Second Standing Committee on Delegated Legislation
Monday 7 June 2004
[Mr. Nigel Beard in the Chair]
Draft Broadcasting (Original Productions) Order 2004
4.30 pm
The Minister for the Arts (Estelle Morris): I beg to move,
That the Committee has considered the draft Broadcasting (Original Productions) Order 2004.
It is good to see you in the Chair, Mr. Beard, and I look forward to our deliberations this afternoon.
Original production quotas, together with quotas for independent production and regional production, are the requirements that help to maintain the quality and diversity of UK public service television. Original production is important for two reasons. First, the overall health of the programme supply market depends to a considerable extent on a vibrant, innovative domestic production industry. Secondly, UK viewers demand high-quality content.
Licensed public service broadcasters currently have licence conditions requiring that their channels or services include an agreed percentage of original productions. Those conditions are based on the duration of the programmes that are included on those channels or services in each calendar year. A similar licence condition to comply with original production quotas will continue to apply to broadcasters, but in future it will be based on a specific statutory requirement to meet original production quotas. That is based on the Communications Act 2003.
The original productions quota was introduced as a statutory obligation, along with other production quotas, to maintain the high quality of television programmes and to provide a balance to more relaxed foreign ownership legislation. The order will define original productions under the powers in the 2003 Act. Under section 278(6) and paragraph 8(6) of schedule 12, the Secretary of State may define the programmes that are to be original productions for the purposes of that section and paragraph. Furthermore, under section 278(7) and paragraph 8(7) of schedule 12, the Secretary of State may confer such directions on Ofcom as she sees fit. The order is made to exercise those powers and has been laid before Parliament in accordance with the relevant parts of the legislation.
Hon. Members may recall that a number of concerns were expressed during pre-legislative scrutiny of the Communications Bill. The Joint Committee that scrutinised the Bill recommended that the definition of original productions should be tightened and that Ofcom should be able to establish specified levels for original productions in peak viewing times. Amendments were made to enable the Secretary of State to determine by order under the
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affirmative procedure the precise definition of what should count as an original production. The definition of original productions by order will ensure that we have the flexibility to refine the definition in response to changing market conditions and audience expectation. Amendments were also made to ensure that appropriate time is allocated to the broadcasting of original productions in peak viewing times.
Section 278 of the 2003 Act requires Ofcom to include conditions in the licenses of all licensed public service channels—channels 3, 4 and 5—to ensure that appropriate airtime is allocated to the broadcasting of original productions each year. The time that is allocated to original productions can be divided as appropriate between peak viewing times and other times. Before such a provision for an original production quota is included, Ofcom must consult the licence holder on whom it is to be imposed.
Similarly, under paragraph 8 of schedule 12, the Welsh Authority has a duty to ensure that appropriate airtime is allocated to original productions in relation to its designated public services, including in peak viewing times. That requirement will apply to S4C and S4C Digital. The Welsh Authority will agree with Ofcom the proportion of time allocated to original productions and the manner of its split between peak viewing and other times. Ofcom can give a direction to the Welsh Authority if it is in default of such an agreement.
The order will not apply directly to the BBC, but under the amended agreement between the Secretary of State and the BBC—the original agreement of 25 January 1996 was amended on 4 December 2003—the corporation is required to comply with any similar arrangement agreed with Ofcom in relation to each public television service.
A programme will qualify as an original production if it meets the following criteria. First, a programme on a licensed public service channel must be commissioned with a view to its first UK television showing being on that channel or, if it is a channel 3 service, on that service or another channel 3 service. Similar arrangements are made for the Welsh Authority: the programme must be commissioned for showing on one of its designated services.
Secondly, the programme must be European. European programmes that are qualifying European works will count in full towards the quota. European works are defined in paragraphs 1 to 4 of article 6 of the television without frontiers directive. That text from the directive is set out in the schedule to the order.
We have introduced a means by which programmes that do not qualify fully as a European work might part-qualify towards the quota. Programmes that meet the criteria under paragraph 5 of article 6 of the directive—programmes made mainly with authors or workers residing in one or more member states—will part-qualify towards the quota. In addition, if a community producer, or producers, has made what appears to Ofcom to be a significant contribution to the production of programmes, such programmes will also part-qualify towards the quota.
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The proportion of a part-qualifying work that can be treated as a European programme by Ofcom shall be calculated on the basis of the proportion of the community producer's contribution to the total cost of the part-qualifying work, applied as a proportion of the duration of the programme.
Formal consultation is required under the Communications Act 2003. In accordance with section 278(8) and paragraph 8(8) of schedule 12 to the Act, Ofcom, the BBC and the Welsh Authority were consulted during the preparation of this instrument. Channel 3 licence holders, Channel 4 and Channel 5 were also consulted. All the consultees responded, and their views were taken on board in drafting the order.
Original productions are a key component of maintaining the quality and creativity of public service television programmes. I believe that the requirements under the 2003 Act and this order will serve to sustain our vibrant and innovative programme-supply market.
4.37 pm
Mr. Tim Boswell (Daventry) (Con): I welcome you to the Chair, Mr. Beard. We will have a thoroughly constructive discussion on matters of some importance. I also welcome the Minister to the Committee and note that she stuck rigorously to her brief, reading it out precisely. Perhaps that reflects the complexity of some of the issues. Without wishing to imply that there should be any great element of controversy, I hope that from now on we can have a more free-flowing discussion and expose some serious issues.
I do not find the order objectionable—certainly not its objective. As the Minister rightly said, we are all interested in the production of high-quality television and there is an understanding that that requires lively domestic activity, not merely buying in programmes from abroad. Whether such programmes should come from within the European Union or from the United States is a separate issue.
We need a lively production sector in the UK. It is useful to have a quota system for that, although the Minister put a little more store in such a system—in terms of the weight of what is achieved by regulation—than I would. She spoke about that, although I do not think she said a lot to justify it.
In any case, as the documents—including the regulatory impact assessment, to which I shall return—indicate, under section 278 of the 2003 Act there is an obligation to produce this order as a statutory regime. That is understandable; we cannot sit and do nothing. We shall give the measure a fair wind.
It might be sensible if, in structuring my comments, I begin with some technical points and then proceed from what struck me about the particular towards the general. The first point—which, sadly, still always applies to statutory instruments—is that the argument hardly leaps off the page. There is a somewhat terse explanatory memorandum and a more discursive regulatory impact assessment. It is possible to work
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out what is going on, and to correlate it with what the Minister said in confirmation, but it is certainly not immediately obvious.
Secondly—perhaps this is a more substantive point—Ofcom as the regulatory agency is depended on to deliver and monitor things through the licence conditions and to monitor compliance with those conditions. With regard to programme quotas, how that works in practice will be a very important issue.
I shall return to that point, informed with a degree of scepticism, because conditions that are set and that, under the 2003 Act, are now statutory obligations—for example, the quota on the BBC for independent production—are not always complied with. We could have great arguments about that, but they go wider than the debate on the order, so I shall not draw the Committee too far down this road. However, I will say that when a quota is set it is not always easy to ensure that it is met. That is the case in substance as well as in form. The Minister is nodding; she has sensitivity to that.
The Minister has mentioned the other point that I want to make at this stage, which is that the BBC is under a separate regime. It is perfectly well linked in within the terms of the agreement that the BBC concluded with her and which we debated on a previous occasion. The duties are virtually identical, but I will touch on them later. However, that is an untidy situation. It appears to be so to some of us not necessarily because we have neurotically tidy minds, but because we look at this difference in the regulatory regime with a degree of scepticism and are not wholly happy about it.
In this area, however, that is unlikely to give rise to trouble. I understand that the BBC is happy to assume its obligations. I hope that collectively we can get on with things, whether or not that happens in the other public service channels—we must remember that all the terrestrial channels have a public service obligation—or on the channels being delivered by the BBC.
I mentioned that I have a semi-structural objection to the way that things are being set up. I am not seeking to twit the Minister or to be flippant. I have genuinely felt for some time that the Government are somewhat cavalier in their treatment of regulatory impact assessments. I might not have dealt with as many orders in this area as I have in areas such as employment law—I do not deal with quite as many such measures as I used to—but it is interesting that we are being offered an interim regulatory impact assessment without a full one, but with the implication that what is being done is fair enough.
It is difficult to be half in and half out of this argument. Either the assessment should be sufficient for the purpose, and if it records the fact that there is no regulatory impact that is fine, or, if it does not go far enough, we should know a little more about why it has not been possible to go further. Given that these matters arise from custom and past practice, although the structure is formally changed by the order, I doubt
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whether it makes a great deal of difference in practice, but I do not quite like the way in which the proposals are being presented to the Committee.
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