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Baroness Buscombe: I would also like briefly to respond to some of the Minister's replies to our amendments. I thank the noble Lords, Lord Phillips and Lord Addington, and the right reverend Prelate the Bishop of Manchester for supporting Amendment No. 60. I also thank the right reverend Prelate for his support for Amendment No. 44.
We believe that this is an important subject. It would be inappropriate now to debate what different noble Lords might consider to be the wider public interest compared with the narrower sections of our public life or our citizens. Some might disagree with the Minister's interpretation of what the wider public interest might include in terms of those attributes that different members of the content board might bring. Perhaps that is a debate for another day.
I understood the Minister's concerns about the wording of Amendment No. 50 in relation to the possibility of double jeopardy in terms of decision-making of the content board and Ofcom. Since the Minister's response was similar to that of the Minister in another place, perhaps I may suggest to her that consideration be given to Ofcom and the content board establishing a memorandum of understanding to ensure, as best as is possible, up-front that there is an avoidance of double jeopardy. While I accept the Minister's reasons for not including the amendment in the Bill and recognise the difficulty of finding the right wording to meet the possible problem, it would be helpful if there were such a memorandum of understanding.
I heard what the Minister said about the amendments relating to the concerns of business. As I have already said, the amendment has the support of the CBI. It is deeply concerned about the interests of business. It does not believe that its concerns are answered in Clause 3 of the Bill. I will take back to the CBI the Minister's response to those amendments and will see if we might return to that subject on Report.
Lord McNally: By my count, we had one correcting amendment, one concession and one promise to write, so we are getting there. This clutch of amendments involves an attempt to get, as the noble Baroness, Lady Buscombe, rightly said, the balance right between the content board and the duties of the main Ofcom board. We moved the amendment because we were concerned by fears expressed to the Joint Select Committee that the content board would be mere window dressing. We were concerned that it should have proper autonomy in its operations. I suspect that the noble Baroness, Lady Buscombe, like me, is happy
The Deputy Chairman of Committees (Baroness Cox): I remind the Committee that there is a mistake in the printing of Amendment No. 44A in the Marshalled List. It should read "after 'first' insert 'the Schedule to'".
The noble Lord said: I hope that we can deal swiftly with this amendment and those grouped with it. Clause 12 describes the functions of the content board. Some noble Lords may have been perplexed when trying to get to the bottom of the wording of the clause. There is an anticlimactic quality about many of its subsections. Subsection (3) starts off boldly by stating that Ofcom "must have particular regard". It then refers to,
In Amendment No. 55, I seek simply to replace the word "need"that is, what needs to be taken into account in the views of the content boardwith the less-demanding test of "ought reasonably". It reduces the threshold. I beg to move.
Baroness Blackstone: We do not want to prescribe further in the legislation the precise functions of the content board. Clause 12(3) and (4) have been drafted to embody the role that the content board has to play in ensuring that the particular interests of nations and regions are taken into account in Ofcom's work in licensing and setting standards for TV and radio.
I do not believe that we should extend that to encompass other interests, nor is it necessary. The effects of an extension of this kind could be, in practice, to dissipate the focus of the content board on its responsibilities to the nations and regions, or on the matters which Ofcom has devolved to it.
Of course, to the extent that Ofcom requires the content board to reflect diverse views in its work, that can be secured through the remit that is given to the board. Equally, if when carrying out its functions the content board felt that factors relating to different interest groups as regards the different parts of the United Kingdom were relevant, I am sure it would take those into account when advising Ofcom. Furthermore, in making appointments to the content board, as in all its other work Ofcom must have regard to the various matters listed in Clause 3, which includes the interest of the principal groups which have an identifiable interest in the work of Ofcom where those are not specifically defined elsewhere in the Bill.
The drafting change suggested by the noble Lord, Lord Phillips, from "need" to "ought reasonably" in Amendment No. 55 has a negligible impact on the effect of subsection (4). Perhaps the noble Lord is concerned that the word "need" implies too strict a test. If so, I can assure him that it is not intended to make the board prove that some consideration is strictly necessary and the provision should not be read in that way.
In the light of what I have said, I believe that subsection (4) as drafted strikes the right balance. I hope that with that assurance the noble Lord, Lord Phillips, will feel able to withdraw his amendment.
Lord Phillips of Sudbury: I am grateful to the noble Baroness for a full reply. She spoke of the danger of dissipating the focus of Ofcom and the board if the amendments are agreed to, but I believe the reverse to be the case. She also said that it is open to the content board to give such advice to Ofcom as it thinks fit in relation to different interests of a non-geographical nature. I fear that that is not the case, because the only area where the content board has the right to advise Ofcom is when Ofcom asks for its advice. I was trying to put different interest groups of a non-geographical nature on the same basis as those of a geographical nature.
The noble Viscount said: In moving Amendment No. 63, I shall speak also to Amendments Nos. 64, 67 to 70 and 80. I shall speak first to Amendments Nos. 63, 64 and 67. The Committee will surely agree that it is unarguable that consumers need a strong voice in the electronic communications sector to ensure that their interests are effectively represented and taken into account by decision-makers and providers. An effective and expert consumer representative body is also vital to act as a counter-balance to other more powerful interests. The National Consumer Council has already welcomed inclusion of a provision in the Bill to set up a communications consumer panel, including the intention that it should be independent and operationally separate from Ofcom. However, the current wording in the Bill will preclude the panel from being able to comment on the breadth of consumers' interests in this sector as it prevents the panel from being able to give advice on matters concerning content.
The panel will require the ability to do so for three main reasons. The first is the integrity of the project. If the intent is to create an integrated regulatory body because of converging technologies and markets, it is surely illogical for the panel's remit to be restricted to service delivery matters. The second is the breadth of the consumer interest and communications which encompass broad content issues such as choice, diversity and quality as well as service delivery. Universal access to public service broadcasting is a key consumer concern. The third is the unique independent role of the panel. It will be external to Ofcom, whereas the content board will be part of Ofcom and will have delegated regulatory functions.
There are also concerns that the panel could overlap or duplicate content issues with the work of the content board, or concentrate unduly on content matters to the detriment of other consumer issues. That can be addressed in the following ways. The panel should be required to be transparent and accountable, particularly in terms of how it prioritises its work and makes best use of resources. It should have a duty to report annually on how it has fulfilled its duties. Ofcom and the communications consumer panel should be required to draw up a memorandum of understanding to formalise co-operative working relationships. The memorandum should guard against duplication but also recognise their distinctive roles.
I turn to Amendments Nos. 68, 69 and 70. The Bill places a duty on Ofcom to provide the consumer panel with information. However, it also gives Ofcom unduly wide powers to withhold information, which could potentially severely hamper the consumer panel's ability to do its job. Right of access to information is an essential component of accountability that enables consumers to assess how well regulators are carrying out their activities, including how well they are fulfilling their duties towards consumers.
When something goes wrong, information helps consumers to find out what has happened and why it has happened. Although Ofcom will be covered by the Freedom of Information Act 2000, this will not apply until the year 2005 when the Act will take effect. We are particularly concerned about the intervening period when Ofcom will be covered by the duties to provide information as set out in the Communications Billduties narrower than those that will apply under the Freedom of Information Act. Although we have concerns about the adequacy of the Act itself, it is bizarre that the consumer panel's right of access to information will be more curtailed by the Communications Bill than by the Freedom of Information Act.
Under Clause 15 of the Bill Ofcom will be able to withhold information from the consumer panel on grounds of the need to preserve commercial confidentiality. However, the wording of Clause 15 is inconsistent with that of Clause 14, which would allow Ofcom to withhold publication of research if it,
In addition, it is vital that consumer interest and the wider public interest are given due consideration and are not unfairly outweighed by narrower commercial pressures. Therefore, Clause 15 should be amended to include a public interest test as part of Ofcom's considerations about disclosure of information. That would also help to inspire greater public confidence in the processes of Ofcom.
Where information is withheld, there are no time limits in the Bill for Ofcom to review such decisions; nor is there an explicit requirement that information be provided once the reasons for withholding it no longer apply. Clause 15 should be amended so as to place a duty on Ofcom to specify a time limit for reviewing the reasons for withholding information, as well as a duty to provide the information once those reasons no longer apply.
However, as I am sure Members of the Committee will agree, it is unrealistic to expect one individual to be able to represent the interests and needs of each group. Moreover, the interests of people within the groups that I mentioned are not homogenous; for example, one disabled person cannot represent the spans of interest or the needs of people with different disabilities. There is a diverse range of consumer interests that needs to be represented in the electronic communications sector, which includes not only those of the groups that I mentioned but also a variety of other interests, such as those of people from minority ethnic communities, together with those of the very young and children.
It appears that representation of consumers' interests is being confused with a general notion of representativeness. The Bill should ensure that the panel is able to achieve an expert representation of the diversity of consumers' interests as well as those of the generality of consumers. It is crucial that the panel should work cohesively as a whole to fulfil its duty to represent the diversity of consumer interests. All panel members should share collective responsibility in all these respects. To ensure that this happens in practice and to make sure that the panel operates both transparently and accountably, it should be required to report annually on how it has represented the diversity of consumers' interests, as well as on how it has sought to fulfil its general duties for domestic consumers and small businesses. I beg to move.
Baroness Buscombe: I shall speak to government Amendment No. 65, which would appear to allow Ofcom to seek advice from the consumer panel on content matters. We believe this to be a surprising move, and one which gives some cause for concern. Until now, the Government have appeared satisfied with the delineation of responsibilities between the consumer panel and the content board. We have supported their approach. Clause 15(3), (4) and (5) have been drafted with precision in order to give clear
However, Amendment No. 65 appears to erode those clearly defined boundaries providing the consumer panel with an advisory function in relation to content. While, in the first instance, this may relate only to content matters referred to the consumer panel by Ofcom, it is easy to see how that could expand through the demands of the paneleven where the content board contains appropriate representation and expertiseand also to envisage the political difficulty that Ofcom would have in limiting the scope and duration of consumer panel advice on content matters once the door is opened through the Government's amendment. The esteemed board members of Ofcom are unlikely to wish to suffer accusations, perhaps in headlines on an ongoing basis, no matter how misfounded, that they are "anti-consumer" because they are refusing to allow the panel to advise in all the areas that it wishes to input, again, irrespective of the expertise and representation that exists on the dedicated content board.
I should be grateful if the Minister could explain why he has seen fit to introduce this new provision. In what circumstances is it envisaged that Ofcom would need to seek advice from the consumer panel on content matters? How will the problems that I have outlined be avoided?
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