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Earl Howe: As my noble friend Lady Knight of Collingtree explained, the amendment seeks to address what was identified at Second Reading as a shortcoming in the Bill—namely, that it took no account of the autonomy of the patient or the right of the patient to make a choice about the treatment that he or she receives.

I welcome the amendment as an improvement to the Bill, at least as regards its broad aims. However, I ask my noble friend whether the amendment, as it stands, is satisfactory. What if the patient who refuses sustenance lacks capacity to take decisions about his treatment? What if the patient is a child? What if he is not sufficiently informed to make a balanced judgment?

If the amendment were made, doctors would be absolved from trying to exercise their professional judgment in cases in which, currently, they have a duty to do so. It would mean that, if a patient refused sustenance on, perhaps, a single occasion, a doctor would have no duty in law to discuss the pros and cons of that decision with the patient. It would mean that considerations of the mental capacity of the patient were irrelevant.

I cannot think that my noble friend intends any of that, but she will need to persuade me quite hard that the amendment, in its current form, is right. It seems to leave the law less strong than it is at the moment.

Lord Clement-Jones: I agree strongly with what the noble Earl, Lord Howe, said. It is a complex area, and I know that Amendment No. 5 contains a great deal more correct complexity. That amendment recognises that it is not just a simple matter of whether the patient has refused sustenance. When we come to that debate, that will become a great deal clearer.

Baroness Andrews: I endorse what the noble Earl said. The problem raised by the amendment is that it does not distinguish between patients with the capacity to make a decision and those lacking that capacity. It does not take account of the fact that a patient who lacks capacity may refuse sustenance, even if its provision would be in their best interest. For example, an elderly patient suffering from dementia might refuse food and water because of confusion or a paranoid belief that the food was poisoned. Therefore the amendment would create the perverse result that a doctor could lawfully withdraw sustenance from a patient who refuses it, even if the patient lacked the capacity to make the decision and even, if by doing so, they were to put their lives at risk.

More significantly, that would represent a weakening of the current law which requires doctors to act in the best interests of patients where they lack

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capacity to take decisions for themselves. In the light of those remarks, I would ask the noble Baroness to consider seriously her proposed amendment.

Baroness Masham of Ilton: I wish to agree with what the Minister has just said, although I agree with the spirit of the amendment. However, I think that it needs to be amended.

Baroness Knight of Collingtree: The hour is late and we have been discussing the Bill for rather longer than perhaps we thought we were going to. I appreciate that it will have to be postponed. As always, I shall be glad to consider carefully what has been said and to think about a better form of words to adopt in the Bill as we proceed with it to a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Lord Grocott: Debate on this Private Member's Bill has gone on a little longer than we had anticipated. With the agreement of the Committee, I hope that we shall find time to complete the Committee stage as soon as can be conveniently arranged. In the mean time, however, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Communications Bill

8.43 p.m.

House again in Committee.

Clause 182 [Reference of disputes to OFCOM]:

Lord Avebury moved Amendment No. 143:


    Page 167, line 7, at end insert—


"( ) Paragraph 20A of Schedule 18 shall have effect in respect of disputes referred to OFCOM in respect of behaviour taking place before the commencement of section 182 of this Act."

The noble Lord said: We are concerned that no direct provision has been made in the Bill for dealing with disputes which arise after the Bill has come into effect, but relating to acts done before that date. Clauses 182 onwards go into some detail on disputes and appeals, but there seems to be no reference to procedures for dealing with disputes, in particular about interconnection, relating to events that occurred before the repeal of the Telecommunications (Interconnection) Regulations 1997, but which come to light only after those regulations have been repealed by this Bill.

Paragraph 20 of Schedule 18 covers the case where a dispute had already been referred to the director general under Regulation 6 of those regulations, but it had not been resolved by the time the revocation of the regulations came into force. Under the present regime, however, many disputes are notified to the director general long after the events to which they relate. It is

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necessary therefore to provide transitional procedures for disputes submitted to Ofcom after 25th July 2003 when the new regulatory system comes into force, which should include remedies for the parties as if they had been referred to the director general prior to that date.

The amounts of money involved are significant, as one can see from referrals made in the past to the director general. I shall not weary Members of the Committee with more than one example; that of the case of Flat Rate Internet Access Call Origination (FRIACO) intelligent network charging. Although that dispute has been under investigation for over a year, apparently it was only in February 2003 that the critical information that BT had upgraded its switch decoding capability came to the knowledge of the director general. While the benefit to the rest of the telecoms industry cannot be accurately quantified because of commercial sensitivities, some analysts estimate that they may be repaid almost 15 million as a result of the decision on this case.

I believe that the Government have indicated that disputes which are not raised until after Ofcom formally assumes its functions will be subject to an "exceptional circumstances" requirement, which seems to be the purpose of Amendment No. 320A. If the Government are not prepared to accept these amendments, they need to spell out exactly what the requirements will be and how the procedure will operate. However, it would be far better to put in place provisions such as we have proposed in Amendments Nos. 143, 321 and 322.

Amendment No. 321 would ensure that certain existing directions made by Oftel relating to interconnection and carried forward after the Bill comes into force, by virtue of the transitional provisions in the Bill, will be brought within the new significant market power regime to the extent that they deal with issues of SMP and, hence, within the ambit of SMP reviews, which Ofcom is required to carry out under Clause 81.

Where Oftel is already dealing with a dispute when the Bill comes into force, Paragraph 20(2)(a) of Schedule 18 requires Ofcom to make a determination as if it were the director exercising the powers given to him in the old regulations, the Telecommunications (Interconnection) Regulations 1997. If the director had already given a direction under Regulation 6 of those regulations, Ofcom has the power to give notice under Paragraph 20(4) that it should remain in force. As that regulation is concerned with the resolution of interconnection disputes, Members of the Committee might think that issues of SMP would not arise. However, some of the directions made by Oftel go further than merely resolving interconnection disputes and, in effect, impose new regulation in relation to issues of SMP. That is the case with FRIACO, which I mentioned earlier. We believe that, to the extent that such directions deal with issues of SMP, they should be brought within the new SMP regime under which Ofcom has the power to carry out an analysis of the market. If it concludes that a company is dominant in

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the market, it decides whether to apply SMP conditions that regulate the behaviour of the company within the market.

When the relevant SMP conditions come into force, or if Ofcom decides not to apply such conditions, then to the extent that such directions deal with issues relating to SMP, they should cease. This would prevent a series of one-off directions dealing with economic regulation from being maintained outside the SMP process instead of being built into the mainstream regulation and thereafter being subject to the obligation on Ofcom under Clause 81 to be kept under regular review. Without this, such directions could be kept in force indefinitely, with no obligation for review, which plainly would not be appropriate or correct. I beg to move.

Baroness Buscombe: I support the amendments, to which I have added my name. As the noble Lord, Lord Avebury, has already said, they confront the situation that it remains unclear, as the Bill is drafted, whether Ofcom can impose remedies with a retrospective effect, so disputes submitted after 25th July 2003, when the new regulatory regime commences, may not have retrospection. Ofcom will have the power to fine for behaviour but may not be able to give redress to the parties involved. Therefore, our aim is to seek clarification on this issue.

I should like to use this opportunity to put down a marker on an important issue which we shall debate later in our deliberations. The reason for doing so is that the rights of appeal against decisions made under Part 2 of the Bill, which we are debating now, contrast significantly with those rights of appeal currently afforded by the Bill to broadcasters which find themselves subject to economic regulations under Part 3 of the Bill. Clause 189 introduces full rights of appeal on facts of law to the competition appeals tribunal for decisions, directions, approvals and consents made under Part 2. That is welcome.

Clause 310(4) in Part 3, however, provides only for appeals to the competition appeals tribunal for a person affected by a decision by Ofcom to exercise its Broadcasting Act powers for a competition purpose. There is a serious concern that this provision for full rights of appeal does not go far enough, exposing broadcasters to decisions of an economic nature which are not taken for a competition purpose, relating, for example, to the pricing or packaging of services but which are not appealable to the CAT. Such decisions could be taken instead, for example, under the Part 1 duties to further the interests of consumers in relevant markets or to secure the availability of a wide range of TV and radio services.

When the Bill was in Committee in another place, this issue was raised by the shadow Secretary of State for Culture, Media and Sport in the context of the clause currently under discussion. At that time, the Minister indicated that there should be no right of appeal to the CAT on matters of content regulation, a point which was repeated when the relevant clauses in Part 3 came to be debated. We believe that answer misses the point. It may not be desirable public policy for content regulation to be

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subject to a full appeal process. However, the key point is that decisions of a purely economic nature, such as those on broadcasters' pricing of channels, could be taken by Ofcom under Part 3, for reasons other than a competition purpose, with no full right of appeal to the CAT available. On the other hand, price regulations for mobile telephone operators under Part 2 will be subject to the full rights of appeal to the CAT. That is surely a discrepancy that the Government need to address.

I shall return to the subject when we reach a later point of the Bill, but it would be interesting to know from the Minister if the Government's thinking on the issue has moved any further since the debates in another place.


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