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Lord McIntosh of Haringey: I am grateful to the noble Viscount, Lord Falkland, for the way he introduced this group of amendments. I am certainly glad to have this opportunity to respond, especially on Amendments Nos. 65 and 66. Although the latter is separate, it would in effect negate Amendment No. 65.

The amendments deal with the fundamentals of the consumer panel: what it will do; its relationship with Ofcom; and how it will deliver for different groups of consumers. As part of its remit, it is our intention that the consumer panel should represent an independent voice for consumer interests to counterbalance the very persuasive industry voices that will be lobbying Ofcom.

We want the consumer panel to be as well organised, well informed and authoritative on behalf of consumers as industry will undoubtedly be on the other side of the equation. We have ring-fenced the work of the panel so that it is concentrated on areas that are of real concern to citizens as consumers—service delivery, price, quality, safety, and complaint handling.

Clause 15(3), which is the kernel of this part of the Bill, lists all the matters about which the panel will have to be able to give Ofcom advice.

We have given the panel flexibility to look into any other matter—except a matter relating to content to which I shall return—which it considers would provide protection for consumers in the relevant markets. I

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believe that the joint committee got it right when it said that the panel should be the conscience not the creature of Ofcom. It will be a legally separate, unincorporated body operationally independent of Ofcom. It will have independence of thought. It will have the power to commission and publish its own research and will be able to give advice to other bodies as well as Ofcom. It might advise the Office of Fair Trading. It might deal with European institutions when new directives are being considered. It might advise government bodies or industry bodies such as ICSTIS.

Ofcom has to consider the consumer panel's advice. It must have regard to that advice where appropriate and the results of any research about which the panel has notified Ofcom. If it chooses not to follow the panel's advice wholly or in part it will have to give the panel its reasons for disagreeing. It will have to ensure that people who are aware of the panel's advice are also informed of Ofcom's reasons. That is a good deal of power for the consumer panel.

We have discussed appointments to the consumer panel. The noble Lord, Lord Puttnam, was not in his place when the amendments were moved. I should not deny him the opportunity to make his points, probably after lunch rather than trying to deal with them now.

I return to the amendments moved by the noble Viscount, Lord Falkland. In speaking to Amendment No. 67, I believe the noble Viscount referred to a memorandum of understanding.

Viscount Falkland: No.

Lord McIntosh of Haringey: No, probably not on this occasion, although I think the noble Baroness, Lady Buscombe, did in response to an earlier amendment.

Amendment No. 63 would require the panel to prioritise its work and make best use of its resources. This really comes under the stricture of the noble Lord, Lord Peyton. These are sensible, grown-up people. Surely, they will prioritise their work just as they are going to get to work in the morning. We do not need to tell them on the face of the Bill to prioritise their work.

Amendment No. 64 would make it more difficult for the consumer panel to prioritise its work if its remit is widened, as is suggested in Amendment No. 64. We focused the remit of the panel on issues that are of key concern to consumers. We do not want to swamp the work of the panel by giving it a free rein to consider matters of content. That is the job of the content board. However—this is the point of Amendment No. 65—we are prepared to give the consumer panel the power to consider matters of content which are referred to it by Ofcom. That is quite restrictive. I do not see any suggestion there that this is a power which could expand, although the noble Baroness, Lady Buscombe, seemed to think that it might.

Here, we are talking of content matters which have a high consumer dimension—for example, misleading

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advertising. It is a matter of content, but something with which consumers are very much concerned. I believe that the consumer panel could be properly given the responsibility of considering such matters without infringing on the role of the content board. For that reason, in moving Amendment No. 65 I want to resist in advance Amendment No. 66, which, as I have said, would negate it.

The noble Viscount, Lord Falkland, referred to the information-sharing issue, which is raised by Amendments Nos. 68, 69 and 70. Ofcom will have to provide the panel with all the information it needs to carry out its role, but it has to pay regard to commercial confidentiality. I do not think that there is any issue here with the Freedom of Information Act. Both Ofcom and the panel will be subject to the Freedom of Information Act. When it comes into effect on 1st January 2005, we would expect Ofcom to abide by the principles of the Act. But in any case the provisions for Ofcom giving information to the panel are wider than those in the Act, so it need not, I think, be a problem.

We should not be complacent, but we should view the sharing of information provisions in Clause 15 from the starting point of the mutually beneficial relationship that Ofcom and the panel will have. We have taken specific measures to ensure that we are not creating an adversarial relationship. Ofcom will share information with the consumer panel and in return it will benefit significantly from the advice that the panel provides to it. The amendments go beyond the boundaries of what we have in the Bill on commercial confidentiality.

Commercial confidentiality is a well-understood concept. It is understood by the courts in cases of dispute. I am afraid that these amendments would give Ofcom more grounds rather than fewer grounds on which it could withhold information. I think it would go in the opposite direction from that which the noble Viscount, Lord Falkland, clearly intends.

Clause 15(9)(b) allows Ofcom to withhold additional information requested by the panel but only where there are good reasons for it to do so. It must have reasonable grounds for not providing information and its general duties will apply in doing so. Amendment No. 70 would require Ofcom to estimate when information withheld from the panel would cease to meet the criteria for withholding, at which time it would have to review the withholding of the information. That is a tall order. Ofcom would have to look into the future and consider when the information would cease to be commercially sensitive, and then, regardless of whether the information would still be of use to the panel, it would have to review the withholding of it. Surely, a better way would be for the panel to repeat its request for information if it still required it after a reasonable period of time.

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On Amendment No. 80 I can be brief. Yes, I heard the powerful case made by the noble Viscount, Lord Falkland, for an annual report. Bearing in mind the points that he makes about different types of consumer and diversity of consumers, we are prepared to consider the amendment between now and Report.

1.45 p.m.

Baroness Buscombe: I am aware of the clock, but given that the Minister's response was relevant to Amendment No. 66, perhaps I may speak extremely briefly to it in response to what the Minister said on Amendment No. 65. I accept his remarks on Amendment No. 65. The matters that would be referred to the consumer panel would have a high consumer dimension. The purpose of Amendment No. 66 was to give clarity and to define more clearly what we believe the role should be to ensure no erosion of boundaries between the content board and the consumer panel on certain issues. However, I hear what the Minister said. It is helpful that we shall now have in Hansard reassurance from the Minister that there is, certainly in the Minister's mind, clarity in terms of the kinds of issues that might be referred. He used an example of misleading advertising as something which would have a high consumer dimension. On that basis, having spoken to Amendment No. 66, I shall not move it.

Lord Avebury: Are we debating Amendment No. 66? If the idea is that we should discuss it with this grouping, there are one or two points I should like to raise. It seems to me that the amendment precludes Ofcom from asking the consumer panel's advice on anything broadcast or otherwise transmitted by means of electronic communications networks. Obviously, it follows that if the consumer panel is not able to give advice on those matters by virtue of Clause 15(5), Ofcom should not ask it for any such advice under 15(6)(c). In the unlikely event that it did, in the absence of the express prohibition contained in the amendment, the consumer panel would have no choice but to say that it was unable to help Ofcom.

So I am not sure that we must spell out the obvious limit to the advice the consumer panel can offer that it must be under one or more of the headings in subsections (3) and (4) and that it must not be under the heading mentioned in subsection (5). If it is, why single out one rather than the others? The Committee may think that it would be better to make it clear what the limits are on the requests Oftel can make and, instead of this amendment, to insert at the beginning of Clause 15(6)(c), "subject to subsections (3), (4) and (5) of this section".


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