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(Baroness Birk's speech continued from overleaf)
The Government say they fully accept the principle that Parliament should not attempt to define due impartiality in statute and that Parliament should be the arbiter of,
"what was or what was not impartiality"-[Official Report, 11.10.90; col. 421.]
The noble Earl, Lord Ferrers, used those words on Report. However, we are presented today with government amendments which attempt to set out in detail on the face of the Bill what impartiality should mean in practice and what actions should be taken by broadcasters to ensure that due impartiality is maintained. I repeat that the noble Earl put his case over persuasively. Nevertheless the Government's measure specifies areas of attention that the code should cover. That should not appear on the face of the Bill.
That attempt to particularise the areas which the ITC code should follow leads inevitably to
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parliamentary definition and interpretation of the due impartiality requirements. That is where many of us in this House - and I hope that it will turn out to be the majority - part company with the Government. We believe that it should remain a duty of the ITC without the unnecessary constraints imposed by the amendment. The ITC should be bound by statute to draw up a code, as it is in the Bill as it stands. However, any attempt to specify in detail the provisions of the code undermines its regulatory authority and represents a departure from the principle that the Government should remain at a distance.
It is unfortunate for the Government and the Bill that they have not decided to leave well alone. In seeking to define the areas to be laid down in the code, the noble Earl, Lord Ferrers, said at Report on 11th October (at col. 423 of Hansard) that impartiality is "essentially a matter of objectivity".
I argue that by its very nature the formulation and interpretation of impartiality is and has to be a highly subjective matter which is best left to the discretion of the ITC and the day-to-day experience of broadcasters. If broadcasters are given free rein, these matters will balance each other out. As a magistrate I have always believed that there is a great advantage in having magistrates' courts composed of three magistrates. It enables us to cancel out each other's prejudices. We all have prejudices, and it should also be acknowledged that we are all subjective; but if we are able to balance our subjective views against those of other people, we can achieve, as nearly as possible, an objective opinion.
This is not a matter on which politicians or governments should pontificate. We believe that the existing provisions of the Bill provide the necessary safeguards to ensure that broadcasters comply with the due impartiality requirement. If the amendment is rejected today that is the end of the matter and we are back with what is in the Bill at present.
Since declaring its serious doubts about the workability of the government amendment in July and in early October, the shadow ITC now appears to believe that it can live with the new provisions. I believe that its enthusiasm for the amendment is not quite as expressed by the Minister. The expression I heard was, "We think we can live with it", which is not the same as being extremely happy about it.
In its briefing paper dated 5th October the IBA said:
"We prefer to see the matters covered by the Government's amendments left to the ITC's judgment in
drawing up the code".
The IBA still would prefer to maintain only the statutory requirement for due impartiality, backed up by a new statutory code which is worked out by the ITC itself.
However, we must be, realistic. Most Members of your Lordships' House are realists. The IBA's judgment must to some extent be coloured by the unequal relationship which must exist between a government-appointed regulator and the government of the day. That is the position for most quangos. Even if it is done in the most discreet way, there is a
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certain amount of arm twisting or the people feel that they are under some obligation to bend backwards in order to accept what they feel the Government want.
The broadcasters, who will have to put the details of the code into practice, are still extremely concerned about both the principle and the practical effect of the revised amendments. Richard Dunn, chairman of the ITV Association, believes that the best solution would be to leave the Bill unamended. John Birt, the Deputy Director-General of the BBC, said that the amendment should still be abandoned. It should be remembered that if the amendment goes through for ITV, the BBC's turn will come in the future. Michael Grade, the Chief Executive of Channel 4, has said that the impartiality amendments were wrong in principle and should be dropped.
We should feel much happier about the amendments if it were not just the shadow ITC which was saying that the code might be workable. All of the broadcasters who were consulted when the first amendment reached this House and who saw Mr. Mellor, the Minister for broadcasting, told him how they felt. As I understand it, they have not been consulted since the second draft was drawn up. There has not been much time for any of us to consider it since it was not published until Thursday or Friday.
The broadcasters feel extremely strongly about the matter. Although the Minister said that he could not understand why that should be so, they are very clear about the matter. They have all taken legal advice at a very high level. With the exception of the advice given to the IBA, the advice has been broadly the same, although it was independently sought and given. John Finnis, Professor of Law at Oxford, acting for the ITV Association says:
"There can be no doubt that the phrase 'take account of' has an unsatisfactory elusiveness. It could
be interpreted by a court as requiring that the ITC's rules conform to some judicially conceived
standard about what matters are and are not major, and/or about what/is or is not a due standard of
impartiality".
He goes on to say that the phrase 'major matters' in Clause 4A(a) is
"elusive in meaning and pregnant with ambiguity ...Any such uncertainty creates the live possibility
of legal challenge to the ITC's eventual code".
The opinion concludes:
"It is one thing to 'trust the ITC' to draw up a code on impartiality in the relevant matters when the
whole approach and content of the code is left to their good judgment. It is quite another to be asked
to trust the ITC to draw up a workable and satisfactory code when they are required to do so under
the threat of litigation based on inherently ambiguous concepts inappropriately given full and direct
statutory force".
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