BBC Charter

Lord Lester of Herne Hill Excerpts

Wednesday 12th October 2016 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, I am grateful to the Minister and the Secretary of State for offering to meet me before this debate. I was prevented from doing so by illness that rendered me speechless. I am also grateful to the Minister for his explanations, adding to the library of documents we now have. I shall try not to repeat what we have already heard, much of which I completely agree with. I hope that the Government will be open minded and reflect on what Members of this House and the other place say in these debates. Surely that should be the value of consulting Parliament at this stage.

The central problem with the Government’s proposals—as raised across the House by, for example: the noble Lords, Lord Fowler and Lord Inglewood, as senior Conservatives and former chairs of the Communications Committee; the noble Lords, Lord Stevenson of Balmacara and Lord Puttnam, from the Labour Opposition; the noble Lords, Lord Birt, and Lord Pannick, the noble Viscount, Lord Colville, and the noble Baroness, Lady Deech, from the Cross Benches; and my noble friends Lady Bonham-Carter and Lord Foster of Bath—is that there are no statutory criteria or requirements that must be met in the charter or the agreement between the Secretary of State and the BBC.

That it is why I introduced a short BBC Royal Charter Bill, which should have its Second Reading next month where I hope it will have wide support. In resisting legislation, Ministers rely on the fact that for some 90 years the BBC has been governed by charter without any statutory underpinning. That is true, but now the Government’s proposals change the BBC’s governance radically by creating a powerful unitary executive board and by giving Ofcom extensive powers to regulate the BBC. What has also changed is that Parliament set a perhaps unfortunate precedent in giving effect to the Leveson report by creating statutory underpinning for a charter to create a regulator of print media. That showed that it is possible to have both a charter and statutory underpinning.

Ministers resist any attempt by Parliament to regulate their prerogative powers but it is in the public interest for Parliament to lay down fundamental principles to protect the independence and viability of the BBC, free from political interference. As a first step, building on the powerful speech by the noble Lord, Lord Patten of Barnes, I would welcome an assurance that the Government will ensure that there is proper public consultation and parliamentary scrutiny before any BBC funding settlement is agreed by adding that commitment to Clause 43 of the charter.

The drafts do not put the Government under any duty to ensure that the BBC is and remains independent. They contain no obligation to ensure that the BBC is properly funded to enable it to perform its public functions. There is no commitment to avoid further top-slicing of the licence fee. There is no suggestion that the Government will reconsider the adverse impact that the unseemly transfer of the cost of free licence fees for the elderly over 75 will have on the BBC’s funding and programming—the net result being a 20% to 25% cut in licence-fee funding.

Clause 67(4) of the draft agreement says:

“The Secretary of State may give the BBC a direction in writing that the BBC must not broadcast or otherwise distribute any matter, or class of matter, specified in the direction, whether at a time or times so specified or at any time”.

There used to be a similarly broad power of state censorship contained in an Act of Parliament. It was used to ban broadcasting by Irish terrorist organisations of any matter, including gardening programmes. The noble Lord, Lord Pannick, and I failed to persuade the Law Lords in 1991, in R (Brind and others) v Secretary of State for the Home Department, to test the compatibility of the use of that power with the free speech guarantee in Article 10 of the European convention. However, that was before the Human Rights Act 1998, which requires legislation to be read and given effect in a way compatible with the convention rights. The problem is that the power of ministerial censorship is not in legislation but in this draft agreement. What are the legally binding safeguards ensuring that the Clause 67(4) power is exercised only where necessary and proportionate to meet a pressing need, as required by Article 10 of the convention?

The Government propose to give Ofcom the power to regulate the BBC but there are no safeguards limiting Ofcom’s abi1ity to interfere with the BBC’s editorial independence. That is quite wrong and it is not a matter for Ofcom to decide; it is not for the regulator to decide the limits of its power. That matter should be in these documents and decided by Parliament. There are also no safeguards against the watering down of the BBC’s public service commitments, for example as regards children’s programming—a subject dear to my noble friend Lady Benjamin.

These proposals enable the BBC and Ministers to appoint the members of the new unitary executive board. However, the chair and other members should be appointed by an independent process free from cronyism and political bias or nepotism. That should be addressed before the charter is approved. Furthermore —other noble Lords made this point—the proposals enable Ministers to determine what “distinctive” means. That is an elusive, weasel word. The Minister did not explain its meaning and I share the concerns expressed. There is no protection of the BBC against much richer competitors challenging current and future BBC programming.

I am sorry to cast a bit of a cloud over some of this but I make these points. I hope that the Minister, his Secretary of State and their advisers will reflect on them and those made by colleagues, and will make changes to the drafts prior to placing the charter before the Privy Council. I suggest that it would be for the convenience of the House if he wrote to those taking part in the debate replying to these points, so that we see they have been considered and know what the Government will do about them.

--- Later in debate ---

[Lord Maxton]

My Lords, I started off by looking at whether I should make this speech at all. I read what I said last time, in the debate instituted by my noble friend Lady Bakewell, and thought maybe I should not as I said then most of what I want to say now. However, I will say several things, which I hope will be brief.

First, as a Scot I do not want to see the Scottish Parliament in control of a BBC Scotland. I do not want the Scottish Parliament to have regulation of the broadcasting or internet services in Scotland. Lastly, maybe most mundanely but also most importantly, I do not want a “Scottish Six”. In other words, I do not want to see an hour-long Scottish programme at six o’clock. One has only to listen to “Good Morning Scotland” on the radio to know that that is not something any Scot in his right mind would want. By the way, my wife always insists on turning on BBC Radio Scotland on the bedside radio, not because she is interested in listening to the news or even the weather forecast in Scotland but because it puts her back to sleep. I said, “Let’s change it to Radio 4”, and she said, “But Radio 4—the ‘Today’ programme—keeps me awake”. So I do not want any of that.

I welcome the Minister to his new position and I welcome this debate, but at the end of the day we are not going to vote on the charter, we cannot amend it and we cannot do anything at all but have this debate today. That is it as far as I am aware. Several noble Lords—the noble Lord, Lord Birt, in particular—said that it is time the BBC was put on a statutory basis and that we had the introduction of a Bill to establish the BBC in that way. Then the House of Commons and the Houses of Lords, in which there are many experts as we have seen tonight, would be able to look at that, examine it in detail and amend it and then we could go into that process. It may be too late for that now, but I hope that in the very near future the Government will consider it and put it in process.

I have three reasons for this. First, I must say to my noble friend Lord Cashman—

[Lord Lester of Herne Hill]

I just want to clear up a misunderstanding. The proposal is not for detailed legislative intervention in the BBC but simply for some standards and principles that the charter and agreement must meet. There is no suggestion of interference by statute in the BBC. It is setting down standards and criteria.

[Lord Maxton]

Well, the BBC is going to continue its life for the next 11 years, apparently, on the basis of the charter that we are debating tonight. There is no statute that we can seek to amend at this point in time.

I have to say to my noble friend Lord Cashman that there are people who are accountable to the licence fee payers. They are elected by the licence fee payers. They work along the Corridor from us. They are called Members of Parliament. They are elected by the licence fee payers and the BBC should be accountable to them. Therefore, that should be part and parcel of the work they undertake. Of course, that is not the only job they do; they do a lot of other work as well. I was one of them and I know they do a lot of other work. But the fact is that the BBC is a public body. It ought to be accountable to those who are elected to represent the people of this country.

Secondly, the noble Lord, Lord Sherbourne, is absolutely right. The noble Lord, Lord Birt, has to be congratulated on the work he did as director-general in moving the BBC into the new media, but 11 years is a long, long time in the modern world. If you look back 11 years to 2005, just after I came to this House, you will see how much the media have changed during that period. If you look forward 11 years, it will change even more and even faster. I can watch any programme I want from anywhere in the world on this screen I am holding, but also by putting it on to my television screen through a variety of devices, which will get cheaper and easier to use as time goes on. We have to take account of that. Having an 11-year charter is a nonsense when we could have the BBC established as a statutory body, accountable to the public and to those who are elected by the public, and then change it as we go along. At the moment it is almost immutable and 11 years is too long. We have to consider whether or not the changes that are taking place in our society are those that are going to be necessary and are going to happen anyway.

Lastly, person after person has used the term “broadcasting”. We are moving, if we have not moved already, into an age in which broadcasting is the wrong word. It is now narrowcasting. We listen to what we want to listen to, we watch what we want to watch, when we want to watch it, on what device we want to watch it on, and how we want to watch it. That is the future, and we have to take that into account when we look at the future of the BBC.

--- Later in debate ---

[Lord Lester of Herne Hill]

My Lords, the late Lord Campbell of Alloway once rebuked me for making a serious point after the dinner hour. I am very sorry to make an intervention at a quarter to 11 pm, but am I right in understanding what the Minister said—that any new funding settlement will not be the subject of public consultation or parliamentary approval, and that there will be no binding safeguards against undue interference with the BBC and its editorial independence in the charter or the agreement? Is that correct, or have I misunderstood?

[Lord Ashton of Hyde]

The noble Lord is correct in saying that I have given no undertakings about how the process will take place in five years’ time. I said that we had certainty for five years, which is a new thing. However, it is not for me to say what the Government will do in five years’ time, although I know that the noble Lord would like me to do so. Measures in the agreement set out that the BBC will provide evidence to the Secretary of State, but at the moment there are no guarantees that there will be a vote in Parliament on the funding settlement. There may well be a discussion about it but I cannot give a guarantee today that there will be a binding vote.

--- Later in debate ---

[Lord Ashton of Hyde]

As far as I understand it from the Bank of England Bill, the NAO is set up and has statutory powers to go in and do its job. The framework agreement and the charter specifically say that, notwithstanding the statutory powers of the NAO, it is not able to judge on editorial matters. At the last resort it can go in under its statutory powers. It is not allowed to opine on editorial matters, but the tricky thing is: what is an editorial matter? That is where we want the memorandum of understanding between the NAO and the BBC to be agreed. My attempted explanation was to cover just what happens if the memorandum of understanding is not agreed. That is where I said the DCMS and the Secretary of State would lend a hand to make sure it is.

[Lord Lester of Herne Hill]

The Minister has my great sympathy as I listen to him. The fundamental problem I have is I do not understand how this charter and agreement will be enforced. I gave the example in my speech of the King Charles I clause—Clause 67 of the agreement. It is a power of unlimited censorship over the BBC. It is in an agreement, not in a statute. Could the Minister write to me and explain how the limits to that of proportionality, necessity and all the rest of it are to be enforced?

[Lord Ashton of Hyde]

Absolutely. I may be able to come to that, but if I do not I will certainly write to the noble Lord. I take his point.

The noble Baroness, Lady Liddell, and the noble Lord, Lord Williams, talked about the World Service. I agree with all noble Lords who spoke about that, saying that it is one of the most highly regarded offerings of the BBC. We acknowledge that. I can personally testify to that, having just come back from Myanmar, where it played a huge role during the time the generals were in charge. That is why we have protected funding for the World Service from the licence fee for the next five years and we have increased its funding even further by £34 million in 2016-17 and by £85 million for each of the three years thereafter. I will write to the noble Lord, Lord Williams, about the World Service in Korea.

BBC Monitoring is a Foreign Office responsibility and is co-ordinated by the Cabinet Office. An agreement between them and the BBC is expected very shortly.

I take on board the point made by many noble Lords about the statutory underpinning of the BBC. We do not agree with the noble Lord, Lord Lester, and other people on that. I will write to noble Lords about it. I have promised to listen; I do not hold out great hope that it will happen in this charter, but I recognise that it is an issue which has been raised around the House.

On the contestable pot mentioned by the noble Baroness, Lady Benjamin, we will consult in the autumn on precisely how the fund will work—I look forward to her full contribution to the consultation—to ensure that the fund can support under-served genres as effectively as possible. We will have to see at the end of the pilot exactly what we do.

I agree with the noble Baroness that diversity is one of the most important issues, which is why we have made it a new duty for the BBC. I do not think we can be much clearer about how much of a focus it should be. She may have seen in the newspapers a couple of days ago that Sharon White of Ofcom went public in saying how important she thought diversity was and that Ofcom intends to look at it.

There are a number of points to which I will not be able to respond—from the right reverend Prelate about accountability to licence fee payers, and from the noble Lord, Lord Lester, on Clause 67(4) and on his further point. On appointments, we think that we have moved quite a long way and are in considerably better shape than we were when all members of the trust were appointed by the Government. On independence, I think that there are things which the noble Lord, Lord Inglewood, will be happier about and the Government agree with him about the importance of that.

I need to come to a close because I am over time.