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Baroness Buscombe: I thank the Minister very much for her response. I am grateful to the noble Baroness, Lady Howe of Idlicote, for her support.

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Notwithstanding the fact that I entirely accept the Minister's comments that children come within the meaning of the word "people", it is helpful to have that clear in Hansard, as much of this relates to children and the next generation. It is helpful to have had that discussion.

I also thank the noble Lord, Lord Avebury, for his support and contribution to the debate. It is an important area although this is, as I made clear, a probing amendment. I am grateful to the Minister for her reassurance that it is not the role of Ofcom, nor should it be, to tilt the playing field in the direction of any particular technology or manufacturer of that technology. We do not want the clause deleted, as that would negate the possibility of developing the use of technologies and systems for media literacy. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 41 not moved.]

Clause 10 agreed to.

[Amendment No. 42 not moved.]

Clause 11 [Duty to establish and maintain Content Board]:

12.30 p.m.

Lord McNally moved Amendment No. 43:

    Page 11, line 31, after "OFCOM;" insert—

"(aa) a member who is a non-executive member of OFCOM but is not either the chairman of OFCOM or the chairman of the content board;"

The noble Lord said: We move to the clauses setting out the content board. Before we all get carried away with Peytonitis, let me state one important thing. We have had the experience that, if we do not write specific powers and duties into a Bill, very clever lawyers afterwards can say, "It's not in the Bill, so the regulator can't or shouldn't do it". Ministers should not get too attracted to the idea that broadbrush or light legislation will deliver what Parliament wants.

As for my noble friend Lord Thomson's idea of government by Orders in Council, No. 10 will probably be studying his remarks as a possible new initiative. Perhaps that is the third way.

I shall be brief because we have already heard the arguments, certainly to the amendments in my name, in the pre-legislative Select Committee. The amendment would give a central role to the content board. Our request for an extra member is so that content matters do not become only the isolated responsibility of a single member who is simply seen as Mr or Mrs Content. It would mean that there was a body of weight on the main board.

The amendments also seek to give the content board executive teeth—probably to the chagrin of the noble Lord, Lord Peyton. Tessa Jowell said earlier that she wanted the executive and advisory balance to develop over time. It is all very well to have such faith in organic growth, but it is just as well to have those responsibilities written in from the beginning so that the content board has real weight within the Ofcom structure. That would allow the main board to

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concentrate on strategic issues and economic regulation while giving the content board a degree of autonomy and authority. To have that autonomy and authority, however, it must have powers and teeth. Through that, it would not become mere window-dressing, as some have feared, but a body in which external lay influences and authorities can have real confidence. I beg to move.

Baroness Buscombe: I notice that my noble friend Lord Peyton of Yeovil is not in his place to speak to Amendment No. 43A, so I shall speak to Amendments Nos. 44, 50, 53, 58 and 60. I also wish to speak in support of Amendment No. 57.

All the amendments relate to the content board. It seems rather strange that we are here debating the make-up and constituents of the content board and their duties. A newspaper article tells me that the content board—albeit the shadow content board— is holding its inaugural meeting today. I find it extraordinary that we are considering legislation that is still in draft form, as a Bill, when a content board is already in place. It will be argued that it is only a shadow board, but it has gone ahead and been sorted out before we have had a chance to debate these clauses. That said, I wish the board well with its inaugural meeting.

Amendment No. 44 seeks to ensure that, as far as is practicable, the membership of the content board shall be representative of the full range of significant political, cultural and religious attitudes in the UK. As the Bill stands, there are few constraints on whom Ofcom may appoint to the content board, subject to very general principles of good governance.

The make-up of the board—that is, its constituents—is particularly important, because the Bill envisages Ofcom's role primarily as a commercial regulator, which is a very different function to that of broadcasting regulation. The argument that Ofcom should be left to its own devices does not stand in this area. Principles such as "due impartiality" are timeless and have little to do with the rapidly changing commercial market place that the Bill is designed to address. For example, on issues of political opinion, religious belief or cultural values, many people might find themselves in a minority, so the solution is increased access for minority groups. The legal framework to achieve that is already in place—due impartiality and balance—but the problem is to make those principles work in a pluralistic society. The amendment would ensure that Ofcom selects a content board that is minded to give concepts such as balance and due impartiality real meaning as it sets about its task of reviewing broadcasting codes of conduct for a pluralistic society.

I turn to Amendment No. 50. Throughout the passage of the Bill, confusion has arisen as to the nature of the functions conferred on the content board. The amendment would ensure that, if a function were bestowed on the content board, the main board would not concurrently exercise its jurisdiction. As the Bill stands, there is no mechanism

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to prohibit this duplication; both boards could effectively exercise immediate responsibility on a particular matter. The amendment does not propose that ultimate and determinative responsibility should be transferred to the content board, only that the limitations within which it is to operate should be clearly defined.

In another place the Minister for Broadcasting referred to the possibility that Ofcom and its content board would work together to establish a memorandum of understanding—or something similar. We do not believe that the informal approach to the issue adopted by the Government addresses the significant concerns of businesses facing double jeopardy. The confines within which each board functions must be established in the Bill. Our amendment makes clear those confines and so avoids the possibility of confusion and, worse still, of double jeopardy.

I turn now to Amendments Nos. 53 and 58. Amendment No. 53 would give the content board a duty to evaluate what impact its actions have on business competitiveness. We have in mind in particular businesses that use broadcasting—or anything that will come under the remit of the content board—as a central part of its functioning. For example, a number of businesses are looking to use interactive digital television as a medium for communicating with customers, and it is unclear what the role of the content board will be in such cases. Will the content board be able to rule on issues even if that leads to the distortion of markets and companies being put out of business? If so, what assurance do we have that the content board even took that into consideration when making its decision?

The amendment has the support of the CBI, which is concerned that UK business will not be a priority for Ofcom. What is worrying is that there is a consumer panel and content board but business is not represented in the same way in Ofcom and will not therefore have the clout to resist measures that result in an anti-competitive outcome. With that in mind, it is all the more important to include some detail in the Bill on the extent of the content board's intended powers so that there is no chance of their being misapplied in the future.

"Content" is an integral part of the commercial service offering of broadcasting companies and companies producing multimedia services, but the changing nature of the market could mean that in future it will represent a key part of a much wider variety of businesses. Therefore we believe that a clause should be added to ensure that the content board has to take into account the impact of its decisions on companies that both now and into the future will use anything that comes under its remit as an integral part of their commercial service offerings.

Amendment No. 58 is an attempt to rectify the imbalance which I outlined concerning the absence of a formal body or procedure whereby business interests are represented on Ofcom. It states that the content board's role of keeping OFCOM informed about,

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    "the different interests and other factors",

in Clause 12(4) which are relevant to the carrying out of Ofcom's functions should include information on how business competitiveness is or could be affected. We believe that that would go some way to ensuring that Ofcom is kept in touch with business and ensure that the regulator is aware of the potential impact of any regulations on competitiveness in this increasingly important area of economic activity and growth.

Without the inclusion of this amendment in the Bill, there is a real danger that Ofcom, perhaps without realising, will do pointless damage to areas of British business owing to a lack of representation and information on the interaction of Ofcom's activities and the business community. We believe that our amendment would rectify that omission.

Amendment No. 60 enables the content board to give informed advice on the provision and quality of content services for disabled and older people. Disabled and older viewers form a major public interest in relation to television and radio content yet they are not even mentioned in Clause 12. If the content board is to function effectively and perform its duties, this interest group must be effectively represented. We believe that the appointment of Kevin Carey, who is visually impaired, to the shadow Ofcom content board is very welcome. Kevin's experience as a director of Humanity and as vice-chairman of the RNIB has seen him work determinedly for the inclusion of all in the information society. We hope that the content board will, with his influence, work to champion the interests of disabled people.

Amendment No. 60 seeks to provide a mechanism for ensuring that the content board is able to derive maximum benefit for those who may be disadvantaged within broadcasting. It would grant Ofcom the power to establish a committee or panel focusing on the interests of people with disabilities or special needs resulting from age or personal circumstance. For example, the content board will have a role in monitoring the quality of specific content services designed to maximise visually impaired and deaf people's enjoyment of television programmes. Those services also benefit older people and those with learning difficulties. In addition, the content board's function with regard to media literacy must target disabled people and other excluded groups as a priority. For that it will need an effective, co-ordinated input with a committee or panel dedicated to those interests. Such a committee or panel would greatly assist the content board in the execution of those functions. The profile of such initiatives must remain high and effectual.

Finally, I should like to speak in support of Amendment No. 57, tabled by my noble friend Lord Crickhowell along with the noble Lords, Lord Puttnam, Lord McNally and Lord Hussey of North Bradley. As we heard, this provision grants the content board the power to publish information as it feels appropriate, reflecting the recommendation of Professor Eric Barendt given in evidence to the Joint Scrutiny Committee. While we welcome the creation of a content board, the confines within which the

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board will operate should be clearly defined. A framework needs to be established to ensure that the board enjoys public confidence and legitimacy. There has been considerable debate regarding its potential executive or advisory responsibilities and the interrelationship with Ofcom to which I have already alluded.

We agree that ultimate responsibility for the content board should rest with Ofcom, but are concerned that the position of the board within the structure of the main regulator has not been properly considered. By publishing its views about conclusions and recommendations regarding its functions, the content board would enjoy greater popular confidence. That would allow a more lively and vigorous public debate on issues that directly interest and concern all members of society. We believe that this amendment provides a mechanism through which the functions of the content board will become less ambiguous and more transparent.

12.45 p.m.

Lord Gordon of Strathblane: I should like to speak briefly to Amendment No. 45 in my name which seeks the deletion of subsection (8). I do so not because I object to the provisions of subsection (8), but because it seems that they are subsumed in the more general provision of subsection (9) which requires Ofcom to satisfy itself that the person to be appointed will not have a,

    "financial or other interest which would be likely prejudicially to affect the carrying out by him . . . of his functions".

That seems perfectly adequate. I see no reason uniquely to single out the BBC and Channel 4 and simply to leave, for example, the MD of Sky, Channel 3 or an independent radio company for that matter to be caught under the provisions of subsection (9).

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