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Baroness Buscombe moved Amendment No. 217:

(1) It shall be the duty of OFCOM to establish a procedure for the review of its decisions made—
(a) under sections 211, 212, 213, 214, 216, 217, 218, 219, 229, 224, 225, 232, 233, 234, 235, 236, 247, 249, 250, 251, 322 and 325;
(b) pursuant to the procedures set out in section 318 for the handling of complaints about the observance of standards set out under section 312;
(c) under Part 5 of the Broadcasting Act 1996 (c. 55).
(2) Before establishing a procedure under subsection (1) OFCOM must publish, in such manner as they think fit, a draft of the proposed procedure.
(3) After publishing the draft procedure, and before establishing it as the review procedure for those decisions mentioned in subsection (1), OFCOM must consult every person who holds a relevant licence and such of the following as they think fit—
(a) persons appearing to OFCOM to represent the interests of those who watch television programmes;
(b) persons appearing to OFCOM to represent the interests of those who make use of teletext service; and
(c) persons appearing to OFCOM to represent the interests of those who listen to sound programmes.
(4) If it appears to OFCOM that a body exists which represents the interests of a number of the persons who hold relevant licences, they may perform their duty under subsection (3) of consulting such persons, so far as it relates to the persons whose interests are so represented, by consulting that body.
(5) Where OFCOM establishes a procedure under subsection (1) they must publish the procedure 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 procedure." .

The noble Baroness said: My Lords, Amendment No. 217 would insert a new clause after Clause 354 requiring Ofcom to establish an internal review procedure for certain decisions that it makes under Part 3. As the Bill stands, no appeal or review mechanism exists in respect of Part 3 decisions, except where Ofcom exercises any of its Broadcasting Act 1996 powers for a competition purpose—in which case there may be an appeal to the Competition Appeals Tribunal. That is despite the fact that a statement was made in the communications White Paper promising,

    "appropriate review procedures within the regulator",

in respect of such decisions.

Broadcasters and consumers are therefore left with judicial review as their only route of appeal or review of Part 3 decisions. That is unsatisfactory, primarily because of the limited grounds on which decisions can be judicially reviewed. Unlike appeals to the Competition Appeal Tribunal under Part 2, which can revisit the merits of the decision, judicial review considers only the way in which decisions were made.

The Joint Committee on Human Rights expressed reservations in its fourth report of 2002–03 about possible breaches of Article 6 of the European Convention on Human Rights in the procedures set out for the making of Part 3 decisions. It stated that judicial review was unlikely to provide an effective

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remedy, because the subjective nature of Ofcom's judgment would make it difficult to assess the quality of the decision unless it was wholly irrational. Furthermore, judicial review proceedings are extremely expensive, and therefore inaccessible to many affected parties, even where judicial review might otherwise be appropriate.

In Committee, the noble Lord, Lord Davies of Oldham, confirmed the Government's view that the matter should be resolved in the High Court under judicial review and not by an independent appeals tribunal, drawing a distinction between Part 2 and Part 3 decisions. That was a disappointing response. Hence, we have tabled an amendment proposing a statutory commitment on Ofcom to consult on and establish an internal review procedure for dealing with appeals. A review of Ofcom's decisions by an internal Ofcom panel, as envisaged by the White Paper, would obviously also lack the necessary independence and impartiality to satisfy Article 6 requirements, but has the considerable advantage that it would be far cheaper and faster than proceedings in the High Court, and would therefore be a more accessible remedy for broadcasters and consumers alike.

The Government wrongly believe that the general statutory obligations on Ofcom as a regulator to act efficiently and transparently, coupled with the requirements of the European Convention on Human Rights, should be sufficient. Although accepting that Ofcom will need to move towards the establishment of an internal review process of sorts over time, the amendment is intended to ensure that there is a statutory, and therefore orderly and transparent, process for its introduction in the Bill. I beg to move.

Lord McIntosh of Haringey: My Lords, decisions under Part 5 of the Broadcasting Act 1996 relating to complaints about fairness and privacy require Ofcom to adjudicate on complaints. There is no statutory provision for review or appeal. For the review procedure in the amendment to operate, it would be necessary to make it clear where that fits in to the procedures set out in detail in the 1996 Act. Indeed, an appropriate mechanism would need to be devised in relation to each of the provisions listed in the amendment. Some of those already include procedures to ensure that broadcasters have a full opportunity to make representations.

Clause 236, for example, dealing with action against licence holders who incite crime or disorder, requires Ofcom to serve notice on the broadcaster of its intention to revoke the licence, detailing the reasons. A period of 21 days is then allowed before the licence can be revoked and the licence holder must be informed of his right to make representations. The notice of revocation then requires a further period of at least 28 days before it can take effect. That seems a very fair process. Introducing an element of internal review of the decision would need to be woven into that procedure and could not effectively be achieved using the blanket approach of the amendment.

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Similarly, in relation to complaints about standards, we expect broadcasters to have in place appropriate arrangements for handling complaints, as required under Clause 318(1)(b). Although Ofcom has yet to establish its own procedures for handling complaints, as required under Clause 312(2), the opportunity of complaining to Ofcom or an Ofcom-appointed body if a viewer or listener is not satisfied with the broadcaster's response, or if the matter is serious, already offers a second tier of consideration. A further tier by way of internal review, as proposed in the amendment, is likely in most cases to be a waste of time and money—that is broadcasters' money.

I shall not examine each of the clauses referred to in the amendment, some of which do not in fact involve executive decisions by Ofcom at all. I do not deny that there may be cases where some form of internal review would be appropriate. That can be established without specific statutory provision—for example, by Ofcom adopting the procedure, in appropriate cases, of indicating that it is minded to reach a certain decision and providing for further representations, perhaps to a separate internal committee. I understand that such a procedure is already under consideration by Ofcom in relation to fairness and privacy complaints. We believe that treating the matter case by case is the best approach.

Very able people have been appointed to Ofcom. They have experience of regulation from both the industry and the regulator's perspective. They are perfectly able to recognise the need to be seen to be acting fairly and be willing, when appropriate, to reconsider matters before reaching a final decision. The need to ensure that Ofcom's decisions are legally robust—when rights are engaged under Article 6 of the ECHR, for example—is also an important consideration for them.

In short, these amendments would not achieve their aim and, fundamentally, the requirements for such a wide-ranging internal review of Ofcom's decisions could turn out to be a disproportionate and unnecessary exercise in many cases. This matter should not be included in primary legislation and I hope that the amendment will not be pressed.

8 p.m.

Baroness Buscombe: My Lords, I thank the Minister for his response. I found some of his comments comforting. I entirely accept what he said about the competence of Ofcom, and those who have been appointed to the board of Ofcom, to deal with important and serious issues. The Government have offered a helpful example: that they are already minded to set up some form of ad hoc committee to consider certain issues.

Perhaps a case-by-case approach is a good thing but, on the other hand, there is a real concern that unless a statutory safeguard is included in the Bill the concerns of some individuals may too easily be overridden. In that case, the only real resort at the end of the day would be to judicial review, which, as I said when I spoke to the amendment, would frankly be too

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expensive and too difficult. If I can be so bold, a lot of people would not have the confidence to seek a judicial review. It would deter most individuals from seeking recompense for what they believe to be a real grievance.

I want to consider carefully what the Minister has said today, and also to talk to those with whom we have been in discussion about the matter—including the CBI. I will reserve my thoughts about whether we should return to this matter on Third Reading, but for now, I beg leave to withdraw the amendment.

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