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Lord Williams of Mostyn: My Lords, I beg to move the second Motion standing in my name on the Order Paper.

Moved, That it is expedient that a Joint Committee of Lords and Commons be appointed to consider and report on any clauses of a draft Gambling Bill presented to both Houses by a Minister of the Crown, and that the committee shall report on the draft Bill by 8th April 2004.—(Lord Williams of Mostyn.)

On Question, Motion agreed to; and a message was ordered to be sent to the Commons to seek their agreement thereto.

Aviation (Offences) Bill

Lord Corbett of Castle Vale: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.

Moved, That the order of commitment be discharged.—(Lord Corbett of Castle Vale.)

On Question, Motion agreed to.

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Communications Bill

3.19 p.m.

The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord McIntosh of Haringey.)

On Question, Motion agreed to.

Clause 312 [OFCOM's standards code]:

Lord Gordon of Strathblane moved Amendment No. 182:

    Page 275, line 37, leave out "unsuitable" and insert "which may be misleading, harmful or offensive"

The noble Lord said: My Lords, last night my noble friend Lord McIntosh, in replying to one of the debates, said, at col. 835, that the great advantage of the words "suitable" and "sufficient" is that they are capable of a wide meaning. To that I reply that one man's flexibility is another man's uncertainty. That is the core of the reasoning behind my amendments.

Over the years, the advertising industry has acquired widespread respect for the way in which it has regulated itself and submitted to regulation in the case of broadcasting. I think that it is safe to say that very few political speeches would meet the standards of the Advertising Association or the Advertising Standards Authority.

Adverts are extremely expensive to make and no one in the advertising world would want to incur a great deal of expenditure on an advert which might ultimately fall foul of the regulator. For that reason, producers seek to pre-clear the scripts and treatment so that they know, before they commit to expenditure of what can often amount to hundreds of thousands of pounds, that the advert will be all right in terms of regulation.

The terms that the industry has become used to are very precise: "misleading", "offensive" and "harmful". While I concede that they were not set out in the 1990 Act, they have certainly been used in all the codes governing advertising control since then. Let me say in passing that the word "unsuitable" was not used in the 1990 Act either. We are concerned about the huge uncertainty that could arise as a result of the introduction of such a vague term, perhaps resulting in advertising campaigns falling foul of the regulator.

It is that very imprecision that is causing the bother. By chance I bumped into my noble friend Lord McIntosh a little earlier. He told me that a letter was on its way, but I have not yet received it. My noble friend was kind enough to show me the draft. I have read it and, while I do not wish to appear ungracious, if all we can do is seek a synonym for "unsuitable", that simply will not address the problem. It would be more honest for me to divide the House today than to save the matter for Third Reading. I do that with regret because I very much admire my noble friend for having

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given ground over the past few days where it has been important to do so. The whole approach to the Bill has been transformed.

I am also grateful to him for allowing me to see the draft of his letter. However, no amount of searching through Roget's Thesaurus for a word other than "unsuitable" will help, especially if we substitute it with another vague term that would give Ofcom more power in a hitherto undefined form. I do not believe that that is going to be acceptable.

My noble friend's letter mentions that one of the problem areas might be the ban on certain categories, such as political advertising. He goes on to state that while,

    "it may not be misleading, harmful or offensive in itself"—

I believe that many noble Lords might question that—Ofcom must have the power to enforce such a ban. But the ban on certain categories of advertising is still in the Bill. There is no problem about that. I have done nothing to vitiate the position in any way.

A further problem we must deal with is scheduling. When I raised this matter in Committee, Ministers objected by saying that this might not catch scheduling that could affect the under 16 year-olds or children in general. The noble Baroness, Lady Howe, intervened to point out that the commission had always interpreted "misleading, harmful or offensive" in terms of the audience which might be watching at the time. But I have gone further and tabled a second amendment, Amendment No. 183, which, in his letter, the Minister kindly acknowledges would meet the scheduling problem.

I have also weakened Amendment No. 182 to make it state not only "misleading, harmful or offensive", but,

    "which may be misleading, harmful or offensive",

thus widening its scope to give Ofcom surer ground on which to defend itself against any advertiser who might unreasonably think that he had been ill treated.

I feel therefore that I must press these amendments today. Every noble Lord who spoke in the debate in Committee was in favour of them. They met with the approval of a former chairman of the Advertising Association, a former chairman of the Advertising Standards Authority, the noble Baroness, Lady Howe, with her long experience of broadcasting standards and, at the time—although I gather that it has been leant on since—the ITC. So we want to press ahead and try to settle the matter today. I beg to move.

The Chairman of Committees (Lord Brabazon of Tara): My Lords, I should inform the House that there is a misprint in the Marshalled List. The amendment proposed should read:

    "Page 275, line 37, leave out "unsuitable advertising" and insert "advertising which may be misleading, harmful or offensive".

Lord Borrie: My Lords, in Committee the Government stated that they were keen for Ofcom to have a broad power to ban the advertising of certain products and services—some, no doubt, it could not know of in advance. The Government have indicated

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that they want Ofcom to have that broad power in order to prevent the inappropriate and unsuitable scheduling of certain types of advertisement, say, around programmes aimed at children. Such concerns on the part of the Government are understandable, but to enable Ofcom to ban "unsuitable" advertising is, in the minds of supporters of the amendment, much too sweeping a power to give to any regulatory agency because it would become almost immune to challenge.

I hope that the Government will recognise that Amendments Nos. 182 and 183 are designed both to achieve the Government's own practical objectives and to introduce precision to the powers being given to Ofcom. As my noble friend Lord Gordon of Strathblane indicated, the protection of persons aged under 18 is now mentioned specifically; so that particular worry has been dealt with. Moreover, the power to enable Ofcom to prevent advertising,

    "which may be misleading, harmful or offensive",

should give Ofcom ample ability to do what the Government feel is needed, whether it be a power to ban advertisements for gun clubs and other examples that we know about or to ensure that adverts scheduled around children's programmes are adequately controlled. I support both amendments. I hope that the Government will feel able to do the same and accept them.

3.30 p.m.

Baroness Buscombe: My Lords, I am grateful to the Minister for faxing over to me at lunchtime today the letter referred to by the noble Lord, Lord Gordon of Strathblane. I strongly support the amendment, to which both my name and that of my noble friend Lord Saatchi have been added. Notwithstanding our gratitude to the Minister for what he had to say in his letter, I too am not yet satisfied and feel that the matter should be pressed to a vote today. I shall set out the reasons.

As someone who was an advertising practitioner and lawyer, albeit some time ago, I have enormous sympathy with the concerns being expressed by the advertising industry about the sweeping terminology, "unsuitable advertising". First, what is unsuitable for one is not necessarily unsuitable for another. Advertising that is misleading, harmful or offensive embraces concrete and objective concepts. That is the difference.

Every time this issue has been raised during the passage of the Bill both in another place and in your Lordships' House, the legitimate concerns of the advertising industry have been, to be frank, rather cursorily and inadequately addressed by the Government. The Minister in another place said that the word "unsuitable" is needed to enable the regulator to ban the advertising of products such as tobacco. However, in the current environment I would be most surprised if the regulator was not able to prohibit the advertising of such products under the heading of "harmful". I believe that that word is used frequently in the warning on the front of cigarette

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packets. Having given up smoking, I cannot remember, but I think that that is fair; I do not think that the cigarette packet would say "unsuitable".

The Minister also said that the word was needed to implement international obligations, in particular the "TV without frontiers" directive, but the need to take account of such obligations is specifically required in Clause 312(7). The Minister went on to say that the word was needed to implement the provisions of the Broadcasting Act 1990, but so far as I can see the sections of that Act applicable to advertising already appear in the Bill.

In the debate on Second Reading in your Lordships' House, the noble Lord, Lord McIntosh, remarked that "unsuitable" simply means advertising that may be unsuitable for certain times and certain audiences and that it is similar to the current powers of the ITC. In Committee the noble Lord, Lord Davies, said that the word "unsuitable" was purposely broad and sweeping and went on to remark that none of the contributions from Peers in support of the amendment had commented in any way on the specific nature of broadcasting and the concept of the watershed. However, I do not think that that is quite true.

The noble Baroness, Lady Howe, made specific reference to the fact that the BSC had taken the timing of the broadcast and its audience into account and she backed the use of specific criteria such as Amendment No. 182 allows.

So many reasons have been given with so little clarity in giving them that it is no wonder there has been no resolution of this quite focused and technical issue. The Government have defended "unsuitable" with different reasons on different occasions—and on none of those occasions have they succeeded in reassuring the advertising industry that the clause represents a good basis for primary legislation on advertising.

It would appear that the problem has arisen because of the structure of the Bill. All the provisions of the 1990 Act are contained in the Bill, but the big difference is that in the Bill the provisions relating to advertising have to be interpreted against the standards objectives in Clause 312. So "unsuitable" is a "suitable" standards objective, say the Government, precisely because it is a catch-all word. "Misleading, harmful or offensive" are not suitable standards objectives because they may or may not exclude some things that the regulator may want to ban.

It has never been the intention of the advertising industry to restrict the scope of existing codes, which have worked well for the past 20 years. Nor was it the intention, of that I am sure, of the ITC and Radio Authority, both of whom supported the original amendment at the Committee stage in your Lordships' House. I know from my own experience in the advertising business that it is most important to encourage certainty in terms of the application of the rules.

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The Minister's letter addressed to the noble Lord, Lord Gordon, referred to Section 93 of the Broadcasting Act in relation to radio and stated:

    "Although the word 'unsuitable' does not appear, nor do the words 'misleading, harmful or offensive'".

In practice, everyone beyond your Lordships' House, in industry and across the whole media industry, understand the meaning of "misleading, harmful or offensive", and know the parameters, to a large extent, of how that fits in on a day-to-day basis.

I have a real problem with the word "unsuitable". I am grateful that in our negotiations we have encouraged the Minister to consider an alternative but I am not sufficiently assured not to press the amendment to a Division. It is our duty to support the interests of the industry and to confirm everything that we have said at every stage thus far in your Lordships' House.

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