Higher Education and Research Bill

Debate between Lord Smith of Finsbury and Lord Stevenson of Balmacara

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 11th January 2017 Lords Chamber

[Lord Stevenson of Balmacara]

My Lords, I am grateful to those Members of your Lordships’ House who have participated in this short debate. It has raised a number of issues we will need to reflect on. I am comforted by many of the points made by the Minister when he responded, but I still think there are one or two issues. The problem lies with Clause 106, maybe inadvertently. Maybe we can be reassured by the words already given, but perhaps we can come back to that. If subsections (1) to (6) all said “must” not “may”, the issue would disappear because an unequivocal duty would be placed on the two bodies to work together. The fact that they say “may” but subsection (2) has “must, if required” is the problem. In other words, we would have to wait until it was clear, possibly from the publication of an annual report for the preceding year, that the two bodies were not working as efficiently and complaints were arising from that before the Secretary of State could exercise Clause 106(2) and issue a “must” instruction.

[Lord Smith of Finsbury]

Does this not identify one of the central problems we face with the Bill? We have very clear and honourable assurances from the Minister and from the Minister in another place, who I am delighted to see is here with us again. I have absolutely no doubt that it is their full and open intention that there should be close co-operation and joint working between the two bodies and joint decision-making in relation to degree-awarding powers. However, the Bill does not give us that explicit assurance. One of the things we are all trying to do is to make sure that the Bill accords with Ministers’ intentions.

[Lord Stevenson of Balmacara]

I could not have put it better myself. I agree entirely. Having analysed it so successfully there, there is not a solution, if the noble Lord, Lord Willetts, is to be followed, by saying, “It is all very well having these aspirations and brilliant ideas, but it would be quite wrong to be overly bureaucratic, so we will just take a punt on it and hope for the best”. He did not say that, but that is not far from where we might be if the noble Lord, Lord Smith, is correct. I sympathise with the problem. I hope that this is not just listened to but taken account of, because a little more work on this might solve the problem and I think we are not very far apart in what we are trying to achieve here.

My issue, and the reason for Amendment 22 in my name—the noble Lord, Lord Smith, has made the point again—is that, whereas in the current structure it is relatively easy to see the differences, and where there are overlaps there are provisions that make it work, this is new and quite complicated. It is not Brexit, but it is close to those sort of issues, in that this is different from anything we have seen before in terms of what we are trying to do. We are talking about students, research activity, degrees and degree-awarding powers, all of which have to be calibrated between two new institutions that have been created ab initio. It may be that for the first couple of years it would be sensible to be more cognisant of the problems that might arise and therefore expect them to be working, rather than hoping that they will and then going back in afterwards. That is where the issue lies.

I take the point of the noble Lord, Lord Jopling, that the amendment is too specific about what is required. In a sense, this is a probing amendment—it was not intended to be taken forward—and it should be left to the bodies concerned to find their own rhythms and abilities to respond, but I hope the Minister will take away this slight worry. Even the noble Lord, Lord Willetts, said that it would be quite good to see the evidence in practice of harmonious and effective working quite quickly so that we do not have to go to Clause 106(2) to implement. We will be able to come back to this on Amendment 509, which relates specifically to research degree arrangements, and have a broader look at it. I hope that between now and two weeks’ time, when we will probably get to that, it will be possible for the noble Viscount not only to have listened but to have taken account of what we have said. I beg leave to withdraw the amendment.

Advertising Standards Authority

Debate between Lord Smith of Finsbury and Lord Stevenson of Balmacara

Thursday 29th October 2015 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, it has been a very good debate and we all owe a debt of gratitude to the noble Baroness, Lady Deech, for allowing us to expand on the issues that she has raised here. There is tremendous expertise around the Chamber. Who would have thought that we had a gold medallist in complaining sitting in our very midst? How wonderful to hear that. It is good to see the noble Lord, Lord Smith, in fine form, as combative as ever. He is too often absent from our discussions. I wish he would spend more time here. He must tell us some time what was going on in 1962 that led to the ASA being established. It must have been an interesting time, from all that we have heard tonight.

I did feel a little uncomfortable at times because we seem to be re-hearing a private discussion, one perhaps more restricted to the halls of the ASA, and it will be difficult for us to draw very much from some of the points made here because not all of us were involved in the process. I am sure the Minister will agree with me on that. However, in the interstices of that debate there are a number of points worthy of further reflection.

First, it is interesting, as was picked up by the noble Lord, Lord Smith, that most of the points that were raised for debate about what was happening in the field—apart from the political point raised by the noble Baroness—concerned the question of taste and decency. Of course, this is an area that politicians should keep well away from and we are wrong to even think about discussing it. But it makes the point, which I think was picked up by the noble Lord, Lord Clement-Jones, that whoever does this job has to have good connections to the wider world to understand the way that people are thinking about the issues being used by advertisers. They should be able to design a structure of receiving and dealing with complaints that engenders trust in their judgments. That point is so important that we should hold on to it as this goes forward.

I have no doubt that all the people involved in the current systems run by the ASA are doing their very best to make a good job of it and doing it as well as they can. I do not think that any imputation was being made about that. However, as the noble Lord, Lord Palmer of Childs Hill, asked, “Just because it is going well, does that make it right? Do we have to stick with the model we have or can we think of better ones?”. That is what the debate ought to be about. Can we do this better or fairer? There were, for example, questions about costs: “We are getting this for free, so should we not stay with these arrangements?”. However, other regulators, not least the FCA, raise their own funding. We should not be stuck on a particular model just because it happens to be cheaper than anything else.

Another matter that came out strongly in the debate is that the points raised in the Leveson inquiry seem extremely relevant to this debate. They should not be discarded simply because they do not point in the direction of advertising. The structures that were considered and the arrangements under which decisions would be taken—along with the appeals system, the role of Parliament and the role of other regulatory bodies—were all carefully mapped out by Sir Brian Leveson. There are issues here that would read across into the discussions we are having. For example, surely it is relevant that Leveson does not call for a statutory solution, at least not initially. He calls for the industry to self-regulate, but in a way which is perceived to be independent from and not attached to any interest groups, particularly those which fund the bodies that are currently operating.

Where does that leave us? Simply trying to defend the existing arrangements against any other model that might come up is not really where we want to get to. As the noble Baroness, Lady Deech, said, there are wider issues here about self-regulation, which might be helpful in trying to get to the right decision at a time of reconsideration within the wider community about how regulation operates.

I have a list of points which I suggest the Minister should respond to when he gets to the Dispatch Box. First, can we be absolutely certain that the current arrangements satisfy the EU directive in its full sense? Enough has been said to raise a question for me about whether their particularity is sufficient to do it. I am particularly struck by the points made about access to the courts should there be a problem in resolving disputes. Of course there is an independent adjudicator and judicial review, but I do not think that that is what the EU directive meant. I would be grateful if the Minister could respond on that point.

Secondly, it is not at all clear to me that the consumer interest is as well represented as has been argued in some of the discussions that should be taking place around the ASA. We in this Chamber have tried in a number of debates to find ways of improving the engagement of consumers on, for example, the FCA and the CMA. There is no perfect model, but the existing model, as far as it has been explained to us, is not the right one.

Thirdly, there are all sorts of things happening out there in the real world, as was touched on by a number of speakers, where there is currently no apparent regulatory function—good or bad. I think particularly of things such as the dark web but also of some social media. Are we confident that the existing agencies have the capacity and technical expertise to begin to think about those issues? There is no easy option.

In the modern world, given that most organisations which engage in advertising will be large companies based outside the UK—much the same as those which produce television and film materials; and even if they are in the UK, they will have a small presence here but will largely be run from elsewhere—do we have sufficient sanctions and ability to deal with penalties, should there be a need to do so, in time? The current sanctions are largely persuasive and largely reliant on the ability to shame those affected by the judgments into changing their behaviour. I am not saying we necessarily would wish to do this, but should there be need for financial penalties or custodial sentences, is it right for a body set up by industry to have that responsibility? If that is where we are going, do we not need to think more carefully about the statutory elements that might be involved in that? Ofcom obviously is a possibility, and it may be that that is an area we might want to look at.

[Lord Smith of Finsbury]

Perhaps I may just very briefly point out to the noble Lord that at the ASA we do, if there is a persistent, recalcitrant non-complier, refer them, in the case of a broadcast ad, to Ofcom, and in the case of any other ad, to trading standards. Statutory criminal action can then follow.

[Lord Stevenson of Balmacara]

I am grateful to the noble Lord for pointing that out. I had not picked that up in the voluminous material which has been circulating. I am grateful to him for reminding me about it, but he makes the point that I was always going to make: the ASA’s ability to operate in that way at the moment is largely based on coregulatory activity not a self-regulatory arrangement. That, again, is a complexity. I am not saying it is wrong; I am just saying that we need to tease out what we want from this and make sure that it aligns properly.

I end by referring to ATVOD, which the noble Lord, Lord Clement-Jones, mentioned, because there has been a change here which I think is significant. The coregulatory structure with Ofcom is to change from December 2015. As many noble Lords will be aware, ATVOD used to do coregulation with Ofcom for TV on demand. According to Ofcom, the change which has been put forward is based on the feeling that Ofcom should do this on its own in future,

“in light of the increasing convergence of linear services and on-demand programme services, the Single Digital Market Review in the EU, and the need for a comprehensive solution to the future of content regulation”.

That seemed to be a way into having a further discussion about whether or not it should go further than simply to ATVOD.

This has been a good debate and there are lots of things here to take forward. I do not think we should get stuck on the particularities of the specific issue raised by the noble Baroness, Lady Deech, but I do think that her experience has given her sufficient vigour and interest to take this to another stage. We should respect that and try to give her a good answer.