My Lords, I rise to speak to four amendments in my name in this group. Although there are four amendments grouped together, they cover three separate subjects, and I hope the Committee will forgive me if I go carefully through each of those three subjects.
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The first is in relation principally to Amendment 44. Noble Lords will note that Amendment 44 puts a reference to
“in the case of Tier 1 services, those set out in section 368HF”
into the existing Ofcom standards code, to be found in Section 319 of the Communications Act 2003—I refer again to my involvement in the 2003 legislation with the noble Lord, Lord Puttnam, and others. Noble Lords will recall that Section 368HF in the Bill is the tier 1 standards code. It means that, in so far as Section 319 leads the standards code debate, the tier 1 standards code is linked in with Section 319 of the Communications Act.
In my view, we should do this because there is a relationship between Section 319 of the Communications Act and Section 58 of the Enterprise Act. Section 58 of the Enterprise Act includes provisions relating to a media public interest test. Where there is a potential change of ownership or control in relation to a media enterprise—which for these purposes is defined as a newspaper, or a broadcaster holding a licence under the Broadcasting Acts—the media public interest test can address, among other issues, whether the potential
ownership of that media enterprise can demonstrate a genuine commitment to the standards as set out in Section 319 of the Communications Act 2003.
Incorporating this reference to the tier 1 standards code will have the effect of including the question of whether a tier 1 broadcaster—it must be somebody who has a broadcasting licence, so it does not affect every kind of on-demand programme provider—has a genuine commitment to the standards set out in the tier 1 standards code. My contention is very simple: if we are in the business of assessing the potential ownership of a broadcaster in this country and are looking at whether they adhere to the broadcasting code, we should also look at whether they adhere to a commitment to the tier 1 standards code, otherwise, in my view, we have a gap; that is, we have a standards code for tier 1 providers, but where they are a media enterprise that is covered by the Enterprise Act, we would not have any right to look at whether they were committed to those standards under the tier 1 standards code. I hope that Amendment 44 might commend itself to Ministers as closing what might otherwise be a rather embarrassing loophole at some point in the future.
Amendments 43 and 59 relate to a different question. Amendment 59 says that included in the tier 1 standards code would be
“that advertising that contravenes the prohibition on political advertising set out in Section 321(2) is not included in Tier 1 services”.
First, the tier 1 standards code and the broadcasting code are not the same: there are significant differences. Amendment 70 from the noble Lord, Lord Foster, in effect, says that they should be the same. For my part, all I sought to do was to isolate a ban on political advertising—one of the two things that are in the broadcasting code and ought to be in the tier 1 standards code; I shall come on to the other. Funnily enough, in my research, I noted that James Waterson, the media editor of the Guardian, had noted the exact same thing back on 14 April and that there was the risk of a loophole. In his article—which I assume is correct—he noted that many on-demand programme services, such as Sky’s Now TV or Channel 4, or Netflix and Amazon Prime for that matter, have said that they will ban political advertising. But that is not every tier 1 service. The article particularly noted that ITVX, as a tier 1 service provided by a broadcaster, would be able to take political advertising and had not yet excluded that possibility.
I do not think that we need to have an argument or even a debate about whether political advertising on our broadcast programmes is a good or a bad thing. I happen to think that it is undesirable that we change from our present position. Nobody seems to be proposing that we should allow political advertising on public service broadcasting, but what about public service broadcasters who provide on-demand programme services on which there is advertising? Should they be allowed to take political advertising? By extension, it seems to be a pretty straightforward argument that they should not, but at the moment, there is nothing in the Bill that would prevent that happening.
The Government might say, as they do generally in relation to online advertising, that it is not in the Bill because there is a consultation, commenced in 2021, on the online advertising programme. I looked at my former right honourable friend John Whittingdale’s response given back in July 2023. He said that there was an online advertising programme consultation to which the Government would respond, and that there was a need for legislative reform “when parliamentary time allows”. I wonder when this parliamentary time might arise, since we are dealing with a Media Bill here and now. In this instance, I feel quite strongly that if we are going to close the potential loophole on political advertising, we should do it now. That is the second aspect. Amendment 43 is just consequential to Amendment 59 and enables them to be looped back together in the structure of the Bill.
I confess that the final amendment is merely a probing amendment, after having noted that there was a difference between the broadcast standards code and the tier 1 standards code where the former includes a ban on subliminal programming or advertising. The tier 1 standards code does not include the same language, and I want to know from my noble friend why that is the case. Even though it might be that the broadcasting code provision has never been used, as it prohibits harmful broadcasting and therefore it is all okay, I am slightly worried that anybody looking at the legislation might say that it is included in the broadcast code but not in the tier 1 standards code and therefore there must be some statutory distinction made between the two codes. I do not think that should be the case. If subliminal material, programming and advertising are prohibited on broadcasting, they should be prohibited on tier 1 services as well. Amendment 58 merely asks that question of my noble friend.