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Baroness Jay of Paddington: I rise to speak only because the tenor of some noble Lords' remarks has demonstrated that in my infelicitous use perhaps of double negatives it was thought that I was arguing for less prescription in the public service area rather than the prescription proposed in the previous group of amendments. That is certainly not the case.
I support in general terms the group of amendments to which we now speak. I agree with the remarks of the noble Lord, Lord Phillips, about the characteristics of the enforcement processes under Ofcom. We raised the issue on the previous day in Committee. I was assured then by the noble Baroness, Lady Blackstone, that those enforcement procedures would be regularly enforced and monitored by Ofcom. But I believe that there is an area of concern to which the noble Lord, Lord Phillips, rightly referred.
Like the noble Lord, Lord McNally, I can go back to the golden days of political programming. I declare an interest. I was both a producer and a presenter of the "Panorama" programme when it was shown at eight o'clock on Monday evenings to an audience of 8 million people. I regret that that is no longer so. However, I am not as convinced as the noble Lord, Lord McNally, that that has exclusively to do with the scheduling of the programmes but perhaps more to
The Bill currently provides that Ofcom's enforcement powers can be used only if it considers that the broadcaster's failure is serious and is not excused by economic or market conditions. The enforcement powers include removing the broadcaster's self regulationin the third tier of the public service regimeand imposing direct regulation on that broadcaster.
These powers apply to both the broadcaster's fulfilment of his individual public service remit and to his contribution to the overall purposes of public service broadcasting on which, as we know from previous debates, Ofcom will report at least every five years.
Amendment No. 193 would prevent Ofcom from considering whether a broadcaster's failure in these respects might be excused by economic or market conditions. It would reduce the circumstances in which Ofcom could exempt a broadcaster to those in which the failure was not considered to be serious.
Although we want to ensure, of course, that Ofcom has power to intervene when necessary so that we do maintain quality, I do not believe that it would be either realistic or reasonable for Ofcom to ignore the impact of economic and market conditions on the ability of broadcasters to fulfil their remits. Licensed broadcasters operate in a commercial market and are affected by external economic conditionsfor example, those which have an effect on advertising revenue.
In discussing an identical amendment in another place, concern was raised that because "economic and market conditions" are mentioned twice in Clause 263, that might allow economic and market conditions to become Ofcom's overriding consideration when making a judgment about the enforcement of a broadcaster's public service remit. I shall explain briefly why I do not believe that that will happen.
Under subsection (2)(a) Ofcom has to consider whether the failure of the provider is serious and is not excused by economic or market conditions. Under subsection(2)(b) it has also to determine that the situation requires the exercise of its powers having regard to a number of matters, including the general economic and market conditions affecting broadcasters. The reference to general economic and market conditions, therefore, forms part of the judgment which has to be made under subsection (2); but it is only one of a number of matters which Ofcom will have to take into account.
I should also point out that it will be a matter for Ofcom to decide whether the failure is excused by economic or market conditions, although it has to consult the relevant service provider before taking enforcement action.
In short, we believe that the Bill as it stands formulates Ofcom's enforcement powers in a sensible way and that it would not be right to remove the existing reference to economic or market conditions.
I turn to Amendment No. 192. I have to say at the outset that it is not an amendment that the Government can accept. However, that is not because of any disrespect for Parliament. I was extremely interested in what the noble Lord, Lord McNally, said about the introduction of television. The televising of this House took place before the televising of another place. Indeed, I think that some people in this House were a little disappointed when another place decided to let the cameras in because it meant that the spotlight was moved from your Lordships' House to the House of Commons. I believe that the motivation behind the remarks of the noble Lord, Lord Holme, is laudable. I share it. However, the Bill currently permits Ofcom to take enforcement action if a licensed broadcaster has either failed to fulfil his individual public service remit or failed to make an adequate contribution towards fulfilling the overall public service broadcasting remit. This amendment would require Ofcom to consider enforcement action in the event of a broadcaster's failure to provide appropriate coverage of Parliament or other relevant legislative assemblies in the UK.
While the Government fully accept that coverage of the democratic process is an important element of public service broadcasting, the amendment would in practice create an inconsistency within the public service broadcasting regime. It would in effect create a sanction for failure to provide a service which is not explicitly required under any part of the public service broadcasting regime as enshrined in the Bill. The noble Lord, Lord Holme, might believe that it should be, but it is not. Therefore, his amendment does not work technically.
The noble Lord, Lord Peyton of Yeovil, was a little hard on the BBC. The BBC agreement does include an obligation on the corporation to broadcast a daily account of parliamentary proceedings, which it does. However, so far as the Bill is concerned, there is no direct requirement to provide coverage of Parliament or other legislative bodies, whether in the context of the first tier; the second tier of quantitative obligations for public service broadcasters; or the third tier. On the other hand, a key element of both the second tier quotas and the overall public service remit is the coverage of news and current affairs, which of course encompasses matters relating to politics, the democratic process and, indeed, Parliament.
Our overall approach to the regulation of public service broadcasting is to establish a spectrum of obligations, ranging from the BBC at one end to Channel 5 at the other. Within this framework we do not see a case for imposing a directand, indeed, a uniformobligation in respect of parliamentary
As to Amendment No. 194, under Clause 267 as it stands, the process of modifying the public service remits can take place only within the framework of reports submitted by Ofcom. The Ofcom reports in question may be those prepared under Clause 260, which deal with the fulfilment of the overall public service remit, or those reports prepared under Clause 226, which Ofcom submits in anticipation of a new licensing round.
In the context of the Clause 260 reports, the Secretary of State can exercise her power to modify the remit only where Ofcom had made a specific recommendation to that effect in its most recent report. However, within the Clause 226 reports, the procedure can be slightly different. In the case of the Clause 226 reportsand only in that casethere is a power for the Secretary of State to modify a remit in the absence of a specific recommendation by Ofcom. She can act in this way provided that Ofcom has made a report within the previous 12 months and, in the light of that report, the Secretary of State considers it right to modify a remit, notwithstanding the absence of a specific recommendation to that effect.
The amendment would remove the Secretary of State's power to take such action in relation to an individual remit but not in relation to the general remit. Although I understand the concern that broadcasters' individual remits should not be modified without good reason, it is right that, solely in the context of the end of a licensing period, the Secretary of State should retain the power to modify both the overall and the individual remits even without a direct recommendation by Ofcom.
Such an opportunity would, in the nature of things, arise only very infrequently on those occasions when the licensed broadcasters' licences came up for renewal. Even when Ofcom had not made a direct recommendation, there could be circumstances where the Secretary of State took the view that it was right to modify a licensed broadcaster's individual remit, and we believe that the Bill should give her the flexibility to do so. However, no such modification could be made without prior consultation with Ofcom, with the broadcaster affected and any other relevant interests. I should emphasise that any order modifying a public service remit must be approved by Parliament.
In the light of what I have said, I hope that the Committee will agree that the approach to enforcement and modification of public service remits set out in the Bill is the right one and that the noble Lord will not press the amendment.
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