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Clause 5—(Contracts For Programmes)

Volume 531: debated on Tuesday 27 July 1954

The text on this page has been created from Hansard archive content, it may contain typographical errors.

Lords Amendment: In page 9, line 10, leave out from "control" to end of line 22.

I beg to move, "That this House doth agree with the Lords in the said Amendment."

I should like hon. Members to look forward to the Lords Amendment to page 11, line 9, and to bear in mind that that Amendment proposes to insert a new Clause A.

The effect that we desire to secure by agreement with this Amendment is that the Postmaster-General may make orders by Statutory Instruments, subject to an affirmative Resolution, to prevent the making of exclusive arrangements for broadcasting to restricted audiences of sport and other events of national interest. This question was discussed in Committee and then we agreed to come to no final conclusion on the matter but to leave it to my noble Friend the Postmaster-General to have further negotiations with the sporting interests and the B.B.C. to see if some final solution could be arrived at. Hon. and right hon. Members will remember that when the Bill left this House there was a provision which laid upon the Authority and, in the finality, upon the Postmaster-General the duty to draw up a list of public ceremonies and sporting events in which there could be no exclusive rights to broadcast.

The idea was that there are a number of events which, as I have said before, are part of the British way of life and for that reason should not be broadcast to a limited audience. On the other hand, since this matter was first considered, it has always been very clear that no sporting promoter should be compelled to have a sporting event broadcast unless he wished to do so. That has never been our intention.

It is difficult to know whether we are now discussing the merits of the Amendment in page 11, line 9. I can see why the right hon. and learned Gentleman is explaining it, but will we be in order in dealing in effect with the merits of what the Home Secretary is now saying, because the immediate Amendment only clears the way for the later one?

I think that strictly that Amendment should be taken when we come to it.

There is the difficulty, which I think we all appreciate, that if one is clearing the way for something else the only justification for clearing the way is to attempt to indicate for what one is clearing the way.

We accept this Amendment and we will discuss the merits of the point later.

Question put, and agreed to.

Lords Amendment: In page 9, line 33, at end insert:

"(5) The Authority may require from time to time from the programme contractors such declarations, returns, documents and other information as the Authority may consider necessary or advisable for the purpose of ensuring that the requirements of this Act are complied with."

8.15 p.m.

I beg to move, "That this House doth agree with the Lords in the said Amendment."

The effect of the new subsection (5) is to enable the Authority to obtain from the contractor such information as the Authority may consider necessary to ensure that the requirements of the Act are complied with. If my memory serves me right, the history of this matter is that Amendments on similar lines, to the Third Schedule, were put on the Order Paper by hon. Members opposite but were not debated. I hope therefore that the House will agree to the Amendment.

The Amendment will enable the Authority to obtain from the contractors all the information they need to ensure that the Act is complied with. It could, for example, make sure that the rules for disqualified persons have not been contravened or that programme companies are not entering into secret agreements which might mean that there was no real competition between them.

I do not want to make any false point to the House, as I am aware already that Clause 5 (5) states that
"The contracts between the Authority and the various programme contractors shall contain all such provisions … necessary or expedient … for complying and securing compliance with the provisions of this Act … "
Therefore, a provision of this kind could be or should be inserted in the contracts, but we felt that hon. and right hon. Gentlemen opposite would be glad to see these provisions in the Bill itself and therefore we accepted the Amendment of our former colleague, Lord Silkin.

The Home Secretary is quite right. There was a similar Amendment which I think we discussed, but the Guillotine fell rather heavily and we never got very far with it. However, before we agree to the Amendment, I should like him to find out a little more about its meaning with regard to certain matters. It was suggested by a Government spokesman in another place that under this wording it would be open for the Authority to demand scripts from the programme contractors. I should like to know whether that is so.

I take it that it means that the Authority will have access to the accounts of the programme contractors, especially if they are private companies, in order that the Authority can fulfil the wish of the Assistant Postmaster-General and share in their profits. That was the view that was expressed by the Assistant Postmaster-General. It would therefore be helpful if, before we accept this Lords Amendment, which does commend itself to the Opposition, we could have some information on these points.

It seems to me that this is certainly the minimum that is necessary to protect the Authority, and through the Authority, of course, the viewers, in regard to the programme contractors. We raised this matter during our previous debate, but unfortunately the Guillotine intervened in such a way that no real debate took place.

I should like to ask the Home Secretary exactly how far this goes. In the first place, we are here discussing an Amendment—it will, presumably, be accepted—which will give the Authority the power to demand these declarations, documents and other information that may be required, but will that enable the Postmaster-General to have a sight of them? Will he obtain from the Authority the information which he wants about programme contractors? As I understand the Bill, these contractors are a very long way from control; they are very remote from the Postmaster-General, and therefore, from any form of public accountability. I was rather hoping that hereby a way may be found which will enable a little more control over them, indirectly through the Authority, to be obtained.

There is one other point on a different matter which occurred to me on looking at the Lords Amendment. It is whether it could be used, and usefully used, by the Authority to ascertain in advance exactly what plans the programme contractors were making, and what form the advertisements which they were to submit were likely to take. More important than that, I should like to know if it would be possible, in this case, if a complaint in regard to an advertisement was received from consumers who had accepted the word of the advertiser and had purchased goods, and, obviously, the advertisement having gone out on the ether and disappeared, as it were—if the consumer was dissatisfied with the result of his purchase and considered he had been misled—it would then be possible for the Authority to ask the programme contractor to provide a copy of that advertisement so that he could check up and see whether he had been misled and whether he had a case against him?

If this Amendment can be interpreted as widely as that, it may well serve a very useful purpose, and I think that, if that interpretation can be put upon it, and if it can be used to obtain information about what has gone out in the past, if and when that is required, at the same time hoping that it can be extended further than appears on the surface, I feel sure that this Amendment will commend itself.

I think the remark of the Home Secretary that one of the purposes of this Amendment was to prevent secret agreements between the programme companies needs amplification. It is very revealing that the Government, at long last, are recognising that this is likely to happen. Now that they have whittled down the number of programme companies to two, nothing is more likely than that these two will work in with one another vis-àvis the advertisers opposite the Authority in relation to the viewers. They will have agreements about payments to be made to artistes and for advertisements, and perhaps on the pressure to be brought to bear on the House of Commons. The Government have recognised that the total result of establishing competitive television will be that two people will work in close association and by secret agreement unless they are prohibited from so doing.

Even at this very late stage of the Bill, the Government should be prepared to clarify this point. Not only have the Government been revealing in that sense, but they have been extremely naïve if they think that they can prevent understandings between monopolists by asking for certain information. If these people gang up together, does the right hon. and learned Gentleman think that they will write it all down in a document so that the Authority can read it? The people who work together to exploit the public do not put things in writing.

Let us take the Home Secretary and the Assistant. Postmaster-General. They have been working like a team throughout the entire afternoon, covering each other very well. There is no secret written agreement that they should back each other up through thick and thin, and the same is true of the two tycoons of television. Now that there are only two programme contractors instead of three, this matter deserves more attention being paid to it.

I do not know if I can trespass on the patience of the House to reply, but I am very ready to do so.

The right hon. and learned Gentleman has mentioned trespassing on my patience in order to reply to a specific question put to him. It may be that the answer to a specific question is in order, and not a general reply, but it is quite clear that no right of reply exists on this discussion.

I wonder if the Home Secretary might clarify the point made by my hon. Friend the Member for Enfield, East (Mr. Ernest Davies). If there is an aggrieved person, who feels that he has been deceived by an advertisement, and who may have a legal remedy if he can obtain a copy of the advertisement if it appears in a newspaper, in the case of advertising on the air, the advertisement disappears. Could such a person have access through the Authority to the documents? Otherwise, a lot of harm may be done to individuals, who will he deprived of the remedy which the law will normally give, except for this curious and unique medium by which advertising may be put out.

The second point is that the Home Secretary says this is to he done for the purpose of ensuring that the requirements of the Bill are complied with. Does it enable the various advisory committees to be set up under the powers given in the Bill to the I.T.A. also to have access to these documents? It would be very hard for them to do some of their work unless they can keep track of the programmes and make requests for scripts and so on.

Finally, would there be any means by which the House of Commons could obtain access to some of these things by asking that they should be placed in the Library, or anything of that sort? We will not be able to ask, through the Postmaster-General, for some sort of check on the I.T.A. programme contractors unless we have some record, other than mere memory, of what we see or hear and what has been happening, and some means of producing it in the sort of form in which it can alone be produced in this House?

8.30 p.m.

The governing words of the new subsection are the last words:

"… as the Authority may consider necessary or advisable for the purpose of ensuring that the requirements of this Act are complied with."
In my view, and it is the strictest view that can be taken, that is a forward-looking provision, which the Authority can use to ensure that the programme company will comply with the provisions of the Act.

There might be a little doubt whether it could be used for securing information as to a previous breach, but I want to make it clear that there is nothing to prevent the I.T.A. providing, in their contracts with the programme contractors, that sound records of news, talks and discussions should be retained for so many months and produced or copied when required on payment of a suitable fee. It would be the easiest matter of legal drafting. I do not think that the difficulty, which I am putting up in order to raise any possible point that may be in the words, would prevent the Authority from taking the course which is desired.

Perhaps I might go on further and answer two other points. I should have thought a provision with regard to accounts might well be related, and could reasonably and advisedly be related, to the requirements as to the constitution of the programme companies and their relation to advertisers and others. I have explained the double way in which that could be met.

With regard to the question of the aggrieved person, much would depend upon whether the I.T.A. made provision with regard to the keeping of records. The aggrieved person could then operate through the I.T.A. The same applies to the advisory committee. I would rather not commit the position of the House of Commons, because that would be dependent upon an analysis of the various points at which the Postmaster-General is able to call on the Authority to do what he wants, thereby making the situation answerable to the House.

With regard to the points raised by the hon. Member for Woolwich, East (Mr. Mayhew) I must not be led into giving a general reply, and I will try to avoid that difficulty. I do not accuse the hon. Gentleman of murdering anyone or anything, even the King's English or logical argument, simply because there is a law against murder. The second point I put to him is: If he pours contempt on the method I would remind him that the Government of which he was a distinguished member used the same method in their monopoly legislation, and that the method has been used in the United States for 61 years. If the hon. Gentleman wants to look at a short and handy book on monopoly, may I inform him that I myself once wrote one?

Before the Home Secretary sits down finally, may I ask him—

The hon. Gentleman can speak, but he should not ask further questions of the right hon. and learned Gentleman, who will be asking to reply to them.

I wanted to seek one further piece of information and not to promote further discussion. I wondered whether in the Lords Amendment, under the heading of "other information," would come the question of record films? The point is important because we are dealing not merely with a verbal but with a visual medium and in the case of an advertisement which caused offence and hurt people's feelings, or of misleading material, the offence might not lie merely in the verbal presentation of it. I wonder whether in cases where the material is recorded as a film it would be possible for the Authority and the Postmaster-General to obtain that film as part of the information that is necessary in evidence when considering any complaint that might be made.

I think it would be doubtful as to the actual film, but it would certainly cover the requirement to give a description of the film—any letter press—and a description of the visual art. I would not like to go further than that.

Question put, and agreed to.

Lords Amendment: In page 10, line 15, after "pounds" insert:

"on a first occasion, one thousand pounds on a second occasion, or one thousand five hundred pounds on any subsequent occasion;"

I beg to move, "That this House doth agree with the Lords in the said Amendment."

The effect of this Amendment—and I do not think it needs much legal exposition—is to increase the maximum penalties which the Authority may demand for a second or subsequent breach of contract by programme contractors. This Amendment was moved in another place by the leader of the Opposition in that House, and it was agreed to. I think that its purposes are clearly obvious, and therefore, that I need not occupy the time of the House by describing them.

This is a gift horse which came into the world, apparently, under the best auspices, and I am sorry to have to look the animal in the mouth. However, I must look it in the mouth a little because I think it makes it perfectly clear what a very bad provision this penalty provision is. After all, we have been hearing from the Assistant Postmaster-General that a proper proportion was what appeared to the Authority to be a proper proportion, and that a number of other things were what appeared to the Authority to be so and so. But when we come to a penalty—even the penalty to be demanded by the Authority under the contract—that, apparently, cannot be left to the Authority.

I fail absolutely to see why there ever has been any need for a penalty at all, or why it has to be fixed in these curious terms. I think that the Government must have been suffering from a bad attack of arithmetical progression. When I learned arithmetic when young, I discovered that there was also geometrical progression, and a third kind, about which, I admit, I know very little. I think it was called harmonic progression. If we are going to reduce this question of penalties to the kind of mathematical absurdity which appears in this Amendment, then I see no reason for preferring an arithmetical to a geometrical progression, although the results, I think, would be somewhat different.

What really is the sense of having any limit whatever to the penalty that is to be demanded under the contract? If we cannot trust the Authority to put that sort of thing right, how can we trust it to decide the far more important question of what is and what is not a proper proportion of British matter in a programme? It seems to me to be quite incredibly childish when previously we have been far too trusting.

We give the Authority no clear directions about matters of the greatest importance—we leave those to its wise discretion—and yet, when it comes to a question of a penalty for a breach of contract, we need only tell it what it is to be on the first, the second, and the third occasion. One supposes that, if there is a fourth occasion—or a fifth or a sixth—that that at any rate will be left to its discretion. [HON. MEMBERS: "Any subsequent occasion."] I am sorry Mr. Deputy-Speaker, I had not appreciated the full beauty of the matter. It is not only the third occasion, but at this point the progression stops. After that one can be as naughty as one likes— and as grievously naughty and as often naughty as one likes—if only one is prepared to pay the sum stipulated.

As no one knows what the profits of this business are to be, directly and indirectly, as no one knows what real advantage it will be to those commercial gentlemen, to attempt to fix any penalty at this stage instead of leaving it to the Authority seems to me to be distinctly premature. To continue doing it I should have thought was wholly and totally absurd. I suppose that we shall accept the gift horse, but a more rotten collection of teeth in its mouth I do not think I have ever seen.

Question put, and agreed to.

Lords Amendment: In page 11, line 6, after "prejudice" insert:

"to the right of the Authority to accept as a repudiation by a programme contractor any breach of contract by the programme contractor going to the root of the contract and."

I beg to move, "That this House doth agree with the Lords in the said Amendment."

The effect of this Amendment is to make it clear that nothing in Clause 5 (8) shall prejudice the right of the Authority to accept a fundamental breach of contract by a contractor as a repudiation of the contract. My right hon. and learned Friend the Solicitor-General dealt with this matter. He took the view, which I confess I shared, that that right was there even without the express words. However, a suggestion was made in another place that this subsection was not clear, and as this was the object which both sides of this House and of the other place wanted to see in the Bill, we accepted the Amendment, which was moved by Lord Ogmore.

I should hesitate to attempt a legal definition, but I think that the hon. and learned Gentleman the Member for Kettering (Mr. Mitchison) might agree that a breach going to the root of the contract is such a fundamental breach as makes it clear that the party by whom it is committed no longer intends to be bound by the provisions of the contract.

This is a much better gift horse than the last and is something which I believe is really needed. At the least there was doubt, possibly not only in my own opinion but in the opinion of some of the Home Secretary's right hon. and learned Friends, whether the Authority had power to treat a fundamental breach as a repudiation. It was given such other, such limited and such curious remedies that it might well have been doubtful whether it was entitled to the more ordinary ones given to the more ordinary citizens.

I am very glad to see that the Government have recognised in terms that if even that model of commercial virtue the programme contractor shows that he does not intend to be bound by the contract, the Authority in that case can say that it shall not be bound either. I think that is all it comes to, but I think that it is a comment on the provisions in favour of the contractors as against the Authority that it should be necessary—as I believe it was—to put in something of this sort. This is the elementary right of any ordinary person. I am glad to see that the poor Authority is at any rate to have one of the teeth with which the ordinary person is allowed to bite when provoked.

Question put, and agreed to.