Broadcasting (Amendment) (EU Exit) Regulations 2019

Lord Griffiths of Burry Port Excerpts

Wednesday 6th February 2019 Lords Chamber

[Lord Griffiths of Burry Port (Lab)]

My Lords, this is an interesting debate and many points that we will be wrestling with well beyond 29 March have been raised in the course of it. I want to begin my remarks, as I will every time I stand on such an occasion, by bemoaning the fact that so many man and woman hours, by able civil servants, have been necessary to plough their way through successive Acts of Parliament to disentangle and extricate details that can be strung together in order to release them from a perceived enslavement to European legislation—a freeing of them, a “Fidelio” moment, that brings them into the light of day—so that they can then stand on their own feet as part of a self-defined and perfectly functioning legal system in this country. It is very regrettable that all this has had to happen. I used to do textual analysis as a favourite aspect of my studies. I promise that this would defy any of even the most complicated pieces and puzzles that I have wrestled with in the past. We are where we are, but I feel the need to say that. Again and again, hundreds of times, we are going to have to express regrets that all this energy, vitality and brilliance of mind has been tied up into producing what are effectively a strung together set of proposals that get us over the line at the end of March in the event of there being no deal.

Having said that, the second rather general thing that I want to say, which echoes things that have been said by others, relates to consultation. Again and again, that is where my eye goes first when I get these Explanatory Memoranda. Once again, I wonder that only Ofcom has been consulted, when many other bodies have been mentioned in the course of this debate as being stakeholders in all that is about to happen. Surely there might have been consultation in those cases. We are working under pressure, and impact assessments and consultations are both reduced almost to nothing, and we can only regret that. In a previous debate which I was sitting in your Lordships’ House for, I overheard the discussion between my noble friend Lord Adonis and the noble Lord, Lord Warner, who is not now in his place, about what we might have expected in such pieces of secondary legislation, according to the rule book, as it were—12 weeks of consultation, a published account of the results of that, and all part of the debate going forward. Even though I stand here wanting to narrow the considerations that I address to the particular point of keeping something legitimate on the law book to allow us to take that step, I feel it necessary to express regret about the levels of consultation and openness. I do not know what my noble friend Lord Adonis thinks about those who are trustees and on the inside circle who were consulted, but I know there are people in the industry, as far as this one is concerned, who have things to say and whose voices would have been very legitimate in bringing us to this point.

When the matter was debated in the other place, there was a lot of reference to the fact that meaningful presences were beginning to appear in countries on the other side of the Channel. The Minister was asked if she could put a figure on them. She could not and did not. At the same time, we have heard that Sony has already done this, and others look as if they are going to. It is a legitimate thing to ask, regarding the impact of this proposal, to what extent we feel this is going to continue and to be a worrisome factor.

This is a way of coping. The memorandum is my main interpretive document, because while I can read complicated things, these wretched SIs are beyond complicated. No doubt the noble Lord, Lord Pannick, takes them in his stride, with his paracetamol in the morning or something. I thought it was an honest attempt, at the level of getting us from here to there, to look at all the angles that need to be looked at—in a perfunctory manner, yes. I am not an expert in picking up the details of difference between the AVMSD and the ECTT, for example, but it seems to me that the countries that are not in the ECTT, in so far as they are given six months to look at how they are going to harmonise themselves with the proposals being made, have been offered something, anyway, and Ireland seems to have been treated very properly indeed, with the reference to the Good Friday agreement thrown in.

I did not find, granted the narrow concern in front of us here, that there was much I wanted to quarrel with, but in terms of the issues we are bound to go on wrestling with when this particular dust has died down, we can only note what the noble Lord, Lord Foster, and others have said and recognise that this will not be the last word.

[Baroness Crawley (Lab)]

My Lords, I have a very short question for the Minister. What would his advice be to UK broadcasters when it comes to working with those countries that are not party to the ECTT? I know that many broadcasters are concerned that these new regulations will not cover the areas that at the moment they just take for granted as far as European-wide broadcasting is concerned. What about those countries, other than Ireland, that are not party to the ECTT?

--- Later in debate ---

[Lord Ashton of Hyde]

We are not—as noble Lords might have realised—reading about this only in the papers, although we do read them. We have had extensive consultation—not perhaps the public consultation where all pros and cons are publicised, as the noble Lord, Lord Adonis, would prefer. But noble Lords should be under no illusions: we have had extensive consultation on this situation and this specific SI, not only with Ofcom, which has been instrumental in drafting the SI to address the problems of regulation of television services—how they should be construed and defined—but with the sector. We have organised round tables at ministerial and official level. We have included AETN, AMC Networks, BBC Studios, Channel 4, Discovery Channel, Disney, ITV, NBCUniversal, Nordic Entertainment Group, Sky, Sony, WarnerMedia, Viacom and Viasat. We have met these and further broadcasters on a bilateral basis, because a lot of these discussions are commercially sensitive, depending on what they are going to do with their establishments to meet the problems of Brexit. I reiterate that this is an issue about Brexit, not about this SI, which is about the regulation—making sure that a regulatory system exists if we have no deal.

[Lord Griffiths of Burry Port]

I say simply that to have mentioned in the memorandum that this impressive list of people had been consulted in various ways might have allowed us to finish in record time, as the hope for that had been expressed.

[Lord Ashton of Hyde]

I take that point, although I would not bet on it myself. On that point, I emphasise that the ministerial round tables took place not just once but regularly between August 2016 and March 2017, led by the Secretary of State, and in March and July in 2018, led by the Minister. But I take the point about explaining that. The difference between this and the SI we talked about the other day is the commercial sensitivity of the decisions that have to be made in moving head offices, the effect on the workforce, and so on.

I will address the general issue of whether we are being complacent about relying on the ECTT. We acknowledge that it might be possible that some services will require two licences—one for the purposes of the AVMSD, and one for Ofcom—because this is the case for services which are available in both ECTT and non-ECTT countries. In the way that these services are received—by satellite—it is difficult to exclude some countries from the distribution. There are about 500 Europe-facing services out of the 1,200 that Ofcom currently licenses. To date, we are aware of about 130 licences moving. It is fair to say that broadcasters are concerned about the risk of dual regulation, and are reluctant to rely on the ECTT—it is considered an untested convention, as EU law has been in place for so long. Nevertheless, I am sure noble Lords would agree that we should not ignore conventions and international agreements that we have signed up to, nor should the other countries which have signed them.