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Baroness Buscombe: I want to be brief. I have two very powerful briefs in front of me—one from the BBC and one from Sky. In a sense, I have tried to take a few steps back from two sides of a very powerful argument. My noble friend Lord Crickhowell and the noble Lord, Lord Borrie, have said that this is a very important issue because some important principles are involved. I rather like the idea proposed by my noble friend Lord Crickhowell that we should perhaps move towards a list of public service broadcasting channels so that we can easily find them. Perhaps we could do that when we have decided what public service broadcasting means.

On that point, we know that the BBC has been threatened with demotion on the EPG from 101 and 102 to 214 and 215. When I mentioned this to my teenage children, they knew immediately where that would put them on the EPG. To some extent, this is almost a generational problem. Young people do not consider this an issue. As far as they are concerned, it is all accessible, it is all more choice and it is all easy to access. However, I have enormous sympathy with the principle behind the amendments. We on these Benches have already made clear that we support the principle of due prominence. I agree that it is worthwhile nudging Parliament to give us a clearer definition of due prominence.

My understanding is that the proposed amendments to Clause 304 would tighten up what is meant by due prominence for public service channels so that EPG owners could not interpret that in any way that suited them. I also understand that the proposed amendments would also extend the principle of due prominence to include regional and local variants of public service channels so that EPG providers had an obligation to make them easy to find. I have every sympathy with that. Several Members of the Committee, particularly my noble friend Lord Roberts, explained eloquently why that is so important.

However, I wish to raise one concern. If we are talking about having due prominence for public service channels, that is all well and good at the

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moment but what happens as we move into the future? Amendment No. 250A concerns me as it seems that it would require that the prominence given to the BBC services, or public service broadcasting services, would be greater than it would have been without the giving of such guidance as is to be specified in Ofcom's code, and that the degree of prominence at least matches the degree of prominence in existence at the date of the commencement of the Office of Communications Act 2002.

Does that mean that public service broadcasters could claim that a code requirement for greater prominence entitles, for example, the BBC's new digital services such as BBC3 and BBC4 to be placed ahead of competitors such as E4 and Arts World which were given fair, reasonable and non-discriminatory listings in the EPG? I believe that that could cause concern not just among those who are passionate believers—as are the Committee and myself—in public service broadcasting but also among viewers. At the end of the day we have to think of the viewers. How are they supposed to discriminate between what we think of as public service broadcasters and something like Arts World which has all the character—if I can put it that way—of public service broadcasting? In that sense perhaps this approach could prove—certainly in the future as more channels become available—unfair, unreasonable and discriminatory.

I have real concern about how one would set the parameters in terms of easy access as we move into the future and have more and more choice. I am also concerned that we find ourselves being drawn into an argument between two particular parties at the moment. I have great sympathy with what the noble Lord, Lord Borrie, said; namely, that perhaps this question gives us an opportunity to nudge matters in the right direction and to obtain more clarity in Parliament with regard to what we mean by due prominence.

Baroness Blackstone: My noble friend Lord Borrie teased the noble Lord, Lord Crickhowell, and suggested that he predicted what I would say some time before I spoke. However, the noble Lord, Lord Crickhowell, was absolutely spot on. He predicted perfectly what position I would adopt. The matter raises a lot of important issues but the noble Lord is absolutely right that it has to be a matter for Ofcom.

I turn to the amendments that we are discussing. The proposed new subsections (2A) and (2C), which Amendment No. 250A seeks to introduce to Clause 304, relate to the provision of regional versions of some public service channels. As the Committee will be aware, the broadcasters that provide such regional versions have numerous listings on EPGs but which version of a channel is accessed through a broadcaster's primary listing is currently dictated by where in the country it is viewed. Hence in Scotland what the viewer simply selects as BBC1 is actually the regional variation BBC Scotland, whereas in London it is BBC London. That is no accident, nor is it

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inevitable. Rather it is an agreed arrangement borne of free commercial negotiations between the broadcasters and the providers of EPGs.

The intention behind proposed new subsections (2A) and (2C) appears to be to allow a broadcaster, or in some cases its viewers, to choose which version of the broadcaster's channel is accessed through the primary listing of that channel. That seems a perfectly reasonable goal, and I am not aware of any reason why it cannot be achieved at the moment. Indeed, if Ofcom saw fit to do so, Clause 304 would already allow it to set requirements as to the presentational aspects of EPGs to make sure that that was the case.

Therefore, my objection to the proposal lies not so much in the end result that it seeks to achieve, which seems perfectly legitimate, as in the means by which it seeks to do so. It would seek to set in stone something that should be left either to free negotiation or to Ofcom's discretion to resolve. Moreover, it would constitute a perfect example of the type of over-regulation that we have made great efforts to avoid in drafting the Bill. In my view, it would constitute a totally inappropriate use of statute.

My objections as regards proposed new subsection (2B) are broadly similar. In short, the provision would seek to determine through statute something that ought to be left to the discretion of the parties or at least the regulator. I have a further objection. What is proposed in paragraph (a) does not seem feasible. Members of the Committee need only apply the wording of the paragraph to BBC1 to see what I mean. It already appears as the 101 listing at the head of the most commonly used EPGs, and I am not aware of any 100 listing, so I fail to see how Ofcom could ensure it greater prominence than it has at the moment.

If those behind the amendment seek confirmation that we want to make it possible for public service channels to be given more prominent places on EPGs than might be the case if matters were simply left to negotiation, let me assure them that that is certainly our intention. It is the purpose of Clause 304(2). However, as I said, it is equally our intention to leave it to Ofcom to decide what prominence a given channel should be afforded. It will have to take lots of factors into account, such as the degree to which the removal of a channel to a new part of the listing might inconvenience viewers. Ultimately, however, we want to leave the matter to its discretion.

I shall answer the question posed by the noble Baroness, Lady Howe. EPGs are now regulated by Oftel and the ITC. It will be for Ofcom to draw up a new single code on EPGs. However, I do not expect that the current provisions she mentioned, which basically seem useful, will be significantly amended.

I am afraid that proposed new subsection (2D) is unacceptable, too. Although it is natural that the affected parties want to know what lies in store for them, the regulation of EPGs seems set to be a pretty technical and complex matter. If it turns out that Ofcom is able to draft, consult and finally publish the code required by Clause 304, all within six months of

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the commencement of the clause, all will be well and good. Given the importance of getting the matter right, however, I see no reason to set what may well turn out to be an unrealistically short period for the accomplishment of what is, as has been said around the Committee, a very important task.

Amendments Nos. 250B and 250D are related. To date, the only services to which we have wanted to give the benefit of due prominence have been television services. Amendment No. 250B aims to extend that benefit to BBC digital radio services by adding them to the list of public service channels in Clause 304. That seems misguided. In contrast to television, there are no public service channels on radio other than those provided by the BBC. Affording those channels due prominence would create an imbalance between the BBC and commercial radio services. We do not believe that that would be appropriate when digital radio is still in its infancy.

Amendment No. 250D also relates to radio services. It aims to extend the scope of the clause to cover EPGs on radio. Since its effects would therefore be felt more generally, it would not create the sort of imbalance that it seems would result from Amendment No. 250B. I would be happy to take it away for consideration.

I now return to Amendment No. 250C, which would extend the list of services to be given due prominence to any of those provided by the Welsh Authority and not just S4C Digital. I agree that if the listing position given on an EPG is significant in attracting an audience, it is quite important for S4C that its viewers have easy access to the channel wherever they are in the UK. But I believe that the amendment is superfluous, as, if a new service is provided by the Welsh Authority, under Clause 202, subsection (4) of Clause 304 would allow the Secretary of State to add it to the list of channels benefiting from due prominence.

In light of my response to all of the amendments, I hope that the noble Lord will withdraw his amendment.


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