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Lord Phillips of Sudbury: I want to make some boring, lawyers' points which nevertheless are not unimportant in terms of the construction of the Bill. I am sure that one of the most difficult tasks of the parliamentary draftsman was to try to write into Clauses 260 and 261 the burden of expectation placed upon them by almost all Members who have spoken in favour of the Bill supporting public service standards. My questions in relation to Amendments Nos. 189 and 190 revolve around understanding how Clause 261 fits with Clause 260.

Clause 260 refers in its heading to the "public service remit" for television at large. Nowhere does it make any statement that it is subject to the provisions of Clause 261. The point is that Clause 261, which sets out the public service remit for Channels 3, 4 and 5, is

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infinitely narrower in scope than the provisions of Clause 260. Clause 260(4) lists the "purposes of public service television broadcasting" and the clause twice makes reference to "relevant television services".

My question intends to achieve a greater understanding from the Minister. I have given late notice of the questions, for which I apologise, but in the face of such large pieces of legislation one is operating on a just-in-time basis. I would be pleased to know how one construes the fact that the public service remit of Channel 3 and Channel 5 are confined by Clause 261(2) to,


    "the provision of a range of high quality and diverse programming".

I compare that with the requirements of Clause 260(4)(d), which refers separately to "content", "quality" and "editorial integrity". My question is whether the absence of any reference in Clause 261 to "content" as opposed to "quality", and absolute omission of reference to "editorial integrity", is supposed to imply that those two requirements do not carry across into the public service remit for the public service channels, 3, 4 and 5, governed, as it would seem, by Clause 261. Put another way, is Clause 260 generally applicable to Channels 3, 4 and 5 or is the effect of Clause 261 to narrow the scope of Clause 260 with regard to Channels 3, 4 and 5 to just those matters dealt with in Clause 261?

I want to raise at this juncture one other point, bearing in mind that we are at the Committee stage and trying to be of help both to the Government and the Committee. When looking at Clause 261(3), which deals with the public service remit for Channel 4, which is more expansive than that provided for Channels 5 and 3 services, I wonder why it appears to go wider than Clause 260. It deals with "innovation, experiment and creativity", which is not part of the many provisions of Clause 260. That clause refers in only one place to originality and that is with regard to programmes for young persons and children. Similarly, Clause 261(3) talks of programming exhibiting a "distinctive character" as being a public service requirement for Channel 4, but there is nothing like it in Clause 260.

I therefore have a double conundrum. In one sense, Clause 261 is much narrower than Clause 260, but in respect of the distinctive character of programming on the one hand and innovation and creativity on the other, Clause 261 appears to step outside the ambit of Clause 260.

I apologise to the Committee for having to put those technical matters in a way which will be difficult to follow and comprehend, but, frankly, I know of no other way of contending with them in the method that is required; that is, on the Floor of the Chamber.

Baroness Jay of Paddington: Without wanting to follow on the technicalities of the points that have been raised, it is helpful to the Committee and the Bill that Amendments Nos. 189 and 190 attempt to be more specific about the nature of the public service remit. That is of value.

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I am concerned that we might feel some trepidation about being too precise in trying to identify what we feel is realistic in terms of public service remit and in trying to be prescriptive in identifying the qualities necessary in statute for a public service remit to be observed. In that, we have a British concern that we may be trying to over-regulate in statute an issue which should be left to more vague and less clearly identified roles and qualities.

I want to draw the attention of the Committee to a broader point raised in Amendments Nos. 189 and 190. It is the statutory obligation that some of our neighbours and colleagues impose in the public service context on their broadcasters. I think specifically of France and Spain in the European Union and Canada and Australia in the Commonwealth countries. There are very precise statutory obligations ensuring a fair and proportionate broadcast investment contribution to the culture and industry of their respective countries by the broadcasting channels concerned. I am indebted to the former MEP, Carole Tongue, who has produced a useful summary of comparative regulation in various countries within the OECD. If I may just quote briefly from the Australian legislation, it is clear what it expects:


    "It is to promote the role of commercial television in developing and reflecting a sense of Australian identity, character and cultural diversity by supporting the community's continued access to television programmes produced under Australian creative control."

It seems to me that if that kind of specific legislation is statutorily embraced within a Commonwealth country—I could go on at much greater length on more specific obligations—then those are some of the issues that we should consider when we look at these amendments.

3.30 p.m.

Lord Bernstein of Craigweil: I should like to support the intention behind Amendments Nos. 189 and 190. I speak as a former television executive. ITV was set up very much with the public service remit that established the BBC. Licences were awarded to companies which could demonstrate the ability to produce programmes of a wide range and of high quality. We had a very effective regulator over many years who insisted that that remit was carried through.

By the end of the 1980s the system was creaking. It needed a review. What it did not need was the Broadcasting Act 1990 which was enacted in the full flow of the Conservative Party's belief in market forces. It decided that money, not programmes, should be the arbiter of the licence renewal system. The intention was to auction franchises to the highest bidder. Fortunately, some of the worst effects were mitigated by the Minister of State at the Home Office inserting some last minute amendments to the Bill and by the pragmatism of the Independent Television Commission in awarding the contracts. Nevertheless, the auctions took place. Many companies overpaid, some by tens of millions of pounds. The inevitable result was that the money that should have gone into programmes went into the pocket of the Treasury.

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I do not wish to say that the current picture is totally black. Some companies within the ITV system still aim to provide public service broadcasting but things are changing. Satellite television is getting both more powerful and more competitive and the ownership of the ITV companies may well change. This Bill would allow United States owners to acquire ITV and US companies are not particularly known for their sensitivity for home-grown original programme-making.

The intention behind these amendments is correct. I take my noble friend Lady Jay's point that one can be over-prescriptive but I believe that the amendment which includes the phrasing,


    "a substantial range of high quality original production"

is important and should be on the face of the Bill.

Lord Puttnam: I thank the noble Viscount, Lord Falkland, for moving Amendment No. 289. I have two things to add. I have just spent a most informative weekend at Ditchley Park discussing the relationship between the media, politics and the public with a parallel group of 15 Americans. One thing that most distressed the American group was the almost total absence from American broadcasting of documentaries about the rest of the world. They have become as dead as a dodo.

Amendments Nos. 189, 193 and 194 are all of a piece. They are an attempt to hold the licensees' feet to the fire in terms of programme quality. As an example of why this is necessary, it has already been decided that Channel 3 is no longer required to provide programmes of international interest. The obligation to provide documentaries about the rest of the world has been removed from its licence obligations. That is an example of slippage. It was a foolish thing to do. It is unreasonable to expect that entire area of programming to be left to the BBC. We shall have a diminished television environment as a result. That is the reason for Amendment No. 189, and I am sure it will also have a great bearing on why we will pursue Amendments Nos. 193 and 194.

Lord McIntosh of Haringey: I am very grateful for the way in which these amendments have been spoken to. I do not think the noble Lord, Lord Phillips of Sudbury, should at all apologise for raising the issue of the construction of the Bill because it is indeed complex. If I spend a little time setting out the relationship between Clause 260, which your Lordships' House has already debated, and the following clauses which we are now debating I hope that things will become a little clearer. They did to me when I was trying to work out what they all meant.

Clause 260 sets out the overall remit for all public service broadcasting. To answer the noble Lord's question, that includes Channel 3, Channel 4 and Channel 5. However, it is not an obligation on broadcasters; it is a very detailed set of standards set out for Ofcom. When we debated Clause 260, it was generally accepted that this was the most comprehensive definition of the content of proper

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public service broadcasting that we have ever had. If my noble friend Lord Puttnam looks at Clause 260(6)(c) he will see that coverage of international affairs in news and current affairs and in factual programming is covered in the definitions of Clause 260.

The purpose of it being an obligation on Ofcom is that Ofcom should have the responsibility of reviewing the performance of public service broadcasters, of reporting on that review and of enforcement action. That is not in Clause 260. It comes, as we shall see, in later clauses. It is absolutely essential that we should understand straightaway that Clause 260 is not just a set of words but standards that have to be adhered to, and if they are not adhered to Ofcom has a duty to take enforcement action.

Clause 261, instead of setting the overall remit for all public service broadcasting, defines the remit for each licensed public service channel provider. It divides that up into Channel 3 and Channel 5 for whom the criterion is a range of high quality and diverse programming and for Channel 4 where there is more precise wording. The reason for that is that Clause 261 repeats the existing remit for Channel 4 which was in place when Channel 4 began. It has been generally agreed to be an admirable remit for a public service broadcaster with advertising but without private shareholders.

However, that is not the end of it. We have been talking so far about quality obligations under tier 3 and what these amendments seek to introduce into Clause 261 is quantitative standards under tier 2. I suggest to the Committee that that is unnecessary since all of those requirements are set out in later clauses.

In Clause 274, the requirement for original programming for Channel 3, Channel 4 and Channel 5, which is set out in these amendments, is provided on the face of the Bill.

In Clause 282 the requirement for regional programming in a different sense, that is, programmes made in and of particular interest to the relevant part of the United Kingdom, is set out for Channel 3. In Clause 283 the regional remit for Channel 4 is also set out on the face of the Bill. All of the matters introduced into Clause 261 by the amendments are not necessary because they are spelt out in detail in subsequent clauses of the Bill. I found that enormously difficult to understand and I do not blame anyone, including the noble Lord, Lord Phillips, for finding it difficult, but it is necessary to do it that way.

However, that is not the end. Amendment No. 189 extends the definition for Channel 3 to cover tier 2 matters which, as I said, are already covered. Amendment No. 190 does the same for Channel 3 and for Channel 5, which is a national channel. Here we have a very detailed description of how public service broadcasting should be defined in terms of all the kinds of good programming required from public service broadcasters. That must cover not just factual and entertainment matters, as specified in Amendment No. 189, but all of the other matters specified in Clause 260 plus the elements set out in Clause 261.

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All the points raised are valid and have been taken into account in the drafting of the Bill. I hope that I have shown that our approach is rational and logical and that the Bill's proposals, if not easy to follow immediately, do cover the ground.


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