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Lord Davies of Oldham moved Amendments Nos. 320B to 320G:



    Page 540, line 16, at end insert—


"( ) But OFCOM are not to give a direction by virtue of sub-paragraph (2)(a) containing provision which they would have no power to include in—
(a) a condition set under Chapter 1 of Part 2 of this Act; or
(b) a direction under section 187."

5 Jun 2003 : Column 1558

Page 540, line 25, leave out from "consider" to end of line 27 and insert "that the direction makes provision corresponding to that which they have power to include in—


(a) conditions set under Chapter 1 of Part 2 of this Act; or
(b) directions under section 187." Page 540, line 29, leave out from beginning to end of line 30 and insert "(in whole or in part) a direction which—


(a) was given by virtue of sub-paragraph (2)(a); or
(b) is a direction to which a notice under sub-paragraph (4) relates." Page 540, line 30, at end insert—


"(6A) Where a direction which OFCOM have power to revoke under sub-paragraph (6) makes provision corresponding to anything that OFCOM have power to include in a condition set under Chapter 1 of Part 2 of this Act, it shall be their duty, as soon as reasonably practicable after giving the direction or as the case may be the notice under sub-paragraph (4)—
(a) to take all steps necessary for enabling them to decide whether or not to set such a condition for the purpose of replacing the direction; and
(b) to decide whether or not to exercise their power to set a condition under that Chapter for that purpose.
(6B) It shall be the duty of OFCOM—
(a) as soon as reasonably practicable after making a decision required by sub-paragraph (6A), 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 (6) revoking the direction in question.
(6C) The duties imposed by sub-paragraphs (6A) and (6B) apply only where OFCOM have not previously revoked the direction in question." Page 540, line 32, at end insert—


"( ) In this paragraph "transitional period" means the period which is the transitional period (within the meaning of section 401) in relation to this paragraph."

On Question, amendments agreed to.

[Amendments Nos. 321 and 322 not moved.]

Lord Davies of Oldham moved Amendment No. 322AZA:


    Page 542, line 12, at end insert—

"Transitory amendments to telecommunications terms in Broadcasting Act 1990

23A (1) This paragraph has effect, in the case of each of the provisions of the 1990 Act to which it applies, in relation to times between—
(a) the commencement of Chapter 1 of Part 2 of this Act; and
(b) the commencement of so much of this Act (apart from this paragraph) as amends or repeals that provision.
(2) The provisions of the 1990 Act set out in sub-paragraph (3) shall have effect (subject to sub-paragraph (4)) as if—
(a) for every reference to a telecommunication system there were substituted a reference to an electronic communications network; and
(b) for references to running such a system there were substituted references to providing it.
(3) Those provisions of the 1990 Act are—
(a) section 46 (licensable programme services);
(b) section 51(1)(a) (procedures for consideration of applications for additional services licences);
(c) section 72 (local delivery services);
(d) section 75 (procedures for consideration of applications for local delivery licences);

5 Jun 2003 : Column 1559


(e) section 112 (licensable sound programme services);
(f) section 117(1)(a) (procedures for consideration of applications for additional services licences);
(g) section 181 (apparatus deemed to be apparatus for wireless telegraphy).
(4) Sections 46(2) (licensable programme services), 112(2) (licensable sound programme services) and 201(2) (programme services) of the 1990 Act shall each have effect as if for paragraph (b) there were substituted—
"(b) a service which satisfies the conditions in section 230(5) of the Communications Act 2003;".
(5) In sections 48 and 114 of the 1990 Act (additional services), references to electronic signals shall have effect as references to signals within the meaning of section 29 of this Act.
(6) Section 75(2) of the 1990 Act (consultation with relevant licensing authorities) shall have effect as if in paragraph (b) for the words "would be required to be licensed" there were substituted "is a system which (but for repeals made by the Communications Act 2003) would have been required to be licensed".
(7) In section 181 of the 1990 Act (apparatus deemed to be apparatus for wireless telegraphy), "connected"—
(a) shall continue to be construed in accordance (notwithstanding its repeal) with section 4 of the 1984 Act; but
(b) shall be so construed as if, in that section of the 1984 Act, a reference to an electronic communications network were substituted for every reference to a telecommunication system.
(8) Part 5 of Schedule 2 to the 1990 Act (restriction on holding of licences by operators of public telecommunication systems) and the Broadcasting (Restrictions on the Holding of Licences) Order 1991 (S.I. 1991/1176) shall have effect as if references to a national public telecommunications operator were references to a person who provides an electronic communications network so as to make it available for use by members of the public in the whole, or substantially the whole, of the United Kingdom."

On Question, amendment agreed to.

[Amendment No. 322ZA not moved.]

Schedule 18, as amended, agreed to.

Schedule 19 [Repeals]:

[Amendments Nos. 322A to 322C not moved.]

Lord Evans of Temple Guiting moved Amendments Nos. 323 and 324:


    Page 567, leave out lines 43 and 44.


    Page 569, line 25, at end insert—


    "European Parliament (Representation) Act 2003 (c. 7)In section 12(4), in the definition of "programme services", the words from "(including" to "local delivery services"."

On Question, amendments agreed to.

[Amendments Nos. 325 to 327 had been withdrawn from the Marshalled List.]

Schedule 19, as amended, agreed to.

Clause 400 agreed to.

Clause 401 [Transitional provision for anticipatory carrying out of functions]:

Lord Avebury moved Amendment No. 328:


    Page 351, line 10, at end insert—


"and where in pursuance of such an order under section 403 any such function as is referred to in paragraph (a) or (b) is carried out by that Director or the Secretary of State, references in section 189

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to OFCOM shall in relation to anything referred to in that section have effect as if they were references to that Director or the Secretary of State as the case may be."

The noble Lord said: In Committee in another place, Stephen Timms, the Minister, agreed that only decisions made by Oftel or the Secretary of State after the Bill comes into force but before Ofcom takes up its powers—which is likely to be somewhere near the end of this year—should be subject to appeals, including appeals on merit, under Clause 189. The wording of the Bill does not specify that, and the Minister said in Committee in another place that it needed to be changed.

No amendment was made on Report. We were told that it was the Government's intention that the Minister would make a statement on Report in another place, but that did not happen either, perhaps because debate of the relevant parts of the Bill was curtailed by the fall of the guillotine. In view of what the Minister said about the last group of amendments that we debated, we do not believe that there is an ambiguity in the Bill in relation to which a Pepper v Hart would be appropriate in this instance. On contrary, we would like the right of appeal to be in the Bill, in accordance with the Minister's undertaking. I beg to move.

Baroness Buscombe: We support the amendment.

Lord Evans of Temple Guiting: I must apologise to the House. In the rush to get through before the next debate, I inadvertently spoke to the wrong amendment a few minutes ago. I hear what the noble Lord, Lord Avebury, is saying. The Government's view is that the Pepper v Hart statement is actually watertight. I shall take away his points and return later, but certainly before Report stage. I apologise again for my mistake.

Lord Avebury: I am grateful for that assurance and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 401 agreed to.

Clause 402 [Application of enactments to territorial sea and other waters]:

Lord Evans of Temple Guiting moved Amendment No. 328A:


    Page 352, line 39, leave out "or"

On Question, amendment agreed to.

Clause 402, as amended, agreed to.

Clause 403 [Short title, commencement and extent]:

[Amendment No. 329 not moved.]


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