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Lord Evans of Temple Guiting: This amendment appears to be identical to one which was tabled in Committee by the Opposition in another place but was not reached there. It appears to be aimed at giving further protection against self-incrimination to those responding to Ofcom information requests under Clauses 132 and 133. For our part, we consider that the general law, together with the provisions in this group of clauses, will provide an adequate level of such protection and that specific provision of the kind proposed here is both undesirable and unnecessary.

In our view, there is already sufficient legal protection for the privilege against self-incrimination, which was created under the common law, without the need to include additional express protection on the face of the Bill. As we explained to the Joint Scrutiny Committee in our response to Recommendation 51 on what were then Clauses 98 and 99 in its report on the draft Bill, such provision is not necessary to ensure that the privileges in question are fully protected. We take the view that where a proposed safeguard is co-extensive with the protection guaranteed by the Human Rights Act, the safeguard need not be repeated in a subsequent Bill. The Human Rights Act applies to all legislation. It would be confusing and superfluous to draft on the basis that its provisions do not apply to a particular Bill or that they need repetition in order to take effect.

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As we further explained to the Joint Committee on Human Rights, in response to its first report, the Government do not believe that it would be sensible to adopt a practice of drafting Bills in a way that expressly limits all enabling powers, or other executive powers, so that they may not be exercised incompatibly. That limitation is achieved unambiguously by Section 6 of the Human Rights Act, so that an act done under the purported authority of an Act of Parliament that enables, but does not require it, will be unlawful. If Parliament wishes a decision-maker to act incompatibly, the Bill will have to make that intention very clear. But where compatibility is intended, we believe that it is redundant to say so.

Given the further observations of the Joint Committee on Human Rights in paragraph 44 of its fourth report, in which the Committee suggests that it is good practice to ensure that procedural and other safeguards in this area are expressly provided for on the face of the Bill, we have reconsidered this matter. But, after due consideration, we continue to be of the view, for the reasons explained, that it is neither necessary nor appropriate to make express provision for such matters in this case.

The information provisions in the Bill need to strike a fair balance between the need, on the one hand, to ensure that Ofcom has the information it requires in order to monitor and if necessary enforce compliance and for related purposes and, on the other hand, the need to protect human rights. We believe that the provisions, as drafted, achieve this balance and furthermore they are compatible with the European Convention on Human Rights.

Before I ask the noble Lords to withdraw this amendment, I turn to one point made by the noble Lord, Lord Avebury. Since the Human Rights Act 1998 came fully into force on 2nd October 2000, it is no longer necessary to include express protection for the privilege against self-incrimination in order to ensure that that privilege is properly protected. Having said that, I would ask the noble Lords to withdraw this amendment.

Lord Avebury: I am not absolutely sure whether the reply from the noble Lord means that, because the Financial Services and Markets Act 2000 was passed before the Human Rights Act came into force, it was necessary to insert a provision of this kind in that legislation, but it is not now because it is taken care of by the Human Rights Act. The noble Lord is nodding, so I suppose that is what he means. If the Financial Services and Markets Act had been in front of your Lordships now, we would not have been contemplating the insertion of such a provision.

Moreover, am I correct in thinking that what the noble Lord has told Members of the Committee is that if a person makes a statement under Clauses 132 or 133, it cannot be used for any of the purposes mentioned in our amendment, even though it would, in effect, lie on the table? It could not be used in settling any civil penalties which might be imposed under the powers that Ofcom possesses, but would have to be disregarded because, as the noble Lord explained, the

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powers against self-incrimination are already contained in the Human Rights Act. If that is the case, I am very happy to withdraw the amendment. Of course, we shall be able to reassure those who pointed this matter out to us, that the protection they were seeking with this amendment is already achieved by some other means. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 134 agreed to.

Clauses 135 to 147 agreed to.

Clause 148 [Interpretation of Chapter 1]:

[Amendment No. 127 not moved.]

Lord Avebury moved Amendment No. 128:


    Page 135, line 41, after "the" insert "initial"

The noble Lord said: The Government have amended the Bill in order to narrow the definition of electronic communications apparatus from that originally used in the Bill. They were apparently afraid that the definition used could include many items not typically thought of as terminal apparatus, such as ducts and poles, and that that could have had unintended and distorting effects. We are not sure whether the Government intended to narrow the definition to that of terminal apparatus—the last piece of apparatus at the end of a network, such as a telephone, fax or computer terminal. If so, the clause, as now drafted, uses a different definition of apparatus than that used in Annex A of British Telecom's licence—apparatus by means of which messages are initially transmitted and ultimately received.

The definition in Clause 148 appears to include intermediate apparatus such as switches and Internet servers and other equipment used by the hundreds of ISPs in the UK. This has the potential to extend regulation into competitive areas that to date have been working fine under market forces without unnecessary intervention. Consistent with the principle of keeping regulation to the minimum necessary, the proposed amendment would limit what may be regulated in a clear and unambiguous way using time-tested terminology understood by the industry and the regulators alike. I beg to move.

Baroness Wilcox: I support the amendment. As the words I have in front of me are almost identical to the words used by the noble Lord, Lord Avebury, I shall leave it at that.

Lord McIntosh of Haringey: BT sends its briefings to more than one person, does it not? I recognise so many of these briefings, whether they are from Sky, BT or mobile phone operators, that I refrain from commenting all the time on them.

The directives we are implementing define the provision of electronic communications networks and services. Apparatus is a different matter. We are free to regulate and define apparatus as we think fit. We define "significant market power" apparatus in Clause 148 simply to provide continued protection for the

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benefit of those consumers who still rent handsets or other equipment from their communications suppliers. Fewer and fewer people do so, but some people do and they should still be protected. The reference to "significant market power" appears because we are proposing that in future Ofcom will be able to impose this kind of obligation only on persons found to have a significant market power in a relevant market.

In deciding to carry forward this consumer protection related to apparatus, which is not required by the directive but which has been a feature of UK telecoms licences since they were first issued in 1984, we believe that it is right to modernise the framework in this way. Of course, nearly all rented apparatus is rented from BT, for historical reasons if no other.

Amendments Nos. 128 and 129 seek to restrict the scope of the definition of electronic communications apparatus for the purpose of regulating SMP apparatus so that only the first and last parts of the communications chain would be caught. We understand that the concern behind this is that the definition as it stands would catch apparatus such as switches and Internet servers and other equipment used by service providers, including Internet service providers. In other words, it would catch network equipment.

We agree that it is not necessary or appropriate for that kind of equipment to be caught by the definition but we do not believe that there is a real problem. In the context of this definition, "sending" and "receiving" have to be read as meaning the first act of sending the signal and the final act of receiving it. We do not think that there will be any confusion with those kinds of equipment which occur in the middle of the chain of transmission and which could more properly be said to be "conveying" a signal than sending or receiving it. So we do not believe that the amendments will make any difference.

Lord Avebury: From the Minister's reply it would appear that he also received the BT note. It is well and good that he should have done so. Obviously this is an important point that BT has taken up with noble Lords and it has been the subject of a useful discussion. If what the Minister said is correct, the matter can be discussed between the department and BT and it can be given the reassurances that it seeks—that is, that it was not intended to catch apparatus other than that which it calls "initial sending" and "ultimate receiving" apparatus; and that the definition in the Bill will deal only with apparatus of that kind even though we still believe that there may be some advantage in using the terminology in the BT licence because of its well understood provenance.

If the Minister is certain about the legal meaning of the words in the definition as it stands, and we can satisfy those outside the House that that is the case, we shall not need to pursue this issue at a later stage. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Amendment No. 129 not moved.]

Clause 148 agreed to.

Clauses 149 and 150 agreed to.

Clause 151 [Duties of OFCOM when carrying out spectrum functions]:

5.45 p.m.

Lord Avebury moved Amendment No. 130:


    Page 140, line 30, after "economic" insert ", social, cultural"

The noble Lord said: This is the first of a number of amendments dealing with spectrum use, where Ofcom has important functions such as the provision of advice and services for the purpose of securing compliance with the UK's international obligations.

Ofcom's general duties under Clause 3 require it to secure the provision of a wide range of TV and radio services appealing to a variety of tastes and interests—so the spectrum duties are not limited by economic considerations—and the wording of Clause 151(2)(b) refers vaguely to "other benefits". We believe that services for minority groups and the important concept of the "access for all" development of broadband communications should be acknowledged by adding the words "social, cultural" to make clear what these benefits are.

In granting recognised spectrum access under Clause 156, Ofcom could indirectly have considerable power over the content of television services, and potentially over the cost of satellite services to end users, which in turn would adversely affect plans to develop broadband connectivity in remote and rural areas.

The wording proposed reflects that of the International Covenant on Economic, Social and Cultural Rights, to which the UK is a party and which is therefore one of the international obligations that Ofcom's advice and services are meant to secure. Article 15 of the convenant,


    "recognizes the right of everyone . . . to take part in cultural life",

and requires state parties to take the steps,


    "necessary for the conservation, the development and the diffusion of science and culture".

Therefore broadcasting and access to the Internet, the most important means of diffusion, must be regulated in a manner that promotes science and culture and that is not purely concerned with entertainment.

In the last report by the UK on implementation of the covenant there is a factual summary of what is provided on TV and radio and how many people have access to the Internet, but nothing about government policy on how they intend to see that electronic communications are used for the diffusion of culture across the range of communities that make up the United Kingdom. The amendment would at least give Ofcom a duty that parallels the objectives of the convenant and help to ensure that we have positive things to say about the use of the spectrum in pursuit of ICESCR objectives the next time we report.

As to Amendment No. 131, subsection (2) gives Ofcom the duty to have regard to a number of issues outlined in paragraphs (a) to (d) and then subsection

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(3) states that it may disregard such of the matters mentioned in the preceding subsections as appear to Ofcom to be matters to which it is not required to have regard, apart from Clause 151. This is not elucidated in the Explanatory Notes but it would appear to give sweeping powers to Ofcom to disregard important factors that are key in any decision about RSA.

So far as paragraph (b) is concerned, there may be circumstances in which some or all of the factors in subsection (2) have no application, but Ofcom has to have regard to them in order to conclude that they are not relevant. I beg to move.


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