Ofcom: Impartiality

Viscount Younger of Leckie Excerpts

Monday 29th October 2018 Lords Chamber

[Viscount Younger of Leckie (Con)]

My Lords, I would like to provide clarification on the question asked by the noble Lord, Lord Adonis, on this matter. To begin with, it is important to point out that we all have our own views, which we are entitled to have, yet in many of the roles we hold we are expected to separate ourselves from our private views and ensure that our decisions are objective and evidence based.

This debate was first requested in April when my noble friend Lady Noakes was deputy chair of Ofcom. As has been mentioned, she has since stepped down, and I thank her for her sterling work during her time as deputy chair. The new deputy chair, Maggie Carver, has recently been appointed by the Secretary of State for Digital, Culture, Media and Sport, and I congratulate her on her new role. She brings extensive knowledge and experience of the broadcast and telecommunications industries and will be a valuable addition to the Ofcom board.

Turning to the chair, the noble Lord, Lord Burns, should be much lauded for his continuing work on reforming the size of this House. Among other roles, the noble Lord, Lord Burns, previously served as chairman of Channel 4 for six years, and I commend him for his hard work since his appointment as Ofcom chair in December 2017. He has expertly chaired the board and the nominations committee. During his time, Ofcom has delivered the auction of airwaves for 4G and 5G and, more recently, the first annual report on the BBC.

I now turn to the role of Ofcom, the independent regulator and competition authority for UK communications industries. It is crucial that Ofcom is able to regulate broadcast content in an impartial manner and that any conflicts are declared by its members and dealt with according to statutory requirements and official guidance. There must be confidence that the private views of board members do not impact on its decisions. As the noble Lord, Lord Tunnicliffe, indicated, it is for this reason that there are rigorous and transparent procedures when making appointments to Ofcom boards and committees.

As set out in the Communications Act 2003, the Secretary of State is responsible for appointing non-executive members of the Ofcom board. All candidates for public appointments go through a fair and open process, as set out in the governance code for public appointments. The current chair and deputy chair, and the former deputy chair, completed declaration of interests as part of their applications. They discussed their conflicts of interest, perceived or otherwise, at interview and have to declare any additional conflicts that occur during their time in the roles. The board members’ code of conduct also sets out a requirement for impartial, objective decision-making. In addition, the preferred candidate for the chairmanship is also subject to pre-appointment scrutiny from the DCMS Select Committee.

During the pre-appointment hearing of the noble Lord, Lord Burns, on 13 December 2017, to which the noble Lord, Lord Adonis, referred, he made clear that he understood that the process by which Ofcom interacts with the Government requires caution in order that it makes the right decisions on proposals and effectively implements legislation. He also clarified any possible conflicts between existing roles and his chairmanship of Ofcom. Following his hearing and the outlining of all his possible conflicts of interest, some of which were raised by the noble Lord, Lord Adonis, this evening, the committee was completely satisfied that the noble Lord, Lord Burns, was a suitable candidate and fully endorsed his appointment.

All board members are required to declare and maintain a register of disclosable interests, which is published on the Ofcom website, and there are restrictions on direct investments in the sectors they regulate. Furthermore, a board member cannot take part in any discussions, investigations or decision-making unless there is a unanimous vote that the interest can be disregarded.

Most importantly, day-to-day decisions on editorial standards and breaches of the Ofcom Broadcasting Code are taken not by board members but by the Ofcom executive under advice of the Ofcom content board. The chair and deputy chair are not members of the Ofcom content board and are therefore removed from matters relating to programme standards and content. Let us imagine, entirely hypothetically, that the chair or deputy chair of Ofcom were trying to influence content regulation or editorial decisions. They would not have the platform or remit to do so, and their involvement would be rejected entirely by the content board, which makes specific reference to the Ofcom Broadcasting Code when making its decisions.

But there is more. Ofcom is a retrospective regulator, so it does not engage in pre-broadcast editorial decisions. It ensures transparency by providing details on the outcomes of all potential breaches of the broadcasting code in the Ofcom Broadcast and On Demand Bulletin. Ofcom also publishes its responses to freedom of information requests relating to complaints, including those on BBC political bias and Brexit coverage. If there was any interference by the board, it would be clearly visible here. Let me be clear: there is no evidence of this whatever.

I now turn to the BBC. In the current climate, the growing importance of impartiality in preserving the BBC’s role as a trusted news provider, particularly on issues of significant national interest, cannot be underestimated. Let us acknowledge how far the BBC has now moved from when the BBC’s governance and regulation of content were not separated. Yet the noble Lord, Lord Adonis, raises concerns about the regulatory treatment of the BBC. In 2017, Ofcom became the BBC’s first independent external regulator. As required under the BBC’s royal charter, Ofcom has developed an operating framework for the BBC, covering regulation of the BBC’s performance, compliance with content standards and impact on competition.

To clarify, Ofcom does not determine the BBC’s editorial policy. The BBC unitary board governs and runs the BBC and is ultimately responsible for editorial and management decisions. Ofcom has formal procedures in place for handling potential breaches of content standards by the BBC and stipulating how investigations are carried out, how sanctions are determined and how final decisions are reached. As already highlighted, these procedures are transparent. The BBC is accountable to Ofcom, which is itself accountable to Parliament.

Finally, let me touch on the House of Lords. As I am sure the noble Lord is aware the House of Lords Code of Conduct clearly sets out how Members of this House should balance wider activities with their parliamentary responsibilities. I refer to specific Lords guidance—known as the Addison rules—which sets out clearly that, where questions affecting members are brought to Parliament, it is the Government alone who are responsible. There is absolutely no evidence that engagement in the House of Lords by board members impacts on the impartiality of Ofcom’s decision-making.

The noble Lord, Lord Adonis, asked a question about Ofcom’s code of conduct and Peers who are board members speaking in the House. Ofcom’s code of conduct for board members clearly states that taking a party whip, engaging in debates and voting in areas outside the scope of Ofcom’s activities are acceptable.

I shall go further, because the noble Lord, Lord Adonis, asked about the noble Lord, Lord Hall, who chooses, as he rightly said, not to participate in the House of Lords, whereas the noble Lord, Lord Burns, does. There are distinct differences between the two roles. They have very different roles in which they must abide by two different sets of guidelines and have very different levels of editorial control. Ofcom is an independent and, as I said, retrospective regulator of the BBC. The BBC director-general is editor-in-chief of the BBC and determines BBC editorial policy, so it is understandable that that difference has meant that the noble Lord, Lord Hall, felt that he should stand aside as opposed to the noble Lord, Lord Burns.

In conclusion—and by the way I welcome the helpful comments made by my noble friend Lord Dobbs—the noble Lord, Lord Adonis, should be in no doubt that there is no conflict of interest between the duties of the chair and deputy chair of Ofcom as impartial regulators of the BBC and their parliamentary duties.