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Lord Kirkhill: My Lords, this was a basic disagreement which existed across the Floor of the House at an earlier stage of the Bill. My view, which I have expressed via my amendment, is that Clause 66, although entirely desirable, as I said earlier--and I welcome its inclusion in the Bill--nevertheless needs to be strengthened because the issue of regionality must be embedded more firmly within the clause. Of course the Minister says that he will not give way on this issue. I do not intend to divide the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 145 to 148 not moved.]

Lord Trefgarne moved Amendment No. 149:

Page 58, line 5, leave out from second ("the") to end of line 6 and insert ("relevant period").

The noble Lord said: My Lords, I move the amendment on behalf of my noble friend Lord Kinnoull, and I shall speak also to Amendment No. 154. The amendments seek to establish that the existing quality and quantity of programmes, together with the infrastructure which provides for them, are the benchmark for any licence variation imposed by the ITC. If the benchmark is to be the level of existing services rather than a licence minimum, it is crucial that there is a fair definition of existing services.

The underlying principle behind the amendments is to ensure fairness to all parties who may be involved in a potential change of ownership. Hence the 12-month time period rather than a snapshot period; for instance, just before advance notice of a bid or at the time of change of control, which could enable the incumbent licence holder to raise the regional programming to an unrealistic level in the short term to deter a potential takeover. Such an action would be unfair and anti-competitive. I hope therefore that your Lordships will agree to the two amendments. I beg to move.

Lord Thomson of Monifieth: My Lords, this is one of the important amendments being proposed to strengthen the clause. The clause as it stands sets out the benchmark period for setting new licence conditions as the period in subsection (6):

That would mean that a regional service could be wound down to the minimum required by the licensee before the change of control takes place. The ITC could then be forced to accept the minimum provision.

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If the Minister had been a little more forthcoming on the previous amendment--I am sorry that he was so negative with regard to the deletion of subsection (6)--that would have solved the problem. The positive step to take is the one proposed in the amendment; that is, that the proper benchmark should not be whatever is the snapshot, as the noble Lord described it, immediately before the change of control but the actual situation over a reasonable period. A reasonable period is a period of 12 months. Twelve months is in fact the usual period over which the ITC assesses programme performance, and so it is sufficiently long to allow for variations in the pattern of scheduling. I hope that we will receive a more positive response from the Minister on this amendment than on the previous one.

Lord Cullen of Ashbourne: My Lords, I support the amendment so ably moved by my noble friend Lord Trefgarne and spoken to by the noble Lord, Lord Thomson of Monifieth. I hope that your Lordships will support it.

Lord Inglewood: My Lords, as your Lordships will know, an amendment similar to this one was tabled in Committee by the noble Lord, Lord Kirkhill, and I was not then sympathetic to it. I believed that there was a danger, in assessing the licence holder's performance over a 12-month period, rather than in the period "immediately before" a change of control, of failing to take account of the current position--the one from which the new controller would have to take the licence holder forward. I thought that if there had recently been a diminution in performance because of some outside factor, it would not be fair to require the new controller to achieve levels no longer achieved. Correspondingly, I thought that if there had recently been improvements to the regional service, assessment of a 12-month period might prevent their being consolidated in the licence.

However, I have given the matter further consideration and have discussed it with the ITC. It is not clear precisely how performance over 12 months would be assessed. Would the commission take as its reference point the peak of performance in the period, or the average, or take into account seasonal variations? In some ways that imprecision is also the strength of such a proposal. It allows the commission to look at performance over a year and judge what standard it would be fair, given all the circumstances, to preserve through varied licence conditions. I am now persuaded that allowing the commission to look at a 12-month period when assessing the performance of the licence holder will give it flexibility to set conditions which best reflect what should be expected of a new controller. I accept, in principle, my noble friend's amendment and the Government will bring forward its own amendment at Third Reading to include this provision.

Lord Trefgarne: My Lords, I am most grateful to my noble friend. On that basis, I am happy to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendments Nos. 150 to 152 not moved.]

Lord Trefgarne moved Amendment No. 153:

Page 58, line 20, leave out from ("is") to end of line 22 and insert ("designed to be of particular interest to and to be first broadcast for persons living within the area for which the service is provided (or any part of it), and which complies with and is no less comprehensive than current directives issued by the Commission in accordance with its powers under this Act.").

The noble Lord said: My Lords, circumstances have changed since a regional programme was defined within Section 16 of the 1990 Act. There is a definition contained within the ITC's invitation to apply for a licence upon which the ITC has since expanded. It is my understanding that that may be updated in the near future.

However, I am told that the ITC recognises that an inadequate definition in the Bill is undesirable and believes that Section 4 of the 1990 Act can set down wider definitions as a condition of the licence. However, that has not been tested. Furthermore, I believe that new legislation should be clear and unambiguous. The purpose of the amendment is to encompass in legislation any definition directed by the ITC to ensure that there is no ambiguity or inconsistency. I beg to move.

Lord Prys-Davies: My Lords, I support the amendment. It is really about the definition of regional programmes under subsection (10). It occurs to many of us that the definition is inadequate and possibly defective. It is inadequate because the only criterion which has to be satisfied is that the programme should be:

    "of particular interest to persons living within the area".

That pitches it pretty low. It may be defective as it does not address the position where there are well-defined territories within the television region which possess significantly different cultural identities. I am thinking of the HTV area in Wales and Bristol. It provides programmes for two separate and significantly different areas with different cultures and backgrounds. I believe that almost by definition some of the programmes will not be of interest to all the people living in that region. Amendment No. 153 seeks to correct the deficiency by inserting "any part" into the definition.

I am mindful of the fact that the Minister, who has been helpful and constructive throughout the stages of the Bill, has always placed an emphasis on the need to ensure that the commission has flexibility. He is against introducing too much rigidity into the Bill. We have taken full note of that advice. This definition offers the combination of a broad statutory definition while at the same time giving the commission the right to exercise its broad judgment and to define what it means in further directives. We believe that that combination is the best approach to the problem and it gives me great pleasure to support the amendment.

Lord Forbes: My Lords, I believe that the definition is far better than that contained in the Bill. I support the amendment.

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Lord Inglewood: My Lords, we have no quarrel with the basic purpose of this amendment. We are happy to consider further with the ITC how the definition of "regional programming" might be improved. We shall briefly set out here what seem to us to be the key considerations in the matter.

Perhaps I may begin by saying that not as much turns as it might on what falls within the definition of a "regional programme". This is because Clause 66(3)(b) also includes within the protection of the new ITC powers other programmes which contribute to the regional character of the service. Nevertheless, particularly as regards measuring the extent to which regional programmes are made within the region, it is important that the definition of "regional programme" is right.

It seems to us that this amendment is probably on the right lines in including both a general statement of the principle of what a regional programme is, which appears on the face of the statute and cannot be tinkered with, and a capacity for the ITC in applying the Act to interpret that general provision in detail. Our two principal reservations about the precise formulation put forward in the amendment are as follows. First, we wonder whether it is necessary to specify that a programme cannot be regional unless it is first broadcast for persons living within the licence area. This does not seem to us to be of the essence in the same way as it is crucial that the programme is designed to be of particular interest to persons living within the licence area. It is an essentially contingent factor which would normally apply to a regional programme but on occasion may not, because the programme is in fact also of particular interest to people in an adjacent region or regions or, exceptionally, is, while being incontestably regional, shown more widely on the network. This seems to us to be the kind of issue which the ITC should be free to interpret in detail. Our second reservation concerns the need to make clear that the ITC's power of interpretation is subordinate to the general terms of the definition in the Act. The amendment as drafted places the ITC on a par with Parliament in determining what is regional and we are not sure that that is quite right.

Nevertheless, as I have said, the Government are happy to consider this further with a view to bringing forward an amendment of their own at the earliest stage. I hope that in view of that assurance my noble friend will agree to withdraw his amendment at this stage.

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