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Viscount Caldecote moved Amendment No. 197:

Page 59, line 27, leave out ("may draw up guidance relating to") and insert ("shall draw up codes of").

The noble Viscount said: In moving the above amendment, I shall, with the leave of the Committee, speak also to Amendments Nos. 198, 199 and 201. I strongly support the merger of the BCC and the BSC to form the new, more effective BSC. I welcome the provisions of the Bill such as those in Clause 80 which give greater powers to the new BSC and which will make it more effective. But some further strengthening is needed, particularly in the references as to what the BSC "may" rather than "shall" do, and to guidance and codes. Amendment No. 197 would lay a duty on BSC to draw up codes rather than guidelines. Any regulatory authority or regulatory arrangements must contain rules or laws laid down by Parliament, and also codes of best practice and guidance, where needed, on related matters in descending order of severity and precision.

Perhaps I may take an analogy from the use of vehicles on public roads. Signposts or police notices may give guidance as, for example, on a recommended diversion to avoid a low bridge or a flood. However, it is left to the driver's discretion as to whether or not such guidance is followed. The Highway Code is much stronger. It provides a code of good practice. In most cases, it is not in itself an offence to break the code, but, if an accident occurs, it will certainly be relevant in apportioning blame and in any resulting prosecution. Finally, the Road Traffic Act contains mandatory requirements, rules and laws the breach of which constitutes a criminal offence for which the offender risks prosecution.

The Bill contains many such rules, but they are not appropriate for regulating matters which are the remit of the BSC. Clear codes of practice are the best way and codes are already referred to in the Bill in many places.

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However, those references are confused and made less effective by the introduction of the concept of "guidance" which, in too many cases, programme makers feel is only guidance and may be ignored at their discretion. That is clearly unsatisfactory, even accepting--as I certainly do--the need to give adequate freedom to exercise creativity in programme content.

The amendment would replace the words "may draw up guidance" with "shall draw up codes". I submit that that is essential if the BSC is to carry out its task effectively. Similarly, Amendment No. 198 replaces the word "guidance" with the word "codes". Amendment No. 199 makes it mandatory for the BSC to publish the codes in force, to monitor them and to report on them. Again, "guidance" is replaced by the words "codes". The amendment is important also in that it would enable the public to judge whether the codes are sensible and whether they are being observed. Amendment No. 201 would move the unnecessary and weakening words "giving guidance" in Clause 69(1). The objective of all the amendments is to strengthen the hands of the BSC and to clarify the way in which programme makers must behave. I beg to move.

Lord Renton: I wish to support the amendments. My noble friend has raised an important matter. We all know that increasingly in recent years there has been too much invasion of privacy on television. I believe that it is right that there should be specific obligations such as would result from my noble friend's amendments in order to deal with the matter. Therefore, I hope that my noble friend the Minister will give the amendments a very sympathetic reception.

Lord Ackner: I, too, should like to support the amendments. It is, of course, axiomatic that no watch-dog should be toothless. That is the situation in regard to those clauses which it is sought to amend. Guidelines are a species of exhortation and a person who wishes to ignore them can simply say, "I had regard to them; but I didn't think that they applied to my particular case". In my submission, it seems to be obvious that, if regulation is to occur, then that which the regulation provides must be clear and unambiguous; and, indeed not the subject matter of a discretionary compliance according to the particular reaction of the person involved.

9 p.m.

Viscount Tenby: I rise briefly to express my support for the amendments tabled in the name of the noble Viscount, Lord Caldecote, and of my noble and learned friend Lord Ackner. The amendments are clear and straightforward, but I hope that the Minister will agree with me that they lie at the very heart of regulation. I am afraid that for once I cannot agree with the Duchess in Alice in Wonderland, who advised Alice to,

    "Take care of the sense and the sounds will take care of themselves".

I prefer the recent comment of the ITC, which has an admirable record in this respect, that,

    "the best and most effective regulation flows from clarity".

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In any walk of life--and broadcasters are no exception--uncertainty and lack of definition present untold opportunities for the skilful and unscrupulous operator to exploit. In the past the situation with regard to the BBC, for example, has been far from satisfactory in the matter of regulation. The fact is that there has not been parity with the independent sector. That fact has been classically acknowledged by the Government--and credit must be given to them for that--in the stronger provisions contained within the new Charter and Agreement. But the anomaly remains. The judge and jury are still to be the same under the proposals in this Bill. That is unsatisfactory enough in all conscience, but if one adds to that the fact that the new BSC will be entitled,

    "to draw up guidance relating to principles to be observed"

an invitation is in effect being extended to unscrupulous broadcasters to get round such guidelines if they can in an unwelcome cat-and-mouse game. It will at the same time fill honest broadcasters with doubt about what can and cannot be done. Waffle never pays. People have the right to know unequivocally what the rules are, and they also need to know what will happen to them if they take a chance.

The Earl of Halsbury: I wish to support the amendment of the noble Viscount. I must warn the Government that if they do not accept it they will suffer from a progressive deterioration of standards. This creeping deterioration is already on us and we must bring a halt to it.

Lord Rix: I am happy to play a supporting role in relation to the amendments tabled by the noble Viscount, Lord Caldecote, and the noble and learned Lord, Lord Ackner. I must apologise if I speak for a moment longer than I should because I suspect that I shall not be present at the Report stage. Like the noble Viscount and the noble and learned Lord, I feel that it is wrong to give injustice or unfairness a much lower profile than sex and violence as issues of public concern. It might even be argued that while there are those who support the portrayal of sex and violence on freedom grounds, or because they enjoy that sort of thing, I have yet to hear anyone defend injustice or unfairness as being for the common good, or of personal benefit to those who like that sort of thing.

Nor am I persuaded that the definition of what is unjust and unfair is so much harder to agree on than that which is unacceptable in terms of sex and violence before the watershed, or at any time for that matter. What I think is true--here I come to my particular and perhaps predictable interest as chairman of MENCAP--is that sometimes it takes a certain amount of expertise, or at least long acquaintance with the subject matter, to recognise unfairness and injustice. For example, my hackles rise when people with learning disability are portrayed as dangerously antisocial, or prone to behaviour which will reduce the value of property. Those who have no personal knowledge of people with learning disability might assume that such portrayal was accurate. Therein lies the problem. If no one believed it, it would matter much less if someone said it.

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Similarly, if MENCAP or any other charity is unjustly portrayed in a poor light, that can do a great deal of damage when people assume the portrayal is accurate. I have no objection to just and fair criticism. That is a healthy check on accountable bodies. As an organisation, MENCAP has on the whole had--and, if I may say so, has deserved--quite good media coverage. I have sometimes at least found radio and TV willing to present positive images of people with learning disabilities. Sometimes, however, that has not been the case. In such cases I have found obtaining an apology and a correction a little like the proverbially frustrating gathering of grapes off thorns, or figs off thistles. Requiring the commission to write and publish codes of good practice and to monitor and report on their implementation could help considerably to avoid and, where necessary, make amends for the lapses from virtue to which even the best of broadcasting systems are sometimes prone. That would be to everyone's benefit. I am happy to support these amendments.

Lord McNally: I hope that the Minister will show a little courage in the face of this wave of political correctness that is washing over the Benches in this Chamber. There are, of course, dangers as regards irresponsible behaviour of broadcasters, but I warn the Committee that there are also dangers in the over-regulation of broadcasting. In this field, the artistic field and the political field, one is constantly chasing a will-o'-the-wisp in trying to draw up some tight code which will achieve perfection. When one talks about taste and decency, or the portrayal of sex, or due impartiality, one is talking about subjective matters, the perception of which often changes from generation to generation.

There comes a point when a free Parliament in a free society has to defend the rights and freedoms of its citizens in a culturally important sector such as broadcasting. Sometimes their freedom to make mistakes must also be defended. Tonight we are hearing the language of restriction which I believe could have dangerous implications for a broadcasting system which in other respects, as I said earlier, Members of the Committee frequently hold up to the rest of the world as an example of excellence. It is an example of excellence, but I am not sure it would remain so for long if some Members of the Committee had their way as regards the restrictions they propose.

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