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Lord McNally: My Lords, I know that the Minister will groan inwardly, but there are two points that I want to make. I wish that I could wish the Bill Godspeed with the same confidence as the noble Lord, Lord Puttnam, but the more I have looked at the issue, the more I have seen large global forces at work that will not go away. I said that the Government have mounted a tiger, and I wonder how many in a few years' time will be making mea culpas similar to that made by the noble Lord, Lord Renton, about the 1990 Broadcasting Bill.
The other thing that I have been left with, apart from the wonderful experience of serving under the noble Lord, Lord Puttnam, on the pre-legislative committee, is a determination that the next stage of this matterthe defence of the BBC and the BBC Charteris a battle that has to be won. I send the Bill on with that in mind.
Baroness Buscombe: My Lords, this has been an amazing experience for all of us. I want to thank all noble Lords for the great courtesy that they have shown throughout the debates and I wish the Bill well.
Lord Currie of Marylebone: My Lords, as chairman of Ofcom, I express my thanks for the enormous care and thoroughness with which your Lordships have considered this Bill. The House has lived up to its fine reputation as an effective revising chamber. In many respects, the Bill leaves the House in a much better shape than when it arrived. I pay tribute to noble Lords from all parts of the House for the care and consideration that they have given to it.
Ofcom is very much the servant of statute, and my colleagues and I have been aware that it is for Parliament to determine Ofcom's duties, responsibilities and powers and for us to make that work to best effect. That is why I have intervened sparingly in the debates. However, I
As a result of the successful amendment of the noble Lord, Lord Puttnam, on Report, Ofcom now has the word "citizen" as part of its principal general duty. I, for one, would be delighted if that word remains firmly in the principal duty of Ofcom when the Bill finally emerges from the parliamentary process, which it has not yet quite done. That would provide welcome clarity.
We have struck a good balance, giving Ofcom clear instructions but also flexibility to deal with the unforeseento strike the best balance for the public interest in each individual circumstance. However, there is one issue that I must flag up. The amendment of the noble Lord, Lord Puttnam, had a second impact, which was to put the citizen's interest above that of the consumer in the area of broadcasting and spectrum, but not in that of telecoms. That creates different duties in different parts of Ofcom's activities, which will cause difficulty. It will make Ofcom subject to judicial review and may reduce the effectiveness of Ofcom. It will be the big players, not the small players, who will take advantage of that.
I hope that the Bill in its final form will cast Ofcom's general duties in terms that put the citizen and consumer interest in parity. I emphasise that point, because some noble Lords said that they were not altogether clear where I stood at Report. The citizen's interest is very much at the heart of what Ofcom wants to achieve. My fellow members are in no doubt about the deep concern that the House has for the interests of citizens.
The communications industry is not like any other industry; it is central to our society and our democracy. That is something that the Ofcom board feels with both its head and its heart. However, we believe that if Parliament defines Ofcom's general duty in terms of parity, we are confident that in all circumstancesboth those we can foresee and those we cannotwe will be able to reach the best solutions in the public interest. Those solutions should properly reflect the keen concern for citizens that have been expressed in this House.
If we are able at the end of the parliamentary process to have both clarity and parity in Ofcom's general duties, we will have a truly excellent Bill that will serve the public interest and enable Ofcom to pursue it to best effect.
The Lord Bishop of Manchester: My Lords, I am sure that all these speeches have been slightly out of order, but I cannot allow the Bishops' Benches not to be included in these final remarks. God speed the working out of the Bill and the job of Ofcom.
Lord McIntosh of Haringey: My Lords, I do not believe in speeches on the Motion that the Bill do now pass, and I try to avoid them, but they have been made. Therefore, the very least that I can do for the sake of courtesy is to express my gratitude to all noble Lords who have taken part in proceedings on the Bill. I hope that they listened very carefully to the wise words of the noble Lord, Lord Currie, a minute or two ago.
The Deputy Chairman of Committees (Viscount Allenby of Megiddo): It may be helpful to remind your Lordships of the procedure for today's Committee. Except in one important respect, our proceedings will be exactly as in a normal Committee of the Whole House. We shall continue to go through the Bill clause by clause; Members of the Committee will speak standing; all noble Lords are free to attend and participate; and the proceedings will be recorded in Hansard. The one difference is that the House has agreed that there shall be no Divisions in a Grand Committee. Any issue on which agreement cannot be reached should be considered again at Report when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.
I should remind your Lordships of what will happen if a Division is called in the Chamber while we are sitting. The Committee will adjourn as soon as the Division bells are rung and it will resume 10 minutes later.
The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 142, 143, 263 and 268. Amendment No. 269, which is also in this group, will be spoken to by the noble Baroness, Lady Anelay.
The group of amendments raise two separate issues, both of which are of considerable importance. Because of the form of the amendments, they must be taken as a single group. The first issue is whether the present European framework list should be included in the Bill. That is covered by Amendments Nos. 140, 143, 263 and 268. The second issue is whether there should be some form of special treatment for the category of racism and xenophobia, which is one of the 32 items on the European framework list. That is covered by Amendments Nos. 142 and 269. The problem arisesI do not complain about this or suggest that it could or should have been done differently but simply place the point on the recordbecause Amendment No. 269 is
The purpose of the first sub-group, if I may call it that, is to ensure that there is parliamentary control over any additions to the European framework list. Under Clause 65(3), the European framework list is the list of conduct as set out in Article 2.2 of the European framework decision. That means, or is assumed to mean, the list as it is enforced at any given time. Under Article 2.3, the European Council may add new categories of offence to the list. The decision must, of course, be unanimous but, so far as the United Kingdom is concerned, that decision is taken by the executive, not by Parliament. As the Bill stands, there is no provision for the involvement of Parliament in the addition of new offences.
The Government have conceded that exclusion of the need for prima facie evidence in category 2 cases requires an order in council approved by both Houses. We believe that the same should be the minimum requirement for any addition to the European framework list.
The amendments will achieve this by, as a first step, putting the existing contents of the list into a new schedule. That is dealt with by Amendments Nos. 140 and 268. We then provide that that list can be amended by an order in council using the affirmative resolution procedure. That is covered by Amendment No. 143 and, as a minor consequential amendment, by Amendment No. 263.
I turn now to the second issue of racism and xenophobia. We are not hostile to the principle of including this as one of the categories in the list. We already have in the United Kingdom several offences which are based on racism or aggravated by it. Xenophobia is perhaps more contentious because it is a word which, up until now, has not been recognised as having any specific meaning in the United Kingdom criminal law. It means, I suppose, hatred of foreigners irrespective of their race. There is uncertainty as to what it means as a legal concept.
In introducing the list, Article 2.2 refers to offences in the list as they are defined by the law of the issuing member state. That means that the actual terms of the law must be covered by legislation in the member state. But that expression surely cannot mean that the state
It now happens that the European Council has before it a draft framework decision on racism and xenophobia. The European Union Committee has reported on that new draft framework decision. Although agreed, the report has not yet been published. I understand that it will be published very soon, within the next day or two. It would have been helpful if it had been available for today. It will of course be available on Report.
I understand that the current draft framework decision does not include a specific definition of racism and xenophobia for the purposes of the European arrest warrant. I regret that. It includes, I understand, a list of offences which would be regarded as offences of racism and xenophobia. Those offences include some that would not normally be regarded as coming within the meaning of racism and xenophobiafor example, offences related to discrimination on grounds of religion.
The list is important because, in the absence of a specific definition of racism and xenophobia in the draft framework decision, the question whether any offence is an offence of racism and xenophobia is likely to be decided on the basis of whether the offence is on the list which will appear in Article 1 of the draft framework decision, or is at least similar to an offence on that list. In the absence of any definition or list, it will be very difficult to decide what "racism and xenophobia" means. Progress on the framework decision on racism and xenophobia has slowed down. Therefore, it is inappropriate to consider including racism and xenophobia on the list for the European arrest warrant when a framework decision on racism and xenophobia is pending but has not yet been agreed.
After the events of last week, I can understand why the Italian presidency might not wish to get involved with the question of what constitutes xenophobia. I recognise that we are, of course, supposed to implement the framework decision by 1st January 2004. In practice, it is pretty clear that that is not going to happen. So far, only three statesSpain, Denmark and, I think, Swedenhave yet ratified the framework decision and implemented it in their domestic laws. That process is almost certainly unlikely to be completed by 1st January 2004. Austria has an opt-out, and there are problems with Germany and Poland, where there are constant issues about the constitutional propriety of implementing the framework decision because of the tradition in their laws against extraditing their nationals.
It seems perfectly reasonable for us to say that we will not treat "racism and xenophobia" as included in the list until we have the framework decision, which will at least give us some guidance as to what that is
Amendment No. 269, tabled by the noble Baroness, Lady Anelay, goes somewhat further in one respect and less far in another. It permanently leaves out "and xenophobia" from the list in the proposed schedule, and therefore leaves "racism" on its own but does not defer the implementation of the list as so amended. I am not altogether happy with Amendment No. 269. I am sure that she will not put it in this way, but some support for it seems dependent on the belief in some quarters of the right of the true Brit to go abroad and make grossly xenophobic remarks about foreigners. However, it is important that dual criminality should be excluded from racism and xenophobia offences only where, first, those offences are serious, and secondly, where it is reasonably clear as to what they are. I beg to move.
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