asked Her Majesty's Government:

My Lords, primary care trusts decide whether they wish to form purchasing consortia for specific specialised services. Overall arrangements for commissioning specialised services are performance managed by strategic health authorities. In turn, strategic health authorities are subject to a national process of assessment which will include their processes for strategically reviewing the commissioning of specialised services. There are no plans to change those arrangements.

My Lords, is my noble friend aware that this Question is about people with rare but serious conditions that are very expensive to treat? The Government seem to be failing some of them. Currently, only the combination of primary care trusts and consortia can handle these cases and cope with the expense. In my view, and according to that Answer, all the Government seem to be doing is making recommendations or guiding and advising. What they should be doing is demanding that primary care trusts establish consortia and requiring them to carry out that work. Without such a combination, these people will remain neglected, and that would be inexcusable. It is the Government's job to see that primary care trusts are not left to their own devices. They are reluctant to combine, but unless they do they cannot treat this small but vital number of very important cases, some of them people with life-threatening conditions.

My Lords, I am aware of my noble friend's concerns. However, it is also true that the Government have tried to shift the balance of power—the title of the document published in 2002—to devolve more responsibility to a lower level. We have also issued guidance on the commissioning arrangements for specialised services to try to address some of the concerns expressed by my noble friend. However, we have not just issued guidance. A Department of Health survey showed that, in the first three years of their existence, regional specialised commissioning groups had made significant advances in establishing commissioning arrangements for those specialised services. Those included in particular the eight national priority services, which I will not go into but which I am sure are well known to many noble Lords. The survey also looked at the commissioning arrangements for other specialised services and found very reassuring evidence that things were going in an extremely satisfactory manner.

My Lords, this House last debated specialised services in April 2003. During that debate, the answers given were widely at variance with answers which have subsequently become available from John Hutton, the health Minister, and indeed from Ministers in this House. The guidance given in April clearly lacks the clarity needed by those who are now responsible for commissioning. Will the Minister undertake to reissue that guidance in a much clearer form?

No, my Lords.

My Lords. has any consortia of this kind for buying these services yet been formed? If so, how many?

My Lords, I am not sure that I understand the drift of the noble Lord's question. We do not collect a lot of information of this kind centrally, as I thought I had made clear. However, if he would like to write to me about particular concerns I shall be happy to make inquiries.

My Lords, if one accepts, as one must, that clinical research is a vital function of the National Health Service, can the Minister assure us that that will be preserved and enhanced in the arrangements that he has been talking about? There is no doubt at all that the results of research not only nourish but produce major developments in clinical care. Will he also take account of the parlous state of clinical academic medicine at the present time, which is very serious when one talks about the future of clinical research in the United Kingdom?

My Lords, on the latter part of the noble Lord's question, I am aware of the concerns about academic medicine. Work is under way, particularly in relation to a number of inquiries—but that is rather wide of the Question. On the particular issues of research in relation to commissioning, nothing in these new arrangements for commissioning should damage the research interests.

My Lords, will the Minister explain what specific plans are in place to monitor the commissioning of cancer services given the need for the exceptional tracking exercise recently?

My Lords, the arrangements for monitoring specialised cancer services are the same as for other specialised services; they are as indicated in my earlier Answer to my noble friend Lord Ashley. It will be for the department to assess with strategic health authorities, when they assess their accountability, the performance in this area.

My Lords, does my noble friend the Minister agree that primary care trusts also have strategic responsibilities not only in connection with specialist commissioning but in a wider area? Does he agree with me that, particularly in metropolitan areas, primary care trusts tend to think of their own corner and not of the strategic role they clearly have?

My Lords, I understand my noble friend's concerns. Primary care trusts have a responsibility in relation to their particular areas and in relation to specialised services, which go much wider. As I said, we have carried out a survey which, without being complacent, is rather reassuring about the way in which primary care trusts are tackling specialised services.

My Lords, I wonder if the Minister could help us in this rather confused area. Who is responsible for, say, providing the services for children who need kidney transplants, and to whom are they accountable?

My Lords, about 36 specialised service areas are defined. I am trying to skim down the list to see whether the services the noble Lord mentioned are included. My eyes do not immediately alight upon them so I do not think they are included. However, I shall write to the noble Lord.

My Lords, what will the treatments be called? They used to be called supra-regional specialties and then out-of-area treatments. Will the money follow the patient?

My Lords, as I tried to say earlier, they are called specialised services. A set of national definitions identifies those services—36 in all. They are covered by PCT consortia for commissioning where populations of 1 million or more are covered by those services. That is about as far as I can go.

asked Her Majesty's Government:

My Lords, Postcomm is in the process of considering the action plans Royal Mail has presented to it to underpin this year's service quality targets. I have no doubt that one of the issues it will be looking at will be the potential impact of implementing Royal Mail's multi-modal transport review.

My Lords, I am grateful to my noble friend for that Answer. I declare an interest as chairman of the Rail Freight Group. Does he not agree that as Royal Mail is a government-owned company it should comply with government policy to use as much rail freight as possible rather than road? Should it not also in its appraisal use the Government's appraisal and methodology in comparing the benefits and the costs of road, rail and air for value for money, environmental benefit and performance? Will he ensure therefore that Postcomm requires the Royal Mail to do that as part of the review?

My Lords, it is for Postcomm to ask those questions. On the figures that I have the air and road only network results in fewer carbon emissions than the air, road, rail proposal. It also involves fewer lorry movements although more miles per annum. It is arguably a better environmental scenario.

My Lords, is it not the case that Royal Mail anticipates that it will reduce its losses by some £90 million a year by switching from rail to road? Would it not be wrong to interfere with such a wise commercial judgment?

My Lords, the figure of £90 million is the total savings from the total transport review. Transferring rail services to road will save about £25 million which is a substantial amount of money. It is a commercial decision for Royal Mail to take rather than the Government.

My Lords, is the situation not complicated by the incidence of VAT which is payable on rail freight but not on road movements by Royal Mail? Of the saving of £25 million, how much is accounted for by VAT?

My Lords, as the noble Lord asked that question on a previous occasion, this time I can give him the answer. The £25 million saving would come down to £19.5 million. It would nevertheless still be a very substantial saving. It arises because VAT is not paid on stamps. Therefore, VAT cannot be recovered from the railways. I hope the noble Lord is not suggesting that we should charge VAT on stamps as a way of solving the problem.

My Lords, what has to happen before the Government acknowledge that such a decision is of major public interest and is much broader than purely a commercial cost matter?

My Lords, in the past 25 years during which I have had any connection with the postal service, I believe that Royal Mail has suffered enormously under all governments through Ministers and civil servants interfering in commercial decisions. It is not the intention of the DTI to continue with that tradition.

My Lords—

My Lords, will it be borne in mind—

My Lords, it is the turn of this side.

My Lords, my noble friend will be aware that a number of my noble friends are perplexed by the answers that he is giving on this particular matter. What is the point of Labour Members of Parliament and Labour activists knocking on doors up and down the land and assuring people that we intend to move freight from road to rail when we are totally incapable of intervening on this occasion when the public utility is owned by the taxpayer? It is owned by us. We are the shareholders.

My Lords, the amount of mail as a total percentage of freight is very small; it is about half of 1 per cent. The Secretary of State sets social and environmental targets against which Postcomm measures performance. However, as I suggested, in this particular case it is not at all clear that continuing with the rail freight operation is environmentally the best solution.

My Lords, the Minister said that it was correct not to intervene in a commercial decision, but has he seen discussion in the newspapers of proposals for a heavy congestion charge on the motorways? Up to 50p per mile is mentioned. As we are moving into an age of charges for transport on roads, what will happen then? Will the Post Office do its sums again and decide that it ought to go back to rail?

My Lords, as I am sure the noble Lord knows, the situation is that about 70 per cent of the future network connections—that is, the journeys that take place—will take place between 6.30 in the evening and 3 o'clock in the morning, when congestion is not a major issue.

My Lords, I assume that the Minister will be aware that, on these Benches at least, there is great concern about these proposals. For example, how on earth will the situation be dealt with at Christmas time, when some 150 extra trains are brought into play to deal with the Christmas surge? Does he think that that can be handled by road, or maybe by air as well? It seems absurd.

My Lords, it is very difficult—which is why it has been such a disaster in the past—for Ministers and civil servants to try to control the operational arrangements of an industry of this scale and complexity. It is simply not possible, nor do I think it desirable, for us to start imposing our judgment on how those operational services are run, at Christmas or at any other time.

My Lords, will it be borne in mind that Royal Mail has always, so far, delivered first-class mail promptly? Will the Minister ensure that that continues?

My Lords, clear service targets are laid down by Postcomm, and it is the job of Postcomm to measure the performance of Royal Mail against those. In looking at the action plans of Royal Mail, it will take into account whether, in its judgment, they will lead to the service standards that it has laid down.

My Lords, is the Post Office meeting its performance targets at present? Two cheques have gone missing from my mail in the past three weeks?

My Lords, I am very sorry that the noble Lord has had that particular problem, but I do not think it is relevant to the Question that we are considering.

asked Her Majesty's Government:

My Lords, the chairman of the Joint Intelligence Committee was responsible for the production of the September dossier. There was no attempt to override the judgment of the chairman at any point in the process. Intelligence was not inserted; neither was it exaggerated at the instruction of Ministers or special advisers. The Government welcome the Foreign Affairs Committee's conclusion on this point.

My Lords, the noble and learned Lord is not quite answering the Question. Did the Joint Intelligence Committee have sight of either version of the dossier? When the noble and learned Lord has answered that, perhaps he will go on to a further underlying question; namely, whether anything has been done to reassure the troops in Iraq, who must be rather upset by the squabble that is going on, which no one is going to win and in which everyone may come off a loser. Not only that, but will he, first, congratulate them on the achievement of getting rid of Saddam and, secondly, will he make sure that they are given some clue as to what they are going to do next and how long they will be in Iraq?

My Lords, on the latter point, I could not agree more with the noble Lord. Our troops in Iraq are carrying out their professional duties with their usual skill and calm attachment to duty. Going back to the Question, the chairman of the Joint Intelligence Committee was responsible for the production of the dossier. I have authority to tell your Lordships that I believe the dossier was published on 24th September. On 23rd September—if we want to go to responsibility for the contents—the chairman of the Joint Intelligence Committee was actually at the printers checking the proofs.

My Lords, does the noble and learned Lord the Leader of the House recall that some of us questioned whether or not the evidence presented in those dossiers at the time justified the conclusions that were reached? Does he also recall that, after the Falklands War—where there was much less questioning of the intelligence provided to the government beforehand—the government accepted that a judicial inquiry would clear the air? Do we not now need something that will very much clear the air?

My Lords, clearing the air is usefully done by attending to fact, not assertion. There has been a vast amount of false assertion put forward here—not necessarily knowing it to be false at the time, but without the grace to recognise that false assertions having been made, an apology might well be in order.

I go, if I may, to one or two conclusions of the FAC:

"We conclude that Alastair Campbell did not play any role in the inclusion of the 45 minutes claim in the September dossier".

"We conclude"—

this is conclusion 14, found at paragraph 86—

"that the claims made in the September dossier were in all probability well founded on the basis of the intelligence then available, although as we have already stated we have concerns about the emphasis given to some of them. We further conclude that, in the absence of reliable evidence that intelligence personnel have either complained about or sought to distance themselves from the content of the dossier, allegations of politically inspired meddling cannot credibly be established".

So we are waiting, I imagine, for an apology.

My Lords, will my noble and learned friend confirm that the Intelligence and Security Committee is now conducting an investigation into this matter? Would it not be sensible to await the outcome?

My Lords, it is indeed, as my noble and learned friend indicated, considering this matter and it is going to be given the fullest possible assistance at the specific direction of the Prime Minister. The Prime Minister has said that, subject of course to the usual constraints of sensitive intelligence and on a basis to be agreed by that committee, the report will be published. My noble and learned friend of course serves on that committee. It is a committee of absolute integrity, and I do respectfully suggest that those who make unsubstantiated allegations might well attend to the report that is about to be published.

My Lords, when did preparation of the dossier start?

My Lords, the preparation of the dossier cannot be said to have started at any particular time. The Joint Intelligence Committee, as a number of your Lordships know, produces regular assessments. It was decided that a dossier should be produced. The responsibility for the production of that dossier was with Mr Scarlett, the chairman of the Joint Intelligence Committee. I repeat: he had such a close involvement that he was actually checking the proofs, the final format and the final content on the day that the printing run was to start. on the day before publication.

My Lords, the Lord President has quoted from the report of the Foreign Affairs Committee—a number of whose members made clear that they could not give a full report because they did not have access to all the material. Endorsing what the noble and learned Lord, Lord Archer, has said—who is a previous colleague of mine on the Intelligence and Security Committee—will the Minister confirm, first, reinforcing what he said, that no reasonable request from the Intelligence and Security Committee will be refused; and that material that was refused to the Foreign Affairs Committee will be made available to the Intelligence and Security Committee? Will he further confirm that, having regard to the fact that virtually all these matters are now history and not subject to acute sensitive intelligence, the Government will raise no objection if, for part of its hearing, the Intelligence and Security Committee decides to sit in public?

My Lords, I certainly give the assurance for which the noble Lord asks. He and I both had dealings together when he was a distinguished member of the ISC. So far as concerns the committee sitting in public, if the committee, having borne in mind the very sensitive ramifications which the noble Lords knows of as well as I, wished to sit in public, that, it seems to me, would be a matter for its own decision. I do not entirely agree with the noble Lord when he says that this is historic. He will know as well as I that, even if intelligence becomes historic, the danger to sources continues, sometimes for many years.

My Lords, have not the answers that the Leader of the House has given in reply to questions on this subject revealed the weaknesses of the Select Committee system? As the noble and learned Lord has ruled out a judicial inquiry, does he not think that we could learn from the American system of congressional committees? The American constitution, in I believe Articles 1 and 2, confers on those committees what the constitution calls all the necessary powers in order to investigate effectively and to hold the executive to account. If there is not to be a judicial inquiry on controversial matters such as these, does the noble and learned Lord think that we could learn much from the American system when trying to correct the widely perceived imbalance that we have in this country between the power of the executive and the power of Parliament?

My Lords, whether we can learn from any other select committees in any part of the world, whatever the jurisdiction, is certainly worthy of consideration. The budgets of congressional committees of inquiry, whether in the House of Representatives or in the Senate, are very substantial and they have the benefit—some would say—of being assisted by qualified cross-examiners.

My Lords, does the noble and learned Lord share the reported view of the Foreign Secretary in relation to the second, February part of the report that it was a horlicks? In those circumstances does he feel that it was entirely consistent of the Foreign Secretary yesterday publicly to call on the BBC to offer an apology for its rather more circumscribed criticisms of the first September report?

My Lords, the Question concerns the first dossier and I responded to that. I was never quite sure what an "absolute horlicks" meant and I am still waiting to be told. The important question in relation to the apology is that assertions were made by the BBC that have proved to be wrong. If one looks at what was said in the dossier, to which the Question of the noble Lord, Lord Peyton, referred, the 45-minute issue is dealt with there. Journalistic ethics are an important part of a civil society. With great respect, it seems to me that if the BBC sometimes gets things wrong, it would not be a bad idea to say so.

My Lords—

My Lords, I believe it is time to move on to the next Question.

asked Her Majesty's Government:

My Lords, Her Majesty's Government had a wide range of discussions with United States interlocutors on contingency plans for post-war security and reconstruction if the Iraqi regime failed to comply with United Nations Security Council Resolution 1441. At the Azores summit on 16th March, shortly before the conflict began, the Prime Minister and President Bush set out a vision for Iraq committing the coalition to work closely with inter alia the United Nations to ensure an appropriate post-conflict administration and to support the Iraqi people.

My Lords, does the Minister recall that on 14th February Mr Donald Rumsfeld, the Defence Secretary, said:

"With Iraq … there has been time to prepare. We have set up a Post War Planning Office"?

That was echoed by the Deputy National Security Adviser who said that there had been extensive discussion over months between the United States agencies about the post-war planning. Can the Minister tell the House whether the United Kingdom was fully consulted at all stages and whether it raised any objections for what in retrospect now looks like a very complacent set of assumptions about what would happen to Iraq once the conflict was over?

My Lords, the noble Baroness has mentioned what was said in America about United States planning. The Foreign Office, the MoD, DfID and indeed the DTI liaised extensively with each other and liaised also with United States counterparts in the State Department, the Pentagon, US Aid and other relevant United States authorities. From the outset it was very clear that coalition forces would be responsible for humanitarian assistance in the aftermath of any fighting and, of course, that UN authority would be needed for reconstruction.

The noble Baroness says that this has been characterised by complacency. I do not agree with that. There was a great deal of work to be done and there remains a great deal of work to be done. Two months after the end of decisive combat operations, I am bound to say that Iraq is already arguably better off than a number of post-conflict areas with which we have been associated in recent years.

My Lords, do the Government agree that the experience of Bosnia and Kosovo shows clearly that the first thing that needs to be restored is law and order and a system of justice? Can the noble Baroness tell the House what criminal and civil codes are now in force or in use in Iraq?

My Lords, to be honest I do not agree that it is solely law and order and civil justice that has to be restored. There are also the vital issues of food, of water, of electricity, of sustaining the basics of life itself. The noble Lord shakes his head, but I can assure him that, were those vital necessities not being delivered to the people of Iraq, I am absolutely certain that he would be one of the first to be on his feet making exactly that point to me. It is not a matter of just shaking his head, if I may say so, because troops also have to be engaged in ensuring that those basic necessities of life are delivered.

As to what is happening on law and order and justice, policing is improving. There are now 33,000 Iraqi troops operating in Iraq; some 8,000 of those are in Baghdad; and there are also about 3,000 operating in Basra. The courthouses are starting to open: as I understand it, currently three in Baghdad and one in Basra. So the justice system is now starting to reassert itself.

My Lords—

My Lords—

My Lords, there is time for both noble Lords to ask a question.

My Lords, accepting the assurance of my noble friend that reconstruction is a matrix, as of course it is, nevertheless can she tell the House exactly what resources are being put into the redevelopment of the system of justice and of civil policing?

My Lords, I cannot quantify what is going in, in terms of money being spent. but I can tell your Lordships that the security situation is being controlled by coalition troops. The number of coalition patrols has increased and there are now around 2.500 patrols a day across Iraq, and I can tell my noble friend that 200 of those are jointly conducted with the Iraqi police. As of 24th June, Iraqi police were conducting their first patrols on their own, which is a major step in helping Iraqis to return to a self-policed environment. It is important that we are talking here not only about what the coalition is able to bring to security on the ground, but also increasingly about what Iraqi policemen are bringing to the security on the ground.

My Lords, given that the Government fought the war because they believed that there were weapons of mass destruction that may fall into the hands of extremist groups through Saddam Hussein's regime, why are the Government so calm, and indeed almost complacent, about the failure to enforce law and order which has resulted in looting and in all kinds of materials possibly falling into the wrong hands? What are the Government doing to ensure that we are not at risk of that happening if they believe that there were weapons of mass destruction in Iraq?

My Lords, if by the use of the word "calm" the noble Lord is trying to imply that the Government are complacent on this issue, I reject that entirely. I have just explained to your Lordships what is happening, with increased patrolling from coalition forces—some 2,500 patrols, as I have indicated, every day—and the increased provision for Iraqi policemen also to be involved.

Of course, the issue of finding weapons of mass destruction is very important, but I am bound to say to your Lordships that I think it has greater importance in the United Kingdom, perhaps in both Houses of Parliament and perhaps also in our press, than necessarily it does on the ground in Iraq. The majority of Iraqi people want to ensure that they are living in an environment where they can send their children to school, where they can be sure about their health, where they have secure policing and where they have access to food and water. I point your Lordships to the fact that yesterday, for example, there was the first meeting of the new Baghdad city council, a not unimportant issue. The noble Lord may shake his head and look exasperated. If the noble Lord does not believe that it is important that democracy is being established in the city of Baghdad then I beg to disagree with him.

My Lords—

My Lords, the noble Baroness refers to the situation—

My Lords, I apologise to the noble Lords; we are well over time.

asked Her Majesty's Government:

My Lords, the primary focus of the review will be to make public service delivery more effective and efficient. It will examine the best organisational arrangements for delivering the Government's tax objectives. It will consider the case for changes in the law where necessary to allow the full benefits of particular arrangements to be realised, and it will pay particular attention to the need to ensure the continued effectiveness of the core business of revenue collection and administration.

My Lords, if it is confirmed by this review or otherwise that financial loss has been suffered by those who have applied for tax credits and not yet received payments due to inefficiencies in the system, will the Minister confirm that the Inland Revenue code of practice will definitely permit compensation?

My Lords, there has been a great deal of misrepresentation on this issue, although I can give the noble Lord, Lord Freeman, the assurance that he seeks. It has been claimed that there has been a great deal of loss. There has certainly been delay in dealing with telephone calls and with correspondence. Anyone who has applied for tax credits and has shown his or her eligibility for tax credits will get the money which is due.

My Lords, can the noble Lord confirm that one option being considered by the review is whether the Inland Revenue and HM Customs and Excise might merge? Within that context, will the review be considering whether the extensive powers which are currently held by Customs officers might be extended to Inland Revenue officials?

My Lords, I am glad to be answering a supplementary question which is about the original Question on the Order Paper. Yes, I can confirm that that is one of the options being considered. The matter of the potential merger of the Inland Revenue and Customs and Excise has been on the public agenda since a parliamentary committee of inquiry in 1862. It was last considered by the Government in 1993 and by the Treasury Select Committee in 1999. So this is not a new proposal, if indeed that is what emerges from the current review. But the question of the powers of Customs and Excise and Inland Revenue officials will undoubtedly be a part of the review.

My Lords, can my noble friend say who is to undertake the review and when it will report?

My Lords, the review will be conducted by the Treasury and it will report in due course.

My Lords, in the discussion of this merger, has there not been an unattractive tendency lately to blame Inland Revenue officials for faults which really lie with Ministers—for example, the Chancellor landed the Inland Revenue with the task of administering tax credits, which have nothing to do with tax at all? As the Minister is aware, it was in your Lordships' House that it emerged that 90 per cent of all tax credit payments totalling £15 billion a year actually exceed the total tax liability of the recipient. In other words, they are not tax credits at all.

My Lords, if there has been criticism of officials in the Inland Revenue, it has not come from the Government. The Chancellor has explicitly praised the Inland Revenue for the way in which it has taken on the very substantial additional tasks imposed on it by the tax credit regime.

My Lords, in reviewing the administration of tax, will this review also investigate the issue of fraud, particularly in respect of tax credits?

My Lords, there are continuing reviews on the issue of fraud, just as there are continuing reviews on, for example, failures of prosecution for fraud, if that is to what the noble Earl, Lord Northesk, is referring. One such review being conducted by Mr Justice Butterfield will be reporting very shortly, probably next week. We shall be interested to see the findings.

My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Communications Bill, have consented to place their prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament, for the purposes of the Bill.

moved Amendment No. 1:

My Lords, my name is attached to Amendment No. 131 and I therefore support the noble Lord, Lord McNally, on both the amendments in this group.

The noble Lord concluded his remarks with a quote from the Puttnam committee, which I was going to take as the simple proposition on which to base my speech. He referred to this being the clearest and most straightforward way to make sure that we did not have a major terrestrial channel, a major newspaper group and a dominant satellite network open to shared ownership.

The noble Lord, Lord McNally, also observed earlier in his speech that the Government will argue that now we have a plurality test, these amendments are superfluous. He said that the plurality test would depend upon the approach of the chairman of Ofcom and his hoard and on the effectiveness of the legislation. However, it is a little worse than that. It is actually going to depend on the attitude of Ministers and the action of Ministers. I want to say a little more about that.

Noble Lords must be clear that the purpose of the plurality test as it is about to be added to this Bill by the government amendments, which we will debate later, is not to impose a plurality test. The purpose is to enable a media plurality test to be carried out in the event of a qualifying merger.

According to the Minister on Report,

"a plurality test would, in principle, allow the Secretary of State to make a judgment on media mergers".

He went on to say:

"It will be for Ministers to determine whether the merger causes sufficient plurality concerns for it to be blocked, or for conditions to he attached".—[Official Report, 2/7/03; col. 914.]

Therefore the test is very conditional and it is all in the hands of Ministers. The test may be effective if Ministers decide to act, but that is a very big if. We know, because Ministers have told us, that the Government took the view that there were very good reasons for removing the restrictions on a major newspaper owning or controlling Channel 5, although in response to repeated questions since, it has emerged that the only difference they can spell out is the difference in size between Channel 3 arid Channel 5 at the present time.

We know that the Government intend to be restrictive in their use of this new plurality power. There is no guarantee that the Government would use it to prevent a major national newspaper owning Channel 5—the Minister made that perfectly clear on Report. I refer to his remarks in col. 915 of the Official Report of 2nd July 2003.

We are told the Government will publish guidelines setting out in more detail the areas where the test will generally be applied. I am not sure whether these guidelines have yet been issued. In any case, guidelines are only guidelines. Therefore, we have before us what might be termed the "if, maybe, possibly, and then again, possibly not" clause.

However, the arguments against allowing a newspaper which has a national market share of 20 per cent owning Channel 5 are immediate and compelling. They do not depend on some future increase in Channel 5's market share. Those arguments were put with great conviction, with admirable brevity and clarity and with unanswerable logic by my noble friend Lord Glentoran, speaking from the Opposition Front Bench in Committee. I agreed with everything he said then. He provided grounds enough to support the certainty of the amendment before we again fog it all with the uncertainty provided by the Government's plurality test.

There is a another compelling reason for Parliament removing the uncertainty. We know that there has never been a moment in the history of the modern media when its barons have not been prepared to exert every pressure in support of their own interests. We also know that there has never been a time when the powers of media barons to exert pressures have been greater—greater perhaps than when Stanley Baldwin made his famous remark about "power without responsibility … the prerogative of the harlot down the ages".

As the Bill has gone through Parliament, pressure has been applied to both the Government and the Opposition to allow the giant oligarchies the maximum freedom to exploit their already great power. I am alarmed at the prospect that we leave all this uncertainty in the hands of Ministers, who will inevitably and unavoidably come under greater pressure, no matter which party is in power. That pressure will be political and financial to allow the great media moguls to have their way.

We should build certainty into the Bill. I therefore urge my noble friends to support this amendment and with it Amendment No. 131.

My Lords, I accept the test that the noble Lord, Lord McNally, has put before us; namely, when we go into the Lobbies today, we should be thinking hard about how in 10 or 20 years we shall answer for our vote in the light of developments. I accept the test and have thought hard about the subject as a result. I want to make only three brief observations.

First, the noble Lord, Lord McNally, described the committee's recommendations as a trifle. I do not see it like that. I believe that in the plurality test we have a solid pillar which requires little by way of gothic buttresses to be added to it. It is sufficient to stand.

Secondly, although there are dangers such as those described by the noble Lord, Lord McNally, there is another. That is that Channel 5 does not do very well. In five or 10 years' time, the only people who might he prepared to invest in it are those who would not on plurality grounds be ideal. The Minister at the time will be able to account for that, but we are legislating for five, 10, 15 or 20 years.

If Channel 5 goes belly-up due to the fact that no one is prepared to invest in it because the law we have passed allows no flexibility for changing circumstances, that might be regrettable, particularly for those who get pleasure from Channel 5. It is, after all, a channel contributing to plurality, but it has no guaranteed existence. That is a matter that this House should weigh.

I want, thirdly, to comment on a matter that weighs heavily with me. In my time in this House—it is short compared with most noble Lords—I have known no other Bill that has changed so much during the course of its passage here. The Government have been prepared to make many fundamental changes. Indeed, one only has to look at today's Marshalled List to see the number of government amendments. They have not been tabled because the Government have cocked things up, but tabled in response to the views put forward by this House.

Like many noble Lords, I know the kind of arguments that occur among Ministers when considering amendments which come from this House. Many people in another place and elsewhere say, "Oh, don't pay any attention to them"; or they say, "If you give them concessions, what's the good? They just want more. They are insatiable, that lot. Take them on. Ignore them". Perhaps the Licensing Bill is an example of that.

Thanks to my noble friend Lord Puttnam, we have achieved a remarkable result with this Bill. It is beyond what most of us would have believed. We are now right, particularly Members on this side of the House, to say, "The deal is done. It is a success. We have achieved the objectives we wanted to achieve and now we will support the Government through the rest of the Bill".

My Lords, I was a member of the Joint Committee and I must remind your Lordships that we put forward a modest proposal that Ofcom should consider this matter. The Government's concession is that Ministers should consider the position. I totally share the view of my noble friend Lord Crickhowell that Ministers are subject to enormous pressure. The committee was united in the view that Ofcom should consider the position. It did not, as the noble Lord, Lord Lipsey, said, recommend setting the situation in tablets of stone. It said, "Allow this body, which is neutral and not subject to political pressures, to consider the position".

I urge your Lordships to support Amendment No. 1 tabled by the noble Lord, Lord McNally. Ministers are politicians and are subject to pressure. My noble friend Lord Crickhowell is right about that—he was one of them. I urge the House not to follow the honeyed words that we have just heard.

My Lords, I support the amendment tabled by the noble Lord, Lord McNally. The plurality test, though useful, will not quite do the job, particularly if it is in the hands of Ministers to apply it. I was prepared to consider the plurality test when Ofcom, which one hoped would be independent of Ministers, had the application in its hands.

Media are political. We would do well not to be too confident about how culture stands up to anyone else's agenda. It does not stand up very well—it never has. I therefore consider it important to put in place as many bodies charged with considering the preservation of our culture which do not include Ministers. I therefore support the amendment.

My Lords, I want briefly to support every word the noble Baroness, Lady Cohen, has just spoken. In particular, I want to echo what was said by my noble friends Lord Crickhowell and Lord Pilkington. I do not believe that the plurality test stands on its own and I greatly hope that your Lordships will support the amendment moved by the noble Lord, Lord McNally.

I sadly add this. While I have every admiration for the way in which my noble friend Lady Buscombe has led the opposition to the Bill, I deeply regret this lacuna. I speak for myself and not for her. I suspect that she is under heavy pressure from some gentleman down the corridor, whose name I can never remember, who has given contrary instructions in this particular context. I can say only that I deeply regret that and I shall certainly disregard them with some happiness and support the amendment in the name of the noble Lord, Lord McNally.

My Lords, I want briefly to make a point referred to rather vividly by the noble Lord, Lord McIntosh, when we last debated the Bill; namely, that the extent to which tests of the complex and rubbery kind which are implicit in his Amendment No. 85, which introduces the plurality test, can be the subject of intense legal bombardment by well-financed and resourced would-be litigators, should not be under-estimated by this House.

While undoubtedly the concession made previously and the tabling of the plurality amendment is most important, I believe that the rigour which would be added to it by the amendment in the name of my noble friend Lord McNally would carry the position much further. Amendment No. 85, introducing the plurality test, talks about,

"a sufficient plurality of persons with control of the media enterprises".

Media lawyers will lick their lips at the extent to which that will give them endless prospect for muzzling and befuddling the poor old lawyers who will be working for Ofcom.

I invite your Lordships to look at some of the other great regulators we have set up in the past 20 years. Let us take, for example, the Serious Fraud Office, which in the past five years has brought only a single prosecution for insider trading while everyone in the City knows that it is an hourly and daily event. Why? Because the criteria for the bringing of a prosecution and the range of legal guns levelled against the authorities if they try to prosecute are such as to make an insider trading prosecution a farce. I put that point to the House as a practical consideration.

My Lords, I also wish to support the amendment of the noble Lord, Lord McNally. There are two points that I wish to make, both of which have been made already but they need emphasising. The noble Lord, Lord Crickhowell, pointed to the two tests that already exist and have been reaffirmed by the government amendment—the test of 20 per cent for both ITN and Channel 3. There really is no argument why the same restrictions should not apply to any would-be owner of Channel 5.

The second point is one that other noble Lords have expressed. It is about the involvement of Ministers. As noble Lords will know, I have always had a great concern about the telecommunications and contents side coming together—the techies and the fluffies—because there could well and truly be conflicts of interest. Naturally, the Minister for Trade and Industry will be the one to be consulted. However, there are two Ministers who are to be responsible for this Bill. It is important to know that both would be consulted before any decision was taken.

Having said all that, I agree entirely with the noble Lord, Lord Lipsey. We have had a tremendous response from the Government and we all applaud that. It is this continued worry that we wish to reinforce by testing the amendment of the noble Lord, Lord McNally.

My Lords, I would like to speak against the amendment of the noble Lord, Lord McNally, despite the fact that I admire his work in this field. As he made a comment on the strength of Government Whips, I add to my admiration the way in which the Liberal Democrat Whips have gathered such a splendid force behind him. Not for the first time, the Liberal Democrats are extremely good at filling their Benches in support of this important amendment.

This Bill, which will be passed in the very near future, is one which will stand for a considerable period of time. If I concentrate on Amendment No. 131 which specifically deals with Channel 5 licences, it says anyone having a national newspaper market share of 20 per cent or more shall not be allowed to acquire Channel 5. That is concentrating on the now and near future. What my noble friend Lord Puttnam, the noble Lord. Lord McNally and others of the pre-legislative scrutiny committee were really concerned with was to make the Bill future proof. They were not just concerning themselves with the temporary moment. They were to consider life as we go ahead in which there will be huge numbers of channels of various kinds—terrestrial, satellite and others whose names we do not yet know. Things will not be the same in five or 10 years.

If we look at the amendment more closely, it is such an inflexible position to say 20 per cent. While that may be a significant figure at the present time, who knows what will be the right figure in years to come? Who knows whether it is desirable that an owner of 19 per cent should be allowed freely to acquire Channel 5? The noble Lord may say if' anybody does not fit the exact criteria of Amendment No. 131, then he may come within the plurality test which is to be introduced by the government amendment. It seems to me that the plurality test which has been moved before by my noble friend Lord Puttnam, but criticised by others today because of ministerial involvement, is much more future proof, much more sensible to put into a Bill which we hope will last for many years.

I cannot see a government of any complexion being particularly keen to have a communications Bill of any kind for years to come because of the difficulties of this one. Of course the plurality test involves Ministers because as noble Lords know, it fits into the structure of the Enterprise Act 2002. But that is not to diminish the role of the principal adviser on these matters— Ofcom. Its views would be known and made public. No government Minister with any sense, whether in an existing or future government, will override the carefully reasoned advice of Ofcom—assuming it is carefully reasoned. I do not believe that Ministers will go off on a wild tangent of their own in a matter of this sort.

My noble friend Lord Puttnam, the noble Lords, Lord McNally and Lord Crickhowell, and other noble Lords have promoted the plurality test for months. It is now shortly to be proposed by the Minister. This is something which can cater for all situations, for the future as well as the present. Having this extraordinarily inflexible amendment, which the noble Lord, Lord McNally put forward, is not necessary.

My Lords, perhaps I may begin by saying to the noble Lord, Lord Borrie, that I am not here because anyone suggested that I ought to be here. I am here because his suggestion that this very large Bill could be made future proof in the way he suggests, is certainly not borne out by experience of earlier attempts in 1990 and 1996 to regulate cross-media ownership for all time. I do not imagine the present Bill will have any greater success in longevity. What is quite clear from my recollection of those Bills is that if one seeks to set up a framework to protect diversity, it is necessary to have figures which the noble Lord characterises as arbitrary. Percentage wise, it has been done before and no doubt will be done again. The nub of the opposition has not come so much on the merits of the particular amendments before us as the suggestion by the noble Lord, Lord Lipsey, that somehow if we were to carry these amendments we would be chancing our arm too far, pressing our luck too far. The suggestion is that the response of the Government might be less rational as a consequence.

What has characterised the debate on this Bill has been the degree of dialogue between the Government and many other interested parties. With a Bill of such major importance and of such gargantuan extent, it seems entirely appropriate that that should be the approach. I recognise that the time available to consider these matters has been very great, but I do not believe it has been too much or that the Government are likely to abandon the approach that they have taken which is to consider these matters on their merits. As my noble friend Lord McNally said, this amendment was not put forward by the Puttnam committee as an alternative to the plurality clause. As I read the report, this was seen as a belt and braces measure necessary because of the importance of this issue. I cannot think that at this stage the judgment of what we would be doing if we carried my noble friend's amendments and that of the noble Lord, Lord Crickhowell, would be any different in another place, where there is, properly, considerable unease about media concentration, not just now, but in the long term. Many of those engaged in this debate, and who will be engaged in further consideration of the Bill, took part in debate on the 1990 and 1996 Bills. The noble Lord, Lord Corbett, who participated in those debates, expressed concern about these matters at that time. I see no reason to believe that the judgments of principle made then would be any less focused today. I hope that we will not shy away from our duty to provide the best framework possible and that we will take the advice of the noble Lord, Lord Puttnam, and his colleagues in supporting my noble friend's amendments.

My Lords, I, too, support the amendment of the noble Lord, Lord McNally. I concede that, at worst, it is a belt and braces measure and that the clause might not be necessary if the plurality test is strong enough. However, in a matter as important as media ownership, which is pivotal to the future of democracy in this country, I would rather—save in the presence of the noble Lord, Lord Peyton—add a clause than take a chance on the issue not being caught. Given that there are already 400-odd clauses, I do not think that the rainforests will be endangered by the use of extra paper.

I agree with the noble Lord, Lord Maclennan, that the amendment addresses a subject different from the plurality test. It addresses a specific. At Second Reading, I said in passing that I cannot see why people are treating Channel 5 differently from Channel 3; after all, both are terrestrial television services licensed by the Independent Broadcasting Authority. Why are we treating one differently from the other? Two reasons can be alleged. The first is audience size. Surely we all recognise that that could change. Channel 5 could end up with a bigger audience, particularly allied to media promotion from a national newspaper. Channel 3's audience could well decrease, so that argument does not hold water.

The only argument that bears examination is that, at present, Channel 5 does not cover the whole of the UK. At present, the channel covers over 75 per cent, but that could change. Why are we treating Channel 5 so much differently from Channel 3? If it is logical to impose restrictions for Channel 3, it is also logical to impose them for Channel 5. This clause is a specific. It is not an alternative to the plurality test; it is an addition to it to ensure that there is no possible doubt about what noble Lords mean. At the moment, I support the amendment.

My Lords, I support my noble friend Lord McNally. Normally, I agree with the noble Lord, Lord Borrie, on these matters, but I was tempted by his remark that he puts his faith in the fact that he could not foresee a situation in which Ofcom's serious views were rejected by Ministers. The noble Lord, Lord Borrie, was a very distinguished director of the Office of Fair Trading for a very long time. I do not know the full details of his history, but I would be very surprised if he was totally content with all the ministerial decisions put before him.

I support the views that the noble Lord, Lord Gordon of Strathblane, has expressed. Channel 5 must be regarded as a distinctive, separate case to be dealt with on its own merits. It is the fifth terrestrial public service channel in this country. It is true that, because of its lack of total coverage and for other reasons, the public service regulator has given it a lighter remit than the other ITV channels. However, that will change.

I find Channel 5 rather good these days. Very often, I find programmes on the channel that interest me. I hope earnestly that its standards and coverage will improve. I see no reason why it should be treated separately from the ownership considerations that apply to the rest of the public service commercially-funded system in this country—the ITV system. For those reasons, it is wholly right that Channel 5, as the fifth channel of our public service broadcasting system, should be safeguarded as proposed by my noble friend Lord McNally.

My Lords, for some years now, I have been concerned about the increasingly close relationship between the Government and the media. We have seen it as an extreme form—nowhere near the one that we are discussing today—in Berlusconi, where there is almost a fusion between certain parts of the media and important parts of the government. That is what concerns me most. That relationship seems to be growing over time. We have never had that kind of relationship in this modern media age, but we are seeing it now. This is an opportunity for us to say, "Enough is enough". There comes a time when one must bring it to a halt.

Politicians now depend more than ever before, not so much on getting support from the media, but on avoiding unfavourable mentions from them. That has now become an important aspect of government and political life. We need greater safeguards to protect us from the increasing powers of these kinds of relationships. For that reason, I support the amendment moved by the noble Lord, Lord McNally.

My Lords, I wish to be very brief. I join the noble Baroness, Lady Howe, and the noble Lord, Lord Lipsey, in congratulating the Government for making many moves in relation to the Bill. I do not think that it is the case, as the noble Lord. Lord Lipsey, stated, that we are worried about pushing our luck too far. I genuinely mean that. Several noble Lords, including myself, were deeply concerned, when we set out to scrutinise the Bill in your Lordships' House, that the Government would not show signs of shifting, and of listening to noble Lords and our debates.

However, the Government have listened on several occasions. On behalf of Her Majesty's Opposition. I am extremely grateful for that. We support the Government on this issue. It is right to liberalise ownership rules for Channel 5, particularly given that the Government have tabled amendments to the Enterprise Act to introduce a plurality test in certain media mergers. Given that the plurality public interest test will act as a belt-and-braces safeguard—some have talked about a pillar—in addition to powerful competition law, we simply do not believe that it makes sense now to retain limits on cross-media ownership.

With the exception of the noble Lord, Lord Borrie, who made a very powerful speech with which I agreed entirely, and the noble Lord, Lord Phillips of Sudbury, who referred to the OFT, noble Lords have spoken as if the OFT and the Competition Commission do not exist. They play powerfully important roles in such issues and the question of mergers. We believe strongly that Ofcom will have very powerful content rules. Ofcom will be in the driving seat rather than Ministers, as the noble Lord, Lord Borrie, said.

On several issues on which the Government have moved in your Lordships' House, we have concentrated on the need to future proof the Bill. As the noble Lord, Lord Borrie, said, there is a concern that if the amendments were carried today, we would place in the Bill an unnecessary inflexibility on Ofcom's ability to act in the future. I ask the noble Lord, Lord McNally, to respond to the brief statement that the noble Lord made on Report with regard to similar amendments.

The noble Lord, Lord McNally, said:

"in the light of the very important statement made by the Minister today about plurality and its effect on the Bill, I shall not move this amendment".—[Official Report, 2/7/03; col. 955.]

Was the noble Lord, Lord McNally, deciding on principle last week that it was not necessary to move his amendment in relation to Channel 5, or was it that the troops were not there to support him? That is terribly important, because it is unfortunate that we are not debating the government amendments on plurality before debating Channel 5. It would be helpful to have that point answered.

My Lords, I thought that I had cleared that matter up in my opening remarks. Within 24 hours, according to the Financial Times on 3rd July, an unnamed senior official at the DCMS was putting the concessions well into the margins of the Bill and making them extremely discretionary. That was why I was determined to bring this matter back to the House.

My Lords, I must start by congratulating the noble Lord, Lord McNally, on the way in which he has succeeded in paving this debate.

My Lords, when I was faced with this dilemma, I was told that the expert on paving Bills in Opposition was the noble Lord, Lord McIntosh of Haringey, so I was following the master.

My Lords, that is precisely why I was congratulating the noble Lord, Lord McNally. I was about to say that I did that for 14 years and enjoyed it. I challenge the noble Lord to achieve what I once did, which was to move an amendment in Part 6 of a Bill that would retrospectively have changed provisions in Parts 2, 3, 4 and 5. He can have a go at that if he wants to.

The noble Lord's amendment has had a very bizarre effect, paving up the debate on Channel 5 now. The amendment will be considered before the debate on the plurality clause. That means that I now have to bore your Lordships by saying what the plurality test, which will be introduced in the next group of amendments, will do. If my noble friend Lord Sheldon had heard what I am going to say, he would not have been able to say what he said about Berlusconi and Beaverbrook. The answers to all of the points that have been made are to be found in the plurality amendment.

The media plurality test is a new public interest consideration added to Section 58 of the Enterprise Act 2002, in addition to a consideration relating to national security that was included in the 2002 Act and the newspaper merger public interest considerations that are already in the Bill. The wording seeks to ensure that the Secretary of State can intervene in a proposed or completed merger between broadcasters or between broadcasters and newspaper proprietors.

The clause deals at great length and in detail, in many amendments, with the whole issue of cross-media ownership, which was not recognised by the noble Lord, Lord McNally, in his speech. It proposes to ensure sufficient plurality of persons controlling media enterprises in relation to: every different audience in the United Kingdom or a particular area or locality in the United Kingdom: the need for diversity of broadcasting throughout the United Kingdom; and the need for persons controlling or carrying on media enterprises to have a genuine commitment to attainment in relation to the broadcasting standards objective in the Bill— impartiality generally and impartial and accurate news, for example.

The amendment exactly addresses the problems of the potential motivation of individual media proprietors or would-be media proprietors seeking to enter broadcasting markets—be it Channel 3 or Channel 5—in this country. However, the difference between this amendment and the amendment tabled by the noble Lord, Lord McNally, is that ours has two bases. It is based on principle and is not directed at individuals—and I really do deplore the noble Lord's levity when he said that his amendment was not about Mr Murdoch, but was about American or Australian moguls, because he could not name a second one, could he?

Our amendment is not only based on principle—in other words, on the competition legislation that has existed for many years. It is not untested, but is based on the high standards that are required of media owners throughout this Bill and the way in which the plurality amendments, which I hope that we will agree, protect the high standards of broadcasting in this country. Against that, the speech made by the noble Lord, Lord McNally—although not his supporters, who made serious speeches—was disgraceful. He talked about industry experts, the Financial Times, unnamed senior officials in the DCMS and Government Whips, but almost not at all about the substance of his amendment, which is an ad hominem amendment, directed at an American Australian media mogul.

The way in which the noble Lord, Lord McNally, has approached this amendment has debased the argument in this House. The rest of the debate has been perfectly proper, but the noble Lord, Lord McNally, has sought to have this debate before the one on the plurality test. He has sought to do so in a personal and light-hearted manner. This is a serious matter that deserves serious consideration. I believe that the noble Lord, Lord McNally, has not given it that serious consideration.

My Lords, I am glad that the Minister said that some of the supporters of the noble Lord, Lord McNally, were serious. I believe that the noble Lord, Lord McNally, was also serious. Would the Minister not agree that he made almost every single point that he made tonight when speaking on the subject on 2nd July on Report? The Minister might also give us the credit for reading ahead to the amendments that we will discuss later. It was only after reading this amendment and re-reading what the noble Lord, Lord McNally, said, that I came to the firm decision to support this amendment. I hope that my noble friends will also support it.

My Lords, I absolve the noble Lord, Lord Crickhowell, of any blame, because he put his name to the amendment at a late stage. The noble Lord, Lord McNally, however, tabled his amendment before I had tabled my plurality amendment, despite the fact that he withdrew it on the argument that he had to see the plurality amendment before he tabled his own amendment. That argument will not wash.

I am also a little surprised that the noble Lord, Lord McNally, continued to say that this was the view of the Joint Scrutiny Committee. That committee said:

"We consider that matters relating to the consolidation of ITV and Channel 5 could properly be decided through competition law strengthened by the plurality test".

That is exactly what the Government are doing, as the noble Baroness, Lady Buscombe, and others recognise. I commend that view to the House.

My Lords, I am sorry to interrupt, but the committee wanted Ofcom. The great worry that the Minister has not dealt with is that the Minister will decide the criteria. There is considerable worry on this side of House about the pressure imposed on Ministers. I hope that the Minister will answer that point.

My Lords, I was going to answer that point. The noble Lord, Lord Pilkington, cannot take me very seriously if he thinks that I would ignore that point. The noble Lord. Lord McNally, seems to base his argument on three questions—what happens if Channel 5 grows, how we ensure that Channel 5 does not fall into the wrong hands, and the contention that any protections offered by the plurality test could be swept the way on a Minister's say so. That is the point made by the noble Lord, Lord Pilkington.

I will take each point in turn. First, what happens if Channel 5 grows? The noble Lord, Lord Gordon, referred to that point. We would very much like to see Channel 5 grow. Channel 5 has just over 6 per cent of the audience and a reach of only 80 per cent of the country. We do not think that Channel 5 is large enough to need protecting in the same way as ITV. That is the difference between Channel 3 and Channel 5. There is a range of protections and controls that the Bill will put in place in the event that Channel 5 grows to the size of ITV. For example, Ofcom could alter the channel's original programme requirements, or the quota for independent productions could be changed by order by the Secretary of State. If Channel 5's audience share becomes broadly equivalent to that of ITV, the Secretary of State may introduce an appointed news provider scheme similar to that for the Channel 3 system. or Ofcom could change the obligations for Channel 3.

How do we ensure that Channel 5 does not fall into the wrong hands? There are the plurality tests. As I said, the tests will allow the Secretary of State—I shall come to the point made by the noble Lord, Lord Pilkington of Oxenford—to intervene in cases in which she believes that a merger causes sufficient plurality concerns for it to be blocked or for conditions to he attached. The test will enable us to examine a newspaper acquisition of Channel 5 with a view to ensuring that a minimum level of plurality is maintained. The test will also address the need for a plurality of owners, a wide range of high quality broadcasting calculated to appeal to a wide range of tastes and interests, and a genuine commitment to Ofcom's standards code.

There is also a power for Ofcom to review the Channel 5 licence when it changes hands and, if necessary, impose new licence conditions on the new licence holder, if the change is thought to be prejudicial to aspects of the service. There are rules in place that will prevent an unreasonable amount of cross-promotion, which will be regulated by Ofcom and the OFT. For example, the cross-promotion of other television channels and programmes is not allowed to cause annoyance to viewers, and licensees for Channels 3, 4 and 5 are not permitted to promote multi-channel platform service operators such as the Sky platform.

If, at some point in the future, the regulator believed that the cross-promotion rules in place were no longer relevant. Ofcom would be able, with consultation, to change the rules on cross-promotion. The noble Lord, Lord Phillips of Sudbury, implied that the big beasts would work their way around content regulations with armies of lawyers. Big companies always look for the greatest commercial advantage in any rules-based system, but there is also the possibility, which the noble Lord apparently rules out, that a large company, having been examined by the Competition Commission, might be suitable. It might be a good thing. As I said, the Joint Scrutiny Committee did not rule that out. It suggested that it should and could be properly decided through competition law, strengthened by the plurality test.

The noble Lords, Lord Crickhowell and Lord Pilkington of Oxenford, in particular, addressed the issue of the role of Ministers. The test involves three independent regulators: Ofcom, the Office of Fair Trading and the Competition Commission. They are not, as the noble Lord, Lord McNally, alleges, untested regulators. The OFT has been running for more than 30 years, and the Competition Commission has run for about 30 years too. They are all independent bodies commanding respect, and I do not care to hear them called "untested".

The whole point about the public interest merger test is that it is for those independent regulators to make recommendations. It is for Ministers to make decisions. Does anybody seriously think that, if the independent regulators said, having regard to the provisions of the plurality test contained in Amendment No. 85, which we have yet to debate, that a Minister had flouted their advice and had done so for the base reasons suggested by several noble Lords—it is legitimate to criticise Ministers and ascribe base reasons to them—that Minister would get away with it? Of course not.

I propose to the House that we should address the issue of cross-media ownership and plurality on the basis of principle, not of levity and ad hominem arguments about Australian-American moguls. We would do ourselves credit if we gave proper prominence to the rule of law in this country and avoided the kind of temporary political advantage proposed in the amendment.

My Lords, I suppose that we all respond to difficult situations in different ways. I often say that, perhaps, I do so with a little too much levity. Others respond by speaking louder and using a little bombast. It is a matter of choice. The more I listened to the Minister, the more I thought of the phrase:

"The louder he talked of his honour, the faster we counted our spoons".

I spent a long time on the Bill, and I was proud to have the noble Lords, Lord Crickhowell, Lord Sheldon, Lord Gordon of Strathblane, Lord Peyton of Yeovil and Lord Pilkington of Oxenford, the noble Baroness, Lady Cohen of Pimlico, and my noble friends Lord Maclennan of Rogart and Lord Phillips of Sudbury with me today. I may be frivolous, but they are not. I say to the noble Lord, Lord Lipsey, that it is not some wonderful thing that, at Third Reading, a Labour government should propose concessions on plurality. I would have expected a Labour government to have had such a test as the flagship of the Bill.

As for my attack on Mr Murdoch, the noble Lord, Lord Sheldon, put his finger on it. He mentioned the matter a week or so ago at a seminar. The Rubicon was crossed when Tony Blair travelled halfway round the world to address a News International conference. There are concerns about the close links between the media and politics not only in Britain or Europe, but around the world. In the 1930s, we were afraid that the fascists would take over the government and then control the press: in the 21st century, there may be a danger that the fascists will take control of the press and then control the government. The dangers are there.

We talked about Mr Murdoch: OK, let us take Mr Murdoch. The Columbia Journalism Review said:

"Rupert Murdoch's Fox is leading the charge on the station ownership issue … Murdoch is threatening to fold the Post"—

the New York Post—

"if the FCC doesn't bend the rules to allow him (over media activists' objections) to own those two TV stations and a newspaper in the same city".

The Guardian, reporting from Australia, said:

"Rupert Murdoch's business ambitions in his home country have been thwarted after the Australian senate passed a bill limiting cross-media ownership yesterday … 'That final amendment … is a dagger through the heart of cross-media reform,' said communications minister Richard Alston. 'We'll send it back to the [house of representatives]. I'm sure they'll make some changes, including the removal of Senator Harradine's amendment, and we'll see where we go from there.'… The government controls the lower house and the bill is expected to go through another senate vote this year as the government maintains pressure on an upper house it feels is blocking too much legislation",

The indignation shown by the noble Lord, Lord McIntosh of Haringey, in his desire to defend Mr Murdoch runs in the face of 20 years' experience.

The noble Lord, Lord Lipsey, said that, at some time, Channel 5 might be in such dire straits that we might have to bend the rules a little to save it. That is how Mr Murdoch got The Times; that is how he got his satellite television monopoly. We must not consider the amendment as an alternative to the plurality test. I am delighted at the plurality test. I welcome not only the plurality test but the many other amendments that the noble Lord, Lord Puttnam, with principle and great skill, has managed to insert. However, that better Bill needs the amendment. For all the talk from the noble Lord, Lord Borrie, about future proofing, the 20:20 arrangements are in for Channel 3 and ITN. They must be in for Channel 5 because there is a clear and present danger that there will be a call to bring Channel 5 into cross-media ownership. That would be dangerous for our democracy and damaging to other parts of our media.

I shall say one more thing. My noble friend Lord Maclennan of Rogart mentioned another place. Some 126 Members of another place signed an Early Day Motion in support of the amendment at an earlier stage of the Bill's passage. The proposer of that Early Day Motion, Mr John Grogan MP, who was himself a member of our committee, was quoted in the Independent as follows:

"I was frustrated that we did not get a chance to debate and vote on this in the Commons. If the Lords knock it back, then we will have a chance and there will be quite a rebellion".

That has not been discussed, but this belt and braces amendment is needed. I hope that the Minister will bring forward those plurality clauses, which will be a great tribute to the Bill. The clear and present danger that exists with regard to Channel 5 justifies this amendment, and I urge noble Lords on all Benches to join me in the Contents Lobby today.

moved Amendment No. 2:

My Lords, I should like to press the Minister on several points concerning the scope and purpose of his amendments. On Report, the Minister set out clear boundaries to the Government's intended plurality test. In particular, he stated that it would be,

"a matter of policy normally to apply the test in practice to those areas where the current rules are being removed completely".

In addition, he added—which he added again today—that,

"usually, the Secretary of State would consider intervening",

only in the following areas:

"national newspapers with more than 20 per cent of the market/ Channel 5; national newspapers with more than 20 per cent of the market/national radio service, Channel 3; Channel 3/national radio; Channel 5/national radio; and national radio/national radio".— [Official Report, 2/7/03; col. 915.]

This clearly stated approach to the plurality test reflects the key concerns expressed by the noble Lord, Lord Puttnam, and others throughout the passage of the Bill and in the pre-legislative scrutiny process. That is a concern over a liberalisation of the cross-ownership provisions for Channel 5—as we have heard today—as well as the prospect of investment by non-EEA companies in UK media companies in Channels 3 and 5 (and UK radio).

I am concerned therefore that it is not just these carefully targeted policy aims that are reflected in these amendments. Instead, having considered the amendments, it appears that the Government are presenting us with a plurality test which could be applied to all "merger situations" involving broadcasters or broadcasters and newspapers which qualify for investigation under the Enterprise Act 2002. It could also apply to transactions that initially may not qualify for investigation, but concerning which the Government's amendment to Clause 375 would permit an intervention notice to be served. Such transactions would include mergers and acquisitions among cable and satellite channels that have launched in the UK without any of the special privileges or protections given to those broadcasters using scarce, analogue terrestrial frequencies, and which have not had any special media ownership rules applied to them previously. Examples, of which there are almost limitless permutations, might include the acquisition of the National Geographic Channel or History Channel by Discovery Networks, the acquisition of additional music video channels by MTV or the purchase of one channel provider by anothe—for example Flextech Television and Turner.

The provision represents a major shift in government communications policy and as the Government are aware it is of significant concern to all broadcasters, who now face another regulatory barrier and greater uncertainty. I should like to remind your Lordships of the comments of the broadcasting Minister during the Committee stage of the Bill in another place. The Minister said that the problem with the plurality plus competition test was that,

"it inevitably leads to uncertainty … Although businesses may be used to dealing with uncertainty daily, they do not actively seek out uncertainty. We should make clear rules where appropriate. If we accepted the amendment"—

that is not the amendment proposed today, but one proposed in another place—

"we would effectively be putting those who wanted to acquire media assets in a worse position. In addition to complying with the clear and transparent ownership rules and satisfying the competition authorities, an owner would face the further obstacle of satisfying a plurality test. The Bill is intended to remove regulations, not to impose new and unnecessary ones".— [Official Report, Commons Standing Committee E, 6/2/03; cols. 1002–04.]

I recognise that the Government have subsequently introduced amendments into your Lordships' House as a compromise. I also recognise that the Minister said on Report—and has confirmed today—that guidance would be produced to clarify the provisions and narrowly to define the scope of the plurality test. However, we are concerned that nothing has been produced yet. It is creating disquiet in the industry and on the part of the Opposition that such wide provisions are being introduced with the promise of guidance to come once the Bill has received Royal Assent.

In the absence of such guidance I should be grateful if the Minister would provide further clarification. Why have the Government gone to the trouble of including all broadcasters in the plurality test, only to produce guidance to exclude most of them from it? Surely a better solution would have been to amend Clause 373 to narrow the target of the plurality test in the first instance to Channel 3, Channel 5 and radio; that is, the scarce analogue terrestrial frequency services, which have been the source of the concerns of the noble Lord, Lord Puttnam, and others about non-EEA and cross-media ownership all along.

I should also be grateful if the Minister would explain the status of the guidance to be produced, and why this has not been made available at the same time as the amendments to the Bill. After all, if a key feature of the plurality test is that it is to be narrowly applied by the guidance, so as give broadcasters confidence and clarity, it naturally follows that the two must be considered hand in hand. How are we to decide on the merits of the amendments when they represent only half the story? Such guidance is unlikely to have the same legal force as the provisions in the Bill, so the certainty that could be derived from it is likely to be limited.

I should be grateful if the Minister could clarify the Government's intentions towards the existing 20:20 ownership rule governing Channel 3 licences in the light of the new plurality test. As the Minister said on Report, the 20:20 rule has something of a cliff-edge element to it, with the plurality test allowing "finer judgments" to be made in particular cases according to circumstances. Given that it is his stated intention to apply the plurality test in this particular case and, in addition, only where the current rules are being removed completely, it would follow that the 20:20 rule should be abolished.

My Lords, I also have one or two concerns and shall speak briefly. I agree with the Minister that it would have been much more useful had we been able to debate this set of amendments prior to our debate on Channel 5. There is no question that it might have illuminated that debate.

Having read not only the clauses and the amendments, but the Minister's letter, I think this is a useful addition and I congratulate the noble Lord, Lord Puttnam, on achieving it. However, I do not think that it answers some of the concerns relating to the Bill, in particular, those relating to the rules on foreign ownership that we were debating under the first set of amendments. It seems to me that it is not intended to do so.

I am not clear why the Minister was so upset with the noble Lord, Lord McNally, for mentioning the report in the Financial Times. It seemed to me that that report was relevant to this debate. It said that senior officials of his department insisted that the amendment would not hamper the principle of allowing United States' media groups to bid for ITV or enabling newspaper publishers to seek control of Channel 5. I know that the Government are rather concerned about sources at the moment, but there is no dispute about the source in that case. Senior officials have told the Financial Times that that is the issue, and as far as I know the department have done nothing to correct that.

I think that we are allowed to be a little sceptical about some aspects of the Bill. At the end of the day, the decision will rest with the Secretary of State—there is no question about that. The Minister's letter to the Front Bench leaders said that the provision enables the Secretary of State to intervene in a case. It does enable, but of course it does not require. At present, we do not all have overwhelming confidence that the Government would intervene in particular circumstances.

There is no rule set down to deal with a number of the cases that we will be discussing. There is, for example, no rule, such as the one that I have included in an amendment to be debated later, for making reciprocal arrangements a condition if a United States company takes over a British television company. We will debate later whether that rule is right or wrong—I can perhaps predict what the Minister's reply will be—but at least if that rule is in the legislation, we know exactly where we are.

The Secretary of State is not bound by the advice given. The Minister made much of his contention that no Minister would ever overrule the advice given to him in this area. I am not entirely sure that that is correct. There are examples where the unanimous recommendations of the Office of Fair Trading have been overruled. I remember one instance involving regional newspapers—the Nottingham Evening Post—where the OFT said quite clearly that deal should not go ahead, but it was overruled. It was overruled, as it happens, by the Government of which I was a member. I did not agree, but that was the decision. The Minister will say that that example concerns a Conservative Government and that nothing of that kind would ever happen under a Labour Government, but that slightly beggars belief.

The amendment is a useful addition, but I do not think that we should place too much emphasis on it. Personally, I welcome what has been done and what the noble Lord, Lord Puttnam, has achieved, but I give only two cheers for the final version of the amendment.

My Lords, I offer the Government two and a half cheers. They are to be congratulated. An enormous amount of work has gone into making the amendment possible. I would personally like to thank Paula Carter, who has helped me enormously. and the Bill team, who have done Trojan work. I am not sure that they will thank me for thanking them, but they have done an extraordinary job in hammering through what is in some senses new law. We have come a long way.

These amendments must be seen as all of a piece with the amendments to the general duties that we have already agreed. Together, those provisions are the double bolts. I have now talked to enough lawyers and judges, who have assured me that those two aspects of the Bill, taken together, represent a very serious impediment to the type of dominance that the clause is intended to prevent.

That is one thing. I come to the other issue. Several noble Lords mentioned the Financial Times article. The last Division went as it did—but I have to tell the Government that I believe that the Division was quite avoidable. It was caused by a misbrieting given to the Financial Times last week, which gave the impression for whatever reason that the amendment might not bite as the Government intended, or as the proposers of the amendment intended. That could have been avoided.

I beg the Government to do two things. First, I ask them not to be tempted by the wish expressed by the noble Baroness, Lady Buscombe, to restrict the breadth of what has been created. That breadth is very important. Secondly, they should make it very clear, and not only in this Chamber but outside, that they have taken a big step in a very important direction and are intent on giving the noble Lord, Lord Currie, all the powers and all the encouragement to take the route that the House has clearly indicated.

There is real fear about media dominance. The Government have come a long way in accepting those fears, which have been made apparent today by the comparative narrowness of the previous Division. However, I look for some form of assurance that we will not be battered next week by the type of Commons amendments that would undermine much of the good work achieved in this House over the past weeks and months. I welcome the amendment gratefully.

My Lords, I hope that the noble Lord will forgive me. We have had pretty little time to get used to these wonderful new amendments, but I welcome them. I have actually read them but, if I have not understood them thoroughly, I apologise in advance.

I want to return to the point that I made earlier, which the Minister, perhaps rightly, did not answer in the earlier debate. With all the tests that will be applied, we come back to the point that it will be a Minister who makes the decision, although admittedly advised by Ofcom. With regard to both the content and the technology aspects—and particularly the content aspect—I am concerned that there will be more than an assumption that the Secretary of State at the DCMS will also be consulted. I am certain that Ofcom will consider both sides of the question; we have been told often enough that that is its intention. However, I am concerned that there are often problems when two Ministers are responsible for something. While congratulating the Minister on all the amendments, I should be grateful for an answer to that question.

My Lords, I welcome the amendments and the moderate and temperate tone in which the Minister introduced them. However, I make one point as a genuine seeker after truth. An executive from one of the specialist music stations asked me whether it would be seen as a dangerous accretion of media power if a music station with one per cent of the total audience acquired another music station with one per cent of the total audience, or whether it would be said that the stations had only 2 per cent of the total audience, even if they had a larger share of the music-only stations. I told him that I would put that question to the Minister, and I was sure that he would get an answer.

The broader question of how far and how real this is a step forward goes to the heart of the comments made by the noble Lord, Lord Puttnam. The Financial Times article was not an accident. There have been parallel messages coming from the Government: the kind of messages that the Minister has given from the Front Bench here, and the kind of speeches that Mr Kim Howells and officials have made at specialist conferences, which have continued to emphasise that this is the freewheeling, free enterprise, deregulatory Bill that was so carefully crafted in Downing Street all those months ago.

It has also been irritating to hear the continual message that Parliament has somehow interfered in this perfect process. I went to a seminar organised by the ever-industrious the noble Lord, Lord Lipsey, where the noble Lord and an official combined to lecture the assembled attendees, some of whom had more political experience than both of them put together, about the realities of legislating. One reality of legislating for me is that Parliament does matter and governments should listen.

I was very worried when Mr Stephen Carter was reported as showing a certain tetchiness about the way in which Parliament was messing about with the Bill. I asked for the text of his speech. and was pleased to read that,

"as a creature of statute Ofcom will deliver to whatever rulebook it inherits from Parliament".

Quite so.

Sometimes when we are discussing civics education, I think that it might be worth applying it to some civil and public servants, to show them where the relative balance lies between their powers and Parliament's powers. We do not want to see some carefully crafted briefing, 48 hours after the Bill has left this place, saying, "Don't worry, all those silly old people are now out of the way and we can march on to the new land".

The Minister has made a great to-do about how powerful the test is, and we want to make sure that it works. I am not making any predictions. However, Mr Murdoch will come calling, believe me, because it fits into his strategy and his pattern. The noble Lord, Lord Lipsey, should know that when he comes calling he never plays just by the rules. As he did in New York, he will threaten to close down The Times if he does not get his way, or he will have some other blockbuster to intimidate Ministers.

The issue is a lot tougher than the Minister implied, but the amendments are welcome, as long as the Minister lives up to his promises and the public servants who are get the rulebooks from Parliament live up to them too.

My Lords, I want briefly to ask the Minister whether I heard him correctly when he referred to the possibility of the director of Ofcom imposing conditions in relation to matters dealt with by Amendment No. 85. Is that the case? If so, is the Minister concerned by some of the precedents for the imposition of conditions attached to newspaper takeovers in the past, which it would be fair to say have been ineffectual in practice?

My Lords, I am grateful for the welcoming and moderate tone of the debate. I must say a word to the noble Lord, Lord McNally. He accused me of shouting. and maybe I did. He made a debating speech and I made one in reply, but I did not at any stage question the sincerity behind his speech. Of course, I know that he feels strongly about these matters, and always has. I simply did not like the way in which he introduced his amendments, and I said so.

The noble Baroness, Lady Buscombe, started by asking why we did not specify a narrow test in the Bill—why we went for a wide test and then imposed restrictions on it. We considered a narrow test but decided on balance that we could get to substantially the same place through taking a wide power and limiting its general application as set out in guidance.

In exceptional circumstances—I think that I used the phrase "extreme and rare circumstances"—we might want to apply the test more widely if there were genuine plurality concerns. This approach allows us to do so. However, we recognise that the share of supply of goods or services in the United Kingdom—or a substantial part of the United Kingdom in the case of a relevant merger situation—or when one of the parties has an existing share of a supply of broadcasting of at least 25 per cent, could cause the Secretary of State to decide to intervene. We intend generally to intervene only in those areas where we have removed all ownership rules. However, we cannot rule out the possibility that in exceptional circumstances we will look at other orders. Nevertheless, I think that we have diminished uncertainty as far as possible by setting out in my speech all of those relationships which we expect to be covered. I think that that deals with the point that the noble Baroness, Lady Buscombe, raised about uncertainty.

The noble Baroness, Lady Buscombe, then went on to quote points made in the House of Commons. I do not know how to respond to that. We have responded to debate in this House. We have responded to debate over a period of something like three months now. The fact that we have responded late in the day means that we have been concerned and worrying about it. We have certainly been doing that, as the noble Lord, Lord Puttnam, recognised. I hope that if I am offered the choice of being charged with introducing amendments late and charged with being inflexible, I will accept the charge of tabling amendments late rather than of being inflexible. That means—the noble Baroness asked about guidance—that guidance cannot be produced in time. We cannot produce guidance simultaneously with approximately 44 complex amendments, which is what we have done.

The noble Baroness asked particularly about satellite and cable channels. Although we do not think that there is normally an issue of plurality test there, we could see plurality tests applying in some rare cases if a large number of news or educational channels would he coming under single control. I do not know what that means as regards the question that the noble Lord, Lord McNally, asked about music channels. I take it that he is talking about what I call "serious music channels" with a small share of the market.

No, my Lords. On cable television there may he four or five specialist music channels playing various kinds of pop. If one channel took over another, its share would increase from 20 per cent to 40 per cent of the channels. Would that worry or trigger any of this legislation?

My Lords, I would be very surprised if it would. As I have just been saying, cable and satellite channels are not currently regulated and we would not expect them to raise questions of plurality. However, if someone were to take over all the music channels, I think that the "extreme and rare" case to which I referred might well come into force.

The noble Baroness, Lady Buscombe, referred to the issue of the 20 per cent rule. I think that the point about these amendments in departing from the 20 per cent rule is that it is possible that someone with 19 per cent of the national newspaper market might raise plurality concerns, which is why we did not want cliff-edge regulation. The provision would enable Ministers to distinguish those with larger holdings in the event that the 20 per cent rule was removed. We do not have any plans to remove it, but a well-established plurality test may make removing it a possibility in the future.

The noble Lords, Lord Fowler, Lord Puttnam and Lord McNally, all referred to the Financial Times article, which of course I read. However, I have to say that I and the members of the Bill team do not know who the unnamed source was. Whether anyone is briefing against us, I do not know; it is not a matter on which I can comment. However, on the substance of the article, if the Bill is passed as it stands, yes, investment from non-EEA sources will he possible. However, although the plurality test will allow foreign investments to be made, if necessary they will be considered by the Competition Commission on a case-by-case basis. If they raise concerns, those cases can be targeted. If those concerns are found to be justified, those cases could be blocked. That is the point that we were making last week in the foreign ownership debate.

I should like to say to the noble Lord, Lord Puttnam, how grateful I am to him for his continued involvement in debate on this issue, at any rate over the time that I have been involved in the Bill's passage. I think that he carries a great deal of the credit for what is widely accepted as being improvements to the Bill. I pay tribute to him for what he has done. I agree with him that we need to get the general duties right so that they work with the spirit of the Bill. However, I can confirm that, pending that which has to be done in another place, this amendment, if we agree to it today, is in black and white. It clearly bites right across the range. The Government have taken a big step. I am grateful to the noble Lord, Lord Puttnam, for giving encouragement to the noble Lord, Lord Currie, in the way that he carries out the Bills provisions.

The noble Baroness, Lady Howe, asked which Secretary of State would be involved. In legislation there is only one Secretary of State. The legislation applies regardless of whether the Department of Trade and Industry or the Department for Culture, Media and Sport is abolished. There will still be a Secretary of State who is responsible for carrying out the law. I do not think that she should place any significance on the fact that the Secretary of State currently responsible for competition policy is the Secretary of State for Trade and Industry, and certainly not on the personalities concerned. However, in so far as there are two Secretaries of State involved in these issues, they will, as they have been doing, work closely on the Bill.

The noble Lord, Lord Phillips, asked about precedents for conditions under the newspaper merger regime. There certainly have been headline cases where conditions have been thought to be ineffectual. However, there are many other cases where they appear to have worked well. Generally, we think that undertakings will be given effect to in broadcasting licences, which are readily enforceable, as I think is well recognised. Of course newspapers are not licensed, and for newspapers a merger can always be prohibited.

I hope that that deals with the points raised in debate.

moved Amendment No. 3:

My Lords, I thank the Minister for responding to our concerns which we raised throughout our debates, beginning with Second Reading, in relation to good regulatory practice. The Minister knows that we have always been concerned about the expression "must have regard". Therefore we are extremely pleased that the Minister listened to our concerns and brought forward these amendments. They are not quite the amendments that we would have liked but I am grateful that the Minister read almost verbatim from a letter addressed to myself dated 30th June which reassured me that we are talking about a substantial legal obligation. I am grateful to the Minister for that. We welcome the amendments.

moved Amendment No. 4:

My Lords, I am extremely grateful to the Government and to the Minister for in effect accepting the amendment which, as the Minister rightly says, was pressed strongly not only by myself but also in particular by those whose names were attached to the amendment: the noble Baronesses, Lady O'Neill and Lady Howe, my noble friend Lord McNally and the noble Lord, Lord Fowler. In Committee there was an hour long debate on the matter. I am sure that everyone will be extremely content that what must be by any reckoning the most single important non-economic factor linking into Clauses 262 and 263, as they now are, is written into the keynote clause of the Bill. I am grateful for that.

At Second Reading I mentioned that I felt that commercial strains fell heavily on producers and programme makers in commercial television. Indeed, the noble Lord, Lord Birt, added his own gloomy prognostication to that theme. I gave as an example my local television company, Anglia, which I know and with which I have worked closely for many years, and was perhaps a little unfair to it in that it has done better than some other commercial television companies in relation to what one might call the public broadcasting remit or standards.

I know that good programme makers and producers, of whom there are very many in the commercial sector, will welcome this entrenchment of the public service broadcasting remit in Clause 3 as it will strengthen their hand when the going gets a bit rough. That is all I need to say. Later we shall deal with an amendment to the enforcement clause, which is now Clause 268, and there will be more to say then. In the mean time I am most grateful to those who supported this long campaign and to the Government and the Minister for concurring. I beg leave to—no, I do not do anything, do I?

My Lords, not yet. I wish to add to what the noble Lord, Lord Phillips, said. This is an important amendment. I congratulate the noble Lord, Lord Phillips, on his persistence with it. I congratulate the Government on accepting it. Personally, I prefer the wording of the amendment as it stands now without the Government's amendment, but we shall not argue about that because the Minister has given way.

As has been said, public service broadcasting is not just about the BBC, but the dispute between the BBC and the Government is being used to attack the very concept of public service broadcasting in this country. It is argued that there are other options: government controlled radio and television making no pretence to be other than the Government's mouthpiece or the kind of marginal public service broadcasting that exists in the United States.

My own view is that the standards of public service broadcasting are so demonstrably superior to any of those other brands that it is something that we should fight very hard to preserve in this country. In that respect the Government have been entirely right in putting that at the head of the Bill. Perhaps one might add in parenthesis that one hopes that the tabling of this amendment by the Government might mark an end to the rather futile warfare between the Government and the BBC at the moment. It would be in everyone's interest if that were to take place. I shall not go further down that particular road, but I congratulate the Government on underlining their belief in public service broadcasting.

My Lords, as one who has put my name to the amendment of the noble Lord, Lord Phillips, on many occasions, as he acknowledged, I, too, congratulate the Government. I also particularly congratulate the noble Lord, Lord Phillips, on his persistence. The measure will give considerable reassurance to many organisations. I mention especially the Voice of the Viewer and Listener and Public Voice, representatives of which have written many times to your Lordships throughout the Bill's passage. Indeed, many individual citizens have let us know how deeply concerned they are to preserve that unique quality of British broadcasting which they consider is crucially embedded in public service requirements.

As has already been said, British public service broadcasting is the bench-mark not just for British terrestrial channels but for all broadcasters who wish to compete for our viewing time. Again, I congratulate all concerned and particularly the wider public who made us aware of their views.

My Lords, I shall not spin this debate out, but I should like to ask the Minister what are the reasons for the restriction of Amendment No. 4 for the purposes of public service television broadcasting. That is the substantive difference between the government amendment and that of the noble Lord, Lord Phillips. So far, I have failed to understand the reason for that restriction.

My Lords, I shall not talk about public service radio—that is effectively the BBC, and its purposes are set out and secured through the BBC Charter and Agreement rather than in the Bill. When we talk about public service television, we are talking about a wide range of channels, but public service radio is the remit of the BBC. That is why Amendment No. 4 is expressed in these terms. I accordingly commend it to the House.

moved Amendments Nos. 6 and 7:

moved Amendment No. 8:

My Lords, I support the noble Baroness, Lady Buscombe, in her amendment. The noble Baroness described succinctly the previous discussions that have taken place on this matter. I share her desire as regards the value of achieving certainty over the frontier between the responsibilities of the consumer panel and those of the content board before the Bill finally leaves this House.

The consumer panel has clear and important responsibilities—there is no question about that. So does the content board. But they are distinctively different. One of the advantages of this mammoth Bill is that it tidies up the landscape of communications and clears the regulatory undergrowth of competing responsibilities.

Ofcom has a massive task ahead of it dealing with the pressures of conflicting interests, some of them very powerful. Ofcom deserves the maximum of clarity in the Bill that finally completes its passage. It does not deserve having thrust on it the duty of deciding which content matters have such "high consumer dimension" that the content board should be second-guessed by the consumer panel.

It is a quite unnecessary fudging of the regulatory frontiers. It will confuse the work of the content board and will add a dimension of uncertainty to a regulatory system for television advertising which has a record of working well and which is in the process of development within the new responsibilities of Ofcom.

It is true, as the Government have previously pointed out, that there was a specific reference in the original policy document relating to the draft Bill to the consumer panel having a say in,

"content issues that have a high consumer dimension, such as rules on misleading advertising".

But the Bill itself permits Ofcom to contract out its functions and to promote "effective" self-regulation. If key areas may he contracted out, leaving Ofcom as a backstop regulator, albeit with teeth, surely we should be careful about giving Ofcom's consumer panel a statutory role, however limited, in content.

It is no secret in this House after our prolonged discussions that a key area which may he contracted out by Ofcom in the near future, subject to the results of a public consultation, is the regulation of broadcast advertising, using aspects of the ASA system.

The Bill provides that self-regulation of areas coordinated by the Bill must be, first, adequately funded and, secondly, independent of the industry that it regulates. An effective self-regulatory system operating in a co-regulatory framework would surely base policy decisions on input from consumers as well as from the industry. It would surely also ensure that the complaints adjudication process is properly and effectively managed, with published performance indicators.

If broadcast advertising is contracted out, Ofcom would become the backstop regulator. Would it not be odd in such circumstances for Ofcom to refer advertising content matters to its consumer panel if the self-regulatory system is already using established procedures for taking views from consumers?

Advertising is but one case, but I believe it demonstrates that we have to be extremely careful, as we move into the new regulatory environment, not to perpetuate the problems created by previous legislation—where, for example, there were overlaps between the ITC and BSC advertising remits which sometimes resulted in conflicting decisions. We are creating a single regulator with the purpose of developing a unified approach to communications policy and we must therefore ensure that we avoid creating overlaps and additional bureaucracy within the regulator and its boards and advisory groups, one of which is the consumer panel.

The consumer panel is important, but we must avoid two groupings giving conflicting advice. It would be a recipe for confusion and delay to have an advertising self-regulatory system consulting with consumers and relevant interest groups and advertising also being discussed by Ofcom's own consumer panel.

My Lords, the noble Lord, Lord Thomson, is certainly right when he says that we have been round this course before. We have had substantial discussions on these issues as the noble Baroness, Lady Buscombe, attested when moving the amendment. We have discussed a similar matter at Committee and Report stages. I understood that the amendment had been brought back at Report stage so that the Government would have an opportunity to put on record the details of a letter that my noble friend Lord McIntosh sent to the Advertising Association. The letter assured the industry—I take this opportunity of renewing that assurance—that this provision does not risk double jeopardy and that there is no perception that misleading advertising is a problem. It was not our intention to suggest that it is. I had hoped that our answer on Report gave further reassurance to the industry, although the noble Baroness has renewed her fears on their part again today.

The consumer panel is an advisory body and has no regulatory powers. The contents board of course is part of the regulatory structure, but the consumer panel is not. The consumer panel will provide another means of advice for Ofcom if Ofcom wants to use it.

I understand that there is a more fundamental objection to the policy of Ofcom being able to refer matters of content with a high consumer dimension to the consumer panel for advice—please note, for advice, not regulation; not for decision taking, just for advice.

The principle behind the amendment seems to be at some odds with the will of the Chamber when it gave Ofcom a principal duty to further the interests of consumers and citizens. The joint scrutiny committee was quite clear that it, while recognising that,

"the interests of the citizen in the nature of broadcast content should first and foremost be represented by the Content Board … nevertheless support the current proposals in the draft Bill whereby certain issues could be examined by the Consumer Panel at the instigation of Ofcom's main Board".

That is exactly what the Bill says.

The noble Baroness, Lady Buscombe, said on Report that she wanted to be sure that nothing in the Bill undermines the advertising industry's ability to regulate itself successfully. She has emphasised that point again and as we said on Report we agree with her wholeheartedly, but we do not see how this provision could undermine the Advertising Association's plans for co-regulation. It does not.

Furthermore, I believe that if we were to deny Ofcom that flexibility we would be doing consumers a great disservice. As my noble friend Lord Evans fully explained on Report, this is not about advertising. There are some—not many— content-related matters, such as the bundling of different channels on pay TV services that could have a high consumer dimension on which Ofcom may need to seek expert consumer advice.

The consumer panel is best placed to give Ofcom that advice. This is not about blurring the boundaries or muddying the waters, as the noble Lord, Lord Thomson, was suggesting. The content board, within the regulatory structure, is the proper place for matters of content. I believe that we are totally agreed on that point. But on the few issues where there is a high consumer dimension we must not deny Ofcom the flexibility of hearing the consumer voice.

Responses to the consultation on the draft Bill fell into two fairly distinct camps on this issue. Powerful interests like BSkyB were quite clear that they did not want the consumer panel to be able to advise on content matters referred to them by Ofcom. They were concerned that the consumer panel should have,

"no jurisdiction over content-related issues or the terms on which content services are provided".

The consumer lobby, in the other camp, wanted the panel to have a much broader remit that allowed it free reign over all of Ofcom's remit, including content. Some, like Channel 5, were supportive of the Government's position that the consumer panel,

"should only be required to consider broadcasting/content issues when instructed to do so by Ofcom".

This is the balance that we have struck between two competing perspectives on this issue. We believe that the balance that we have struck provides certainty for the industry and gives consumers a voice on content matters where Ofcom decides that its advice is relevant. BskyB have nothing to fear. The panel has no jurisdiction over content. Ofcom merely has the ability to seek its advice and we have made it clear that we expect it to do so only when matters of content have a high consumer dimension.

At Report stage the noble Baroness, Lady Buscombe, said that she felt the wording that this amendment removes was unnecessary. We introduced the wording to give certainty in respect to our policy which has always been clear throughout the Bill. Clause 16(6)(c) which provides for the panel to,

"give advice to Ofcom in relation to any matter referred to the panel by Ofcom for advice",

is where it is given effect.

But we were concerned that there was a tension between Clause 16(6)(c) and Clause 16(5). I think that the debates in Committee, on Report, and again today—the noble Baroness has put her case with admirable clarity—have helped us to examine the matter further. It is the Government's intention in drafting the Clause 16(6)(c) that "any matter" would include matters of content where there is a high consumer dimension and where Ofcom chooses to seek advice. I firmly believe that it is in the interests of consumers that this is so. I hope that the noble Baroness at this late stage—we have tried to persuade her on two previous occasions without conspicuous success—will say that we have sought to strike a balance between competing interests in these terms and that we have a provision that will secure the interests of consumers so she will withdraw her amendment.

My Lords, I thank the Minister for his response. He has worked hard today and on previous occasions to allay industry fears. The Minister said that the wording we seek to remove was introduced to give certainty on government policy. Unfortunately, it has done the opposite.

We have talked ad infinitum to the industry during each stage of the Bill. The advertising industry, in particular, but also content providers remain deeply concerned. As I said on Report, which the Minister was kind enough to repeat, this industry has proved entirely capable of successful self-regulation. We believe that it deserves our whole-hearted support, a matter referred to by the noble Lord, Lord Thomson. I am very grateful to him for his support.

This is an important issue and one that is causing great concern. It is true that we have been around the course before, but there is still uncertainty and we remain dissatisfied on the matter. Therefore, I wish to test the opinion of the House.