor Barendt) That is interesting because, as I understand it, the chairman of the Content Board will be a member but will not be the executive head of OFCOM. I think there is an interesting point in French law that any member of the Conseil Superieur de l'Audiovisuel, which is the overall supervisory body in France, may be heard by a committee of Parliament, and I think there is something to be said, indeed that is putting it rather mildly—a lot to be said, for allowing the Content Board chair to report directly to Parliament. At the very minimum, as I have already said, its reports should be public so that there can be widespread political and public debate on its recommendations and findings.

Lord Pilkington of Oxenford

  487. As you know, I chaired the body that dealt with this where we met previously. On fairness and infringement of privacy, I have always had a feeling that this was a role that ought to be ring-fenced in any body, an ombudsman type role, because they are very sensitive issues where someone has been lambasted on television and their privacy has been infringed. I am a little worried that even in the Content Board this can get overwhelmed by questions of taste and decency and so on or the general theme of public service broadcasting. Would you see any role for an ombudsman-type, ring-fenced role, or would it be too complicated?
  (Professor Barendt) I am not a great advocate of privacy ombudsmen. This is opening up the debate way beyond the Draft Communications Bill but I am a supporter of the legal right of privacy both against the press and against the broadcasting media, but that raises large questions way beyond your purview, my Lord Chairman. I think there is a serious danger that issues of privacy and unfair treatment will be lost sight of. It is possible that this is something over which the Content Board might have some decision-making power with regard to the overall public service remit. It might be making recommendations undertaking research, commissioning research, which would lead to OFCOM decisions but I think there is, and I have suggested this, a very serious risk that particular content questions as well as more general content questions of the overall standard of public broadcasting will be lost sight of with this super regulator about which I am, and I suppose this is my best description of myself, a convinced sceptic.

  488. Would you therefore, because my colleague Lord Crickhowell is not here, advise this Committee to make some recommendations more specifically about the Content Board's remit?
  (Professor Barendt) Indeed.

  489. You would feel that was an important point we ought to give consideration to?
  (Professor Barendt) Indeed. I think the Committee should urge the government to clarify and strengthen the powers of the Content Board to make more clear what its role is in relation to OFCOM, but I would suggest that this is done in the overall context of other points which I hope the Committee will make in terms of ensuring that the public service remit is not just window-dressing but is seriously intended to be enforced.

  490. Could I ask through the Chairman that you might put some of this on paper to us?
  (Professor Barendt) Indeed.

Lord McNally

  491. Professor, you will be aware that the Canon to the right of us has been firing salvoes all evening trying to lure earlier witnesses into making statements about the precise relationship between the BBC and OFCOM. They resisted, I noted, these blandishments but you have stated that the Bill perpetuates, or indeed makes worse, the "present unsatisfactory position"—this in addition to your points about the relationship that would have been unconstitutional in France and Germany. Now, we will be taking evidence on Thursday about the precise third tier obligations under the OFCOM remit but, more broadly, would you like to say why you think it makes worse the "present unsatisfactory"—those are strong words—situation? Do you think that legislation rather than a Royal Charter is a better basis for the BBC?
  (Professor Barendt) Yes, I do. I have always thought, and I submitted evidence in writing to the National Heritage Committee when it last looked at this some eight or nine years ago in the context of the last Charter renewal, it odd and in principle wrong that the BBC be set up by Charter. I can see no justification for it now. It was a tenable view at the inception of the BBC or, indeed, through the 30s, 40s and 50s but, with the bringing of the BBC under some degree of legal control, first of all through the Broadcasting Complaints—now the Standards—Commission and then through the regulation of the independent producers' quota through the Director of Fair Trading at the moment but it will be OFCOM under the Bill, and now of course with the real possibility of the super regulator having some supervisory powers over the BBC, it really is complete nonsense that Parliament cannot debate this in detail by examining clauses of what is now the Charter and by questioning ministers both in second reading and, more importantly perhaps, at the Committee stage. The justification which the BBC used to give for this special arrangement, which it liked, was that it insulated the BBC from the horrors of a super regulator. I think at that time when I considered and discussed these arguments with representatives of the BBC the spectre was of control by the ITC—perish the thought. Now, it has the reality of control to some extent by OFCOM, so I think there is a constitutional political argument that MPs and members of the House of Lords should be allowed to scrutinise the arrangements and to make sure that there is, if it is thought desirable, comparability where comparability is appropriate between the regulation of the private commercial sector on the one hand and the regulation of the public service broadcasting or broadcaster of the BBC on the other. I point out, of course, that the Bill does contain some detailed provisions for the Welsh Authority so there is no reason why this should not be done for the BBC as well, and I think the argument is overwhelmingly persuasive that it should be.

Lord Pilkington of Oxenford

  492. Could I as a pony expected to leap through this hoop say this: it does occur in Canada which you know a lot about and we talked about quite a number of years ago. In Canada the equivalent of OFCOM regulates both the public service and the private sector. Could you tell us something about how successful or unsuccessful that has proved to be?
  (Professor Barendt) No. I am afraid I am not as au fait as I should be with the Canadian situation so it would be misleading for me to talk about it.

  493. You have not even heard a rumour about it?
  (Professor Barendt) No!

  Lord McNally: You criticise the Charter route for the BBC but the thing about Britain is that we have a number of institutions that work rather well but which perhaps defy rational analysis, and perhaps there are about six of us that should declare an interest at this point! But the end aim is to have in our, to use a fashionable word, broadcasting ecology a public service broadcaster of quality, and I just wonder whether again, since part of your evidence or much of it is on your international experience and expertise, there is a public service broadcaster out there which we should envy? You acknowledge that the United States is a sliver of the whole system: Canada is fighting continually for survival: with Germany and France the best you can say about them is "serious".

  Lord Pilkington of Oxenford: That used to be a compliment!

Lord McNally

  494. You see, where I depart from the Canon is I do think we have a national asset here and I need to be well persuaded before I sacrifice it.
  (Professor Barendt) I entirely agree: the BBC is a precious national asset and nothing I hope in my submission, or in what I said so far, could be taken as wishing to disparage the valuable role which the BBC plays. I wish to see the BBC strengthened and the special functions of public service broadcasting to be recognised as widely as possible. In my view that would be better done in a statute than in the Charter, which is not subject to political debates in the one national forum we still have—the Houses of Parliament. I know, of course, the House of Commons and the House of Lords can approve or disapprove the Charter but let us face it, there is no substitute for clause-by-clause control or discussion of the BBC's Charter and, of course, the more important document—the agreement with the Secretary of State. Now, if we were having this discussion ten, certainly twenty, years ago you would be right to say that my points are rather theoretical, but I do not think that position is now sustainable when you have the possibility, whether you like it or not, of OFCOM exercising some overall supervisory control over the BBC as it will have over Channel 4 and the other commercial broadcasters—terrestrial, cable, satellite and so on. In that context it does seem to me absolutely imperative that MPs and members of the House of Lords have an opportunity to discuss the BBC's remit, its functions, and the Secretary of State's powers with regard to the BBC which are, at the moment, incorporated in the agreement. The government takes the view that, whereas for the commercial sector OFCOM will be the longstop—or "backstop" I think is the phrase used in the policy documents—the Secretary of State is to remain the backstop under the arrangement with the BBC. Now that, I think, is unacceptable and I think you should all take the view that this is unacceptable unless you are happy to say, "Oh, let's leave it to the government and the BBC; we will trust them". I do not think that is right.

  Lord Pilkington of Oxenford: I totally agree with you but could I again stress that it would be very interesting when I face the battles in this Committee that I have something in writing from you because you are such an expert on this. I do value the BBC—it is wrong to say I do not—and I have to say I share the view that it would be more protected by legislation than it is by the whims of a Secretary of State. I am entering this just for the record.

  Chairman: Lord Hussey, do you have any comment to make?

Lord Hussey of North Bradley

  495. This is a very difficult issue but I am bound to say that in the twelve years I was Chairman of the BBC I never noticed any reluctance on behalf of the House of Commons or the House of Lords to discuss our affairs at very considerable length and with a frequent degree of criticism, so I do not think that argument stands up for a moment, if I may say so. I suppose really, if you are trying to defend what is rather an odd system, the best defence is a simple one: that it works. When I was at the BBC I travelled—not wildly and certainly not very comfortably but at various times. I was in the States, the Far East, and in the Middle East quite a lot, and in all those places the BBC is held in very high regard. In fact, if I may give you a slightly emotional story, the high pitch was reached when I went to Czechoslovakia and saw Mr Havel who asked if I would like to go and see the Czech Parliament, the first democratic process in Eastern Europe. I did, and it was interesting, and like most parliaments, except ours, it was in a horseshoe. I had not been there for more than about four or five minutes when a person arrived by my Czech World Service interpreter—and I use the British terms—and said, "The Speaker would like to address you in front of the House". Well, I am not accustomed to that sort of situation, let alone in a foreign country, but I went up, and they were all silent, and he turned to me and said, after a few words, "On behalf of all my countrymen and my colleagues here in this room, I want to thank the organisation which kept the flame of the truth alive in the 40 dark years"—40 is interesting; 20 with Germany—and I do not think that is something you throw away very easily. So my first argument against your view would be that it works: it is acknowledged: there are not many things in which we rule the world—we still hope we rule it at football but I am a bit doubtful about that myself! It is a major national asset.
  (Professor Barendt) I entirely agree with you, my Lord, but—and I cannot compete with you with anecdotes though I have also discussed broadcasting regulation in Prague—I cannot believe that the BBC's position over the last 40 years has been in any sense stronger because it has been constituted and established by Royal Charter than by legislation. It is perfectly legitimate to say—

  Lord Hussey of North Bradley: That is not the argument. The argument is whether it would be weaker if it was not.

Mr Grogan

  496. There are those in my constituency who would say that if we have something that is unconstitutional in France in Britain that is a further argument for keeping it there! But, just to explore a little bit further, are you in danger of confusing two arguments? You could take a position on whether the BBC should have a Royal Charter or should be enshrined in statute but then it is a further step, is it not, to say whether for tier 3 regulation it should be under OFCOM, a body that you have said you are a convinced sceptic about and do not have any enthusiasm for. You thought it was in danger of being captured by economic interest. If there is a light touch regulator on the whole for commercial public service broadcasters, are you saying it is appropriate for the BBC? Is there not a danger under the terms of your own argument that you would have economic rivals of the BBC seriously trying to weaken it and making complaints to OFCOM the whole time, and that you might end up at best with the old sex scene unattractive programmes that you have in Germany or, worse, a situation like Canada's where I have heard rumours of the major public service broadcaster going into serious decline and not having the same role that the BBC has here? Are you in danger of conflating a variety of arguments?
  (Professor Barendt) I do not think I am but I have a sense that I have made my case and it does not persuade everyone round this table! If I can say one or two things, however: let us forget about whether the BBC is set up as I think it should be by statute, or by Charter. There are serious questions about how desirable OFCOM's roles or supervisory function should be, and the government has recently—and this was issued at about the time I was formulating my written submission to you and I sent it in just before I was able to read the submission or the proposals by the Secretary of State for Culture, Media and Sport—put forward some serious issues for the Committee to discuss about the extent of OFCOM's powers. Is it right that OFCOM should have some general supervisory powers over certain aspects of the BBC's programme, and others should be left to the BBC governors? I think those are matters for serious public debate and I think that it would be better, of course, if it took place on the floor of the Houses of Parliament. I myself am rather sceptical as to whether public service broadcasting with regard to the BBC is going to be enhanced by giving OFCOM any supervisory role with regard to programme quality. I think here there is a real difference between the powers which OFCOM should have with regard to private broadcasters who for obvious commercial reasons are under a strong impetus to put their public service remit, as it were, back stage with the commercial imperatives and preparing programmes which appeal to advertisers as well as the public, whereas the BBC has a public service culture which the governors broadly can be trusted to enforce. So I do not myself think that anything very much is gained by subjecting the BBC in this respect to OFCOM.

  497. That was very helpful. I now have an entirely different question: another thing that would alarm my constituents would be any idea of political advertising on television and radio, and you refer to this in your very interesting memorandum. You refer to the explanatory notes accompanying the draft Bill and a judgment in the European Court of Human Rights which has thrown some doubt on whether a ban on political advertising remains compatible with the European Convention on Human Rights. Are there restrictions that we could impose that would be compatible?
  (Professor Barendt) There was a recent judgment of the European Court in a Swiss case, and I forget the actual name of the applicant to the European Court but it was an animal welfare group which was claiming a right to put an advert on Swiss broadcasting, and I think it was the public broadcaster which, like most in Europe, is partly financed by advertising. The Swiss authorities and courts refused this, as our courts would and would be bound to under the broadcasting legislation, and the applicant went to the European Court of Human Rights and the European Court in a rather bold decision, which I think raised quite a few eyebrows in countries other than this, held that this was an unnecessary restriction on freedom of expression in a democratic society: that to have a blanket rule against any political advertising, no matter what the circumstances, was an infringement of the European Convention on Human Rights which is now part, as we all know, of United Kingdom law. I think myself that was a good decision. That is not to say, and this is something which I know your constituents would be extremely worried about, that television would be flooded by party political ads, sound bites, election broadcasts and so on; those are regulated, as you know, by the broadcasting legislation and allocated at the moment by the ITC. But to say no charity with a political programme, like Amnesty which did lose a case in this country a few years ago, or animal welfare group which can afford it and is prepared to pay for a short commercial drawing the public's attention to the horrors of the fur trade or the arms trade or something else, seems to me to be a monstrous and unjustifiable infringement of freedom of expression. It can make no sense to allow commercial ads for automobiles and gas and other products associated with driving, or to allow the government to insert public service adverts when it privatises as the last government was rather fond of doing, but not to allow groups to pay for political adverts to make the opposite case, and I think blanket prohibition on political advertising is wrong and the European court got it right. I do not think, however, and the European court made it plain, that opens the door to the sort of unlimited political advertising which would horrify your constituents.

  498. But it is that targeted advertising that gives the majority of concern. The activities, for example, of the National Rifle Association in the United States which targets a particular cause and particular candidates and distorts the democratic process thereby. It is not quite the human right that you claim when you have multi million—
  (Professor Barendt) I am afraid human rights must be protected and guaranteed even for those whose causes we thoroughly object to. I am not arguing, of course, nor would the European Court that there should be no restrictions on the content of the political or, indeed, commercial advertising. I think one would need rules which limited the number of spots which could be purchased and that could be done in a variety of ways, but it is the case that political ads would be used if the door were opened by groups whose views were thoroughly disliked as well as groups whose views one as more sympathetic too.

  499. My objection is not that I oppose it: my objection is that there are adverts that one may thoroughly approve of but when one gets that concentrated use of large amounts of funds one distorts the political process. I may be in favour of a ban on fox hunting but I do not want animal welfare organisations with multi million pound budgets distorting the process in that way.
  (Professor Barendt) I think that can be regulated and that spectre can be avoided by imposing financial limits, just as we now have with regard to the financing and expenditure of political parties. With all due respect, your argument is one which is commonly made but not convincing.


 
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