Previous Section Back to Table of Contents Lords Hansard Home Page


Lord Davies of Oldham: As I indicated to the noble Lord, Lord Avebury, when he moved Amendment No. 319, these are very technical and complex matters. We have a little time before we need to reach a definitive position on the Bill, so if the noble Baroness will allow me, I shall write to her before Report with our response to the very important position that she has adopted and the points she has made in her contribution to this debate.

Baroness Buscombe: I am grateful to the Minister, and hope that he will write to us before Report, as he says, so that we can review the situation then.

5 Jun 2003 : Column 1555

On Question, amendment agreed to.

Lord Davies of Oldham moved Amendments Nos. 318B to 318F:


    Page 531, line 41, leave out from first "that" to "has" in line 15 on page 532 and insert "a provision contained in a condition of the licence is to have effect, after the abolition of licensing—


(a) to the extent specified in the notice; and
(b) subject to such modifications (if any) as may be so specified.
(2A) OFCOM are not to give a continuation notice except to the extent that they consider that provision to which it will give effect, as modified by the notice, ("the continued provision") corresponds to provision of one or more of the following descriptions—
(a) provision that they have power to include in SMP conditions;
(b) provision authorised by section 70(2) or (4) for inclusion in access-related conditions;
(c) provision relating to matters mentioned in Article 16 of the Universal Service Directive or Article 7 of the Access Directive.
(2B) A continuation notice relating to provision corresponding to anything that OFCOM have power to include in SMP conditions—
(a) may identify the market by reference to which an SMP condition replacing the provision would have to be set; and
(b) in so far as the provision corresponds to anything that OFCOM have power to include only in SMP apparatus conditions, must do so.
(2C) OFCOM are not to give a continuation notice relating to provision corresponding to anything that OFCOM have power to include only in SMP apparatus conditions except to the extent that it" Page 532, line 18, leave out "that condition" and insert "the continued provision"


    Page 532, line 18, at end insert—


"(2D) The modifications for which a continuation notice may provide—
(a) must be confined to modifications for the purpose of securing that the provision to which they relate continues to have effect for so long as the notice is in force; but
(b) in the case of provision which is expressed to impose a requirement to be met before the abolition of licensing, may include a modification under which that requirement must continue to be met for so long as the notice remains in force." Page 532, line 20, leave out from beginning to "remain" in line 24 and insert—


"(a) the continued provision,
(b) every provision made by a direction, determination or consent given or made for the purposes of the continued provision, and
(c) so far as necessary for giving effect to anything mentioned in paragraph (a) or (b), every provision made by or under the licence under the 1984 Act that is not so mentioned,
are to" Page 532, line 27, leave out sub-paragraphs (8) to (10) and insert—


"(7A) Where the continued provision is one that OFCOM have power to include only in an SMP apparatus condition, it shall be their duty, as soon as reasonably practicable after giving the continuation notice—
(a) to carry out an analysis of the market which, under sub-paragraph (2B), is identified in that notice;

5 Jun 2003 : Column 1556


(b) to take all other steps necessary for enabling them to decide whether or not to set an SMP apparatus condition by reference to that market for the purpose of replacing the continued provision; and
(c) to decide whether or not to exercise their power to set such a condition for that purpose.
(7B) In the case of every other continued provision, it shall be OFCOM's duty, as soon as reasonably practicable after giving the continuation notice—
(a) to take all steps necessary for enabling them to decide whether or not to set a condition of any other description under Chapter 1 of Part 2 of this Act for the purpose of replacing the continued provision; and
(b) to decide whether or not to exercise their power to set a condition under that Chapter for that purpose.
(7C) It shall be the duty of OFCOM—
(a) as soon as reasonably practicable after making a decision required by sub-paragraph (7A) or (7B), but
(b) in a case where that decision is a decision to set a condition, not before the coming into force of that condition,
to give a notice under sub-paragraph (7) with respect to the continuation notice.
(7D) The duties imposed by sub-paragraphs (7A) to (7C) apply only where OFCOM have not previously given a notice under sub-paragraph (7) with respect to the continuation notice in question.
(7E) This paragraph has effect in the case of a licence granted under section 7 of the 1984 Act to persons of a particular class as if—
(a) references to the holder of that licence were references to the members of that class; and
(b) the manner in which a continuation notice or notice under sub-paragraph (7) is to be given to members of that class were by its publication in such manner as, in OFCOM's opinion, is appropriate for bringing it to the attention of the members of that class who are affected by the notice."

On Question, amendments agreed to.

[Amendment No. 319 not moved.]

Lord Davies of Oldham moved Amendments Nos. 319A to 319E:


    Page 533, line 8, at beginning insert "Sub-paragraph (1A) has effect"


    Page 533, line 14, leave out from "2003/330)" to "in" in line 15 and insert—


"(1A) If, at any time after the commencement of section 42, OFCOM—
(a) are satisfied that a procedure has been followed in relation to the proposal that satisfies the requirements of Article 7 of the Framework Directive, and
(b) publish a notification to that effect in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by the proposal,
the proposal (with such modifications, if any, as are specified in the notification) is to have effect, from the publication of the notification," Page 533, line 45, at end insert—


"( ) Section 189 applies to a decision by OFCOM to publish a notification under this paragraph as it applies to a decision by them under Part 2 of this Act.
( ) In this paragraph "the Framework Directive" has the same meaning as in Chapter 1 of Part 2 of this Act." Page 534, leave out line 39 and insert—


"(a) any provision to which effect is given, after the abolition of licensing, by a continuation notice"

5 Jun 2003 : Column 1557

Page 535, line 4, leave out "the conditions" and insert "anything"

On Question, amendments agreed to.

[Amendment No. 320 not moved.]

Lord Evans of Temple Guiting moved Amendment No. 320A:


    Page 540, line 2, at end insert—


"(1A) Where a dispute—
(a) has arisen or arises about anything occurring or existing before the time when the revocation of those regulations comes into force ("the relevant time"),
(b) relates to matters disputes about which would (before that time) have been referable to the Director under regulation 6,
(c) is neither a dispute which was referred to him before that time nor a dispute arising after that time which is referable to OFCOM under section 182, and (d) is referred to OFCOM after that time either during the transitional period or in a case in which OFCOM are satisfied that the circumstances that prevented the making of a reference before the end of that period are exceptional,


sub-paragraph (1) is to have effect as if the dispute were a dispute arising before the relevant time in the case of which a reference to the Director had been made under regulation 6 before that time."

The noble Lord said: What I have to say now is known as the Pepper v. Hart statement—that is, a statement about the meaning of the Bill which is intended to be relied upon in courts if there is any doubt about its correct interpretation.

Doubts have been expressed in this House, in another place and elsewhere as to whether the Bill clearly provides that decisions taken by the Secretary of State or by Oftel in exercising any Ofcom function in the transitional period envisaged by Clause 401 is subject to appeal under Clause 189—that is, to a full appeal on the merits. Our view is that this is indeed the effect of Clause 401. Subsection (2) provides that in relation to any such exercise of Ofcom's functions, references in the Bill to Ofcom are to have effect as references to the Director General of Telecommunications or to the Secretary of State, as the case may be. This is as much in respect of references to Ofcom in Clause 189 as in respect of any other references in Part 2 of the Bill.

I hope that noble Lords will find this statement helpful and will not press Amendment No. 320AA. I beg to move.

[Amendment No. 320AA, as an amendment to Amendment No. 320A, not moved.]

On Question, Amendment No. 320A agreed to.


Next Section Back to Table of Contents Lords Hansard Home Page