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(Earl Ferrers' speech continued from overleaf)

    Due impartiality has always been the test which has been set by broadcasting legislation.  It is, therefore, false to suggest that our amendments create some new and unworkable test.  Since 1954 due impartiality has applied to matters of political or industrial controversy.  All the opinions which have been quoted today about the difficulties of defining major matters could apply equally to the definition of the word

"matters".  However, this has not been a problem until now.  For example, the IBA has found it possible to broadcast interviews given by the Prime Minister and the Leader of the Opposition on different subjects, despite the need for all matters to be treated impartially.  I do not understand why it should be found any more difficult to broadcast such interviews in the future when the requirement will relate to major matters.
    In his trenchant speech the noble Lord, Lord Boston, mentioned many different legal opinions which he had received.  He said that he had sent them on to my department and I am indebted to him for doing so.  He pointed out that there were many different opinions and quoted them with some force.  I must say, with deference to the noble Lord and to his profession, that it is a fact that if you ask 12 lawyers for their views you will end up with 13 different opinions.  Therefore, it is not surprising that there are a number of views.
    I see that the noble Lord is shaking his head.  However, during the course of his speech I wondered whether he had forgotten those occasions in this House when we have been debating a matter of legal content and when we have had contributions from the Law Lords.  They sometimes set about each other like fighting cocks; there is no unanimity of view among those noble and learned gentlemen.  Therefore, when the noble Lord says that there are various views stating that what is proposed is unworkable, I must point out to him that there are other views which say that it is workable.  The IBA and the Government have received such legal advice and I think, therefore, that the score is 30:15 to us.
    We do not accept that the amendment will necessarily involve the courts in deciding what is a major matter.  In such circumstances it will be for the ITC to indicate what constitutes such matters.  In the event of litigation, the question will be whether the ITC has taken a reasonable view of what is a major matter.  That is very different from the court imposing its own view about what is a major matter.  It has been suggested that litigation will be more likely in the future.  I believe that what is proposed will make litigation less likely.  Without the amendments there could well be doubt as to the degree of discretion which the ITC could have in drawing up its code. 
    I turn now to deal with the agitation expressed by my noble friend Lord Peyton.  He said that he could not see what this amendment would add to the Bill.  I shall give him some examples.  Our amendments make it clear that the rules can make different provisions for different circumstances. 
    The ITC can determine what constitutes a series.  Due impartiality can require different approaches according to circumstances, and the ITC can indicate the timescale within which due impartiality should be achieved.  Without the amendments there could be serious doubt that the ITC could reflect those points and it would have no statutory backing to the provisions in the code.  In that respect the amendments help rather than hinder the ITC and will make litigation less likely.  The amendment gives the ITC

statutory backing in drawing up its code and makes clear what it can cover and how it can exercise its discretion where otherwise there might be doubt.  It also makes clear to the broadcasters and the public that there are certain matters that the code must cover and therefore guarantees that the broadcasters will be informed what is expected of them.  Members of the public will be reassured as to the subjects that the code must cover.
    The noble Lord, Lord Annan, in a delightful way, paraphrased the effect of the code.  It will say, "There is a problem".  To the broadcasters it will say, "Think about the code".  Broadcasters should take heed.  That was a good encapsulation.  A code already exists.  There is provision for a code in the Bill.  All we are doing is laying down some of the subjects which must be covered in the code.  I can only say to your Lordships, including those like the noble Lord, Lord Goodman, who said that the provision would be an infringement of the freedom of speech, that how the subjects are covered, what wording is used, the strength of leniency of the coverage and the severity of the enforcement are matters wholly and exclusively the prerogative and the responsibility of the ITC.  The measure is not a draconian one.  It is a clarifying one.  I hope that your Lordships will approve of it.

5.12 p.m.
    On Question, Whether the said amendment (No. 2) shall be agreed to?

  Their Lordships divided: Contents, 155; Not-Contents, 116.

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