Agriculture (Delinked Payments) (Reductions) (England) Regulations 2024
(7 months ago)
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Lord Douglas-Miller
That the Grand Committee do consider the Agriculture (Delinked Payments) (Reductions) (England) Regulations 2024.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Douglas-Miller) (Con)
My Lords, I declare my interests as set out in the register.
This instrument continues the important agricultural reforms we are making in England. Through these reforms, we are investing in the long-term prosperity of the sector and the future of our precious environment—things which I know many in this House care deeply about. The instrument applies progressive reductions to delinked payments for 2024. Delinked payments were introduced on 1 January 2024 in place of payments to farmers under the basic payment scheme in England. We are phasing out untargeted subsidy payments, as they have held the industry back and done little to improve food production or the environment. We are doing this gradually, over our seven-year agricultural transition period in England. That period began in 2021, so we are now in the fourth year of the transition.
The Government first announced the reductions in this instrument in the agricultural transition plan, published in November 2020. We are applying the reductions to delinked payments in a fair way. Higher percentage reductions are applied to amounts in higher payment bands. We plan to make delinked payments in two instalments each year, which will help farmers with their cash flow.
By continuing gradually to reduce these subsidy payments as planned, we are freeing up money so that farmers can access a wide range of environmental land management schemes and grants to suit all farm types. At this year’s National Farmers’ Union conference, the Prime Minister reiterated our commitment to maintain total farm support at an average of £2.4 billion per year across this Parliament. Therefore, the money that is no longer being spent on untargeted subsidies is not lost to farmers; instead, it is being put to better use. It is being redirected to the sustainable farming incentive and other farming support, which help boost agricultural productivity and resilience, increase food security and deliver for the environment. Our new schemes are investing in the foundations of food security and profitable farm businesses—from healthy soils to clean water.
Earlier this year we updated payment rates in our environmental land management schemes, the average uplift being 10%. Some payment rates went up by significantly more: for example, species-rich grassland has risen from £182 to £646 per hectare.
This summer, we will launch up to 50 new actions, which will allow farmers to access scheme funding for things such as precision farming and agroforestry for the first time. The new actions give farmers even more choice about what they can do, especially those on moorlands and grasslands.
Nearly half of all farmers are now in one of our environmental land management schemes. So far, there have been around 22,000 applications for the sustainable farming incentive under our 2023 offer, and more than 21,000 agreement offers have been issued. There are now over 35,000 live Countryside Stewardship agreements—more than double the number since 2020.
The sustainable farming incentive can help to reduce costs and waste on farms, to make them more resilient and to improve food production by, for example, funding farmers to plant companion crops to help manage pests and nutrients, to assess and improve the health of their soil, and to grow cover crops to protect the soil between the main crops. We are designing our schemes so that they work for smaller farms. We have doubled the management payment for the sustainable farming incentive, which is now worth up to £2,000 for the first year of an agreement. This will help to attract even more smaller farms into the scheme.
Smaller farmers potentially have access to more income than they did before. Under the basic payment scheme, half the money went to 10% of the largest farms. Under the sustainable farming incentive, payments are based on the actions that farmers take, rather than simply the amount of land they have. This means that SFI agreements can produce more income than the basic payment for a typical farm.
Farmers taking part in the sustainable farming incentive are typically more than making up their lost basic payments so far. The value per hectare of applications so far is £148. This, alongside delinked payments for small farms this year—equivalent to £117 per hectare—adds up to more than the value of the basic payment scheme per hectare before the start of the agricultural transition. That is £233 per hectare under the basic payment scheme, versus a total of £263 under delinked payments and the sustainable farming incentive.
This year, we will make it even easier for farmers to access the funding by allowing them to apply for actions previously in Countryside Stewardship mid-tier and the sustainable farming incentive through one application process. In February, we announced the largest-ever grant offer for the agricultural sector, totalling £427 million. This includes a doubling of the investment in productivity and innovation in farming to £220 million this year. This provides support for farmers to invest in automation and robotics, as well as solar installations to build on-farm energy security. It also includes £116 million for slurry infrastructure grants and £91 million for grants to improve the health and welfare of our farmed animals.
We are providing a range of other support for farmers and land managers. This includes a third round of our landscape recovery scheme later this year. The farming resilience fund continues to provide free business support to help farmers plan and adapt their businesses. To date, more than 20,000 farmers have received this support.
In conclusion, the Government continue to back our farmers. We are investing in our new schemes and grants, which are helping farms and food production become more resilient. They also deliver better outcomes for animals, plants and the environment. We must press ahead with these reforms as planned. As ever, I am happy to take any questions. I beg to move.
Baroness McIntosh of Pickering (Con)
My Lords, I thank my noble friend for setting out the regulations, which, as he explained, follow on from the earlier regulations to delink payments. I congratulate Defra on the second Farm to Fork summit, which seemed to be well received last week, particularly the inaugural publication of a food security index and the commitment to introduce a five-year seasonal workers scheme, which will be extremely well received by fruit and vegetable farmers across the country.
On farms and food security, the summit recognises the unprecedented challenges all farmers have faced this year. This has been the wettest 18-month period—not just a 12-month or six-month period—since 1836. Also, unprecedented imports have led to competition on very unfavourable terms. For example, given that battery-cage production of poultry has been banned in this country—I do not disagree with that—it is unfair that our farmers face unprecedented levels of imports of battery cage-produced eggs and poultry from EU and third countries.
I would like to press my noble friend to explain how he expects small farms, which he mentioned specifically, to benefit from the provisions of these regulations. We in North Yorkshire are fairly unique in that 48% of our farms are tenanted; that is possibly replicated in County Durham, Cumbria, Northumbria and other parts of the north, and perhaps in the south-west. How does my noble friend expect tenant farmers to benefit, not just under the provisions in the regulations before us but under other provisions that have been announced this year?
I would argue that tenant farms are the backbone of the country. I mentioned the wet weather that we have had, which has had an impact not just on crop production. The AHDB’s figures find that the planting of oilseed rape is down 28% this year, while the planting of wheat is down by 15% and winter barley by 22%, but my noble friend will also be only too aware that livestock farmers have endured an incredibly difficult lambing period. Many have been unable to turn their stock out and have had to rely on feeding livestock, particularly sheep, at a much earlier stage in the year than they would have done otherwise. Cattle have been stuck in sheds with feed running low. I understand that this year straw will be like gold dust.
We all know that, because of the war in Ukraine and other factors, energy and other input prices remain volatile. This is an extremely difficult time, with farmers facing high input costs and very challenging sales prices. Against that backdrop, can my noble friend imagine anything else that the Government can do to extend help to tenant farmers? How does he imagine that small farms, family farms and tenant farms in particular will benefit from the provisions before us today?
Baroness Young of Old Scone (Lab)
My Lords, I welcome the Government’s commitment to keeping up the pace of reform, because it is immutable that we will not be able to tackle net zero or species decline without changing farming considerably and adopting nature-friendly farming practices. It is also difficult to imagine how we can maintain food security without altering farming practices, because climate change and environmental degradation are probably two of the bigger risks to food security.
The basic payment system was always a bit half-baked, if I can use that expression, in that it gave substantial sums of money to large farms and rather less of a share to smaller ones. Many of these smaller farms are the ones that are taking major steps to re-engineer their agricultural practices and businesses in order to maintain future economic sustainability and deliver both for the environment and on carbon. It was quite a worry when various newspapers started banging on about the fact that farmers should not have to lose basic payments at this stage because they were facing the pressures that the noble Baroness, Lady McIntosh, just outlined—in particular, the lousy weather this year and last.
However, there are other ways of supporting farmers through that. I do not think that we should allow those things to break our stride on the reduction and delinking of payments. The farming resilience fund that the Minister referred to is the sort of proposition that I would dearly like to see in a unified advice system across the board for farmers—one that takes account of advice not just on transition but on all sorts of things that we are expecting, asking and incentivising farmers to do. I am very old so I remember ADAS. Bring back ADAS and modernise it to deliver for the future because at the moment farmers are sometimes bamboozled by the range of advice that they get.
In terms of the immediate financial pressures on farmers as a result of the climate and weather, there needs to be a stand-alone fund that does not get bound up with the delinked payments issue. I hope that we will see the Government’s backbone in continuing to implement delinking as fast as possible until we get to the point where ELMS is indeed the name of the game and there is no other.
Lord Teverson (LD)
My Lords, perhaps I can ask simple question. I very much welcome the fact of the transition from basic payments to SFI. Let us be quite clear: there has been a heck of a lot of uncertainty during that process, which now hopefully is more concrete, so that everybody knows the direction. I welcome the number of farmers who are now involved in SFI. Coming back to the question about the environment and the objective of bringing back nature into the countryside, how does Defra intend to assess whether these various SFI programmes have been successful, so that they can be modified in future to make sure that they achieve the goals that we all want them to achieve? That is what I would like to understand as we move into the future. Given the flexibility that SFI gives in terms of various individual incentives within it, how do we assess that, how do we manage it, how do we calculate it and how do we change it into the future to make sure that effectiveness is still there?
Earl Russell (LD)
My Lords, on these Benches we have real concerns and questions in relation to these regulations. This instrument was debated in the Chamber of the other place. The Explanatory Memorandum states:
“This instrument sets the percentage reductions which will be applied to delinked payments in England for 2024. Delinked payments were introduced on 1 January 2024 in place of Direct Payments to farmers under the Basic Payment Scheme … in England … As part of moving away from the Common Agricultural Policy, the Government has been gradually phasing out Direct Payments in England. It is doing this over an agricultural transition period (2021 to 2027), as provided for in its Agriculture Act 2020”.
We support the overall approach, so we will not be opposing the SI, but we have concerns about the process of transition of farm payment mechanisms in general, the resultant department underspend to date and the impacts that these are having on farmers, their economic welfare and, in many cases, their very economic survival.
The debate today so far has largely mirrored that which happened in the other place, most people being supportive of the long-term transition and policy objectives, but equally being deeply concerned about the implementation of that transition. These changes need to be assessed against the broader implementation of the whole package of measures. The truth be told, our farmers are really struggling to survive financially.
As has been said, we have had one of the wettest winters since 1836. In many cases, winter and spring crops have not been planted and livestock farmers have also suffered. The NFU farming confidence survey, published just a few weeks ago, showed that mid-term confidence is at its lowest since records began in 2010. Because of a lack of confidence, production intentions are plummeting within all farm sectors. That cannot be good for farmers or our food security. Also, the relentless wet weather has caused farmers real hardship: 82% of respondents to the NFU survey said that their business had suffered, which cannot be good either. We are increasingly seeing the impacts of climate change and I ask the Government and the Minister to be more flexible and responsive to the impacts of climate-related events on our farmers. The Government must recognise the role that farmers play in flood prevention and adequately reward them for the important work that they do in mitigating floods and protecting us from further flooding.
We have this £200 million underspend in Defra and are now four years into a seven-year transition under the SFI. The NFU survey also found that profitability had fallen for 65% of respondents. We have this big period of transition, weather events and real economic hardship for our farmers, so questions must be asked about the impact of these regulations against this overall background.
The Explanatory Memorandum states that
“compared to applying no reductions at all, the 2024 reductions set in this instrument will release around £970 million to £1,010 million”.
These are huge amounts of money, and we are worried about the impact of this change. The Government must be in possession of an overall impact assessment of the transition to ELMS to date, but this information has not been published. I ask them to be more open and flexible with the information they provide.
The Minister in the other place said of the overall budget that it is the same cake and that budgets are not being reduced. Against this, some of the slices have not been eaten because there were underspends, the department is undertaking new and more complex sets of measures around supporting farmers to undertake environmental stewardship, with a greater number of schemes being developed overall, and new organisations are now eligible for payments. Added to this, we have had the rise in inflation, which means that the budgets were not as large as set out.
All of this is adding increased financial impact; farmers are being asked to do more and there are more schemes, so the money is being subdivided to a greater extent. Given that no impact assessment is included with this SI, how does the Minister expect us to make adequate judgments about the money being provided and the decisions that lie behind that? What is the factual basis for the figures the Government have put forward? How confident are they that they have the right figures, that they are set at the right rates and that they are capable of achieving the policy objectives?
Finally, what is Defra doing to improve the situation for our farmers? What assessment has it made of the overall support that farmers need and how best it should be provided at speed and at scale? What other problems has it had to date with the implementation of the present system? What is being done to support small farmers and tenant farmers, in particular to make applications? The Minister proudly stated that half of farmers have made applications; by that same logic, half have not engaged with these schemes as yet, so how can we do more to bring them into these schemes and make them work more effectively?
Baroness Hayman of Ullock (Lab)
My Lords, we do not oppose this SI, as we did not oppose the agricultural transition plan, but we think that the implementation of ELMS and the agricultural transition away from the BPS need to work much better and the Government need to look at how they can provide better support for farmers while this transition takes place. The noble Baroness, Lady McIntosh of Pickering, asked specific questions about small farms and tenancies; they are having particular challenges, so it would be good to hear from the Minister on that.
We have heard a lot today about how climate change continues to threaten farmers’ livelihoods. I am sure the Minister is aware that the NFU has suggested delaying ELMS while certain things are sorted out. While we have some sympathy because of the struggles farmers have had recently, delaying the implementation of ELMS and the phase-out of basic payments is not the solution.
Policy-driven agricultural practices have been one of the single biggest drivers of wildlife loss in the UK over the past 50 years. We are concerned that, if you start delaying the ELMS rollout, all you will do is create more uncertainty at a time when farmers desperately need certainty. They need to be able to plan—and to plan to farm in a way that provides food but also benefits nature. As my noble friend said, we will not reach net zero or be able to tackle species decline and biodiversity loss without the widespread adoption of nature-friendly farming practices. We have also heard that the biggest long-term risk to our food security comes from climate change and environmental degradation. That is why it is important that we get these schemes to work effectively for farming.
My understanding is that there is almost a £1 billion funding gap for agriculture to meet existing nature-recovery and net-zero targets. I do not expect the Minister to pull £1 billion out of his back pocket, but it demonstrates that this is a huge problem that needs addressing. Instead of doing what the NFU has suggested and pausing ELMS, have the Government thought about using the emergency financial measures available to them in Section 21 of the Agriculture Act? There are powers to add an additional emergency fund on top of SFI for farms that are suffering the greatest climate damage. Have the Government looked at that as a way of supporting farmers? Given the terrible weather we have had, including flooding, would that be an option?
I want to look at some of the farmers’ concerns, because the NFU is clearly not happy with the way things are at the moment. The noble Earl, Lord Russell, talked about many of the concerns in the NFU’s latest annual farming survey, which gives a good overview. It shows the lowest level of confidence in at least 14 years, and extreme weather and the phasing out of subsidies are cited as the primary drivers. Tom Bradshaw, the new president of the NFU, said his concern was that,
“if members don’t have confidence, then we as a country can’t deliver food security”.
That is a real worry.
One factor in that is the weather, about which we have heard a lot, but what was quite striking about the survey was that mid-term confidence had been hit harder than short-term confidence. That is striking because it shows that farmers are losing trust in the Government’s ability to support them through this transition period and during the challenges of climate change. Will the Minister comment on that? How are the Government working to bring back farmers’ trust? It is very important.
On the weather, analysis by the non-profit Energy and Climate Intelligence Unit forecast that crops could be down by nearly one-fifth as a result of the wet weather, and that it was likely that prices for bread, beer and biscuits, for example, would rise. Has Defra made any forecast of the impact of continued bad weather on inflation and on harvests, for example?
The NFU is concerned that the combination of the BPS being down by 50% and all these extra pressures will mean that farmers are more likely to borrow. Borrowing is more expensive, and the NFU is concerned that, as Tom Bradshaw, put it, we are facing
“the perfect storm of events”.
This is about looking at the bigger picture of how the Government will support farmers. What steps are they taking, or proposing to take, to support farmers with those extra costs?
We know that red diesel has been a particular problem, but I am not expecting the Minister to answer the difficult questions around red diesel today. I have spoken before about the benefit that family co-operatives can bring when costs are high. Have the Government looked at that, particularly around investing in new machinery, which can help to mitigate some of the difficulties that farmers are facing?
Finally, we completely agree that we need a fairer system of payments based on the principle of public support for public goods, which ELMS is bringing in, but the Government need to grasp that more must be done to make the system work much more effectively than it does at present for farmers and the environment.
Lord Douglas-Miller (Con)
I thank all noble Lords who have contributed to this debate and I welcome the strong level of support across the House, largely, for these measures.
I start by addressing one or two of the issues raised by the noble Baroness, Lady Hayman. She touches on a common theme that comes up when I am out and about. I was at the Chelsea Flower Show this morning and there were a few farmers there—not many, but a few. The issues are about what is going on and where the money is going. The same amount of money is available today as there was yesterday and will be tomorrow. It is £2.4 billion each year over the course of the Parliament, so there is not less money available.
To anyone who has been in receipt of the basic payment scheme as—full disclosure—I have been for probably 40 years, it is a pretty blunt instrument. You get your cheque. There is a little bit of cross-compliance. I received mine in Scotland. It came in two tranches: one at the year end and one about six months after the year end. For anybody who feels that transitioning away from the BPS is somehow bad for cash flow or bad because there is less money in the pot, they have misunderstood what is going on .
The issue of confidence is critical. For sixty-something years—I cannot remember the exact number—if you have been a farmer, you have been used to one system. You farm, you get your BPS payment. If you were interested in other stuff, you could get into an agri-environment scheme, but they were pretty challenging to get into and pretty expensive to join; they really only suited the larger landholdings.
This is a significant shift away from that, but I get that any shift is challenging. Looking at my own farm arrangements, I find myself wondering how we are going to make all this work. Instead of just getting the money, you have to think about what you are going to do. It is public money for public good, so it is a proper shift in mindset. When you get that big shift, it does knock confidence. I am acutely aware of that. It means that people have to think totally differently about their farming operation.
If I am absolutely blunt, that is exactly what ELMS is designed to do and should do. The way that we have been farming has not been overly helpful to productivity or to innovation and—as I think all of us in this Room would collectively agree—it has been deeply unhelpful for the environment. To me, this change is absolutely welcome and necessary but I know that it causes a bit of stress and strain. That is one reason why it has been spread out over a seven-year period.
Farmers are amazing; they are incredibly resilient, but they are also incredibly resilient to listening. It is not as if this has come as a shock to anyone. We have been advertising it on the front page for a number of years now but, of course, this year is the year when it starts to really bite. If you have not been paying attention, you are going to feel some financial pain. We cannot hold everybody’s hand in this space. A huge amount of effort and energy has gone into consultations and into all the prototypes for the SFI modules. A huge amount of consultation has been done with the industry. Defra teams and Ministers have gone to agricultural shows; they have gone around the block telling everybody, “You have to pay attention; there is change coming”. But, as with all things in life, sometimes you start to pay attention only when it starts to hurt the wallet.
I know that there is a degree of concern and a degree of change but, as I think everybody recognises, this transition is long overdue. We really need to get on with it, so I am grateful for the overwhelming support. This is something that we should plug on with.
I will try to answer a few specific questions now. I was asked about financial support for farmers in the event of a crisis or financial emergency. In the event of an exceptional market disruption, the Government have powers to act to support farmers by making a declaration under Section 20 of the Agriculture Act 2020. These powers are intended to deal with unforeseen short-term shocks to agricultural markets where there is an adverse effect on the price achievable for one or more agricultural products. We have seen some pretty big shocks over the past few years, some caused by the weather and some caused by world events. The Government continue to keep this measure as a backdrop. I know that we look at it and think about it, but we have not got round to using it yet. I hope that it is a rainy day one that never has to come out.
Quite a lot of questions were asked about the rationale for delinking. I hope that I covered a lot of this in my opening comments but, broadly speaking, it is vital that we continue gradually to move away from untargeted subsidies as planned because these payments have inhibited productivity improvements and are, I believe, fundamentally unjust. The scheme that we have now delivers a much better outcome and will deliver a much better outcome in the long term.
The noble Earl, Lord Russell, and my noble friend Lady McIntosh asked whether this is the right time to go through a reduction in the BPS, given the weather and other activities. The Government recognise that many farmers are facing challenging conditions—not least the extreme wet weather, which was referenced several times during the debate and has affected enormous parts of the country—but cancelling the planned reductions to delinked payments is not an effective way of addressing these challenges or setting businesses up for a successful future. The longer we hang on to this, the longer we hold everybody back. These payments are untargeted, so increasing them does not direct support to those who most need them. In fact, you do not have to be a farmer to be in receipt of delinked payments now; if you have retired from farming, you will still get what you were due. Perpetuating that is not a helpful way of addressing either today’s issues or the issues that will undoubtedly come in future.
The noble Baroness, Lady Hayman, and my noble friend Lady McIntosh asked a couple of questions about tenant farmers and small farms. This is a challenging area but, on the basis that the basic payment scheme paid you for the chunk of land that you owned, the smaller the chunk of land, the less money you get. This transition allows you to earn more money on a smaller farm, by picking up the delinked payments and engaging with the SFI options. Again, I appreciate that this is challenging because you have to think about what you are doing and you will probably have to make some adjustments to your farming model but, as I have said, this has been signalled to the farming community—small farmers, tenant farmers and large farmers—for a long time. It will take a little time for it to bed in. The money is available; you just have to work out how to go and get it. The money is there. Noble Lords look as though they do not believe me, but it is. The options and choices are there. You have to go out and engage with that.
The noble Earl, Lord Russell, asked what had been done about an impact assessment. One has not been prepared for this instrument because it is not a regulatory provision. However, the Government have already published evidence providing in-depth assessments of the impact of removing direct payments. This includes the 2018 and 2019 farming evidence compendiums, our 2018 assessment of the impact of removing direct payments, and the 2021 and 2022 Agriculture in the United Kingdom evidence packs. If the noble Earl wants more information on that that I can supply, I would again be delighted to do so.
Earl Russell (LD)
No evidence has been published on the implementation of the transition to date. There was no evidence in this pack on the impact of these changes. From my point of view, it made it quite hard to assess the changes.
Lord Douglas-Miller (Con)
It is pretty early days in this transition, so I am not anticipating that we would have that evidence. We do a lot of consultation directly with farmers and with the industry through organisations such as the NFU, and we have developed a new food index to look at how that might be impacting food security, so quite a lot of measures are evolving and coming through. I would suggest that it is a little early to try to measure impacts at this stage.
I think the noble Lord, Lord Teverson was keen to understand what consultation we are doing with industry and how we are working with it. Have I got that right?
Lord Teverson (LD)
I thank the Minister for asking. What I am really trying to say is that we have here a unique instrument that can use various elements of the SFI to get the sort of environmental improvement goals we all want. How are we assessing them so, that over time, we make sure that this state aid, in effect, that we are giving to farmers is used effectively to achieve what we want to achieve? How does that assessment work—not now, but as we start to move through the implementation?
Lord Douglas-Miller (Con)
I thank the noble Lord for that helpful clarification. There is a lot in that, and if I may I will write to him with the details rather than go through them all now.
Unless anybody has anything further they would like to ask, I think I have covered most of the questions. I believe—and the Government are right behind this too—that this instrument is essential for our agricultural reforms. We must press ahead as planned so that we can fund our schemes that support farmers to be resilient and sustainable over the long term.
Management of Hedgerows (England) Regulations 2024
(7 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Douglas-Miller
That the Grand Committee do consider the Management of Hedgerows (England) Regulations 2024.
Relevant document: 23rd Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Douglas-Miller) (Con)
My Lords, I declare my interests as set out in the register.
I am sure that many noble Lords will agree that hedgerows are precious features of our landscape, enriching our environment and wildlife. Many of our wild birds depend on them, including red-listed birds such as the linnet and the yellowhammer. Hedgerows also help food production by supporting pollinators, providing windbreaks and shelter, and protecting the soil. I am therefore pleased to bring before this Committee this statutory instrument, which proposes further to protect our hedgerows. The instrument establishes by legislation a common approach to managing hedgerows on agricultural land in England. It builds on the existing legal protections for some hedgerows, which will remain in place.
In proposing this legislation, we have listened to the views of many who cherish our hedgerows, including many farmers. I thank those who responded to our consultation on protecting hedgerows; their insights have enriched our understanding. We received almost 9,000 responses, which we have considered carefully. The responses showed how much hedgerows are valued. There was strong consensus from environmental and farming stakeholders alike that hedgerows should be protected in domestic law in a similar way to the previous hedgerow management rules provided by cross-compliance.
That is what this statutory instrument does. It aims to provide a familiar baseline for hedgerow management. We want to make sure that everyone knows what is expected and is supported to follow good practice. As a safeguard, we are also making sure that there are clear, proportionate consequences for the small minority who might choose to ignore it.
I know that these rules are simply a reasonable minimum which most farmers have been practising for many years. Farmers are the guardians of our hedgerows, protecting, planting and maintaining them for generations. I thank them for their continued efforts to help wildlife thrive on their farms, alongside food production. We trust them to continue to do the right thing. In fact, many are already going further than required by these regulations. We have seen strong uptake of options to manage and further improve hedgerows under our agri-environment schemes. I am delighted to report that there are already more than 20,000 agreements or applications in place, contributing to the management of over 60,000 miles of hedgerow in England. We look forward to working in partnership with many more farmers to manage and improve their hedgerows in future.
The purpose of these regulations is to protect hedgerows in order to support biodiversity, benefit the environment and enrich the landscape. They will make sure that all farmers are treated fairly by upholding common rules for managing hedgerows, and they will provide clarity on what is expected. The regulations govern the management of “important” hedgerows on agricultural land. Broadly, this means hedgerows which have a continuous length of at least 20 metres or which, if shorter, meet another hedgerow at each end. They do not apply to hedgerows within or forming the boundary of a dwelling house. Because the regulations apply to all important hedgerows growing on agricultural land, they will bring into scope some people who were not subject to cross-compliance, such as those who chose not to claim any direct payments or who have farms under five hectares in size.
There are two main requirements under these regulations. First, cutting or trimming hedges will be prohibited between 1 March and 31 August inclusive. This is to protect hedge-nesting birds and their habitats during the breeding season. There are some exceptions to this rule to give farmers and others flexibility where needed. The second requirement is to establish and maintain a two-metre-wide buffer strip alongside the hedgerow. This will protect the hedgerow and its root system from the effects of cultivation and the application of fertilisers or pesticides. Subject to certain exemptions, these activities will not be allowed within the buffer strip. The requirement for a buffer strip will not apply to fields which are two hectares or smaller.
We recognise that people may need time to establish their buffer strips where they do not already have them in place. We therefore propose that, in cases where a field has no buffer strip and is in crop production on 1 July 2024, the requirements will not come into force until that crop has been harvested. In all cases, the exemptions are needed to accommodate the practicalities of farming, or for health and safety-related reasons. They are largely the same as under cross-compliance. They are in place to ensure that we have the right balance between hedgerow protections and effective farming.
The regulations will be enforced on behalf of the Secretary of State by the Rural Payments Agency. Although the rules themselves will be familiar to many farmers, there will be a different approach to enforcement, with the emphasis being on being fair and proportionate. The Rural Payments Agency will take a primarily advice-led approach to enforcement. This has been shown to be the best approach for bringing farmers into compliance in other regulatory areas. However, the Rural Payments Agency will also be able to use a range of civil sanctions and criminal proceedings for the worst-case scenarios. Such action will be proportionate to the damage caused.
Subject to parliamentary approval, detailed information on how the regulations will operate will be provided once the statutory instrument has been made. The Rural Payments Agency will also hold a public consultation on its proposed enforcement policy. I know that it is committed to taking a modern, pragmatic and proportionate approach, with advice and guidance at the forefront.
Although these regulations govern the management of hedgerows on agricultural land, we recognise the value of hedgerows in other locations. Officials are therefore working separately with stakeholders to consider how to support the sustainable management and protection of hedgerows more widely in future.
In conclusion, this statutory instrument will afford fuller protection to one of our countryside’s greatest assets, the hedgerow. That will, I hope, be widely welcomed. I beg to move.
Baroness McIntosh of Pickering (Con)
My Lords, I have only one small question for my noble friend the Minister, as we do not have too many hedgerows in north Yorkshire; we mostly have stone walls, which we could have a separate debate on another time.
I am intrigued by the Government’s response to questions posed by the Secondary Legislation Scrutiny Committee in its report. It transpires that the Government are now bringing within the remit of cross-compliance farms of less than five hectares but larger than two hectares. For what reason are we going down that path? Obviously, these are quite small farms. The fields that we used to claim on when we owned a couple of fields would have fallen into this category, I think. I no longer have such an interest, but I wonder why we have gone down the path of including farms of between two and five hectares. Does my noble friend the Minister not agree that this seems like a lot of administration for such small farms?
Baroness Young of Old Scone (Lab)
I have been having sleepless nights about this, noble Lords may be pleased to hear. I was always a great fan of cross-compliance. It was quite a low-key instrument; nevertheless, it could be deployed. Of course, hedges are vital for wildlife and for carbon. They provide linear routes through our landscapes and join up patches of habitat. Filling the gaps in hedges, for example, is really important, for all these reasons.
Turning to my anxiety, it took ages to establish whether there was going to be a statutory instrument to fill the gap left by the demise of cross-compliance, and it then took some time for that to come forward. In a way, my great regret is that we have not used this opportunity. For heaven’s sake, the benefits of leaving Europe are few enough, but improving the situation for hedges would have been one of them. I would have preferred it if the Government had removed the three existing exemptions: for fields under two hectares, for hedges younger than five years and for the no-cutting period. When you look at the consultation, you see that there was not really much support among the farming community for retaining them. This could have been an opportunity absolutely to re-recognise the value of hedges, particularly in fields of under two hectares, and the importance of hedges younger than five years having protection from the beginning.
Apart from lecturing the Minister on this and lying awake at night worrying about it, I simply want to ask the Minister for four things. First, will he re-examine these exemptions? We have this wretched statutory instrument, and let us get the damn thing in because, at the moment, there is no protection for these hedges; but there is an opportunity here to improve on what Europe is doing and re-examine the exemptions.
Secondly, there should be a real proposition to extend the no-cutting period beyond even that in the instrument. My own wildlife trust, of which I am patron—I declare an interest—the Wildlife Trust for Bedfordshire, Cambridgeshire and Northamptonshire, has done a big hazel dormouse project that shows that there are multiple active nests during the period from September to October. If hedges are cut at that point, it prevents the population really thriving, and this is a very threatened species.
Maintaining hedges and not cutting them for even longer provides valuable berries and other food for winter wildlife and, as the Minister said, for farmland birds that are really in decline, such as the turtle dove, linnet, cirl bunting and yellowhammer. Bedford used to be the yellowhammer capital of the world, as far as I could tell, and you would be very hard put to find one at all now. In these species, late broods are disproportionately important. If they can get a third brood away, the population has a greater chance of increasing rather than standing still or declining. Again, extending the no-cutting period is something farmers would appreciate.
Thirdly, I ask the Minister to think about two matters not connected to hedgerows, but whereby we lose as a result of losing cross-compliance: water body buffers and soil erosion conditions, which are absolutely vital. They are hot in the public mind at the moment, particularly in the light of water pollution. Will he undertake to look at them and produce statutory instruments to reinstate them?
Lastly, I know that the Minister likes to tell me when I ask him things that are not particularly germane to the subject in hand, that are not his brief or are above his pay grade—or he will have another way of sending me away with a sore heart—but I hope that he might bump into his DLUHC colleagues and look in a concerted way at not just hedgerows that are subject to agricultural practice but those threatened by development. I know that one should not take personal examples as the norm, but I cannot help feeling that, in both the planning applications against which I have fought in the last two years, the local planning authority chose to ignore the hedgerow regulations in the planning advice. It destroyed hedgerows that not only are vital for carbon and wildlife but have huge historic lineage. If he were to bump into the noble Baroness, Lady Scott, in order to tell her that, it would be extremely helpful.
The Earl of Leicester (Con)
My Lords, I declare my farming interests as laid out in the in the register. I congratulate Defra and the Government; a lot of thought has gone into this. It was said that we have not had any regulations protecting hedgerows since we came out of cross-compliance, but I would just like to big up farmers, I suppose. Years and years ago, nearly every single hedge would be cut every year. Then, they were encouraged to cut them every second year; then, a further development was to cut one side a year and maybe leave the other for three years. Now, a lot of farmers in the regenerative movement and others are barely cutting hedges. As the noble Baroness, Lady Young, said, that provides many more berries, habitats and suchlike. So, the fact that we have not had any regulations for six months or so is not the end of the world; I do not think we have lost any great hedges.
I take issue with the noble Baroness, Lady Young, suggesting that we should continue not cutting hedges after 31 August. Two or three weeks later and we will be in autumn; all nesting birds will have nested well by then.
My question is very simple and follows on from what the two noble Baronesses said. It is about really small fields; I am talking now about private householders. While all the farmers are obeying the law and not cutting between 1 March and 31 August, you can drive out anywhere in the countryside or in small towns and villages and you will see plenty of householders cutting their own garden hedges. So, does this rule apply to them? If it does, I suspect that it will be very hard to enforce. I am sure there are plenty of gardeners becoming more aware of the importance of their hedgerows as habitats for nesting birds and suchlike, but I would be very interested to have an answer on this if my noble friend the Minister has one.
Lord Teverson (LD)
My Lords, I declare my interest as chair of the Cornwall & Isles of Scilly Local Nature Partnership, and I will come back to a particular regional issue in a minute.
I agree with the Minister on the emotion and feeling concerning hedges. Cornwall was one of five—I think—pilot local nature recovery strategy areas. We went through a long process of consultation with the public on the priorities for local nature recovery and habitat. Hedges came out top by far. People feel very strongly about them emotionally, but exactly as the noble Baroness, Lady Young of Old Scone, has said, they are an essential part of our rural habitat, particularly in connecting areas of environmental importance.
I want to ask some straightforward, short questions on issues that I did not understand. First, the instrument refers to “the Regulator”. Maybe the Minister explained this, but I am not clear: who is the regulator? I presume that this comes back to one of the Acts referred to in the statutory instrument.
Also, who is the enforcer? I was quite surprised to understand from the Minister that the enforcer is probably the RPA, which has a role in payments for SFIs and some other Countryside Stewardship schemes. I am not sure about that, but there is some confusion over environmental regulation and who things should be reported to. Occasionally, it is Natural England but usually, strangely, in relation to most environmental and countryside regulations, it is the police.
As the noble Lord just said, farmers are very good at complying with such regulations because they value their own hedges. If a member of the public happens to see someone transgressing them, who should they telephone or get on to? Is it the RPA, the police, or Natural England? This is something we are going through in Cornwall, making the position clear on environmental infringement. I would not expect this to be a huge issue, but who should they go to?
My final question is on a matter very close to our hearts in the far south-west: Cornish hedges, which are a hybrid between the stone walls that you might find in Yorkshire and hedges as we would normally understand them. They are the key way to create field divisions in Cornwall. I do not quite understand whether Cornish hedges are included in this selection.
I agree absolutely with the noble Baroness, Lady Young of Old Scone, particularly regarding the exemptions. I cannot understand the five-year rule. It seems to me even more vital that young hedges are protected, so I encourage the Minister to bring forward yet another statutory instrument to change that.
Earl Russell (LD)
My Lords, we too welcome these regulations. This instrument was noted by the Secondary Legislation Scrutiny Committee. Hedges are a crucial part of our historic landscape, living landscape and biodiversity, so anything we can do, cross party, to improve and promote them is extremely important.
These draft regulations propose new legal requirements for the management and protection of hedgerows on all agricultural land in England. The Explanatory Memorandum notes that the new rules will “broadly replicate” the previous cross-compliance requirements under the EU’s common agricultural policy, which linked the management and protection of hedgerows with subsidy payments.
The cross-compliance system ended on 31 December 2023, as part of the Government’s wider agricultural reforms in England and the transition to domestic schemes after Brexit. This instrument will finally close the gap in protections since 31 December 2023, requiring farmers and land managers to maintain green-cover buffer zones of 2 metres from the centre of the hedgerow, prohibiting cultivation or the application of pesticides or fertilisers and reintroducing a ban on cutting or trimming of hedgerows between 31 March and 31 August to protect wildlife during the bird nesting season.
The Secondary Legislation Scrutiny Committee reports that it asked Defra whether any cross-compliance requirements would not be replicated, and the department replied that the SI was described as “broadly” replicating
“because it is not an exact replica of those rules”.
The Minister has spoken to the fact that the SI extends the scope of the requirements to some hedgerows that did not fall under the previous cross-compliance rules. Cross-compliance rules applied only to those farmers in receipt of the common agricultural policy direct payments.
Under this SI, the requirements on hedgerow management will apply to all agricultural land, as defined, including some land which was not subject to direct payments—such as allotments and land with horses—and, as we have heard, farms of less than 5 hectares which had previously been exempt from cross-compliance. As a result, the SI in effect offers greater compliance for our hedgerows.
The broadening of hedgerow protection is welcomed; indeed, the consultation showed 95% support. However, will the Minister confirm that that understanding of “broadly” is indeed correct? Further, as has been mentioned already, paragraph 5.2 of the Explanatory Memorandum states:
“These requirements will protect hedgerows that are deemed ‘important’ in this instrument for the purposes of the power to regulate in respect of hedgerows in section 97 of the Environment Act 1995”.
Will the Minister explain the meaning of the word “important” in this sentence? I ask the Minister to consider, as others have mentioned, the exemption of fields under 2 hectares and hedgerows less than 5 years old and the possible need to extend the cutting period. Will he keep them in the department’s sights to see whether these regulations will, in time, need further reform or strengthening?
The SI covers only hedgerows on agricultural land, as defined. Do the Government have any intention to extend these protections to hedgerows managed by local authorities, such as on golf courses? A lot of our hedgerows are not on farmland; they are also in other places.
Regarding paragraph 8 of the Explanatory Memorandum, can the Minister give a clear indication of when he expects the department to publish guidance on enforcement, and what information and funds will be disseminated to ensure that it is understood and properly enforced? Will he provide some estimate of the proposed cost of fines based on the financial benefit derived from any offences under the SI?
Finally, paragraph 11 of the Explanatory Memorandum notes that the SI will come into force “the day after” today. I welcome that, to minimise the gap in compliance. Is the Minister aware of whether there has been any damage to our hedgerows as a result of the gap in the legislation? Has the department done any checks on that? If not, will it do so to see whether any damage to hedgerows has happened in that period?
Baroness Lawlor (Con)
My Lords, I rise briefly to say that I welcome these regulations very much. I am very glad that the department is taking its responsibilities to hedgerows seriously, but I think we could be encouraged to do a little bit better than the EU. I echo what noble Lords have said about extending the period, perhaps, or encouraging alternate sides of the hedgerow. Are there are any plans to do so? I say this not just because of the shelter they give wildlife or the food for birds over the winter but because there are some birds, such as the blackbird, that can have a late brood in August. After 31 August, these fledglings may seek shelter on the ground beneath the hedgerows. I think that maybe we could think of extending the period in certain parts.
I also echo the question about whether there is any requirement on local authorities; will the regulations extend to local authorities or just to privately owned land? I leave it at that, but I would be very grateful to hear any thoughts.
Baroness Hayman of Ullock (Lab)
My Lords, we welcome this statutory instrument. We have heard that a regulatory gap arose when cross-compliance was withdrawn at the beginning of this year. Our concern is that the SI was not progressed more quickly, because the no-cutting period it covers is from 1 March to 31 August, so cutting has been permitted that is not going to be permitted next year and has not been permitted in previous years, so getting this new system in place as quickly as possible must be a priority. I was interested in the question asked by the noble Earl, Lord Russell, about whether there is any evidence of what damage has been done in the meantime and, if so, what will be done to mitigate that.
My noble friend Lady Young of Old Scone said that this is a bit of a missed opportunity because we could have done better than the former EU protections, and she went into some information about that. We have heard that the main issue is the three exemptions from the former cross-compliance—fields under two hectares, hedgerows younger than five years and exemptions to the no-cutting period—so I will not go into detail around that. Despite the fact that some noble Lords, particularly the noble Earl, Lord Leicester, who is no longer in his place, mentioned that farmers and landowners on the whole follow best management practice, and we do not want to undermine the work that farmers do, the exemptions should have been carried across wholesale into the new regulations because otherwise hedgerows are not protected. It is important that we have those protections in place in law for sound environmental reasons.
The noble Earl, Lord Russell, mentioned enforcement. The SI embraces a different approach to enforcement that we have been seeing across farming more broadly. In other words, it is now advice-led, which will improve trust and drive better outcomes. Interestingly, the SI allows a defence of mistake when regulations have not been followed, whereas cross-compliance always said a breach is a breach, even if that breach was a mistake. I think we would in principle support that because there is no point in punishing farmers if they have made a genuine mistake, but it takes more time and resources for the Environment Agency to implement the new approach. The noble Lord, Lord Teverson, asked who enforces this. My understanding is that it is the Environment Agency, but perhaps the Minister could confirm that. How is that slightly more complex enforcement going to be resourced and managed? One of the reasons for asking is because new data has shown that the majority of deadlines that were issued as part of this new advice to farmers to improve the environment were missed. It is just about making sure that it all comes together and works effectively.
Martin Lines, from the Nature Friendly Farming Network, who we all know well, said in an article that he thinks large food corporations bear significant responsibility for this. Does the Minister agree with that? Where has the evidence come from?
Lord Douglas-Miller (Con)
Again, I thank all those who contributed because, from my perspective, this has been a really interesting debate to listen to.
I start by picking up on the issue of ash trees, disease and stuff like that. Like the noble Baroness, I take the train—up to and down from Scotland most weeks. If you look out, you see that things are really horrifying right now. All the leaves are out, and there is dead tree after dead tree. It illustrates the importance of our wider biosecurity. I know that the BTOM has not been to everybody’s approval. Frankly, as we all know, if you are in government, you cannot get this right whichever way you go because some people think that you have not done enough and others say that you have done too much. However, this is a really important issue; on ash trees, it is just a horror.
Keeping some of the pests and diseases that affect our flora and fauna out of the UK is absolutely key. If noble Lords get a chance to go to the Chelsea Flower Show, I recommend that they go to the APHA site. It is based on Asian hornets and is absolutely incredible. It just shows you what we are up against every day of every week. At this time of year, everything is coming alive, and it is all on its way over here. The Defra team and the wider Defra family do an unbelievable amount of work to stop a lot of this stuff coming in. I forget exactly what the cost of ash dieback across the country will be, but it is in the tens of billions; it is going to leave great holes in our hedges and in our woods. The noble Baroness, Lady Hayman, makes a great point: what are we going to do to fill that gap? Perhaps we need to start thinking about that more.
I was really interested in the debate started, I think, by the noble Baroness, Lady Young, on this conflict between farmers and environmentalists—if I may phrase it as crudely as that. Several speakers implied that, because we have had a few months without these regulations, somehow we will be ripping out hedgerows two to the dozen, because we could do that without the regulations. I do not understand that mindset at all; I have never come across it anywhere. I do not know whether the noble Earl, Lord Russell, has; we could perhaps have a conversation afterwards it that is happening, but I have never come across it anywhere and I think most farmers would take proper exception to it being implied. Again, I would be delighted to have a wider conversation.
To answer the specific point, I have heard nothing to suggest that any farmer would remove any hedgerow. On the contrary, there has been a huge increase in people wanting to do better, which is where the farming community comes from.
However, the debate was interesting, because it touched on a few other issues about exemptions, exceptions and so on. There was talk about why we are not protecting young hedges, as if not applying the buffer zone would have a negative impact on young hedges. I do not know if your Lordships have ever planted and looked after a hedge, but it takes quite a long time to get settled in and a lot of careful work each year to keep it there. Buffer zones would overwhelm a young hedge; the weeds would overwhelm it and you would get a properly scrawny hedge with high leaf cover because the understorey would have been taken out completely. I appreciate that some of the exceptions may be counterintuitive, but it is important to do the homework and understand the reasons for some of these things before suggesting that they are somehow improper or not correct. People put a lot of effort and energy into this sort of stuff, so it is perhaps good to appreciate that more widely.
Soil erosion and water body buffers were other issues that the noble Baroness, Lady Young, and others raised. Perhaps I could take them both away, come back with some more information and write to her.
There were quite a lot of questions on people cutting hedges in their gardens. Why can they do that when farmers have to obey the rules? How does that extend to golf courses, public authorities and all the rest of it? Again, this is a pretty challenging area. We do not live in a police state; we are trying to do our best. Education, not enforcement, is the best way of solving this problem. We are consulting on wider issues with hedges. We are just about to start that consultation, which will be an interesting exercise, because the practicalities of enforcing against someone cutting their garden hedge are pretty challenging and I am not sure that we want to get into that space.
A number of noble Lords raised specific issues with the timing of when you can cut a hedge and when you cannot. It is a trade-off between farming and the wider environment. Farmers have other things to do and, by the time we are into September, they are planning for next year and have a lot of other tasks. Sometimes there is a little gap when this can be done. I do not have information on the specific example of a dormouse, but 99% of species have fledged and gone by early September.
Baroness Young of Old Scone (Lab)
I think the noble Lord needs to look at the latest information about the impact that climate change is having on extending breeding seasons. It is notable; I will send him some.
Lord Douglas-Miller (Con)
I have not looked at that and I appreciate that these dates are moving, but we have to start somewhere and those dates have been chosen for the moment.
The noble Baroness, Lady McIntosh, quizzed me on two-acre fields or less, and why they might be exempt. I hope everybody can understand that, if you have a smaller field, taking up a two-metre buffer zone around the edge of it will have a disproportionate impact. The Government recognise that and it came through pretty clearly in the consultation.
Baroness McIntosh of Pickering (Con)
Just to clarify, the question was why under five hectares was being brought in under the de minimis rule.
Lord Douglas-Miller (Con)
That was to try to include as many of our precious hedges as we can; that is still quite a big space. Again, through the consultation, it did not seem to cause a great deal of alarm, so it seemed perfectly sensible to include it.
The noble Lord, Lord Teverson, asked a number of questions about who is accountable, who is the regulator and who is the enforcer. The regulations will be enforced by the Rural Payments Agency on behalf of the Secretary of State. The Rural Payments Agency has a history of enforcing the hedgerow maintenance requirements under cross-compliance rules. It is well placed to develop and implement the new enforcement regime for all these regulations. The RPA will be taking an advice and guidance-led approach to enforcement.
On his supplementary question of who you should ring if you are driving along and you see someone doing damage to a hedgerow, I guess that question has always been there. Presumably, people will ring the police in the first instance if they see something going wrong, and they will guided by them to the appropriate agency. In this case, it is the RPA.
The noble Earl, Lord Russell, enquired about the definition of “important” hedgerows. The definition used for these regulations is designed to allow them to replicate as closely as possible the requirements for hedgerow management under cross compliance. For this reason, it was not practicable to use the same definition as is used in the Hedgerows Regulations 1997.
There were a number of slightly more detailed supplementary questions on which I will write to the noble Earl.
I am grateful for the thoughts and questions raised in today’s debate. They underline the value that so many of us place—
Lord Teverson (LD)
Forgive me—I do not want to take up the time of the Grand Committee or the Minister; we have taken up a fair bit of time. However, I would value a clarification on Cornish hedges, which are very specific, at some point.
Lord Douglas-Miller (Con)
My apologies—I think I can answer that question. Those are not covered by these regulations but they are being consulted on under the new ELMs model, so they will be included there.
In conclusion, I hope your Lordships will support these important regulations. I commend them to the Committee.
Procurement Regulations 2024
(7 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Neville-Rolfe
That the Grand Committee do consider the Procurement Regulations 2024.
Relevant document: 21st Report from the Secondary Legislation Scrutiny Committee
The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)
My Lords, this statutory instrument represents a significant legislative step in implementing the Procurement Act 2023, which seizes the opportunity following Brexit to develop and implement a new public procurement regime for more than £300 billion-worth of public contracts. The new regime helps deliver the Prime Minister’s promise to grow the economy by creating a simpler and more transparent system that will deliver better value for money, reduce costs for business, especially small business, and improve the public sector. I thank colleagues across the Committee for the work that we did together on the Procurement Act.
These regulations bring to life and set out the practical detail necessary for the functioning of many of that Act’s provisions. Many of the measures set out the detail required by the Act to enable contracting authorities to conduct their public procurement in an open, transparent and informative manner. These include the content of various notices that will be used to communicate opportunities and details about forthcoming, in-train and completed procurements. Such contents would typically include the contact details for the contracting authority, the contract subject matter, key timings for the procurement process and other basic information about a particular procurement that interested suppliers would need to know. The provisions also cover the digital measures that authorities must follow when publishing notices, such as putting them on a central digital platform and what to do in the event that the platform is unavailable.
The transparency measures will help to open up opportunities with the public sector to a greater range of businesses, helping drive down price and increase innovation. They will provide contracting authorities with the data they need to collaborate better, drive value for money and identify cost savings in their procurements, and they will give Ministers, legislators and auditors detailed information to monitor for signs of waste and inefficiency.
Other provisions to supplement the Act include various lists in the Schedules so that procurers can identify which obligations apply in a particular case. These include a list of light-touch services that qualify for simplified rules and a list of central government authorities and works which are subject to different thresholds. The regulations disapply the Procurement Act in relation to healthcare services procurements in scope of the NHS provider selection regime introduced in January this year. These enable the procurement of NHS patient treatment services, such as NHS paramedical services or cancer treatments, to be governed by the free-standing regulatory scheme that was specifically designed for those services.
The regulations also set out how devolved Scottish contracting authorities are to be regulated by the Act if they choose to use a commercial tool established under the Act or to procure jointly with a buyer regulated by the Act. They also amend the Act to provide that reserved Northern Irish private utilities are not required to publish preliminary market engagement notices. This is because the Government do not wish to regulate the procurement of private utilities any more than is necessary. The regulations apply to reserved procurement in England, Wales, Northern Ireland and Scotland and to procurement by a transferred, that is to say devolved, contracting authority in Northern Ireland. The Welsh Government have laid similar secondary legislation which will apply in respect of devolved procurement in Wales and elsewhere if the devolved body carrying out that procurement operates mainly in Wales.
The Government have consulted fully with stakeholders throughout the reform process and we published our response to the formal public consultation on these regulations on 22 March 2024. The consultation evoked a good response from the various representative sectors and confirmed that the proposed regulations generally worked as intended. Many stakeholders urged that certain matters be clarified and explained in guidance and training, which is a key part of the implementation programme that we are rolling out across the UK. We have listened to feedback and our response confirms a number of areas where the consultation led to technical and drafting improvements.
Contracting authorities and suppliers have made it clear that they will need time once this instrument has been laid to adapt their systems and processes before we go live, so the Government have provided six months’ advance notice of the new regime before the regulations come into force on 28 October 2024. Noble Lords should also be aware that the instrument has been corrected to remove drafting references and a couple of typographical errors which crept in during the publishing processes. I beg to move.
Lord Fox (LD)
From the attendance, we have established that more people are interested in hedgerows than procurement. I have participated in all of what I would call the post-Brexit plumbing legislation. Although this was not the most controversial part of that legislation, it has certainly taken a long time for us to get here. The Second Reading in your Lordships’ House was just five days short of two years ago, and we have to wait another six months for these rules to be implemented, so it will take two and a half years.
Hopefully, we have improved it. As some noble Lords will remember, the Minister was at that time a Back-Bencher, before she was propelled meteorically to her current role. I thought this correction was an homage to the original Bill when it was published. It arrived very quickly, with hundreds and hundreds of government amendments, which is part of the reason why it took so long for us to get here. But we have got here. One important thing that the Minister touched on, which was stressed very early in the process, was the central importance of the central digital platform. It would be helpful if she could confirm that that platform is 100% ready to go—I think we would all hope so.
In Regulation 11, the list of the “connected person information” is huge. Although the Minister said that this makes it simple for smaller companies, it will require a great deal of effort initially. Can she confirm that this is a one-off effort that those companies have to make? Will this central digital platform be able to replicate that information—copy and paste—or will people have to enter the same information, as they do now on a variety of digital platforms, often handfuls and sometimes dozens of times? Can the Minister confirm that that is how the new system will work and that it will work that way on day one?
Contracting authorities are clearly vital and their understanding of this big set of rules will be central to the functioning of this. Can the Minister tell us in some detail how they are being brought up to speed with what is required of them to make this work? In particular, how will they bring SMEs into the picture, where they have not been before? How will the contracting authorities engage SMEs? How will SMEs know that they are now in with a shout and have an opportunity? What information will go out to our SMEs so that they can properly participate in public procurement? The Minister did a lot of work, as both a Back-Bencher and a Minister, to put these rules in place, and it is important that her work is now properly propagated out to the market.
I should remember the answer to this, because I am sure we went into it, but utilities are treated substantially differently and there are different processes here. The Explanatory Notes say that we will create a “utilities dynamic market”. I do not have the faintest idea what that is, so can the Minister please say what it is and why we should celebrate it?
At the end of her speech, the Minister talked about the position of the NHS. She would be surprised if I did not bring that up. Perhaps she tried to pre-emptively head it off at the pass. There was a lot of debate and my noble friend Lady Brinton very much led on that. We were not happy, in a sense, with the way that health services were disapplied.
Regulation 43 talks about the disapplication of “regulated health procurement”. That is not the phrase that the Minister just used, so can she again define “regulated health procurement” for the record? She listed the fact that there is a custom-made process for those services in the NHS, but we should not be too complacent, because the first test of the new NHS rules on competition and procurement found against the NHS. The rules that were being vaunted just now are not being used properly within the NHS. The first review panel set up to oversee commissioning decisions found against the commissioner and advised it to abandon its procurement of ADHD services; it was the Cumbria integrated care board that failed to do this properly.
I know that the NHS falls under a different department, but the Cabinet Office is uniquely interested in procurement right across government. There should be no complacency about the system that is now being used with the NHS. The experts on procurement exist within the Cabinet Office and I would like the Minister to say now that the Cabinet Office will engage those experts to advise health boards on how to use their own rules properly—otherwise, we will waste a ton of money on appeals and rulings against health boards. It is quite clear that they do not have the capability to apply their own rules and that they need help. They will not get that from their own people, because it is not there; the expertise for procurement is within the Cabinet Office. So I want the Minister to say that it will step in and make sure that health boards know how to apply their own rules. With that, as it has been a long time coming, let us get this going.
Baroness Chapman of Darlington (Lab)
My Lords, we supported the introduction of the Procurement Act and we recognise that, following our departure from the EU, the opportunity arose to reshape the way that procurement is regulated in the UK. There are some steps that we particularly welcome, such as the transparency measures in the central digital platform, and steps to make procurement more straightforward for smaller businesses and social enterprises.
However, as my friend Nia Griffith MP, the shadow Minister in the Commons, said when this was discussed there last week, we maintain the view that this Act was something of a missed opportunity. Can the Minister outline for us what, in this new flagship procurement legislation, would prevent scandals such as the PPE VIP lane from happening again in the future?
I listened carefully to the questions from the noble Lord, Lord Fox, about NHS procurement and the need to share the expertise of the Cabinet Office with the Department of Health and Social Care. I would be interested in the Minister’s response to that, as it speaks to issues with working across government and between departments, which we understand can be tricky. However, in this instance, there seems to be a special role for the Cabinet Office to assist in preventing problems from arising in the future. We never want to see a repeat of the situation in which friends and party donors are given the first bite of the cherry, while decent, skilled local businesses are denied the same opportunity. It is difficult to see anything in the regulations that would specifically prevent these problems, so it would be useful to hear from the Minister. I assume, because I expect she was asked this repeatedly during passage of the Bill, that she can outline her Government’s position on this point.
Although we are disappointed on that specific issue, we hope that the Act serves what is probably a shared aim across all parties: to simplify and encourage more involvement from businesses that are the backbone of our economy, especially in the regions and nations of the UK where access to government contracts has been more challenging. We want to see wealth shared more fairly across the country, with businesses that employ local people and spend in their local economies given the same chance as other large businesses.
Baroness Neville-Rolfe (Con)
My Lords, I am grateful to the two noble Lords who spoke in this debate. I well remember moving from poacher to gamekeeper and working across the House to try to improve what was a very important Bill, not least because of the scale of procurement that it reached. Indeed, the Act embodies our ambition to open public procurement up to a more diverse supply base, making it easier for new entrants such as small businesses—the noble Lord, Lord Fox, rightly mentioned them; indeed, all speakers mentioned them—and social enterprises. Remember that we added social enterprises during the passage of the Act, as well as measures to improve prompt payment for small businesses—those help small businesses—and the transparency of opportunities on a single platform. The Act also enables basic supplier details to be submitted only once, which picks up on the question asked by the noble Lord, Lord Fox.
In response to expert discussion in the House, I introduced additional measures during the passage of the Act. These included a new duty on contracting authorities to have regard to the particular barriers facing SMEs and to consider what can be done to overcome them, as well as 30-day payment terms on defence and utility contracts and through the supply chain. We removed unnecessary obstacles relating to audited accounts and insurance as conditions of participation—the noble Lord, Lord Mendelsohn, put down amendments on those issues, I think—which can prevent SMEs winning public contracts.
The Act introduces a new centralised debarment regime, including a public debarment list, and allows the Government to investigate supplier misconduct, including taking action to protect the public supply chain. Of course, the procurement review unit will manage the new debarment regime, including investigating suppliers, while the new national security unit for procurement will manage the investigation of national security-related debarment cases. Importantly, the PRU will also oversee compliance with the new regime and will have the power to investigate non-compliance. These reforms will shape the future of public procurement in this country for many years to come, ensuring a modern and flexible procurement regime that will deliver better outcomes for taxpayers, service users and business.
I turn to the questions posed by the noble Lord, Lord Fox. In respect of the information that suppliers have to provide for connected persons, I am happy to advise that, as long as the information remains consistent, suppliers will have to supply this information only once when they register on the online system, which they can do at any time. When bidding for a procurement, they will need merely to confirm that the information they previously provided in respect of connected persons is still current, in the spirit of One Login.
A key objective of the Act and regulations made under it is to reduce the burden on suppliers by enabling them to store core supplier information in one place; that is called the supplier information service. The core information will then be provided to contracting authorities by each supplier who wishes to participate or bid. This reduces the time taken by suppliers to bid for public procurement opportunities by ensuring that common data can be submitted efficiently and effectively, without having to duplicate core information. This is of real benefit to business, particularly SMEs.
A utilities dynamic market is a pre-approved list of suppliers from which utilities can call off. Unlike a regular dynamic market, contracts are advertised only to members of the market. The online system will be operational and ready for use when the new regime comes into force on 28 October. We are working with e-procurement system providers to ensure their readiness. New notices will be phased, with the timings set out in the commencement regulations, which will be made shortly and will set out when relevant obligations will take effect. This reflects consultation. The phasing of the notices has been designed so that notices used in the planning, tender and award phases of a procurement will all be available from the outset. There will be a natural lag until later notices are required, so those will be brought in in phases.
I also mention the work that the Cabinet Office, which obviously co-ordinates all this, will do to support the new regime. It took me through it this morning. I know that the noble Lord, Lord Fox, was interested in the detail. There are four key elements. First, there are knowledge drops, which are a range of on-demand presentations providing an overview of all the changes in the legislation.
Secondly, there are e-learning modules, which consist of 10 one-hour modules and conclude with a skilled practitioner certificate. This core training product is open to all staff from contracting authorities and named individuals who regularly undertake procurement activity on their behalf. I will take away the point that was made about health experts and see whether it is possible for them to access some of this training material, as that seemed a good point to me.
Thirdly, there will be an advanced course of deep dives—a three-day intensive course for a smaller group who have completed the e-learning modules. They are the advanced commercial practitioners who will need to become experts. Fourthly, we are supporting communities of practice, building on good online practice, where practitioners can support each other by sharing, discussing and reflecting on best practice and the challenges and opportunities within the regime.
Noble Lords will know of my passion for helping small businesses. Clearly, we will keep an eye on the training, which starts with the contractors, to make sure that we get feedback from small businesses so that we know that the regime is working well.
The concept of dynamic markets is a good one. It means that suppliers can know in advance that they will be eligible to bid. You will get several suppliers who can all bid, and it makes the system quicker and more efficient, without undermining the safeguards that we need.
The Procurement Act has improved and strengthened safeguards, with, for example, the ability in Section 42 for the Government to set out in regulation specific public contracts that can be awarded directly for a limited time for the protection that might be needed. There are new transparency notices in Section 44, as detailed in Regulation 26, and more detailed conflict of interest provisions, including the preparation of a conflict assessment under Section 83. We discussed this at great length because we had the backdrop of PPE, and I remember well how we learned from that experience. That is one of the reasons why there are lots of different transparency measures and controls in these regulations. Even if we had to move to direct awards because of some national crisis, the controls would be applied in an appropriate way. We have tried very hard to work at that.
On healthcare, where I very much understand the noble Lord’s point, I should offer to write because he raised a point about a Cumbrian example that I am not familiar with. I made it clear at the beginning that I very much understood that in some areas, the NHS will be doing its own thing, but in other areas such as the construction of hospitals, it will be subject to the broad procurement rules. I have also said that I will take a look at ensuring that the health side takes advantage of the excellent training and online briefing that the Cabinet Office team has worked so hard on.
Lord Fox (LD)
I thank the Minister for her point on the NHS and the health service and I look forward to receiving that letter.
There are just two things. I asked a specific question about the readiness of the central digital platform. I listened very hard indeed. I turned my hearing aid up, and I did not hear the Minister say that it is ready. In fact, I heard I heard her say that the department is working with contractors, and then she started talking about phases. That worries me, because of the centrality of this system in order for the Procurement Act to work. Can the Minister give some more detail on that? When will it be 100% ready?
Baroness Neville-Rolfe (Con)
I was trying to be open and honest, as I always am, by emphasising what will be clearly ready and where we are bringing other things in in phases. The first stages will obviously be ready, and that is why we are bringing the arrangements in at the end of October, which fits into our deadlines, and then there will be other material coming through. However, with luck, the system we have set up for online briefing will ensure that people know where they are, and I think it will be like other policies I have been involved in. You get a sort of bell curve. To begin with, the new and innovative people use the system; and then gradually, as more material comes on and it gets around that actually, it is really good, you will get more people coming in and more SMEs. I am very keen to work with them to make sure that the share of the cake that SMEs have in procurement, which has gone up in the past couple of years, will continue to rise, and rise very substantially.
I repeat that the online system will be operational from 28 October. The notices will be phased, and timing will be set out in commencement regulations. Obviously, the notices required from 28 October will be available and ready to use. That confirms what I have said, but it gives the extra information that there will be commencement regulations. We will make sure that noble Lords who are interested are aware of them when they are finalised.
I repeat my thanks to all involved in the work. Actually, there is a succession of Ministers whom I have to thank. There are noble Lords right across the House who have been hugely helpful by challenging us and supporting us when we are right. I also thank the officials because it has been a very, very long slog. The new procurement regime starts on 28 October, and after that they will obviously have even more to do. Thank you very much. Please join me in supporting the regulations.
Armed Forces (Court Martial) (Amendment) Rules 2024
(7 months ago)
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The Earl of Minto
That the Grand Committee do consider the Armed Forces (Court Martial) (Amendment) Rules 2024.
The Minister of State, Ministry of Defence (The Earl of Minto) (Con)
My Lords, the statutory instrument before us today amends the 2009 court martial rules by introducing a new procedure for the court to view sentences under new Sections 304D and 304E of the Armed Forces Act 2006.
With the leave of the Committee, I will set out the provisions to which the statutory instrument relates. Section 304D enables a person who has been sentenced by the court martial to have their sentenced reviewed to take account of assistance that they have given, or offered to give, to an investigator or prosecutor under an agreement of the Director of Service Prosecutions. A case may be referred for such a review only if the Director of Service Prosecutions believes such a referral to be in the interests of justice. The review in court may reduce the sentence in return for the assistance given or offered.
A person who received a sentence that was fixed by law—for example, a life sentence for murder—may have that sentence reviewed only if they pleaded guilty to the offence for which they received that sentence. A review may further discount a sentence that has already been discounted or reduced if the person sentenced gives or offers to give further assistance. Conversely, Section 304E provides for the sentence of a person to be reviewed if that person received a discounted sentence in return for assistance offered to an investigator or prosecutor and then failed to give that assistance.
If the review in court is satisfied that the person knowingly failed to give the assistance, the provision allows the court to increase the sentence to take account of that failure. However, it can be increased only up to a term not exceeding the level that the court indicated would have been the sentence had there been no agreement to provide assistance. Again, a case may be referred for such a review only if the Director of Service Prosecutions believes such a referral to be in the interests of justice. These provisions closely follow those contained within the Serious Organised Crime and Police Act 2005, which applied to the civilian criminal justice system.
I draw the Committee’s attention to the right of appeal contained in both 304D and 304E, providing for appeals for any decision coming out of a sentence review. This appeal mechanism is available for a person whose sentence has been reviewed as well as the Director of Service Prosecutions who may also appeal against a decision on review. The Armed Forces (Appeal Against Review of Sentence) Regulations 2024, which were laid before Parliament on 13 May and is subject to the negative procedure, regulates Section 304D and 304E appeals.
The statutory instrument is somewhat technical in nature. It inserts a new Part 14A into the 2009 court martial rules to set out the basic court rules governing review of sentence proceedings. It also notes various technical amendments to the general provisions of the court martial rules so that they apply to review of sentence proceedings. For example, Rule 6 of these rules amends Rule 23 of the 2009 rules, so that if the court martial dealing with a review of sentence proceedings decides to substitute the original sentence with a new one, that substituted sentence must form part of the record of proceedings.
As your Lordships will see, the changes are technical, but they are needed to ensure that Sections 304D and 304E work as intended. I beg to move.
Baroness Buscombe (Con)
My Lords, I respond to the regulations by saying that I very much support the proposals. I do so having compared the process for court martial with that for discharge from the Royal Navy on medical grounds. The latter is the most inhumane and unfair process that I have ever come across. I ask the Committee’s leave to bear with me for a few moments so that I can put on record why I am unashamedly using this opportunity to speak on court martial to alert the Minister to the truth about the process applied to serving personnel who may not be operating at full capacity in the Navy due to an illness, an illness that was most likely contracted or occurred while in service.
The key point is that a court martial allows serving personnel to be represented and the opportunity to make his or her case to rebut the charges in person. In contrast, the Royal Navy’s employability board acts behind closed doors, even when someone has asked, with detailed reasons and letters of support from others within the Navy and the medics, for his or her case to be reviewed. Instead of an interview with serving personnel in person, in the first instance, the board sends out what it calls a signal, which means an alert for a line manager to call an individual and say, “You’re discharged”. The line manager then informs that individual that they are discharged and because the line manager most probably does not know what the process is because he or she has not been told, he or she unknowingly gives the individual incorrect advice about an appeal process and timing.
No reasons or explanation for the discharge are given at that point, so an individual who wishes to appeal that decision is up against a time limit and cannot know what they are appealing against. Eventually—too late—a letter couched in the most appalling, unpleasant language arrives in the Navy post. It basically writes someone off, even if that individual has skills, experience and capabilities of which we know the Navy is in dire need. The result is that years of training, service, commitment and adaptability are wasted, and an individual who has served his or her country is devastated, on the floor. No one has even bothered to sign that letter.
If the individual asks for their case to be reviewed and submits detailed reasons, again, there is no interview by the employability board and no consideration of a possible transfer to other branches to utilise experience and capabilities, attributes that may be supported by others in the Navy who work with and know the applicant. No reference is made where an individual who has moved heaven and earth to return to 100% fitness, most probably at their own expense, confirms a marked improvement or an expectation of full recovery in the short term. No reasons are given in the event that the review is unsuccessful. Another signal just goes out to the line manager stating “no change”.
Will the Minister therefore take time to meet me so that I can share in more detail this unacceptable and frankly shocking truth? I believe it sends a terrible message, not least to all those who have signed up to the Armed Forces covenant. In a court of law, that message would not stand up to the most basic principles of transparency and fairness, coupled with the accountability of the board.
I close by confirming that no armed forces personnel, serving or veteran, are aware of my decision to make this statement today.
Lord Thomas of Gresford (LD)
My Lords, it is a privilege to follow the noble Baroness’s speech. I hope that she has my success in dealing with the Navy. Many years ago, I put down a Question to the noble Lord, Lord Bach, who was then in the Ministry of Defence, about the practice of marching the defendant in a court martial into the court at the point of a cutlass. I thought that that was perhaps not appropriate when there is the presumption of innocence and that it was not appropriate in our day and age. Between putting down the Question and getting the Answer, the ancient custom was abolished for all time.
It is a privilege to be debating with the noble Earl, Lord Minto. I am sure he does not remember this, but we last exchanged words at the gate of his home, Minto House in Scotland. He may remember that I expressed my huge admiration for his ancestor, the first Earl of Minto, who was a very liberal governor-general of India and a wonderful politician for whom I have the greatest respect and about whom I have written a lot. So it is a pleasure to be in the noble Earl’s company again.
I declare an interest as the president of the Association of Military Court Advocates, although I am not speaking on its behalf and the views I express are not the considered view of that association.
As the noble Earl said, this draft SI derives from Sections 304D and 304E, which were inserted into the Armed Forces Act 2006 by the Armed Forces Act 2016. That was eight years ago, not now, so perhaps the Minister can explain why it has taken eight years for the appropriate secondary legislation to be put in place.
Section 304D applies where the review is to consider a reduction of a sentence for co-operation or assistance. Section 304E applies where a person has been given a discount on sentence but has failed to co-operate. In my experience in the Crown Court, the common law position was that, where a convicted person wished to take advantage of any assistance he may have given or was offering to the prosecution, a “text”—it was commonly called that—was prepared by the police or the prosecution and handed to the judge in chambers. This was a secretive procedure, and usually the defendant had to rely upon the good faith of the police or the security services. He did not see the text and the judge did not refer to it in court. Your Lordships will appreciate that giving assistance to the investigating authorities is positively dangerous for a person who has been sentenced and is serving a prison sentence.
This clandestine procedure was given statutory force in the Serious Organised Crime and Police Act 2005, as amended by the Sentencing Act 2020. I note that the Explanatory Memorandum does not refer to the 2020 Act, and I wonder whether it was prepared in 2016, in the light of the Armed Forces Act, prior to the amendments to SOPA.
The civilian provisions in SOPA introduced the possibility of a review of a sentence after it had been passed and while it was being served. They involve a careful series of steps to be taken by prosecutors, and the consideration of a number of factors by the court. To qualify for a review of his sentence, the offender may offer to give King’s evidence, as it is called, in a subsequent trial of his associates, or he may simply provide intelligence of their activities, or both. In most cases, the anonymity of the prisoner is maintained for obvious reasons. Copious and lengthy guidance notes for prosecutors are published by the Crown Prosecution Service, covering a variety of topics, including the criteria for allowing a review, the obtaining of a written agreement, the conduct of interviews, the need to inform the police or other investigating authority of the proposal, the documents to be supplied to the court and so on. My first question is: will the Service Prosecuting Authority or the Director of Service Prosecutions rely on those guidance notes, or will specific Service Prosecuting Authority guidance be published?
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, I remind the Committee of my entry in the register of interests, specifically my roles with the Royal Navy. I thank the Minister for his comprehensive introduction to this piece of secondary legislation. Subject to what we have heard from the noble Lord, Lord Thomas, this is straightforward and I do not plan to delay the Committee for long. As my friend in the other place, Luke Pollard, made clear, His Majesty’s Opposition do not object to this legislation, but we do have some questions pertaining to the detail and government policy.
The outlined rules are not controversial and Labour Party policy is clear that we would like to see more, not less, criminal activity explored through the civilian courts—not least murder, manslaughter and rape. Given that these amendments bring the service justice system further in line with the criminal justice system, is it not time that MMR committed in the UK by service personnel should be included in the civilian justice system? This is all the more important given recent scandals.
Can the Minister expand on the decision to limit the jurisdiction of these amendments? Why do they not apply to Gibraltar? There is a growing body of Armed Forces legislation that applies to UK personnel everywhere except Gibraltar. Why should offences committed in Gibraltar be treated in a different and out-of-date fashion, not in line with what we now consider to be best practice?
The Minister in the other place, Dr Murrison, was asked to expand on the rationale of the eligibility criteria. He opted not to do so. Can the Minister assure the Committee that consideration will be given to previous service when considering the eligibility criteria? Will relationships built during years of service but not at the time of the alleged offence be considered? This is not in the Explanatory Memorandum. What about the role of sustained joint operations? Will people who serve in a sister unit still be eligible to sit on a relevant court martial?
Broadly, this is a welcome update. I look forward to hearing from the Minister on those points of clarification. Before I finish, I also thank the noble Baroness, Lady Buscombe, for raising the challenges surrounding medical discharge. I am sure the Minister heard her testimony and will seek further details on the circumstances that she raised.
The Earl of Minto (Con)
My Lords, I thank noble Lords who have contributed to this debate, in particular my noble friend Lady Buscombe for her unsettling but powerful speech. I am more than happy to meet her and discuss in full detail the points she raised. Given the conversations we have had in the Chamber about forces numbers, recruitment and retention, it is extremely disturbing to hear that this is dealt with, as she said, in an inconsiderate and inhumane way. It is not acceptable and we will take that up.
I will probably catch most of the questions. I do not think I am particularly suited to the issues in law that the noble Lord, Lord Thomas of Gresford, raised, so, if I may, I will write in full detail to him about them.
The question of why it has taken so long has been addressed, but I fully agree that eight years is a very long time to get to this point. There has been activity for some while but there has been a certain amount of toing and froing and the process could have been speeded up. As I said, we are not intending to alter the process; we are just following up the existing one. That is one of the key points.
The noble Lord, Lord Thomas of Gresford, asked how this will work in practice. It is important to note that a review itself is not an appeal against a sentence but an entirely separate process that takes place because new circumstances have arisen. The review process will not be inhibited by the fact that the Court Martial Appeal Court may already have heard or decided against the original sentence or whether the sentence was varied on appeal. Again, it is a separate process. I fully understood the noble Lord’s point about the sensitivity of some of these issues concerning whether these reviews should take place in person rather than virtually, on Zoom. We will certainly consider that.
Although the equivalent measures in the criminal justice system are rarely used, they are still an important feature of the justice system, as noble Lords will agree. There will be cases where the evidence from a witness or offender/defendant could be crucial but fears about self-incrimination might stop an individual coming forward and providing essential information. As with any case, prosecutors need to consider competing public interest issues, which, in these types of cases, include issues relating to the victim of the original offence.
The commencement of these provisions from 2016 is well overdue and, as the noble Lord, Lord Thomas of Gresford, said, this brings a sensible improvement to the service justice framework. I am sure the Committee will appreciate that it is not appropriate for me to speculate on how and when these provisions may be used in the future.
The Armed Forces Act does not extend to Gibraltar, so the statutory instruments made under the Act do not extend there either. The extent is simply the jurisdiction in which Armed Forces legislation forms part of the local law. Gibraltar is referenced as an exception, as Armed Forces legislation extends to all other British Overseas Territories. I do not know—I will find out and write—but I imagine that it is a historical quirk from some point in the past.
Finally, the whole question of MMR is contained within this, and it is an extremely important and valid point. We are trying to align these amendments with what is currently in the civil criminal law.
I hope the Committee will agree that, although these measures are technical, they are necessary to improve the functioning of the military justice system, and I therefore commend this instrument to the Committee.
Securitisation (Amendment) Regulations 2024
Lord Roborough
That the Grand Committee do consider the Securitisation (Amendment) Regulations 2024.
Lord Roborough (Con)
My Lords, this SI forms part of the Government’s ambitious programme to deliver a smarter regulatory framework for financial services and to replace areas of assimilated law, formerly known as retained EU law, in financial services with an approach to regulation that is tailored to the UK. That includes the EU law relating to securitisation. In January this year, Parliament agreed to establish a new legislative framework to replace the assimilated securitisation regulation of 2017. This included revoking regulations from UK legislation to enable the UK financial services regulators, the PRA and the FCA, to make rules for securitisation. This framework will come into effect from commencement on 1 November 2024.
Occupational pension schemes are also subject to securitisation due diligence rules. Occupational pension schemes are supervised by the Pensions Regulator. However, the Pensions Regulator does not have equivalent statutory rule-making powers to the PRA and the FCA and so cannot make the necessary rules for occupational pension schemes. These rules need to be created in legislation instead. Therefore, this instrument restates due diligence requirements for occupational pension schemes which invest in securitisations. HM Treasury’s approach is necessary to avoid a regulatory gap after the coming into force of the revocation of the securitisation regulation of 2017 and to ensure consistency in due diligence requirements for institutional investors, whether subject to forthcoming FCA and PRA rules or supervised by the pension scheme regulator.
This instrument maintains the Government’s existing approach whereby most rules governing occupational pension schemes investors are set through legislation. Legislating for these changes now has allowed the Government to reflect the outcome of the regulators’ consultations and final policy views on due diligence requirements for other financial services firms. The approach also ensures that occupational pension schemes face the same rules as other firms. These restated due diligence requirements include targeted adjustments to ensure that they are more principles-based and proportionate—for example, streamlining the amount of information required to assess risks and clarifying responsibility for due diligence requirements where investment decisions are delegated. This should reduce regulatory burdens on occupational pension schemes and support their participation in the UK securitisation market.
This SI designates the FCA as responsible for supervising any occupational pension schemes that are acting as originators, sponsors or special purpose entities for securitisations. This aligns the supervision of occupational pension schemes with other firms which are undertaking these activities. In practice, HM Treasury envisages that the impact will be minimal as neither my department nor the regulators is aware of any occupational pension schemes engaged in these activities. However, the Government wish to anticipate the possibility and deal with it.
This SI also makes two changes to make the investor protection framework in the UK more effective and competitive. It restates the prohibition on transacting securitisations through securitisation special purpose entities in high-risk jurisdictions. These are the three jurisdictions subject to FATF measures, namely Iran, Myanmar and North Korea. The SI modifies the prohibition in two ways. It expands this restriction to investors in securitisations as well as originators and sponsors of securitisations. However, it streamlines the requirement, reducing regulatory burdens by removing a redundant prohibition on engaging in securitisations in jurisdictions which do not comply with certain OECD model tax agreements. This also removes ambiguity from the requirement.
HM Treasury published a draft SI and policy note on these changes in July 2023 which received generally positive industry feedback on the principles-based approach to restated provisions. Together, the changes made by this SI will ensure the consistency and integrity of UK securitisation regulation for institutional investors in securitisation, whether subject to regulator rules or restated provisions. The changes also ensure that the UK’s requirements are more proportionate, streamlined and principles-based, whether for due diligence requirements on occupational pension schemes as institutional investors or for compliance with prohibitions on securitisations in high-risk jurisdictions. I hope that the Committee will join me in supporting these regulations. I beg to move.
Lord Sharkey (LD)
My Lords, we welcome this SI and will support it today. Its provisions are clearly necessary and are mostly explained clearly in the accompanying documentation. I would be grateful, however, if the Minister could say a few words about commencement and address a few questions.
Two provisions seem to come into force when the instrument is made, and the rest on 1 November later this year. As I read it, this arrangement aims, in essence, to correct a mistake in January’s SI and to give the regulators time to introduce the envisaged new rules on the repeal of existing EU law on 1 November. Is that correct? I would be happy to wait for an answer.
We have a few questions arising from HMT’s policy note of July last year, dealing with this SI. In paragraph 4.8, HMT says that
“the FCA will be provided with a specific rulemaking power to make due diligence requirements for small, registered UK AIFMs who are institutional investors”.
What progress is being made in this area? When can we expect to see the necessary draft SI?
I turn to paragraph 4.13, which explains that,
“where an OPS delegates its investment management decisions and due diligence obligations for investing in a securitisation to another institutional investor (whether they are another OPS, an FCA firm, or a PRA firm), sanctions for failure to comply would be imposed on the managing party, and not the delegating party”.
This does not appear to work the other way round. Paragraph 4.14 says:
“Where an institutional investor who is an FCA firm or a PRA firm delegates its investment management and due diligence obligations to an OPS, sanctions for failure to comply would not be imposed on the OPS as the managing party”.
Does this not let the OPS off rather lightly? Why should it not operate to the same standards of due diligence as FCA and PRA firms?
Paragraphs 4.16 and 4.17 deal with matters to which the FCA and the PRA must have regard. Paragraph 4.16 says that
“the Sec Reg contains a requirement for the originator, sponsor, or original lender of a securitisation to maintain a material net economic interest in the securitisation of at least 5% … Once the Sec Reg is repealed, the FCA and the PRA are expected to make rules covering some of the same areas, such as risk retention, for different sets of firms”.
It explicitly acknowledges:
“This risks fracturing the regime which currently exists and increasing complexity”.
The next paragraph, paragraph 4.17, proposes what seems to be intended as a remedy. It acknowledges the importance of the regime being “clear and coherent” and says that
“this SI requires the FCA and the PRA to have regard to the coherence of the overall framework for the regulation of securitisation when making rules relating to securitisation”.
It is not immediately obvious that this rather loose and third-order requirement will prevent the risk of fracturing the current regime and increasing complexity. Replacing a simple, generally applicable risk retention scheme by a layered and necessarily more complicated scheme seems a retrograde step. Can the Minister say what the current thinking is and, if we remain committed to this approach, why?
I acknowledge that I have asked some rather detailed questions. Of course, I would be happy if the Minister were to write to us in response.
Lord Livermore (Lab)
My Lords, I am grateful to the noble Lord for introducing this SI and setting out its purpose. I welcome him to his place.
As the noble Lord noted in his opening remarks, this statutory instrument forms part of a wider programme to deliver a smarter regulatory framework for financial services. We support this SI as it closes a potential gap in regulation. We believe that it is part of an important package of reform aimed at developing in our country a securitisation market that contributes to growth in the real economy.
I have just two questions. First, I understand that the FCA and the PRA expect to consult on further changes to their securitisation rules in Q4 2024 and Q1 2025. Is the Minister confident that those timelines will be met? Secondly, in the event of a Dissolution of Parliament, will the regulators be under any rule-making restrictions during the regulated period? Does the Treasury have a clear schedule of SIs that require consideration by Parliament in the remainder of the current Session? I thank the noble Lord in advance for his answers.
Lord Roborough (Con)
My Lords, I am grateful for the contributions to this short debate. I will try to answer some of the detailed questions that were asked as well as I can but I will have to write on some of them, I am afraid.
Let me first respond to some of the points made by the noble Lord, Lord Sharkey. On timing, we expect that commencing the regulations on 1 November will give the industry time to prepare for the PRA’s and the FCA’s new rules, which regulators will consult on. There will be no further legislation. The regulators are consulting on rules to complement the securitisation SIs.
This will not specifically answer the question on risk retention but the UK’s approach currently aligns with the recommendations from the International Organization of Securities Commissions on; we therefore consider this to be best practice internationally at the moment. However, I understand that the noble Lord’s question went further than that, so I will address that.
This SI represents an important step in finalising the UK’s new financial services framework for securitisation. It complements the Securitisation Regulations 2024 by ensuring consistency on due diligence requirements for all firms participating in the securitisation market. It restates an important prohibition on securitisations in high-risk jurisdictions. The SI was scrutinised by the Secondary Legislation Scrutiny Committee, which made no comment on it and did not draw it to the special attention of the House. A de minimis impact assessment was published alongside this SI; it indicates that, on an ongoing basis, the SI should reduce occupational pension schemes’ compliance costs by making the rules more proportionate.
I will need to reply to the noble Lords, Lord Livermore and Lord Sharkey, on some of their detailed questions but I thank both of them for contributing to this debate, which I hope the Committee has found informative. I hope that the Committee will join me in supporting the regulations.
Product Safety and Metrology etc. (Amendment) Regulations 2024
(7 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Offord of Garvel
That the Grand Committee do consider the Product Safety and Metrology etc. (Amendment) Regulations 2024.
Relevant document: 23rd Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Department for Business and Trade (Lord Offord of Garvel) (Con)
My Lords, to put this SI into context, in order to place many manufactured goods, ranging from toys to machinery, on the market in Great Britain, manufacturers must ensure that products comply with the requirements of product regulations. Following EU exit, many EU product regulations were integrated into UK law, and we introduced the UK conformity assessed regime—UKCA—as our product regulation approach in Great Britain.
Since 1 January 2021, UKCA has been in use alongside recognition of the EU’s CE and reversed epsilon markings. This recognition of the EU’s CE and reversed epsilon markings is due to end on 31 December 2024, meaning that manufacturers of products in scope of this instrument would have no choice but to meet UKCA requirements to sell their products in Great Britain legally. The Government know that businesses currently face increasing burdens, with cost of living pressures and global supply chain challenges. As part of our smarter regulation programme, we are looking to minimise regulatory burdens where feasible to reduce business costs and help grow the economy. That is why we are introducing this instrument to continue the recognition of EU requirements using powers under the retained EU law Act 2023.
Lord Fox (LD)
My Lords, I thank the Minister for this important announcement. I do not think that the Minister was in your Lordships’ House when we discussed the retained EU law Bill. If he was, he was very wise not to be on the Front Bench at the time. As your Lordships will recall, we were marched forcibly three-quarters of the way up the hill only to be marched back down again.
This statutory instrument is very much indicative of the position that we arrived at after we had marched back down the hill and is infinitely more sensible than where we would have been had we enacted the original retained EU law Bill, and for that the Government and Ministers need some credit.
I have a slight concern—I may have misunderstood. My understanding is that the deadline for recognition of CE is pushed to one side and that CE will be recognised indefinitely, except the Government retain the right to impose non-CE regulations if they decide that they want to do so. That leaves an air of uncertainty, so it would be interesting to hear a response to that.
The Minister hinted at the overall future of CA. Industry has been pushing hard not to have a dual standard, and the department has done well to bow to that. However, the point that was not being made—which we were trying to make at the time—was that it would be expensive. It is good to hear that it would have cost half a billion pounds for industry to conform to that and it is glad that it did not have to do so. Why are we retaining CA? How much resource will the Government commit to the process of having a separate standard, even though the market will inevitably drive most of the players into the CE camp for accreditation? I would like some more clarity around the future of CA.
The Minister mentioned the product safety review. I think we would all like to know when it will be published, as it was promised some time ago and is still not among us. It would be really interesting to know when it will be. I have one final question around Northern Ireland. My assumption is that this solves any potential cross-border issues between the Republic and Northern Ireland, but could the Minister confirm that?
Lord Leong (Lab)
My Lords, I thank the Minister for introducing this SI and setting out its purpose and the noble Lord, Lord Fox, for his contribution. I, too, was not in the House when the retained EU law Bill was debated, although I read sections of Hansard in preparation for today’s debate.
It would be churlish of me not to welcome this instrument, which effectively extends indefinitely the looming deadline of 31 December 2024—a deadline already extended twice since it was first legislated for in 2020. Business will welcome this move. It will save it time and money by not having to comply with two different and, in some cases, largely completely overlapping regulatory regimes. Consumers will welcome this move too. It removes the potential double whammy of higher prices and less choice for GB consumers that would have resulted from some manufacturers deciding it was not worth their while or the cost to meet the additional bureaucracy of the UKCA regime.
Of course, the Government have welcomed their own move. It is estimated that this SI will save businesses more than £500 million in the next decade, as the Minister stated. At the risk of being churlish, I must observe that attempts to present this as an example of their being a great friend of business stretch credulity somewhat. One would not herald the captain’s decision to change course at the last minute to avoid sailing into an iceberg that everyone else knew had been looming for a long time as a “titanic success”.
This instrument will mean that businesses can now use either CE or UKCA markers when placing goods on the GB market—although not, of course, in Northern Ireland because of its unique situation. The Venn diagram of the CE regime and the UKCA regime will become concentric circles, with the former completely enclosing the later. Despite this, paragraph 6.8 of the Explanatory Memorandum states:
“The UKCA requirements which are not, however, treated as being satisfied by the above steps are the manufacturer’s obligations to … Draw up a UK Declaration of Conformity … and … Apply UKCA product marking”.
Perhaps the Minister can explain why this remains necessary for goods which are sold in the GB market. Is this not a textbook example of meaningless rubber-stamping?
Not unrelated to this, what is the Minister’s response to conformity assessment bodies that have raised concerns with the Department for Business and Trade that demand for their services in respect of the UKCA mark will fall due to this statutory instrument? How does he intend to work with the sector to support a domestic route to market for relevant UKCA marked products?
Finally, as the Minister knows, SMEs are always at the forefront of my concerns. They will have been disproportionately affected by the costs of now unnecessary preparation for conformity to a regime that was due to come into force in less than eight months’ time. While we welcome this SI, can the Minister say if there has been any assessment of the costs that will already have been incurred across different sectors, especially those with longer lead times, and SMEs in particular? There seems little value in trumpeting potential savings if the businesses that may have benefited have already scaled down, or even closed down, their export capacity.
While we welcome this sensible SI, I do hope the Minister can illuminate the Committee with answers to my questions.
Lord Offord of Garvel (Con)
I thank the noble Lords, Lord Fox and Lord Leong, for their contributions. No, I was not here at the time of REUL, but I have been involved its implementation in the last 12 months at the Department for Business and Trade, and I am very proud to say that 1,400 pieces of legislation have been revoked—about 20% of the statute book. I am also very proud that we in Britain are taking, as usual, a pragmatic approach: where we can use the same legislation to effectively adopt sensible regulation, we can do that at the same time as repealing those we want to remove from the statute book. On the question of how long this will last, this is an indefinite extension, but it will be a dynamic situation going forward; it does not imply automatic divergence or indeed convergence in the future. We will assess that regulation by regulation and, in doing so, will therefore get the benefit of choosing the best route for our businesses.
Let me respond to the question of why we are retaining UKCA, raised by both noble Lords. The Government are committed to making sure that UKCA remains a viable route for businesses to sell products in Great Britain. It is important that we have our own approach because, as I said before, we may need to do something in the future that we consider to be in the interests of UK businesses and consumers that may require some divergence from the EU. We will cross that bridge when we get there. We are already, for example, using our current autonomy by having the UKCA regime introduce digital labelling, which is giving us and businesses more flexibility. In answer to the question from the noble Lord, Lord Fox, I can also confirm that this means we will recognise CE in both Great Britain and Northern Ireland for the majority regulations, again making it easier for businesses to sell products across the whole UK market.
Turning to the good point made by the noble Lord, Lord Leong, about the conformity assessment market, we have put in place a regime that we will build in future, but we will continue to work with UKAS to understand the capacity of the conformity assessment market and make sure there is sufficient capacity to ensure that the domestic route to market is still available. Although in the short term, it may require a less immediate standard, that capability will build in the future as we move forward.
To give a high-level summary, this legislation will provide industry with a path of certainty and clarity to continue placing goods on the Great British market, removing the 31 December deadline. It will reduce duplicative costs, as we have said. It will save UK businesses a significant amount of money over the next 10 years. We think that approximately 9,600 UK manufacturers will benefit from reduced conformity marking and labelling burdens, and some 2,000 UK manufacturers will not need duplicative conformity assessments. This has come about as a result of close engagement with industry. We are listening to what industry, large and small, has said; that is the role of government. We will continue to take a pragmatic approach to improving regulation in order to benefit businesses and consumers, while maintaining our commitment to high levels of protection for UK consumers.
Lord Fox (LD)
I asked about the quantum of continued public investment in CA, and whether the Minister can give an idea of how much investment will be going into what may become a dwindling standard going forward.
Lord Offord of Garvel (Con)
The noble Lord also asked about the date of review. Those are two technical issues on which, if he does not mind, I will write.
I beg to move.
Royal Assent
Monday 20th May 2024
(7 months ago)
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Retirement of a Member: The Earl of Sandwich
The Lord Speaker (Lord McFall of Alcluith)
My Lords, I should like to notify the House of the retirement, with effect from today, of the noble Earl, Lord Sandwich, pursuant to Section 1 of the House of Lords Reform Act 2014. On behalf of the House, I thank the noble Earl for his much-valued service to the House.
Hate Crimes Against Muslim Women
(7 months ago)
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Baroness Gohir
To ask His Majesty’s Government how they plan to reduce hate crimes against Muslim women and to what extent their plans involve engaging with diverse Muslim women’s groups across the country.
Baroness Gohir (CB)
My Lords, in begging leave to ask the Question standing in my name on the Order Paper, I draw attention to my interests as set out in the register, particularly as the CEO of Muslim Women’s Network UK.
The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Swinburne) (Con)
My Lords, anti-Muslim hatred is abhorrent and has no place in our society. From ensuring the safety of worshippers and working with the police to supporting victims, we will continue to take swift action to address anti-Muslim hatred, and this includes safeguarding Muslim women. We are committed to tackling anti-Muslim hatred through a co-ordinated cross-departmental effort. To this end, we will provide £117.6 million to protect mosques and Muslim faith schools across the country until 2028.
Baroness Gohir (CB)
I thank the Minister for meeting me last week, when I shared concerns about Tell MAMA, in that Muslim communities do not have trust and confidence in Tell MAMA. I have written a letter to the Government with 31 questions about Tell MAMA, and the Government have not answered them. When will the Government answer my questions in full, and when will Tell MAMA’s data be made available in full? When will Tell MAMA’s poor governance and the quality of its work be assessed? When will its funding be reviewed? It gets around £1 million a year, and no one knows what it does with this money. Why the lack of transparency when it comes to Tell MAMA?
Baroness Swinburne (Con)
We have funded Tell MAMA since 2012 to monitor and support victims of anti-Muslim hatred. Tell MAMA is subject to internal grant funding review processes and due diligence checks. This is the case for all funded partners’ processes before any funding agreement can be processed annually. Therefore, Tell MAMA engages regularly with DLUHC officials monitoring its progress. Relationships with all government-funded partners are kept under constant review, and we will ensure that concerns around any governance or accounting matters are considered. Given that many of the noble Baroness’s 31 questions raise such concerns, it would not be appropriate for me to comment specifically at this time, but I will revert to her privately.
Baroness Hussein-Ece (LD)
My Lords, British Muslim women have borne the brunt of the sharp rise in anti-Muslim hate crimes, as the noble Baroness has mentioned, but there are well-established women’s groups that have been at the forefront of providing follow-up support for many who do not feel able to report some of these crimes to the police or even to other groups, including those mentioned today. Have there been any reviews or evaluations, particularly of Prevent funds that could be redirected to Muslim women’s groups and organisations that have years of experience in providing support and education for women and their families?
Baroness Swinburne (Con)
I assure the noble Baroness that there is extensive engagement to understand the issues affecting British Muslims, including Muslim women. Only last week the noble Baroness, Lady Scott, met a small group of community stakeholders, including Muslim women, specifically to discuss community cohesion and hate crime.
Baroness Warsi (Con)
My Lords, it pains me to stand up on this Question, particularly when we are talking about an organisation that should be dealing with monitoring anti-Muslim hatred. I am grateful to my friend, the noble Baroness, Lady Gohir, for giving me sight of her Question and of the letter she sent to my noble friend’s department. To some extent I bear responsibility, as I was there when the organisation was set up. There are deep concerns about its finances, governance, associations and connections, including with the now-defunct Quilliam Foundation—which has associations with think tanks in the United States that are peddling anti-Muslim hatred and Islamophobia—and with people whom successive Home Secretaries have excluded from the United Kingdom. These are really serious allegations about an organisation that is there to protect Muslims in the United Kingdom. I urge my noble friend to look at these matters seriously. It is important that organisations funded by the Government to protect British nationals of whatever faith have the confidence of the communities they seek to protect.
Baroness Swinburne (Con)
I can assure the noble Baroness, and all the speakers so far, that I have taken up this matter since I came into this position. The department is being asked to investigate and look at all the matters raised by the noble Baroness, Lady Gohir, and others.
Baroness Uddin (Non-Afl)
My Lords, notwithstanding the concerns raised by the noble Baronesses, Lady Gohir and Lady Warsi, I am also aware of many of the allegations in their questions. I have worked with Muslim women for subsequent Governments for at least 26 years, while I have been in the House and long before. What assurance can British Muslim women take from a prolonged absence of any meaningful engagement or action to address their experiences of discrimination inside, outside, at work and within the institutions that serve them?
With regard to the comments the Minister made about the amount of money available, there is an incredible disconnect between what she said and the experiences of women’s organisations up and down the country.
Baroness Swinburne (Con)
I would like to reassure the House that we have conducted extensive engagement over the last year in particular. The DLUHC Secretary of State hosted a round table with Muslim experts in late 2023 to hear of their experiences and feedback. Ministers have also conducted visits to a broad range of community groups to increase understanding and to see the valuable work that many Muslim community groups are doing. We are engaged in these matters, and this is one of many things we are doing to try to combat some of the issues that Muslim women in particular are facing.
Baroness Sherlock (Lab)
My Lords, as the shadow Faith Minister, I hear increasing reports when I meet faith communities that their members are feeling unsafe in our country. As the noble Baroness, Lady Hussein-Ece, said, Muslim women—especially hijabi women—are very often on the front line of Islamophobia on our streets.
The Government have refused to bring forward a new hate crime strategy, even though the old one is four years old and out of date, and we are seeing soaring levels of Islamophobia and anti-Semitism. Can the Minister tell the House who the Government consulted before making their decision? Did they meet with the Muslim Women’s Network, led by the noble Baroness, Lady Gohir, or any other women’s faith organisations to hear their experiences?
Baroness Swinburne (Con)
His Majesty’s Government have publicly confirmed, in response to Parliamentary Questions laid previously, that they do not intend to publish a new hate crime strategy. However, we remain committed to protecting all communities from crime and we have a number of programmes in place to do so. For example, the Government have worked with the police to fund True Vision, an online hate crime reporting portal designed so that victims of all types of hate crime do not have to visit a police station to report. We also fund the national online hate crime hub, a central capability designed to support individual local police forces in dealing with online hate crime. This is a cross-departmental piece of work. We are working with every department to try to make sure we cover all bases.
Baroness Berridge (Con)
My Lords, is it not important to ensure that young Muslim girls know how they should be treated when they are in the community, and where they can go for help? One of our best academy trusts is Star Academies, which runs Muslim faith schools. In light of the problems that have been outlined, can my noble friend perhaps beef up the teaching and the education in our schools to ensure that young Muslim people know where to go for help and what their expectation of how they are to be treated should be?
Baroness Swinburne (Con)
I totally agree with the noble Baroness. The Department for Education, the Home Office and all sorts of other departments are involved in this programme. It is really important that we make sure that everyone has the necessary skills to deal with this appropriately.
Lord Sahota (Lab)
My Lords, I recently read a report saying that more and more Sikh women are wearing turbans and are often the victims of hate crime as well. Are the Government engaged with any programmes or funding for Sikh women who are the victims of these hate crimes?
Baroness Swinburne (Con)
I will check for the noble Lord what specific engagement there has been. I am aware that there is cross-faith group engagement—particularly by my noble friend, the Minister sitting alongside me—for all religions and all groups, including women from those faith groups.
Baroness Manzoor (Con)
My Lords, I welcome the action the Government are taking to ensure much greater integration. My concerns are disadvantaged women in society and their access to health. Can my noble friend tell me whether they are looking not only at hate crime but at access to NHS services?
Baroness Swinburne (Con)
My noble friend raises a valid point. It is really important that, in all walks of life, nobody feels they are being discriminated against. It is therefore important to make sure that everybody has the necessary skills to raise their concerns and that there are avenues available to do so. I will raise this with my noble friend the Minister for Health to make sure we cover it adequately.
Baroness Hussein-Ece (LD)
My Lords, can I press the Minister on the question asked by the noble Baroness, Lady Sherlock? She asked what specific groups the Government have been consulting with. In the Minister’s replies to the noble Baroness and to me, she said that the Government are meeting with a small group of Muslim experts. Who are these experts and groups? If she does not have the answer, can the Minister write to me? There are a number of Muslim Peers in the Chamber right now, and I am pretty sure that none of us knows who on earth the Government are talking to.
Baroness Swinburne (Con)
I do not have a list with me, but it is an extensive list. I undertake to speak with the noble Baroness as to the extent of the engagement.
Armed Forces: Land War Readiness
(7 months ago)
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Baroness Anderson of Stoke-on-Trent
To ask His Majesty’s Government what recent assessment they have made of land war readiness of regular and reserve troops across the armed forces.
The Minister of State, Ministry of Defence (The Earl of Minto) (Con)
My Lords, our Armed Forces are at all times ready to protect and defend the UK, and we continue to meet all operational commitments, both at home and overseas. The global security environment is undoubtedly challenging, and that is why this Government have committed to spend 2.5% of GDP on defence by 2030, including a £10 billion investment in the UK’s munitions infrastructure. We are also heavily investing in equipping and modernising both the Regular Army and the reserves. By 2026, the Army will have built the foundations for the force of 2030, with readiness and resilience fit for the next decade.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, I remind your Lordships’ House of my registered interests. The House of Commons Defence Select Committee’s report earlier this year, exploring our readiness for war, was scathing. The committee found that while our operational readiness is proven, our war-fighting readiness is in doubt and our strategic readiness has no measurable outcomes. All services are currently deployed above their capacity with significant capability gaps and have failed in their recruitment targets in every year since 2010. The Government accepted the recommendations of the Haythornthwaite review and promised a detailed response this year. Given the current recruitment and retention rate crisis across all services and the impact on our ability to deploy, when can we expect a detailed plan from the MoD?
The Earl of Minto (Con)
My Lords, I am sure I do not need to tell anybody in this House that defence is an active, changing situation, and we need to change to events and threats as we see them. As I said, we invest significantly in Armed Forces readiness and will continue to do so. The Royal Navy has 22 ships—now nearly 28 ships—on order. The RAF has greater lift capacity than at any time, and the British Army was deployed in 67 countries last year. While there is a lot to do, if we think about the international, multinational operations that we are engaged in—Prosperity Guardian, Shader, Kipion and Steadfast Defender, to name just a few—let alone delivering vital aid in Gaza, we should be rightly proud of all their efforts.
Lord Lancaster of Kimbolton (Con)
My Lords, I declare my interest as director of the Army Reserve. Neither the first nor third division can deploy as a division without large elements of the reserve, and it is a misnomer that all the Regular Army is at higher readiness than the reserve Army. There are even elements of the Army Reserve which are at higher readiness than parts of the Regular Army. Indeed, for Op Tosca in Cyprus, three of the last rotations of our peacekeeping mission have been delivered by the Army Reserve. With this in mind, will my noble friend welcome the fact that this year, for the first year, the Army Reserve budget is protected, meaning that it is not subject to in-year savings measures and enabling it to ensure that it can meet its readiness?
The Earl of Minto (Con)
My Lords, I thank my noble friend for making an extremely important point, particularly about the financing of the reserves. We should never forget that reserves are essential on and off the battlefield. It is all very well relying on the first echelon, but without the second and third echelons in place and working like clockwork, there will be trouble down the line. The value in which reserves are held is extremely high and I am delighted that they are so ready.
Lord Reid of Cardowan (Lab)
My Lords, the Minister said that the RAF is stronger than ever before. Is he aware that 80 years ago, on D-day, 1,000 C-47s carried our paratroopers to the coast of France? In a fortnight’s time, on the anniversary, there will be a commemoration service. Have the Government managed to find a second plane to drop the paras in France for that commemoration, or can we take it that there will be “up to” two planes?
The Earl of Minto (Con)
My Lords, the noble Lord makes a very good point. We are all sitting here because of the success of D-day. The 80th anniversary commemoration is an extremely important moment. As I said in my response to the last question, the RAF is fully employed elsewhere, as are all the other forces. The Government and the Ministry of Defence are working hard to ensure that there are sufficient platforms for an appropriate remembrance to be carried out.
Lord Stirrup (CB)
My Lords, one essential requirement for an effective land war fighting capability is to have enough people to man the existing posts within the force structure. Last year, the outflow from the Army far exceeded the intake. A very large proportion of potential Army recruits give up because the process takes far too long. There are also many medical rejections, some of which seem rather baffling. I know of one case where an athletic young lady was refused because she had broken her leg some years previously. Given the importance of manning the force structure, is it not time that the military, and the Army in particular, focused much more on how to get people in, rather than how to keep them out?
The Earl of Minto (Con)
My Lords, I cannot but agree with the noble and gallant Lord. It is obviously extremely important to maintain the correct numbers and have the recruitment and retention process running as smoothly as possible. We are making improvements to recruitment, and I am delighted to say that things are speeding up. We are taking quite a broad look at some of the medical requirements now. I am not aware of the broken leg example, but it is indicative of some of the challenges that we have faced in the past.
Baroness Burt of Solihull (LD)
My Lords, we have seen from the wars in Ukraine and Gaza that, if Britain did become involved in a land war, it would look very different from any war that we have ever fought in the past. The skills that our troops will need are changing all the time, as the Minister has alluded to, but we will have 9,000 fewer troops to work with by 2025—a policy that my party would reverse. Are the lower numbers compatible with the greater skills that we would need to fight a modern land war?
The Earl of Minto (Con)
My Lords, the question of absolute numbers must be overlaid with that of capability. There is no question that we do not need the numbers that we have required in the past. In fact, the First Sea Lord has mentioned that modern warships will have fewer fighting troops on them. I fully agree on the challenges that we face with the existing numbers. War fighting readiness obviously involves modernisation and mobilisation of conventional forces, as well as upgrading nuclear systems. It also involves intelligence, surveillance, target acquisition, reconnaissance capabilities, electronic warfare, signals, intelligence, cyber and electronics. It is a very broad base so, to the previous question from the noble and gallant Lord, Lord Stirrup, the breadth of recruitment needs to be very carefully looked at.
The Lord Bishop of Southwell and Nottingham
My Lords, there are 280 regular chaplains serving in the Armed Forces, including more than 150 from the Church of England, and they are working closely with the wider Church to build strong partnerships, which would be essential in the event of a major deployment. Their work is for the whole Armed Forces and the families who would be left behind, irrespective of faith. Does the Minister agree that chaplains continue to play a crucial role in the life of the Armed Forces both at home and when deployed in conflict zones?
The Earl of Minto (Con)
I entirely agree with the right reverend Prelate.
Lord Howell of Guildford (Con)
I apologise to the admiral; I am sure his time will come. Does my noble friend the Minister agree that the Government website details on our reserve situation are curiously uninformative? They do not make a clear distinction between the regular reserves and the Army reserves, which are two separate concepts and have been for the past 10 years. They do not make clear how many of our units are high-readiness or how many are combat ready. Will he encourage his colleagues to provide clearer information online about the state of the reserves, and give us more information on how we are developing a new relationship between our reserves and regular troops of a kind that is being rapidly developed by several of our NATO allies?
The Earl of Minto (Con)
My Lords, I will certainly take a look at the website and ensure that it is made a lot clearer on what the differences are. As regards valuing the reservists, I can assure the House that the Ministry of Defence values them extremely highly and will continue to make certain that the level of readiness is appropriate.
Inflammatory Bowel Disease
(7 months ago)
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Lord Hunt of Kings Heath
To ask His Majesty’s Government what action they are taking to improve awareness of, and services for people with, inflammatory bowel disease.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
NHS England’s national bladder and bowel health project is delivering better care for people with inflammatory bowel disease, with a focus on developing clinical pathways. Additionally, NHS England aims to reduce variation in care for people with inflammatory bowel disease through its Getting It Right First Time gastroenterology programme. To raise awareness of IBD among GPs and other primary care staff, the Royal College of General Practitioners has produced an inflammatory bowel disease toolkit.
Lord Hunt of Kings Heath (Lab)
My Lords, the Minister mentioned variation in care. He will be aware that over half a million people in the UK suffer from IBD and that the actual quality of care is very varied throughout the country. For instance, the overall waiting time for new patient appointments at gastroenterology clinics varies between one week and 27 weeks, with a big impact on the outcome of the care the patient receives. My understanding is that there are IBD national standards but that they are not adhered to. Can the Minister tell me why that is, and when will the Government insist that the NHS gets the variation of care down to at least an acceptable limit where good-quality care is guaranteed to all patients?
Lord Markham (Con)
The noble Lord is correct. I spent time with the clinical lead in this area this morning; there is a Getting It Right First Time pathway and it is clear that the initial cohort of 25 hospitals have shown real progress in this area. That is being rolled out across the pathway—we have now had cohorts 2 and 3 doing it—so we should see those improvements happen across the board. However, it is my job as a Minister to make sure that that happens.
Lord Allan of Hallam (LD)
My Lords, the Getting It Right First Time review that the Minister mentioned recommended increased access to endoscopy services over six and seven days and with extended hours. These are especially important for people trying to manage a bowel condition and work. Is the Minister satisfied with progress since that report in 2021 in terms of the availability of these services at weekends and in the evenings?
Lord Markham (Con)
I think there are two things. One is the CDC programme; the 160 centres and 7 million tests that we have rolled out are now very much helping in that space. However, it is also about making sure that the right people get the tests. On the question of awareness as well, we now have these faecal tests—a bit like bowel cancer screening—which can tell with 90% sensitivity whether you have inflammatory bowel disease or irritable bowel syndrome. With one, you absolutely need to see a specialist for endoscopy, while with the other, you do not. Telling the difference is key.
Baroness McIntosh of Pickering (Con)
My Lords, does my noble friend share my concern that a number of people, increasingly women, are being wrongly diagnosed with IBS when in fact they have an underlying cancer condition? How does he imagine that we can rectify this situation?
Lord Markham (Con)
For the benefit of the House, I would say they are often confused. Irritable bowel syndrome is suffered by about 10% of the population while inflammatory bowel disease—we are talking about Crohn’s disease and colitis—is suffered by less than 1% of the population. The key thing is trying to understand the difference between the two; as I say, we have this poo test, for want of a better word, which can do that. With people who test positive, you absolutely need to get them into that screening programme and get it right the first time, so you can pick up those problems and things such as cancer.
Lord Turnberg (Lab)
My Lords, more years ago than I care to remember, I was a gastroenterologist and saw many patients with inflammatory bowel disease. We were desperately seeking a cause or causes and we did research on infectious agents, unsuccessfully. Can the Minister update us on where research into the causes of these diseases is going? It has been going on far too long.
Lord Markham (Con)
The noble Lord is correct. This is an area where we still need more knowledge. We have spent about £34 million in research in this space over the last few years, but there is still a lot that we are learning. I can say freely that if there are good research projects there, the resources are available to make sure that they are funded, because we need to learn more in this space.
Baroness Manzoor (Con)
My Lords, many health authorities are sending out these tests to people. What percentage of these tests—“poo collections”, to use my noble friend’s words—are not being returned? It could be relatively high, particularly if we are not explaining the difference between the two types of illness.
Lord Markham (Con)
As described by the clinical lead in this, these really are game changers, so getting them back is key. I do not have the figures to hand as to the amount that they get a response from but, in the case of the bowel cancer screening, many of us will be aware that there has been a whole programme which has been very successful in getting those poo tests measured and responded to. We need to learn the same lessons in this area.
Lord Kakkar (CB)
My Lords, I draw your Lordships’ attention to my registered interests. To achieve the best outcomes for complex conditions such as inflammatory bowel disease, there is a requirement to ensure that patients are managed by properly skilled multidisciplinary teams. Is the Minister content that, with all the workforce pressures that exist, we are investing sufficiently to develop those teams to ensure the best clinical outcomes?
Lord Markham (Con)
The long-term workforce plan sets this out. We are getting a good response in terms of filling up the places. We have about 98% or 99% of the training places filled. The challenge is that this service, more than anything else, suffers from the highest burnout. That is the area where we are struggling to fill the places. Therefore, we are trying to ensure that this scarce resource is used by people and that this early screening test is used so that people can see who they really need to see.
Baroness Redfern (Con)
My Lords, I welcome the Government’s commitment to appoint a senior official to take responsibility for home care medicine services as a way forward to address awareness of coeliac disease and Crohn’ disease. Will there be a periodic update of data on how home care medicine services are functioning and a date for commencement of that data?
Lord Markham (Con)
We had a very good debate on this a couple of weeks ago. All noble Lords accepted that it was a bit of a Cinderella service at the moment, but vitally important to a lot of people’s everyday well-being, so I am happy to do that.
Lord Watts (Lab)
My Lords, is the Minister monitoring what is happening in Europe and the US to see whether we can learn any new lessons from the research programmes that are being carried out there?
Lord Markham (Con)
The Getting It Right pathway was very much informed from that best practice around the world and, in the last year, NICE has approved four new drug treatments. We are trying to look at the best medicines around the world. One of them, risankizumab, has resulted in a 44% reduction in the disease—so, yes, we are trying to learn from the best in the world.
Lord Kamall (Con)
My Lords, the noble Lord, Lord Hunt, asked about awareness. We know that certain communities are vaccine hesitant or less aware of some of the conditions and less likely to come forward. What lessons have been learned from some of the other programmes? Are there communities that are underrepresented for this? What efforts have been made to learn from other programmes to make sure that those communities come forward?
Lord Markham (Con)
First off, it is trying to learn the lessons: the best parallel that I have so far is around the bowel cancer screening and that faecal screening programme. The real thing here is the difference between the 10% of the population who suffer from irritable bowel syndrome, a lot of which is diet-based in terms of the cure, and the 1% which really is serious in terms of inflammatory bowel disease. That is where we need the education and awareness.
Baroness McIntosh of Hudnall (Lab)
My Lords, the Minister has twice mentioned the bowel cancer screening programme, which I think is universally accepted to be very successful, and is also very reassuring to those people who are part of it, whatever the outcome of the tests. He will also know that that screening programme and others drop people once they reach a certain age, which coincidentally is the age at which they become more likely to develop the cancers that the screening programme is intended to detect. Do the Government have any plans to increase the age up to which people can be routinely included in bowel cancer screening and other screening programmes?
Lord Markham (Con)
The noble Baroness makes an important point. In this and other areas, we are guided by the science; we have been guided by the science on the advice to date. I will go back and ask for the latest thinking on that, and get back in detail in writing to the noble Baroness, but, generally, being guided by the science will be the approach.
Baroness Goldie (Con)
My Lords, further to the question of the noble Baroness, Lady McIntosh, and indeed the question from the noble Lord, Lord Turnberg, I understood that there was a link with a weakened immune system. I wonder if that is still an active field of research. Is there any update the noble Lord can provide? Many people, for other reasons, are diagnosed with weakened immune systems.
Lord Markham (Con)
These are all areas we are trying to find out about, such as Crohn’s and colitis. The trouble is that this whole area has a big field within it. The honest answer is that it is not absolutely understood, hence the need for research on what is causing this in the first place. As I say, we have spent quite a bit on research, but more needs to be spent on understanding the real issues. If the research projects are there, we will happily undertake them.
Leaseholders: Management Companies
(7 months ago)
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Lord Kennedy of Southwark
To ask His Majesty’s Government what plans they have to make it easier for leaseholders to change the management company that delivers services to them, other than by increasing transparency.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, in begging leave to ask the Question standing in my name on the Order Paper, I refer the House to my relevant register of interests and the fact I am a leaseholder.
The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Scott of Bybrook) (Con)
My Lords, the Leasehold and Freehold Reform Bill makes it cheaper and easier for leaseholders to buy their freehold or exercise the right to manage, allowing them to take over management of their buildings themselves and directly appoint or replace agents. Of course, Section 24 of the Landlord and Tenant Act 1987 allows leaseholders to apply to a tribunal to appoint an alternative property manager if there has been significant management failure.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, the Leasehold and Freehold Reform Bill before your Lordships’ House must rank as one of the most disappointing pieces of government legislation in recent years—and it is a competitive list. There have been nearly five years—not five weeks or five months—of hype and promise, and extraordinarily little action from the Government. When can we expect action to regulate management companies, along the lines of the report of the noble Lord, Lord Best, and when will the Government deliver the promises they have repeatedly made but are just not delivering?
Baroness Scott of Bybrook (Con)
My Lords, we have been very clear, and the Secretary of State was very clear, that we cannot support establishing a new regulatory body at this time and through this Bill. Measures in the Leasehold and Freehold Reform Bill are there to protect and empower leaseholders, along with existing protections, and work undertaken by the industry will seek to make property management agents more accountable to leaseholders who pay for their services.
Baroness Hayter of Kentish Town (Lab)
My Lords, I declare an interest as the chair of the Property Institute. The Government keep saying that they do not have time to implement RoPA; I do not believe it, and they could if they wanted to. In the meantime, at the request of people in the industry, I chaired the committee that set up a code of conduct; is there nothing the Government could do to at least endorse or make that code of conduct mandatory? That would help in making sure that all managing agents work to a high level.
Baroness Scott of Bybrook (Con)
My Lords, the Government welcome the ongoing work being undertaken by the industry, and thank the noble Baroness, Lady Hayter, for the work she has done with her group on codes of practice. We have said that we will consider any code produced by her steering group, and come back to the House.
Baroness Thornhill (LD)
My Lords, the Competition and Markets Authority, in a recent report, was very concerned about the increasing practice of major housebuilders charging all the residents on new estates for common amenities such as roads, lighting and playgrounds, services traditionally provided by local authorities and paid for by council tax. Is the Minister confident that the measures in the Bill will ensure that prospective residents will be aware of the way that their new estate will be managed and the actual costs and services they will have to pay for before they buy? Does she agree with me that there is little justification for these residents to have to pay twice?
Baroness Scott of Bybrook (Con)
Through the Leasehold and Freehold Reform Bill the Government are legislating to make sure that freehold home owners who pay estate rent charges have the right to challenge the reasonableness, and to go to a tribunal to appoint a manager to manage the provision of those services, along with the transparency that they will also have in those charges. We are also carefully considering the response to and the recommendations of the CMA report published in February.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, the noble Lord, Lord Campbell-Savours, is participating remotely.
Lord Campbell-Savours (Lab) [V]
My Lords, in conditions where leaseholder landlords living overseas remain uninterested in block management—their only interest being the rent—where in the Bill is the legal obligation on managing agents to supply management committees with the valid names and contact details of these overseas landlord owners, enabling the seeking of their support for an RTM? Where, with notice, absentee landlords fail to indicate whether or not they support an RTM, surely their interests should simply be ignored. Indifference should not block progress.
Baroness Scott of Bybrook (Con)
My Lords, we are looking more closely at this issue, because the noble Lord is right—sometimes it can be more difficult. We have also recognised the participation rates, which can be affected by foreign owners. We have listened to the arguments raised in Committee and by MPs in the other place, and we will continue to consider the issues raised.
Viscount Hanworth (Lab)
My Lords, is the Minister aware of the extent of a stratagem whereby companies have acquired freeholds with the intention of removing the leaseholder occupants by undertaking works on the properties that the leaseholders cannot possibly afford to pay for? By these means the freeholder expects to compel the occupants to sell up. What redress is there against this stratagem?
Baroness Scott of Bybrook (Con)
I am not aware of this strategy on the part of freeholders, but I will look into it and come back to the noble Viscount.
Baroness Taylor of Stevenage (Lab)
My Lords, every day we see horror stories in the press of crippling increases in ground rents. After the Recess we go on to Report of the Leasehold and Reform Bill, but so far with no update from the Government on the ground rent consultation undertaken by them some time ago. Can the Minister tell us just what the proposals will be on ground rent?
Baroness Scott of Bybrook (Con)
I do not expect the noble Baroness to expect me to tell her that at an Oral Question, but the Government have been consistent that they have concerns about existing ground rents, and the adverse impact that ground rents have on leaseholders. We have consulted on a range of options to cap ground rents in existing leases. That consultation closed on 17 January and the Government will respond to it shortly.
Baroness Goldie (Con)
My Lords, I am looking at the text of the Question tabled by the noble Lord, Lord Kennedy, and I am trying to be helpful to my noble friend the Minister. In Scotland the management company is call the “factor”—a name that can conjure up nightmares or pleasant dreams depending on the experience. In 2011 we passed the Property Factors (Scotland) Act, one section of which allows home owners to make an application to the Homeowner Housing Panel for a determination of whether their property factor has failed to carry out their factoring duties, or failed to comply with the code. I wonder whether there is any useful guidance in that for my noble friend the Minister.
Baroness Scott of Bybrook (Con)
I think what my noble friend is suggesting is what we have in Section 24 of the Landlord and Tenant Act 1987, which allows leaseholders to apply to a tribunal to appoint an alternative property manager—or “factor”—if there has been significant management failure.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, over the last few years the Member for Surrey Heath in the other place has made some absolutely wonderful statements, promises and claims and given interviews on all sorts of things we all support. Why did none of them make it into the Bill?
Baroness Scott of Bybrook (Con)
I disagree with the noble Lord opposite. I think many of those things my right honourable friend the Secretary of State has said have made the Bill, and I know from talking to him that he wishes he had more time and more capacity to do more.
Baroness Fox of Buckley (Non-Afl)
My Lords, one pithy slogan that has come from the Government is that those who pay should have a say. I could not agree more. Will the Minister agree that, ultimately, the best solution for giving a say and empowering leaseholders would be ensuring that they have right to manage? I am not going to nag about this Bill, but does the Minister not agree that the best way of empowering for the future would be that all new flats are sold as commonhold or at least with a share of freehold? Even if this Bill cannot deliver because the Minister does not have time, and because of the complications that have been alluded to, would it not be resolved by having a sunset clause that would guarantee that this will happen in the future, so this Bill could at least leave that as its legacy?
Baroness Scott of Bybrook (Con)
I can only reiterate what I have said many times at the Dispatch Box: the Government remain committed to the widespread uptake of commonhold for flats. We have stopped commonhold for houses in this Bill, and we will set out our next steps in due course.
Lord McColl of Dulwich (Con)
My Lords, is the Minister aware just how difficult it is to get rid of an incompetent management company? Such companies hide behind the excuse that they cannot get permission from all the people in the building. It is high time we dealt with this problem and stopped this terrible situation.
Baroness Scott of Bybrook (Con)
I agree that if you have a bad managing agent, it is not acceptable for any leaseholder. But, as I said, you can use Section 24. We are making it better with the Leasehold and Freehold Reform Bill, and I am very happy to talk to the noble Lord about issues he may have encountered.
Licensing Hours Extensions Bill
Monday 20th May 2024
(7 months ago)
Lords ChamberRead Full debate Licensing Hours Extensions Bill 2023-24 View all Licensing Hours Extensions Bill 2023-24 Debates Read Hansard Text
Pensions (Special Rules for End of Life) Bill
Monday 20th May 2024
(7 months ago)
Lords ChamberRead Full debate Pensions (Special Rules for End of Life) Bill 2023-24 View all Pensions (Special Rules for End of Life) Bill 2023-24 Debates Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 17 May 2024 - (17 May 2024)
Special Envoy for Freedom of Religion or Belief Bill
Monday 20th May 2024
(7 months ago)
Lords ChamberRead Full debate Special Envoy for Freedom of Religion or Belief Bill 2023-24 View all Special Envoy for Freedom of Religion or Belief Bill 2023-24 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 24 April 2024 - (24 Apr 2024)
Dogs (Protection of Livestock) (Amendment) Bill
Monday 20th May 2024
(7 months ago)
Lords ChamberRead Full debate Dogs (Protection of Livestock) (Amendment) Bill 2023-24 View all Dogs (Protection of Livestock) (Amendment) Bill 2023-24 Debates Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 17 May 2024 - (17 May 2024)
Secure 16 to 19 Academies Bill
Monday 20th May 2024
(7 months ago)
Lords ChamberRead Full debate Secure 16 to 19 Academies Bill 2023-24 View all Secure 16 to 19 Academies Bill 2023-24 Debates Read Hansard Text
School Attendance (Duties of Local Authorities and Proprietors of Schools) Bill
Monday 20th May 2024
(7 months ago)
Lords ChamberRead Full debate School Attendance (Duties of Local Authorities and Proprietors of Schools) Bill 2023-24 View all School Attendance (Duties of Local Authorities and Proprietors of Schools) Bill 2023-24 Debates Read Hansard Text
Space Industry (Indemnities) Bill
Monday 20th May 2024
(7 months ago)
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Business of the House
(7 months ago)
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Lord True
That Standing Order 38(4) (so far as it relates to Thursdays) and (5) (Arrangement of the Order Paper) be suspended until the end of the session so far as is necessary to enable notices and orders relating to Public Bills, Measures, Affirmative Instruments and reports from Select Committees of the House to have precedence over other notices and orders on Thursdays.
The Lord Privy Seal (Lord True) (Con)
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Lord Taylor of Holbeach (Con)
Would the Leader of the House be willing to discuss with his colleagues in the usual channels a debate on the ongoing review into the Code of Conduct? As noble Lords will know, the Conduct Committee is conducting a wide-ranging review of the code, and the outcome of its deliberations will affect all Members of this House. It is therefore very important that the committee can hear views from Members from across the House before it concludes its inquiries and reports.
Lord Grocott (Lab)
My Lords, I want to raise an issue about the progress, or lack of it, of Private Members’ Bills—a subject on which I have had some interest from time to time—and, in particular, the disparity between the time given to these Bills in the Commons and the time we give to Commons Bills here in the Lords. The Chief Whip has just read out seven First Readings of Private Members’ Bills. Last Friday, we had four Second Readings of Private Members’ Bills allocated time in this House. Seven Private Members’ Bills that started in the Commons have already had Second Readings this year. Of the Bills that we have sent to the Commons for their First Reading, of which there have been four, none of them has had any progress in the Commons whatsoever. If we look over a broader spread, it is almost ridiculous: I think it is almost entirely accurate that some 300 Private Members’ Bills have started in this House in the last seven years; only three of them actually reached the statute book. It becomes a pretty spectacular waste of time to try to add something to the statute book if you start it in this House.
I simply say to the Leader, while he is here: surely if a Bill gets through all its stages in this House, we should expect the Commons to give it a chance of something above zero, which is what it has at present, particularly in view of the fact that we are pretty generous in the time that we allocate. These are all desirable Bills; I am not criticising any of the Bills: the ones that got a Second Reading on Friday were excellent, as are many Private Members’ Bill, but our generosity towards Commons starters ought to be more closely matched by the time the Commons gives to Private Members’ Bills that are Lords starters.
Lord True (Con)
My Lords, many noble Lords might have some sympathy with some of the things the noble Lord, Lord Grocott, said, but I must remind him—we all are conscious of this—that the procedures of the House of Commons are exclusively a matter for that House itself. I am sure that Members of the House of Commons read our Hansard assiduously and will take note of what the noble Lord said.
So far as this House is concerned, we sit on Fridays from time to time, obviously, to take Private Members’ Bills. We will continue this convention until the summer. I can tell the House that we will sit on Friday 14 June, and on 5 and 12 July to take Private Members’ Bills. So far as my noble friend the Captain of the Gentlemen-at-Arms is concerned, we will seek to make progress. I am sure she will be happy to discuss any individual request, but obviously the House of Commons is the guardian of its own procedures.
On the point my noble friend Lord Taylor of Holbeach raised, I am grateful to him for giving me notice that he intended to do so. Other noble Lords have also made views known to me on this subject. The Chief Whip and I have taken the liberty of discussing this with some colleagues in the usual channels and, of course, with my noble friend Lady Manningham-Buller, the chair of the Conduct Committee, in whose work I think I fairly say the House has the fullest confidence and trust.
I am pleased to say that we can enable a debate of the kind that my noble friend asks for on the Code of Conduct review in time for the conclusion of the evidence-taking part of the review, and this will be scheduled for 10 June in Grand Committee. The Motion will be neutrally worded to enable all Members to express their—no doubt varying—views before the evidence-taking period concludes. The purpose must not be to rake over the coals of specific cases but to assist the review and assist Members by enabling discussion of the principles and actualities underlying the Code of Conduct.
Media Bill
Monday 20th May 2024
(7 months ago)
Lords ChamberRead Full debate Media Act 2024 View all Media Act 2024 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 44-II(a) Amendment for Committee (Supplementary to the Second Marshalled List) - (17 May 2024)
“(4A) After subsection (6) insert—“(6A) When determining the number of hours OFCOM consider appropriate under subsections (1) and (3), they must ensure that the number of hours would result in at least 50% of programmes broadcast, measured both by hours and expenditure, being made outside of London and 16% from the nations of the United Kingdom other than England, in proportion to their relative populations.””
Baroness Fraser of Craigmaddie (Con)
My Lords, I rise to speak to Amendments 16 and 17 in my name and in doing so I declare my interests as laid out in the register as a board member of Creative Scotland. The noble Baroness, Lady Foster of Aghadrumsee, who has added her name, has asked me to apologise to the House as she cannot be here in time today due to a prior engagement in Northern Ireland, but she wanted me to indicate that the points I will be making have her strong support from a Northern Irish perspective. I also thank the noble Viscount, Lord Colville of Culross, and the right reverend Prelate the Bishop of Newcastle for their support, which is greatly appreciated.
Never before have I stood up in this House and felt such a weight of responsibility on my shoulders. My amendments have the backing of all three devolved Administrations, the screen agencies of Scotland, Northern Ireland and Wales, industry bodies from across the nations and regions as well as countless numbers of independent production companies. The noise outside this Chamber and outside London is deafening, and it is united.
The Media Bill is to be welcomed, and I know the Minister and the Secretary of State—and, indeed, all of us—wish it to pass quickly. However, if it passes unamended, it will have ignored the vibrant but delicately balanced screen ecologies in the nations and regions of the UK, and it risks removing the foundations upon which those thriving screen sectors have been able to build: namely, commissions from PSBs, the very channels for whom representing the lives and experiences of the nations and regions of the UK should be at their heart.
According to the Office for National Statistics, around 68 million people currently live in the UK. About 10 million people live within the M25, but, like much of our politics, our media can often be seen as being too London-centric. My amendments seek to ensure that public service broadcasters provide a suitable range of programmes for the roughly 58 million people who do not live in London, and that a proportionate share of those programmes are made outside London by the talented people who live and work all across the UK. That these should be measured by both hours and expenditure would ensure that PSBs did not simply fulfil their regional quotas with low-value daytime live discussions.
Section 287 of the Communications Act 2003 required Channel 3 to provide a sufficient amount and a suitable range of regional programmes, including news and current affairs, regulated by Ofcom quotas obligated by its licence. If it were not for those quotas then the plurality of news in the nations and regions provided by ITV and STV, in addition to that of the BBC, would be lost. Equivalent requirements and national and regional quotas apply to the BBC under the BBC framework agreement.
The BBC and Channel 4 have already responded to criticism that they do not reflect the public they serve by moving part of their workforce outside of London to regional centres in Salford, Leeds, Bristol and Glasgow. During the debate around the proposed privatisation of Channel 4, its chief executive, Alex Mahon, speaking at the opening of the channel’s new studios in Leeds, argued that privatisation would inhibit the channel’s plans to expand outside London and help the levelling-up agenda. Ms Mahon led a campaign against privatisation by declaring that Channel 4 was “for all the UK”, and regional producers in the nations and regions stepped up to support it. However, as soon as privatisation was taken off the table, Channel 4 abruptly stopped developing its commissioning capacity outside London, recently making its most senior commissioner in Leeds redundant and losing one of its small Glasgow-based commissioning team.
Ofcom requires that the BBC must ensure that in each calendar year at least 16% of the hours of network programmes made in the UK are made outside England, and at least 16% of the BBC’s expenditure on new network programmes is applied across Scotland, Wales and Northern Ireland, which is in line with the three home nations’ share of the population. My amendments would simply extend those requirements to all public service broadcasters, ensuring that these public assets deliver fairly for all the UK.
If we do not have such regional quotas then we risk not having any of the production centres of which we are so rightly proud, and in that case Amendment 54 from the noble Lord, Lord Wigley, becomes somewhat academic. As much as I wish to support him in requiring Ofcom to ensure that the out of London nations and regions production criteria support inward investment in regional production centres, while encouraging the pipeline of talent from across the UK to thrive, without national and regional quotas the only option to fulfil any regional out of London production would be by brass-plating.
Channel 4 is a commercially funded but publicly owned PSB. It does not produce regional news content as ITV and STV do, but to date it has played an extremely important role in the success of the UK’s creative industries, pioneering innovation in, investing in and stimulating the production sector and acting as a world-leading accelerator. However, despite Channel 4’s “for all the UK” campaign, it has had to be dragged kicking and screaming by Ofcom into accepting the rise of its out of England quota to only 9% in 2020, and it has recently argued for that 9% minimum to sustain across the next decade, on the basis that producers outside London are too small.
This Bill will remove the existing publisher/broadcaster restriction and give Channel 4 valuable new flexibility to make some of its own content. While I understand the Government’s desire to ensure that Channel 4 is able to grow and better compete in the age of streaming giants, they are giving away the very thing that makes Channel 4 unique among PSBs, at no cost to the taxpayer but of considerable importance to the regional creative economy and independent production sectors. They are doing so without demanding anything in return. As a publicly owned PSB with its own stated strong commitment to represent the whole of the UK and to stand up for diversity across the UK, surely the Government must ensure that Channel 4 fulfils this remit for the benefit of the UK as a whole, supporting the sustainable growth of the industry outside London and across all four home nations.
My amendments do nothing other than echo the voluntary commitments that Channel 4’s chairman and chief executive have already made. In November last year, Sir Ian Cheshire issued a statement saying:
“Channel 4 remains entirely committed to its presence, programme-making and impact across the Nations and Regions. This includes its commitment to regional producers, voluntary investing 50% of its commissioning budget outside of London”.
I am asking the Minister therefore to write this voluntary commitment into the Bill, along with a separate nations’ quota in line with that of the BBC. According to the independent producers’ industry body, PACT, increasing these quotas to 50% outside London and 16% outside England would cost Channel 4 only an additional £136 million over 10 years—just over 2% of its anticipated budget for new programmes across the next decade. The benefit to the creative economy across all the UK, to British audiences and to Channel 4 itself would be significantly higher.
Channel 4’s resistance to increasing national and regional quotas to match the BBC’s has caused what I can only describe as a real stushie among the independent producers, the freelance TV talent, the devolved Administrations and the screen agencies in Northern Ireland, Scotland and Wales, all of whom have written to Ofcom—and I am delighted to see its chairman in his place—and made public their desire for national and regional quotas and their support of my amendments. I am grateful to the three screen agencies—Screen Scotland, Northern Ireland Screen and Creative Wales—and PACT, as well as the many independent producers who have engaged with me and many other noble Lords in preparation for this debate, and who recently felt so strongly about this that they made the effort to come to the House to brief us in person. I can only apologise to them that voting on the safety of Rwanda rather truncated our discussions on that day.
The independent producers who recently wrote a public letter to Ofcom, urging it to reconsider the lifting of the current production 91% “made in England” production quota for Channel 4, are long-term, trusted suppliers of Channel 4, ITV and the BBC, as well as Netflix, Disney+, Sky, Amazon and National Geographic among many others. They cannot be dismissed as being “too small” for the PSB broadcasters to work with. The key to fostering and safeguarding the regional TV production sector lies in securing network commissions, not just ad hoc regional talent and skills schemes.
Quotas work. Both the BBC and Channel 4 have met them regularly and this has fostered significant economic and creative growth across the UK since 2003. Quotas are critical to ensuring that the infrastructure of the thriving creative industries that have been so successfully built up over the last two decades is maintained and not jettisoned. Quotas are essential to ensuring that our PSBs truly reflect, on-screen, the voices and stories of the people they serve throughout the different parts of our United Kingdom. This is in the best long-term interests of those broadcasters. If the Minister is not minded to accept my amendments as tabled today, I ask him and his team to work with me and the regional agencies to ensure that the commitment to representation throughout the UK for public service broadcasting is reflected robustly within the provisions of this Bill.
Lord Wigley (PC)
My Lords, I am delighted to follow the noble Baroness, Lady Fraser. I agree with very many of the points she made, particularly the emphasis that she has. I wish to speak to my Amendment 54, which stands in my name and those of my noble friend Lady Smith of Llanfaes and the noble Baroness, Lady Humphreys, whose support I welcome. It proposes a new clause entitled “Evaluation of nations-based production”, and was tabled by my colleague Hywel Williams MP in Committee in the other place but did not get debated.
Viscount Colville of Culross (CB)
My Lords, I declare my interests in the register. I am also an officer of the Channel 4 APPG.
I am pleased to have put down my name to Amendments 16 and 17 in the name of the noble Baroness, Lady Fraser of Craigmaddie. I very much support the principal aim of these amendments, which is to push content commissioning towards the regions and nations. I will also focus my comments on the publicly owned Channel 4.
These amendments complement my amendments in the previous group, which demanded more support for small independent television producers. The majority of SMEs are in the regions and nations, which Channel 4 should support. In doing so, it will support SMEs. These small companies are the lifeblood of the television production industry. They are often in areas where stories and lives are not covered by the mainstream media. It is in these places that the untold stories from an underserved audience will spring. After all, fresh ideas and stories from places overlooked by the metropolitan-based companies are surely central to the PSBs’ remit.
The production base in the nations and regions has come a long way in the last 20 years. With the growth of STV and the establishment of a Channel 4 lifestyle programmes production base in Glasgow, there has been a big increase in the number of people employed in the industry in Scotland, but the regional hubs in Cardiff and Scotland are struggling in the present climate. Now is the time for Channel 4 to play its part in the continued expansion of production talent across the industry.
It is a long-held view by many in the industry that it is expensive to commission from the nations. They say that staff have to be sent up from London, with all the extra costs that incurs. Surely, the response to that is to ensure that Scottish and Welsh independent companies are commissioned. They will employ producers and talent they know and trust, who will most probably be local. They will carry out post-production locally and employ indigenous Scots, Welsh or Yorkshire editors, graders and sound engineers in facilities houses based near them. The aim of these amendments is to build a big enough indigenous talent base that local staff can be employed and their work can go some way to reflect the parts of the United Kingdom they live in.
The present crisis of commissioning in the industry, for both scripted and unscripted programmes, has meant that not just small companies but medium-sized companies are closing. As a result, the Scots, Welsh and regional facilities houses are also closing and struggling. The lack of work has meant that people are leaving the industry, and the promises of expanding production bases in the regions and nations are dying. At this rate, the naysayers in the industry will be right: it will be too expensive to produce programmes in the nations and regions, because talent will have to come from London and the south-east, if not from abroad.
In my speech on the first day in Committee on the need for Channel 4 to focus on commissioning from SMEs, I read out the channel’s submission to Ofcom for licence renewal, which claimed that the smaller scale of the production sector outside London meant that the companies in the regions and nations were not able to develop or realise big ideas. This statement reflects badly on Channel 4’s view of television production in the parts of the country affected by Amendments 16 and 17. Not surprisingly, Scots indies responded that, far from being unable to develop and deliver big ideas, they were capable of making programmes for the biggest streamers and broadcasters in the world. I can say from personal experience of working with American commissioners that they are very demanding. If a company can supply a streamer or an American broadcaster, it can almost certainly supply Channel 4.
However, unfortunately, while those international commissions prove that the indies in the nations have talent and capacity, the revenues generated from them are not sufficient to sustain the production bases. They often pay a straight production fee with little back end, unlike the terms of trade that British channels use when dealing with indies, guaranteeing them the back-end revenue to build their businesses.
The letter by the Scots production companies continued:
“As a publicly owned public service broadcaster with a stated ‘strong commitment to represent the whole of the UK’ and ‘to stand up for diversity across the UK’, Channel 4 must fulfil its remit for the benefit of the UK as a whole and support the sustainable growth of the industry outside of London”.
The CEO of Channel 4, Alex Mahon, responded shortly afterwards, in April this year, when she told the Creative Cities Convention in Bristol that there had been questions about making the quota bigger. She said:
“We will try and do more because we need to think more carefully about how we represent people on air. It is time to make that shift to support companies more sustainably”.
Since then, Channel 4 has issued a statement to me, saying that
“we are announcing that we would support, in principle, a managed timely and carefully considered increase in our commitment to programme making in the nations”.
However, Channel 4 did not go any further on the detail of this proposal, or reveal by how much it would increase its spend in the nations and regions. It is leaving it up to Ofcom to decide the appropriate quota.
Once again, Parliament is leaving an important decision to be made by Ofcom. As Bills pass through this House giving Ofcom increasing power, it is beholden on us parliamentarians to give the regulator guidance. Parliament, not Ofcom, should decide the national and regional quotas for content commissioning. We must do what we can to encourage one of our great public service broadcasters to stand by its chief executive’s words, to support companies more sustainably and to increase the quota to the nations beyond 9%. I ask the Minister to support the figure of a 16% quota in the nations and 50% outside London.
Channel 4 reset itself in 2020, with the slogan “4 All the UK”. At the time, Ofcom increased its quota for the nations from 3% to 9%. However, now is the time to go further. Channel 4 aims its commissioning strategy at fewer, bigger, better programmes. I ask noble Lords to consider where that leaves the middle ground—the hundreds of hours of television annually filled by content with a medium spend. These companies are the backbone of the industry outside London and are suffering from the present commissioning strategy. As one of the leading figures in Scottish television, Alan Clements, who runs the independent production company Two Rivers Media, said:
“If you make your corporate slogan 4 All The UK, then you really need to walk the walk as well as talk the talk”.
The Lord Bishop of Newcastle
My Lords, I rise to speak to Amendments 16 and 17, tabled by the noble Baroness, Lady Fraser of Craigmaddie, to which I am pleased to have added my name in support.
Our country is one of diversity. The four nations that make up the UK include many regions, each with its own culture, sense of humour, accent, concerns and interests. As public service broadcasters are owned by the whole of the UK public, it is important that they truly reflect the public they serve in all their regional diversity.
I regrettably could not be present for the first day in Committee to support the amendments from the noble Lord, Lord Dunlop, seeking to ensure that our PSBs reflect the diversity of this nation through the protection of Gaelic broadcasting, which is part of the wider landscape that these amendments speak to. I hope that I will be present to express my support on Report.
With Channel 4’s current quotas, 91% of its production is reserved for England and 65% for London. Its London-centric attitude to production is confirmed through its claim that
“the UK production sector continues to be significantly smaller outside London … there are fewer production companies, often smaller in scale, and therefore with less capacity to develop creative ideas and produce them”.
Along with independent production companies across the country, I dispute this. The BBC has not faced difficulties adhering to its higher regional quotas, and indeed demonstrates that significantly expanding production networks outside London is possible and yields positive results that attract interest and further investment.
Ensuring support for the creative sector outside London requires intentionality. New and smaller production companies cannot grow without regular and sustained employment. Implementing quotas would ensure that these businesses receive regular income in the longer term, allowing them to grow while nurturing local talent and skills.
As the noble Baroness, Lady Fraser, outlined in her excellent speech, quotas work. The BBC now aims for 60% of its TV production to take place outside London by 2027-28, and its production bases in cities throughout the country demonstrate how the industry is capable of diversifying its production locations, employing staff from local economies. These amendments would simply place the same quotas on other public service broadcasters.
In March the Government confirmed funding towards the development of Crown Works Studios in Sunderland—a very welcome investment. The potential for the north-east in this sector is at last gaining recognition. It should be partnered with legislation to ensure that studios outside London, such as Crown Works, are fully utilised by public service broadcasters. With Northumbria University ranking second in the Guardian’s latest university league table for film production, our region is not lacking in talented, skilled and creative minds in this sector; what is lacking is opportunity. Those who want to pursue a career in broadcasting are being pulled away from the region to London, taking their skills with them. Those who remain in the region face a lack of opportunity. For many, their talent and potential are left unfulfilled. These amendments seek to change this narrative.
By placing a requirement on Ofcom to ensure that PSBs produce 50% of their programmes outside London and 16% outside England, in proportion to each UK nation’s relative population and measured by both hours broadcast and expenditure, these amendments would equitably spread opportunity across the country’s regions. The different regions and nations throughout the UK are rich in creative skills, and we are all left poorer if we continue to neglect them.
Baroness Humphreys (LD)
My Lords, this group of amendments is of great importance to the independent television production sector in Wales. Amendments 16 and 17 relate to how much commissioning is done outside of London by channels 3, 4 and 5. Amendment 54 relates to the issue of brass plating. I thank the noble Baroness, Lady Fraser of Craigmaddie, and the noble Lord, Lord Wigley, for tabling these amendments. I have added my name to Amendment 54 and support all three amendments, as do my colleagues on these Benches.
Teledwyr Annibynnol Cymru represents the independent sector of Wales and is made up of some 50 companies of varying sizes. They produce content for BBC, ITV, Channel 4, Channel 5 and Sky. They also produce almost all the original television and online media content for S4C. Their continued success helps the Welsh and UK economies. They do, however, rely on the continued support of our UK public service broadcasters, including Channel 4, which has brought greater resource to working with TV production companies throughout the UK in recent years. Over the last five years, the resource from Channel 4 has never fallen below 54% in the commissioning of out of London hours, and never below 45% in spend. Channel 4 has committed to a future level of 50% of spend and hours outside of London against the 35% requirement in its licence, and has created hubs throughout the UK to enable this. There is nothing to indicate that it will deviate from this commitment.
I can understand the disappointment felt by many in the sector who have learned that Ofcom has not opted to raise the out-of-London quota from its present level of 35% in its proposed new licence for Channel 4. It appears that Ofcom perhaps does not recognise that Channel 4 has changed its commissioning structure and approach. This failure to recognise the reality of Channel 4’s current out-of-London commissioning commitments leaves the independent television production sector in Wales in a quandary. It believes that the 35% quota level set by Ofcom is not fit for purpose.
The reality is that Channel 4 has, over the last five years, achieved a level of out-of-London hours commissioned of between 54% and 66%. To retain the 35% level within the new licence is very much in direct contrast to the current reality. Amendments 16 and 17 would put a commitment in the Bill to the 50% figure for hours and spend by Channel 4.
Amendment 54, in the name of the noble Lord, Lord Wigley, deals with brass plating and calls for a new clause to be inserted after Clause 36. This new clause would protect Wales’s production companies. These companies are set up by local production and business talent, have their headquarters in Wales, employ locally and spend in their communities. However, the present situation allows a TV company from outside Wales, or any of the devolved nations, to establish a small satellite presence in the nation in order to win a network PSB commission and qualify for the out-of-London commissioning quota. This, of course, is what is referred to as brass plating.
Welsh independent production companies acknowledge that the aim of the present system is to grow production services around the UK and that, in so doing, it seeks to ensure that a wide range of voices, stories, talent and perspective is delivered to UK audiences. But there are concerns within the sector in Wales that brass-plating has a number of downsides, which have already been referred to by the noble Lord, Lord Wigley. First, the profits from the production flow back out of Wales, leading to less investment in the sector in Wales. Secondly, talent ends up being recruited from outside Wales, limiting the opportunities for Welsh production talent to work on UK-wide and international shows. Thirdly, in some cases, the programme will have less of a Welsh identity or even make factual errors.
Amendment 54 ensures that there are clearer guidelines as to what constitutes a substantive base in a devolved nation, that there is a commitment by a production company to remain in the nation for a specified amount of time and whether a production company has had a presence in the nation for at least 36 months. The independent television production sector in Wales is clear that these amendments are not a deterrent to inward investment. That inward investment is welcome, but on its present basis it encourages a hit-and-run approach by companies from outside Wales and puts Welsh independent production at a disadvantage.
Taken together, these amendments seek to regularise how much commissioning is done outside London and seek to create a more level playing field for those independent production companies operating in the devolved nations.
Baroness Bloomfield of Hinton Waldrist (Con)
I support all three amendments in this group, particularly Amendment 54 in the name of the noble Lord, Lord Wigley, and agree with almost all that has been said already. I apologise to the Committee for having been unable to speak at Second Reading, so I shall be brief.
This amendment seeks to ensure that production companies which claim to have a base in Northern Ireland, Scotland—and of course Wales—in order to win their share of out-of-London commission, do genuinely have a base in wherever they claim to be. Naturally, the focus of my concern is for the impressive TV and film production sector in Wales, although my comments could apply equally to the other devolved nations.
There are some 50 TV production companies in Wales active at any one time, making shows for all the UK public service broadcasters, including the Welsh language channel, S4C, so very useful for us Welsh learners, with or without its subtitles. Some are also involved in international coproduction and commissions. Indeed, Cardiff is the third-largest production base in the UK.
Indigenous TV production companies invest heavily in the Welsh sector, spending in the local economy, training and developing staff as well as investing in facilities. For example, Rondo Media recently partnered with S4C and Creative Wales to set up the Aria Film Studios in north Wales. We also have Wolf, Dragon, Swansea’s Bay Studios and Gorilla—there is a theme here—Wales’s largest post-production company, based in Cardiff Bay. This makes it all the more the important that brass-plating—that is, as we have heard, companies setting up a small satellite presence specifically to win a PSB commission—is prevented.
Although Ofcom already publishes guidelines which set out three criteria, any two of which should be met to qualify, it is felt that although the letter of the guidelines might be being followed, perhaps the spirit of them not so much. This amendment is not intended in any way to inhibit inward investment. It is more designed to ensure that there is a clearer guideline as to what constitutes a substantive base in terms of the company being well established in Wales. This means not only that more talent can be homegrown, but that the profits from Welsh productions may flow back into the sector in Wales, providing a virtuous circle. It might also have the additional benefit of ensuring that mistakes are not made in relation to Welsh culture, nor stereotypes reinforced. I wholeheartedly support all these amendments.
Baroness Bull (CB)
My Lords, I support Amendments 16 and 17 in the name of the noble Baroness, Lady Fraser of Craigmaddie. I will not repeat the excellent arguments that she and her co-signatories and indeed others around the Committee have already made. I would like to briefly underscore one important aspect of her amendments: the importance of regional production and commissioning in levelling up opportunities for creatives and communities.
On the first day in Committee, I spoke to my Amendment 2, which aimed to recognise and enshrine the symbiotic relationship between public service broadcasting and the broader stimulation of a thriving creative economy across the UK. What gets shown on screen is a very important part of that, and Amendments 16 and 17 would help to ensure that programmes indeed reflected the lives and concerns of communities across the UK, as the first clause requires.
The impact of the amendments goes beyond what is seen on screen; they would also impact what we see on the ground—marked regional inequality in the creative industries, which has worsened since the pandemic. The policy and evidence centre’s 2023 report, Geographies of Creativity, revealed that the concentration of the UK’s creative industries in London and the south-east remained unvaried throughout the pandemic. The same cannot be said about the creative industries outside that area. The north-east presents a particularly worrying picture, as it experienced a growth rate of 81% between 2011 and 2019, the highest across the country, but the most severe decline during the pandemic. The region’s share of the UK’s creative economy was 1.9% in 2011, rising to 2.7% in 2019 but falling back to 2% in 2022. The pictures in other regions outside London and the south-east are not dissimilar. That data tells us something compelling: while the creative industries hold immense economic potential across the UK, that economic potential is at risk without adequate support and protection.
Lord Dunlop (Con)
My Lords, I rise briefly to support Amendments 16 and 17, introduced persuasively by my noble friend Lady Fraser of Craigmaddie, and, not least, to add another Scots voice to the many Welsh voices that we have heard already.
The independent production sector has naturally been concerned about the implications for Channel 4’s commissioning role of the removal of the existing publisher-broadcaster division. However, following the decision not to proceed with privatisation, providing Channel 4 with the flexibility to make its own content is a logical step that deserves support. As my noble friend made clear, one of the strengths of Channel 4 is its commitment to represent the whole of the UK in all its diversity. It would be a backward step if, in giving Channel 4 greater flexibility, its role as an innovator and investor, stimulating the production sector in all parts of the country, was compromised. We often question whether our news media organisations sufficiently reflect the full diversity of the UK, and the same concern exists for the making of programmes. That is why we ask the BBC to meet quotas for network programming outside England and in each of the home nations.
As we have heard, there is tremendous creative talent outside the M25, including a vibrant sector in Scotland. That is also why some of the biggest global brands commission programmes from independent producers in the nations and regions, as indeed Channel 4 has done historically. However, if in this new world producers in the nations and regions are to remain at the forefront of the minds of Channel 4 commissioners, quotas as proposed by my noble friend are a proven means of providing them with the right incentives without unduly constraining Channel 4’s future room for manoeuvre.
Channel 4, while commercially funded, is a public asset. I believe that quotas are a proportionate measure to reflect its special place in our media landscape. I hope that my noble friend the Minister will be able to work with my noble friend Lady Fraser to provide the reassurance that the independent producers in the nations and regions are seeking.
Lord McNally (LD)
My Lords, one of the great values of Committee stage for Ministers and regulators is that it gives them a warning of trouble ahead if they do not listen to what is said during it. This debate has been a very good example of that. I do not think Parliament is satisfied yet that we have the balance right in the ecology that we are trying to create.
It is interesting to remember that our broadcasting system is a child of Parliament and not of government or regulators. Over the last 100 years, Parliament has tweaked the market to do various good things. It created a national broadcaster under royal charter; most social historians would say that the BBC as created did much to unify the nation—it certainly brought certain accents to the fore, such as those of Wilfred Pickles and JB Priestley, which had not been heard before in London.
We are at a kind of turning point again. Of course, we are going through a revolution, the management of which is perilous for many in the major companies. As has been said in some of the briefings to us from ITV and others, the more we put demands and conditions on public service broadcasters, the more difficult it is for them to compete. It is about getting a balance right between the benefits we get and the benefits we give to PSBs and their ability to compete in this rapidly changing world.
I went to the meeting that the noble Baroness, Lady Fraser, organised, and it was very interesting to hear the passionate interventions from Northern Ireland, Wales and Scotland. However, as has also been said today, the development of talent outside London has also been significant. I still think of myself as coming from “Granadaland”; it is very difficult now to realise just what an impact Granada had on the north-west and on its confidence. In a way, there was no great plan, but it was a magnificent piece of genius to create ITV as a federation of regional companies, and from those regional companies came many benefits.
I am not sure how deeply Willie Whitelaw and others thought when they created Channel 4 and gave it that commissioning role, but it has certainly had a massive impact on the creative sector. I want us to make sure—this is the only intervention I make on this—that the Minister accepts the invitation from the noble Baroness, Lady Fraser, and that Ofcom, if it is listening, also realises that there is deep concern in Parliament that what comes out of the Bill retains what has been one of the great benefits of our development of the media, which is that we have found, nurtured and developed talents in the regions. The real danger in saying that we are going to concentrate on big productions and so on is that we get the bland and the international, and not what has been the great benefit of the development of our television and our broadcasting—the talent and the voice of the regions.
Lord Bassam of Brighton (Lab)
My Lords, this debate has been a fascinating example of how the nations and regions are well represented in the Committee. We have heard contributions from Wales, Scotland, Newcastle and across the country.
The noble Baroness, Lady Fraser, argued very persuasively that quotas work. These amendments are aimed in a targeted and precise way at the hours and expenditure on programmes broadcast that are made and produced outside London. Amendment 17 additionally reflects this by reference to
“the nations of the United Kingdom”.
Amendment 54, tabled by the noble Lord, Lord Wigley, seeks to ensure that there is a proper evaluation of companies that claim to operate in the nations of the UK by reference to criteria based on staff numbers, a published commitment to remain and a background of time spent in that nation.
We on these Benches have a great deal of sympathy and offer our encouragement and support to the principle behind these amendments. The last 20 or so years have seen, as we touched on in earlier debates, the growth of production outside London. As the noble Lord, Lord McNally, reminded us, regional production was a great strength of the federated ITV companies. Their big opportunity in the late 1950s and 1960s led to such great companies as Granada Television and Harlech Television. Surely the latter is the only time that a Lord has given his name to a TV company, but the grandfather of the noble Lord, Lord Harlech—who is in his place—was clearly a pioneer. Independent production companies now work from all over the country; although some of them are suffering the difficulties that have developed from the direction of travel for advertising revenue, that is one of the great strengths of our media landscape.
The Government have chosen to change the way in which the provider of a licensed public service channel delivers its regional production quotas. The key question for the Committee and the Government to consider is whether the percentages set out in the amendment are the right ones for Ofcom to work to and how best to ensure that the necessary flexibility is retained within the quota system. We see regional production in the context of reflecting the diversity of the nations that make up the UK—diversity in a wider sense—and the need to reflect better our rich regional cultural diaspora, which a number of noble Lords have made wonderful reference to this afternoon.
It is also important to ensure that we recognise the value that TV production can bring in levelling-up. Why should TV production be concentrated in the wealthier parts of the UK and overconcentrated in the south-east and London? There are big disparities in regional wealth in this country—some of the biggest, largest and most extensive across Europe—and TV can do much to address that. To their credit, the PSBs have all made attempts in the last decade or so to decentralise production and bring about a transformed media landscape—Channel 4 in Leeds and Glasgow, the BBC with its MediaCityUK, and ITV devolving some of its production and major locations. As legislators, surely our role is to strengthen and enhance this. For that reason and others, these amendments are very welcome. I hope that the Minister responds positively to the spirit of these amendments.
On the issue of regional TV and its importance to production, has the Minister given any thought to the future of the 34 hyperlocal TV services licensed by Ofcom? These small operators were enabled by Labour’s Communications Act 2003, but they are not included in the definition of public service channels. These small channels do an important job in local news production at a time when, as we all know, local news is diminishing. Collectively, their reach is considerable, with over half a million viewers. Is this omission an oversight by the Government? If it is, would the Minister agree to meet and discuss this with representatives of the local TV companies to see what can be done to reinstate their public service broadcasting designation? I appreciate that this is not an amendment before us this afternoon, as no such amendment has been tabled, but debates on the Bill might be the opportunity to give a little sunshine to local TV companies and for the Government to put that on record.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, I hear often talk about how we need an assembly of the nations and regions, but, as the noble Lord, Lord Bassam, has said, we have had a great display of that today from your Lordships’ Committee, with contributions from across the United Kingdom.
As I set out on our first day in Committee, His Majesty’s Government are committed to stimulating growth in our world-leading production sector throughout the length and breadth of the UK. As the noble Lord, Lord Wigley, pointed out, there is a long and proud tradition of that happening across the UK; he gave many examples from Wales, understandably, and pointed to the north of England as well. We have this month lost Gudrun Ure, who played the eponymous Super Gran—a production I enjoyed in my childhood, made by Tyne Tees Television and filmed along the north-east coast in Whitley Bay, Cullercoats, Tynemouth and many other places. It was a powerful example of the emotional pull of TV production in inspiring tourism and encouraging people to visit but also in bringing production closer and, I hope, awakening sparks in people wherever it is made.
As noble Lords have alluded to, it is important to point out that the picture at the moment is a strong one. In 2022, all of our public service broadcasters exceeded their regional production quotas, and some significantly so. We have seen good and significant growth in production outside England and outside our capital. Production spending in Scotland is now worth over £266 million, supported by developments including Channel 4 opening one of its creative hubs in Glasgow in 2019. Television production in Wales continues to make impressive strides forward, with the proportion of hours of BBC content produced in Wales increasing year on year, in part thanks to major productions such as “Wolf” and the rest of the menagerie of animals that my noble friend Lady Bloomfield of Hinton Waldrist mentioned. Northern Ireland’s production industry is making a significant contribution, as shown by the rise in hours of content produced there and broadcast on public service broadcasters, which has increased consistently over the past five years. The BBC, Channel 4 and Channel 5 all increased their production expenditure in Northern Ireland in 2022. The growth in production outside London in recent years is a great success story, and our public service broadcasters have been one of the significant contributors to that growth.
We are also encouraged by commitments to go further, such as the BBC’s pledge in its BBC Across the UK strategy to increase its production expenditure outside the capital to 60% by 2027, and Channel 4’s pledge to continue to spend 50% of its main channel commissioning budget outside London. However, it is right that we keep this progress under review, and I welcome the opportunity we have had to debate these issues this afternoon, thanks to the amendments that have been tabled in this group.
Let me start by addressing Amendments 16 and 17 in the name of my noble friend Lady Fraser of Craigmaddie and acknowledge the support that she expressed on behalf of the noble Baroness, Lady Foster of Aghadrumsee, with whom I have had the opportunity to discuss some aspects of the Bill outside the Chamber. The regulatory system proposed in the Bill will continue to support the success of the industry in several ways. The Bill is explicit in Clause 1 of its intention to recognise the need for programmes produced outside London through our new public service remit. Underpinning this is the detailed system of quotas on which this amendment focuses. This system already creates the mechanisms to hold public service broadcasters to account, and the success of the UK production sector demonstrates this.
The level of these quotas is set by Ofcom, which has broad powers to amend them as it sees appropriate. Should the success of the UK production sector not continue, Ofcom has the power to take action. It could, for example, increase regional production quotas over time, in much the same way as envisaged by the amendments that my noble friend has proposed, or it could tie the quotas to population shares. I can see why it might be tempting to pre-empt or constrain Ofcom’s consideration of these matters and to legislate directly as these amendments suggest and as the noble Viscount, Lord Colville of Culross, set out in his contribution.
I agree with the noble Viscount that there is an important role for Parliament. We are all grateful that the chairman of Ofcom, the noble Lord, Lord Grade of Yarmouth, is in your Lordships’ House and is in his place to hear these debates. Even if he were not a Member of your Lordships House, Parliament has the opportunity to express its views directly and indirectly through the Select Committees and through my department. I hope the noble Viscount would agree that it is also important that Ofcom can act with agility in this dynamic and often fast-changing sector.
It is essential that Ofcom has the flexibility to calculate regional quotas on broadcasters independently, weighing the evidence and balancing the different equities in the sector. That approach allows Ofcom to alter quotas smoothly over time to react to developments that it sees. As the financial position of both the public service broadcasters and the sector more broadly changes over time, we want Ofcom to be able to take this into account and adjust quotas accordingly, without the need for primary legislation on each occasion.
However, I reassure noble Lords that I, and my colleagues in DCMS, have heard the strength of feeling on this issue from the sector, particularly in relation to Channel 4’s “out of England” quota, which is set at 9% of eligible programmes and expenditure. I note that Ofcom is currently consulting on the terms of Channel 4’s next licence, which will come into force from 1 January next year, and also that Channel 4 has said that it would support a managed and carefully considered increase to its programme-making commitments in the other home nations. His Majesty’s Government look forward to the outcome of the licence renewal process and seeing how the sector’s concerns have been addressed.
For our part, the Government will continue our broad support for the screen industries across the United Kingdom through generous tax reliefs, as we saw in the last Budget and previous ones, through investment in studios such as the Crown Works Studios, which the right Reverend Prelate the Bishop of Newcastle rightly reminded us of, supporting innovation and promoting independent content through the UK Global Screen Fund.
We want to see the production sector continue to thrive. When it comes to our public service broadcasters’ contribution to that goal, we believe that the existing system of regional production quotas, which, as I say, our public service broadcasters can and do exceed—some of them significantly—remains the best way to continue to drive the growth that we have seen in recent years in every part of the UK.
For these reasons, I am not able to accept the amendments that my noble friend Lady Fraser of Craigmaddie has set out, but I accept the invitation that the noble Lord, Lord McNally, reiterated on her behalf and, if I may, I extend it to the noble Lord, Lord Grade, or one of his colleagues at Ofcom, so that we can talk in more detail and, I hope, seek to reassure her further about how the existing system provides for the concerns that she has set out.
Lord Bassam of Brighton (Lab)
The noble Viscount, Lord Colville, made a good point about Parliament being consulted. I wonder if the noble Lord could say something about how both Houses—and Select Committees—could be consulted and considered in the question of quotas and the distribution of regional production. I do think that is an important element of this debate, and I am sure noble Lords around the Committee will want to hear something positive on that.
Lord Parkinson of Whitley Bay (Con)
I hope the meeting I have just indicated I am very happy to hold will be an opportunity to do that, with representatives of both the Government and Ofcom present, and an opportunity for noble Lords to ask questions on the issues of quotas, and not just in relation to the Bill that is before us. As the noble Lord says, Select Committees on an ongoing basis allow for the scrutiny of Ofcom’s work.
Turning to Amendment 54, in the name of the noble Lord, Lord Wigley, I recognise the intention behind his amendment, which seeks to address concerns about the programmes that our public service broadcasters are counting towards their regional programme-making quotas. As he and my noble friend Lady Bloomfield said, this has been referred to as “brass plating”, and I am grateful in particular to the Welsh Affairs Committee in the other place for exploring this issue in its recent report, Broadcasting in Wales. As he noted, the trade association TAC has also raised this issue and has done so with my department directly.
My officials have raised the matter with Ofcom again following the publication of the Select Committee’s report. Ofcom has confirmed that, in order to qualify as a regional production, relevant productions must meet two of three criteria. These include the “substantive base” criterion, which is one of the focuses of the noble Lord’s amendment. However, productions are not able to rely on this criterion alone; they must also meet one of the two other criteria relating to production spending. Ofcom has also confirmed that it strengthened and clarified the requirements associated with the “substantive base” criterion when it updated its guidance on regional productions for public service broadcasters in 2019. This guidance came into effect for productions broadcast from 1 January 2021.
Having reflected on this advice, we remain of the view that Ofcom has the necessary powers to identify, examine and, if necessary, close any loopholes related to the regulatory regime for regional programme making. We do not, therefore, see the need to legislate in the area of the noble Lord’s amendment.
Lord Wigley (PC)
I am grateful to the Minister for the consideration he and his officials have given and the discussions that have taken place. Would he, however, accept that those at the sharp end have perhaps the most detailed knowledge of the problems that arise and the means used by some people using brass plating to get around regulations? Would he be prepared to meet some of these people to understand more directly the exact nature of this problem and some of the ideas they have that might be useful in overcoming them?
Lord Parkinson of Whitley Bay (Con)
Perhaps if the noble Lord has some examples, he might like to bring them to the discussion with Ofcom that I mentioned. It would be helpful for the regulator to hear, as well as for us in government as policymakers to understand and see, whether it is on the enforcement and assessment side or the policy-making side that we need to consider this further. I hope he will be able to join us for that.
Lord Empey (UUP)
On the amendment of the noble Lord, Lord Wigley, assuming there are a few scraps left for the rest of us, could the Minister tell us what infrastructure role is played when the quotas are being assessed? Some infrastructure needs to be on a massive scale, even a national scale. To what extent is that taken into account when the quotas are being assessed?
Lord Parkinson of Whitley Bay (Con)
To qualify as a regional production, at least two of the following three criteria must be met: a production company must have a substantive business and production base in the UK outside the M25; at least 70% of the production budget, excluding some specific costs, must be spent in the UK outside the M25; or at least 50% of the production talent, by cost, must have their usual place of employment in the UK outside the M25. Two of those three criteria have to be met for the assessment to qualify.
The noble Lord, Lord Bassam, rightly used the opportunity to point to the importance of local television providers. The Government recognise the important role that they play, such as Latest TV in his home city of Brighton, in providing excellent local news and content, often to viewers who are digitally excluded. That is why we introduced secondary legislation earlier this month to give Ofcom powers to renew the licences for the local TV multiplex and local TV services. This legislation was informed by the results of a public consultation and will ensure that local TV services continue to receive the valuable regulatory benefits they have received since 2013. That includes not only access to and prominence on Freeview but prominence on regulated electronic programme guides for simulcast satellite, cable and internet protocol television services. I am grateful to him for the opportunity to raise that in the context of the Bill.
Lord Bassam of Brighton (Lab)
Might the noble Lord be prepared to meet them at some point? That might have some value.
Lord Parkinson of Whitley Bay (Con)
Yes, either I or, I am sure, my colleague in another place who has direct responsibility for this, not just in relation to the Bill but more broadly, will be happy to speak to them further.
Baroness Fraser of Craigmaddie (Con)
My Lord, I thank everybody from around the Committee who contributed to this debate. As the noble Lord, Lord McNally, said, I think we have given due warning of trouble ahead to the Minister. I am grateful for that. The noble Viscount, Lord Colville, reminded the Minister of the very strong feelings in the sector across the nations and the regions. As the noble Baroness, Lady Bull, said, despite the rosy picture we may be able to paint, there are marked inequalities in the system. To ensure that this moves in the right direction we need intentionality, as the right reverend Prelate mentioned.
I note that the Minister mentioned figures up to 2022 and the creative hubs in the regions, but they are no good if the commissioning relationships are not made from those hubs. I put to my noble friend that that is what the sector has been concerned about since 2022. Frankly, Channel 4 sees quotas as a target, not as a minimum—the figures from PACT show that it is just making it, year on year—so they do work and it is important that we build on what is there and do not jettison it.
I am very grateful to the Minister for his offer of further discussions with us and Ofcom, but I am mindful of the question from the noble Lord, Lord Bassam: where is the parliamentary scrutiny and where are we setting this? We have heard the strength of feeling. Do we really want to leave it to Ofcom yet again? As many Peers said, we need to ensure that the spirit, not just the letter, is setting the right direction. I thank the Minister for his offer of further talks. On that basis, I beg leave to withdraw.
Member’s explanatory statement
This amendment secures that section 368J(4), (5) and (7) of the Communications Act 2003 applies for determining the qualifying revenue derived from a non-UK on-demand programme service.
“(aa) where it is a service that forms part of a designated internet programme service, it satisfies the conditions in subsection (2AA), and”Member’s explanatory statement
This amendment and my amendment to Clause 20 at page 24, line 5, add to the requirements for a relevant service which is part of a multi-service designated internet programme service (see section 362AA(10)(c), inserted by Clause 28).
Lord Parkinson of Whitley Bay (Con)
My Lords, I rise briefly to address the government amendments which I have tabled in this group: Amendments 19 to 24, 27 and 28, and 36 to 41. These, although numerous, are all minor technical amendments to provide Ofcom with the necessary tools to ensure that the regime delivers for audiences. The amendments will close off any opportunity for non-public service broadcaster services to qualify. They will update the provisions on contract voiding and provide consistency in definitions, in line with changes that were made to the Bill in another place. They will enable Ofcom to specify that audiences should be able to continue to watch events from the beginning or to rewind while an event is in progress—perhaps including debates in your Lordships’ House—in its adequate live coverage regulations; and they will ensure that Ofcom has appropriate flexibility to determine any penalties. I hope, therefore, that noble Lords can support these amendments and I look forward to noble Lords making the case for the other amendments that they have tabled in this group. I beg to move.
Baroness Grey-Thompson (CB)
My Lords, I shall speak to Amendments 25, 26 and 30, which are in my name. I draw attention to my interests in the register: I am also a member of the All-Party Parliamentary Media Group.
Whether it is Wimbledon, the Olympic 100 metre final, the Euros joy and World Cup despair of the Lionesses, or the optimism of the FA Cup, listed events have a special place in people’s hearts and memories—but how and when we watch these big sporting moments that can unite nations and encourage participation, social cohesion and pride is changing. Thanks to the listed events regime, devised in the mid-1990s, major sporting events are freely available to all audiences, especially those who cannot afford to watch sport behind a paywall—great if you can watch in real time on your TV, but currently there is no protection for digital on-demand coverage of these much-loved events. If no action is taken, anyone who wants to watch, say, Team GB on their tablet or smartphone or see the highlights could miss out, especially with events taking place in different time zones.
At Tokyo 2020, the gold medal-winning performance by BMX specialist Charlotte Worthington was watched by just 400,000 people at the time, as it happened overnight, but in the days that followed different forms of short-form coverage of the race generated nearly a tenfold increase in views; and, while the TV reach to the 2022 Commonwealth Games in Birmingham was about 20% lower than for the 2014 Glasgow Commonwealth Games, there were around six times more on-demand views of digital clips. Soon, digital and on-demand viewing will be the norm for watching legends being made. Looking beyond Los Angeles 2028 and Brisbane 2032, could Great Britain’s medal successes be behind a paywall?
Now is the time to not miss the opportunity. The Media Bill offers a once-in-a-generation chance to protect these moments for all of us, however, whenever and wherever we watch, and I am seeking to bring the regime up to date to safeguard the future of listed events for the next generation. The new clause will give enhanced regulatory protection so that these shared national moments are available to us all, making sure the benefits of watching on your TV in real time are afforded to clips and highlights, and will allow for time-shifted viewing, enabling people to watch on tablets and smartphones; and it would secure, where possible, adequate digital on-demand coverage of listed events made available free of charge to us here in the United Kingdom.
Audiences are changing. For Wimbledon in 2023, BBC coverage was streamed 54.3 million times on iPlayer and BBC Sport online—a new record. The men’s singles final peaked at 11.3 million on BBC1, with streams up by 58% on iPlayer, and the women’s singles final peaked at 4.5 million on BBC1, with streams up by 85% on iPlayer. For the 2023 FIFA Women’s World Cup, 12 million watched England’s Lionesses versus Spain on BBC1, with an additional 3.9 million streams on BBC iPlayer and BBC Sport online. There were 25.7 million streams on BBC iPlayer and BBC Sport online across the tournament—a 75% increase on the 2019 World Cup.
It is not just the BBC that wants to see this. The Culture, Media and Sport Committee recently concluded that
“digital rights should be included as part of the listed events”
and an independent report commissioned by Ofcom last year concluded that
“as expectations about the availability of live and secondary coverage of sporting events of national interest changes, we think that the current linear TV-centred regime risks failing to take into account the increasing popularity of secondary coverage”.
We know the Government recognise the issue and consulted industry a year ago, yet nothing has been done. Please do not let this opportunity pass. The time to act is now.
Lord Bassam of Brighton (Lab)
My Lords, this is a large group, as the Minister said in his opening comments, dominated mainly by government amendments. We are grateful to him for his explanation of the effects of the amendments, which we broadly welcome, although we have some questions about them. In particular, I would like a more precise understanding of the meaning of the Minister’s Amendment 19; I had hoped it might make our Amendment 29 irrelevant, but I do not think it does. All of us in the Committee are grateful to the noble Baroness, Lady Grey-Thompson, for tabling Amendments 25, 26 and 30, and I look forward to hearing something positive about them from the Minister.
We on these Benches have two amendments in this group: Amendments 29 and 31A. Amendment 29 would have one simple effect: it is designed to make provision for the coverage of listed events, which is not the same as live coverage. As the noble Baroness has explained, the position regarding the Olympics is, frankly, ludicrous: unless you are able to catch the live coverage of an event, you cannot view the same event on catch-up TV or in an edited highlights programme. Where the Olympics, a World Cup or similar events are in time zones that are 12 or 13 hours different from the UK’s, the position is even more ridiculous: sports fans are forced to become insomniacs—and worse—to watch blue-ribbon events within the Olympics programme. I am sure that was never the intention when the listed events regime was created, and I hope that we will hear from the Minister today that this peculiar state of affairs will be put right.
Amendment 31A seeks to insert a new clause. This reflects the concerns brought up by internet providers about the quality of listed events in the face of competing demands on our internet system. As we consider these changes to listed events, it is important that we also consider the audiovisual quality of digital delivery. Our frameworks must ensure good reliability to support a viewing experience worthy of the importance of these live events. Can the Minister answer the question that the new clause asks about how we ensure that listed events get their fair share of internet infrastructure as we see the digital share of television viewing rise further? That is especially true for listed events but it is worth asking more generally as well.
In the same vein, Amendment 30, in the names of the noble Baroness, Lady Grey-Thompson, and the noble Lord, Lord Addington, is of course one that we support, although it seems to be a more belt-and-braces version of our own. I am not wedded to a particular form of words, and if the noble Baroness has spotted a deficiency that requires plugging and her amendment achieves the same end as ours, we will happily support it at a later stage.
We are sympathetic to Amendment 31 from the noble Lord, Lord Addington. Cricket misses out in terms of coverage, and that is surely the minimum that we should expect for this much underrated summer game. Test and one-day format cricket have the ability to capture the national mood and imagination, and the nature and rhythm of cricket, with its rolling narrative, is surely worthy of a more advanced listed billing. I have never understood why test matches are not listed; the Ashes series, with its long national rivalry involving Australia, certainly should be. As a devoted cricket fan and participant in 60-plus seasons, I make a strong plea to your Lordships’ Committee to listen to this argument. I appreciate that my case is highly subjective but the recent Ashes series in the last 15 to 20 years have been compelling, and there is a compelling case for this event to be listed as well.
Lord Addington (LD)
My Lords, this is a series of issues around the importance of sporting events being listed as cultural assets. If you do not do it in a way that holds the full panoply of technology as it stands today, you are going to miss out on the principle. As somebody who lost quite a lot of sleep trying to follow the Tokyo Games, et cetera, I am slightly annoyed that I did not add my name to all the amendments from the noble Baroness, Lady Grey-Thompson, on the importance of overnight digital and highlight coverage. Live is usually preferable but you will not be able to see everything. For events that have multiple sports, you should not be able to see everything; it is a chance to see sports you do not otherwise see. It is a chance to see the panoply of sporting events going on.
We really need an undertaking from the Government that they are going to take this seriously. Is it a step back to try to get your video recorder set for the right time? I do not know, but that is the alternative. You either make sure that this is available or you accept that people will miss out. Once you have legislated to say that they do not, you will make sure they do. Can we have an undertaking here? I prefer my amendment to the one from the noble Lord, Lord Bassam, on this, but his amendment certainly would be better than nothing. However, I much prefer the amendment tabled by the noble Baroness, Lady Grey-Thompson.
As to the one on cricket, I wondered whether the enthusiasm of the noble Lord, Lord Bassam, would be containable, and it was not. I think that probably tells you why cricket should be there. Cricket is a major sporting event in this country. When the cricket team does well, the whole country has a lift. It is something unique; it is that bit of cultural capital that we keep. Anybody who doubts that, just go and watch what happens when we do well or badly. It is there; it fits into that structure. Other sports may do it, but I think cricket has a special place in the summer for this. Can the Government undertake to say how we are going to start to address this?
These are genuine issues, raised to make something that the Government have agreed to work. If we can get some firm commitment that they are going to take all these concerns and put them into something solid, I for one will have to withdraw on this; if not, we will be going back to it. We have no real choice. You are talking about sport’s place in our society as a cultural activity and something that touches the whole nation. If we are not going to do this properly, why are we doing it at all?
Lord Lansley (Con)
My Lords, I intervene briefly to express my support for Amendment 30 in the name of the noble Baroness, Lady Grey-Thompson. I think she has captured, very importantly, how the character of watching major sporting events has changed over recent years, certainly a great deal since the Communications Act 2003, when I had the pleasure of working with Lord Puttnam and others in another place on that Act—the Standing Committee and the Puttnam commission—back then. Of course, when we are looking at listed events, people were understandably focused on the live coverage in those days because that was predominantly how people watched sporting events. That has changed and we must adapt the structure of the legislation to match that.
I will come on, if I may, to the difference between Amendments 29 and 30. The noble Lord, Lord Bassam, referred kindly to Amendment 30 and I think there are advantages. I note that Amendment 29 somewhat suggests that the noble Lord and the Opposition Front Bench have started to write amendments a bit as a Government in waiting in a way in which we tend to see the Government thinking it a very good idea for Ministers to have the powers to do things however they wish. I think now the Opposition Front Bench wants to have similar sorts of powers—
Lord Bassam of Brighton (Lab)
We are not in the habit of getting ahead of ourselves.
Lord Lansley (Con)
I know that the noble Lord is sticking to the line to take, and nothing is being taken for granted. I completely understand. However, he will understand why I favour the amendment from the noble Baroness, Lady Grey-Thompson: because it incorporates the structure of this proper legislative reform in relation to on-demand services. It does not apply where somebody has access to on-demand rights and makes them available in a number of places to unconnected persons. That would not necessarily fall to be regulated because it is not exclusive, and the use of exclusivity is really important. It reflects what is done in relation to existing live events. Equally, if it is made available free to air or free of charge, it would likewise not need Ofcom’s permission; again, that is like live events.
The amendment very carefully addresses itself to the listed events—major events of national importance—where they are intended to be available on demand, exclusively by those rights holders only and by nobody else, and behind a paywall. This means, in effect, they are not available as most people would expect to see national events in the catch-up and on-demand world of broadcasting that we now live in. It is an excellent amendment and demands close attention by the Government. I urge my noble friend to consider whether this is now the time to make this additional change to the structure of the regulation of listed events.
The Lord Bishop of Leeds
My Lords, surely at a time when we want children to get away from the telly and actually do sports, it is right that they be confronted by sports that they may know nothing about. Was it not curling, whatever that is, which became very popular and captured the imagination? Most of us could not believe that there was a sport where you push something along in that way.
There is a serious point about how children and young people know what sports are there. It is a bit like the inscription by Orwell’s statue outside the BBC:
“If liberty means anything … it means the right”
to be confronted by opinions you do not like, or something like that. That must go for sports as well, but I really need to make a confession. I live in Headingley; I have never been. Cricket is one of those sports that I suppose some people like. I have never understood it, but I would rather go to curling.
Lord Bassam of Brighton (Lab)
The right reverend Prelate must be an expert with a broom.
Lord Parkinson of Whitley Bay (Con)
The House was stunned into silence by the revelation from the right reverend Prelate.
I thank noble Lords for the contributions they have made and the points raised on the other amendments in this group. We, of course, had a bit of a pre-match friendly during our debate on sport led by the noble Lord, Lord Wood of Anfield, on Thursday. Let me start with Amendments 25 and 26 from the noble Baroness, Lady Grey-Thompson.
The Government recognise the intent behind the noble Baroness’s amendments, and I know that she has had concerns about in particular the necessity of the new multisport provisions, whether “adequate live coverage” will meet the mark, and whether public service broadcasters will have the freedom to choose what they cover in the interests of their audiences. Perhaps I may take the opportunity to seek to offer her and other noble Lords reassurance on these questions.
First, on whether these provisions are necessary, the Bill introduces the concept of adequate live coverage for multisport events to ensure that partnerships between broadcasters which deliver for UK audiences can still go ahead in an age where dozens of sporting events can be taking place concurrently. We do not want inadvertently to create a regime which would prevent deals like the one currently in place between Warner Bros. Discovery and the BBC. Expansion of the scope of services covered by the regime to resolve the streaming loophole poses risks to these mutually beneficial partnerships between public service broadcasters and commercial broadcasters for multisport events. That is because the existing requirement for both parties to have the same coverage does not reflect the way that coverage is actually shared between them across different types of services.
There is no intention to weaken the public service broadcasters’ hand in negotiations, simply to ensure that partnerships between them and commercial broadcasters can function effectively to deliver the best outcomes for audiences and rights holders.
On whether “adequate live coverage” will hit the mark for audiences, it will be for Ofcom to make new regulations setting out what will be considered adequate. Following scrutiny and debate in another place, the Government amended to the Bill to set out the matters that Ofcom must take into account when defining adequate live coverage in its regulations. This is an example of Parliament giving direction to the regulator through legislation. This includes the forms of live coverage that would satisfy the interests of the public, and the desirability of facilitating arrangements which result in live coverage of listed events being shown on both public service and non-public service broadcasters.
To protect audiences’ interests, and in keeping with deals we have seen before, any partnership of this nature will require at least two live broadcasts on public service broadcasters. Ofcom is given the power to require more than two streams if it deems it necessary or appropriate, and it could also set requirements regarding the percentage of coverage or other considerations.
Finally, I think the noble Baroness, like me and others who have spoken, believes that it is vital that public service broadcasters continue to have the flexibility and editorial freedom to show the most incredible moments of these multisport events to public audiences. I reassure her and other noble Lords that the Bill enables Ofcom to require that “adequate live coverage” must allow the broadcaster involved to select what parts of the proceedings it wishes to show. It is vital that public service broadcasters maintain complete editorial control of live broadcasts when they enter partnerships so that they have the freedom to make decisions about what events to screen for the British public, and the Bill makes provisions for this.
For those reasons, I do not think that we need the amendments the noble Baroness has brought before us. However, I hope my words have provided reassurance about the checks and balances in place to deliver for audiences in the way she seeks.
Lord Addington (LD)
Is the Minister, in effect, saying that he is convinced that, under the current regime, catch up and clips will continue to be available, certainly when multiple sports are happening at different times? Will we get slightly better guidance on that? Will it be available for us to look it up and check on it—certainly before the next stage of this Bill?
Lord Parkinson of Whitley Bay (Con)
Yes, the Bill caters for the concerns that have been set out, but I will happily discuss that further with the noble Lord if on reflection he disagrees with the reasons I have set out.
I turn now to the noble Lord’s Amendment 31. The Government are keen to ensure that sporting events are made available to the public as widely as possible. That is why we have the listed events regime. We acknowledge the interest that fans have in watching the sports teams of our home nations compete. As noble Lords will appreciate, however, sports rights holders use income from the sale of broadcast rights for the benefit of the sporting sector more generally, so it is important that the regime continues to strike the right balance between accessibility and the ability of sporting organisations to generate revenues which they can invest in their sports at all levels.
The Government believe that the current list of events works to deliver the best outcome and strikes an appropriate balance. We therefore have no plans to review the list at this time. I know that will disappoint the noble Lord, Lord Addington, but it is why I cannot accept his Amendment 31.
The noble Lord, Lord Bassam, asked me to say a bit more about Amendment 19. We have taken the opportunity, as recommended during the pre-legislative scrutiny process for the Bill, to take steps to ensure that the streamer loophole is closed. This was a major flaw in the current regime which allowed for unregulated online services to acquire listed sports rights, while leaving Ofcom powerless to do anything. The current drafting therefore ensures that all TV-like services providing live content to UK audiences are in scope of the regime. Amendment 19, and Amendments 20 to 22, are technical amendments to future-proof the regime by closing off an opportunity for non-public service broadcaster services to qualify through the back door. The amendments tie qualification for the listed events regime to the way in which qualification for prominence is decided.
Lord Bassam of Brighton (Lab)
I get the sense that the Minister is sympathetic to the point we have made here and that it is more a question of timescale. If the Government are looking at this, what sort of timescale do they think would be right for them to ponder the question more widely?
Lord Parkinson of Whitley Bay (Con)
I am loath to set out a precise timescale, but the noble Lord is right: it is a matter of looking at this more fully, as well as considering the complexities of how it could be borne out if it were concluded that that were necessary.
I hope noble Lords will see, through the government amendments in this group, that we have worked with parliamentary counsel to respond to the points that were raised by the Select Committee and Members in another place about the scope of services to be captured by the regime. We have now closed the streaming loophole, which could otherwise have seen live coverage intended for UK audiences disappearing behind a paywall without the protections that the regime offers. However, as I have set out, it is a complex matter that needs a bit more thought. I am happy to set out some of that thinking and to allow officials to do so with the noble Lord if he would find that useful. For those reasons, I hope the noble Baroness, Lady Grey-Thompson, will understand that we cannot support her Amendment 30.
The noble Lord, Lord Bassam, has tabled Amendment 31A. I agree with him that it is crucial that audiences are able to view their favourite sports live in whatever way works for them, whether that is on a traditional TV platform or over the internet. However, as new technologies such as internet protocol television—IPTV—become more prevalent, we need to ensure that they continue to serve audiences. This amendment would ask Ofcom to review the delivery of listed events and other audiovisual content online, with a focus on how internet service providers can work with broadcasters to deliver IPTV. As I have said in previous debates, my department has an ongoing programme of work on the future of TV distribution. As part of this, we are working closely with the Department for Science, Innovation and Technology to consider many of the issues that the noble Lord, Lord Bassam, has raised today, including the reliability and quality of content provision on IPTV. That work is also ongoing.
Ultimately, while I agree that the issues that noble Lords have raised are important ones, this is not a Bill which is focused on the UK’s digital infrastructure. By considering the issue with regard to only one internet service—namely, television—we risk taking a piecemeal approach to what is an important and broader policy issue. For that reason, I am afraid I cannot accept the noble Lord’s Amendment 31A either. I commend Amendment 19 to the Committee.
“(2AA) The conditions are—(a) that the relevant service is provided by—(i) the BBC or a person associated with the BBC otherwise than with a view to generating a profit,(ii) the provider of a Channel 3 service, Channel 4 or Channel 5,(iii) S4C, or(iv) a person associated with a broadcaster mentioned in sub-paragraph (ii) or (iii);(b) that, where it is provided by the BBC or a person associated with the BBC, the service contributes to the promotion of one or more of the BBC’s public purposes;(c) that, where it is provided by a broadcaster referred to in paragraph (a)(ii) or (iii) or a person associated with such a broadcaster, the broadcaster’s latest statement of programme policy under— (i) section 266 or 267 of the Communications Act 2003, or(ii) paragraph 4 of Schedule 12 to that Act,states that the service will be used to fulfil the public service remit for the Channel 3 service, Channel 4 or Channel 5 or (as the case may be) S4C’s public service remit.”Member's explanatory statement
See the explanatory statement for my amendment to Clause 20 at page 24, line 3.
“(2C) Section 362AZ12(6) of the Communications Act 2003 (meaning of references to a person associated with a public service broadcaster) applies for the purposes of subsection (2AA) as it applies for the purposes of Part 3A of that Act.””Member's explanatory statement
This amendment is consequential on my amendment to Clause 20 at page 24, line 5.
“(vii) it is not a service of the kind described in section 362AA(10)(c) of the Communications Act 2003 (internet programme services which provide programmes by means of an on-demand programme service or non-UK on-demand programme service and at least one other service).”Member's explanatory statement
This amendment secures that “relevant service” does not include a service falling within section 362AA(10)(c) of the Communications Act 2003, inserted by Clause 28 (multi-service internet programme services that contain at least one relevant service).
Member's explanatory statement
This amendment and my amendment to Clause 21 at page 25, line 21, alter the definition of exclusively granting rights to include live coverage of a Group A event.
Member's explanatory statement
See the explanatory statement for my amendment to Clause 21 at page 25, line 16.
“(d) at least two of the second and further services are television programme services,”Member's explanatory statement
This amendment allows relevant services which are not television programme services to be part of the adequate live coverage of a listed event.
Member's explanatory statement
This amendment is consequential on my amendment to Clause 22 at page 27, line 13.
Member's explanatory statement
This amendment corrects a drafting error.
Baroness Thornton
“Review of broadcast content and Children’s literacyWithin six months of the passing of this Act, the Secretary of State must prepare and publish a report on how audiovisual content providers are supporting children’s literacy.”Member's explanatory statement
This new clause aims to probe the Government’s intentions regarding proposals around automatic subtitling.
Baroness Thornton (Lab)
My Lords, I hope the Minister clocked the reluctant withdrawing of amendments. Perhaps there is further discussion to be had.
I rise to move Amendment 35A in my name; I will address the other amendments when I have heard the discussion that takes place. This is a probing amendment, and the reason we have submitted it is that, during the course of this future-proofing Bill that we are discussing, while we are addressing the issues of young people and children and the changes in their viewing habits and what that might mean for their development and learning, a discussion about subtitling seems appropriate.
The context for this question is twofold. First, a recent study from YPulse found that more than half of young people prefer using subtitles. According to the survey, more than half of Generation Z and millennial media consumers prefer subtitles. Through anecdotal evidence, having millennial and Generation Z living in my household, I can say that this is certainly true. If you are scrolling through TikTok or watching Netflix with a young person, you might notice more words on the screen. The use of subtitles is on the rise.
Secondly, researchers posed the question, “How does turning on subtitles help reading?” Studies have shown that turning them on supports various reading skills, including building on children’s knowledge of words, acquisition of vocabulary, reading comprehension, fluency and speed, and decoding skills. There is a campaign, which has been running for several years, that advocates for automatic subtitling on children’s television shows in order to promote literacy. That is why we would like to probe this further and raise those questions.
I understand the Government have considered this previously, and I want to probe further the Minister’s thinking on the subject and whether the department has considered alternative or related schemes to promote literacy in children and increase their vocabulary at an early stage. There has been research that strongly suggests that having automatic subtitling on children’s television helps to turn children into more proficient readers.
Young people—although not as young as I am talking about here—prefer to watch television with subtitles. A YouGov survey found last year that 61% of young adults use subtitles while watching television. Although an older audience may find it an odd way to consume television for those without hearing difficulties or who are learning a language, it does not appear to be something that young people are opposed to.
Have the Government considered targeting specific age groups who would benefit most from the change—for example, children who are just learning to read? Although we often talk about children’s television as a monolith, “Bluey” targets a very different audience from, say, “Blue Peter”. Would having subtitles for those at the early stage of reading be more appropriate than mandating the change across all ages? Is the Minister aware of any broadcaster or on-demand providers who have plans to implement such changes to their platforms?
If the Government come to the conclusion that it is not workable to make subtitles automatic, would they consider doing more to effectively promote awareness among families of the potential power of switching to subtitles? For example, has the DCMS or the Department for Education considered working with on-demand video providers to promote automatic subtitles on children’s shows in app, as part of their settings? I am thinking of an option that parents could turn on as part of parental controls. Could the DCMS work closely with the DfE to ensure that educators know the benefits and could pass them on to parents? Of course, watching television or films would never be a substitute for reading, but evidence shows it can be a useful and effective way to supplement it.
As so often with areas of policy that impact children, we need to think cross-departmentally about how best to promote their well-being and learning. I look forward to the Minister’s response on this point. On these Benches, we are simply interested in the department’s thinking at this stage. I beg to move.
Lord Lansley (Con)
My Lords, I rise to speak to four amendments in my name in this group. Although there are four amendments grouped together, they cover three separate subjects, and I hope the Committee will forgive me if I go carefully through each of those three subjects.
Lord Foster of Bath (LD)
My Lords, I begin by saying to the noble Baroness, Lady Thornton, that I am very supportive of her Amendment 35. Perhaps like her, I have had communications over several years from the campaign, Turn On The Subtitles, which is doing extremely good work in drawing attention to the way in which putting subtitles on by default and allowing people to be able to turn them off if they wish has been shown to provide huge benefit to children’s learning of reading.
I also say a huge thank you to the noble Lord, Lord Lansley. He and I had a brief chat the other day about his amendments. I went away and had to put a wet towel over my head in a darkened room to try to understand them, and I did not get very far. I am enormously grateful that, today, I understood the arguments that he is making. They are very much in support of my Amendment 70.
My amendment seeks to apply the Ofcom standards code—which, as we have heard, is described in Section 319 of the Communications Act—to all on-demand programme services, to ensure that there is a consistency in standards objectives across all platforms. I entirely agree with the noble Lord that we need to find ways to bring the Broadcasting Code and the current tier 1 standards code into unison. The problem is that Schedule 7, as currently drafted, will apply those standards only to tier 1 services, leaving a wide range of on-demand services entirely unregulated. It is worth recalling that the senior executive in charge of implementing the first system of VOD regulation at Ofcom, Trevor Barnes, warned last month:
“The Culture Secretary is given very wide discretion to decide who is, and who is not, caught in the Tier 1 net”.
The amendment removes that discretion and, therefore, offers far greater public protection.
As we have heard, Section 319 encompasses a broad range of standards objectives, including protection for children and protection from material that might cause harm and offence, but I will focus on Sections 319(2)(c) and 319(2)(d), which require that news be
“presented with due impartiality and … due accuracy”,
and, further, that the special
“impartiality requirements of section 320”
be applied—namely, that every TV and radio service must preserve due impartiality on
“matters of political or industrial controversy; and … matters relating to current public policy”.
Those requirements date back to the very beginning of commercial TV in 1954 and have ensured that we have had a highly trusted broadcast media environment that has, so far, resisted the kinds of disinformation and polarisation that is so prevalent in online information services. Preserving that trusted environment not only depends on Parliament legislating for impartiality but requires a regulator that is prepared to do its job robustly and to implement that legislation without fear or favour. For most of its 20 years in regulating the linear world, Ofcom has done just that.
But here there is a spoiler alert—I note that the current chairman of Ofcom, the noble Lord, Lord Grade of Yarmouth, is in his place, and I suspect that he will not be particularly comfortable with the view that I hold. I think it is a matter of concern that, more recently, Ofcom does not seem to apply those rules with the rigour that Parliament has required, particularly in respect of GB News. Two examples will illustrate the problem, but there are many that I could have given.
On 13 January, the GB News presenter Neil Oliver used his programme to link Covid vaccines to the non-existent disease of “turbo cancer”, a wholly fictitious medical condition beloved by conspiracy theorists. That kind of dangerous disinformation, which went entirely unopposed on the GB News programme, should have been a slam dunk for a regulator charged with ensuring both accuracy and impartiality on licensed broadcasters. A month later, after multiple complaints, Ofcom delivered its verdict:
“In line with freedom of expression, our rules allow broadcasters to cover controversial themes and topics … We recognise that these brief comments were the presenter’s personal view and did not materially mislead the audience. We therefore will not be pursuing this further”.
It did not even bother with an investigation.
Last month, the same presenter hosted a journalist, Jasmine Birtles, who suggested that action against climate change was part of a “depopulation agenda” designed to
“remove 7.5 billion people from the world”.
There was no contrary view from either the presenter or other guests on the show. What was Ofcom’s response? It simply announced on its website that the programme
“did not raise issues warranting investigation”.
When challenged, it responded that the views expressed on the show
“were clearly presented as a personal opinion, consistent with the right to freedom of expression”.
I suspect that we all support the idea of freedom of expression—it is an Article 10 right—but there is no conflict between that right and an impartiality regime that ensures that all sides of any controversial matter are freely presented. That is the law of the land, and it needs to be upheld in both the linear and on-demand worlds.
Lord Parkinson of Whitley Bay (Con)
I was not sure whether the noble Baroness, Lady Thornton, wanted to say anything further on the other amendments, but I am happy to come in now.
As noble Lords know, following extensive public consultation on the topic, the Government set out their intention to legislate to give Ofcom powers to draft and enforce a new video on demand code similar to the Broadcasting Code, to ensure that TV-like content, no matter how audiences choose to watch it, will be subject to similar standards. Many of the amendments in this group touch on that. In particular, all tier 1 services will have to comply with the new code. The Bill has been drafted to ensure that the mainstream on-demand services will be under similar obligations as traditional broadcasters, while simultaneously ensuring proportionality in these requirements.
I will address Amendment 70, tabled by the noble Lord, Lord Foster of Bath, which would bring all UK on-demand programme services under Ofcom’s current Broadcasting Code, including special impartiality requirements for
“matters of political or industrial controversy; and … matters relating to current public policy”.
The Government have been clear about the importance of ensuring that new regulations for video on demand services are proportionate and fit for purpose, and that they take into account the unique characteristics of an on-demand environment, which the Broadcasting Code does not. There are some key differences between linear and on-demand television, and there are some specific elements of the Broadcasting Code that would be less practical to apply to video on demand services. For example, the watershed, which limits material that is more appropriate for adults to be broadcast after 9 pm, would not be effective for regulating streaming services, because its content can be chosen on demand by audiences, rather than being broadcast live at a particular time.
That is why we are giving Ofcom powers to design a new video on demand code rather than simply bringing these services under the existing Broadcasting Code. Importantly, the Bill also sets out a proportionate and practical approach to bringing on-demand services under the new code, capturing mainstream streaming services which target and profit from UK audiences. There are already over 270 video on demand services notified to Ofcom, and many of these simply do not provide TV-like content or are not widely accessible. It is essential that we balance audience protection with freedom of expression.
Extensive public and industry consultation shows us that the smallest and niche services, such as an on-demand service for a particular football team, could be unfairly and unnecessarily penalised by a blanket approach, with little or no benefit to audience protection and at a risk to the service’s sustainability. The Bill has been designed to ensure that regulation can be updated to add further, or even all, video on demand services into tier 1, if that is considered appropriate.
I hope that this explanation reassures the noble Lord, Lord Foster, that the video on demand code will have similar objectives to the existing Broadcasting Code but will be tailored to take into account the particular circumstances of audiences accessing content in an on-demand context.
I turn next to Amendment 58 from my noble friend Lord Lansley, regarding protecting audiences from being exploited by subliminal messaging—I wonder if he was trying to tell us something.
Lord Parkinson of Whitley Bay (Con)
I thank your Lordships.
I thank my noble friend for raising this issue, as it gives me the opportunity to clarify on the record that the legislation as drafted will already enable Ofcom to draft the video on demand code to protect audiences from this type of harm. Ofcom is given an overarching duty to protect audiences from harm. The legislation does not need to list each and every potential type, although we are grateful to my noble friend for raising this issue for our consideration today. In addition, to further reassure him, on-demand programme service rules already specifically prohibit advertising which uses techniques which exploit the possibility of conveying a message subliminally or surreptitiously. These rules will continue to apply following Royal Assent to the Bill.
The noble Baroness, Lady Thornton, began our debate on this group with her Amendment 35A regarding children’s literacy. The Government are committed to continuing to raise literacy standards, ensuring that all children, including those from disadvantaged backgrounds, can read fluently and with understanding. We are very proud of the leaps and bounds that we have made on this over the last decade and a half in government. By ensuring high-quality phonics teaching, the Government want to improve literacy levels to give all children a solid base on which to build as they progress through school, and help children develop the habit of reading widely and often, both for pleasure and for information.
My portfolio covers libraries, and I had the pleasure of asking my noble friend Lady Sanderson of Welton to conduct an independent review of public libraries, which of course begins with the importance of reading and literacy. We know that one of the most powerful engines of social mobility is reading for pleasure; I echo many of the points that the noble Baroness, Lady Thornton, set out in her speech. We are currently refreshing the Government’s strategy for libraries, drawing on some of the recommendations that my noble friend Lady Sanderson made in her independent review, based on the consultation, round tables and discussion that she had with people across the country, from the sector and beyond.
The Department for Education recently made an assessment of the evidence behind the Turn on the Subtitles campaign, which the noble Baroness and the noble Lord, Lord Foster, mentioned. That assessment by the Department for Education concluded that the current evidence is inconclusive as to whether turning on the subtitles improves children’s reading. As the noble Baroness is aware, the Bill will look to improve subtitles provision on mainstream video on demand services. However, in the absence of clear evidence to the contrary, we believe it should be the choice of parents and guardians whether their child watches television programming with the subtitles on.
We have discussed this with providers, which have been clear that the technology simply is not there in many cases to turn the subtitles on by default for specific programming, even for certain ages, as the noble Baroness suggests. Short of embedding the content with subtitles—in which case viewers would not be able to turn it off—and without the absence of conclusive evidence about the benefits, we do not think that would be appropriate. However, I am grateful to the noble Baroness for the opportunity to talk about the campaign and the analysis which we have made so far.
On my noble friend Lord Lansley’s Amendments 43 and 59, on prohibiting political advertising on tier 1 video on demand services, political advertising is a fundamental part of any democratic system and is an established way for political parties and campaigners to connect with the public and have their message heard in a cost-effective manner, thus contributing to a level playing field among campaigners of different sizes and financial means. Paid political advertising on digital platforms such as YouTube and Instagram has been used by campaigners and political parties of all colours for some time, and is not objected to by the majority of those who campaign in that way.
In contrast, the legal ban on paid political advertising on television and radio, currently regulated by the Communications Act 2003, stems from a long-standing tradition which continues to be supported across the political spectrum. In considering any changes to the rules governing political advertising, the Government think it essential to consult political parties and to achieve cross-party consensus on an issue which directly affects campaigners from all parties and other campaigning groups. Regulation must be balanced with the rights of freedom of expression and public debate, which are both crucial to a thriving democracy, and no such consultation has yet been undertaken.
Lord Lansley (Con)
Can I ask my noble friend two quick questions? First, have the Government engaged in any such consultation with the political parties in anticipation of this Bill, with a view to inquiring whether the ban on political advertising for broadcasters should be included for tier 1 services? Secondly, did he not tell us that the tier 1 standards code is for mainstream on-demand programme services, which are in that sense comparable with what we see in the broadcasting environment, not the more peripheral and digital access providers such as YouTube and so on?
Lord Parkinson of Whitley Bay (Con)
It is similar but different. We have not consulted the other parties on this issue, not least because my department does not have direct responsibility for the regulation of political advertising—that falls to others. Of course, we work across government on these issues, but the simple answer to my noble friend’s question is that we have not had that that consultation. On a matter such as this, it is important to do that on a cross-party basis and to try to seek consensus before bringing forward proposals, particularly in an election year.
Baroness Thornton (Lab)
To clarify that, does that mean that the Government intend to have this consultation with the political parties about paid political advertising; in other words, are the Government thinking that they would like to change the rules and regulations?
Lord Parkinson of Whitley Bay (Con)
No, although if the other parties wish to talk about the matter which my noble friend has raised through his amendment, I am sure we would be happy to do so. However, without that consultation and cross-party conversation on it taking place, I would be wary of proceeding with it in the Bill.
Lord Lansley (Con)
I am sorry to interrupt my noble friend again but as we are in Committee, perhaps I might be allowed just to press the point. Time is of the essence here. This is the Media Bill, and we anticipate that it should be enacted before the election. It could be brought into force before an election. We know that ITVX is in this position of providing what will be tier 1 services under the Bill, and that it has not excluded that it might take paid political advertising. That is quite a significant place for a public service broadcaster operating an on-demand programme service to place itself in. Is my noble friend saying that the Government are happy for this to happen, they are content for this to happen, or that they are simply not willing to do anything to stop it happening?
Lord Parkinson of Whitley Bay (Con)
My noble friend’s second interjection allows me to clarify an important point on timing. If he intends for this amendment to be in effect before the next general election, I must say to him that that is highly unlikely. Even if cross-party consensus were reached swiftly and changes were made to the Bill, the provisions in Schedule 5 would come into force only following the drafting and implementation of the video-on-demand code, which is unlikely to happen before the next general election. He has raised an important issue, on which there needs to be cross-party consultation and consideration before anything is brought forward but, even if that happened very swiftly, it would be unlikely to be in place before the next general election. It is important to remember also that, during regulated election periods, campaigners are subject to campaign expenditure limits when promoting paid political adverts, which further protects the level playing field between campaigners, both online and offline.
Finally, Amendment 44, also in the name of my noble friend, would allow the Secretary of State to consider the purchaser’s commitment to the video-on-demand standards code in a media merger case involving a broadcaster. While I agree with his intentions of ensuring sufficient protections for audiences, I hope that I can reassure him that this is already sufficiently covered in the Bill, in particular and elsewhere. The Secretary of State already has powers under the Enterprise Act 2002 to intervene in media mergers on the basis of a need for high-quality broadcasting and a commitment to broadcasting standards more widely. In addition, the Bill gives Ofcom the necessary tools to regulate video-on-demand services, including information-gathering and enforcement powers. Similar statutory sanctions such as financial penalties that can be applied to linear broadcasters by Ofcom will also be available to apply to on-demand services. So, for these reasons, I do not think his Amendment 44 is needed.
Baroness Thornton (Lab)
My Lords, I thank the Minister for his answer. I am quite glad that I waited to make my comments until I had heard what the Minister and other noble Lords had to say when speaking to their amendments, particularly the noble Lord, Lord Foster.
Let us first dispose of the probing amendment that leads this group. We have here a moving scenario about subtitles and we are just going to have to keep watch on that, because clearly the generations to come like subtitles on their television sets or whatever devices they are using. That is interesting, and I look forward to further research into how that might support educational purposes. I think we would all want that to happen. Some of the stakeholders have explained to me that the technology does not exist to do it easily.
Regarding the other amendments in this group, the noble Lord, Lord Lansley, has surfaced several very important questions. In terms of political advertising, on this side we are not looking to have any consultation on this, but we were seeking some clarity about whether there was a loophole in this Bill—the noble Lord, Lord Lansley, used those words—for the future. That question is still not answered, so we will need to watch that.
The main issue that these amendments, particularly Amendment 70, tabled by the noble Lord, Lord Foster, brought forward concerns robust regulators and scrutiny. What I am taking away from this debate is that there are questions about how Ofcom has conducted itself in recent times. Questions have been raised about how robust it is being, and about impartiality and those sorts of issues, and therefore the confidence that we need to have in Ofcom as we move forward with this piece of legislation. However, we will be coming on to that in later groups. The noble Lord, Lord Foster, put the case extremely well. We thought that his amendment, on the face of it, seemed a rather sensible move, so I suspect that we will return to discuss this issue in due course. I beg leave to withdraw my amendment.
(i) in relation to a financial penalty imposed under subsection (A1) or (B1), an amount determined by OFCOM to be the value of the rights to include coverage of the event in question in the relevant service at the time when the rights are acquired, and(ii) in relation to a financial penalty imposed under subsection (1) or (2),””Member’s explanatory statement
This amendment specifies the method for determining the maximum financial penalty that OFCOM may impose under section 102(A1) or (B1) of the Broadcasting Act 1996.
(i) for “section 102(1)” substitute “section 102(A1) or (1)”;”Member’s explanatory statement
This amendment adds a consequential amendment relating to paragraph 16 of Schedule 2.
Member’s explanatory statement
This amendment is consequential upon Clause 23.
Member’s explanatory statement
This amendment and my amendments to Schedule 2 at page 124, line 14, and at page 124, line 20, remove definitions of terms and are further to amendments made in the House of Commons.
Member’s explanatory statement
See the explanatory statement for my amendment to Schedule 2 at page 124, line 7.
Member’s explanatory statement
See the explanatory statement for my amendment to Schedule 2 at page 124, line 7.
Baroness Grey-Thompson
“54 “(1) Section 310 (code of practice for electronic programme guides), is amended as follows.(2) After subsection (3), insert—“(3A) Where a user interface gives access to one or more electronic programme guides, the practices required by the code must include the giving, in the manner provided for in the code, of such degree of prominence as OFCOM consider appropriate to electronic programme guides within the user interface (whether such guides are provided by the person providing the user interface or by other persons).(3B) For the purposes of subsection (3A), OFCOM may consider that different degrees of prominence are appropriate in relation to different electronic programme guides.”(3) Omit subsection (4)(f).(4) After subsection (8), insert—“(8A) In this section—(a) “user interface” means an electronic programme guide that, in addition to the facilities mentioned in subsection (8), includes a facility by which a user may find, select or access electronic programme guides;(b) for the purpose of the definition of user interface in paragraph (a), the description of a service in subsection (8) includes such services provided by means of apparatus.””Member’s explanatory statement
This amendment seeks to secure that OFCOM’s Code of Practice for Electronic Programme Guides (EPGs) gives EPGs prominence. Subsection (8A) defines a user interface as an EPG that – in addition to a traditional linear EPG –includes access to EPGs. This definition would include the means of accessing EPGs, such as remote controls. This amendment requires one short consequential amendment to the definition of “television licensable content service” in section 232 of the Communications Act 2003.
Baroness Grey-Thompson (CB)
My Lords, I will speak to Amendments 42, 50 and 51 in this group. I again draw your Lordships’ attention to my registered interests.
The UK’s public service broadcasters—the BBC, ITV, Channel 4 and Channel 5—and national broadcasters S4C, STV, and MG Alba, play an essential cultural, economic and social role, supporting British democratic values and underpinning the UK’s creative economy. They produce high-quality, distinctive content, informing, educating and entertaining audiences across the UK. Audiences support this. Seven in 10 UK adults want to see UK life and culture represented on screen. A similar number think that PSBs deliver well on programmes made for UK audiences. Six hours and nine minutes is spent watching BBC TV/iPlayer on average per person per week, which is more than Netflix, Disney+ and Amazon Prime Video combined.
Currently, prominence is one of the main regulatory benefits provided to the PSBs, but the existing regime has not kept pace with technological change. It applies only to linear channels—for example, BBC One—delivered through the channel menu, also known as the electronic programme guide or EPG. The Media Bill updates the rules so that they will apply not just to PSB linear channels but to on-demand services such as BBC iPlayer. This is hugely welcome, but there is further opportunity to ensure that PSB prominence arrangements are future-proofed and watertight, protecting access to the content that people love and enjoy for future generations.
Amendment 42 is on the prominence of the EPG. While the Media Bill seeks to ensure that PSB on-demand services will appear prominently on regulated TV platforms, and PSB linear services within the EPG will continue to benefit from the existing prominence regime, there are no protections for the EPG itself. A growing number of IP-only households watch videos via a broadband connection. This is expected to exceed 50% of total households by the end of this decade. All this has led to more people watching content on demand. It does not mean the end of linear, which remains the single biggest way that people watch video content and delivers 82% of audiences’ consumption of BBC TV content. The familiarity of linear TV will continue to make it a popular discovery route for audiences, even as they move away from digital terrestrial television.
The PSBs have responded to the continuing need for live TV by investing in an online linear solution freely, but linear TV is being eroded. The EPG has been downgraded within TV user interfaces and the linear schedule hidden away. This comes at the expense of PSB. In internet-only homes, without a linear programme guide, the BBC gets just 22% of our normal consumption. The current rules do not enable Ofcom to support audiences by safeguarding this popular and familiar way of watching TV. The Government should use the Media Bill to update the Communications Act 2003 to safeguard linear TV, an important and familiar viewing route. This would also support audiences as the digital transition continues. The amendment would require Ofcom to give the EPG itself the degree of prominence that it considers appropriate. This is in keeping with the existing linear prominence framework, with high-level legislation underpinned by Ofcom guidance and codes. This is a flexible and future-proofed approach.
Amendments 50 and 51 concern the definition of “appropriate prominence”. The Media Bill gives PSB on-demands appropriate prominence but does not define what this means, leaving it open to interpretation. Ofcom will be the regulator of the prominence regime and sufficient direction and clarity about the outcomes that Parliament wishes to see is crucial in order to allow Ofcom to implement the rules robustly. As recommended by the CMS Select Committee, the PSBs should receive “significant” rather than “appropriate” prominence. The best way to secure this is for the Bill to set out explicitly what “appropriate” means. A further amendment to the Media Bill should also set out more concretely the areas of Ofcom guidance that the application of appropriate prominence should cover: for example, search, recommendations and personalisation, acting as a further safeguard. I beg to move.
Baroness Featherstone (LD)
My Lords, Amendments 46 and 47 are in my name and that of the noble Baroness, Lady Bonham-Carter. We had a bit of a knock-around on “prominence” at Second Reading—was it “appropriate”, “significant” or, as the right reverend Prelate ventured, neither? Indeed, he was right; the word itself should be enough, for the Oxford English dictionary defines it as
“the state of being important, well known, or easy to notice”.
We want the PSBs, on any screen that offers choices between PSBs and streamers, to be important, well-known, and very easy to notice. It is vital, as commercial operators do not always want us to choose the PSB, because their gods are commercial. As we know, things can get very small and difficult on-screen when customers choosing it means less income—think about how hard it is to find that tiny “unsubscribe” notice when we want to get out of emails from some commercial arrangement we no longer want. It is not in commercial entities’ interests to make life easy for us; that is why we have to mandate and prescribe “prominence”. We on these Benches do not believe it is sufficient to leave it to Ofcom to define. I have heard the arguments about “appropriate” being perfectly adequate, and we beg to disagree.
For clarity, I am trying to get across that we on these Benches believe that prominence must be defined in legislation to guide Ofcom, and not be left open-ended for it. That definition should be crystal clear: that in every and any situation where channel choice is being offered, the PSB logo or whatever should be of equal or greater prominence to any other choice offered on the electronic programme guides.
The dangers of not specifying what prominence means or seeks to achieve in the Bill could include a loss of funding. PSBs often rely on public funding or subsidies to fulfil their mandate of providing programming that serves the public interest; without prominence, they may struggle to attract viewership and advertising revenue, leading to financial difficulties that could jeopardise their ability to produce the sort of high-quality content we want them to. PSBs may find it challenging to reach a wide audience, particularly in a crowded media landscape where viewers have numerous options for their entertainment; that could lead to a decline in their influence and relevance, making it harder for them to fulfil their role as a source of impartial news, educational programming and cultural content.
The public service mandate could be undermined, as PSBs are tasked with providing programming that serves the public interest, including news, current affairs and educational content. Without prominence, they may struggle, and their content may be overshadowed by commercial broadcasters or streaming services prioritising profit. It could also be a threat to media diversity and cause a loss of trust and accountability. Lastly, if public service broadcasters are not given prominence in a democratic society, there are issues around this that could arise: an erosion of media pluralism, a threat to freedom of information, diminished public discourse, a loss of accountability, and the undermining of democratic values, social cohesion, education and lifelong learning, and cultural preservation.
As this is a probing amendment, I encourage the Minister to think about bringing back his own amendment as an instruction to Ofcom in dealing with prominence, to say that, however it writes it regulations, PSBs must have equal or greater prominence than any other offer on the screen.
Baroness Bonham-Carter of Yarnbury (LD)
My Lords, summing up from these Benches on the amendments in this group, I congratulate those who have spoken, in particular the noble Baroness, Lady Grey-Thompson. It crossed my mind as I was about to stand up that on the first day in Committee I was congratulating and following a prima ballerina and today it is an Olympian—which rather reduces my sense of myself. I am sure the Minister will agree that it is a remarkable example of what the Department for Culture, Media and Sport produces that we have as great legislators these great sportsmen and artists.
The Lord Bishop of Leeds
My Lords, I endorse everything that the noble Baroness has said apart from the language point. Why is “significant” an improvement on “appropriate”, when neither of them are defined? “Significant” has to mean significant of something—we might think that it just means “a lot”, but it does not. It is as meaningless as “appropriate”, indefinable and cannot be quantified.
Baroness Bonham-Carter of Yarnbury (LD)
To my mind, “significant” is very different from “appropriate”, which is a wishy-washy, woolly term, whereas “significant” is a specific term.
The Lord Bishop of Leeds
My Lords, it is not. If we went around the room and asked, “Please quantify it, or tell us what it means”, I think we would—
Baroness Bonham-Carter of Yarnbury (LD)
What word would the right reverend Prelate use?
The Lord Bishop of Leeds
I have struggled with it, but “substantial” or “substantive” might get us somewhere, rather than something that does not actually mean anything. The General Synod of the Church of England has a similar problem; it put “collegiate” in some recent legislation when it meant “collegial”—it had nothing to do with colleges. I worry about putting things in legislation that cannot be defined.
Baroness Thornton (Lab)
The right reverend Prelate is nothing if not consistent. He has been raising what “appropriate” means in the Bill from the word go.
This group of amendments, and the debate which we have just had, is in many ways at the heart of the Bill. At its heart is the issue of our public service broadcasters as the cornerstone of our broadcasting sector in the UK, investing, as they do, billions of pounds in original productions and creating content that is trusted, valuable and entertaining for UK audiences. In return for the high standard of programming and investment that public service broadcasters provide, their channels have been made easy to find on linear television sets—to the benefit of audiences across the country. However, amid rapid changes in how viewers access television and content more generally, the prominence regime, which has not been updated for decades, is at increasing risk of becoming diluted and outdated.
It seems there are two major issues. First, public service broadcasters are in danger of being cut out of view, as noble Lords have said in this short debate, as global content players and platforms strike international deals with online platforms for prominence. Secondly, as a result, our public service broadcasters are at risk of being forced to concede increasingly material percentages of their revenue to those platforms simply to appear on them.
In this situation, it seems that almost everybody loses out—from audiences to the wider UK production economy, even the platforms themselves, which might find themselves in a position where they cannot promote the content that UK viewers most want to see. A new prominence framework for the digital era, therefore, was always going to be crucial. These amendments address how prescriptive such a new regime should be in legislation.
We on these Benches welcome that the Government have avoided explicitly spelling out what prominence looks like in the Bill or making primary legislation restrictive or resistant to future changes in technology and behaviour. Instead, we endorse a principles-based approach based on finding mutually beneficial carriage deals between what are branded “designated internet programme services” and “regulated television selection services”, with Ofcom able to provide a framework in which those negotiations can operate. Ofcom must show that it can and will undertake this important duty as a regulator. There must be strong dispute resolution and enforcement powers for Ofcom, including the ability to impose significant penalties as a result of non-compliance. That allows for maximum flexibility in both legislation and negotiations, as well as proper protections where agreements cannot be reached. It also allows for the regime to be expanded where necessary to capture new technology via which people might be watching television content. Platforms and PSBs have a history of successful negotiations, creating mutually beneficial deals and partnerships that it would be counterintuitive for the prominence regime to undermine.
We support the drafting, but we seek some clarity on the requirement to secure “appropriate” prominence. This was a major topic of discussion during the pre-legislative scrutiny process, with the majority of PSBs calling for this to be upgraded to “significant” prominence. The arguments were based mostly on the differences between linear and digital streaming landscapes.
I invite the Minister to provide a full response to the legitimate argument for “significant” prominence, and to outline the reasons why the prominence requirement has not been upgraded. What conversations have been had with Ofcom on how the detail of the regime will be set out in the code of practice to ensure that it meets its aims? We will need a strongly empowered Ofcom if the Bill is to succeed.
The BBC has consistently called for the possibility of including remote controls and multi-use devices in the prominence regime. I know that its latest thinking is that electronic programme guides could be given prominent buttons on remotes, rather than one PSB in particular. Though we are all keen to see this legislation on the statute book, our aim is that we fully seize this once-in-a-generation opportunity to ensure that public service content is easily findable in the digital age. The Minister must assure us that that can be achieved and tell us how.
Lord Parkinson of Whitley Bay (Con)
My Lords, the introduction of the new online prominence framework is arguably the most important change that the Bill brings about in terms of ensuring that high-quality public service content remains available and easy to find online, and in helping to secure the future sustainability of the public service broadcasting system in the UK, of which we are so proud.
I will speak briefly about government Amendments 48 and 49 together. These amendments are to ensure consistency with Part 3A of the Communications Act 2003 in how the Bill describes the content and channels contained within the internet programme services that may be designated by Ofcom. These are technical amendments and I hope noble Lords will support them.
I now turn to the other amendments in this group that noble Lords have spoken to. The duty on regulated television selection services to give prominence to designated services goes to the very heart of the regime, so I understand why many noble Lords have strong views on this—as we heard today and at Second Reading—and why they are keen to ensure that the drafting delivers sufficient prominence for our public service broadcasters.
Amendments 46 and 47 seek to amend the duty on platforms to give designated services “appropriate” prominence to “significant” prominence. I can reassure noble Lords that a lot of careful consideration has gone into the exact wording used in relation to this duty on discoverability. We have consciously designed the new online prominence framework to ensure that it strikes the right balance between ensuring that important public service content is easy to find online and ensuring that regulation is operable and proportionate.
As I made clear on Second Reading, there is a reason why we chose to use “appropriate”—it is a well understood term that has been delivering effective prominence for our public service broadcasters in relation to linear broadcasting for two decades now. It is the term used in the Communications Act so is understood in this context, even if etymologically—lexicographically—we may continue the debate. We remain of the view that “appropriate” is the right descriptor for prominence and that any amendments to the drafting—including removing “appropriate” or changing it to “significant”—could have unintended consequences for the overall user experience. It is not the intention of the new framework to restrict innovation or undermine customer choice or personalisation, for instance.
Baroness Grey-Thompson (CB)
My Lords, I thank all noble Lords who spoke on this grouping. I also thank the right reverend Prelate the Bishop of Leeds for giving us a different set of words we can use. I am sorry my noble friend Lord Colville is not in his place; I am merely an occasional TV and radio presenter as opposed to someone who works in the industry. “Appropriate” and “significant” are part of the language of the media, which is rather like the language of your Lordships’ Chamber; it is quite subtle and not always easily understood by people who work elsewhere.
I also thank the number of broadcasters that got in touch with me once I had tabled the amendments, particularly ITV, which spent some time with me pointing out why it did not think my amendment would necessarily work. It is not opposed to strengthening the language to “significant” prominence, and none of us wants any unintended consequences from these amendments, but strengthening that might be something to look at. No doubt the strength of the regime will depend on Ofcom’s implementation regardless of the change. There is plenty more to discuss on finding the right terminology for this. I am slightly disappointed but not surprised that my enthusiasm for these amendments is not shared by the Minister, but I am likely to come back again at the next stage. With that in mind, I beg leave to withdraw my amendment.
Lord Lansley
“55A In section 324 (setting and publication of standards), in subsection (2)(a), for “teletext services”, substitute “news content, where it is provided by broadcasters in any format”.”Member's explanatory statement
This amendment would place an obligation on OFCOM to consult those using news content provided by broadcasters, in place of users of teletext services, when preparing the Standards Code.
Lord Lansley (Con)
My Lords, Amendment 45 is unrelated to the other amendments in the group, which is described as “miscellaneous”. I might be allowed not to venture any comment on the Government’s technical amendments and confine myself just to say something on Amendment 54A. In light of all the things we have heard about the changing nature of access to television and televisual material—and radio, I suspect—the reliance on digital access and the limitations on access to the wide range of programmes we presently enjoy for those who lack digital connectivity is an issue certainly worth exploring. I commend the noble Lord, Lord Bassam, on tabling Amendment 54A.
My Amendment 45 is really just a probing amendment to find out about the process by which a consultation is to take place before Ofcom conducts its standards code. Noble Lords will recall that in Clause 26 we brought the legislation into line with reality and the public teletext services disappeared, so asking Ofcom to consult those who use it would be unnecessary—pointless.
Strictly speaking, consulting those who use television programmes and radio services is perfectly sufficient for the standards code. However, given the standards code and the requirements relating to news impartiality and news accuracy, the special impartiality requirements in Section 320 of the Communications Act, and the fact that the consultation on teletext was about, in a sense, the ways in which broadcasters give the public access to news, I thought it might be helpful to suggest that it might be a good idea for the consultation on the standards code, whenever it happens, to take particular account of how public service broadcasters, by whatever format, set out to give the public access to news, in line with the standards objectives. I am hoping that Ministers would commend that, whether we need to write it into the Bill or not, and that it might be given special attention rather than simply being ignored when we lose teletext and its reference to news in the standards code. I beg to move Amendment 45.
Baroness Thornton (Lab)
I agree with what the noble Lord, Lord Lansley, said about the group being “miscellaneous”. It suggests it is a bit of a hotchpotch when, in fact, the noble Lord has already asked some very pertinent questions, which my noble friend’s Amendment 54A asks as well. It intends to probe the Government’s intentions to address digital exclusion relating to access to television. Quite a few of the stakeholders raised this issue with us as we prepared for this Bill; I think they will have done with other noble Lords as well.
The amendment asks the Secretary of State to
“prepare and lay before Parliament a report on the impact on the UK economy of addressing digital exclusion”,
including,
“an assessment of the impact of current and future levels of digital exclusion”
and
“an assessment of the likely costs of delivering a programme to … drive uptake of internet connectivity”—
an issue we have discussed in the House on many occasions—
“and digital devices to support access to television and … provide suitable support for skills development for those who need it in order to access television services”.
If the Bill is about the future and what might happen, we also have to address the fact that there will be millions of our fellow citizens who will not have access in different ways. We need to take account of that and work out how best we can approach it. That is what the amendment is about.
With his Amendment 45, the noble Lord, Lord Lansley, raises issues about how we look to the future to ensure that the Bill is comprehensive and covers the issues that need to be covered when preparing the standards code.
Lord Parkinson of Whitley Bay (Con)
My Lords, “miscellaneous” is certainly one of those words that we use in your Lordships’ House and mean all manner of things by it.
I am grateful to my noble friend Lord Lansley for his Amendment 45, which probes the Bill by seeking to amend the Communications Act 2003 to require Ofcom to consult those interested in news content provided by broadcasters in any format before setting broadcasting standards. As he set out, this aims to reflect the shifts we have seen in recent years towards digital news consumption. However, the Government do not believe it is necessary to make changes such as these to the requirements on Ofcom, which would blur the lines between the regulation of television on the one hand and the regulation of the press on the other. That is because we do not intend to amend the regulation of the press or of broadcast news content.
We are committed to protecting media freedom and the invaluable role of a free press in our society and democracy. As part of this, we are committed to upholding independence of the press and taking steps to preserve the existing system of self-regulation. That is why we are repealing Section 40 of the Crime and Courts Act, and why we acted, through the Online Safety Act, to preserve the ability of readers to access recognised news publishers’ content online. The world of television is naturally different. For almost a century, what we have seen on the small screen has been underpinned by a clear set of broadcasting standards. This is something that UK audiences have come to know and value.
In a sense, this amendment addresses one potential boundary issue: the treatment of news websites, and in particular those run by broadcasters themselves—into which category are they to fall? Our considered view is that, in general, such websites are the digital extension not of television but of newspapers. A number of factors point towards this, not least that they are text-based and, in sharp contrast to teletext, rarely accessed from a television set. Viewed in this way, it is clearly inappropriate to apply the Broadcasting Code to them. I thank my noble friend for his probing amendment, but I hope I have reassured him why we do not need to add it to the Bill.
I thank the noble Lord, Lord Bassam of Brighton, and the noble Baroness, Lady Thornton, for Amendment 54A, and for starting an important debate on digital inclusion as it relates to television. I agree with them that it is essential that access to high-quality television is universal and should not be dependent on having a high level of digital skills. In previous debates on this Bill, we have already discussed the importance of ensuring that nobody is left behind. I hope I was able to reassure noble Lords that the Government have guaranteed the provision of digital terrestrial television until 2034 at least, and that to turn off this technology would require primary legislation. We know that a key benefit of this technology is how easy it is to use, and we will continue to protect the millions of households that rely on it.
Lord Lansley (Con)
My Lords, I am most grateful to those who participated in this short debate. I thought they raised some useful points.
I think my noble friend may have slightly misinterpreted Amendment 45. I was not in any way trying to extend the standards code to the online activity or websites of the press. I am not interested in that. If anything, what I am really interested in is that we have a number of broadcasters—the BBC, Sky, ITV—each of which has, in addition to its broadcast activity, significant online news presentations. This has not happened, and I am not accusing anybody of doing anything, but I know from past experience just how important it is who chooses what is regarded as the most important news at any given time.
The essence of many of these news online websites is that they are determining what the public are being told are the lead news stories at this moment. To that extent, although they are technically on demand because you can pull down the video clips from Sky News or from ITV or wherever, actually the presentation of those choices is important. I hope those broadcasters will continue to make responsible, impartial and accurate decisions, but if they were not to do so and they are broadcasters, I do not think the standards code would apply to them because this is not covered by their broadcast activity. However, I think it ought to: public service broadcasters, in so far as they are active in news promotion and presentation, should be accountable through the standards code for what they do.
I know my noble friend will recognise that this debate is part of a broader issue, which I want to pursue when I can, relating to the structure of the media public interest test and the importance of these tests in the standards code in relation to news generally and extending the media public interest to those who are responsible for the agglomeration and selection of content for news presentations on a wider set of platforms. I cannot do it in this Bill or in this amendment, but I hope to have the chance to do it sometime. I beg leave to withdraw Amendment 45.
Member's explanatory statement
This amendment and my amendment to Clause 28 at page 44, line 13, are minor drafting changes.
Member's explanatory statement
See the explanatory statement for my amendment to Clause 28 at page 43, line 12.
“1A In section 393 (general restrictions on disclosure of information), in subsection (6), in paragraph (a), after “137A” insert “, 362AG(7), 362AW”.”Member's explanatory statement
This amendment adds a consequential amendment relating to Clause 28.
Baroness Bonham-Carter of Yarnbury (LD)
My Lords, I declare an interest that I was a TV journalist and executive and worked for the BBC and ITV and made programmes for Channel 4.
We on these Benches are pleased that this Government’s attempt to privatise Channel 4 failed. However, one of the conditions of that attempt, removing its publisher-broadcasting status and allowing it to make its own programmes, has made it into this Bill as Clause 31, which we oppose.
As has been pointed out often to the Minister from these Benches, Channel 4 was created in 1982 by a Government led by Margaret Thatcher. Channel 4 certainly succeeded in fulfilling her business and economic philosophy, in that our world-beating independent production sector owes a huge debt to its creation. As for whether Mrs Thatcher was quite so happy with its creative content, I suspect not.
Channel 4 was conceived as a publisher-broadcaster, not like the BBC/ITV duopoly which existed at that time and made its own programmes in its own studios, but commissioning entirely from what was then a small and innovative band of producers. As a consequence, the television industry in this country diversified as it provided new and exciting opportunities to creative entrepreneurs throughout the UK. In the TV world, it empowered and nurtured small independent producers and start-ups—the companies we were talking about in our first debate today. It played a pivotal role in driving the growth, competitiveness and creative diversity of UK indies. These companies were one of the UK creative industries’ greatest success stories.
Channel 4 invests a greater proportion of its revenue in independent UK commissions than any other PSB or commercial broadcaster, and its publisher-broadcaster status has also meant that Channel 4’s commercial revenues are reinvested in UK content production. As well as being the incubator of our thriving independent production sector, Channel 4 is also the broadcaster of “Channel 4 News”. One hour of in-depth news and current affairs at the heart of peak time on a commercial channel is unheard of anywhere else.
And then, of course, there is its pioneering coverage of the Paralympics. I believe that Channel 4’s championing of this event has led to a worldwide change in the attitude towards disability—a view confirmed by Dame Sarah Storey on Radio 4’s “Desert Island Discs” this weekend about her experience at the Beijing Olympics. She revisited Beijing a year after the Olympics and went to a disabled sports club where she was told that the transformation in the way the disabled were treated in Chinese society was immeasurable.
Due to its expansion of digital channels, Channel 4’s viewing demographic is young and diverse. We believe the cost of establishing a new in-house production outfit would disrupt its business plan—these things that it has achieved—and take money away from commissioning from others.
I do not think we should change Channel 4. It was conceived for a reason: to grow the UK independent TV sector and to represent the voice of minorities. It has done that spectacularly. Channel 4 is a vital part of our creative economy, providing invaluable support to smaller independent production companies throughout the nations and regions, although, as mentioned earlier, this needs to be underpinned. It is a platform for exciting new programming, quality news and current affairs, and pioneering coverage of the Paralympics. Why change its remit?
Baroness Featherstone (LD)
My Lords, I too oppose Clause 31. Channel 4—what a brilliant initiative, how extraordinary, and what a success. It is a cauldron of innovative and original talent, fundamental to our brilliant, creative country, providing a stream of talent for use by all the others, streaming, literally, into our country. It was created to foster competition and innovation in the broadcast sector, and it did. The approach allowed independent production companies to compete for contracts to create programmes rather than relying on in-house production by the channel itself—an approach the Government now seem to want it to adopt. In that independence, it still had to maintain high editorial standards, ensuring accuracy and impartiality and fairness. It had to reflect the diversity of the United Kingdom and to fulfil certain public service obligations to educate, inform and entertain with social responsibility. That model, rather than an in-house production facility and staff, enabled Channel 4 to operate efficiently.
Of course there are challenges. Channel 4 itself had become a bit reliant on production companies that have now grown big, but it is a cauldron of creative opportunity. Right now it is not having the easiest of times, but if it was producing in-house, cuts would be swingeing and challenging. As a commissioning body, it can better cut its cloth to meet the vagaries and ups and downs of its and our economy.
If the Government’s desired change were to take place, it would reduce the opportunities for independent producers, impacting the diversity and range of voices represented. It would risk creative stagnation. It would have financial implications and require investment in additional production facilities, staff and resources at a time when it is cash poor. And any shift in its programming strategy would impact its ability to attract and retain audiences. There would also be an impact on the independent production sector if this significant source of commissioning independent production companies were to be reduced, particularly the smaller ones and the ones producing risky and innovative content.
Lord Bassam of Brighton (Lab)
My Lords, the clause stand part debate tabled by the noble Baroness, Lady Bonham-Carter, for whom I have immense respect, is, I am sure, well intentioned. As she said, it relates to the primary purpose of Channel 4, which is to be a commissioning public service broadcaster.
The Government’s desire to enable Channel 4 to produce programmes in-house as well as through its tried and tested commissioning route is undoubtedly novel and a new departure for the channel, but it is not without risk. As I recall, and as the noble Baroness, Lady Bonham-Carter, reminded us, it was announced as part of the Government’s decision not to privatise the channel. We all cheered that, but we were left uncertain as to the real intent behind the announcement.
Lord Parkinson of Whitley Bay (Con)
My Lords, Clause 31 forms an essential component of our plans to support Channel 4’s long-term sustainability so that the channel remains an important and distinctive part of our broadcasting system for many years to come. It is always a pleasure to hear praise from the Benches opposite for the legacies of the Thatcher Governments.
The publisher-broadcaster restriction, as set out in Section 295 of the Communications Act, is unique to Channel 4 and prevents it from being involved in the making of programmes for the Channel 4 service, except to such an extent as Ofcom may allow. As a result, Channel 4 is significantly more dependent on advertising revenue than other commercial broadcasters—a point that we have touched on, as the noble Lord, Lord Bassam, rightly reminds us, in the debates that we have had on alternative means for securing money for the channel’s long-term sustainability. In particular, two-thirds of Channel 4’s revenue comes from linear television advertising, the market for which is both highly cyclical and in long-term structural decline because of the declining number of people watching linear television.
In response to these challenges, last year the Government announced a package of reforms that would help to support Channel 4’s long-term sustainability while retaining it in public ownership. The removal of the publisher-broadcaster restriction is a key element of that package that will open up opportunities for Channel 4 to further diversify its revenues away from advertising by making its own programmes, should it choose to do so. The Government undertook an assessment of the impact of that and published it on GOV.UK. We will happily direct the noble Lord and others to that so that they can see the assessment that we set out when bringing the package of mitigations forward.
I understand the concerns set out by the two noble Baronesses about how the change might affect Channel 4’s support for the independent production sector across the UK, which were also raised when this issue was discussed in the other place, and we touched on it in our first group of amendments today. That is why, when we announced our intention to remove the restriction, we were clear that we would work closely with the production sector to ensure that Channel 4’s important role of driving investment into the sector would be safeguarded. The outcome of that work was a substantial package of mitigations that we announced in November, some of which, such as the introduction of new Channel 4 commissioning duties and an Ofcom-led review, are included in the Bill. Those mitigations, which also include increasing the level of Channel 4’s independent production quota, will be implemented in the event that Channel 4 incorporates a production company.
Channel 4 itself has welcomed the removal of the restriction and has said that in-house production could offer good long-term support for financial sustainability, while reaffirming its commitment to continue to invest in and champion independent producers, as it has done for the last 40 years. Ultimately, a stronger and more resilient Channel 4 will be best placed to continue playing its integral role in our broadcasting ecosystem for many years to come. By contrast, failing to remove Channel 4’s publisher-broadcaster restriction would mean passing up an opportunity to help it to deliver on that important ambition. That is why Clause 31 is an important clause and should stand part of the Bill.
Lord Bassam of Brighton (Lab)
What sort of costs does the Minister anticipate the channel will face in setting up its own production company? Has any estimate been made of that? What discussions have the Government had with the company to ensure that it can secure that in the most cost-efficient way?
Lord Parkinson of Whitley Bay (Con)
I have no estimate of my own, but I will happily find out and provide the noble Lord with any estimates that have been made.
“21A In section 39 (interpretation of Part 1), in subsection (1), in the definition of “S4C” and “S4C Digital”—(a) omit ““S4C” and”; and(b) omit “each”.”Member's explanatory statement
This amendment and my amendment to Schedule 4 at page 134, line 18, add consequential amendments relating to Chapter 2 of Part 3.
“23A In section 105 (interpretation of Part 4 and supplementary provisions), in subsection (1), omit the definition of “S4C”.”Member's explanatory statement
See the explanatory statement for my amendment to Schedule 4 at page 134, line 8.
Lord Foster of Bath
“Age rating standardsWhere Tier 1 providers use an age rating or other classification system to comply with the duties imposed on them by or under this Act for the protection of audiences from harm, they must—(a) apply the age rating or classification system used by the video works authority based on their classification guidelines, or(b) apply an age rating or classification system that is judged by OFCOM to be—(i) based on a transparent set of appropriate standards,(ii) applied consistently across content,(iii) informed by regular consultation with the UK public, and(iv) well understood and recognised by the public.”Member’s explanatory statement
This new Clause seeks to ensure that, where age ratings are used by Video on Demand platforms, those ratings are the same as the ones used by the British Board of Film Classification or meet equivalent standards of rigour, transparency, and objectivity.
Lord Foster of Bath (LD)
My Lords, on behalf of my noble friend Lord Storey and with his permission, I move Amendment 57. It seeks to ensure that, where age ratings are used by video on demand channels—and I of course acknowledge that some adopt a different approach to audience protection—the ratings are the same as the ones used by the British Board of Film Classification or meet equivalent standards of rigour, transparency and objectivity. I pay particular tribute to the noble Lord, Lord Bethell, who has worked tirelessly on this issue and whose amendments, while having the same effect as Amendment 57, provide much more detail on the procedures to be followed. We on these Benches support them, and the amendments from the noble Baroness, Lady Thornton.
I welcome the Bill’s proposal to improve audience protection on streaming services through Ofcom reviews, but my concern is that the Bill does not specify on what basis Ofcom should consider measures to be adequate—echoing the point I made earlier on the need for Parliament to have a greater say in guiding Ofcom on the way it carries out its functions. This is a particular problem when it comes to age ratings, as not all age ratings are equally effective for child protection. The present lack of consistency risks undermining public confidence in age ratings in general and I know there is an unusual level of cross-party support on this particular issue.
In the ideal world—as I see it—all streaming content would carry a BBFC age rating. We expect this of cinema and DVD releases, so why not streaming? Netflix, Amazon, Apple and many others have demonstrated that this is achievable. However, in the interests of achieving consensus, at the very least there should be minimum standards to ensure greater consistency where services choose to use age ratings. This is essentially what all the amendments in this group seek to achieve. BBFC ratings are rightly trusted and valued by UK families. The BBFC is designated by the Government, accountable to Parliament and legally bound to take UK public opinion into account, which it does through extensive research. The BBFC is also fully transparent. It publishes its guidelines and provides detailed content advice to help families make informed choices. This is essential to the effectiveness of its ratings.
Streamers working with the BBFC automatically benefit from its transparency and consistency and from the massive public trust it enjoys. Netflix viewers understand what a 12 or a 15 means on Netflix because it means exactly the same thing as in cinemas or on DVD. I have looked at some of the services that do not use BBFC ratings, including Disney+, Paramount+ and Sky’s Now service. I did not find any information on their age rating criteria, nor any evidence of research underpinning their standards. The ratings these services apply are often misaligned with UK expectations. Even where films and series have a legally enforceable BBFC rating, they often choose to apply—bizarrely—a different rating. How can parents know which rating to trust when the BBFC says one thing and Disney says something different?
To give an example: “Beauty and the Beast”, the 2017 live action remake, was a PG in the cinemas and on DVD. It remains a PG online on those streamers that are working with the BBFC, including Amazon Prime and Apple TV, but on Disney+, for some reason, it has been reclassified as a 12+. Another example is “Bohemian Rhapsody”, the Freddie Mercury biopic. This has a BBFC rating of 12. Many families will have enjoyed it together at the cinema. It remains a 12 on Amazon, Apple and the other services that work with the BBFC, but on Disney+ it is 16+. This means that, if a parent wants to let their 12 year-old watch a film that is entirely appropriate for them, they need to set the child’s Disney+ profile to access 16+ content—but that would include many titles with a BBFC rating of 15 or 18.
At the same time, Disney classified a very sinister 2019 adaptation of “A Christmas Carol” involving graphic horror scenes and sexual exploitation as a 9+. While Disney subsequently took this title down, it was a serious compliance failure when it was released with this rating in the first place. But Disney+ is not the only offender. On Paramount+, titles rated BBFC 12 are routinely bumped up to 15+, putting them alongside much stronger material. Do family favourites such as “Mean Girls”, “Top Gun: Maverick” and various titles in the Transformers series really belong alongside violent thrillers and gory horror movies?
Lord Bethell (Con)
My Lords, it is a great honour to speak after the noble Lord, Lord Foster, who put the case for this group of amendments incredibly well. I do not want to go over the ground he has already covered, but I would just like to endorse three key points behind them.
First, children should be afforded the same protections against inappropriate content, whatever channel they are on. As my noble friend the Minister will remember well, what goes on in the real world should apply also to the digital world and vice versa. Secondly, it is the role of Parliament—no one else—to set out the rules when it comes to issues as important as the safety of children. Thirdly, companies that wilfully and knowingly fail to take steps to protect children should face the consequences. Those are the three principles behind this group of amendments and I thank the noble Lord for putting them so well.
I also thank some of the companies and stakeholders with whom I have engaged in the drafting of these amendments. As noble Lords may have noticed, the amendments have changed quite a lot between Second Reading and our meeting today. The reason is that companies have made good points and we have adjusted the amendments to reflect some of those: I thank in particular Disney and Sky for the engaging, positive and constructive way in which they have conducted these conversations.
Amendment 60 is incredibly straightforward. It is to include the British Board of Film Classification as a statutory consultee when Ofcom is drafting new video on demand codes. Statutory consultees are very common. The Children’s Commission was added during the Online Safety Bill and the BBFC is highly respected. So I hope very much that that could be waved through by my noble friend the Minister.
Amendment 61 is really the main focus of my remarks today. It would bring in a minimum standard across all ratings across tier 1 services. It would allow providers to either use the BBFC’s world-class and highly robust system or—and this is a very important “or”—a system of their own that meets equivalent standards. That is the gap that this amendment seeks to fill.
Following discussions with the providers, it also includes a provision for services provided by linear broadcasters to use a system based on the Ofcom Broadcasting Code. If I can, I will briefly explain that point. Many broadcasters have a linear service that is quite reasonably overseen by Ofcom and have a Broadcasting Code arrangement. It seems sensible—to me at least—that those standards should apply to their VOD broadcasts as well. That was one of the changes we were pleased to make to the amendments we have laid.
Amendment 61 sets out the process by which Ofcom can assess the ratings systems that are not based on the BBFC’s and, following the discussions I mentioned, the ability for Ofcom to designate some content, such as news or live events, as exempt from age ratings. That seems like a sensible exemption to me. Amendments 62 to 66 are consequential on Amendment 61 and would extend Ofcom’s enforcement powers to cover breaches related to the minimum standards for age-ratings requirements.
During Second Reading, there were some concerns raised that it would be inappropriate to mandate a particular solution and that these amendments might go against the tech-neutral approach of the overall Bill. If that were the case then I would share those concerns, but I reassure noble Lords, who will see this from the text, that those concerns are based on a misunderstanding of both the intent and substance of these amendments. The provisions would apply only to tier 1 services that choose to use age ratings as part of their overall audience protection duties. No service would be forced to use age ratings against its will and the requirements would not apply to any service that finds a different or better audience protection measure, whether that is tomorrow or in 50 years’ time. Nor would it mandate a specific age-ratings system, such as the BBFC’s. In fact, my amendment provides a clear choice of three different approaches, one including a bespoke service to them, provided it meets the minimum standards.
That is what my amendments are really about. They aim to ensure that, in the same way parents know what PG and 12A mean when they go to the cinema or buy a DVD, they can trust the age ratings that pop up on their TV at home or on the basis of their parental controls. For that reason, I hope very much indeed that my noble friend the Minister will embrace this set of amendments.
Baroness Thornton (Lab)
My Lords, Amendments 67 and 69 are in my name on the Marshalled List. Amendment 67 would add signposting measures to the audience protection measures which Ofcom must review under new Section 368OB of the Communications Act 2003. Amendment 69, in common with the amendments that have already been spoken to, would require Ofcom to consider whether age-rating systems used by a tier 1 service meet a set of minimum standards.
My amendments are very similar to those tabled by the noble Lord, Lord Storey, and the noble Baroness, Lady Benjamin. The key to our amendments and those of the noble Lord, Lord Bethell, is the need for us to be consistent in the way that we deal with children and age rating, so that systems are easily understood by parents and fulfil the standards that we have in this country about child protection, wherever it is. The Minister will be aware of all this, since he lived through the Bill that is now on the statute book as the Online Safety Act.
I was slightly surprised when I received a briefing which was signed by many of the stakeholders in this area—a number of companies, but it also included the PSBs. It made an argument against the three sets of amendments that have been put down. I was rather struck by this—I think they were a bit naughty in this briefing, in my view. For example, they included the public service broadcasters, which are not affected by this; this is absolutely not relevant to them. I would like the Minister to confirm that that is absolutely the case: this is not about their content at all.
The briefing also makes various statements about the commitment that many of the companies have to collaborating with Ofcom during the passage of the Bill, but that they want to take into consideration “audience research Ofcom conducts”. If it is the case that these companies are all committed to this then I can think of no reason why they would object to the minimum standards that we have put in our amendments being in the Bill. We are not saying that they should necessarily adopt the BBFC standards; what we are saying is that they need to show that their age ratings are comprehensive, understandable and sensible.
Some of these big beasts, if I might call them that, which have objected to this are doing it because they are big beasts. Frankly, I am unimpressed by that. We know, for example, that the same thing happened when New Zealand was dealing with this issue. But guess what? They are all complying with minimum standards there and it does not seem to have been a problem. If they can do it in New Zealand, I cannot see any reason why we would not be able to do it in this country.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am in complete agreement with the noble Lords who have spoken about the need to protect children and vulnerable audiences from the harmful and inappropriate video on demand content to which they might be exposed. We are aware of the strength of feeling in your Lordships’ House and elsewhere on the need to ensure that the protection measures used by on-demand services are robust, and that providers are rightly held to a high standard when delivering them.
This is a key issue that the Bill will address by bringing mainstream, TV-like on-demand services in scope of a new video on demand code. The code will be drafted and enforced by Ofcom, which has a long track record of regulating broadcast television to ensure that it is age-appropriate and protects the most vulnerable. Ofcom will also be required to conduct reviews of the audience protection measures being taken by all on-demand services, whether or not they are subject to the new code. I can reassure noble Lords that the concerns raised today are already well covered by the Bill as drafted. Ofcom will be given extensive powers to set standards, assess video on demand services’ audience protection measures, and take action that it considers appropriate. If audiences are concerned, they can complain to Ofcom and the regulator can, in the most serious cases, apply sanctions, such as financial penalties, or even restrict access to that service in the UK.
Amendment 67 would add
“information about where viewers can seek help and further resources if they have been affected by content”
to the non-exhaustive list set out in new Section 368OB(4), a subsection which provides examples of audience protection measures. I agree that signposting audiences in this way is an important measure that all services should consider using where appropriate. I am pleased to say that many already do. However, the Bill already fully enables Ofcom to review or provide guidance on any such measures. The Bill, as drafted, purposely provides only a non-exhaustive list of measures that Ofcom can consider. As a result, it enables Ofcom to take into account anything it considers appropriate, which can of course include signposting.
Amendments 57 and 69 look to set specific standards for services that use age ratings—namely, that age ratings are consistent, recognised by UK audiences, based on transparent standards and
“informed by regular consultation with the … public”.
Let me be clear: the Bill already gives Ofcom the power to set these standards, and others, through its new video on demand code. It will rightly do that through consultation with audiences, providers and interested organisations such as the British Board of Film Classification. Ofcom must keep those rules under constant review, so that they can be adapted to take into account changes in audience expectation and technological change. In our view, the important thing is to ensure that effective protection is in place, rather than necessarily specifying as a matter of statute that systems have to be provided in a certain way or by any single or specific organisation.
Amendments 61 to 66 take this quite a few steps further by proposing an Ofcom certification scheme for those services which want to use age ratings but choose not to use the BBFC’s system. My concern is not only that this puts another responsibility on Ofcom but that it could actively discourage providers from using age ratings at all to avoid the need to get such measures certified.
I appreciate, as my noble friend Lord Bethell set out, that he has updated his amendment following dialogue with a number of companies to provide a new option for existing linear broadcasters: reliance on the Broadcasting Code when age-rating their content. This creates challenges of its own, given that the Broadcasting Code contains very little information on age ratings as they are rarely used on linear television. It is also unclear why, if the aim is for a consistent set of standards, some tier 1 providers should be treated differently from others in this way.
Finally, Amendment 60 places an obligation on Ofcom to consult the BBFC every time Ofcom considers a revision of the video on demand code. Such an obligation would be unnecessary and potentially inappropriate. While the BBFC has some interest in the issue of age classification, the scope of this amendment would include areas where it has little or no expertise—to give a topical example, it would include due impartiality in news. I reassure noble Lords that Ofcom is already obliged to consult widely with appropriate organisations. We are satisfied that Ofcom and the BBFC already have regular conversations on a number of issues.
Lord Foster of Bath (LD)
My Lords, I am enormously grateful to the Minister for his detailed response. Clearly, this is an issue we are very likely to return to on Report.
I have a couple of quick points the Minister might ponder on. He told us that Ofcom will be responsible for drafting the video on demand code. He said that will lead to Ofcom having extensive powers. But I am still left wondering how Ofcom is going to be made aware of the views of Parliament as it comes to draw up the code. How will we have any say in that code before it is finally put into place?
I confess that there were a couple of things the Minister said that slightly worried me. In response to a very simple amendment, which asked that one of Ofcom’s statutory consultees would be the BBFC, the Minister said, “We have discovered that Ofcom and the BBFC meet regularly”. I am sure they do, and I am delighted, but this Bill is meant to be future-proof and things could change later. I cannot understand why, if they meet regularly anyway, the BBFC cannot be listed as a statutory consultee.
Finally, it was slightly odd, given all the powers Ofcom has and how it will be able to do all this work, that when it comes to accrediting those who choose not to use an age-rating system, the Minister’s response appeared to be that Ofcom has too much on to take on that responsibility. I thought that was slightly odd. As I said, we are grateful to the Minister for his response, and I am certain we will be returning to this issue at a later date.
“(2) In section 393 of that Act (general restrictions on disclosure of information), in subsection (6), after paragraph (aa) insert—“(ab) limits the information that may be published by OFCOM under section 368OB;”Member’s explanatory statement
This amendment adds a consequential amendment relating to Clause 38.