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Lord Crickhowell: My Lords, I find the arguments advanced by the Minister no more convincing than on the last occasion on which they were advanced. I acknowledge freely that the Government have moved; that they have introduced Clause 9; that there is to be a statement of promptness standards; and that those standards have to be taken seriously. I am sure that they will be taken seriously.

The fact also remains that plenty of cases in the past have evidenced that unnecessary delays have taken place. I find it odd that the Minister should believe that the individual should not have the ultimate protection of the courts if matters are not properly handled by Ofcom. The Minister says that he finds it surprising that we should move such an amendment. This is a clause and a form of wording that was thought perfectly reasonable in the Competition Act 1998, so I cannot see why it should be considered so unreasonable when it is pressed in the context of this Bill.

However, I am slightly comforted by the fact that the noble Lord, Lord Currie, is in his place. He will have heard all that has been said about the importance that the Joint Committee and others attach to promptness; he will have heard what has been said by the Minister about the views to be taken by the Secretary of State and the carrying out of matters in a prompt and expeditious way—and knowing Lord Currie as I do, he will take them seriously and take appropriate action. If he does not, we will all be able to ask him why not. Perhaps ultimately I may have to rely on the firm management and prompt and effective action that I know will be taken by the noble Lord, Lord Currie, and his colleagues when they come to deal with their responsibilities. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord McIntosh of Haringey moved Amendment No. 22:


    After Clause 9, insert the following new clause—


"DUTY TO ENCOURAGE AVAILABILITY OF EASILY USABLE APPARATUS
(1) It shall be the duty of OFCOM to take such steps, and to enter into such arrangements, as appear to them calculated to encourage others to secure—
(a) that domestic electronic communications apparatus is developed which is capable of being used with ease and without modification by the widest possible range of individuals (including those with disabilities); and
(b) that domestic electronic communications apparatus which is capable of being so used is as widely available as possible for acquisition by those wishing to use it.
(2) It shall be the duty of OFCOM from time to time to review whether they need to take further steps, or to enter into further arrangements, for the purpose of performing their duty under this section.
(3) OFCOM must not do anything under this section that would be inconsistent with the Community requirements set out in section 4.
(4) In this section "electronic communications apparatus" means apparatus that is designed or adapted for a use which consists of or includes the sending or receiving of communications or other signals that are transmitted by means of an electronic communications network.
(5) For the purposes of this section electronic communications apparatus is domestic electronic communications apparatus except to the extent that it is designed or adapted for use solely for the purposes of, or in connection with, a business.
(6) In this section "signal" includes—
(a) anything comprising speech, music, sounds, visual images or communications or data of any description; and
(b) signals serving for the impartation of anything between persons, between a person and a thing or between things, or for the actuation or control of apparatus."

On Question, amendment agreed to.

Clause 11 [Duty to establish and maintain Content Board]:

Lord Davies of Oldham moved Amendment No. 23:


    Page 11, line 35, at end insert—


"( ) At least one of the other members of the Content Board must also be a non-executive member of OFCOM other than the chairman of OFCOM."

The noble Lord said: My Lords, in moving Amendment No. 23, I shall speak to the Government's Amendment No. 24 and to the other amendments in the group. Amendment No. 23 will be recognised by the noble Lord, Lord McNally, because during Committee the Government agreed to bring forward an amendment to ensure that Ofcom appoints two non-executive members of the main Ofcom board to the content board. Amendment No. 23 fulfils that commitment.

Amendment No. 24 is a purely technical amendment which removes a possible ambiguity in the original drafting. With the Ofcom Act, it might have already been taken to imply the appointment of two Ofcom members to the content board. That is the basis for the Government's Amendment No. 24.

Amendment No. 25, tabled by my noble friend Lord Gordon, and Amendment No. 26, tabled by my noble friend Lord Dubs, concern conflicts of interest among

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members of the content board. We discussed Amendment No. 25 in Committee and we subsequently wrote to my noble friend Lord Gordon, who had sought this amendment in the spirit of tidying up the Bill. Copies of that letter were sent to other noble Lords who had supported the amendment on that occasion and they were also placed in the Library of the House.

There is, I believe, no difference of principle between us. The question is the practicality of what we are seeking to achieve. It appears to the Government that all those listed in subsection (8) would be ruled out of membership of the content board under subsection (9). However, subsection (9) requires a process of analysis to be undertaken by Ofcom to assess the potential risks. Our view is that the conflict of interest in relation to the BBC, to S4C and Channel 4 is sufficiently clear-cut to make what is known as a "bright-line" distinction, one which we used in the letter to my noble friend, whereby those persons listed in subsection (8) can be statutorily excluded at the outset, without setting Ofcom the task of analysis on a case-by-case basis.

The distinction is in the current legislation in relation to the ITC, the Radio Authority and the Broadcasting Standards Commission, as I am sure my noble friend is aware. He has not convinced me that there is any material disadvantage in retaining the clarity of subsection (8) and I hope that he will withdraw his amendment.

Amendment No. 26, tabled by my noble friend Lord Dubs, calls for Ofcom to publish the criteria it will apply in ensuring that those appointed by Ofcom to the content board do not have a prejudicial conflict of interest. It is of course important that Ofcom complies with the very highest standards of corporate governance. I welcome the fact that Ofcom has established that as its clear policy, as detailed in its members' code of conduct. I also welcome the fact that it has made that code and indeed its register of members' interests publicly available on its website. That is the kind of transparency which I believe demonstrates Ofcom's commitment to the principles of good regulatory practice, as provided for in Clause 3 of the Bill. That code will of course apply to Ofcom in carrying out its job of appointing members of the content board.

The content board has developed and agreed its own code of conduct, which has also been published on the Ofcom website, and has committed to publicising its own register of interests. The question is whether one should go beyond that and require in primary legislation that Ofcom publish detailed criteria of how it will assess potential conflicts of interest. I am wary of that suggestion, not least because there has to be a balance between absolute bars, of the kind provided for in subsection (8), and administrative processes. For example, it is possible that members may have expertise which is necessary for the board to make properly informed decisions, but there may be individual decisions where a member must step aside from any involvement because of a potential conflict, or even the risk of a perception of a conflict of interest.

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The content board needs to have access to relevant sectoral expertise, so I particularly welcome its commitment to making open and transparent any real or potential conflicts of interest. That seems a good way of resolving the problem. I recognise the real concerns raised by the noble Lord, Lord Dubs, and I have no doubt that he will contribute to the debate and express those further. However, Ofcom now has in place policies and systems to deal with those issues that we examined in Committee. No doubt the noble Lord, Lord Currie, and the chairman of the content board, Richard Hooper, will read the debate and consider carefully the extent to which any further reassurance could be provided on this matter. Nevertheless, I hope that I have established the basis for the reservations on the amendment.

Amendments Nos. 28 and 29 would require the content board to evaluate the impact of its functions on business competitiveness, and make Ofcom aware of that. Amendment No. 30 requires the content board to produce its annual report. The amendments take us back to the territory of viewing the content board as somehow outwith the duties laid on Ofcom. The Bill establishes the duties of a single, converged communications regulator. Those duties, which we have elaborated and discussed at some length, apply to all of Ofcom's work, including any contributions to that work by the content board—for example, as well as the general duties, the need to review regulatory burdens, to undertake impact assessments, to consider self-regulation, and to publish and meet promptness standards.

So I recognise the difficulty in having to move the government amendments and the grouping with them of amendments which have not, thus far, been moved. I am hesitant about presenting the Government's arguments against amendments to which my noble friends and other noble Lords are due to speak. It is difficult for me to do anything other than present the Government's arguments at this point. Therefore, I crave the forgiveness of my noble friends and the other proposers of amendments to follow, and hope that I have at least cleared their minds over the Government's position. We shall see the nature of their arguments. I beg to move.

9.45 p.m.

Lord Gordon of Strathblane: My Lords, I shall speak to Amendment No. 25. My heart leaped when the Minister offered to speak to all the amendments in the group. I thought that perhaps at last the Government had decided to adopt them even before one had spoken to them. The Minister is correct in that there is little difference between our points of view on this matter.

In Committee, I raised the question of why, uniquely, we were singling out the BBC and Channel 4. I recall the noble Lord, Lord Thomson, asking, during the Minister's reply, what about a director of Sky? Should we not be listing that company? In the letter that I received from the Minister, for which I am grateful, the first half agreed that everybody in subsection (8) was caught by subsection (9) anyway. Therefore, in my view—and, I am sure, that of the

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noble Lord, Lord Peyton, if he were in his place—subsection (8) is totally unnecessary. But the letter continued by justifying the necessity for subsection (8) by saying that in the commercial sector, they did not know quite who was in charge.

Frankly, the people in charge of the commercial sector would take issue with that statement. The provision is wholly unnecessary. There is no reason to single out the BBC from the others. A simple conflict of interest test is sufficient. That would not put Ofcom to a great deal of bother. It will not be appointing members of the content board every day of the week and it is the simplest thing in the world to rule them out prima facie as having a conflict of interest. At this hour of night, I shall obviously not press the amendment; to be honest, I probably would not even on Third Reading, but I hope that the Minister will reconsider and withdraw subsection (8).


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