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Lord Campbell of Croy: My Lords, perhaps I may add a footnote to what my noble friend Lord Mackay said when moving the amendment. There was yet another Wilson who could have been involved in the case. I refer to the noble and learned Lord, Lord Wilson of Langside, who was at that time the joint chairman of the "No" campaign in Scotland. He had been a former Lord Advocate in the Labour Government. He could easily have been another Wilson doing the same thing.

6.30 p.m.

Lord Hardie: My Lords, I hope that I can give noble Lords opposite some comfort on this amendment. I do not think that there is any need to be concerned. I was interested to hear the noble Lord, Lord Mackay of Ardbrecknish, reminding me of the Wilson case. My memory is often bad, but in view of the fact that I drew that case to the attention of the Committee, I am bound to say that in the intervening two weeks my memory has not yet gone so bad that I cannot remember the case--although I must say that it seems longer ago than that. Wilson will be followed by the courts, and that is one reason why this amendment is unnecessary.

I said at Committee stage that responsibility for what was broadcast rested with the broadcasters and the regulatory authorities. Noble Lords will recall that at Committee stage I set out at length the position on broadcasting. I do not propose to repeat myself. I simply refer noble Lords to Hansard and cols. 420, 434 and 435 of the proceedings in Committee. But there are codes in place to ensure that the reporting of controversial subjects is treated with due impartiality and accuracy both in the news services and in the more

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general area of programmes dealing with matters of public policy or political controversy. In that situation I believe that the first part of the amendment is unnecessary. As the noble Lord, Lord Elis-Thomas, said at Committee stage (at col. 433 of Hansard), it is for the existing broadcasting authorities to ensure on behalf of Parliament that the broadcasters operate impartially.

The tradition is that the Government do not interfere in such matters. It is for the broadcasters themselves to observe the code and to face up to their responsibilities. I urge the House not to deviate from that norm. The matter is best left to the broadcasters. If they fail in their objectives the courts will intervene, as happened in Wilson. This has happened in very few cases. The very fact that there are few cases indicates that broadcasters act responsibly. I am sure that they will do so in the reporting and coverage of the lead-up to the referendums. I believe that the amendment in the three subsections seeks to interfere with the way in which broadcasters fulfil that duty. I suggest that such interference is neither necessary nor appropriate in view of the safeguards in place. The situation has worked well in the past both as regards general elections and referendums.

As far as concerns subsection (2), this introduces a new point. It imposes a particular view of what "impartiality" means. I am not sure what would be the effect of allowing organisations to campaign at the same broadcasting time for the same duration. Does it mean that any organisation that declares itself to be campaigning for or against the proposition should be given exactly the same air time? That raises the prospect of, say, half a dozen people coming together to form an organisation. It is quite legitimate for them to do so. Are they to have the same time as Scotland Forward or Think Twice, both of which organisations apparently have a substantial following? Is that fair or sensible? Should we not simply leave the matter to the broadcasters themselves to decide? Is it appropriate for us to set out in legislation that the time allocated to one organisation must be on precisely the same date or time of day as is allocated to another organisation? It may be that to do so will not result in appropriate impartiality on the part of the broadcasters. For that reason I suggest that this subsection is also unnecessary.

As far as concerns subsection (3), I submit that this is also unnecessary but that it goes further than Wilson. As the noble Lord, Lord Mackay of Ardbrecknish, has already observed, Wilson is the law and it protects those who are anxious about party political broadcasts covering the referendum. No doubt the various broadcasting organisations and bodies will take that into account in deciding how they are to fulfil their obligations. I do not believe it is appropriate for me to give free legal advice to the company of the noble Lord, Lord Crickhowell. No doubt it has access to lawyers who can advise it in appropriate terms, for which it will have to pay a modest charge.

As far as concerns subsection (3), it goes slightly further than Wilson in the sense that it prohibits a party political broadcast dealing with the affairs of Scotland or Wales during the referendum campaign. It is not confined to the referendum. One can imagine that something may arise in the run-up to the referendum that is unconnected

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with it which justifies a party political broadcast about that issue. That issue may have a bearing on the affairs of Wales or Scotland. This amendment will preclude that. I do not believe that that is a desirable outcome of this amendment.

In short, I ask noble Lords to reflect on the way in which broadcasting companies have fulfilled their obligations with responsibility in the past. Let us leave it to them to continue to do so, and let us leave it to the courts to ensure that on the rare occasions when they overstep the mark they are brought back into line. This is not an area in which the Government should seek to regulate and, with respect, it is not appropriate for this House to do so either. I urge the noble Lord to withdraw his amendment.

Lord Mackie of Benshie: My Lords, before the noble and learned Lord sits down, can he express a view on the point put by the noble Lord, Lord Mackay of Ardbrecknish? He said that there were only two arguments for and against and therefore the time would be allocated fairly not between the parties but between the argument for and against. The noble Lord, Lord Crickhowell, said that he had been involved in a broadcast which had been three to one against him. There is nothing more desirable than to have three to one against one if one has half the time available to put one's argument. It would be nice if the noble and learned Lord could give a view on that point.

Lord Hardie: My Lords, the noble Lord, Lord Mackie of Benshie, raises an interesting question which, from recollection, was addressed in Wilson. Where in a referendum there are only two options, "Yes" or "No", as I understand was the position in 1979, the court has held that there must be balance as between the "Yes" campaign and the "No" campaign. This time the situation in Scotland is slightly more complicated. As the noble Lord, Lord Mackay of Ardbrecknish, has pointed out, one has the "Yes, yes" group, the "Yes, no" group, the "No, yes" group and the "No, no" group. It will be for the broadcasting authorities to decide how to provide balance in that situation. I agree with the noble Lord, Lord Mackie, that the question is not simply one of three against one, as the noble Lord, Lord Crickhowell, has said. In such a programme, obviously if the noble Lord, Lord Crickhowell, were given more time, or half the time, there would be a balance. Knowing the noble Lord's abilities, I am sure that he would not need such an advantage.

Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble and learned Lord for that response and to the noble Lord, Lord Mackie of Benshie for his intervention which encapsulated some of the points that I was making. I hope that the noble and learned Lord does not think that such legislation is unnecessary because I cribbed--if that is the word--pretty closely from the Independent Broadcasting Authority Act 1973 which lays out some of the matters in subsections (1) and (2). I pretty well followed what is said in the Act, amending it slightly to take account of the fact that we are dealing with referendums and not general elections.

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Between what the noble and learned Lord said today and what he said in Committee, I am reassured about the first subsection. I have little doubt that the broadcasters will follow impartiality in the circumstances explained to us by the noble Lord, Lord Mackie of Benshie. On the second, I can see some of the problems, but clearly if the broadcasters decide that one of the parties should have a party political broadcast, they will have to give the same facility to the others. It has to be roughly the same day of the week and time as given to the other parties. The words are again taken from the Independent Broadcasting Act 1973.

It clearly would not be balanced to have a party political broadcast for one side at 9 o'clock in the evening on a weekday, and for the other side, let us say, at 9 o'clock in the morning on a Saturday. The law already laid down makes it clear that factors such as the day of the week and time of the day must be taken into account in deciding whether there is balance.

I was a little worried about the noble and learned Lord's answer to the third point. He seemed to be suggesting that the Government might want to have a party political broadcast on Scottish affairs. That would worry me. However, I am probably at ease with that proposition when I read the judgment of the Lord Ross, which I hope encapsulates what I believe to be the right way to proceed. He said:

    "It is up to the respondents now to decide"--

that was the independent broadcasting authorities--

    "what political broadcasts if any should be arranged in relation to the referendum in place of the four party political broadcasts in question. It will be necessary however to ensure that the same time is given to the proponents of 'Yes' as is given to the proponents of 'No'. If no broadcast can be arranged that may be unfortunate but in that event there will at least be no question of a failure to maintain a proper balance. Nor will the public be entirely deprived of information contained in broadcasts regarding the referendum since, as I have already observed, there will be current affairs broadcasts dealing with the referendum".

If the Government decided that they wanted a party political broadcast in Scotland or Wales because of something that had arisen, the broadcasting authorities would have to be mindful of the words that I have read out from that judgment. With the Lord Advocate's assurances, backed up by the judgment of Lord Ross, I am reasonably content that so far as concerns broadcasting the rules will be fair and reasonable to both sides. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 31 and 32 not moved.]

Clause 5 [Expenditure]:

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