Ms Catherine O'Riordan, Mrs Suzanne Coe, Mr Bob Barron and Mr Chenab Mangat

23 MAY 2006

  Q40  Lord Phillips of Sudbury: So you do not think there could be any argument about that?

  Ms O'Riordan: I trust not, my Lord.

  Q41  Lord Phillips of Sudbury: Trusting is one thing—

  Ms O'Riordan: I do not think so, my Lord.

  Lord Phillips of Sudbury: Okay.

  Q42  Chairman: It has become practice in drafting statutes not now to use the phrase "Her Majesty's Dominions" but to move to this phrase, is that right?

  Ms O'Riordan: There are very few recent examples, my Lord.

  Q43  Chairman: Of Her Majesty's Dominions?

  Ms O'Riordan: Of using the term, "part of Her Majesty's Dominions".

  Q44  Chairman: Are there other examples of using this phrase?

  Ms O'Riordan: I cannot recall any, my Lord, but I am satisfied it is an adequate replacement.

  Q45  Chairman: We are striking out into new territory in that case?

  Ms O'Riordan: My Lord, yes.

  Lord Phillips of Sudbury: More work for lawyers.

  Chairman: The question is that clause 52 stand part of the Bill. As many as are of that opinion say "content", the contrary "not content". The contents have it.

  Chairman: We move to clauses 53 to 74, none of which have notes. Any questions on those? If not, then the question is that clauses 53 to 74 stand part of the Bill? As many as are of that opinion say "content", the contrary "not content". The contents have it.

  Q46Chairman: Ms O'Riordan?

  Ms O'Riordan: My Lord Chairman, clause 75 is derived from section 87 of the Telecommunications Act 1984. Section 87(4) says "In any proceedings for an offence under section 86 above it shall be a defence for the person charged to prove that he is a person whose business it is to publish or arrange for the publication of advertisements and that he received the advertisement for publication in the ordinary course of business." Section 87(4) could be read as requiring the person to show that he is in such a business when he puts forward his defence and was in such a business when he received the advertisement. It is considered however that section 87(4) is concerned with the person's business at the time of the alleged offence. Clause 75(4)(a) therefore indicates expressly that it is the time of the alleged offence that is material.

  Chairman: Any questions on that matter? In that case the question is that clause 75 stand part of the Bill. As many as are of that opinion say "content", the contrary "not content". The contents have it.

  Chairman: Again there are no notes on these clauses. Any questions? The question is that clauses 76 to 115 stand part of the Bill. As many as are of that opinion say "content", the contrary "not content". The contents have it.

  Q47Chairman: Clause 116, Ms O'Riordan?

  Ms O'Riordan: Clause 116 is derived from section 19(1) of the Wireless Telegraphy Act 1949. In describing electromagnetic energy for the purposes of the definition of wireless telegraphy, section 19(1) expresses frequency in terms of cycles a second. The unit of measurement now used is the hertz. Section 19(1) described the frequencies in question as "not exceeding three million megacycles a second". Clause 116 reproduces this in terms of gigahertz. That is, it refers to 3,000 gigahertz rather than three million megahertz. In making these changes, the Bill is in line with section 184 of the Communications Act which provides: "The Secretary of State may by order modify the definition of "wireless telegraphy" in section 19(1) of the Wireless Telegraphy Act 1949 by substituting a different frequency for the frequency (at the time of the passing of this Act 3,000 GHz) that is for the time being specified in that definition."

  Chairman: All clear? In which case the question is that clause 116 stand part of the Bill? As many as are of that opinion say "content", the contrary "not content". The contents have it.

  Chairman: Clauses 117 to 126?

  Viscount Colville of Culross: 121.

  Chairman: Yes, Viscount Colville?

  Q48  Viscount Colville of Culross: On clause 121, my Lord Chairman, we are not reproducing the power to make pre-consolidation statutory instruments which was in section 407 of the Communications Act. It has proved very useful this time. Consolidation is an unpopular measure and I wonder whether it might not be worth reproducing 407 of the Communications Act which we have not done.

  Ms O'Riordan: My Lord, in the Table of Destinations for the Bill, which notes the repeals made by this Bill, it treats section 407 as being spent once it has been exercised for the purposes of this consolidation.

  Q49  Viscount Colville of Culross: Yes, I know.

  Ms O'Riordan: And the power has been exercised.

  Viscount Colville of Culross: I know perfectly well it says that because I looked it up but the fact of the matter is that it is part of the statute law that we are looking at. It has proved extremely useful and it does not have a time limit on it in the 2003 Act, so why is it spent?

  Q50  Chairman: Would I be right in thinking that if this consolidation goes through it will contain all the relevant law unless and until Parliament passes some more law and builds up enough law to require consolidation? I suppose in any of the Bills which it produced, especially the last one before it was thought there was going to be some consolidation, consolidation could include the power to make pre-consolidation amendments. Would that be right, just like the Communications Act?

  Ms O'Riordan: If your Lordship will bear with me for a moment. My Lord, the power was included on the basis that it would be used for the purposes of this consolidation and, were a future consolidation planned, such a power would be something that would have to be considered again.

  Q51  Chairman: Do I understand that if we built up in the future enough new legislation that it was thought it was going to require another consolidation, one of those Bills could itself contain a similar provision to the one that was in the 2003 Act. Is that right?

  Ms O'Riordan: Yes, my Lord.

  Viscount Colville of Culross: Of course it could but why do we not put it in here?

  Chairman: I do not think it is going to cause any real prejudice because I think it can always be put in in the Bill which requires it, where it is going to be contemplated.

  Viscount Colville of Culross: My Lord Chairman, I am not going to be tiresome about this but we have had 50 years of legislation on this subject and it was only in 2003 that they thought to put in powers to make a statutory instrument for the purposes of consolidation. Will they remember next time?

  Chairman: Perhaps we can note the need for it.

  Mr Dorrell: I think Lord Colville's intervention might help them remember!

  Chairman: I think it will. I shall certainly remember it, put it that way. Any other section?

  Q52  Lord Campbell of Alloway: Section 118—(2), (3) and (4) seem to authorise the extension to the Channel Islands the provisions of the Act save sections 62 to 67. Where does that come from?

  Ms O'Riordan: My Lord, that comes from the Wireless Telegraphy Act 1967, which excepts one particular provision.

  Q53  Lord Campbell of Alloway: There is nothing we can do about it, is there?

  Ms O'Riordan: That is reproducing existing law, my Lord. That is derived from section 15(6) of the Wireless Telegraphy Act 1967. That says: "Her Majesty may by Order in Council direct that all or any of the provisions in this Act shall extend to the Isle of Man or, except for section 7 of this Act, any of the Channel Islands . . .". Section 7 is reproduced as clauses 62 to 67.

  Q54  Chairman: Presumably there must have been some policy reason why it was not thought appropriate to extend these provisions to the Channel Islands?

  Ms O'Riordan: That particular section, section 7? Yes.

  Lord Campbell of Alloway: You say we cannot do anything?

  Chairman: No. Any questions? The question is that clauses 117 to 126 stand part of the Bill? As many as are of that opinion say "content", the contrary "not content". The contents have it.

  Q55Chairman: Schedule 1, Ms O'Riordan?

  Ms O'Riordan: This point relates to paragraph 3 of Schedule 1. Subsection (5) of section 1D provides that OFCOM may refuse an application for a wireless telegraphy licence where "the person applying for the licence fails to provide any information that OFCOM reasonably require in order to satisfy themselves that the applicant is able to comply with the terms, provisions and limitations in the licence". It is reasonable to treat section 1D(5) as not preventing refusal on other grounds. For example, nothing in section 1D(5) suggests that an applicant who provides plenty of information as opposed to insufficient information will get a wireless telegraphy licence if all the information shows that he is unsuitable. Section 1D(5) could be reproduced without change but for the contrast between it and paragraph 2 of Schedule 5 to the Communications Act 2003. Paragraph 2 contains the parallel provision for grants of recognised spectrum access. It starts: "The grounds on which a grant of recognised spectrum access may be refused by OFCOM include a failure by the applicant to provide information which OFCOM reasonably require." To avoid any suggestion that section 1D(5) sets out the only grounds upon which a wireless telegraphy licence may be refused, the Bill follows the wording used for grants of recognised spectrum access. Thus section 1D(5) is re-enacted at paragraph 3 of Schedule 1 and its wording is similar to that in paragraph 2 of Schedule 2 which re-enacts the grant of recognised spectrum access provisions.

  Q56  Chairman: Again it is to prevent any legal argument being based on a contrast between the wording of the two provisions?

  Ms O'Riordan: My Lord, yes.

  Chairman: The question is that Schedule 1 be the first schedule to the Bill? As many as are of that opinion say "content", the contrary "not content". The contents have it.

  Chairman: We have no notes on Schedules 2 to 6. Are there any questions in relation to those? No? The question is that Schedules 2 to 6 be the second to sixth schedules to the Bill. As many as are of that opinion say "content", the contrary "not content". The contents have it.

  Q57Chairman: There is an amendment to Schedule 7 which has been tabled. Ms O'Riordan, could you explain it?

  Ms O'Riordan: This amendment to Schedule 7, a consequential amendment of section 410(1)(c) of the Communications Act 2003, puts right a point overlooked before the Bill was introduced. Section 410 allows Her Majesty by Order in Council to provide for areas of the territorial sea or areas containing offshore installations to be treated for the purposes of the legislation described in paragraphs (a), (b) and (c) of subsection (1) as if they were situated in a part of the UK specified in the Order. The Consolidation Bill, in effect, splits section 410. Part remains in the Communications Act 2003 and part appears as clause 120 in the Wireless Telegraphy Bill. Clause 120 thus deals with some of the legislation now described in paragraphs (a) and (b) of section 410(1). This also means that section 410(1)(a) and (b) will describe a narrower class of legislation than they do now. The narrowing of paragraphs (a) and (b) has an effect on the description of legislation in paragraph (c). This is because paragraph (c) describes the provisions in Chapter 1 of Part 5 of the Communications Act by reference to what is in paragraphs (a) and (b). This knock-on effect on the description in paragraph (c) was only noticed after introduction. The amendment ensures that paragraph (c) will continue to describe the same provision in Chapter 1 of Part 5 as it does now.

  Q58  Chairman: Is that the present position?

  Ms O'Riordan: It is, my Lord.

  Chairman: Any questions on that? Then the question is that the amendment be agreed to?

  Viscount Colville of Culross: My Lord Chairman, it does make my point, does it not, because it is not in the Order. We now get it on the Bill and if it had not been for the fact that this had been spotted in time we would not have been able to include it in the consolidation. I still wonder why we do not reproduce the power to make pre-consolidation amendments. It seems to me that this makes the point.

  Lord Phillips of Sudbury: They will not be pre-consolidation, will they; they will be post?

  Viscount Colville of Culross: The Bill as it was published contains an error which is now being put right in this amendment. This is by no means necessarily unique. As I say, I am not going to press this point at all but it does illustrate the necessity for having this sort of power.

  Chairman: Very well.

  Q59  Lord Phillips of Sudbury: Can I just, Lord Chairman, ask Lord Colville—and I am just speaking on the hoof—does clause 123 which refers to Schedule 7 help on consequential amendments? Ms O'Riordan will know the answer to that. I see, this is not the making of consequential amendments. I must say you do wonder why there should not be something in the Bill, given the huge complexity of all this, that does allow the making of consequential amendments of the sort that you have just brought before us by secondary legislation.

  Ms O'Riordan: Your Lordship is aware that there are Bills that are passed which take a power to make consequential amendments. Because this is a consolidation Bill and should present a true picture, it is appropriate that the Bill deals with consequential amendments.

  Lord Phillips of Sudbury: Let us just suppose that two or three more glitches appear in the next six months. Why should we not have the power in to allow us to put those right?

  Chairman: Because I think that would require fresh primary legislation and we cannot do that.

  Lord Phillips of Sudbury: I am saying that is daft—

  Chairman: We cannot do that.

  Lord Phillips of Sudbury: But why can we not say in the Bill—

  Chairman: Because it does not exist in the existing legislation. All we can do in this Bill—