HOUSE OF LORDS SELECT COMMITTEE ON
DELEGATED POWERS AND REGULATORY REFORM
Memorandum to the Joint Committee on the
Draft Communications Bill
1. On 13 May, Lord Puttnam, Chairman of the Joint
Committee considering the draft Communications Bill, wrote to
Lord Dahrendorf, inviting this Committee to consider the delegated
powers in the draft bill. We were pleased to receive this invitation,
and this Memorandum sets out the Committee's views.
2. The Committee has in the past welcomed pre-legislative
scrutiny as a way of improving the quality of legislation and
enabling non-controversial issues to be settled before a bill
is introduced. We are, of course, concerned only with delegated
powers. Issues of policy are for the Joint Committee. Our only
reservation about our involvement in the process is that we have
had experience of bills where the significance of particular delegated
powers has become evident only after the bill had been introduced.
We therefore reserve the right to comment further on the bill
when it has been introduced, particularly if the pre-legislative
scrutiny leads to changes.
3. The delegated powers in the bill are identified
in the Department's memorandum (Annex A) which provides a commentary
on those powers. The Committee recognised that this had had to
be written in great haste and accepted the invitation to seek
further assistance from the Department. Accordingly we gave the
bill preliminary consideration and identified the powers about
which we needed more information (letter from the Clerk at Annex
B). This was provided by the Department (Annex C). After considering
this additional material we have decided that the only provisions
to which we wish to call attention at this stage are those discussed
in the following paragraphs.
4. Clause 11 places on OFCOM certain duties relating
to the improvement of training, etc. of persons working in radio
or television. Subsection (2) sets out a duty to promote equality
of opportunity. Subsection (4) limits this to equality between
men and women, different racial groups and between those who are
or have been disabled and others. Subsection (6) allows the Secretary
of State to amend subsection (4) by extending the scope of equality
5. When the Committee first examined the draft bill,
it was concerned about the width of subsection (6) in the context
of a clause placing on a regulator the duty of influencing the
employment policies of the bodies it regulates - a provision for
which we are not aware of a precedent. The Department says that
the Henry VIII power to extend this clause to other forms of "equality"
is intended to allow the clause to be brought into line with general
equality law if that should be extended in the future, for example
to age or religious discrimination. We find this explanation unconvincing,
as any general extension would require primary legislation, and
we take the view that legislation could itself make the appropriate
amendment to the clause. We have considered the degree of Parliamentary
control over this power, and concluded that negative procedure
is appropriate here only if the power is to be used to reflect
changes in the general law and not to make special provision for
bodies regulated by OFCOM.
POWERS TO VARY MAXIMUM PENALTIES
6. There are Henry VIII powers to vary maximum penalties
in clauses 28, 32, 77, 91, 101, 132. The amount of the penalty
in a particular case is determined by OFCOM and is recoverable
by civil process. The powers are subject to negative procedure.
The Committee always scrutinizes with particular care any delegation
of a power to increase penalties. We consider that such a power
should be subject to affirmative procedure unless it is to be
used only to take account of the change in value of money. Paragraph
16 of the memorandum (Annex A) states that the power in clause
28 will allow the maximum to be raised if the Secretary of State
"believes that the amount set as a fine is not sufficient
to provide a deterrent effect" However, in response to our
questions about these clauses the Department replied:
. would not represent any
change of policy, but simply maintain the effectiveness of the
level of financial penalty applicable, principally in order to
take account of inflation".
7. These powers are not confined to inflation proofing,
and unless words are added to confine them in that way, we recommend
that they should be subject to affirmative procedure. In any event,
we suggest that affirmative procedure should apply to the powers
in clauses 32(9) and 77(5) which are concerned with varying multipliers
rather than sums of money and so cannot be needed for inflation
8. This clause includes a Henry VIII power to vary
the list of "must-carry" services. Negative procedure
is applied. In response to our inquiry the Department has suggested
criteria which will determine what amendments should be made by
an order under this clause. The Department envisages that the
criteria used to add a service to the list of must-carry services
will be :
- its public service remit;
- its importance for social inclusion, on a national
or a local basis;
- its unavailability by other means for a significant
proportion of people using the platform.
We suggest that this is a subject which is of particular
concern to Parliament and that either affirmative procedure should
apply or the list of criteria should be added to the bill.
9. This clause is concerned with the electronic communications
code which is set out in Schedule 2 to the Telecommunications
Act 1984. One element of that code is concerned with compensation
for damage caused to the property of third persons by works carried
out on behalf of one of the telecommunications bodies. At present
there is a lower limit of £50 below which compensation under
the code is excluded. This limit was first set out in 1965 and
the clause confers on OFCOM a power to change the limit. That
power is not subject to Parliamentary control.
10. We see the need to update the limit but this
could be done in the bill without conferring a power to vary it.
If the power is to remain, we consider that it should be exercisable
by the Secretary of State and not by OFCOM. If the power were
to be used simply to uprate the amount in line with changes in
the value of money, we consider that negative procedure would
be appropriate. If, however, it were to be used to impose an increase
in real terms it should be subject to affirmative procedure.
11. This clause gives the Secretary of State power
to define what is a "television receiver" for the purposes
of Part 4 of the draft bill (Licensing of TV reception). We are
concerned that the draft bill should give the Secretary of State
such wide power to define the scope of this part of the bill.
We consider that it would be preferable to include, on the face
of the bill, a definition of "television receiver" which
takes account of the present state of television technology, while
giving the Secretary of State the power to modify this definition
in the light of future technological developments.
June 13 2002