Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019

Motion to Approve

Moved by

That the draft Regulations laid before the House on 29 November 2018 be approved. Debated in Grand Committee on 23 January.

My Lords, I thank noble Lords for their contributions to the extensive debate in Grand Committee on Wednesday 23 January. I committed then to provide further information concerning the engagement with stakeholders that had occurred, especially with the UK Competitive Telecommunications Association. I wrote to all noble Lords who participated in the debate and placed a copy in the Library on 29 January. I hope that that was acceptable to noble Lords and I beg to move.

My Lords, we had a full debate in Grand Committee on this statutory instrument last week and I place on record my gratitude to the Minister for the comprehensive letter that he sent to many of us following our deliberations on that occasion. I am sure that it will be a great pleasure to the Minister to know that I do not intend to revisit all the points that I raised on that occasion, with the exception of one, which is very important.

A general point has been occupying and concerning Members of your Lordships’ House in relation to our leaving the European Union, not least during a debate on 30 January on the Trade Bill. There was much discussion about the vital importance, following our exit from the European Union, of remaining as close as we possibly can to all the various organisations within the European Union that determine the rules on which trade between the UK and the European Union will depend.

The Minister will be well aware that, in relation to the specific business and trading arrangements that will occur between the UK and the EU, with this instrument we are talking about the broadband and telecoms industries. I note with great interest, in the light of the debate that we have just had on roaming charges, what the Government said in their technical notice issued on 13 September last year, which stated that,

“irrespective of the outcome of the negotiations between the UK and the EU, we do not expect there to be significant impacts on how businesses operate under the telecoms regulatory framework and how consumers of telecoms services are protected”.

But we have just heard in relation to roaming charges that that simply does not stack up and that there will be serious implications for our telecoms and broadband sectors. They are very important to the economy of this country. For instance, telecoms has revenues of something like £40 billion. There are going to be significant impacts.

That is kind of the noble Lord. Is he aware that this is a no-deal SI and that therefore the withdrawal agreement does not apply?

I absolutely accept that; my point is that we need to look at the attitude of the Government towards their relationship with bodies such as BEREC. If, even without a no-deal situation—that is, even within the withdrawal agreement, where it is hoped there will be a deal—the Government are supporting a mechanism that they have written themselves, which makes it difficult for Ofcom to be involved in BEREC, then we should have some real concern.

I have drawn attention—I will not repeat the detail in your Lordships’ House now—to how Article 128 makes it difficult for Ofcom to be involved in BEREC. During the debate on the Trade Bill, the Minister concerned gave a very different interpretation of that situation. He made it clear that he thinks it will be perfectly possible for Ofcom to be involved. I challenged that Minister, the noble Lord, Lord Bates, on whether he agreed with my interpretation or with that of his noble friend. I was somewhat surprised by the answer he gave. He said:

“The noble Lord, Lord Foster of Bath, made an interesting point about the reputation of Ofcom, which of course we all recognise as a world-leading authority. He then offered me a pretty difficult choice of choosing between his persuasive speech and the words uttered in Committee by my colleague in government, my noble friend Lord Ashton of Hyde. Given that I speak from the Government Benches, I am afraid that I must side with my noble friend Lord Ashton in this regard”.—[Official Report, 30/1/19; col. 1156.]

So two Ministers now have disagreed with my interpretation of whether we will be able to participate closely with BEREC. I end with a simple question for the Minister today: will he give a clear assurance that, in the event of no deal, it will be the Government’s intention to take all necessary steps to ensure the maximum co-operation between Ofcom and BEREC?

My Lords, I rise to wish the Minister well. We had a good debate in Grand Committee. We shared very frankly a number of views. There were questions relating to what kind of consultation had taken place; others were raised persistently and clearly by the noble Lord, Lord Foster of Bath, and he has continued to pose them this morning. I was reassured by the letter that we received, which took up and dealt with a number of the questions that we had been struggling with.

Once again, as I said from the Dispatch Box yesterday, I am trying to make a clear distinction between what needs to happen to the statutory instrument laid before us—I am sure the matters arising from it have now been adequately aired—and the questions that will go on worrying us after this instrument has been passed; as we move into the next phase, we will be debating substantive issues that certainly have not been answered in a debate of this kind. For the purpose of dealing with the piece of business directly before us, I am happy to give our accord from these Benches, but not if that should be supposed to cancel, diminish or sideline the issues that have been raised from the other Benches.

Unfortunately we do not have a satisfactory or agreed Brexit deal and we need a no-deal SI here and indeed in a number of other areas, so I support the Government on that. However, I would like to pick up a point made by the noble Lord, Lord Foster, on roaming, which I understand is broader than this SI. If this is to be a commercial decision in future for the mobile operators in the event of no deal, as we heard earlier, can the Government seek voluntary assurances from them that they will continue to incorporate overseas calls and internet access into their contracts? I have that facility from Three and it includes the EU and indeed the US, and I do not think the company is planning to change that. However, in addition to the consumer triggers that are being introduced and the very good provision on inadvertent Republic of Ireland roaming, I think Ofcom could require the operators to make a clear statement of their intentions in this area on such calls in the EU, and I think it should look at the ability of consumers to switch from deals that turn out to be bad as a result of the change.

My Lords, I support the noble Lord, Lord Foster, in the concerns that he has raised. It is not just the Minister in the other place who says it is important for Ofcom to benefit from the continuing exchange of best regulatory practice; it is in paragraph 7.35 of the Explanatory Memorandum:

“However, the Government recognises that Ofcom would benefit from the continued exchange of regulatory best practice with other national regulatory authorities and the exchange of information about electronic communications matters more generally”.

The memorandum goes on at paragraph 7.36 to note that,

“the BEREC Regulation presently allows BEREC to invite observers to attend its meetings, and that the new BEREC Regulation is expected to provide that the Board of Regulators, the working groups and the Management Board should be open to the participation of regulatory authorities of third countries”—

which of course would include us in the event of no deal—

“where those countries have entered into agreements with the EU to that effect”.

My question is therefore about whether it is the intention of the Government that, in the event of no deal, Ofcom should urgently seek from other EU states an agreement that will allow Ofcom to have such observer status so that Ofcom can benefit from the continuing exchange of best regulatory practice, and indeed the regulators at BEREC can benefit from Ofcom’s expertise.

Does the noble Lord agree that if he wishes to achieve that which he seeks—I entirely agree with him—there will have to be a change to Article 128 of the withdrawal agreement? That article specifically says that any invitation to attend will be exceptional and only in specific circumstances—namely, as it says in paragraph 5(a) and (b), that,

“the discussion concerns individual acts”,

or individuals within the UK, or, and this is critical,

“the presence of the United Kingdom is necessary and in the interest of the Union”,

and so on. So it is very clear that even if we sought that invitation to attend, it would be in limited circumstances unless changes are made to Article 128.

I share the noble Lord’s concern. It is all very puzzling. That agreement is of course a premise that contradicts the premise of these regulations. As the noble Lord says, these regulations are entirely on the premise that there is no agreement. What is puzzling is that if there is an agreement, the circumstances in which Ofcom would be able to participate in BEREC appear to be very restrictive indeed. There is therefore real concern that, in the event of no agreement, it might be said by BEREC that the circumstances in which Ofcom could participate could not be greater than the circumstances if there were an agreement. That is why I ask the Minister to confirm that it is the Government’s intention that Ofcom should be able to participate, which is obviously sensible and desirable for everybody. Has there been any discussion with our European colleagues on whether that can and will be secured in the event of no deal?

My Lords, I thank noble Lords for their questions and comments. If I may, I will restrict myself to the matters which pertain to this SI which, as the noble Lord, Lord Pannick, has just outlined, is a no-deal SI. I thank noble Lords, especially the noble Lord, Lord Griffiths, and my noble friend Lady Neville-Rolfe for their comments—I omitted to thank my noble friend for supporting me last night and I am glad she is doing so again, despite that.

It is worth touching briefly on the issue raised by the noble Lord, Lord Foster. He said in Grand Committee that he expected to raise this again, so I thank him for that warning. He has quoted me a number of times, referring to what I and my honourable friend the Minister have said, and alluded that there was a problem between us. There is not. He neglected to mention that in Grand Committee, I also said that Ofcom,

“does not have the right to do these things”.

We were talking about membership of BEREC and attending meetings. I continued:

“That is not surprising, because we are leaving the EU. Why should it have the right?”—[Official Report, 23/1/19; col. GC 97.]

I made the point that as we leave the EU, there is no right to do that. However, that does not mean that we would not wish to pursue this, so let me address the points the noble Lord made about the potential difficulties.

The main purpose of BEREC is to ensure the consistent implementation of the EU regulatory framework. That is significant, not least in influencing the development of EU soft law. On the UK’s position, it is true that Ofcom has been a member of BEREC since 2010, and has been actively involved in that time. It is a well-respected, national regulatory authority. As I said, on leaving the EU—which is what we are dealing with here—it will not be possible for Ofcom to retain its membership automatically. That is right, as we will not participate in the EU regulatory framework. In the event of no deal, Ofcom’s ability to participate will be governed by the BEREC regulations themselves, as the noble Lord, Lord Foster, said.