Let us hope that this sets a precedent for relations between regulators and those whom they seek to regulate.

The Bill currently provides full rights of appeal in three circumstances: in relation to decisions that are taken under part 2, decisions that are taken under the concurrent competition powers, and decisions that are taken when Ofcom is exercising its powers under the Broadcasting Act 1990

''for a competition purpose.''

I have already mentioned that Ofcom could try to take decisions and impose licence conditions and directions that amount to economic regulation in connection with a number of its primary duties that it has not designated as being

''for a competition purpose'',

for which the only recourse under the provisions of the Bill as it stands is to go to judicial review. Thus, broadcasters will be denied rights that are available to, for example, telecommunications operators. It is bizarre and inconsistent that in a Bill that is based on convergence, Ofcom's ability to act in relation to electronic communications networks and services is subject to due safeguards and accountability, but that ability is not safeguarded in relation to broadcasting.

The amendments and new clauses tabled by my hon. Friend the Member for South Cambridgeshire go a long way towards rectifying those deficiencies. They would remove the unnecessary and redundant fair

trading condition in licences, tying conditions relating to competition matters to clause 3(1)(a), which states Ofcom's duty to promote consumer interests in markets that are relevant to the provision of licensed services or of connected services, where that is appropriate, by promoting competition. That would ensure that if Ofcom relied on that duty in exercising its powers under the 1990 Act, there would be a full right of appeal. Other procedural safeguards that are currently lacking would also be put in place: for example, consultation prior to the introduction of codes, licence terms or general conditions, and consultation prior to subsequent changes in its codes and licences.

The third amendment in the group, No. 650, goes further than my hon. Friend's amendments. It would ensure that a power exercised by Ofcom pursuant to clause 3(1)(a) and 3(1)(c) would be subject to proper procedural safeguards, including full rights of appeal. It therefore closes a hole in the Bill through which Ofcom might seek to rely on its clause 3(1)(c) duty and take decisions and impose licence conditions and directions. Such a course of action would amount to economic regulation, for which proper safeguards might not be provided and for which the only recourse would be judicial review. There is evidence from the current regulatory regime that the risk of a regulator using such a duty is not theoretical. The ITC has acted under both of its primary duties under the Broadcasting Act 1990—to ensure that there is fair and effective competition and to ensure that a wide range of services are available—to undertake matters of significant economic regulation.

I recognise that the Government do not intend to provide for a full independent appeals process on the merits of any decision, licence condition or direction made by Ofcom. I fully accept that the Competition Appeals Tribunal is not well placed to make judgments relating to, for example, taste and decency issues. However, our amendments are not intended to be open ended and they do not allow for such appeals in respect of Ofcom's duties in respect of standards in all television and radio services. The judicial review process will continue to provide the appropriate mechanisms and standards for appeals on matters relating to offensive and harmful material in television and radio services, unfair treatment in programmes, and infringements of privacy.

If there are other areas in which the Government think that full independent rights of appeal or proper procedural safeguards should apply, they should identify them, allow a proper debate to take place, and table the appropriate amendments to narrow the scope accordingly. That is standard better regulation practice, as supported by the Government, which requires transparency, accountability, proportionality, consistency and the targeting of cases in which action is needed. The Government are not meeting the standards of better regulation in respect of the power under discussion, because it is not targeted on cases in which action is needed.

This is not the first time that we have raised the issue of safeguards and appeals. In the debate on clause 187, I mentioned that its effect would be to

introduce full rights of appeal for decisions, directions, approvals and consents made under part 2. We agreed that it would put in place strong and necessary safeguards and I contrasted that with the provisions in part 3. In his response, the Minister for E-Commerce and Competitiveness said that

''Regulation of content is excluded from the scope of the directives and there is no EC requirement for an appeal on the merits involved. Matters of content regulation are strongly connected to public policy and we believe that it is wrong for courts to have the task of reviewing the merits of relevant public policy as part of an appeal process. The judicial review process provides the appropriate mechanisms and standards for an appeal. When powers in the Broadcasting Acts 1990 and 1996 are used to promote competition rather than regulate content, it is appropriate and consistent with the drafting for there to be a formal appeal to the tribunal. That is the distinction that the Bill makes.''—[Official Report, Standing Committee E, 9 January 2003; c. 403–04.]

However, it should be clear from what the Minister said and my comments on what he said that the issue is not as simple as that.

The fact that proper procedural safeguards and rights of appeal are not contained in EC directives is not sufficient grounds for their exclusion from the Bill. It is a matter of the Government's professed principles of good regulation that they are expanded in part 3, in which an element of economic regulation is involved. Pure matters of content, such as those covered by Ofcom's duty in clause 3(1)(d), are unlikely to give rise to questions of economic regulation that merit a full right of appeal to the Competition Appeals Tribunal. However, we have shown that the Bill leaves Ofcom with the ability to undertake matters of significant economic regulation under part 3 that may be unrelated, or only indirectly related, to content regulation. That might be done on grounds other than its concurrent competition powers or its sectoral powers for a competition purpose. In such cases, there is no right to a full appeal process, even though similar decisions made under part 2—for example, in relation to pricing and packaging of telecommunications services—provide such a right.

I hope that, in responding to this lengthy submission, the Minister will use the opportunity to clarify the Government's thinking about those aspects of the Bill and will consider tabling additional or alternative amendments to address the concerns that I have outlined, even if he cannot bring himself to support our amendments. Will he at least give us some assurance on how Ofcom will use both the powers that it inherits under competition legislation, and those that it can exercise under the Broadcasting Acts?