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Lord Carmichael of Kelvingrove: My Lords, before the noble and learned Lord sits down, perhaps I may ask for clarification. I was fascinated by his last point regarding the signature of a director if the writer were found not to be a director at the time. Does that mean that if a firm signed a bill, one needs somehow to establish at the time the person signed that he was a director. If he were not a director, would the firm have no liability whatever? It is a small point. However, listening with a fair amount of attention and fascination, it struck me as a slight weakness in the Bill.

Lord Rodger of Earlsferry: My Lords, with the leave of the House perhaps I may say this. The simple fact is that if a person were not a director and signs, the document is not being granted by the company. It would be wrong for the company to be so bound. If the document bears to have been granted as a director, it is presumed to have been granted on behalf of the company. However, if the person were not in fact a director, then the matter can be challenged. I believe that that must be right because if he were not a director it would be quite wrong for the company to be bound. The company cannot be bound by people with no authority to sign on its behalf.

Lord Carmichael of Kelvingrove: My Lords, I am sorry to intervene again. However, I may have paid my money by that time, in order to buy something from a company which did not exist—perhaps to build a house. Perhaps the noble and learned Lord will consider the issue again. It may be that his explanation has satisfied some; I do not know. However, I am not desperately satisfied with the explanation at present.

The Earl of Balfour: My Lords, I am most grateful to noble Lords who have taken part in the debate. I am particularly grateful to my noble and learned friend the Lord Advocate. I am glad that he was able to answer some of the technical questions on which I might have slipped up.

I wish to make one remark to the noble Earl, Lord Mar and Kellie. My full name is the Earl of Balfour and Viscount Traprain. If one also has a few other titles, the signature might cover three or four pages on the document. On occasions like that, thank God our signature is just a single word. I would not wish to change that provision.

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We must note with some sadness the repealing through this Bill of the old Scottish authentification statutes and various deeds Acts going back to 1540. They cannot be read and applied literally as modern statutes should be. I am grateful to the noble Lord, Lord Macaulay, because it is important that if the Bill is enacted there should be no doubt or misunderstanding.

The only other point about the old deeds is that some which are at present still in force must at best be doubtful and at worst pernicious. The Bill will be a delight to students and practitioners in Scots law and I hope that it passes through both Houses and remains for many years on the statute book. I commend the Bill.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

Channel 4: Funding Formula

7.51 p.m.

The Earl of Stockton rose to ask Her Majesty's Government whether they intend to abolish the Channel 4 funding formula which was intended as a "safety net" but has resulted in Channel 4 subsidising ITV companies to the extent of £57 million in respect of 1994 alone.

The noble Earl said: My Lords, to put the Question into its context, perhaps I may respectfully remind your Lordships of the statutory framework surrounding Channel 4. Under the Broadcasting Act 1990, if Channel 4's revenue falls below 14 per cent. of the joint advertising and sponsorship revenues of ITV, Channel 4 and Channel 5, the ITV companies would be required to support Channel 4. When Channel 4's revenue exceeds 14 per cent., then 50 per cent. of the so-called excess is paid to ITV; 25 per cent. goes to a statutory Channel 4 reserve fund and only the remaining 25 per cent. can be spent on Channel 4's own programmes. The statutory reserve already stands at £45 million and this fund would have to be exhausted, as well as Channel 4 falling below the 14 per cent., before ITV was asked for a penny. It seems to me that a compulsory insurance premium of £60 million a year is a trifle excessive.

Parliament intended the funding formula to be a safety net for Channel 4 and not a subsidy to ITV. The Member for Witney, my right honourable friend Douglas Hurd, who was then Home Secretary, announced the formula on 13th June 1989, although Channel 4 had not been consulted and the formula was entirely different from that which had been proposed by Channel 4 and endorsed by the Select Committee on Home Affairs in another place in February that year. It has also been endorsed by Ministers involved in the 1990 Act.

Let us therefore look briefly at the record of Channel 4 and also, because it is relevant, that of the ITV companies since the Broadcasting Act 1990 enshrined those policies in legislation. Channel 4 has lived up to its remit as an innovative and original company on the cultural and broadcasting scene in this country and, indeed, worldwide. The ITC is fully satisfied that Channel 4 is fulfilling its distinctive remit. It is worth

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noting that the only note of criticism in 1994 was that Channel 4 was just under the recommended 50 per cent. of British and European production —a direct result, I suggest, of the channel's lack of funds to invest in programmes, especially original drama.

Channel 4 has shown that its income is unlikely to fall below the 14 per cent. threshold during the present licence period. That view is endorsed by all major independent studies, including Zenith Media, the leading advertising media analysts. Channel 4 has proved that the remit set down by Parliament is viable in an increasingly competitive market.

A fortnight ago, Channel 4 handed over a cheque to the ITV companies for £57 million. For 1993, the cheque was £38 million. Yet the ITV companies' own forecasts were that the figure would be no more than £100 million over the entire 10-year span of the licence. Compare that estimate with payments to date of £95 million over just two years and I think your Lordships will agree that Channel 4 has exceeded expectations. I am sure that the noble Lord, Lord Hollick, will point out to your Lordships that the ITV company with which he is connected—Meridian—when calculating its bid, got it right and that it is entitled to its money.

The Chairman of Channel 4, Sir Michael Bishop, has given an undertaking in writing to my right honourable friend in another place, the Member for Loughborough and the Secretary of State for National Heritage, that, if the funding formula is abolished, Channel 4 will recompense bilaterally any ITV company that can demonstrate to the ITC that it has not already received the income it projected that it would receive from Channel 4 during the period from 1993 to the first review date in 1997.

I hope that the noble Viscount, Lord Astor, will be able, in replying to the Question, to justify the changes in the regulatory framework that have been allowed to the ITV companies since the passage of the 1990 Act. Not only has the ITC allowed the programme requirements to be relaxed—in particular to sustain GMTV—but the Government have changed the rule on ownership that has allowed Meridian to take over Anglia, Carlton to take over Central and Granada to subsume LWT. That is a significant rationalisation of the ITV companies, with commensurate cost savings that, in the case of Carlton alone, are estimated to amount to £100 million. In 1992 there were 13 advertising sales points; now, there are only five.

It is also worth noting that it is only since January 1993 that Channel 4 has been selling its own air time. Prior to that, it was handled by the ITV companies. The success of that can be seen by the recently announced figure of a total advertising and sponsorship revenue for 1994 of £393.9 million—an increase of 19.3 per cent. over 1993. Over the same period, ITV revenue grew by 8 per cent. but profits increased spectacularly by 194 per cent. in the case of the old Carlton and by 763 per cent. in the case of the merged Carlton/Central; by 100 per cent. in the case of Granada/LWT; by 83 per cent. for Channel and by 162 per cent. for HTV. I am sure that the noble Lord, Lord Hollick, will be able to give us a comparable figure for Meridian/Anglia.

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However, all those dry and dusty numbers in millions of pounds are not what concerns the viewing public. Channel 4 has a splendid record not only in television but also in the film industry. It would be only a mild exaggeration to say that Channel 4 is the major, indeed nearly the only player in the financing of the British film industry. I am sure that many of your Lordships have seen or heard of films such as: "The Crying Game", "Howards End", "Riff Raff", "Shallow Grave", "Four Weddings and a Funeral", and "The Madness of King George". In respect of the latter I feel I must declare an interest. Last Friday I was privileged to see that film (which has been nominated for three Oscars) at Channel 4 itself, thus enjoying a benefit of £7.50 had I seen it in the West End or £3.50 had I waited until it arrived at my local flea-pit. Incidentally, it is worth noting that in 1993 Channel 4 films won more Oscar nominations than those of any other company, except Warner Brothers and in 1994 more than three of the major Hollywood studios put together.

Your Lordships will realise that "The Madness of King George" is an adaptation of the extremely successful play, "The Madness of George III", but, in order not to confuse the American cinema-going public, largely nurtured on sequels at present, the name was changed lest they might think that they had missed out on the "Madness of George" One and Two! If the depiction in the film of the proceedings in another place is accurate, noble Lords will find that not much has changed over the past two centuries.

Channel 4's television record is as impressive and, beyond mentioning drama series such as "The Rector's Wife" and "GBH" or the multicultural films such as "Bandit Queen", documentaries like "Beyond the Clouds", entertainment such as "After Dark" and "Drop the Dead Donkey" and Channel 4 racing, I believe its output speaks for itself. As an educational publisher, I can attest to the quality of its schools' programming.

If the subsidy to the ITV companies were removed—and in my view it was only ever imposed in some kind of quest for a spurious symmetry—the company would then be in a position to increase considerably its investment in both film and programmes, perhaps by the order of as much as £10 million to £12 million in the case of film and a larger amount in the case of programming, especially in original drama.

It is axiomatic in the industry that the best way of building viewer loyalty is through original drama, which is, of course, also the most expensive part of the schedule. In order to be effective, all art must be dangerous. Originality in any art form involves taking risks. I am sure that Channel 4's drama will continue to outrage some as it engages many. I am sorry to see that my noble friend Lord Orr-Ewing is not in his place, for I know that he has strong views on what is and what is not suitable for our television screens.

I should like also to ask my noble friend whether he has any plans to introduce legislation to regulate the digitisation of the terrestrial broadcast spectra. Channel 4 has set the pace. It has the first all-digital studio and broadcasting capability in the country and already transmits test simulcasts in the format. British television was always held to be the best in the world, but only

27 Feb 1995 : Column 1383

because it was the most original and innovative. The best way to protect the most original of our broadcasters is to remove from them this unnecessary burden and allow them to do more and more of the good work that they have proved they can do.

It is insane to allow a minority channel to subsidise its richer competition, which already has over two and a half times as much to spend on programmes, although that is lower than was promised in its original licence applications. Let both Channel 4 and ITV thrive through the fruits of their labours. Channel 4's ability in the future to sustain its remit is best secured through allowing it to invest in programming now. Channel 4 blazed a trail with its use of independent production companies and helped to break restrictive practices in the industry. It has an excellent record in exporting programmes. Are this Government really going to tell the House that they are in the business of penalising success?

8.1 p.m.

Lord Donoughue: My Lords, once again we are discussing at root the disastrous effects of the appalling 1990 Broadcasting Act. This bizarre funding formula is only one part of the 1990 lunacy which has done so much damage to British television. But it is typical of the whole shambles. For it is bizarre —as the noble Earl, Lord Stockton, pointed out—for a minority channel to have to subsidise bigger and richer competitors on such a scale. It is intolerable that huge funds are being transferred away from making programmes to the bottom line and indeed to the directors' pockets in bigger companies.

I have no need and do not propose to repeat all of Channel 4's arguments. The noble Earl, Lord Stockton, did that well; and they have already been expounded with what might be called loud resonance by Mr. Grade. I am sure that they may be repeated again by noble Lords this evening. I simply say that Sir Michael Bishop's letter to the Secretary of State on 7th February is a devastating critique of the funding formula. But the letter has, in my view, not been answered and is indeed unanswerable. Despite that, ITV has made a few sensible points in response and I look forward to my noble friend making more.

It is true that ITV companies carry burdens. Channel 4 does not. It pays a levy to the Treasury and dividends to shareholders. Channel 4's advertising success is at ITV's cost. Therefore, stopping the subsidy would leave ITV even less funding to make its own programmes.

I am not impressed by one argument in the ITV briefing. It argues that:

    "When their bids were made, the ITV companies expected"—

and the word "expected" is underlined—

    "to receive money from Channel 4",

by this subsidy; and that these expected revenues,

    "represent a significant part of the revenues on which their bids were made".

That is quite strange. We understood that this funding formula was two-way—that it was a safety net to Channel 4. How could it be a safety net for Channel 4 if the ITV companies all expected it always to subsidise

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them and factored that into their bidding budgets? I might ask: what will happen if the situation is reversed and it becomes a safety net? How will some of those companies pay if in their budgeting they have depended on being paid? I am not impressed by that argument.

Nor does it impress me, or worry me, that Mr. Grade and Channel 4 have previously supported the funding formula. The fact that they previously supported a bad case does not preclude them from finally seeing the light and now saying that it is a bad case. It certainly does not make it a good case. So I hope that we shall not hear too much of that argument.

We wait with interest to hear the Government's defence of the indefensible status quo in this situation. Certainly nothing that the Secretary of State has said so far—I must say that it is a commendable aspect of the Secretary of State that in the whole national heritage field he says very little—is convincing. The argument of no statutory time, which we assume, can be used against any change to any bad legislation. It has not deterred the Government from amending frequently their bad legislation on education and local government. Anyway, they have already found time, as the noble Lord said in opening—though admittedly by order —to amend the 1990 provisions to allow takeovers and to reduce the number of advertising sales houses. So there is no problem of principle or precedent here, just of practicality and priorities.

The Secretary of State's argument that there is still a continuing risk to Channel 4 without the safety net is hypothetical. Anyway, as was pointed out, statutory reserves of nearly £40 million already seem to cover that risk.

The argument that has been suggested that ITV deserves a return for setting up Channel 4 is clearly irrelevant. ITV did not set it up or have anything to do with its recent success. Nor are there any contracts to be broken between Channel 4 and ITV or the Government. The funding formula was established without consultation with Channel 4 and against the advice of the then Select Committee, simply by power of Parliament. It can be changed by the same process.

The arguments for doing so are in principle—I stress "in principle"—decisive. The one serious argument against on the Government's side is the practical one. This formula, although imposed, was part of what might be called the known rules of the game at the time. They can be revised anyway not far ahead, in 1997. It could be said that to take parliamentary time for primary legislation before then might not on balance be worth it.

I say to the Minister that I shall listen sympathetically to that argument, as to all practical arguments of the Government. If he puts that argument, I will listen sympathetically on three conditions: first, that he will admit that the 1990 Act—I mean admit in public, here in this Chamber—was an appalling mistake which nobody now supports; secondly, that he will apologise for it; and thirdly, that he will promise vigorously to examine the possibility of immediate compromise short of primary legislation.

One example is that he will promise to look at Channel 4's offer, which seems fair, and that on termination ITV will be relieved of its hypothetical

27 Feb 1995 : Column 1385

obligation to Channel 4 and that all ITV companies will receive the full income for which they have budgeted for 1993 to 1997. Another example is that he will support and encourage any consensual compromise brokered by the ITC. It may be that a ceiling for Channel 4 payments will be included in a compromise. If I understand the formula correctly, at present it appears not to be a level playing field. The ITV safety net is limited to a maximum of 2 per cent., but the Channel 4 subsidy is open-ended. Therefore, there is scope for a consensual compromise. It should contain a guarantee that Channel 4 will spend the benefits of not having to subsidise on such a massive scale the rest of the ITV sector on programme-making and film production, not for instance on larger cigars for Mr. Grade.

This raises the very important question of investment in British film making which is closely related to the issues we are discussing tonight. The present silly funding formula transfers money from Channel 4, which appears to have a good record in joint film productions, to other ITV companies such as Carlton which I suspect have a more disappointing film production record. First, I ask the Minister how much Channel 4, Carlton, other ITV companies and indeed the BBC invest in film production. Secondly, will he ensure that any compromise that may be brokered—and we urge him to broker a compromise—involves a commitment to greater investment in the British film industry?

We are not here tonight to speak for or against one side or another. I confess that certain aspects of Channel 4 worry me, since some of its so-called minority programmes seem to appeal to what I consider to be undesirable minorities. However, it is always rescued by the excellence of its racing and music coverage. Our main concern is to rescue British television and films from the appalling consequences of the 1990 Act. That system, with its minimum quality requirements and open financial bidding, has failed, as we always said it would. It has failed both on quality and financially, as this debate shows, and will continue to show. In the longer term we need new criteria, with high quality requirements and a fair pricing formula subordinate to that. In the shorter term I shall be interested to see whether the Minister tonight has any proposal to get out of the mess which we are clearly in.

8.14 p.m.

Lord Thomson of Monifieth: My Lords, the House is grateful to the noble Earl, Lord Stockton, for introducing the debate. Very properly, he declared an interest. I gather that he received some modest hospitality from Channel 4 at the preview of a film. I have a much more serious declaration of interest. I am a member of the Nolan Committee on Standards in Public Life and therefore I must be very careful. I declare my interest as a former chairman of the Independent Broadcasting Authority who played some part in the original establishment of the Channel 4/ITV relationship. I also ought to declare an interest as a

27 Feb 1995 : Column 1386

very modest pensioner in the defunct IBA. Finally, I declare a family interest. A daughter has been a senior executive of Channel 4 and has rather vigorously lobbied some of us. However, she left Channel 4 a few days ago to return to the BBC. I do not know what is to be made of this tangle of interests, but I hope that your Lordships' House will accept that I speak for myself and my party from this Bench.

Speaking as a former chairman of the IBA, I find it sad that there should be a slightly bitter multi-million pound quarrel between ITV and Channel 4. I am bound to say that in my days at the IBA the relationship between Channel 4 and the ITV companies was never an easy one. For all my skills as chairman of the Independent Broadcasting Authority, the relationship between Channel 4 and the IBA was not always a harmonious one, but I believe that that was in the nature of constructive tensions in these situations. Today, it is undoubtedly very much worse and to the detriment of British broadcasting.

It is clear that the deeply flawed provisions of the Broadcasting Act 1990 have created a situation that is unsustainable beyond 1997 and ought to be corrected before that stage is reached. 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