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Lord Evans of Temple Guiting moved Amendment No. 21:

(1) It shall be the duty of OFCOM, in accordance with the following provisions of this section, to exercise their powers under paragraph 14 of the Schedule to the Office of Communications Act 2002 (c.11) (committees of OFCOM) to establish and maintain a committee to provide the advice specified in this section.
(2) The committee shall consist of—
(a) a chairman appointed by OFCOM; and
(b) such number of other members appointed by OFCOM as OFCOM think fit.
(3) In appointing persons to be members of the committee, OFCOM must have regard to the desirability of ensuring that the members of the committee include—
(a) persons who are familiar with the needs of the elderly; and
(b) persons who are familiar with the needs of persons with disabilities.
(4) The function of the committee shall be to provide advice to OFCOM (including other committees established by OFCOM) about the interests, in relation to communications matters, of—
(a) the elderly; and
(b) persons with disabilities.
(5) The committee may also, at the request of the Consumer Panel, provide advice about those interests to the Consumer Panel.
(6) The consent of OFCOM is required for the giving of advice under subsection (5).
(7) In this section "communications matters" has the same meaning as in section 3."

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On Question, amendment agreed to.

Clause 25 [Training and equality of opportunity]:

Lord Evans of Temple Guiting moved Amendment No. 22:

    Page 24, line 21, leave out "fair treatment of" and insert "equalisation of opportunities for"

The noble Lord said: My Lords, I shall speak also to Amendments Nos. 70 and 128. The amendments are tabled in response to concerns expressed on Report by the noble Lord, Lord Addington, that the term,

    "fair treatment of disabled persons",

used in Clauses 25 and 333 was not in line with the terminology used in other disability legislation.

We explained on Report that the use of the term "fair treatment" mirrored the current obligations in the Broadcasting Act 1996 and was well understood in the context of that legislation. However, we accept that more recent disability legislation, such as the Disability Rights Commission Act 1999, preferred the term "equalisation of opportunities" and that it would be helpful for our legislation to be as consistent as possible with other legislation in the area. We therefore undertook to table amendments at Third Reading to substitute the current references to "fair treatment" with the more up-to-date term "equalisation of opportunities". The amendments fulfil that commitment. We have also extended the change to the equivalent provision for the Welsh authority in Schedule 12 to the Bill. I beg to move.

Lord Carter: My Lords, I thank the Government. I moved the amendments on the issue in Committee and on Report, so I am extremely grateful. I had wondered why the word "equalisation", rather than "equality", of opportunity was used. However, apart from the fact that the word is consistent with the wording of the 1999 Act, the dictionary states that "equality" is the state of being equal. "Equalisation" is not defined, but I understand it as a process of achieving equality, which is what equality of opportunity is all about.

Lord Addington: My Lords, this is just a case of saying "thank you" again. There has been a relay: the noble Lord, Lord Carter, to start, Addington second, with Evans and McIntosh to finish. We got there. It is nice to know that the Government listen sometimes.

Baroness Darcy de Knayth: My Lords, I express my support as one who did not get in on the list earlier.

On Question, amendment agreed to.

Clause 92 [Notification of contravention of conditions]:

Lord Avebury moved Amendment No. 23:

    Page 89, line 2, at end insert—

"( ) Where OFCOM receive a complaint, or otherwise become aware, that a person may be in contravention or have contravened a condition set under section 43, they shall inform that person in writing of the nature of the suspected contravention and that they are conducting an assessment of available evidence, which may lead to that person being given a notification under subsection(2)."

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The noble Lord said: My Lords, as the Minister knows, we are still of the opinion that, in relation to a contravention of conditions set under Clause 43, this clause as drafted incorrectly translates the word "find" in the directive into,

    "determine that there are reasonable grounds for believing"

in the Bill. However, clearly, we were not going to make any headway in convincing the Government on that point.

In this amendment, we have relied on the Minister's observation on Report that:

    "In many instances—probably the majority—prior investigation of the matter in issue will be necessary before Ofcom will be able to decide whether or not it has such 'reasonable grounds'".—[Official Report, 26/6/03; col. 423.]

The amendment provides that, when Ofcom receives a complaint or otherwise becomes aware that a person may have contravened a condition, it should notify that person that it is conducting an assessment of the evidence which may lead to a notification under Clause 92. That means that, at least in the majority of cases, the person has a prior opportunity to correct the alleged breach, thus reducing the number of occasions when Ofcom must take the serious step of issuing a notification, or to submit evidence to Ofcom showing that he is complying with the conditions notified. That may convince Ofcom that the complaint did not provide reasonable grounds for believing that a Clause 43 condition had been contravened. In either case, unnecessary notifications under Clause 92(1), which could have damaging effects on the provider concerned, would be avoided.

The noble Lord, Lord Currie, the chairman of Ofcom, has written to me about the matter. He has been good enough to make clear that it will be only in rare and extreme cases that Ofcom might have to act without warning. He said that, in the normal course of events, Ofcom would undertake a preliminary investigation, letting the operator concerned know as soon as possible so that in some cases it is possible,

    "to resolve the matter speedily and informally, without the whole panoply of the Notification Procedures having to be involved".

That is indeed most helpful. I suggest that the noble Lord, Lord Currie of Marylebone, does what I have advised the Government to do, which is to place his letter on Ofcom's website so that it can receive wider circulation, instead of simply lodging it in the Library of your Lordship's House as he has been asked to do. I beg to move.

6.30 p.m.

Baroness Buscombe: My Lords, I rise to support the amendment to which my name is added. We are returning to a very important issue that I spoke about as early as Second Reading. We are in a strange situation that I have discussed with the noble Lord, Lord Avebury. He and I were minded to test the opinion of the House today on this issue because we are both deeply concerned that the Government have not, until now, responded sufficiently to allay concerns or rebut the problem. As the noble Lord, Lord Currie, quite rightly said in his letter addressed to Lord Avebury,

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operators are concerned that Ofcom will have gone a long way down the road of investigating an alleged breach leading to a possible enforcement order before operators are even made aware that they are under investigation, and thus have the opportunity to make representation.

We are extremely grateful that, at the 11th hour, this letter was written by the noble Lord, Lord Currie. To our minds and in discussion with the industry, the letter has made a difference. The issue is an important one and we were determined to be robust on behalf of the industry. We are very glad that the letter has been forthcoming.

We would have preferred, however, to have the matter included in the Bill. We are concerned, and we know that the industry is also concerned, to ensure that we do not in any way remove important flexibility in the way that Ofcom proceeds in the future. Therefore, we have decided to agree to accept the contents of the letter, although, as the noble Lord, Lord Avebury, rightly said, please let us make this letter as public as possible as quickly as possible to allay concerns beyond your Lordships' House.

Lord McIntosh of Haringey: My Lords, it is obvious that we have considered this matter very carefully and discussed it with the noble Lord, Lord Avebury. We are willing to discuss it with the noble Baroness, Lady Buscombe. We understand that the assurances that the noble Lord, Lord Currie, has offered have given sufficient comfort for the amendment to be withdrawn.

The amendment relates to the matter of Ofcom's detailed administrative and operational practice, rather than to any substantive matter of policy, so we do not think that it is right to include the provision in the Bill. However, we acknowledge that, as a matter of good regulatory practice and in accordance with the principle of transparent regulation, Ofcom should ensure that, except when clearly justified, the subjects of any investigation it undertakes, even an informal preliminary one, are made aware of Ofcom's interest at an early stage.

As always, there will need to be provision for some exceptions to the rule. The exceptional circumstances that we have in mind would be those in which advance notice would be likely to prejudice Ofcom's ability to intervene effectively. In certain cases the element of surprise is crucial to ensuring, for example, that vital evidence is not destroyed. I hope that such cases will be very rare.

Since this is principally a matter for Ofcom, I am glad to confirm that the noble Lord, Lord Currie, has written to the noble Lord, Lord Avebury, advising him that Ofcom also accepts the principle underlying this amendment, and will include a suitable provision in public guidance on the administrative procedures that it is preparing. Moreover, operators and others with an interest in these matters will have ample opportunity to discuss with Ofcom the precise detail of how this process will operate. Before it formally takes over its enforcement role, Ofcom will consult on public guidance and other procedural matters too.

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A copy of the letter from the noble Lord, Lord Currie, will be placed in the House Library and I am sure that he will agree to place it on the website. I am grateful for the way in which the amendment has been moved.

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