4.7 p.m.
Consideration of amendments on Report resumed.
Clause 13 [ Restrictions on inclusion of certain events]:
My Lords, it may help if I remind your Lordships that before I was so politely interrupted last Monday I was speaking to Amendments Nos. 36, 39 and 43.
Your Lordships will now have had the very considerable advantage of having had 48 hours in which to consider what I said and to decide what was wrong with it, or, as I hope, what was right. In the interval I, too, have had time to reflect on the difficulties of handling under the rules of procedure for Report stage—which do not permit noble Lords to speak more than once, except when moving an amendment—groups of amendments addressing the same problem. May I suggest that after I have briefly summarised my wares, the noble Lord, Lord Airedale, might speak to his Amendments Nos. 44 and 45, so that your Lordships can see the alternative shapes in which the Government amendments might reach the statute book? Thereafter, if my noble friend Lord De La Warr wants to comment on them and advance the claims of his solution he might do so; the noble Lord, Lord Howard of Henderskelfe, can do likewise with his; and your Lordships will then have the full range of proposals before you. After any further discussion, it would then be open to me, by leave and by convention, to reply to the whole debate. If your Lordships are broadly content with that, perhaps I should very briefly recapitulate the points that I sought to put before your Lordships on Monday night. In summary, the effect of Amendments Nos. 36, 39 and 43, taken together, is as follows. First, the amendments re-label the events covered by Clause 31 which are to be kept on a list maintained by the Secretary of State. They become "listed events". Secondly, we are proposing for the first time a label for the events covered by the restrictions in Clause 13(2) on pay-per-view and restricted services. These events will become "protected events". Thirdly, the amendments provide that the term "national interest", which is referred to in connection with listed events, includes interests within the four parts of the United Kingdom. Fourthly, the amendments provide a new definition of the events covered by the restrictions on pay-per-view showing—that is, those events we are now to term "protected events"—rather than referring to events of a class of description which your Lordships thought in Committee might go too wide. The new definition talks in terms of an event which,We believe that this effectively narrows the scope of the restriction and makes it clear that to qualify for protection an event must in some way be a continuation of something which the broadcasters have previously shown. Finally, the amendments provide a definition of "listed event" to tie in with the re-labelling of these two categories and provide a technical revision of the expression "pay-per-view". We believe that these changes will considerably improve the operation of Clause 13. I shall be replying to points your Lordships will make in my wind up—which, I am afraid, will be longer than this because I shall be replying to four groups of amendments—but I believe, as I say, that what your Lordships have before you now is an improvement on what was before your Lordships at Committee stage and I commend these amendments to the House. My Lords, I beg to move."is one of a series of similar events which it is the practice of a broadcasting authority to broadcast".
My Lords, I am very grateful for having been invited to take this opportunity not to move but to speak to my two amendments, Nos. 44 and 45, which are amendments to the Government's amendment No. 43. These are amendments which relate back to subsection (2). Subsection (2) is the one whose message is that events which really belong or have belonged to the BBC or to the ITA shall not become available to Cable. I think that is a sort of shorthand description of subsection (2).
May I take this opportunity to say that for myself I am very grateful to the Government for the amendments to subsection (2) that they have put down to narrow it, because I think it is conceded by all of us that subsection (2) as it stands is far too widely drawn and is much too big a net and would be hopelessly unfair to cable if it went through unamended. Subsection (2) refers to protected events. To see what that means we have to look at the Government's Amendment No. 43, which says:I think, if I may say so, that that definition is quite satisfactory if what you have in mind is what I believe the Government had in mind when they drafted their definition; that is to say, a series of single events which come round probably year after year. But there is another situation which can be described by the expression,"'protected event' means … one of a series of similar events which it is the practice of a broadcasting authority to broadcast".
To give an example of this, let me take a series of qualifying horse races which take place throughout a single season. The heats are run on different race courses at different times during the season and they lead up to a final at the end of the season between the horses that have qualified by winning the heats. Some of these heats, or qualifying races, will have taken place on Saturdays on race courses with which either the BBC or the ITA have long-standing arrangements. But other heats are likely to be held either in midweek or upon other race courses with whom neither the BBC nor the ITV have arrangements. I do not see why those other events should not be broadcast by cable if cable would like to broadcast them, and I do not believe that the definition of "protected events" is satisfactory to deal with the events that I am describing because I do not believe that the Government had those events in mind when they drafted their definition. But my two amendments to the definition "protected events" seek to make it clear that in the kind of situation that I am describing the events which the BBC and ITV do not regularly broadcast shall be open to cable to broadcast if that is what they would like to do. That is the purpose of my two amendments."one of a series of similar events".
My Lords, before I speak I must once again declare my interest as being a member of a cable consortium. It was brought to my attention that I failed to do this last time and in retrospect I would like to apologise to your Lordships for what I regard as having been a serious omission. I am very grateful, as I was before in Committee stage, to the noble Lord, Lord Airedale, for the things he has said, because he has in a very large measure covered my arguments.
I have taken the view, after the very careful consideration which we have been allowed during the 48 hours that have elapsed, that the amendments that the Government have made are helpful. I am very sensible of the trouble that my noble friend has taken. So it is with a certain amount of grief that I have to say that, though they are helpful, I do not believe that they go nearly far enough. In order to explain to your Lordships why not, I think that it might be helpful if I went back, not for the first time, to the White Paper. I am going to quote a few lines from paragraph 115 which is to be found on page 49. That is from the chapter that deals with pay-per-view, where it says as follows:Although that sentence contains double negatives it is in fact a very positive sentence and it accords exactly with what I am after and with what I believe the cable operators would find to be very satisfactory, because they are in no circumstances looking for any exclusivity for themselves. Under no circumstances are they looking to show anything or to do anything which denies the broadcasters the right to do what they have done in the past; and by definition this means that there can be no question that they would have the opportunity in any way to outbid. It was because of that situation—and at the Committee stage I made a suggestion which was not found satisfactory, and I can well understand why—that we objected to Clause 13(2), and in particular to the phrase,"The Cable Authority will therefore have a duty to ensure, by means of the conditions attached to the operators' franchises, that no programme shall be offered on a pay per view basis if an event customarily shown on one of the existing public service channels would, as a result, no longer be available on such a channel".
We objected because, as the noble Lord, Lord Airedale, said, the phrase was so wide and so indefinite that it would by definition almost entirely exclude the showing of important sporting events on a pay-per-view basis. The Government were good enough to say that they would have a look at the point and it is as a result of that that these amendments come from my noble friend. Having just read out the important words in Clause 13(2), like my noble friend I now want to read out the words which it is proposed should appear. Instead of the words,"is of a class or description which has been regularly broadcast by a broadcasting authority".
we are invited to accept,"is of a class or description which has been regularly broadcast by a broadcasting authority",
I think that we are getting dangerously into the realm of semantics because it would be possible to take the view that there was very little difference between these two sets of words. Certain it is that neither of them satisfies what I understand was the Government's intention which was so clearly set out in the White Paper in the terms which I have just read out to your Lordships. To me the phrase is still highly restrictive. It denies the objective that we have, which in many cases, because of the multiplicity of channels, is the opportunity to put out the whole of an event, whereas the BBC or the contractors, due to the limitation on their time, can put out only part of it. I submit that the phrase falls far short of the White Paper, and I hope that, if he agrees that it does fall short, my noble friend will explain why the Government have decided to make the change. That deals with the failing, in my view, of the amendment to give cable the total freedom that it wants, subject only to the condition that it can never stop the broadcasters putting out what they want and can never therefore affect the price that they have to pay for doing so. Let us go on, if we may, to deal with the question of the meaning of the word "series", because we have really got down to the meaning of a single word. What does the word "series" mean when it is applied to sporting events? The noble Lord, Lord Airedale, dealt with this question, too, and he used racing as an example. Perhaps I may use the example of football. Most of the major club matches are either part of the lead-up to the League Cup or heats in the lead-up to the Cup Final. Are they then series? Let me take an example. Let us suppose that in the fourth round of the Cup competition Liverpool are playing some other club and the cable system that is to be set up in Liverpool (which is called Merseyside Cable) wants to show the match. Will it be denied showing it because it is regarded as part of a series? The same would apply, I suggest, to Wimbledon. A cable channel could be devoted to Wimbledon for a whole day, showing all the important events that are taking place on the subsidiary courts. Would that be part of a series leading up to the great Friday and Saturday when matters are decided? The same could apply to the snooker championships, the darts championships, or, if I may for a moment go perhaps a little up market, the three days of the Badminton horse trials. This is quite a different exercise from the request to justify the restriction at all, which I maintain is away from the White Paper's intentions. Can my noble friend help us by giving us an interpretation, which will be very important in that it will appear in Hansard and people will take account of it in days to come? Can my noble friend give us an interpretation in specific terms of what he means by the "series" which cable would be prevented from showing? I fear that I have laid rather a heavy burden upon my noble friend, but he will appreciate that this matter is an absolute cornerstone in terms of the prospects for the new cable operators—possibly even their chances of surviving—in the early years. On my own admission I am a cable operator, speaking for cable operators, and I ask my noble friend very urgently whether he can help us in this matter. At the same time, I am sorry to say, I must tell him that in any case I find his solution, at which he has worked so hard, to be generally unsatisfactory."is one of a series of similar events which it is the practice of a broadcasting authority to broadcast".
4.28 p.m.
My Lords, the noble Lord, Lord Elton, looked around the House to see whether I was in my usual place to move my amendment. Bearing in mind where I am at present standing, I would say that I am not intending to try to dominate him by height on this occasion. It so happens that the Bench on which I usually sit was rather full. We are discussing a rather complicated, interlocked series of amendments, and if by mischance I move slightly astray from what is strictly germane to what we are supposed to be discussing together, I hope that your Lordships will forgive me.
The situation is complicated further still by the fact that we have redefinitions of what are "events"; redefinitions which are intended, quite properly, to secure a more accurate definition of what is protected, what is listed, and so on. On the whole, I think that we should congratulate the noble Lord on bringing forth amendments which make these matters clearer. In particular, I would like to thank him for accepting a point that I raised in relation to England, Scotland and Wales and for neatly incorporating it into his own amendment and for having the courtesy to write to me to the effect that he was doing so. I shall go straight to Amendments Nos. 44 and 45 standing in the name of the noble Lord, Lord Airedale. The amendments go to the heart of the matter. The Government, in the Bill originally and in their amendments, have striven as hard as they can to strike a fair balance between the broadcasters' interests and the cable operators' interests. The amendments proposed by the noble Lord, Lord Airedale, so far as I can make out, appear to narrow down that definition quite considerably in that they qualify the event. The amendments would seem to exclude—if I am wrong, I shall no doubt be told—any event even if it was of a kind that a broadcaster would normally broadcast. The event would be broadcast against pay-per-view only if it itself has been broadcast before. Similarly, in Amendment No. 40 there is a narrowing down. A prohibition of pay-per-view would not apply if the broadcaster was able to secure nonexclusive rights in the event or any part of the event, in a wider category. Here we come to the crux of the matter. This may seem to be nitpicking. If, however, I am right, the principal weakness of the amendment would appear to be the possibility of abuse through the organiser—I stress the word "organiser"—offering to the broadcaster broadcasting rights not in the event but in "any part thereof". What is a part? Presumably, a sequence, however short, however unimportant, could be a part. Such protection as the amendment affords could therefore readily be frustrated by making available unnecessary and very boring bits of the event that would be of no use at all to broadcasters. I have tried to deal briefly with the amendments because we discussed these matters at great length in Committee. I am not anxious to delay your Lordships any longer than necessary. I shall therefore proceed to speaking briefly to my own amendment in which I propose that the Secretary of State should have reserve powers, not necessarily ever to be exercised, to prevent the making of exclusive arrangements for the broadcasting or cable transmission of sporting or other national events which are on the Secretary of State's list. There was a weakness, I am conscious, in the amendment that I moved at Committee stage. It was a weakness that I freely acknowledge. The purpose of the powers now proposed, which I hope I have got right this time, is to encourage the various interested parties, that is to say, the organisers of the event, the cable authorities and the broadcasters, to work out satisfactory arrangements on an informal basis. I am sure that this is the key to success in the endeavour that all of us are making. We should have informal discussions and work out satisfactory answers without having to bring into play the powers of the Secretary of State. But it is unlikely that those informal arrangements will always be satisfactory unless there are reserve powers to back them up. This has been found in other fields. I must not refer to other Bills before your Lordships' House. But the very existence of reserve powers concentrates the mind wonderfully—like the prospect of being hanged the next day. The purpose of my amendment is strengthened by news that appeared, I believe, in today's newspapers of the surprise coming together of two different sorts of cable-providing consortia. There is the coming together of Home Box Office and other people who propose to provide films. There is also the report that, again, I read rather hastily in the newspapers this morning, of the coming together of two companies that have been set up to provide sporting events to cable companies. To return to the amendment moved by the noble Earl, Lord De La Warr, I think that he chose a particularly unfortunate example in order to illustrate his question about a series of events. Wimbledon is one of the few events covered virtually from beginning to end, very often on two channels—not on 24 channels which could happen on cable—by the BBC. ITV has chosen not to do so, although it occasionally shows excerpts of matches. There are other series events that might have provided better examples. I agree that it is essential that we have some kind of definition at least of what the noble Lord in charge of the Bill believes to be a series of events.My Lords, this is getting more and more complex as we go along. It is a very difficult subject. The Hunt Committee took one view of it, and the White Paper took a more generous view. From this side on Second Reading, there was cautious endorsement of pay-per-view on the ground that it would raise the level of cable television. I do not think that anyone really believes this is another licence to print money. I was lunching today with a Commonwealth citizen interested in pay-per-view who says that, in his part of the country, it has been a complete flop and that people who are presented with new films would rather see excellent not-so-new films "for free" on the ordinary broadcasting service. So pay-per-view is running into grave difficulties.
When we suggested that there was something to be said for pay-per-view, the proviso was that there should be no deprivation of the person who lives in an uncabled area or of the person who lives in a cabled area who cannot afford to subscribe and, even if he can afford to subscribe, says that the broadcasting services that he has long enjoyed are good enough for him provided that they endure. We have sympathy for such prudent, perhaps parsimonious, citizens. We feel, in short, that the people of this country should enjoy all those events that they would have enjoyed on television if cable had never existed. We insist that those people should not have the programmes that they are accustomed to receiving sold over their heads to wealthier or more free-spending citizens. We are grateful to the Government for getting the events in question into orderly categories. First, there is the protected event. The events which the authority believes to be a series of similar events seem to be absolute sacred cows. I must say that, although the category looks to be useful, it does require further and better definition. One assumes it includes the Cup Final, the main contests at Wimbledon, the Rugby Union internationals, the highlights of Test cricket; and I suppose the non-sporting events such as Trooping the Colour or the Royal Opening of Parliament. The proposal is that in no circumstances should any part of these be sold on pay-per-view cable. One agrees with that, but perhaps before the Bill is completed the Government could issue the protected list—it exists; it belongs to the past—in the interests of clarity, and to provide us with the necessary reassurance. We come to the listed events. The noble Earl, Lord De La Warr, is not content with the great concessions that have been made on listed events. He also wants a bite at the cherry of the protected category. He wants permission to include on pay-per-view protected events if the authority believe it will not adversely affect the terms on which the broadcasting authority is able to acquire a non-exclusive right to the event. I can see a certain logic in this. It would obviously make sense on an all-sports channel to make a bid for the whole of Wimbledon, including the bigger matches which the BBC would continue to broadcast on the usual terms. I can see the logic of this, but what I should like to know is this: the cable operator under the must-carry rule is already carrying those important Wimbledon matches—this is an obligation; does he also have freedom to carry those matches on another channel as well? Because if he has, then the problem which the noble Earl suggested is solved. I am a little worried about the—My Lords, I wonder if the noble Lord would give way for a minute? He did say: "then the problem is solved". Indeed it is not, because under the must-carry rules all the cable operator can put out is such (I use the word) snippets—where they are snippets—as the broadcaster has time to do. It is not solved for him if what he wants to do is to use one of these channels to give the whole thing.
My Lords, what I am suggesting is that he can perhaps have all the events leading up to the protected events; a "protected snippet" as it were.
I ask: as he has an obligation to give that protected snippet on one channel, on his BBC or ITV channel—he has an obligation to do that—has he got the freedom to present that snippet to conclude the matches which he has given on his pay-per-view channel? He is not charging for that. People get them free. Can he sell preliminary matches and still complete his programme and make it sensible by adding these snippets which his viewers could see anyway if they were to switch over to the must-carry channel? I am a bit worried about these restricted national events. I should really like to know what they are. We can understand that the protected events relate to the past; these are historic. But the restricted events are current events and they are future events. I can see that some of those events will be so highly saleable or so highly box office that pay-per-view could exact quite a good fee from their viewers and pay a very high fee to the promoter of them. What are the broadcasting companies to do? If cable had not existed, the broadcasting companies might well have made a modest bid for one of these events—which are now classed as restricted—and they would have given it freely to the viewers. But suppose they are faced with the competition of cable which is in a position to pay a much higher fee. The noble Lord suggests that cable does not want anything exclusive; they will be quite willing to share with the BBC or ITV; but the question is: at what price? Do they all get together and agree a price? I think the promoters will be very upset if they get together and agree to pay a minimum price. Or is the leading bidder going to get the exclusive rights? Or is the one who gets the exclusive rights going to be able to sell it on at a reasonable price, or just want the exclusivity? All these questions are very difficult and very detailed. I do not know whether the noble Lord will be able to answer them all, but quite obviously during the course of this Bill very profound thought will have to be given to the question of pay-per-view and fairness to the average viewer.My Lords, perhaps I might briefly support my noble friend Lord De La Warr on one point only. In reading what my noble friend the Minister said last time—and it has been very helpful—I came up with two points. The first point was that it seemed to me that his amendments—which he has already spoken to—were helpful in that they clarified the situation, but I was left with the thought that Amendment No. 39 in particular did not really relax the severity of subsection (2). I think, from what other noble Lords have said, that probably he will be addressing himself to that when he comes to reply, but it really does seem to me—I believe this is what my noble friend was saying, and giving good reasons for it—that subsection (2) newly amended by Amendment No. 39 is still very severe.
It was interesting to hear what the noble Lord, Lord Ardwick, had to say about his discussions at lunchtime because I get the feeling that there is not going to be an enormous amount of money in this cable operation business. There might be one day, but I do not know that the financial competition is going to be as fierce as people fear. Obviously there has got to be a degree of control, and that is where I think the sort of things that are said in our Amendment No. 40—which give authority to a Cable Authority to use its discretion, if you like, rather than the great severity which is forced upon us even in the amended subsection (2)—are perhaps a better way through.4.48 p.m.
My Lords, in following the scheme of handling on which I think we are all agreed with these amendments, I turn first to those numbered 44 and 45 in the name of the noble Lord, Lord Airedale, and will try thereafter to follow a labyrinthine path through my notes on the amendments. The question of what constitutes an event in Clause 13 is going to be difficult however we define it. Under the scheme of Clause 13(2), whatever descriptive terms or definitions we do use, it will be for the Cable Authority to take a view as to what is a protected event and what is not. In so doing they will, of course, also have to decide what constitutes "an event", and that will involve using their collective common sense.
The noble Lord's intention is quite probably to try to make it clearer both to us and to them what that decision should embrace. That is a task in which he has my sympathetic interest and evidently that of my noble friends and all noble Lords. There do, unfortunately, appear to be two weaknesses in what he proposes and one of them, I fear, is fatal. The first difficulty is that in narrowing the criteria the noble Lord may have made it a matter of no difficulty to evade the effects of the clause. The test we propose is only that the event shall be one of a series of similar events that have habitually been broadcast, and to this the noble Lord's amendment would add the test that the event itself should have been habitually broadcast. If we apply this new definition to the example which the noble Lord gave in Committee, then if last year's "Baked Beans Handicap" goes under the illustrious title this year of the "Golden Cigar Handicap", and even if all other aspects of it remain the same, it would be open to anyone to argue under the noble Lord's amendment that this year's race is a different event which it had not been the practice to broadcast and which could therefore be offered on pay-per-view terms. That is contrary to common sense, I readily agree, but it would not be contrary to the law as it would stand if this amendment were accepted. This could be a real difficulty. For example, when the sponsorship for the one day cricket championships changes, as happens from time to time, it would—would it not?—be most unfortunate if the broadcasters, and thus the viewing public, were deprived of all protection. So it would seem that the noble Lord's amendments open the way both to deliberate evasion of the intended effect of the clause and also to its effects automatically lapsing under circumstances which could not be avoided and which, I should add, common sense suggests did not amount to discontinuity at all. So at least it could be argued in court, and that would be a weakness. But there is another argument which could be made which would be far more worrying and which, I believe, does contain a fatal weakness. We are, after all, dealing with strict definitions on the basis of which decisions of the authority could be challenged in court, and it could perfectly well be argued that any event and every event is a unique occurrence which occurs at a single point of time and can never be repeated. The England/Wales Rugby International of 1982 was not the same event as the England/Wales Rugby International of 1983; it was played on a different ground, by different players, on a different day, in a different year and with a different result—a result, I may add, that I hope, even on seeing the daffodil on the Bench in front of me, may be different again in a fortnight's time! Although we tend to think of the England/Wales match and the Cup Final as "an" event, they are really a series of events, one of which happens every year. That is why the Government have plumped, after some agonising, for the wider formulation of,It is less susceptible to this kind of perverse but nonetheless powerful argument. I cannot, of course, draw for your Lordships a precise dividing line between an event which is similar and one which is the same, but this is not a distinction that has to be made under the Government's definition. Under the noble Lord's amendment this difficult distinction has to be addressed and could lead at best to litigation and uncertainty, and at worst to rendering the whole clause completely ineffective. I hope, therefore, that the noble Lord will let us have our amendment without his amendment. But I cannot leave the subject without giving to my noble friend Lord De La Warr the clarification for which he asked, of what exactly a series of events might be. My noble friend, among others, was concerned about an event which might change its name. However, my noble friend was more particularly concerned with the different rounds of the FA Cup or of a snooker competition and so on. His question—if I can paraphrase it—was whether the fact that the broadcasters always showed the finals and some matches from the earlier rounds meant that cable would be precluded from offering anything from that particular competition on pay-per-view. I can see the close attention which my noble friend is paying to my reply. I have to tell him that I fear that there is no cut and dried answer to this, and nor do I think we can hope to resolve these matters with absolute precision on the face of the Bill. It will be for the authority to determine whether any particular event which cable might wish to put on pay-per-view, is similar to a series of events which it has been the broadcasters' practice to show. The important thing is whether on the facts it is clear that the broadcasters have actually covered that series of events. Let us take the example of the FA Cup. The broadcasters have always covered the final, and so that would clearly be protected, in addition, no doubt, to being a listed event under Clause 13(1). Equally, the broadcasters have never covered the qualifying rounds, when the more romantically named teams like the Corinthian Casuals and Marine are locked in combat, nor even the first two rounds proper—if I can say that without giving offence—when the third and fourth division teams come in; but not their senior colleagues from the first two. So the broadcasters could not reasonably seek protection for those matches. Where there would obviously be more scope for argument is in the subsequent stages up to the semifinals where the broadcasters do show some games, but not others. We shall certainly reflect further on what has been said by my noble friend, because I would not claim to have got a perfect definition—in fact, I doubt if there is one. But if it is possible to get closer to it, then of course we shall continue the attempt. I would not offer too much hope, therefore, that the definition will be perfect. It is now narrower than it was (it may not be quite as narrow as my noble friend would like) but for the reasons I have given, I think that it may well prove to be the best that we can do. My noble friend suggested that Clause 13(2) and paragraph 115 of the White Paper are at variance. That is certainly not our intention nor, indeed, our understanding of the effect of the clause. The White Paper talked of "customarily", and in statutory language that has come out as what is the practice of broadcasters. So far as a series of events is concerned, the White Paper was able to talk as if the Cup Final or the Grand National was a single event, whereas in strict statutory terms each event, each year, is a separate one. It is not possible to get an exact coincidence of statutory and colloquial language. We have attempted to get as close as is feasible. I will obviously look at his strictures before I put my hand on my heart and say that they are exactly the same in the result. I should like now to turn to Amendment No. 40 which stands in the name of my noble friend. I apologise for the length of my reply, but I must answer all of your Lordships. This amendment is similar in form to the one moved by my noble friend at the Committee stage. Clause 13(2) as it stands provides a protection for the viewer of regularly broadcast events by seeking to prevent the coverage of those events by the cable operator on a pay-per-view basis. The subsection is designed to prevent the cable operator from using the special purchasing power of pay-per-view effectively to exclude the broadcasting authorities from the market. My noble friend's amendment would waive that protection afforded by subsection (2) where the Cable Authority was satisfied that the terms upon which the broadcasting authorities were competing for the rights were not adversely affected. The Government accept that cable companies should not be subject to unnecessary restrictions and we have already proposed a reformulation of Clause 13(2) which meets a number of the concerns expressed at the Committee stage. The further modification of the subsection which this amendment proposes assumes that there will be circumstances where the coverage of these events on pay-per-view will not adversely affect the competitive position of the broadcasters in the market place. But I think it is in the nature of pay-per-view that the broadcasters' position will be adversely affected. That at least is the conclusion that was reached by the noble Lord, Lord Hunt of Tanworth, in the report of his inquiry into cable when he suggested that there should be no pay-per-view on cable. The restriction in Clause 13(2) is far less restrictive than that, but it is founded on the same presupposition that pay-per-view will inevitably put the broadcasters at a disadvantage when they are interested in covering the event. It would be unrealistic to impose upon the Cable Authority, as this amendment would do, a duty to weigh up the effect of every proposal to put an event on pay-per-view upon the competitive position of the broadcasting authorities, when the working assumption must be that their competitive position would be adversely affected. The second assumption made in the amendment is that there will be circumstances where a cable operator is prepared to cover an event on a pay-per-view basis at the same time as it is covered by the broadcasting authorities. I may, perhaps, be less puzzled by this than I was, because it seemed to me, on the face of it, odd that somebody should wish to provide for money a service which was already available to the same audience free. But the noble Lord has now, I think, made clear that he is suggesting that it might happen that the broadcaster would wish to produce coverage of prime time and prime events, and that the cable might want to go wider. That is a very difficult issue. I do not want to create confusion between pay-per-view and other forms of cable, but this is a proper moment to say a few words about Wimbledon because my noble friend has used it as an example and I know that there is some anxiety about this. In clarification of that issue I should say, first, that this clause applies only to the inclusion of listed and protected events in cable services in this country. I understand that Wimbledon is sold for showing on cable in the United States, and there is, of course, nothing here which bears on that. Secondly, when it comes to offering the rights to broadcasters and cable companies, it is for the rights holders to decide how to package them up. To take a lengthy event such as Wimbledon, the organisers might decide to set a price for a number of separate packages. There is nothing in Clause 13 to prevent that. As regards listed events, Clause 13(1) ensures that the broadcaster has the opportunity to buy each of the packages. The third thing to elucidate is that the 24-hour rule means that none of the Clause 13 restrictions applies for more than 24 hours immediately after the recording has been made. So, to change the example, in the case of a Test Match there would be no restriction on cable showing on the second day highlights from the first day's play."one of a series of similar events".
My Lords, before the noble Lord leaves that point, may I suggest a better example to him? Suppose the Seven-a-Sides are being held at Twickenham, which start at about one o'clock and continue until six o'clock at night, and that an all-sports channel decides to broadcast all those rounds right to the final, which will be broadcast on BBC. The question I ask is: could they include that final in their package—they are not selling it—instead of saying to their viewers, "We have now reached the final, switch over to the BBC channel in order to watch it"? Can they broadcast it on the same cable channel?
My Lords, I am loath to be drawn into too specific detail, but the Bill as drafted imposes a delay of 24 hours on the transmission of what is on the tape. I think that that is sufficient elucidation to the noble Lord, although what the announcer would say under the circumstances I do not think would be exactly what the noble Lord has said.
My noble friend was intending the coverage of part of an event on pay-per-view terms, but I have reservations about that, and I had just given one of the reasons in answer to the noble Lord when he interrupted me. The truth is that with many of the larger sporting events, such as the Test Matches and Open Golf Championships, the broadcasters already give a very comprehensive coverage and I doubt whether in those cases there are large extracts which they do not include and, judging by the length of the extracts that I have seen, which therefore could be offered by cable on pay-per-view. Even with very large events, such as the Wimbledon championship or the Olympic Games, where the broadcasters cannot cover every minute of every day, they make it their job to give the viewers access to the main matches and competitions. That could well leave room in the periphery, as it were, for conventional cable; but however modest their declared ambitions, to make pay-per-view attractive the cable companies would inevitably want to acquire an even larger slice of the best action for themselves. Your Lordships can see the conflict of interests involved in that. I well appreciate the desire of the cable interest to gain more of the action in this field, and for that reason in the Government amendments tabled on Clause 13 we have attempted to make the definitions less restrictive. I should add—and this may perhaps reassure my noble friend—that we are talking here only about pay-per-view and not about other forms of pay television. I understand that in the United States pay-per-view is still an extremely limited phenomenon compared with pay-per-month, and although the use of switched star technology may increase the attractiveness of pay-per-view over here, it still remains to be seen how popular it will be. There is nothing in Clause 13(2) to stop cable operators bidding to show these events on a subscription or an advertising-financed channel, and I am talking only about pay-per-view. I do not pretend that what I propose is perfect I think that it is nearer to perfection than it was. I hope that your Lorships will prefer it to what has been offered in the alternative. I have said that my notes are labyrinthine and I must speak to the amendment of the noble Lord, Lord Howard of Henderskelfe, and then I can promise my patient friends that their ordeal is nearly over. The amendment of the noble Lord, Lord Howard of Henderskelfe, is an extension of that which he moved in Committee. It provides a reserve power for the Home Secretary to make regulations preventing the making of exclusive arrangements for the broadcasting or showing on cable of a major national event; that is, what we now propose to call listed events. This follows from the existing provision in Section 30 of the Broadcasting Act 1981. When preparing the Bill, the Government gave careful thought to the possibility of taking a regulation-making power in this context, but we came to the conclusion that this was not a promising approach. Regulations have never, in fact, been made under Section 30 of the Broadcasting Act, and I noted that the noble Lord said that his amendment might never actually come into service, but that it would hang behind the door like the headmaster's cane. It is far from clear how a comparable power might operate in the case of cable, particularly if it were directed, as it would be under the noble Lord's amendment, against the rights holders. However effective or otherwise Section 30 might be as between the BBC and independent television, we ought not to read it across into the very different situation which cable will create unless we are confident both that it is an appropriate power and that it would work. The Government have doubts on both counts. We have to remember here that we are dealing with the freedom of sports organizations, such as the Football Association, and the Test and County Cricket Board, to decide who they want to let in to televise their events and at what price. We have to be very careful before attempting to place any restrictions on their ability to take the normal commercial decisions which they judge to be in the best interests of their sports. Television must not become a burden on sport; Her Majesty's Government must ensure that it does not. The Government also have a responsibility to the ordinary viewer, as do the broadcasters. That is why we have built two specific safeguards into Clause 13. Under Clause 13(1) we have ensured that the broadcasters must always be given the opportunity to acquire the rights to major national events on comparable terms, and under Clause 13(2) we have ruled out pay-per-view for those and, indeed, a wider range of events. I shall read very carefully the observations that your Lordships have made about the piecemeal protection within those categories to which my noble friend and others have drawn attention, but what we have not felt able to say, as the amendment of the noble Lord, Lord Howard, does, is that if these events are to appear on television at all, they must be covered by the broadcasters. In our view, that would give the broadcasters an unreasonably strong position in the negotiations over price. So far as practicality is concerned, I would only say that powers without proper sanctions are never particularly effective, and it is far from clear to me at the moment what sanctions could be operated appropriately in this area. For those reasons, therefore, we think that Clause 13 offers the most sensible approach and that the noble Lord's amendment is not as helpful as he would like us to think. During my necessarily lengthy speech I hope that your Lordships have been able to weigh up the merits of the different approaches here proposed. I believe that what Her Majesty's Government propose represents the best solution, both to the tricky question of definition and to the equally tricky problem of access. I shall, of course, look with great care before the next stage at any new ideas that have been put before me, and there have been some this afternoon. I shall not recapitulate what I have said—your Lordships could not possibly take it. Your Lordships have been most patient and I hope that you will allow these amendments to be incorporated in the Bill at this stage.5.9 p.m.
My Lords, as I do not intend to move my amendment, with the leave of the House, I should like to make three brief remarks. First, in spite of all the help that we have had from my noble friend, I want to leave it on record that his amendment falls far short of what the White Paper suggested and of what is suggested in my amendment; that we believe that my amendment, but more importantly the White Paper's suggestion, is absolutely fair and totally protective of broadcasters. Secondly, I take great comfort from the offer that my noble friend has made to have a look at everything that has been said with a view to further consideration at the next stage or even with a view to this matter being dealt with in another place.
Finally, with respect, I think it became apparent that the meaning of the word "series" had not been fully thought out, and perhaps that is what my noble friend meant when he said that he would have another look at it. The interpretation of the word "series" as it will be, I expect, in the Bill, will be crucial. Whether my noble friend wants to see it still in the Bill or whether he is content, as he suggested, to leave it to the Cable Authority to sort out—and I was pleased that the noble Lord, Lord Howard, suggested that this could largely be settled by discussion—in the terms that they think are most sensible, I do not know. As it stands, "series" is a word that lacks definition, and if it is to stay there it must have it. Having said that, I am obliged to my noble friend for all the trouble he has taken on this matter.My Lords, with your Lordships' leave, I will just say that of course the definition is something we will look at. Whatever we come to in the end, the interpretation is going to rest with the authority, and we are not producing something which is totally watertight. I beg to move.
On Question, amendment agreed to.
moved Amendments Nos. 37, 38, and 39:
Page 12, line 21, leave out from ("that") to ("been") in line 23 and insert ("both broadcasting authorities have")
Page 12, line 25, at end insert ("; and for the purposes of this subsection an opportunity given to the Welsh Authority, the IBA's subsidiary or a programme contractor to acquire broadcasting rights in respect of a listed event shall be treated as given to the IBA")
[ Amendment No. 39 printed earlier.]
On Question, amendments agreed to.