Lord Foster of Bath:

Moved by Lord Foster of Bath

88: After Clause 51, insert the following new Clause—“OFCOM Chair discharging duties under this Act(1) Before appointing an individual as Chair of OFCOM, the Secretary of State must ensure that their preferred candidate appears before relevant select committees of both Houses of Parliament to set out how they would discharge their duties under this Act.(2) If a relevant select committee of either House publishes a report concluding that the candidate should not be appointed, and the Secretary of State decides to proceed with the appointment, they must make a statement to either House about why they are proceeding with the appointment, including but not limited to—(a) an assessment of that candidate’s ability to act independently in discharging their duties under this Act, and(b) a response to any findings or recommendations made in a report by a relevant select committee.”Member's explanatory statementThis amendment seeks to increase parliamentary scrutiny of proposed OFCOM chairs in discharging their duties under this Act.

My Lords, we have spent a great deal of time during discussions on this Bill quite rightly talking about Ofcom—its duties and its vital role in supporting our creative industries and in protecting the public. Its primary purpose remains as laid down in the Communications Act 2003: to protect the interests of citizens and consumers. However, in recent years, it has become something of the proverbial Christmas tree on which we have chosen to hang a procession of new regulatory burdens and responsibilities, from regulating the BBC to overseeing online safety.

It has grown like Topsy, and it continues to do so as it adds 350 new members of staff just to deal with the online safety responsibilities. That is before it has to consider more staff to deal with the additional duties proposed in this Bill. It will soon, therefore, have over 1,500 staff. I have said it before, and I repeat, that at some stage there will be a case for splitting Ofcom into two, with one body looking after infrastructure and the other responsible for content. However, I accept that that is for another day.

Meanwhile, Ofcom lies at the heart not just of our creative and telecoms industries but of our democracy. It is difficult to overstate either the power or responsibilities that it wields. Yet, as I have pointed out on a number of occasions during the passage of this Bill, we have very few levers of accountability or scrutiny as a Parliament. When, for example, some noble Lords argued—I supported them—in relation to the remit of PSBs, that we should be retaining the list of genres and the Reithian principles, the Minister argued that the streamlined approach in this Bill would be overseen by Ofcom. I pointed out that such an approach would give Parliament no say in what Ofcom considers appropriate genres to be covered. I was then told that that was not a problem because the royal charter for the BBC and the licences for the other PSBs would cover this. I argued in turn that, if that was happening, would we have an opportunity to have a say on the royal charter and the licences? The Minister pointed out that the royal charter is laid before the House and there is a debate, but I hope he will acknowledge that there is no opportunity for that royal charter to be amended, regardless of what is contained in the debate.

The Minister did not answer my question as to whether or not the licences would be laid before Parliament and debated, and whether we would have an opportunity to amend them. I have checked, and my understanding is that there is no opportunity for Parliament to have a debate, and certainly no opportunity for Parliament to amend them. Therefore, Parliament has no say. I would be grateful if the Minister—he can intervene now if he wishes to—could confirm whether I am right or wrong. Perhaps he will do it at his wash-up, in due course.

I also raised the issue of Ofcom choosing to make its own interpretation of the regulations around due impartiality and of what constitutes news. I believe there is a greater need for parliamentary oversight over Ofcom. It seems sensible to start by looking at the appointment of its chairman, hence my Amendment 88. Currently, the Government appoint the chairman, with no safeguards against a highly partisan political appointment which may have little to do with promoting public interest. After that, the chair is effectively free to follow his or her own prejudices or political fixations.

This may sound like I have a particular beef about the current chairman, but nothing could be further from the truth. Whatever his political allegiances, we could not ask for anybody better. He rolls into one being a former BBC chairman, ITV chairman and Channel 4 chief executive. That is pretty good experience, and we are very pleased that we have him, even if—allegedly—he has never used Facebook, Twitter, Instagram or TikTok.

However, that is simply not the point. Given the power wielded by this hugely important institution that lies at the heart of our culture and our democracy, it is imperative that we ensure that the appointment of all chairs is carried out with proper scrutiny by Parliament, which, after all, determines what the regulator should do. Ideally, I would have tabled an amendment arguing for an independent body to recommend a candidate for final approval by Parliament, but, sadly, such an amendment was deemed out of scope. My Amendment 88 is the next best—in scope—option. It would require the Government’s preferred candidate to appear before relevant Select Committees of both Houses to explain how he or she believes Ofcom should discharge its duties under this Act. If the committees conclude that the person should not be appointed, the Government must, if they still plan to go ahead with the appointment, at least explain why they are doing so, in a debateable Statement.

Of course, it is equally imperative that Parliament have the opportunity to scrutinise Ofcom’s performance in the exercise of its duties under the Communications Act, so Amendment 90 ensures that Ofcom is subject to review within a year of the Bill being passed, and that Parliament will have an opportunity to debate the outcome of that review. It is in fact not that dissimilar from Amendment 91, tabled by the noble Baroness, Lady Thornton.

As Ofcom grows inexorably in size and importance, it is incumbent on us to ensure that it is properly held to account. At present, I do not believe it is. These two amendments would make a difference in that regard. I beg to move.

My Lords, I rise to speak to my Amendment 91. The noble Lord, Lord Foster, outlined in his usual articulate manner the issues we are looking at in this group. We created Ofcom, and it is a hugely important regulator with a growing portfolio of responsibilities. This is a good time to look at whether it is being properly and adequately resourced, and supported in a way consistent with the enormous responsibilities it carries. In a way, that is what my amendment is about. There is a broader issue here than just Ofcom being accountable under this legislation. It is important that we have a good look at how Ofcom is supported to do its job properly. That might include looking at how the chair is appointed, or it may be a matter of resourcing.

We need to ask whether Ofcom is properly accountable to Parliament, in a way consistent with the important job it does. If we expect Ofcom to deliver robust regulation and protect our PSBs, viewers and listeners, we need to be sure that it is doing that job adequately and moving quickly when it needs to in order to deal with complaints and breaches of the regulatory framework for which it is responsible. So it is a question of confidence and accountability, and I want us to be confident that Ofcom is doing its job properly and has the right accountability to Parliament, given the growth in its work. I want to hear from the Minister that the Government are aware that this is not just business as usual for Ofcom now, because it is not.

I thank the noble Lord and the noble Baroness. I will address Amendment 88 first. The noble Lord, Lord Foster of Bath, brought up an important point about Ofcom’s impartiality and the process for appointing its chairman. I join him in commending the noble Lord, Lord Grade of Yarmouth, the current chairman, on his ongoing work to steer Ofcom through a time of great regulatory change—I acknowledge the change that the noble Baroness, Lady Thornton, alluded to in her closing remarks. As the noble Lord, Lord Foster, said, he draws on his extensive expertise in the sector.

Given the trust we place in Ofcom to regulate our media sector, its independence and impartiality are of paramount importance. To that end, the existing processes ensure that the appointment of the Ofcom chairman is designed to give effect to just those objectives. The chairman is appointed by the Secretary of State following a fair and open competition. This appointment is regulated by the office for the Commissioner for Public Appointments. The chairman of Ofcom is designated as a significant appointment by the commissioner. This means that the advisory assessment panel, which advises the Secretary of State, must have a senior independent panel member to ensure its impartiality. This member must be independent of the appointing department and must not be politically active.

The parliamentary scrutiny of this process was enhanced in the update to the Governance Code on Public Appointments in February this year. The updated guidance specifies that, should the responsible Minister not follow the advice of the advisory assessment panel, she or he is required to write to the chairman of the Select Committee when she or he announces the chosen candidate, and must appear before the Select Committee if requested to do so.

Furthermore, the chosen candidate is required to appear before the Select Committee before he or she is appointed. These new processes, which I hope the noble Lord agrees will help to address many of the concerns he raised, will apply to all future appointments to the role. We believe that this process ensures robust scrutiny and promotes Ofcom’s independence. I appreciate the noble Lord’s intention in tabling this amendment and agree with him about the importance of the topic it covers, but, given that this process was updated as recently as February, I consider his amendment unnecessary and hope that he will be happy to withdraw it.

I thank the noble Lord and the noble Baroness for Amendments 90 and 91 relating to Ofcom reporting. Ofcom has been regulating television and radio broadcasters since 2003, and we have confidence in its ability to continue to do so in the face of the changes brought about by the Bill. I appreciate what lies behind their amendments, which would ensure that the scope of the regulator’s functions, powers and duties—as well as its resources and capacity to deliver on its programme of work—is regularly reviewed. I am glad to say that there are already existing legislative requirements for Ofcom to report annually on how it carries out its functions. This information is published and laid before both Houses of Parliament, allowing the public and Parliament alike an opportunity for scrutiny.

In particular, Ofcom is already required to prepare a report on the carrying out of its functions each financial year, under paragraph 12 of the Schedule to the Office for Communications Act 2002. This includes reporting on its work, performance and finances, as well as any other matters requested by the Secretary of State. The last such report was published last July. This existing requirement combines some of the issues featured in the noble Lord’s and the noble Baroness’s amendments. More widely, it allows Ofcom to give a complete overview of its work. I hope that will reassure them.

On the noble Lord’s particular questions, the approach we have taken in the Bill is in line with that of other legislation. We have set out clearly defined principles that we want Ofcom to regulate against, and we have provided it with the tools it needs to do the job. On granular decision-making, it is right that Ofcom make these decisions. It has considerable sectoral expertise and is in the best place to judge the impact of its regulatory decisions. Off the back of the Bill, it will run 11 consultations, which will give a wide range of interested parties in the industry and beyond an opportunity to feed into its operational decision-making. Ultimately, Ofcom is in turn accountable to Parliament in the ways I set out earlier in Committee.

It is crucial that we protect Ofcom’s role as an independent regulator and give it the discretion to do its job. That is the approach we have taken in the Bill. We want to avoid a situation where a huge amount of parliamentary time is taken up making granular decisions about what is on our televisions. Rather, Parliament should set the direction and Ofcom can regulate accordingly, and broadcasters can continue to operate independently in their editorial decisions.

I am grateful for the Minister giving way, but I wonder whether he can answer the fundamental question that I asked him. Quite simply, if he is saying that the driving documents, if you like, are the royal charter and the licences, what is the mechanism by which Parliament has an opportunity to discuss and amend them, if it so chooses? I also point out that he may have an opportunity, since the noble Lord, Lord Grade, is now in his place, to reiterate the huge praise that has been heaped on the noble Lord’s head in his absence.

Certainly—to make the noble Lord, Lord Grade, blush. He will, I am sure, read the tiny portion of Hansard covering the part of the debate that he missed.

I will frame it.

He can frame it, indeed. I commend him for his presence in these debates and his occasional contributions, which have been very helpful. It has been extremely valuable to have him here for the passage of this Bill, just as it was for the passage of the Online Safety Act, which also gives a huge amount of new work to the regulator.

I had tried to address the questions from the noble Lord, Lord Foster, by saying that what we have done is to allow Parliament to set the direction, but not to be so granular through parliamentary time. I will happily write to him to provide some more reassurance, if I am able.

I am most grateful to the Minister for the very helpful response that he has given. I beg leave to withdraw my amendment.

Amendment 88 withdrawn.