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Broadcasting (Limit On The Holding Of Licences To Provide Television Multiplex Services) Order 2001
29 January 2001
Volume 621

9.7 p.m.

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rose to move, That the draft order laid before the House on 11th December be approved [First Report from the Joint Committee].

The noble Lord said: My Lords, this order revises the limits set out in paragraph 5 sub-paragraphs (1), (3), (4)(a) and (4)(b) of Part III of Schedule 2 to the Broadcasting Act 1990, as amended. The Secretary of State is empowered to adjust the limits by paragraph 5(5)(a) of Part III of Schedule 2 to the Act.

Perhaps I may take your Lordships back to first principles. What are multiplexes? Of course, we are all aware that we have entered the age of digital broadcasting. The multiplex is a central feature of digital terrestrial television. A multiplex is a block of frequencies that can carry several digital channels. A multiplex enables many more channels to be carried than was previously the case with analogue signals. There are different multiplexes for digital radio and digital television. There are currently six digital terrestrial television multiplexes. Each is capable of carrying at least six television programme services. One of these multiplexes is reserved for the BBC, and the remaining five are licensed by the Independent Television Commission.

The Broadcasting Act 1996 stipulates that no person, which includes a company or business, can hold more than three licences to operate one of these multiplexes. The order raises this limit on multiplex licences that a person can hold from three to six, which is more than the number available. Therefore, it effectively removes the current restrictions on the number of licences that can be held. The justification for doing this is that the limit as it currently stands prevents developments within the industry which the Competition Commission has cleared on competition grounds.

The Competition Commission last year investigated several proposed ITV mergers, involving United News and Media, Granada Media and Carlton. In reaching its decision on which were permissible and which were against the public interest, the Competition Commission decided that the limits on the holding of multiplex licences made no difference to its overall conclusions. However, as the limit may have been exceeded by the mergers then proposed which meant that the groups would have had to sell off—that is, divest—subsidiaries, the Secretary of State for Culture, Media and Sport decided to act to remove the restriction on merger activity, which, in the view of the Competition Commission, was irrelevant in competition terms.

That decision, although taken as a result of the Competition Commission's report, was a neutral one and should not be taken as favouring any one company. The Secretary of State's announcement was made in advance of any final ITV merger activity, when it was still unknown when, or indeed whether, any of the proposed mergers would take place.

As primary legislation would be required to remove the limits from the statute book altogether, the Secretary of State has chosen to make use of a statutory instrument that would have the effect, at least for the present, of removing current restrictions. This route was agreed by the opposition parties in the House of Commons.

The order preserves the scheme of the legislation by stipulating the maximum number of licences that a person can hold and then specifying the extent of the interest which that person may have in additional licences. The scheme of the Act means that to have the effect of removing all restrictions on multiplex ownership, the numbers specified in the order must be higher than the number of licences currently available. Therefore, the order refers to a hypothetical seventh and eighth multiplex.

We now know more about the way that the industry has developed than we did when the legislation was drawn up in 1996. Competition is between, rather than within, digital platforms—that is to say, competition is between satellite, cable and terrestrial platforms, rather than between commercial operators on the digital terrestrial platform. Given the Competition Commission's satisfaction that the current restrictions on the holding of these licences made no difference to their deliberations last year, the limits can safely be adjusted; and, in effect, removed. The principle is supported by the Independent Television Commission.

The order will help digital terrestrial television to develop as a mature, quality platform. I commend the order to the House.

Moved, That the draft order laid before the House on 11th December be approved [ First Report from the Joint Committed].— (Lord McIntosh of Haringey.)

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My Lords, I thank the Minister for his customary clear explanation of the order. We support measures that are intended to promote the success of digital terrestrial television and agree with the Government that the current limit on the holding of licences represents an unnecessary obstacle to growth within the industry.

As the Minister pointed out, the original intention behind the restriction on ownership of multiplex licences to a maximum of three was benign. It was to encourage competition in the early days of digital terrestrial television. It is a fact now, however, that the market has developed in such a way that the principal competition is, as the Minister said, between platforms delivering broadcast services, rather than between those platforms.

I note that the Competition Commission is satisfied that this restriction on multiplex ownership does not raise concerns about competition, and that the limit can be adjusted without harming digital terrestrial television's future as a platform. These Benches therefore support the order.

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My Lords, we on these Benches support the order and thank the Minister for explaining it so well. We fully take the points that he has made, in particular that the industry is so much better understood now than it was in 1996. I congratulate the Government and the industry on working so well together. This is an industry that has gathered a momentum that is probably greater than any of us had expected. I look forward to further collaboration of this kind in what is now looking to be a very promising prospect for the industry. There is no change of policy with which we need concern ourselves, and it is a purely technical matter.

On Question, Motion agreed to.

European Communities (Definition of Treaties) (The Convention on Mutual Assistance and Co-operation between Customs Administrations (Naples II)) Order 2001

9.15 p.m.

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rose to move, That the draft order laid before the House on 14th December be approved [2nd Report from the Joint Committee].

The noble Lord said: My Lords, today's organised criminals are intelligent and sophisticated, whether they are dealing with tobacco, drugs or firearms. They are also as adept at working across national boundaries as they are in one country. To combat such crime, governments must be able to match and surpass the ability of criminals to work across national boundaries. At the special European Council summit in Tampere in October 1999, member states committed themselves to depriving criminals of any hiding place in the European Union. The Convention on Mutual Assistance and Co-operation between Customs Administrations, known as Naples II, will give effect to the necessary practical co-operation in the area of customs. The UK played a leading role in the development of the convention, and so I am pleased to bring this draft Order in Council before noble Lords.

The proposal for a Naples II Convention originated in 1991. The idea was to update the existing 1967 Naples Convention in order to provide a framework for modern cross-border investigation techniques. This framework was seen as desirable, given the creation of the single market on 1st January 1993. While this development served as a boost to intra-EC trade, the removal of border controls presented opportunities for abuse, which have been exploited in an increasingly organised manner by illicit traders and criminal organisations.

The 1967 Naples Convention made provision for mutual assistance between member states' customs administrations through two principal means: the sharing of information on contraventions of customs laws; and the investigation of contraventions on request by another member state's customs administration.

In particular, it allows for Customs officials to appear as witnesses or experts before the courts of other member states, and for customs officers to be present during investigations of contraventions by customs authorities in other member states.

Naples II builds on this by developing the administration and co-ordination of the mutual assistance activities, and by adding several other forms of co-operation. These are: hot pursuit; cross-border surveillance; covert investigations; controlled deliveries; and joint special investigation teams.

Signatories to the convention can opt out of each of the first three of these forms of special co-operation by making a declaration to that effect. The Government intend to opt out of the provisions on hot pursuit only.

Likewise, a signatory can make a general declaration that weapons may never be carried into its territory. The Government intend to make such a declaration.

The draft text of the convention cleared the scrutiny procedure for European legislation on 17th December 1997.

As the preamble to the convention requires that any action taken under its provisions must comply with the principles of legality, it must be necessary and not achievable by less significant means and it must be proportionate. The Government can confirm that the convention is compatible with the Human Rights Act.

To give legal effect to the convention in the UK it is necessary either to make primary legislation or to specify the convention as a Community treaty under the European Communities Act 1972. The purpose of this draft order is to take the latter course and specify the convention as a Community treaty.

I hope that on this point we may follow the example of the House of Commons Joint Committee on Statutory Instruments, which discussed the draft order on 17th January. In the committee there was cross-party support for the aims of the convention and a ready acceptance of its Community status. The committee was in agreement that an Order in Council was the appropriate means to give effect to this convention and that there was no need for any primary legislation. I commend the order to the House.

Moved, That the draft order laid before the House on 14th December be approved [ 2nd Report from the Joint Committee].— (Lord McIntosh of Haringey.)

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My Lords, I thank the noble Lord for explaining the order to us with his customary verve and precision. I begin by assuring him that we on these Benches support its objectives.

The rationale for improving co-operation and assistance between Customs administrations not just in Europe but perhaps also more widely is self-evident. The growing problem of cross-border smuggling bears witness to that, as do more serious matters such as organised crime, involvement in drug trafficking, illegal immigration and so on.

Nonetheless, I hope that the Minister and the House will forgive me if I take up a small amount of time. I note that in a Standing Committee in another place considering delegated legislation, the Paymaster General made passing reference to the Naples II convention and its,
"provisions for dealing with the protection and use of data'".
Will the noble Lord elaborate on that a little further? To what extent, if at all, does that envisage the use of techniques such as data matching, friendship trees and so on to derive information that will assist customs administrations in their fight against crime? To the extent that it does, will the use of data be fully consonant with the terms of the Data Protection Act 1998? Are the provisions on data properly proportionate, particularly in the context of the Human Rights Act 1998? I suspect that the Minister has already answered that point. Nonetheless, I hope that he can assist the House on the points I have raised.

I note that the convention deals with other forms of co-operation, such as cross-border surveillance and covert investigations. I therefore assume that by definition the Regulation of Investigatory Powers Act 2000 must apply in those instances in which those practices are carried out in the UK. That is all well and good but, as the noble Lord will be aware, the legality of that Act under European law is currently under investigation by the European Commission. While I accept that this is a little hypothetical, what are the implications of that for the future effectiveness of mutual assistance between customs administrations in Europe?

On a mildly related topic, is it safe to assume that the cybercrime treaty currently being drafted by the Council of Europe is intended to meld Naples II to provide a cohesive and comprehensive armoury in this area?

I look forward to the Minister's reply. In the meantime, I repeat our support for the order's objectives.

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My Lords, we on these Benches also support the order.

As the Minister said, the major development during the past 20 or 30 years in the problems facing customs authorities is the growing sophistication and international nature of much of the smuggling activity that is involved. That activity has changed from that which occurred during the immediate post-war period and in the 1950s and 1960s, which one thinks of as involving traditional contraband goods, to one essentially of organised crime associated with drugs. We are dealing with extremely well financed international gangs which can be sensibly combated only by well financed international customs co-operation.

Of all the new areas that the Minister discussed and which are contained in the convention, that involving joint special investigative teams is probably the most important. Unless drug traffickers are faced with a concerted customs effort involving teams of people who put in the same time and effort to combat the traffickers as the traffickers themselves adopt, the traffickers will be successful.

The Minister discussed exemptions from the convention and said that we were opting out of the hot-pursuit arrangements. I assume that the case for hot pursuit from this country is significantly less than that which would apply if one were in Luxembourg or the Low Countries, where hot pursuit would be a real problem. In this country, hot pursuit involves the relatively slow business of crossing the Channel. I assume that Customs and Excise feels that having a right to pursue its activities in territorial waters will give it enough scope to do what it wants.

The explanatory note to the order explains that the convention will come into force 90 days after the last member state gives notification that it has completed its constitutional procedures for the adoption of the convention. I should like to ask the Minister how far the member states have progressed in the ratification procedure and when we may expect all member states to be fully signed up. In doing so, I do not in any way seek to question the validity or the sense of the order, and we look forward to supporting it.

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My Lords, perhaps I may deal with the points in reverse order. When I read the papers on this order, I was worried that we were being rather slow in that it had taken since 1997 to give effect to this provision. However, when I inquired further, I discovered that only Greece has adopted the convention. We are the second member state to do so. Therefore, we may be slow but almost everyone else is slower. I do not believe that the 90 days will lose us our second place in the queue.

The noble Lord, Lord Newby, is of course quite right about the matter of hot pursuit. It is true that the nature of our boundaries means that anyone who attempts hot pursuit may well end up with "wet pursuit". Clearly, it would not be appropriate for us to do that.

With regard to the questions raised by the noble Earl, Lord Northesk, I was most interested in the point that he made about data matching and friendship trees. He asked me whether the provisions were in accordance with the Data Protection Act and the Regulation of Investigatory Powers Act. The answer to that is: no, the convention will merely provide for the exchange of existing information under Naples II. There are no provisions for intelligence techniques. That means positively that there is no risk of contravention of the Data Protection Act or the Regulation of Investigatory Powers Act. It may mean negatively that more is still to be done in the future.

Perhaps I may correct what I said in relation to Greece. I understand that France, Sweden and the Netherlands have announced in Brussels that they have now ratified Naples II. Therefore, we are among the top five and not the top two countries.

On Question, Motion agreed to.

House adjourned at twenty-nine minutes past nine o'clock.