Deregulation Bill

Lord Stevenson of Balmacara Excerpts

Thursday 5th February 2015 Lords Chamber

[Baroness Warnock (CB)]

My Lords, there could hardly be a more learned, well informed set of people than those of your Lordships who have spoken up till now. My connection with commercial television ended in 1980. The amendment before us sets right what was put wrong then. It was put wrong largely out of prejudice against the commercial sector and a failure to believe in the public service broadcasting demands that were even then made on commercial television, which were often regarded with suspicion. It seems to me well beyond the time when this amendment should be accepted. The thought that we have to wait still longer for a review, the contents of which we do not know, is quite absurd. I urge the Government to accept the amendment here and now.

[Lord Stevenson of Balmacara (Lab)]

My Lords, once again, we have had a very good discussion about this topic. Although much stress was placed on the unanimity of view last time, I seem to recall myself being somewhat isolated and not in favour of what was proposed. I plead on this that I was simply arguing for good governance and not for a radical change in approach, because I share many of the views that have been expressed today. I simply think that the complexity of the matter is undervalued. The technological changes and all the other things that people are asserting without much evidence need to be tested by proper evidence-gathering and a proper report.

Like other noble Lords, I think that the way forward is to do something with Section 73 of the Copyright, Designs and Patents Act. There is some obvious logic in having the primary legislation already banked in order that it can be implemented when the time comes, but the right process would be to carry out the review to be absolutely certain that the complexities which are present are properly analysed, that the regulatory structure—in so far as it can be—is made future-proof, and that we come forward with a proposal in a coherent and proper way. I hope that the Minister will be able to shed light on the complicated manoeuvrings that are going on behind the scenes but have yet to see the light of day.

[Lord Gardiner of Kimble (Con)]

My Lords, I am most grateful to my noble friend for his amendment. We certainly missed him in Committee, when we had an excellent debate—and we have had a similarly excellent debate today.

The amendment would create the power for the Secretary of State to repeal in whole or in part Section 73 of the Copyright, Designs and Patents Act 1988. Section 73 permits the retransmission, on cable, of the main PSB channels by providing that the copyright in the broadcast is not infringed by such retransmission. The resulting effect of Section 73 is that public service broadcasters are not able to charge cable operators for the retransmission of their services. This is clearly an area where many competing interests, particularly those of broadcasters, platforms and viewers, must in some way be balanced.

The Government’s approach is not to abolish Section 73 without exploring these interactions within the wider framework of regulation that impacts the balance of payments between platforms and PSBs. As has already been mentioned today, the Culture Secretary announced last October that the Government were looking at whether the time was right to remove Section 73 of the 1988 Act, which could allow PSBs to invest more in high-quality content.

Our view is that, rather than doing so in isolation, we need to look at this in the wider context, examining the framework of regulation that governs the balance of payments between broadcasters and platforms. I have heard it said in my short time in your Lordships’ House that when the two Front Benches agree, we are into very difficult territory—but this is an area of complexity that we need to look at properly.

We are very sympathetic—I emphasise, very sympathetic—with the aim of this amendment, which seeks to give Ministers the power to repeal Section 73 following consultations, but our view is that it would not give us all the powers necessary to repeal it fully. As I think everyone accepts, Section 73 does not exist in isolation. It underpins complex commercial arrangements between the cable operator Virgin and the public service broadcasters. We need to consider carefully what the impact of the repeal would be on these existing arrangements and consider what consequential and/or transitional provision would be needed when repealing Section 73. Parliamentary counsel advised that the amendment as drafted does not give Ministers the powers to make such a provision.

The Government intend to consult shortly. I fully understand the impatience, frustration and perhaps more than that, which many of your Lordships have expressed. I want to take this opportunity to run through the detail that I have available to me. I do not have all the answers, but I would like to explain the following. Part of this issue has been complicated by the Court of Appeal case, and we still await the judgment. But my understanding is that the consultation will definitely be before the election; in fact, we are proposing for it to be launched in a week or so. I understand that it will take eight to 12 weeks to complete, and then it will have to be assessed. I will make sure that all noble Lords who have spoken in this debate receive a copy of the consultation document so that it is available immediately.

It will be a broad consultation on the whole infrastructure, obviously including Section 73. However, it is important that Parliament has evidence of what may be the unforeseen consequences: for example, with arrangements for addressing areas that are difficult to broadcast to, such as houses in very steep valleys. As with all these things, it is the unintended consequences for the viewer that we need to watch out for.

I understand my noble friend’s frustration and am sure that in his winding up remarks he will stress that he does not think that the Government have acted as expeditiously as he would like. However, it is important that we make sure we get this right. As I said, we could not accept this amendment in any event because it is defective so far as parliamentary counsel is concerned. Our proposal is that we will consult—as I said—and then bring forward legislation to repeal Section 73 once the process and all the permutations and unforeseen circumstances that there potentially may be have been properly addressed. It is for those reasons and not for reasons of delay or lack of concern that I ask my noble friend to withdraw his amendment.

--- Later in debate ---

[Lord Deben (Con)]

My Lords, there have been moments during the debates on this Deregulation Bill when I have been forced to ask the Government why on earth they are bothering to get rid of some bits and pieces when they will not have any effect at all. That is why I find myself particularly encouraged by the amendment here.

We can draw the sort of people who do not like busking very simply: they are general kill-joys. I have always thought that life is divided between those who are life enhancers and those who are life destroyers. One of the problems is that many life destroyers are worthy, honourable and decent members of society, but they are deeply boring and therefore entirely to be opposed. My problem with this amendment is that it does not go far enough. It is a disgrace that there are so many bits from Acts which can be used against buskers by local authorities and by the Metropolitan Police.

I draw my noble friend’s attention to the phrase “busking-related offences”. I have spent some time, since we last discussed this, trying to imagine an offence which was busking related and not an offence in any other way. I am quite an imaginative person and I do not have too pure a mind but, even putting those two things together, I have so far been unable to discover any offence which is both busking related and not covered by something else in the statute. To go back to “So who said it?”, I may now say something which many will object to, for it was said by the police —well, they would, would they not? The Metropolitan Police always have a reason for leaving any way which enables them to do what they want.

I spent hours and hours discussing the simple business of applying to the space outside your Lordships’ House the same rules as were applied by the House of Commons to the space outside it. I cannot tell your Lordships how much of that time was made up of people explaining why it was utterly impossible, and would probably cause the collapse of western civilisation, that the extent from one to the other should be done. I know that it has been a mere six or nine months since we passed that provision, but I have not noticed any real effect of the kind of major disaster since that small change. I feel that we are in the same position here. I do not know why we should have this. Indeed, because we have been over this before, in the previous debates I thought that there was no reasonable explanation as to why these two provisions should not be removed. I say to my noble friend—and he is indeed a friend—that, to dissuade us from this amendment, the following proof has to be shown.

First, it has to be shown that there is something in the presence of these provisions in the law which is unique. It should be different and cover something which nothing else covers. If we cannot prove that first thing, then of its nature the Deregulation Bill says that we should get rid of it. That is why we have a Deregulation Bill. It is what the Government have been wittering on about: how we have got to have deregulation because there are too many regulations. However, if this is a regulation that shall be kept, it must be seen to cover something which nothing else covers.

Secondly, it must be shown to cover it appropriately: in other words, not to give powers to the police, or to the miserable local authorities such as Camden, which will be misused either in an excess of energy, as certainly took place when people were bundled into a police van in Leicester Square, or by a determination to respond to any complaint, however pathetic, of the kind which explains Camden’s treatment of buskers. It has to be necessary and appropriate.

Lastly, it seems to me—and I hope that my noble friend will be able to explain this, too—that it has to be relevant to today. Many things which were appropriate to yesterday we would today find unacceptable. London is the greatest city in the world. It is the only “world city” and we are immensely lucky to live in this great city. We should be thrilled every day about London, but it is like that because of its variety and difference—its mix of different races and communities, and the like. It is the great triumph of immigration. When people talk about immigration, I tell them to come to London and see what immigration can do to a great city. It is a thrill to be here. In those circumstances, though, this great centre in the European Union—its capital, in many ways—needs as much busking as possible. There are some miserable places where more buskers would cheer us enormously. Anything that inhibits busking unnecessarily seems to be not of our day, and not of today’s London. The idea that buskers should find it more difficult in London than they do in Liverpool seems to be manifestly barmy.

I hope that my noble friend can rise to the occasion and, if he cannot answer those three things, say that he will take this away and get rid of the nonsense.

[Lord Stevenson of Balmacara (Lab)]

It is really unfortunate to have drawn the straw following that contribution. The noble Lord has spoilt my day, but that was a very nice way of doing it; I thank him very much.

I was going to start with a little riff on why the true author of this amendment was being withheld from us, as the noble Lord, Lord Clement-Jones, mentioned that he had not been able to be in Committee. It is an irony beyond irony that the first amendment in his name was the rather beautifully named “parasitic packaging” amendment, for which he produced a parasitic package—the noble Lord, Lord Stoneham, who not only replicated every word and phrase that the noble Lord, Lord Clement-Jones, would have used but did so in such a brilliant and concise way that he immediately won the hearts of all of us in Committee. We welcomed back the noble Lord, Lord Stoneham, for round two, on the amendment to remove Section 73, which was not quite so successful but was pretty good, and then he went on to busking. Busking was a tour de force; it was almost as good as what we have just heard from the noble Lord, Lord Deben, because he listed every one of the blooming regulations—I think there were 11 of them—that we are told are inhibiting busking in our greatest world city. I have to say to him, though, that he had obviously missed three because the noble Lord, Lord Clement-Jones, has now done even more research and produced another few that he has added to the list.

I absolutely buy what the noble Lord, Lord Deben is selling today, that this is a ridiculous farrago of regulation that needs to be sorted out. There has to be some clarity about what the authorities want out of the regulations that they wish to put forward. There has to be some sense of equity between those who wish to perform and those who wish to listen, and the rights and responsibilities of neighbourhoods in terms of pollution and other things. There has to be the clarity of a single piece of legislation that everyone can refer to.

When the Minister responded in Committee, he used a ridiculous phrase, a chilling remark that I still sometimes wake up and think about in the middle of the night:

“the Metropolitan Police have a desire to retain necessary powers”.—[Official Report, 11/11/14; col. GC 48.]

Come on. It is so easy to say that, and so difficult to get up the energy to say, “Okay, let’s know what these things are”. What are these necessary powers, and what exactly is this desire that the police seem to bear in their corporate bosom to do something about those who wish to entertain and perform in a way that I would have thought to most people would be a very appropriate thing to do in such a major city?

It is up to the Minister to come back on this amendment. I hope that he can step up to the mark and give us a bravura performance, on whatever instrument he chooses, but he should pick up on one point that was raised in discussion in Committee by my noble friend Lord Rooker, who said that there is an obvious and clear remedy for this. The Law Commission exists to tidy up exactly this sort of arrangement, and the Minister said that he would go off and consult on whether it was the appropriate body. First, of course, he said that it was not the appropriate body, but then he was told in no uncertain terms—because that is what my noble friend does—that the commission does indeed look at these things; it is quite happy to update, refresh and reform legislation or regulation that needs it. Surely that is the way forward, and I look forward to hearing from the Minister—in music.

[Lord Gardiner of Kimble (Con)]

My Lords, I thank my noble friend for his amendment because it has precipitated a most enjoyable debate. As has been said, these matters were considered in Committee. I assure my noble friend that, following that debate, we have looked again at these issues even more thoroughly. However, I repeat my own sentiments from Committee: the Government are clear that live music and street entertainment play an important role in community life, and can generate a positive atmosphere that can be enjoyed by all. Indeed, only this morning a guitarist in Westminster station was doing precisely that. If I might digress and respond to my noble friend Lord Deben, my definition in life is “drains and radiators” as to how people perform in their lives.

The Government therefore do not start from the position that busking requires regulation and control. However, in our view it is important that backstops are in place on those rare occasions when an anti-social busker does not respond to requests from the police, or when other legislation, such as that relating to noise or anti-social behaviour, is found to be insufficient. It is in those circumstances that we believe the two pieces of legislation mentioned still have a role to play.

As I explained in Committee, the Metropolitan Police Service has advised that it still uses the powers under the 1839 Act for operational and tactical reasons. I am sure that I am not going to satisfy all my noble friend Lord Deben’s demands. I was most grateful to the noble Lord, Lord Stevenson, for mentioning the intervention from the noble Lord, Lord Rooker; that helpful intervention precipitated officials having detailed discussions with the Law Commission regarding Section 54 of the 1839 Act. The Law Commission has advised that it would be able to recommend repeal of a specific provision only if it appeared, following research and consultation, not to have any practical utility. In this case, the Law Commission has advised that it would be highly unlikely to recommend repeal in the face of sustained opposition from the police.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, the amendments in this group are minor and technical. Schedule 19 makes significant amendment to the Poisons Act 1972. In particular, it creates a number of regulation-making powers. This will enable the Government to make regulations in relation to both poisons and explosives precursors that will supplement the licensing regime established by the various amendments to the Act as well as further provision in relation to poisons, given that the Poisons Rules 1982 will fall once the amendments take effect. I am sure all noble Lords understand that the sort of poisons and precursors available have been changing because of various chemical and other developments. We are all aware of the particular problem that we have with precursors nowadays with the ability to make various sorts of improvised explosive devices.

New Section 7(1)(a) is generally worded, enabling regulations to be made about,

“the importation, supply, acquisition, possession or use of substances by or to any person or class of person”.

New Sections 7(1)(b) to 7(1)(f) list other specific matters about which regulations can be made, for example the storage of substances and the periods for which records are to be kept. The amendment makes it clear that the list of specific matters are not to be taken as limiting the provision that can be made under the more generally worded new Section 7(1)(a). Amendment 32 provides that any power to make regulations under the Act includes the power to make consequential amendments. This is a standard provision.

Amendment 33 relates to Clause 78 and is needed to enable an NHS trust to be dissolved—a different subject—when an acquisition has taken place under new Section 56AA. Paragraph 31 of Schedule 4 to the 2006 Act provides that an NHS trust may be dissolved or wound up only if the Secretary of State or Monitor makes an order to dissolve it within the context of a merger or a separation. As it stands, paragraph 31 of Schedule 4 does not take into account the new Section 56AA inserted by Clause 78, which clarifies the position of trusts and assets and liabilities at the point of acquisition upon the grant of an acquisition by Monitor. This technical amendment to paragraph 31 of Schedule 4, inserting a reference to the new Section 56AA, will enable the provision to reflect the fact that an NHS trust can be dissolved within the context of an acquisition in accordance with new Section 56AA. As stated earlier, this is a minor technical amendment that ensures that paragraph 31 of Schedule 4 is consistent with the changes proposed in Clause 78. I beg to move.

[Lord Stevenson of Balmacara]

My Lords, I thank the Minister for that very lucid explanation of these two slightly different changes in the current versions of the Bill. As he says, they are minor, technical amendments and they largely tidy up and make right something that was missed as a result of changes.

My point is about the poisons and explosives section. I went back to the discussions that we had in Committee, in particular the question of consultation. My noble friend Lady Smith represented us on that occasion and asked the Minister whether it would be possible to have sight of the full list of consultees who had been involved in this process because she was interested in that, and wondered whether, subject to normal confidentiality procedures, he could publish the full consultation responses from the two consultations on poisons and explosives. I think the Minister said that he would do that, but we have not received it yet. I wonder if he could remedy that.

[Lord Wallace of Saltaire]

My Lords, I apologise profusely for the failure and I assure the noble Lord that we will remedy it as soon as possible, possibly even imminently.

--- Later in debate ---

[Baroness Andrews (Lab)]

My Lords, as a Member of the Joint Committee I support the amendments of the noble Lord, Lord Sharkey, and commend him for the indefatigable way he has brought this issue back on Report. I can confirm that the Joint Committee was exercised about this failure, this deliberate resistance, by the Government to consider the Law Commission for all the reasons the noble Lord set out—transparency, reduction of risk and uncertainty and the opportunity to consider the repeals which were being recommended.

Let me take the House back to the first stages of this Bill, when there was something in the spirit of the original clause which was dropped from the eventual Bill, whereby the Minister was going to take upon himself the power to decide which legislation was or was not redundant and to recommend that a whole swathe of legislation should actually disappear from the statute book. Such was the reaction to that that the clause was wisely dropped.

As to the attitude towards the Law Commission, I do not quite understand the difficulty. As the noble Lord, Lord Sharkey, said, the Law Commission was absolutely clear that it would be able to deal with and expedite the passage of judgment on the repeals and it would give everyone the security of knowing that whatever was moved for repeal would have that additional scrutiny. That is not to cast aspersions on the ability of departments to make a judgment about what is or is not redundant legislation, but as we have got the Law Commission and that is part of its job, we should take advantage of that expertise and the scope to do that. On that basis, I certainly support the amendment.

[Lord Stevenson of Balmacara]

My Lords, I wish to make three points and I shall end with a question to the Minister.

First, we should record at some point in our proceedings the considerable debt we owe to the Joint Committee for its work in the pre-legislative scrutiny of the Bill, for the work it has done since then in trying to feed into our debates and discussions the intelligence it had gained and the knowledge that it had as a result of that process, as exemplified by my noble friend Lady Andrews’s comments. It once again proves the need for Parliament to think harder about how it gets its legislation together. There is no doubt that, in comparison with a couple of other Bills that I have been involved in recently, the Deregulation Bill is in much better shape. Even though it is a much longer, more complex, Christmas tree-type Bill that has come through, we have found it easier to deal with. If we ever discussed how we do these things, we would conclude that it has been done better.