Media Bill

Lord Foster of Bath Excerpts

2nd reading
Wednesday 28th February 2024 Lords Chamber

[Lord Foster of Bath (LD)]

My Lords, this has been, as usual, an interesting and incredibly well-informed debate. But it has presented us with a significant problem. Many noble Lords have spoken about the urgent need to get on with the Bill as quickly as possible. At the same time, many suggestions have been made about areas in the Bill that require improvement, including the very important issue raised by the noble Lord, Lord Forsyth, about which we are very sympathetic, as my noble friend Lord Storey has already pointed out. I hope that the case for speed will not lead to justifiable concerns being brushed aside. After all, the previous Bill is 20 years old, and we may have to wait a further 20 years for another Bill. It is vital that we get this one right and ensure, as far as possible, that it is future-proof.

I echo the words of the noble Lords, Lord Birt, Lord Hall and Lord Vaizey, and, it would appear, Joni Mitchell. Nowhere is this more important than ensuring the long-term security of our public service broadcasters, from which we all benefit, and which help to drive our enormously successful creative industries. Our understanding of what was expected of a PSB was very clear in the 2003 Act. Unlike the noble Lord, Lord Bassam, and, I think, the noble Lord, Lord Vaizey, who appear to be welcoming the streamlining—as they put it—of the PSB remit, many other noble Lords, including my namesake, the noble Baroness, Lady Foster, and the noble Lords, Lord Hall and Lord Russell, the right reverend Prelate the Bishop of Leeds, and all of those on these Benches, have a different view.

We believe that the Bill is much less clear about what is expected from a PSB because changes to Section 264 of the 2003 Act will remove the Reithian values of inform, educate and entertain. They remove many of the genres expected to be covered, from music and the arts to science and religion. All we now have is, as the noble Viscount, Lord Colville, said, the vague requirement of a range of appropriate genres. In response in the other place to similar concerns, the Government argued that it is in the royal charter for the BBC and in the licences for the other PSBs that such expectations will be covered. But can the Minister confirm that Parliament has absolutely no say on those documents? If Parliament is to have a say on what it wants of PSBs, surely we should look again at this issue.

The Government have also argued that Ofcom will cover this by looking at the delivery of genres across all platforms. Can the Minister confirm that the Bill provides no statutory duty for Ofcom to do this, as I believe it should? Does he also agree that, without specifying genres, it would be very difficult for Ofcom to do the necessary monitoring?

A further example that many noble Lords have touched on where there is a need for future-proofing in the Bill is in respect of radio. I suggest one small addition that I believe we should consider: to keep pace with the change in listening habits, the legislation should be extended to cover those issues that have already been raised. These include: non-broadcast online content, such as catch-up radio; online-only radio stations; podcasts; and the issue raised by the noble Lord, Lord Hall, of in-car radio.

Many noble Lords have raised the vital importance of prominence across all platforms. At a later stage I will be asking questions about the implications of the proposals. I wonder, for example, whether TV remotes, such as my current one, will still be allowed to have a large Netflix button without a PSB one. Much more importantly, if Ofcom is to be the guardian of prominence, it needs a very clear steer from Parliament about what Parliament intends. We share the view that “appropriate” prominence will not help Ofcom. The right reverend Prelate may also be right that “significant” prominence is not the right word either. I hope that we will get together and find the appropriate language so that Ofcom knows what it is that your Lordships and Parliament want.

We also welcome the proposals to update the listed events regime, as my noble friend Lord Addington said, along with others, including the noble Lord, Lord Hall, and the noble Baroness, Lady Grey-Thompson. There is a need for the regime to be further extended so that audiences can view time-shifted content on PSB video on demand platforms.

A House of Commons Library briefing explained this very clearly back in February 2023. It said:

“If for example the Olympic 100 metre final was broadcast live in the middle of the night on the BBC, but all streaming and catch-up rights were sold to a different broadcaster and kept behind a paywall, then a culturally relevant event might not be available to a wide audience on a free-to-air basis”.


I hope the Minister will consider supporting amendments to cover this concern.

I was very taken with the speech by the noble Lord, Lord Bethell, on minimum standards for child protection. He made a very powerful case. He argued that we should not be relying on the good will of the numerous VOD platforms; nor should we rely on Ofcom. I noted his remarks. He said that it should be our job as legislators to set the rules of the game and the job of Ofcom to referee the match. I do not think any of us would disagree with that. We certainly believe in that, and we will work with him to ensure that some minimum standards are on the face of the Bill.

Many noble Lords referred to Ofcom. I confess that I am not quite as sanguine as the noble Lord, Lord Vaizey, about Ofcom’s ability to take on yet more responsibilities. After all, it has become something of a dumping ground for all the regulatory duties that have been incrementally imposed on it since it opened its doors back in 2003—all on top of its core functions around spectrum allocation and the monitoring of content. I certainly believe that we should be considering dividing this unwieldy behemoth into two regulatory bodies, one devoted to infrastructure and one devoted to content—but that is for another Bill at another time.

Given Ofcom’s huge responsibilities, and given that there is so much that it has to do, it is not surprising that even tonight concerns have been raised about, for example, its ability to cope in relation to its regulatory approach to the new breed of opinionated news channels, such as GB News. Does Ofcom have the resources and competence to carry out its additional responsibilities? What can the Minister tell us about additional resource allocations to Ofcom to fulfil these further responsibilities?

One other point that we will certainly press is that, however illustrious its current and previous chairs have been—and it is lovely to see the noble Lord in his place—there is a legitimate disquiet over Ofcom’s independence from government. Whether true or not, perception matters. We believe that the time has come to overhaul the appointment process to ensure that Ofcom is wholly independent and transparent, and we will move amendments to this effect.

It is well known that, on these Benches, we opposed the privatisation of Channel 4 and were incredibly pleased when the Government backed down. But we have some concern about the proposal which will enable Channel 4 to produce in-house programmes, as it could end up undermining the very basis of Channel 4 to support, especially, new and up-coming media companies—the indies—as it has so successfully done over many years. While Channel 4 has suggested that it will not immediately go ahead with in-house production, I hope the Minister will agree that, if and when it does, there should be a quota of minimum qualifying spend still going to SME indies.

On Part 4, several noble Lords have commented on the proposal to repeal Section 40 without any alternative proposal. On these Benches, we disagree with the noble Lords, Lord Hunt and Lord Black, and we agree with the noble Baroness, Lady Hollins, the noble Lord, Lord Watts, the right reverend Prelate, the noble Lord, Lord Lipsey, and others, who want Section 40 not only retained but implemented. Doing so would guarantee access to justice to the public and incentivise press membership of a truly independent regulator, thereby ensuring no backsliding into unlawful and unethical press practices of the past. Perhaps most importantly, it would protect newspapers from chilling and meritless litigation, otherwise known as SLAPPs. The case to retain and implement Section 40 is overwhelming, and we will pursue it in Committee.

This is a necessary and important Bill, but changes are needed, and we will seek to make such changes during a later stage—but we will commit to doing so as quickly as possible. Given, as my noble friend Lord Storey pointed out, we have a Minister who truly gets it, I am confident that we can quickly agree to such changes and rapidly get this much-needed Bill on to the statute book.

Media Bill

Lord Foster of Bath Excerpts

Committee stage
Wednesday 8th May 2024 Lords Chamber

The last Communications Act was in 2003, over 20 years ago. The next one may well not be for another 20 years. It is our duty, in a very fast-changing media landscape, to future-proof our precious PSB system so that it remains distinctive and British, not just a poor imitation of the American-owned global broadcasters that dominate our digital channels. I ask the Minister, on behalf of the viewers of this country, to support Amendment 9, which would ensure that we have a British television industry to be proud of well into the future.

[Lord Foster of Bath (LD)]

My Lords, I hope it was fairly clear from what I said at Second Reading that I would be very likely to support the amendments that we heard in the first group and, in particular, to support Amendment 9, which has just been so powerfully introduced by the noble Viscount, Lord Colville.

Many of us at Second Reading, as has been reiterated already today, believed that we had a very good understanding of what a PSB was from the Communications Act 2003. Our fear is that the Bill that is now before us is much less clear because of the changes that have been made to that Act, removing the Reithian values and removing the list of genres—from music to the arts, from science to religion. All we now have is a vague requirement of a range of appropriate genres.

These points have already been well made in our deliberations today, so I will not repeat the arguments for them. I wish to pick up just one point: namely, where does Parliament have any say in the future in what will happen to our public service broadcasters? From the debates that have taken place both in this House, at Second Reading, and in the other place, we know that one of the Government’s arguments about this streamlined arrangement for PSBs is that we should not be worried because, as far as the BBC is concerned, much more detail will be provided within the royal charter and, for the other public service broadcasters, it will be provided for within the licences. However, I asked a question at Second Reading to which I did not get an answer. It was a simple one: does Parliament have any say whatever in the royal charter or the licence agreement? My understanding is that the answer is no. I hope that, when the Minister responds on this group, he will confirm that I am correct, and I hope that, in doing so, he will acknowledge that that argument means, therefore, that there is no opportunity for Parliament to have a say on this important issue.

In response to the first group of amendments, the Minister told us that there was a second way in which we need not be concerned. He told us about the rather pointless, as the noble Viscount, Lord Colville, pointed out, five-yearly “high-level”—as the Minister called it—review, because so much would have changed. He pointed quite rightly, however, to the annual report that Ofcom would have to do, collecting the annual statistics on the genres covered. We should get some confidence from that, because he pointed out that that is contained in Section 358 of the Communications Act, which will be continued.

Well, I had a look at Section 358, which talks about annual reports with statistics on the genres covered, but I noted that, very interestingly, that Section 358(3) states:

“In carrying out a review … OFCOM must consider, in particular, each of the following”—


and the first is

“(a) the extent to which programmes included during that period in television and radio services are representative of what OFCOM consider to be the principal genres for such programmes”.

So Parliament is not going to have a say there, either.

We look to the Bill itself, which also talks about the new streamlined way in which the whole approach to PSBs is set out and how Ofcom will review it. Clause 1(5)(b) states that the requirements of this subsection are

“that the audiovisual content made available by the public service broadcasters (taken together) includes what appears to OFCOM to be … a sufficient quantity of audiovisual content that reflects the lives and concerns of different communities”—

and so on. So, yet again, we have a Bill before us that refers back to a previous Bill and also to something where Ofcom is making decisions on issues in which Parliament has not had the opportunity to be involved.

These amendments are the only opportunity for Parliament to have its say. I, for one, strongly believe that we need to give very clear guidance to Ofcom on what Parliament believes is the appropriate role for a for a public service broadcaster. This amendment gives that very clearly. It would reinstate what was contained within the Communications Act 2003. I very much hope, therefore, that the Minister will accept not only the amendment but the legitimate role that Parliament has in saying what it believes should be the guidance given to Ofcom for the review that it carries out into the nature of our public service broadcasters.

[Baroness Fraser of Craigmaddie (Con)]

My Lords, I too have added my name to Amendment 9 in the name of the noble Viscount, Lord Colville of Culross, which, as he has explained, seeks to define what an “appropriate range of genres” actually is. What worries me is that his amendment has a list and, without that, I do not think that there is any definition of what we think an appropriate range should be.

We are not alone in believing that new subsection (6) is inadequate in its lack of clarity over both what an appropriate range of genres is and how it is going to be monitored by Ofcom. Concerns have been expressed through briefings to noble Lords from the Citizens’ PSM Forum, which welcomes and endorses these amendments. The only change that I suggest is that instead of “religion and other beliefs”, I would prefer “religion and other faiths”, as I think that will ensure that conspiracy theories and the like are not accidently captured by this.

Media Bill

Lord Foster of Bath Excerpts

Committee stage
Monday 20th May 2024 Lords Chamber

I confess that the final amendment is merely a probing amendment, after having noted that there was a difference between the broadcast standards code and the tier 1 standards code where the former includes a ban on subliminal programming or advertising. The tier 1 standards code does not include the same language, and I want to know from my noble friend why that is the case. Even though it might be that the broadcasting code provision has never been used, as it prohibits harmful broadcasting and therefore it is all okay, I am slightly worried that anybody looking at the legislation might say that it is included in the broadcast code but not in the tier 1 standards code and therefore there must be some statutory distinction made between the two codes. I do not think that should be the case. If subliminal material, programming and advertising are prohibited on broadcasting, they should be prohibited on tier 1 services as well. Amendment 58 merely asks that question of my noble friend.

[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.

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Moved by

[Lord Foster of Bath]

57: After Clause 37, insert the following new Clause—
“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?

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By contrast, these amendments risk putting unnecessary restrictions on Ofcom and could, in effect, preclude change or any new forms of age rating entering the market, undermining the good progress that has already been made. I am sure that is not what my noble friend or other noble Lords would want to see. However, I appreciate the concerns that lie behind the amendments they have put forward; those are weighty concerns indeed. We have committed to listen to the interested parties on this debate, and we will continue to do that as the Bill progresses.

[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.

Amendment 57 withdrawn.

Media Bill

Lord Foster of Bath Excerpts

Committee stage
Wednesday 22nd May 2024 Lords Chamber

Now is a golden opportunity for the Minister to show that the Government believe in levelling up. I ask them to help local people find out about their local area on a local radio by whatever means works for them, not for Ofcom.

[Lord Foster of Bath (LD)]

My Lords, it is an extremely surreal moment to stand up just as the Prime Minister is about to walk out of the door of No. 10, maybe to announce a general election for 4 July. Of course, if that does happen it means we will be dealing with these very important issues during the wash-up process.

[Lord Vaizey of Didcot (Con)]

I just wanted to let the noble Lord know that Downing Street is delaying the announcement for 10 minutes so that we can hear his speech in full.

[Lord Foster of Bath (LD)]

I am always grateful for suggestions from my friend, the noble Lord, Lord Vaizey.

The amendments that have already been debated are extremely important. I am particularly grateful to the noble Viscount, Lord Colville, for explaining the somewhat complex details surrounding the amendment proposed by the noble Baroness, Lady Berridge. These amendments are really important in the context of going back to the sort of local radio stations we used to enjoy. He is also right to point out that a number of our debates have already demonstrated how important it is for Parliament to give a clear direction to Ofcom about its various activities.

I will concentrate on my Amendments 75 and 76. On Monday, I referred to the vital importance of Sections 319 and 320 of the Communications Act in creating an impartiality framework for TV and radio, building on earlier ones. That tradition of impartiality is the basis for the very high level of trust in our broadcast journalists—a tradition as vital for radio as it is for television. As I said on Monday, in an era of disinformation and conspiracy theories, spread so easily and quickly via social media, those impartiality requirements and the trust they engender in broadcast news and information are more important than ever. However, they are now under threat from a combination of a new generation of opinionated news stations and what appears to be the increasing reluctance of Ofcom to implement Parliament’s will.

Those impartiality rules, laid down by Parliament in 2003, are very clear. Section 319(2)(c) of the Act lays down that one of the standards objectives to be enforced by Ofcom is that

“news included in television and radio services is presented with due impartiality and that the impartiality requirements of section 320 are complied with”.

Section 320 states clearly that, for every radio and television service, due impartiality must be preserved in—this is critical—

“matters of political or industrial controversy; and … matters relating to current public policy”.

In simple terms, I believe that means that the due impartiality requirements must apply equally to both news and what we might call current affairs.

Recently, however, Ofcom seems to be making a distinction, allowing greater latitude for current affairs programmes to escape the due impartiality requirement. The distinction was first raised on 21 March last year in an Ofcom blog posted by its then group director for broadcasting and online content, Kevin Bakhurst. It was headlined, “Can politicians present TV and radio shows? How our rules apply”. Mr Bakhurst stated that,

“generally speaking, if it’s a news programme, a politician cannot present”,

but

“They are allowed to present other kinds of shows … including current affairs”.


Yet that distinction between news and current affairs appears nowhere in the relevant statute; nor did it appear in Ofcom’s Broadcasting Code or in the guidance that accompanies the code, yet Ofcom now clearly sees a distinction.

Last month, looking further into the issue of politicians presenting programmes, Ofcom commissioned IPSOS to carry out some focus groups among audiences. One of the conclusions in the IPSOS report was:

“Participants thought they could easily distinguish between news and current affairs … However, in practice, the presentation and style of these types of content blurred the line between news and current affairs which confused participants”.


IPSOS concluded that:

“The most prevalent opinion was feeling uncomfortable with politicians presenting current affairs content”.


While Ofcom appears to want news and current affairs to be treated separately, audiences have difficulty distinguishing between the two, so, just as the 2003 Act intended, news and current affairs programmes should both be covered by Sections 319 and 320 of the Act. The arbitrary distinction that Ofcom appears to have made between news and current affairs has no basis in law. After all, both quite clearly relate to

“matters of political or industrial controversy; and … matters relating to current public policy”.

Were the distinction to continue, it would significantly weaken the impartiality framework, so Amendment 75 makes it clear that Parliament always intended news to incorporate current affairs, in line with audience expectations.

This brings us back to the issue about partisan presenters. We have some outstanding radio show presenters with well-known political allegiances, including some from this House. I mention in passing the excellent programmes on Times Radio presented by the noble Lord, Lord Vaizey, and the newly ennobled noble Baroness, Lady Hazarika. We would not want to banish them from the air waves any more than we would want to banish, say, Nigel Farage from GB News. We are a liberal democracy, and we want to protect those contributions, but surely only if their shows live up to the same standards of impartiality required for news programmes.

Given the very high trust that audiences have invested in our broadcast services, as well as the clear audience discomfort with politically partisan presenters, we should seriously consider whether additional impartiality guardrails might be necessary for programmes hosted by well-known figures with well-recognised political allegiances. Amendment 76 addresses the rules around partisan presenters, whether on news or current affairs programmes, and it offers the simple proposal that the Secretary of State should review whether an enhanced duty of impartiality for such presenters might be necessary. The current rules around impartiality should not be allowed to be weakened by a regulator, certainly not without Parliament’s permission. Taken together, Amendment 75 and 76 seek to protect the legacy of trust which our broadcast media has taken decades to construct and which must not carelessly be disregarded.

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There is clearly a balance to strike here, and it is right that Ofcom, as the independent regulator, retains the flexibility to keep these matters under review and to take a decision based on the best and most up-to-date evidence, rather than being unduly restricted in legislation.

[Lord Foster of Bath (LD)]

The Minister is missing the fundamental point. There is a simple question: does he believe, and is it the Government’s view, that the due impartiality regulations contained in Sections 319 and 320 of the Communications Act apply to both news and current affairs programmes?

[Lord Parkinson of Whitley Bay (Con)]

I will happily write to the noble Lord with more detail on that, but we think the Bill strikes the right balance.

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I want the fast-growing online radio channels to be a huge success, easily and universally accessible. The Minister has been very generous with his time, and met me twice about other concerns in the Bill. I ask him to meet me again, so that we can work together to make Part 6 of the Bill as effective and future-proofed as it possibly can be.

[Lord Foster of Bath (LD)]

My Lords, I very much welcome the amendment tabled by the noble Viscount, Lord Colville, which suggests that there should be a post-enactment review by the Secretary of State as to whether radio selection services should be extended to other devices. I fully support the case that he has made.

Amendment 81, tabled by the noble Lord, Lord Bassam, gives us an example of some of the things that need to be done and included in the Bill. His amendment, which seeks to extend the protections outlined in the Bill, would help future-proof the legislation and ensure that it keeps pace with rapidly changing audio-consumption habits. It is worth pointing out that this change was a key recommendation from the Culture, Media and Sport Committee during its pre-legislative scrutiny of the draft Media Bill last year. Amendment 77, tabled by the noble Baroness, Lady Thornton, which seeks to expand the scope of the regulation to cover non-voice-activated in-car infotainment systems, is another very good example of something that should be done now.

There is another area that should be addressed in the Bill that is covered by my Amendments 79 and 80. Amendment 79 would require voice assistant platforms to share data with broadcasters on the use of their radio services, and Amendment 80 would prevent tech platforms charging broadcasters for that data. The free flow of data is crucial—for commercial radio, community radio and even the BBC—in order to create a direct relationship between the listener, broadcasters and, in the case of commercial organisations, advertisers, to help them exist and grow.

Tech platforms are currently not obliged to share data with radio broadcasters on the distribution of their audio services. Any personal data shared between tech platforms and broadcasters would of course need to be subject to user consent and compliant with data protection legislation. Following consent, better access to data can help drive innovation in radio and audio services, unlocking new levels of personalisation and curation for the benefit of audiences. It is also vital for commercial radio broadcasters, as they depend on advertising revenues for their survival. Increased data transparency will therefore support commercial broadcasters of all sizes in taking advantage of targeted advertising, which is more attractive to advertisers and can command a higher price. In the long term, that would help to support the sustainability of the commercial radio sector as it becomes more reliant on online listening.

Access to data is currently inconsistent between tech platforms. For example, while Google and Apple provide virtually no data at all to radio broadcasters, Amazon provides some limited data through its Radio Skills Kit platform. However, there are important user insights that are not provided—such as age, gender, location and other interests—which would support the development of more personalised content.

This amendment would ensure a minimum standard for consistent, high-quality data to be shared with radio broadcasters by regulated radio selection services. It would also secure a minimum level of data access for all broadcasters, ensuring that tech platforms cannot engage in gatekeeping behaviours by revoking data access and/or charging broadcasters for the provision of that data. Without intervention, broadcasters will be at a disadvantage compared with the tech platforms, which have access to all the data generated by the listeners of UK radio on their voice-activated devices. In the long term, there is a risk that that data asymmetry could undermine the clear benefits that the Bill brings in levelling the playing field between UK radio broad- casters and large tech platforms.

There is a clear benefit to including data provisions in media sector-specific legislation, as they provide the most relevant opportunity to legislate for the specific challenges facing the media sector, without placing disproportionate burdens on the platforms to make significant changes to their data policies across all aspects of their businesses. I very much look forward to the Minister’s response not only to these proposals but to the others we have already heard.

[Lord Parkinson of Whitley Bay (Con)]

As noble Lords have recognised, the provisions in Part 6 of the Bill are designed to secure the ongoing availability to listeners of UK radio services and will help to maintain the huge public value that radio provides as online listening continues to grow.

Turning first to Amendment 77 in the name of the noble Baroness, Lady Thornton, the Government fully recognise how important it is that radio continues to maintain its presence in the car. On the provisions in the Bill, I confirm that, where a radio selection service using an in-car device is voice-activated and connected to the internet, it will fall within the definition of a “radio selection service” for the purposes of Part 6. Indeed, that is further clarified by new Section 362BB(2), which ensures that the assessment of whether the use of a radio selection service is significant can take account of specific usages, including the level of radio listening via that platform that takes place in a vehicle. Therefore, should a selection service have significant usage among in-car listeners, it would be subject to potential designation under this part of the Bill.

However, it is correct that there are no requirements on car manufacturers more generally, as the measures are focused on designated platforms that provide a radio selection service. Amendment 77 would extend the definition of “radio selection service” to include services not connected to the internet but accessed via the in-car system provided by car manufacturers. We are not persuaded that it is necessary to extend specific regulatory protections further, given that the evolution of systems and their integration into cars is ongoing, and given the progress made by the radio industry in the UK and across Europe in securing partnerships with car manufacturers and platforms.

However, we recognise that ensuring continued access to radio in the car will be an important part of the review of the radio market in 2026—to which the Government committed in their response to the digital radio and audio review of April 2022—and we will continue to keep the matter under consideration. New Section 362BA also contains powers to amend the definition of a radio selection service, if needed in future, as listening habits change. While I thank the noble Baroness for the opportunity to set that all out, I hope she will be satisfied and willing to withdraw her amendment.

Turning to Amendment 78, tabled by the noble Viscount, Lord Colville of Culross, I agree with the sentiment that the definition of a radio selection service could change as technology evolves and listening habits change. New Section 362BA also contains powers to amend the definition of a radio selection service, if needed in future. That could include amending the definition to include different ways in which radio stations are selected if a clear need arises in future. As I mentioned earlier, in their response to the digital radio and audio review, the Government committed to a further review of the market in 2026, and the growth and direction of online listening will be an important part of that review. While I am happy to talk to the noble Viscount, if he wishes, I think he will have discerned our reservations about the need for what he proposes, and I hope he will be content to withdraw his amendment.

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[Baroness Stowell of Beeston (Con)]

My Lords, I will just speak briefly, because I know that we want to get to Front-Bench spokesmen. A lot of detailed arguments have been advanced by those who have tabled amendments in this group and I think they reflect the detailed nature of the measures proposed. I have listened to those arguments and also heard some of the examples of people who have had bad experiences of the media. I sympathise with a lot of what has been said but, when it comes to matters of principle—and I believe that freedom of the press is a matter of principle—I also have the view that there are some circles that cannot be squared.

It is worth us just remembering that, only a couple of months ago, when we were debating foreign power ownership, Lord Ashcroft did a poll which showed that two-thirds of British people do care about freedom of the press. I think we can all agree that people might not always love or approve of everything done in or by the British media, but the principle of a free press, free from government interference, is something that matters to them. I believe it is a principle that serves the public interest and therefore one that Parliament must uphold. For that reason, I cannot support any of the amendments in this group and I will support my noble friend the Minister in resisting them.

[Lord Foster of Bath (LD)]

My Lords, I begin by saying that, while I disagree with a great deal of what the noble Lord, Lord Black, said, I agree entirely with him in his view that this Bill is not the right place for discussing Section 40. I am enormously grateful for the best wishes for a speedy recovery that have been passed to my noble friend Lord McNally and I know that he is bitterly disappointed that he cannot be here. He would have been proposing a very simple way forward —that Clause 50 should not stand part of the Bill. The implication of that would, of course, have been that Section 40 would have continued to be on the statute book. But he would have gone a stage further and argued that it would be certainly the view of these Benches that it should not only be retained on the statute book but also should have been implemented.

There have been all sorts of debates about and criticisms of the proposal that came from Sir Brian Leveson. We should accept that a great debt needs to be paid to the noble Baroness, Lady Hollins, for the way in which she has forensically gone through many of those criticisms and debunked them. The one criticism that has not been debunked by her is that it is no longer necessary to have protection of the type that was proposed by Leveson because there is not really a problem now with what the press is doing. I think the noble Lord, Lord Watts, put it very clearly: there are still many examples of wrongdoing by the press. We need to be well aware of the implications of removing Section 40. There would be virtually no access to justice for victims of press wrongdoing. Ordinary people who find themselves defamed, have their privacy invaded or their grief intruded on by wealthy and powerful newspapers in search of higher circulation or clickbait will find themselves virtually helpless.

The noble Lord, Lord Hunt, may well be right that the degree of wrongdoing has reduced. That does not alter the fact that it still exists and there needs to be a mechanism to help in particular those who do not have deep pockets to ensure that they can get justice. Therefore, it requires the Government—were they to be continuing—to make very clear what their alternative is to provide the protection for those very people. There may not now be the opportunity, given the announcement about the forthcoming election.

We have heard many alternative solutions put forward in the various amendments before us today. There is not now time to go through all the detail. So, on these Benches, we are very clear that the best way forward now would be for the Government to accept the view of the noble Lord, Lord Black, that this is not the right place for a discussion of Section 40, that Section 40 should remain on the statute book and that a future Government—whichever party is in charge—should have an opportunity to discuss the right way forward to continue to provide the protection that is still going to be needed. I give way.

[Lord Black of Brentwood (Con)]

Can I just make it clear that I did not say that this was not the place to deal with Section 40? I said this was not the place to open a whole debate about self-regulation. I was crystal clear that Section 40 needs to go in its entirety and I hope its repeal will go through with this Bill immediately.

[Lord Foster of Bath (LD)]

I apologise profusely to the noble Lord if I misquoted him. Let me say therefore that it is very firmly my view that this Bill is not the right place for a discussion of Section 40 and all the ramifications.

With those relatively few remarks, I very much hope that the Government will consider that the removal of Section 40 should not form part of this Bill, should not form part of the wash-up discussions and should just be kept as it is and we can debate it at a future date, whether we are on the same side of the Chamber or the opposite side.

[Lord Bassam of Brighton (Lab)]

My Lords, I thank all those who have already spoken, outlining their rich and often diverging views on this important clause. I understand completely that there are very different views around the Chamber and we have heard them for the last hour or so. I will outline the Opposition’s view on Clause 50 and Section 40.

The Leveson report is now over a decade old. Responding to, rightly, the concerns of the time, Brian Leveson’s aims were to balance the competing concerns of protecting the free press—which the noble Lord, Lord Black, spoke eloquently about—while ensuring high press standards. We have heard noble Lords championing those during the debate this afternoon.

Therefore, while the inquiry helped bring about a press regulator, it did not enforce mandatory membership for news publishers. Rather, it made membership voluntary but introduced incentives for publishers to join, including consequences if they did not. Section 40, which has never been commenced, would make publishers who had not signed up to the regulator vulnerable to paying the costs of those they face in legal cases even if the wider case was ruled in their favour. Press groups have long pointed out the impact this imbalance would have on their ability to undertake free and fair reporting.

The media landscape is now much changed, although some of the issues that were present then clearly are today. It is to be expected that that would be the case some 10 years on. Challenges from the rise of social media, online consumption of media and the consequences of falling advertising revenue mean that we have seen a significant impact on the ability of the press to compete in the market and undertake its vital work.

Additionally, a self-regulatory system for the press now exists—something not anticipated ahead of the creation of Section 40 in the 2013 Act. This alone makes the situation different from 2013 and, taken together, these changes mean that it is right that Section 40 should not remain in the Act as it is. Thus, and for those reasons, we cannot support the clause stand part proposition tabled by the noble Lord, Lord McNally, and so ably and so colourfully supported by my noble friend Lord Lipsey.

On Amendment 87A from the noble Lord, Lord Watson, I am very grateful to my noble friend for his contribution, but we are unable to support his amendment. I know he will be disappointed at that and he made very powerful arguments and a powerful case in putting his amendment to the House.

In our view, Amendment 87A risks wrapping up publications in sometimes spurious legal disputes and opening the door to sometimes repeated and vexatious claims. It would also put the onus of determining factual inaccuracies on the High Court. We do not believe that to be the right place for this to happen.

I thank the noble Baroness, Lady Hollins, as ever, for her carefully thought-through contribution. I pay tribute to her for the work that she has done, very ably and passionately, over many years. Outside your Lordships’ House, I look forward to digesting what Brian Leveson has had to say on this issue and, by extension, his contribution to this important debate. I shall speak to one of the noble Baroness’s amendments in particular: Amendment 84 presents an advantage in keeping parts of Section 40 that provide positive incentives to join a regulator and protections for those that do, while removing the part of Section 40 that has caused so much concern. I look forward to hearing what the Minister has to say on this.

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Moved by

[Lord Foster of Bath]

88: After Clause 51, insert the following new Clause—
“OFCOM Chair discharging duties under this Act(1) Before appointing an individual as Chair of OFCOM, the Secretary of State must ensure that their preferred candidate appears before relevant select committees of both Houses of Parliament to set out how they would discharge their duties under this Act.(2) If a relevant select committee of either House publishes a report concluding that the candidate should not be appointed, and the Secretary of State decides to proceed with the appointment, they must make a statement to either House about why they are proceeding with the appointment, including but not limited to—(a) an assessment of that candidate’s ability to act independently in discharging their duties under this Act, and(b) a response to any findings or recommendations made in a report by a relevant select committee.”Member's explanatory statement
This amendment seeks to increase parliamentary scrutiny of proposed OFCOM chairs in discharging their duties under this Act.

[Lord Foster of Bath (LD)]

My Lords, we have spent a great deal of time during discussions on this Bill quite rightly talking about Ofcom—its duties and its vital role in supporting our creative industries and in protecting the public. Its primary purpose remains as laid down in the Communications Act 2003: to protect the interests of citizens and consumers. However, in recent years, it has become something of the proverbial Christmas tree on which we have chosen to hang a procession of new regulatory burdens and responsibilities, from regulating the BBC to overseeing online safety.

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[Lord Parkinson of Whitley Bay (Con)]

I thank the noble Lord and the noble Baroness. I will address Amendment 88 first. The noble Lord, Lord Foster of Bath, brought up an important point about Ofcom’s impartiality and the process for appointing its chairman. I join him in commending the noble Lord, Lord Grade of Yarmouth, the current chairman, on his ongoing work to steer Ofcom through a time of great regulatory change—I acknowledge the change that the noble Baroness, Lady Thornton, alluded to in her closing remarks. As the noble Lord, Lord Foster, said, he draws on his extensive expertise in the sector.

Given the trust we place in Ofcom to regulate our media sector, its independence and impartiality are of paramount importance. To that end, the existing processes ensure that the appointment of the Ofcom chairman is designed to give effect to just those objectives. The chairman is appointed by the Secretary of State following a fair and open competition. This appointment is regulated by the office for the Commissioner for Public Appointments. The chairman of Ofcom is designated as a significant appointment by the commissioner. This means that the advisory assessment panel, which advises the Secretary of State, must have a senior independent panel member to ensure its impartiality. This member must be independent of the appointing department and must not be politically active.

The parliamentary scrutiny of this process was enhanced in the update to the Governance Code on Public Appointments in February this year. The updated guidance specifies that, should the responsible Minister not follow the advice of the advisory assessment panel, she or he is required to write to the chairman of the Select Committee when she or he announces the chosen candidate, and must appear before the Select Committee if requested to do so.

Furthermore, the chosen candidate is required to appear before the Select Committee before he or she is appointed. These new processes, which I hope the noble Lord agrees will help to address many of the concerns he raised, will apply to all future appointments to the role. We believe that this process ensures robust scrutiny and promotes Ofcom’s independence. I appreciate the noble Lord’s intention in tabling this amendment and agree with him about the importance of the topic it covers, but, given that this process was updated as recently as February, I consider his amendment unnecessary and hope that he will be happy to withdraw it.

I thank the noble Lord and the noble Baroness for Amendments 90 and 91 relating to Ofcom reporting. Ofcom has been regulating television and radio broadcasters since 2003, and we have confidence in its ability to continue to do so in the face of the changes brought about by the Bill. I appreciate what lies behind their amendments, which would ensure that the scope of the regulator’s functions, powers and duties—as well as its resources and capacity to deliver on its programme of work—is regularly reviewed. I am glad to say that there are already existing legislative requirements for Ofcom to report annually on how it carries out its functions. This information is published and laid before both Houses of Parliament, allowing the public and Parliament alike an opportunity for scrutiny.

In particular, Ofcom is already required to prepare a report on the carrying out of its functions each financial year, under paragraph 12 of the Schedule to the Office for Communications Act 2002. This includes reporting on its work, performance and finances, as well as any other matters requested by the Secretary of State. The last such report was published last July. This existing requirement combines some of the issues featured in the noble Lord’s and the noble Baroness’s amendments. More widely, it allows Ofcom to give a complete overview of its work. I hope that will reassure them.

On the noble Lord’s particular questions, the approach we have taken in the Bill is in line with that of other legislation. We have set out clearly defined principles that we want Ofcom to regulate against, and we have provided it with the tools it needs to do the job. On granular decision-making, it is right that Ofcom make these decisions. It has considerable sectoral expertise and is in the best place to judge the impact of its regulatory decisions. Off the back of the Bill, it will run 11 consultations, which will give a wide range of interested parties in the industry and beyond an opportunity to feed into its operational decision-making. Ultimately, Ofcom is in turn accountable to Parliament in the ways I set out earlier in Committee.

It is crucial that we protect Ofcom’s role as an independent regulator and give it the discretion to do its job. That is the approach we have taken in the Bill. We want to avoid a situation where a huge amount of parliamentary time is taken up making granular decisions about what is on our televisions. Rather, Parliament should set the direction and Ofcom can regulate accordingly, and broadcasters can continue to operate independently in their editorial decisions.

[Lord Foster of Bath (LD)]

I am grateful for the Minister giving way, but I wonder whether he can answer the fundamental question that I asked him. Quite simply, if he is saying that the driving documents, if you like, are the royal charter and the licences, what is the mechanism by which Parliament has an opportunity to discuss and amend them, if it so chooses? I also point out that he may have an opportunity, since the noble Lord, Lord Grade, is now in his place, to reiterate the huge praise that has been heaped on the noble Lord’s head in his absence.

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[Lord Foster of Bath (LD)]

I am most grateful to the Minister for the very helpful response that he has given. I beg leave to withdraw my amendment.

Amendment 88 withdrawn.

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[Lord Foster of Bath (LD)]

My Lords, on these Benches, we wholeheartedly support Amendment 89 and the case made for it by the noble Baroness, Lady Stowell.

[Lord Bassam of Brighton (Lab)]

My Lords, I sense that this debate is coming rapidly to a close. The noble Baroness, Lady Stowell, has doggedly pursued this issue with others and I wholeheartedly congratulate her on her determination to ensure that we maintain a free and fair press without foreign intervention.

This amendment takes the noble Baroness’s critique of foreign state ownership a stage further by seeking to review the impact of the measure on UK broadcasters. Obviously, government should always keep under careful consideration and review the impact of particular policies. This will, I suspect, be a feature of debate from time to time. We need to consider the impact of foreign ownership on all news media outlets, not just the press, and we need to understand, and protect our press from, undue interference. We have made it clear on our Benches, throughout the debates on the future of the Telegraph Group, that we are fully committed to upholding press freedom and the independence of all news outlets.

We cannot tolerate external interference in the politics of our country; that does not really need underlining much more on a day like today. At a time when the media are often being attacked by the exercise of deepfakes, this vital principle takes on a new importance. We need to ensure in the future, as much as we can, that our democracy is protected. A free and independent press and broadcasting sector is key to that, so I hope the Minister will give a considered response to that point.

I particularly pick up on the point of the noble Baroness, Lady Stowell, about regulations relating to the amendments we recently passed to another Bill. I do not think they are otiose, despite the calling of an election. They will be important in the future, and she is right to insist that work should be carried on to ensure that they are properly and correctly drafted so that they can be reviewed when a new Government are in place. Her point on the Ofcom review of ownership rules, which is to commence in November, is an important insight and one that we clearly all need to concentrate on and give some thought to while we go through the electoral process.

I am going to go slightly off-piste here before we conclude this debate and thank the Minister, the noble Lord, Lord Parkinson, for the time that he and I have spent together across the Dispatch Box and for the courtesies he has extended to me, my noble friend Lady Thornton and other colleagues during the passage of this legislation. I particularly enjoyed the contributions from the noble Baroness, Lady Stowell, and, although she is not in her place, I thank the noble Baroness, Lady Bonham-Carter, for her continued and assiduous interest in this. I also thank the noble Lord, Lord Foster, who is a powerful and important voice in your Lordships’ Chamber.

I suspect we will not have much more debate on the Media Bill, wash-up being the vicious process that it is, but we on these Benches have been happy to support it in the main. I am sorry we will not have the opportunity to give it a bit more detailed scrutiny on Report, but that is the nature of how we do our business. I thank the Minister for his attention to this, and I look forward to listening to his response.