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The Earl of Northesk: My Lords, I am of course grateful to the Minister for that reply. Although he fleshed out what was said in Committee, I still find it slightly dispiriting that much the same arguments were deployed. However, as I concede, at least they were fleshed out.

The noble Lord, Lord St John of Bletso, rightly raised the issue of spam, and I was extremely grateful to him for that. I was grateful, too, for the contribution of the noble Baroness, Lady Howe. However, I should counsel her that, so far as I am concerned, the amendment does not bite in any way on content but solely on the issue of privacy.

I hear what the Minister says about the role of the Information Commissioner in respect of regulating privacy. But, to my mind, the amendment does not

23 Jun 2003 : Column 54

seek to regulate; it seeks to impose a base standard in respect of infringement of privacy over which Ofcom could and should perhaps have oversight. Therefore, on that point I do not believe in truth that the amendment is as deficient as the Minister would like me to believe.

Ultimately, the privacy of the individual and his protection against unwarranted infringement is no small thing. If the amendment were attempting to ratchet up that protection or, indeed, to introduce a system of regulation in its own right, I could attach some credibility to the Minister's position. But I do not believe that it does; it merely seeks to replicate a regime that the Government believe to be fit for purpose for radio and television services and to apply it equally to electronic communications network services—as I said, not in the form of regulation but as a simple standard.

The Minister—indeed, all noble Lords who have spoken in this debate—agree that the issue is important and that doing something about it is right and sensible. I suspect that our only point of difference is one of methodology and of bridging the gap between Royal Assent for the Bill and whenever—the noble Lord says 31st October—the relevant provisions come in under the European directive.

However, I regret to say that, in so far as the Government persist in failing to understand that the Bill should also be about technological convergence, I remain unconvinced by the arguments advanced by the Minister. On that basis, I wish to seek the opinion of the House.

5.50 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 99; Not-Contents, 160.

Division No. 2


Ampthill, L.
Anelay of St Johns, B.
Ashcroft, L.
Astor of Hever, L.
Baker of Dorking, L.
Biffen, L.
Blaker, L.
Blatch, B.
Bowness, L.
Bridgeman, V.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carnegy of Lour, B.
Chalker of Wallasey, B.
Chan, L.
Colwyn, L.
Cope of Berkeley, L.
Cox, B.
Craigavon, V.
Crickhowell, L.
Denham, L.
Dixon-Smith, L.
Eden of Winton, L.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Ferrers, E.
Fookes, B.
Fowler, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glentoran, L.
Gray of Contin, L.
Hanham, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hurd of Westwell, L.
Jenkin of Roding, L.
Knight of Collingtree, B.
Laird, L.
Lane of Horsell, L.
Liverpool, E.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Mancroft, L.
Mar, C.
Marsh, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Monro of Langholm, L.
Monson, L.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Nicholson of Winterbourne, B.
Noakes, B.
Northbrook, L. [Teller]
Northesk, E. [Teller]
Norton of Louth, L.
O'Cathain, B.
O'Neill of Bengarve, B.
Onslow, E.
Palmer, L.
Park of Monmouth, B.
Pearson of Rannoch, L.
Pilkington of Oxenford, L.
Quinton, L.
Rees, L.
Renton, L.
Roberts of Conwy, L.
St. John of Bletso, L.
Saltoun of Abernethy, Ly.
Seccombe, B.
Selborne, E.
Selsdon, L.
Sharples, B.
Skelmersdale, L.
Slim, V.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Swinfen, L.
Taylor of Warwick, L.
Trefgarne, L.
Trumpington, B.
Vivian, L.
Waddington, L.
Weatherill, L.
Wilcox, B.
Williamson of Horton, L.


Acton, L.
Addington, L.
Ahmed, L.
Amos, B.
Andrews, B.
Ashley of Stoke, L.
Avebury, L.
Barker, B.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Boothroyd, B.
Borrie, L.
Bradshaw, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clement-Jones, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Dormand of Easington, L.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L. (Lord Chancellor)
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fearn, L.
Filkin, L.
Fitt, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Goodhart, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grocott, L. [Teller]
Hamwee, B.
Hardy of Wath, L.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Holme of Cheltenham, L.
Howarth of Breckland, B.
Howells of St. Davids, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jeger, B.
Jones, L.
Jordan, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Livsey of Talgarth, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mallalieu, B.
Manchester, Bp.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Michie of Gallanach, B.
Miller of Chilthorne Domer, B.
Milner of Leeds, L.
Mitchell, L.
Morgan, L.
Moser, L.
Murray of Epping Forest, L.
Newby, L.
Northover, B.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Perry of Walton, L.
Peterborough, Bp.
Pitkeathley, B.
Plant of Highfield, L.
Puttnam, L.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Razzall, L.
Rea, L.
Rendell of Babergh, B.
Rennard, L.
Richard, L.
Rodgers of Quarry Bank, L.
Roll of Ipsden, L.
Rooker, L.
Russell, E.
Sandberg, L.
Sawyer, L.
Scotland of Asthal, B.
Scott of Needham Market, B.
Sharp of Guildford, B.
Sheldon, L.
Shutt of Greetland, L.
Simon, V.
Smith of Clifton, L.
Smith of Gilmorehill, B.
Steel of Aikwood, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thomson of Monifieth, L.
Tordoff, L.
Turner of Camden, B.
Uddin, B.
Walker of Doncaster, L.
Walmsley, B.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Mostyn, L. (Lord President of the Council)
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

23 Jun 2003 : Column 56

6.1 p.m.

The Earl of Northesk moved Amendment No. 5:

    Page 3, line 29, at end insert—

"( ) the desirability of encouraging the best means of access to systems of delivery of high speed data transfer throughout the United Kingdom, and, as appropriate, encouraging competitive markets in such systems;"

The noble Earl said: My Lords, as with the previous amendment, my purpose here is straightforward. The aim is to widen Ofcom's remit so that it has a specific role to play in respect of the roll-out and take-up of broadband. All of us, from the Prime Minister down, accept the huge importance of that in terms of the economic health of our nation and, indeed, in terms of the potential for social good of the new technology.

So far as concerns the amendment, I have tried to reflect the very helpful comments of your Lordships during Committee. First, I have substituted the word "broadband" with the words "high speed data transfer". After all, it is that rather than any generic term that will unlock the full potential of the new technology and is therefore the desired outcome. I hope your Lordships will agree that it gives the amendment that much more technological neutrality and flexibility.

I should advertise my particular gratitude to the noble Lord, Lord Gordon of Strathblane, and my noble friend Lady Buscombe for their contributions in Committee.

23 Jun 2003 : Column 57

The noble Lord, Lord Gordon, emphasised how important it is that we realise that competition-driven solutions will not always afford the appropriate remedy to the problems facing the broadband market. That is especially pertinent to the "digital divide" between rural and urban broadband, but more of that later. As my noble friend Lady Buscombe and the noble Lord, Lord Gordon, pointed out, take-up is as important an issue here as roll-out. Again, I hope that your Lordships will agree that the current drafting of the amendment adequately reflects those concerns.

I should perhaps explain the purpose of the amendment in more detail. I do not underestimate the importance and virtues of the Bill's hierarchy. The observations of the noble Lord, Lord Currie, about that earlier were especially pertinent. Therefore, I can accept the logic of the Government's position, as expressed by the Minister:

    "It would be inappropriate to seek to define broadband as being one of the specific and particular objectives of Ofcom in the Bill".—[Official Report, 29/4/03; col. 669.]

I do not believe that that is what the amendment does. It is correct that broadband is but one element of the new technology—but as expressed in the phrase "high-speed data transfer" it is also one element upon which many other technological developments are dependent. It follows that in acquitting its responsibilities Ofcom's decision-making process should be informed by appropriate and sensible judgments about the roll-out and take-up of broadband, not so much in its own right, but because of its knock-on effect on other emerging technology. To my judgment, the Bill currently contains no such provision, and the amendment will rectify this.

So far, the Government have sought to rely on the sense of Clause 3(3)(a) to excuse this lacuna. As the Minister put it in Committee,

    "We have a perfectly good provision in Clause 3(3)(a), which sets out that Ofcom must have regard to the desirability of promoting competition in relevant markets".—[Official Report, 29/4/03; col. 669.]

This strikes me as a case of the Government falling into much the same trap as myself with my Committee stage amendment, on which the noble Lord, Lord Gordon, quite rightly, if gently, chided me. Implicit in the Government's position, not only in respect to the Bill, but to their policy approach more generally, is the presumption that most—if not all—the problems of broadband can be solved by market-driven solutions.

We should not underestimate the role of competition. For example, the respective positions of near-dominance by BT in the ADSL market, with the associated, woeful position in respect of local loop unbundling, and Ntl and Telewest in the cable market are indicative of how important competition issues continue to be in the sector. Nevertheless, while we might wish that all that is desirable in respect to broadband could be achieved by reliance on competition alone, that is not so at the moment.

This can be demonstrated in several ways. The noble Baroness, Lady Gibson of Market Rasen, advanced the proposition in Committee that high-speed data transfer services should be a universal service

23 Jun 2003 : Column 58

obligation. The Government, to my mind quite rightly, resisted this. The aspiration is desirable, but at the moment the market is not sufficiently developed for this to be deliverable. Nor, indeed, is it simply a matter of the means of access to delivery of high-speed data transfer services. A host of other factors are at work—such as the affordability of hardware, the psychology of new technology use, and so on.

In other words, the problem is how to invigorate and develop the market to ensure that it reaches a position in which a universal service obligation is feasible. To my mind, a "mentorship" role for Ofcom should be in the Bill, an acknowledgement of its role as a champion of the cause of high-speed data transfer, so that the virtues of competition could march in step with the needs of consumers. There are echoes here of our first debate today. Hence the amendment. In this way the market should be able to achieve a situation in which a universal service obligation would be viable rather sooner than might otherwise have been the case.

The digital divide also creates huge difficulty. On the Countryside Agency's most recent figures, 95 per cent of urban households have access to a broadband connection, as compared with seven per cent for rural households. The technological constraints that have so far placed the regions and rural areas at disadvantage are well known, but we should not lose sight of the fact that for reasons such as those I have outlined, the divide—as expressed in terms of take-up rather than access—extends to many urban and inner-city areas.

The Government may have high hopes that the recent 3.4GHz spectrum auction, by enabling delivery of fixed-wireless access, will address the problem in rural areas and the regions. I am less certain. On the one hand, there is no obligation in the licence terms for successful bidders to roll out any service, let alone a broadband one; on the other it is likely that back-haul services for mobile telephony, or even sitting on the licences as an asset, offer a more attractive and commercially viable route to a return on the investment. Whatever the eventual outcome for the 3.4GHz spectrum, what matters is the real prospect that the divide will be perpetuated for some time to come—in terms of both roll-out and take-up.

I acknowledge the impetus that the Government have sought to give to broadband, particularly in recent months: Oftel's broadband market review listing of criteria for broadband service; Stephen Speed's appointment as director of broadband; the 3.4 auction, and so on. I pay tribute to the e-commerce Minister for the way in which he has brought technological expertise and clarity of purpose to his brief.

However, I remain firmly convinced that Ofcom can and should play a hugely important role in assisting the Government to achieve their policy goals. As John Wilson, a founder member of the "Access to Broadband" campaign has put it:

    "the UK has a real opportunity to take a European lead".

In passing, I point out that this is the oft-stated aim of the Government's targets in the area. He goes on to say that,

    "a proactive approach is needed to remove obstacles, bring all of this energy together, and allow new partnerships to move ahead positively".

23 Jun 2003 : Column 59

In other words, Ofcom needs to have a specific focus on broadband issues, so that "all of this energy" and "new partnerships" can coalesce to drive the whole of the broadband agenda forward positively. I beg to move.

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