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22 October 1990
House of Lords
Third debate on "due impartiality"
(as outlined in Clause 6 of the Broadcasting Bill)
Taken from Hansard volume 522, beginning at column 1142
3.01 p.m.
Read a third time.
Clause 3 [Licences under Part 1]:
Earl Ferrers moved Amendment No. 1:
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Page 3, line 46, leave out ("throughout the remainder of")
and insert ("which would have effect during").
The noble Earl said: My Lord, this is a minor drafting amendment. Where a licence is transferred, the commission must give consent and can do so only if it is satisfied that the licensee would be in a position to comply with all the conditions included in the licence which would have effect during the period for which it is to be enforced. I beg to move.
On Question, amendment agreed to.
Clause 6 [General requirements as to licensed services]:
Earl Ferrers moved Amendment No. 2:
Page 7, line 3, leave out from beginning to second ("in") in
line 6 and insert (''as to the rules to be observed").
The noble Earl said: My Lords, I beg to move Amendment No. 2 and speak to Amendments Nos. 3, 4, 5, 28, 34 and 35.
Your Lordships will recall that on Report I introduced amendments which became known as the impartiality amendments. Some of your Lordships found difficulty with them, as did the shadow Independent Television Commission. We had discussions with the commission before the Report stage and I indicated that if noble Lords were minded to approve the amendments which were tabled in my name at Report, I would introduce amendments to those amendments at Third Reading. They would result in the new insertion into the Bill being one with which both the Government and the Independent Television Commission were content. I told your Lordships what those alterations would be.
Your Lordships understandably felt that this would be an untidy way of proceeding, so I withdrew the amendments with the undertaking that I would bring forward the revised amendments afresh at Third Reading. These are the amendments. They are essentially the same as those which I introduced on Report, but amended as I indicated that they would be.
I said that there would be three changes of substance. Your Lordships may therefore be surprised to find that the main Amendment No. 4 looks to have been more substantially altered. The reason is that the other changes were required in order to make the amendment grammatically correct. They make no alteration in substance at all. Perhaps I may remind your Lordships, therefore, of what we seek to do.
There is and always has been an obligation written in the statute for broadcasters to be impartial. It is written in this Bill. There is already a code of practice issued by the Independent Broadcasting Authority saying how that obligation for impartiality should be carried out. The requirement for a code of practice is now written into this Bill. At Committee stage, we thought it appropriate that, as we were putting an obligation on the Independent Television Commission to draw up a code of practice for impartiality, we should indicate the sorts of subjects to be covered. So we have produced these amendments.
This is what the amendments seek to do. Paragraph (a) of new subsection (4A) relates to due impartiality
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being achieved for each major matter of political or industrial controversy, or of current public policy. The wording of the amendment is not designed to imply that there are some minor matters of political or industrial controversy or current public policy where it would be acceptable for programmes to be completely biased. The purpose of the wording, which is different from the wording on Report, is to make it clear that we do not expect impartiality to be achieved over every nuance of a matter of political or industrial controversy. As I said on Report, we would expect that treatment of the Gulf issue, for example, should be handled in an impartial way. But that does not mean that every statement or sentiment expressed about the Gulf should receive some kind of equal and opposite rejoinder.
It will, of course, be for the Independent Television Commission to determine what might be regarded as a major matter of political and industrial controversy or current public policy and we would expect it to set out some guidelines in its code. This is nothing new. The Independent Broadcasting Authority has to make these kinds of judgements now in fulfilling the obligation to achieve due impartiality. It must already give effect to the spirit of the provision.
I know that many lawyers have been working overtime giving opinions on the drafting. I am aware that there are a number of legal opinions which suggest that these amendments will make litigation more likely. I find it hard to understand why that should be thought to be the case. The Independent Television Commission is required to draw up a code having regard to these matters. Provided that it does so reasonably, I cannot see that any judge will say that it has acted wrongly. Similarly, provided the Independent Television Commission enforces its code reasonably, I cannot believe that there is anything to fear from judicial review.
Paragraph (b) of subsection ( 4A) requires the code to take account of the need to define what is meant by a series of programmes. Paragraph (a) of subsection (4B) requires the code to indicate what due impartiality requires in particular circumstances. Paragraph (b) of subsection (4B) sets out that the code should indicate the manner in which impartiality is to be achieved for different programme types. Paragraph (c) of subsection (4B) requires the code to indicate the timescale within which programmes must be included if impartiality is to be achieved over a series. Paragraph (d) of subsection (4B) requires the code to indicate the means by which the audience is informed that impartiality will be achieved over a series rather than in a single programme. Subsection (4B) indicates that due impartiality does not require absolute neutrality on every issue or detachment from fundamental democratic principles.
Amendment No. 87 also makes provision for the rules to cater for different cases or circumstances. We also propose to require the Independent Television Commission to draw up and publish a code for licensable programme services. These services are subject to the lighter undue prominence test rather than the due impartiality requirement.
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