Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019

Lord Adonis Excerpts

Monday 18th February 2019 Lords Chamber

This ensures that, come what may, data protection authorities on both sides of the channel will have a common basis from which to develop new international co-operation mechanisms.

[Lord Adonis (Lab)]

My Lords, if the Minister will forgive me, this is a crucial issue in what is going to happen. Where there is a data controller outside the United Kingdom in a no-deal scenario, will there be a requirement for it to have a representative inside the United Kingdom to replicate the existing EU arrangement? It was not clear from what the Minister has just said whether that will be an absolute requirement.

[Lord Ashton of Hyde]

If they fulfil those conditions that I mentioned, the answer is yes.

I would like to touch on what our exit from the EU might mean for the applied GDPR, as provided for by Chapter 3 of Part 2 of the Data Protection Act 2018. Noble Lords will recall that we created a separate regime which provides for broadly equivalent standards to the GDPR to apply to processing activities that are outside the scope of EU law and covered by neither Part 3 nor 4 of the Act, which deal with processing by law enforcement and intelligence services respectively. This regime currently applies, for example, where a controller other than the intelligence services is processing for national security or defence purposes.

As the EU GDPR will not, as a matter of domestic law, apply directly to any general processing activities when we leave the EU, these regulations are intended to simplify matters by providing for a single regime for all general processing activities. Those provisions in the 2018 Act that provide for the applied GDPR, together with other references to the applied GDPR in legislation, are removed. Importantly, the provisions in the applied GDPR which currently provide exemptions from specified provisions where these are required for the purposes of safeguarding national security or for defence purposes have been retained in the merged regime. These exemptions balance the need to protect personal data against ensuring that the UK’s security and intelligence community can continue to carry out its vital work to safeguard national security. I should emphasise that the merger does not itself alter the purview of EU law so where aspects of domestic data protection law were outside EU competence before exit day, this will not change as a result of this instrument. We have included provisions in the regulations to make that point clear.

I believe that the approach the Government are taking is an appropriate way of addressing the deficiencies in domestic data protection laws resulting from the UK leaving the EU. The aim of these regulations is to ensure continuity for data subjects, controllers and processors by maintaining the same data protection standards that currently exist under the GDPR and the Data Protection Act 2018.

My remarks have focused on the changes made to the GDPR and the Data Protection Act because they are the most significant. For completeness, I should add that the regulations make a number of minor amendments to other legislation, consequential on the amendments we are making to the UK GDPR and Data Protection Act 2018. For example, they amend references to the “GDPR” in other legislation to refer to the “UK GDPR”.

They also address a small number of non-exit-related issues. They clarify that the GDPR definition of consent applies for the purposes of the Privacy and Electronic Communications (EC Directive) Regulations 2003, and address two minor drafting issues that were identified in Schedule 19 to the Data Protection Act 2018, shortly before it received Royal Assent. I commend these regulations to the House

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[Lord McNally]

The Minister never said anything about difficult foreigners, but there has always been the impression that this would all be as smooth as smooth. “Do they not understand that we are trying to be helpful?”, we ask, when we have caused Europe so much disruption and cost by this act. In this case, it is essential that we are part of the ongoing dialogue. This GDPR is not the end of the process. As the House was discussing last week, these European laws are going to develop. How we then act and deal with them is going to affect where jurisdiction lies—with European or British courts.

[Lord Adonis]

The noble Lord has raised a litany of concerns about the GDPR regime after Brexit and cited a number of people who briefed him about it, including QCs and Members of the European Parliament. However, he will have noticed that there has been no public consultation at all on these regulations. There has been no opportunity for people directly affected to publicly brief us. Does he share my concern about that? Would he like to comment on the process of public consultation on these regulations?

[Lord McNally]

It is, of course, a farce. These regulations are all being rushed through at the last minute and we know that we have to put them in place as the cliff edge approaches.

I do not want to be rude to Fieldfisher, because it provided some excellent briefing but, my God, the lawyers must be rubbing their hands at the cornucopia that is going to be tipped out to them as companies and individuals try to make sense of the reality. Whether we get a deal, or fall out, it will be a jagged, uncertain, unclear leaving.

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The Government in their wisdom—or, some of us think, lack of wisdom—decided not to incorporate the Charter of Fundamental Rights, and not even its Article 8 on data protection. Therefore, reliance for privacy safeguards has to be found in the European Convention on Human Rights. Again, this has been commented on in the last couple of months. The political declaration has a strange expression whereby the UK is committing itself only to respect a framework of the ECHR. This is starting to get a bit thin. When the Commission looks at an adequacy assessment, of course it always has the European Parliament breathing down its neck; the Parliament does not have a legal role but looks at this area rather closely. It seems that the Government are shooting themselves in the foot with regard to saying, “We have a very high standard of commitment to human rights, including privacy”, and that is before you get to the fact that the Government, or the Conservative Party, are refusing to rule out abolition of the Human Rights Act, which is still in place. We know that when an adequacy decision comes to be made, the scope of the assessment is wider than if we were a member of the EU, and it will bring in things like surveillance by the intelligence agencies—for instance, under the Investigatory Powers Act. As noble Lords will know, in the Strasbourg court the UK was found—I think last September—in breach of the ECHR privacy obligations in respect of the bulk collection of data. How do the Government intend to reassure the European Commission as well as other EU players that they are thoroughly fit for purpose when it comes to getting an adequacy decision, and are these issues delaying the Commission advancing on that question?

[Lord Adonis]

My Lords, the noble Baroness, Lady Ludford, has raised some important points. It is totally unjustifiable that there is no impact assessment for this regulation; I hope that the Minister will address and explain that. The noble Baroness also made an important point about the way that data adequacy will be assessed if we are outside the EU, particularly in a no-deal scenario.

I will extend that to cover my perennial theme of consultation. No issue affects businesses and individuals across the country more than data. Indeed, we went through the whole GDPR exercise precisely because this is so central to our individual and community life. The fact that there has been no consultation at all on this regulation seems truly indefensible, so I hope that the Minister will say why that has been the case. The noble Lord, Lord McNally, said that data is now the new oil. He is absolutely right; it is as important to the functioning of our economy and our society as energy—it is a form of energy—and there clearly should have been consultation. Can the Minister say why there was no consultation? I assume that he will tell us again that there was no time, which begs the question of why we are going through this no-deal process at all if there is not time to conduct the normal processes of government in respect of it.

As ever, there is a bizarre twist to the statement on consultation. Paragraph 10 of the Explanatory Memorandum states:

“The government has not consulted publicly on this instrument”.


I presume that that means that they have consulted privately, and the House needs to know who has been consulted privately. The only body mentioned in paragraph 10 is the Information Commissioner’s Office, with which, it states, the regulation has been developed in consultation. Who else has been consulted privately and what were the selection criteria? Since the regulation was published, there have been representations. What representations have been made to the Minister’s department and what was their content?

The noble Baroness, Lady Ludford, also raised the issue of trying to assess the impact. Again we have doublespeak in respect of the regulations. We are told that their literal interpretation means that there is no further impact over and above the operation of existing European law. However, that is after, in the words of the White Queen in Alice in Wonderland, you have believed six impossible things before breakfast. Paragraph 12, entitled, “Impact”, states:

“There is no, or no significant, impact on business, charities or voluntary bodies arising from this instrument”,


but concludes:

“Data flows from the EEA to the UK may be restricted post-exit, but that is as a consequence of the UK leaving the EU, not as a result of this instrument”.


It is impossible to separate the instrument from the fact that we are leaving the EU. The noble Baroness put her finger on a very important point, which is that if we leave the EU with a deal on the basis recommended by the Prime Minister, the impact might be radically different from that envisaged under the instrument, for two reasons. First, there will be a transition period in which nothing changes but, secondly, the political declaration heralds negotiations on a whole set of issues, including trade and data flows, which might well lead to our continuing in the existing GDPR regime. So the last sentence of paragraph 12 is not true. It is not true to say that the issue of data flows and the regulation of data is dependent on the UK leaving the EU, not as a result of the instrument. There is a crucial difference between leaving the EU with a deal—in particular, with a deal that maintains the status quo—and without a deal.

When the noble Lord, Lord McNally, cited one of his expensive lawyers, who had suggested that there may be additional complexity—

[Lord McNally]

Oh!

[Lord Adonis]

I was not suggesting that they were his personal expensive lawyers, just expensive lawyers who have chosen to brief him; I know that he could not possibly afford expensive lawyers. When he said that it depends on what happens as time goes on, he put his finger on a very important point. The whole point of no deal, with a separate regime under our ICO, is that we could quite quickly find ourselves diverging, and as we diverge, that will quickly impose burdens over and above those that would apply even if we left the EU with a deal.

I am also not sure it is true to say that there would be no burdens as a result of the regulations even at the outset. I am a lay man in this business, and trying to understand what is going on is very difficult, particularly because there has been no consultation and we do not have the opportunity to assess what people who are expert and directly affected have said. The reason I intervened on the Minister in his opening remarks is that, having been a company director who has had to deal with the implementation of the GDPR, I know that having a representative dealing with data matters inside the EEA is very important. Many companies have offshored a lot of their data-control activities, and the requirement of the GDPR that they must have a representative inside the EEA—which I think is the correct thing to do—is a definite burden. It means that companies not only have to employ additional individuals but have to set up additional offices, in essence, to cope with those flows in many cases, particularly if they are dealing with significant data-handling exercises which are outside the EEA at the moment. This happens all the time with call centres in India; many companies are in this territory.

My understanding of what the Minister said in our earlier exchange is that if we leave with no deal and therefore must set up our own UK data-monitoring regime immediately, there will be a requirement for every company operating outside the EEA—which must, under the GDPR, have a representative inside the EEA—to have a representative in the United Kingdom. I would be grateful if the Minister could confirm that because if it is true, that is an immediate and potentially significant burden.

The other important point is that people need to understand that these arrangements are reciprocal. One reason why we as a country have such a good services industry is that a lot of companies based in the UK do substantial business in the EEA and beyond. That is great. My assumption, although it is not spelled out in the Explanatory Memorandum, is that in a no-deal scenario, data controllers who are based in the UK but do substantial business in the EEA will be required by the European Union to have representatives in the European Union over and above their data controllers in the UK; these are not currently needed. I would be grateful if the Minister could address that point. This flows logically from the new regime being set up. I would be astonished if that is not the case because I do not think that the European Union would regard having a data controller in the United Kingdom as meeting its standards of data adequacy. I would be grateful if the Minister could confirm that.

On that point, it is apparent that this immediately imposes a burden, potentially a significant one, on every company that handles data in the European Union or the EEA, as opposed to just in the UK. That represents a substantial proportion of our companies. If we had had an impact assessment, as the noble Baroness, Lady Ludford, suggested, this issue would have been brought out and we would know its effect. If there had been public consultation, we would know, but there has been none—and we have had no impact assessment. To my surprise, the Select Committees of this House that oversee instruments and put them to us have not raised these issues, which seem substantial and should have been raised before these instruments came to this House.

[Lord Rooker (Lab)]

I think my noble friend has not quite got it. I assure him that, as the noble Lord, Lord Cunningham, said earlier, Sub-Committee B is in the process of sending a letter to the Treasury complaining about the national policy it laid down on not having impact assessments for these instruments. Every week, we are seeing dozens of instruments with references to both informal consultation and none, but now it has been picked up that there is a national policy not to have impact assessments.

[Lord Adonis]

Is my noble friend saying that the Select Committee did raise these concerns?

[Lord Rooker]

Yes. As I speak, a letter is winging its way from Sub-Committee B to the Treasury. It was agreed at our meeting last week, the committee having discussed it in previous weeks.

[Lord Adonis]

That raises the issue of why that is not in any of the information before your Lordships. I was not aware of that at all. It is not flagged up in any of the documentation. Like other noble Lords, I appreciate hugely the work done by our Select Committees but the committee’s view is not always completely clear to the House when these instruments come before it, unless the committee has issued a formal report. We do not get full value from our Select Committees in the way that their work is presented. For instance, I am surprised that the chairs of these Select Committees do not comment on these instruments based on the committees’ work. I see that one of the chairs is sitting opposite; perhaps he would like to intervene.

[Lord Trefgarne (Con)]

All I can say at the moment is that the letter to which the noble Lord, Lord Rooker, referred has not gone quite yet.

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[Lord Adonis]

My Lords, I appear to be flushing out an important dispute that is taking place between the chairs of Sub-Committee A and Sub-Committee B.

[Lord Rooker]

You are.

[Lord Adonis]

I have to say that this for me is a black box. Because of my other duties I have not been able to spend time analysing what is going on in Sub-Committees A and B, but this is very important because hundreds of these instruments are coming to us.

I turn to the issue of there being no consultation, which my noble friend Lord Rooker referred to. I have been going on about it for weeks. This has been true of every single no-deal instrument that has come to your Lordships. It is deeply and profoundly unsatisfactory. In my view this ought to have been flagged up for each of these instruments from the beginning and ought to have been a reason for them not to come before the House. How can we possibly conduct the proper business of the nation in terms of changing the law when we do not have any public consultation with any of the sectors that are affected by these instruments? We are dependent on the expensive lawyers of the noble Lord, Lord McNally, even to spell out the most basic features of these regulations—which, first, will not be apparent to those of us who are lay people and, secondly, which those people who are affected have had no opportunity to present except through the agency of expensive lawyers who seek to make a living. Of course, the expensive lawyers referred to by the noble Lord, Lord McNally, will now advertise their wares to companies, telling them what the impact of these things is going to be because they did not have a chance to engage with them earlier and make their views known, particularly if they start being adversely affected.

[Lord McNally]

My Lords, I never described them as expensive lawyers—otherwise they might never write to me again. I said that they were distinguished lawyers.

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[Lord Adonis]

Perhaps I misheard the noble Lord—we will call them distinguished lawyers.

However, there is a dispute going on between the chairs of Sub-Committee A and Sub-Committee B. I do not know how these disputes are resolved. Do they come to the House? Perhaps they should come to the House.

[Lord Trefgarne]

My Lords, I can assure both noble Lords, Lord Adonis and Lord Rooker, that agreement is very close.

[Lord Adonis]

My Lords, I hope that it is close, because meanwhile we have another seven of these instruments to consider today and the whole of the Order Paper for Wednesday has, I think, another dozen of them. We also have hundreds more coming next week. Perhaps I may say to the noble Lord that I hope that this can be resolved extremely quickly and that we can find a satisfactory way forward, because the issue of the lack of impact assessments seems to be entirely arbitrary. We have some on the later instruments that will be introduced by the noble Lord, Lord Bates, but there are none on these. However, no formal consultation has been carried out on any of the instruments.

[Baroness Kramer (LD)]

I have some fear that I will raise the noble Lord’s blood pressure even higher, but if he takes a look at the impact assessments that are provided, I think that he will be shocked by their inadequacy. They do not move us very far on from having no impact assessment at all.

[Lord Adonis]

My Lords, I do not think that it is possible for my blood pressure to be higher on these matters. However, I hope that the blood pressure of the House is high, because we are supposed to be legislating on behalf of the country, and the proceedings of your Lordships in respect of these no-deal statutory instruments are an absolute farce. I do not think that the procedures of the House are working well. The fact is that the two chairs of our relevant sub-committees cannot even agree on a letter to send to the Treasury in respect of the handling of consultation. The fact that it is about six months after we started getting the initial flow of statutory instruments on this matter coming to the House is in itself deeply unsatisfactory and is not a good commentary on the way our parliamentary proceedings are working. Moreover, the fact is that what we get are bromides from the Government that there is no change, based on there being no impact assessments, no consultation and a complete misreading of what the situation is in any event, because it involves a denial of all of the negative consequences that will flow from leaving the European Union, which of course is the underlying fact that they should be grappling with in the first place when conducting consultations and impact assessments. It is deeply unsatisfactory.

The right thing for this House to do would be to reject these instruments. We should not be a party to such an abuse of our constitutional procedures as is taking place with these no-deal instruments. What we will be faced with, though—I feel this pressure myself—is that we could crash out of the European Union in an unconscionable act of misgovernment in the course of five weeks’ time, so we have to do our level best to ensure at least that there is a statute book in place for that eventuality. But I and other noble Lords want to put on the record that the situation we are faced with, and which gets worse with every debate that flushes out more facts about what is actually happening, is a complete abuse of our constitutional procedures.

[Lord McNally]

That last point is very important. Somebody pointed out the other day that one day there will be a full judicial inquiry into how this process has been carried through. Ministers and civil servants should be aware that one day there will be accountability for the way this has been done.

[Lord Adonis]

The noble Lord is right, but I do not think that that day is far off; I think it will come soon. Let us be clear: we are not talking about a natural disaster. As a Minister, I often had to deal with those. When there are ash clouds and volcanoes erupt, you have to take very difficult and extreme decisions at short notice. Here we are talking about an act which the Government are inflicting on the country, with no external agency whatever. Not only that, but the Government could this afternoon terminate the situation we are faced with, in respect of these no-deal regulations, by the Prime Minister announcing that she is not proceeding with no deal and that she will, on behalf of the United Kingdom, submit a request to extend Article 50—or, as we now know she can do from the judgments of the European court, rescind it unilaterally. This will be a big matter for the public inquiry that the noble Lord, Lord McNally, is referring to. All the consequences of this no-deal situation are caused by the Government, and the remedy for them is entirely at the disposal of the Government. It is our absolute duty to point this out all the way through this process, so that at least some of us in the parliamentary system can point to the fact that we did our level best not to take the nation to the edge of the cliff where we are now at.

Coming back to this instrument, it is totally unacceptable that we are dealing with such an important set of regulations relating to the fundamental issue of data and data protection and there has been neither an impact assessment nor any public consultation.

[Baroness Ludford]

My Lords, I asked the Minister about the state of play on an adequacy decision. I am told that the Minister in the other place, Margot James, confirmed a few weeks ago not only that those discussions can start—at least formally—only after the UK leaves the EU, but that they would take two years; that was her estimate. So that multiplies the gravity of having no impact assessment; if we crash out without a deal, we will have a legal void for a long time.

[Lord Adonis]

The noble Baroness raises a very important question, to which the Minister should respond: how long will it take to consider this? Noble Lords who woke up to the “Today” programme this morning will have been astonished to find that Dr Liam Fox and the Foreign Secretary had written to the Japanese Prime Minister telling him to get a move on in signing a trade deal with Britain—as if we, because we are putting ourselves in a position of great jeopardy and undermining existing international agreements in five weeks, can now start instructing foreign Governments on the timescales in which they should conduct international negotiations. This is utterly humiliating to us as a country. It is a fundamental breach of the proper conduct of public affairs. What the noble Baroness said about it taking another two years even to get the basis of data adequacy agreements with the EU, because of our act of withdrawing from the European Union, simply underlines the point.

[Lord Griffiths of Burry Port (Lab)]

My Lords, in the middle of all that I shall provide a still, small voice of calm for a moment—perhaps—in keen anticipation of the response of the Minister, who will have to orchestrate the energies that have been released and deal with the blood pressure of my noble friend Lord Adonis.

I have looked at this statutory instrument. I can see 65 pages of intricate cross-stitching, as an untold number of lawyers for untold numbers of hours have pored over pieces of legislation, harmonised what can be harmonised, tweaked what can be tweaked and produced at the end an unreadable pastiche, leaving us reliant on the Explanatory Memorandum. As I sat at my kitchen table on the sunniest weekend we have had this year so far, with pieces of legislation spread out all around me, there was no other method available to me.

I read of changes to the GDPR and the law enforcement directive,

“over which our Information Commissioner’s Office and UK civil servants have had considerable influence”.—[Official Report, Commons, Sixteenth Delegated Legislation Committee, 14/2/19; col. 1.]

That we, once among the architects of how we handle our data as a continent, should now be in the position we are in is a great sadness. I would say the same thing for the European Court of Justice, which we had a formative contribution in shaping. That we are arguing these points in this way is a dreadful place to be.

I echo what has been said to my left and to my right about reciprocity, adequacy and all that. At the moment of leaving, we will, I suppose, accept the remaining members of the European Union as having passed the adequacy test. Indeed, through the Privacy Shield scheme in the United States, we will offer that sense of adequacy even beyond Europe. But, as has been said, the negotiations to have some reciprocity and adequacy expressed for our own case will take an indeterminate time—two years has been mentioned, and the Minister will respond to that in due course. It seems such a strangely asymmetrical presentation of these important facts. I want to ask, as others have done: is it true that the assessment of adequacy for the United Kingdom might take as long as that?

In his opening remarks, the Minister mentioned that, at such-and-such an item in the political agreement, there is reference to the urgency with which certain of these things must happen. Perhaps he will excuse my ignorance on this point, but, if there is no deal, is there no deal in respect of the deal and of the political agreement? If so, the item he referred to falls, as indeed does the deal.

The noble Lord, Lord Balfe, made a speech last week on what happens once you have reached a fixed point, which has again been hinted at in this debate. At the moment, all we are talking about is something that will come to pass on a particular date, just five weeks away, at which point things should square up with each other. But what happens in the two years it will take for adequacy for us to be granted by the negotiating process that will then begin? What happens if decisions about how to act in the area of the management of data begin to diverge? It is not a fixed position. What mechanisms do we have to handle a shifting scene?

My noble friend Lord Adonis mentioned Japan. It did not come into the picture because, at the time this statutory instrument was written, something was happening that had not yet been brought to a conclusion. But we now know what the conclusion is, and we see that Japan will be a much more difficult case to crack than we had thought. Once again, we are in a bad place.

Without a deal—or even, it seems, with one—the ICO will no longer sit on the European Data Protection Board. The noble Lord, Lord McNally, referred to the loneliness of the Norwegian, and it is worth emphasising that all over again. It will be a dreadful thing for us to send our top person to such discussions and have her sit out and have no real practical influence—this is the United Kingdom we are talking about—nor will she be able to participate in the GDPR’s one-stop shop mechanism. This is another terrible place to put her. How should we feel about this? I think it is important.

Incidentally, I see why there is no impact assessment or public consultation: all the people who might have been available to harness such an impact assessment or consultation have been disentangling laws and working as drones to put this SI together. I cannot feel that we are doing anything that any of us would be other than ashamed about with the passage of time.

On the age at which consent is deemed to have been given, are the Government, in opting for 13—there was a spread of ages between 13 and 16 when we considered the Data Protection Bill last year—achieving by secondary legislation what we were reluctant to do just a year ago with the primary legislation? What is our duty of care in such circumstances?

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[Lord Ashton of Hyde]

I agree. That is why the Government are making all efforts to secure a deal. We agree that a deal is the best situation for the country. We are at one with that.

In answer to the noble Baroness, I will start with something which is my responsibility—the legislation.gov.uk website provided by the National Archives. I will take up the matter with it. I am told that it may be helpful to search for “draft statutory instruments” rather than “statutory instruments”. I certainly listened to what she said about the website not working and will check what we need to do.

The noble Baroness, the noble Lord, Lord Adonis, and others talked about the impact assessment and asked why it has not been published. The impact of this instrument, not the impact of leaving the EU, was assessed in line with standard practice following the existing Better Regulation framework. It is focused on the direct impact of the relevant SI compared with the current legislation. The whole point of this SI is to maintain an equivalent regulatory framework to protect personal data. The noble Lord, Lord Adonis, quite rightly pointed out that it affects not only UK businesses but mostly EU and EEA businesses, which will have to have representatives in this country, and I will come to that. It is a reciprocal arrangement. If these regulations come into force and we have a UK GDPR, the same necessity for representatives will take place both ways, and I will come to that.

The analysis, to the best of the Government’s ability, of the wider impact of the UK’s exit from the EU was published in the Long-term Economic Analysis in November last year. The noble Lord, Lord Adonis, talked about representatives and Article 27. He is correct that data controllers who offer goods and services to or monitor the behaviour of data subjects in the UK will need to appoint a representative in the UK, but that is a cost to non-UK businesses, which is what the impact assessment is meant to address. He is also correct that there will be organisations in the UK that will be required as a matter of EU law to appoint a representative in the EEA. The ICO provides data controllers with advice on this obligation and will continue to do so. If controllers and processors based abroad are routinely processing data, it is right that they should be accountable in the UK and have a presence here because this is about maintaining the status quo as far as possible, not about rolling back protections for individuals, so the representative is a point of contact for the data subject as well as the supervisory authorities, such as the Information Commissioner.

[Lord Adonis]

I understand that the Minister is saying that my supposition is correct that after a no-deal Brexit a UK data controller doing business in the EEA will have to have a representative in the EEA as well as in the UK because this will be a reciprocal obligation—the Minister is nodding, so he agrees. The key point is that that is a significant burden on businesses. There is no way of getting away from it. That is a new and significant burden on UK businesses as a result of the regime put in place by this instrument, so why is it not flagged up in the Explanatory Memorandum to this order? Indeed, to take up the point made by my noble friend Lord Rooker, why did our Select Committees not point this out in their analysis of this instrument? My reading is that this is going to be a burden on a very substantial proportion of businesses which conduct business that involves data. Therefore almost all of them that do business on the continent will be required to have a representative on the continent for GDPR purposes which they do not have to do now and will not have to do if there is a deal because we would have continuity of the existing GDPR arrangements.

[Lord Ashton of Hyde]

It is true that they may be required to have representatives in the EEA, and it is a reciprocal benefit. The impact assessment looks at the specific requirements of the SI, not at the requirements of leaving the EU. The long-term consequences for business—

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[Lord Ashton of Hyde]

I thank the noble Lord for his view. It is clearly not for me to promise a Statement to the House. As I said before, I will agree to take back what he said and put both interventions to the House authorities. They may or may not agree. If they do not, I am sure that he will be able to raise it in an appropriate forum direct with the usual channels—both via his own Chief Whip and also directly with the Leader of the House and our Chief Whip. However, it is not appropriate, in considering an SI, to move beyond that to the wider method used by the House to address statutory instruments. Ministers certainly feel that they have been scrutinised considerably. I do not see that the noble Lord, or others who have spoken on this, are suffering from a lack of information with which to scrutinise these statutory instruments; they seem to be scrutinising fairly effectively as far as I can tell.

My response to the point made by the noble Lord, Lord Adonis, about the effect of representatives on business, is that the need to have a representative in the EEA is not as a result of this statutory instrument—it is as a result of EU law. Therefore, as I said before, the fact that we will no longer be part of the EU means that EU law will apply to us as a third country; until now, we have not been a third country.

[Lord Adonis]

I seem to have misunderstood. I thought we had got clarity on this situation. While we are a member of the EU, a company needs to have only one representative in the EU—if I have got that right—whereas under the no-deal Brexit scenario, if the company is based in the UK and does business involving data exchanges or transfer in the EEA, it will need to have two. That is a very important point. It is not the case that the status quo will continue: there will be a fundamental difference once we are outside, because then we will be a third country as far as the EU is concerned. The reciprocal arrangements mean that UK businesses doing business on the continent will need to have a data representative in the EU and vice versa, which is not the case at the moment in respect of the EEA. Is that correct?

[Lord Ashton of Hyde]

I do not think that is correct, but I will write to the noble Lord to confirm it.

[Lord Adonis]

This is a fundamental issue; it goes to the heart of these regulations. The House should absolutely not agree to these regulations without us being clear in this debate on whether there will be a requirement to have data representatives in both the UK and the EEA reciprocally in the event of a no-deal Brexit. That is fundamental. My reading of these regulations is that this will be a requirement and that is what I took the noble Lord to be confirming earlier in the debate.

[Lord Ashton of Hyde]

I think the noble Lord has mis-stated it. The reciprocity is that an EEA company will be required to have a representative in the UK and, likewise, a UK company will be required to have a representative in the EEA.

[Lord Adonis]

That is not the case at the moment, while we are in the European Union. That is the key point, is it not?

[Lord Ashton of Hyde]

That is correct, because we are currently in the EU.

[Lord Adonis]

There will be a fundamental and massive increase in burdens as a result; this is the key point that I am trying to get across, which is not in the Explanatory Memorandum at all. It is not necessarily a point about leaving the EU. If we have an agreement, with an implementation period and so on, there will not be that requirement until we leave the existing regime. These are fundamental issues, which should have been brought up well before this debate started. The fact that the noble Lord cannot even definitively confirm the arrangement is quite a serious problem for us.

[Lord Ashton of Hyde]

I am sorry, but I do not agree with the noble Lord. When we have the UK GDPR, which these regulations will bring into place, there will be reciprocity in the need to have representatives in each other’s countries. I agree that this will be a change. We do not need them at the moment because we are in the EU, but this will be a result of leaving the EU.

--- Later in debate ---

[Lord Ashton of Hyde]

I understand the point from the noble Lord, Lord McNally, that our new position will not be the same as being in the EU. If we were a third country, I would expect us to have less influence than if we were a member of the EU. I am not denying that; it seems obvious. He is absolutely right that the GDPR was influenced by the UK, not only by officials in the negotiations but specifically by the ICO, which is regarded as one of the leading regulators in Europe. Of course, it will not have the same position as it did if we are not in the EU; I take that point.

However, I do not base everything on just the political declaration, which may or may not have some influence. It is also that we have retained Article 50 of the GDPR. I cannot remember the exact words, but it is on the basis of that that the EU talks about international co-operation with third countries, so there is a mechanism. As I said to the noble Lord, Lord McNally, it will not be the same, but there are bases for international co-operation. The EU wants that to happen and understands that in things such as data protection, you have to have an international consensus. In fact, on that, it is more important to go beyond the EU and do it internationally. Other organisations should—and do—take views on this. I think we are at the start of the journey on control of cross-border data flows and it will provide a further basis to influence behaviour.

On adequacy, it is easy to ask for detailed timelines on when this will take place. It will not take place on exit day, because it is not possible for the EU to give an adequacy decision unless you are a third country. Preliminary discussions—which, as the noble Baroness, Lady Ludford, has indicated, may take some time—could begin now and we are ready to begin those discussions as soon as we can. We are already liaising with the European Commission—in fact, senior officials were in Brussels for talks last week—and we have liaised with member states on this subject. When the EU is ready to begin discussions, we are confident that we will be ready, but it is impossible to say how long that will take because, as the noble Baroness said, it is not a decision that is in our gift.

However, we start from a position of regulatory alignment on data protection. We implemented the GDPR and the law enforcement directive. We have also taken a GDPR approach on data protection to areas that were outside EU competence, such as law enforcement and national security, so we start in a very good position. In fact, it is such a good position that the UN special rapporteur on the right to privacy declared that the UK now co-leads in Europe and globally on privacy safeguards, and has made significant improvements in its oversight system since 2015. He said that,

“the UK has now equipped itself with a legal framework and significant resources designed to protect privacy without compromising security”.

It is important to note that there is a strong mutual interest in data adequacy.

The noble Lord, Lord Adonis, said that it is unsafe to pass this SI. I would like to point out what that would mean, if it is not passed and we have a no-deal exit. It would mean that we would cease to have properly functioning data protection law. The whole basis for adequacy decisions, which I think we all agree is very important, would go, because we would not be on a reciprocal basis—

[Lord Adonis]

Would the noble Lord agree that a better course would be for the Government to rule out no deal?

[Lord Ashton of Hyde]

I am talking about data protection. We want a deal; I think everyone agrees on that. The question is whether going into a negotiation saying that is a good way to approach the negotiation.

As well as the basis for adequacy going, there would be no transitional arrangements to enable lawful personal data to transfer to the EEA. The noble Lord, Lord Adonis, is concerned about business expenses; for that reason, that would not be a sensible way of going forward.

On the adequacy decision which my honourable friend Margot James mentioned, I do not have her remarks before me, but I believe she said something about two years. I think what she meant was that other countries’ adequacy decisions have sometimes taken two years, but we see no reason for it to take two years in the UK’s case, because, as I said, we are equivalent. I think I have answered most of the points that noble Lords raised.

Broadcasting (Amendment) (EU Exit) Regulations 2019

Lord Adonis Excerpts

Wednesday 6th February 2019 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank the Minister for introducing the instrument before the House this evening. I should declare my interest: I was the Shadow Minister in the other place for the Conservatives when the Ofcom Bill was taken through. I was an adviser to the Conservatives on the committee that covered film policy, and also devised a film policy for the Conservative Party that did not go very far but concluded that it was in their most favoured interest to have a tax break. I have been a beneficiary as a modest investor in films of which I am very proud—not many have been released in the cinema, but they have been broadcast.

The noble Lord, Lord Pannick, asked the very same question on procedure that I would have asked, but I have a very specific question for the Minister that I hope is relevant to this directive. Broadcasters and film producers have benefited from a very specific budget line, which is a legal instrument empowering finances for co-productions throughout the European Union, from which British producers and others have benefited. A number of Danish and Swedish co-productions have been shown on British television, which have been of huge interest to viewers in this country. Going forward, will we benefit from that budget line to the same extent and will co-productions still be viewed as a positive development? It will be of great interest, I am sure, to the film and broadcasting industry to know if that is the case.

[Lord Adonis (Lab)]

My Lords, I have a very short question for the Minister again on this issue of consultation. The broader issues were raised in the excellent speech made by the noble Lord, Lord Foster. On consultation, in paragraph 10.1, it says:

“Ofcom, as the audiovisual regulator, were consulted in drafting this instrument”.


Was Ofcom the sole body consulted in the preparation of this instrument? In light of the speeches that have been made in the House, I find that extraordinary, given the range of interests, companies and organisations affected. Will the Minister say why Ofcom was the only body consulted, given the broader themes that have come out? It is extraordinary in light of the speech made by the noble Lord, Lord Foster, to read paragraphs 7.2 and 7.3 in the Explanatory Memorandum. You would think that you were talking about two entirely separate sets of proposals. Paragraphs 7.2 and 7.3 make it sound as if these changes from country of origin to country of destination are the purely technical and unavoidable dotting of commas and crossing of “t”s as a result of leaving the European Union. Only as the speech made by the noble Lord, Lord Foster, unfolded did we realise that these are fundamental changes to the whole broadcasting regime in Europe that could have extensive consequences. In that case, why was Ofcom alone consulted?

[Baroness Neville-Rolfe (Con)]

I rise briefly to support my noble friend the Minister. It is a difficult situation in broadcasting, and I think it is sensible and creative of DCMS to make use of the Council of Europe treaty. Whatever your views on Brexit, we need to be ready for exit day. This ensures that 50 or 60 channels that will continue to come in from the EU can be regulated against Ofcom standards from 29 March, or at the end of the transition period. Along with the noble Lord, Lord Adonis, I would be interested to hear who has been consulted about the detail of this. There will be scope in the future to look at the longer-term arrangement. As an ex-Minister and ITV director, I look forward to that, including looking at the future of new broadcasting methods, video on demand, the effect of social media, and so on.

--- Later in debate ---

[Lord Ashton of Hyde]

My Lords, I am very grateful for all those interesting points and particularly for the speed at which they were delivered. We might set a record on this SI, with any luck.

[Lord Adonis]

Does the noble Lord think we are going too fast? We can certainly slow down.

[Lord Ashton of Hyde]

I cannot always keep up with the noble Lord, but I will try. I am very grateful, as I said in our last outing, for his interest in DCMS matters, which is fairly new.

I shall start in a fairly random order with answers to some quick questions before we get on to some of the points that the noble Lord, Lord Foster, made. The noble Lord, Lord Pannick, asked whether non-ECTT EU countries would be required, therefore, to be licensed in this country. The answer is yes: we have identified 50 to 60 channels which may need a licence from Ofcom in order to continue to be received in the UK. These are mainly specialist minority channels, religious channels and adult services.

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

Lord Adonis Excerpts

Wednesday 23rd January 2019 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, digital infrastructure is central to the future of the UK economy. People now rely on being connected through calls and online services more than ever, whether at home or on the move, while communications networks underpin critical areas of the economy. This dependence will only grow with the deployment of new technologies such as 5G and full fibre, which will support innovative new services across manufacturing, logistics, agriculture and healthcare.

The current regulatory framework has created the right conditions for the improvement of connectivity in the UK. It has brought about regulatory certainty and long-term stability for the sector, creating a balance between robust competition, protection for consumers and innovation. However, that framework derives from an EU regulatory framework consisting principally of a number of directives which have been implemented in domestic law.

The UK’s withdrawal from the EU gives rise to deficiencies in that legislation if we leave the EU without an agreement in place. These regulations address those deficiencies and so provide clarity and certainty for communications providers and for the regulator, Ofcom. That is why this statutory instrument is before the Committee today.

I should make it clear at the outset that this SI is concerned with the core of the regulatory framework, in particular the Communications Act 2003. Other matters of relevance to the sector, such as legislation on cross-border data flows, mobile roaming and spectrum decisions, are addressed by separate instruments.

It is also important to observe that the EU framework has already been implemented in domestic law. We are not concerned here with incorporating swathes of EU legislation into UK law, but with making corrections to ensure that the law continues to function appropriately. Furthermore, the scale of those corrections is limited. While the EU framework aims to establish a harmonised telecoms market, that market is policed by national regulatory authorities in each member state, with the European Commission having only a supervisory role.

This SI is intended to ensure that Ofcom can continue to carry out its existing functions effectively. It does not transfer a plethora of new functions to Ofcom or the Secretary of State.

The Government published a technical notice on 13 September 2018 which set out 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”.

This SI is an important part of ensuring that continuity and certainty.

The domestic telecoms framework establishes key regulatory principles such as: the promotion of competition between operators; the protection of consumers of telecoms services; the efficient use of radio spectrum, and the independence of the regulator and its functions. As I have said, these rules derive from a set of EU directives and regulations which have already been implemented in UK law, predominantly in the Communications Act 2003 and in the Wireless Telegraphy Act 2006.

I have said that this instrument makes mainly minor and technical amendments to ensure the continuation of the regulatory framework. An example of such an amendment is the removal of a duty on Ofcom to ensure that its activities contribute to the development of the European internal market, set out in the Communications Act 2003.

[Lord Adonis (Lab)]

My Lords, if the Minister will forgive me—

[Lord Ashton of Hyde]

May I continue, if the noble Lord does not mind? My speech is a tightly woven whole, and it might answer some of the questions he is coming to. Later, I will of course answer as many questions as I can.

I will concentrate in the remainder of this speech on those corrections which I expect to be of the most interest to noble Lords. I turn first to the existing requirements on Ofcom to notify, consult or provide information to the European Commission and to other EU bodies.

Ofcom is required to consult with the Commission, the Body of European Regulators for Electronic Communications—BEREC—and the national regulatory authorities of other member states before imposing certain types of regulatory measures. In the case of certain proposed remedies, if the Commission expresses reservations, there is a “standstill” period during which Ofcom must co-operate with the Commission and BEREC. In certain other cases, the Commission can veto the proposed measures.

The Commission’s role is to ensure compliance with the EU regulatory framework and a harmonisation of the approach taken by EU regulators, in order to develop the single market. After EU exit, a power for the Commission and BEREC to scrutinise Ofcom’s decisions in this way will no longer be appropriate, and so this instrument removes these requirements.

Ofcom will continue to need to comply with procedural statutory requirements, including consultation, before it takes regulatory decisions. Once taken, those decisions remain subject to the same scrutiny as today—in particular, the right for affected parties to appeal to the Competition Appeal Tribunal.

EU law also requires Ofcom to provide information to EU bodies. Again, the information requested by EU bodies is generally provided to enable the European Commission to monitor compliance with the European framework or to ensure the harmonisation of measures across the EU. This will not be required when the UK is no longer part of the EU. However, sharing information with the Commission, EU bodies or other regulators in the EU may remain beneficial to the UK after exit—it can help foster co-operation on regulatory matters. That is why this instrument makes amendments which clarify that Ofcom may notify or share information where it considers it appropriate—for example, regarding network security breaches.

Other amendments have been made to ensure the retention of protections for consumers and to enable the regulatory framework to develop in a way that will bring about consistency for industry. In relation to consumer protection, Ofcom has put in place various rules to protect consumers of telecoms services, some of which implement specific requirements of EU law. This instrument makes provision to ensure that Ofcom is able to maintain consumer protection measures which are currently required under the relevant EU directive.

Turning now to corrections that will bring about consistency for industry, Ofcom has existing powers to regulate communications providers with “significant market power”, or SMP. SMP regulation is based on competition law principles, as set out in EU competition law, and enables Ofcom to impose regulatory remedies on providers with SMP to address competition issues in a particular market. This instrument amends the Communications Act 2003 to ensure that, after exit, references to dominance in a market are to be construed consistently with the concept of market dominance in the Competition Act 1998 rather than EU competition law.

This approach ensures that there is a single concept of market dominance across UK competition law post exit. It ensures consistency with the amendments to the Competition Act 1998 which this House approved on 4 December. In other respects, Ofcom’s powers to identify dominant players in the market and to make remedies will remain the same as pre-exit.

Telecoms legislation also includes certain directly applicable EU regulations, which require correction. This instrument revokes the regulations that provide for financial assistance from the EU’s Connecting Europe Facility to support telecoms, including funding to install wi-fi equipment in public spaces. This recognises that this legislation concerns EU funding mechanisms that cannot be retained simply by converting them into domestic law.

In the event of a no-deal exit, UK organisations will no longer be eligible for such funding. However, even if the EU stops making payments to UK organisations delivering CEF-funded projects after exit, the government guarantee will support UK organisations to meet their obligations—including continued project delivery—until completion. The HMG guarantee will also cover successful applications submitted to the EU before exit day but where the award was made after exit.

This instrument also makes corrections to the eCall legislation so that it continues to operate effectively after exit. eCall is an initiative established by the European Commission as part of the intelligent transport system project. It enables a mobile transmission to be sent to emergency services by a vehicle when it is involved in an accident. The eCall legislation refers in parts to technical standards. This instrument confers a legislative power on the Secretary of State to make provision to replace the standards listed. This will enable the standards to be updated, should this be necessary, to ensure continued public safety and effective operation of the eCall technology.

Finally, this statutory instrument revokes the 2009 EU regulation establishing BEREC, the body of national regulators from EU member states. Ofcom is currently a member. The main purpose of BEREC is to ensure the consistent implementation of the EU regulatory framework. BEREC’s membership is therefore limited to the regulators of EU member states. Ofcom will not be a member after exit, but as the UK will no longer be part of the EU regulatory framework, this will not have significant effects on regulation in the UK.

However, the Government and Ofcom agree that it may well be beneficial to have a continued exchange of regulatory best practice with other regulators and an exchange of information about telecoms matters more generally. The new BEREC regulation provides that BEREC participation should be open to third countries where appropriate agreements are in place. Ofcom intends to seek observer status after the UK has exited the EU, in the way that other regulators of states in the European Economic Area and EU candidate countries currently participate.

We are committed to ensuring that the regulation of telecoms markets continues to function appropriately after exit, providing regulatory certainty and the right conditions for continued investment and development. I commend these regulations to the House.

[Lord Adonis]

Before the Minister sits down, he said that he would come to my points later but he did not—although I accept that his speech was carefully woven and made a coherent case for the regulations. However, for the purposes of the Grand Committee, by far the most important issues in the Explanatory Memorandum are raised in paragraphs 10.2 and 10.3. These show that there were quite significant differences between the Government and some consultees on the shaping of the regulations and, in particular, whether there should be continuing obligations for consultation and reference in respect of decisions made by Ofcom as regulator, replicating the current powers and role of the European Commission. These look to be significant issues and the Minister did not mention them at all in his remarks. It seems to me to be important for the Grand Committee to understand what the consultation was, why the Government decided not to go with the view that there should be a regime that replicates that of the European Commission and why the Minister believes that we should go with the Government’s view rather than that of the consultees, who, I should say, are not named in paragraphs 10.2 and 10.3 so it is very hard for us to know who they are. Is this a matter on which we should seek further information and debate before we agree this regulation?

[Lord Ashton of Hyde]

I am very happy to answer that; it is a reasonable question. The Government undertook extensive consultation with the telecoms industry, the regulator and other interested groups such as consumer associations. I shall start with the telecoms industry and come to why we should accept what was said.

The Broadband Stakeholder Group assisted us in organising our consultation, which has continued from summer 2017 until now, so it was over a long period, and it counts all the major providers of telecoms and broadband services in its membership: Arqiva, BT, Cisco, CityFibre, EE, Ericsson, Gigaclear, Openreach, Sky, TalkTalk, 3, Virgin Media, Vodafone and Wireless Infrastructure Group, and also from the sector were included Tech UK, INCA, which is the body representing UK alternative smaller telecoms infrastructure providers, consultancies, law firms, the BBC, Avanti, a satellite company, and the Federation of Communication Services. They were all consulted, and, as the noble Lord said, the main area of interest concerned EU consultation. This was discussed from summer 2017 until October 2018.

The main difference is that the function of EU supervision is really to promote the harmonisation of the EU single market. Obviously, that is not appropriate if indeed we leave the EU. The appeals process to the decision that Ofcom will make continues, so the appeals tribunal will still exist and operate in exactly the same way, and so will the administrative court, which enables the telecoms industry to go to judicial review.

In fact, the European Commission has never once vetoed an Ofcom decision, so we do not think it is of huge significance but, as I said, the main reason for not replicating that is that it affects European harmonisation rather than the national regulatory system.

[Lord Adonis]

I am very grateful to the Minister, but will he confirm that many members of the stakeholder group disagreed with the line that the Government are taking, which is not to have a continued consultation role with the European Commission? That is an important issue which is not properly brought out in these papers. The reason they did, which I take to be implicit in paragraph 10.2, is that they do not think that Ofcom should have unfettered power to act without consulting appropriate parallel competition regulatory authorities. Specifically mentioned in paragraph 10.2 is the Competition and Markets Authority, but I take it that the European Commission is seen to be a parallel body from that point of view. Will he expand further?

[Lord Ashton of Hyde]

Yes, the body they would appeal to is part of the Competition and Markets Authority; it obviously has a completely different dynamic to the European Commission, which is there to harmonise the single market. It is true that they expressed those views, and it is probably fair to say that the sector would like as many avenues for appeal as possible—it is regarded as a reasonably litigious sector—but it was felt that because that was for harmonisation, it was not appropriate.

I can say that the industry, including that part of the stakeholder group referred to, is keen that the SI should be taken forward, because it wants clarity and a consistent regulatory framework. To that extent, it is happening.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

The Question is—

[Lord Adonis]

Does the Minister agree—

[Baroness Goldie (Con)]

Order.

[Lord Adonis]

I am still on my feet.

[Baroness Goldie]

Order, Lord Adonis.

[Lord Adonis]

If the noble Baroness will forgive me, I am still on my feet, so I will not give way to her. Will the Minister agree to publish—

[Baroness Goldie]

I am sorry. The Minister is not going to make any response, Lord Adonis, until you take your seat and allow me to make an observation.

[Lord Adonis]

The noble Baroness cannot make an observation unless I give way to her and I am not giving way to her, if she will forgive me.

Will the Minister agree to publish the minutes of the stakeholder group that he has referred to? It seems to me important in our proceedings that we understand what the consultation responses in fact were, as they were clearly at variance with what the Government have done. Will the Government do that before this matter comes before the whole House?

[The Deputy Chairman of Committees]

It might be helpful if I put the initial Question, which is that the Grand Committee do consider the draft Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019.

[Lord Foster of Bath (LD)]

My Lords, following that interesting exchange, I pick up where the noble Lord, Lord Adonis, began, by pointing to what he described as the Minster’s “carefully woven” speech. I confess that I do not quite agree with that definition, as the speech appeared to be a cut-and-paste version of the speech that was given by the Minister in the other place, Margot James, on 7 January. Having gone through that speech, I noticed that odd words were missed out in the noble Lord’s version. In the other place, the Minister thought that there may well be a case for Ofcom remaining involved in BEREC—the word “well” was missing in the noble Lord’s version.

More important, we should recognise that over the last 30 years the industry that we are dealing with, including within it the telecoms industry, has developed from a monopoly situation to a highly competitive market, with annual revenues now in excess of £40 billion. It therefore forms an important part of our economy. Because of the way in which the industry is intrinsically linked to the European Union, there is no doubt in my mind that Brexit will have a significant impact on it, not least because a number of UK providers operate in other member states but have headquarters in the UK. I also believe that Brexit will have a significant impact on the regulatory regime under which those providers operate.

The Minister said, as indeed did Margot James in the other place, that the draft regulations will provide “clarity and certainty” both for the operators and for the regulator. I am somewhat inclined to disagree with that view. Indeed, the technical notice to which the Minister referred, which was issued way back on 13 September last year, explained that, irrespective of the outcome of the negotiations between the UK and the EU, the regulations would not have a significant impact on how businesses operate under the telecoms regulatory framework or on how consumers of telecoms services are protected within the UK. That claim is highly questionable.

Before I turn to those impacts, I want to seek clarification on consultation, the issue that has occupied a few minutes between the noble Lord, Lord Adonis, and the Minister. In the other place, the Minister for Digital and the Creative Industries, Margot James, said:

“All the changes that the draft regulations will make have been considered on a case-by-case basis and discussed with the regulator and stakeholders where possible”.—[Official Report, Commons, First Delegated Legislation Committee, 7/1/19; cols. 3-4.]


One has to assume that she believes that, as the noble Lord said only a few minutes ago, extensive consultation has taken place. The noble Lord told us about consultation with the Broadband Stakeholder Group and listed its membership. Interestingly, he did not mention the other part of the equation, which relates to the telecoms industry. There is a major body—the UK Competitive Telecommunications Association, or UKCTA—which represents very many of the key stakeholders in that field: Virgin Media, Vodafone, AT&T, the Post Office, Sky, TalkTalk; I could go on. If extensive consultation has taken place, one would assume that that key body, UKCTA, has been involved in the discussions. Yet I have received a note from UKCTA—I would be grateful if the Minister could explain whether this is correct—which says:

“UKCTA has not had any advance notice of, or discussions about, the SI despite regular meetings with DCMS, the most recent being on Monday 14th January”.


Can the Minister explain whether what I am told is incorrect, and if it is correct, can he explain why, despite the Government having claimed that there has been extensive consultation, this important body in the industry and the sector has not been consulted? On the impacts of these draft regulations, which the Government say they do not expect to be significantly—

[Lord Adonis]

The noble Lord has just raised an extremely important point about consultation. As he knows, in the discussions which the Grand Committee has been having on these no-deal regulations, the issue of inadequate consultation has been a running theme. As we probe beneath the regulations, significant issues of substance come to the fore when the Government tell us that the changes that are being made are technical. In fact, the actual change brought about by this regulation is substantial, because it entirely removes the European Commission from the whole process of deciding on competition issues.

The noble Lord is much closer to this sector than I am, and he has clearly had contact with the UK Competitive Telecommunications Association—I have to confess that I was not even aware of the existence of that body until he mentioned it, which is a huge lacuna in my understanding of public affairs. The noble Lord told us that it had not been consulted but that he has been speaking to it. Can he tell the Grand Committee what its view is of these regulations? Clearly, that is a material point, but it will also be a material point when the House itself comes to consider these regulations, also in the light of the further consultation responses which the Minister has kindly agreed to publish after the meeting of the Grand Committee.

[Lord Foster of Bath]

I am grateful to the noble Lord for his intervention. I assure him that I am more than happy to help to resolve the lacuna he has, and I will go even further and share with him a few thoughts that that association has about the draft regulations before us. I will take one particular one, which is its reaction, and the reactions of many other people, to the Government’s claim that the changes envisaged in these draft regulations will not significantly change the protections that are currently enjoyed by consumers of UK telecoms services. That claim is disputed, and I am keen to hear the Minister’s reaction to that, particularly in relation to the fundamental question of who will now supervise the regulator.

The UK regulator is Ofcom, which is probably the most highly regarded regulator throughout the whole of the European Union. It is a regulator in which most of us have great confidence, but from time to time it can make questionable decisions. Within the EU arrangements there are processes which provide for oversight of decisions of all national regulatory authorities, including Ofcom. These processes are covered under Regulation 7, particularly 7(1). As the Minister knows, they ensure oversight of a regulator’s decision by the Commission, and peer review by other EU regulators—in this case by members of BEREC, which the Minister has already referred to: the Body of European Regulators for Electronic Communications.

Post Brexit, the EU checks and balances against bad regulatory decisions will clearly fall away, yet safeguards to ensure regulatory certainty, and safeguards against bad regulatory decisions, are critical to ensuring that businesses in this sector can have the confidence to make major investments. Can the Minister provide a clear explanation of how, under these draft regulations, Ofcom will be held to account post Brexit? Can he confirm that, for instance, the Digital Economy Act, which went through your Lordships’ House some while ago, has weakened the telecoms appeal regime and that all that appears to be left for those who believe that an Ofcom decision is wrong is the judicial review process? As the Minister said, in certain cases there might also be the opportunity to go to the Competition Appeal Tribunal, but in the majority of cases it would appear that we are left with only judicial review, which, as noble Lords know, has undergone some quite significant and worrying changes in recent times. Therefore, does the Minister agree that this is a significant diminution of the protections against bad decisions by the regulator, however infrequently they are likely to occur?

--- Later in debate ---

“There are also more general benefits from participation in EU networks since they provide a forum in which we can cultivate and sustain bilateral relationships with our EU peers, at both senior and working levels, to exchange experiences and share best practices”.

[Lord Adonis]

My Lords, the noble Lord is making a very powerful argument about the weakness of consultation and the problems that will be caused by these regulations. Is he suggesting that Ofcom itself said to him that it was not content with these regulations in their current form and that it is worried about the regime that will apply after a no-deal Brexit? That would be a very serious state of affairs if that were the case.

[Lord Foster of Bath]

That would be taking the interpretation of the conversations and correspondence I have had with Ofcom a step too far. I do not think that Ofcom feels that it is its place to comment on the rightness or otherwise of the regulations. However, it is pointing out very clearly that when these regulations come into force, its ability to do the work to the level that it wishes will undoubtedly be diminished because of its inability to influence future EU legislation which will have a significant bearing on companies that operate in this country. Equally—I shall come on to this in a second—its ability to engage in discussion and debate with fellow regulators in this field across the 27 EU countries will depend on what happens now.

I hope that the Minister will agree to extend his remit just a little in this discussion. It would be enormously helpful to hear from him what he understands the situation will be not only in relation to a no-deal Brexit but, if the Prime Minister is successful in achieving her deal, what it will be during the implementation period and then after it. So there are three possible scenarios in which it would be helpful to learn from the Minister how he thinks the arrangements will operate.

It might help him if I shared with him my own understanding of what the situation is likely to be and possibly made his response much briefer, because he could then say that I have got it right. In the debate on 7 January in the other place, Margot James acknowledged that,

“the Government recognise that Ofcom would benefit from the continued exchange of best practice with other regulators, and from the exchange of information about telecoms matters more generally”.

She went on to say:

“Ofcom intends to seek observer status after the UK has exited the EU”.—[Official Report, Commons, Delegated Legislation Committee, 7/1/19; col. 6.]


Can the Minister confirm that this is a huge oversimplification of the process that now applies in the event of a no-deal Brexit? In the past, it would have been a relatively simple matter for Ofcom to seek observer status. Under the rules that applied until December 2018, just a month ago, BEREC could simply have invited Ofcom to have observer status and that would have been fine, but the BEREC regulations have changed and are now very different. I am sure that the Minister will confirm that, under those regulations, the only possibility of Ofcom having even observer status on BEREC is if the European Union has agreed to it. That would require the UK Government specifically to negotiate such an arrangement with the EU. I would be grateful if the Minister could confirm that that is the case, because it is very different from saying that Ofcom will seek observer status. The Government will have to engage positively in negotiations with the European Union to bring that about.

Can the Minister also confirm his understanding of the position of Switzerland? It is a very good example, because its regulator was an observer member of BEREC. With the change in rules in December 2018, it no longer has observer status and the Swiss Government are currently in extensive negotiations with the European Union to see whether agreement can be reached for that to happen—there is no certainty that it will, any more than there will be certainty, for reasons that I shall come on to in a few minutes, about an agreement on this matter being reached between the UK Government and the European Union.

I accept that the Minister is slightly stretching the issue, but I hope that he will confirm that under transitional arrangements of the withdrawal agreement—if the Prime Minister is successful in getting her deal through—the key provision is Article 128 along, in part, with Article 8, which states clearly the UK has no right to participate in decision-making or governance of any EU bodies and no right to attend meetings. During the transition period, there will no opportunity for Ofcom to be involved—with, however, one caveat.

The caveat comes in two parts. It says that there are exceptions: Ofcom may be allowed to pop along for the odd meeting and to participate in discussions but not have a vote, but only in the very limited case where BEREC is discussing a specific case that relates to the United Kingdom or if, by having Ofcom present, it would be beneficial to the EU as a whole. That is a decision for it to make. I would be grateful if the Minister could clarify the point. My understanding is that if the Prime Minister is successful in getting a deal, during the transition phase, the position of Ofcom will be even worse than it would be if it had observer status. That, I believe, would be significantly detrimental to the UK. Post Brexit, if the Prime Minister is successful with her deal, clearly the situation will be somewhat uncertain because it will depend on the interpretation of and success of the negotiations. However, the draft political declaration covers the issue in paragraphs 33 to 35 and 40 to 42. It would be helpful to hear the Minister’s views on how he thinks that this will work out.

My final point is simply this. All of this is dependent on an agreement. Whether we are in the situation of a no-deal Brexit as regards the regulations before us or even if the Prime Minister achieves her deal and we have a transition period with an exit being subject to whatever arrangements have been made, it will all depend on whether the UK has achieved a data adequacy agreement with the European Union. Nothing can happen unless we have one because it is absolutely crucial. I could read out to noble Lords many learned articles about whether it would be possible for the UK to get a data adequacy agreement easily or even to get one at all. For instance, criticisms are already raging about the impact of the investigatory powers legislation, the GDPR regulations, the e-commerce and e-privacy regulations and so on. Whether those will enable us to get a data adequacy regulation or prevent us doing so is very unclear indeed.

I have raised some important points and I look forward to the Minister’s response. Above all, however, he must give us a clear understanding of the Government’s view about the likelihood of us getting a data adequacy agreement. The Minister in the other place made it absolutely clear that if the Prime Minister gets her deal and we have a transition period of almost two years, it will take the whole of those two years to get agreement on data adequacy. She went on to say that if we have a no-deal Brexit, the chances are that getting such an agreement will take even longer. Does that not mean that all of the claims that there will be no significant impact as regards these regulations on people in the UK, both service providers and the regulator, really do not stack up?

[Lord Adonis]

The noble Lord has referred to the data adequacy agreement, which is clearly an important issue. What is his understanding of what the impact would be on the United Kingdom if we did not secure such an agreement in the event of a no-deal Brexit? Presumably it will be quite a tall order to get such an agreement in the next eight weeks.

[Lord Foster of Bath]

Let me give the noble Lord one example. I said earlier that for Ofcom to become a member of BEREC, it is no longer a case of it going to BEREC and saying, “Please can we have observer status?” It will require a negotiated agreement between the UK and the EU. In my view and those I have spoken to about this, the agreement will not be reached unless we have an adequacy agreement. If the adequacy agreement is going to take at least two years and may not be achieved anyway, then during the whole of that period there is no way of Ofcom performing any role whatever within BEREC, for example.

[Lord Adonis]

Does the Minister want to respond to the noble Lord, Lord Foster, before I and my noble friend speak?

[Lord Ashton of Hyde]

Is that acceptable to you? He has asked so much.

[Lord Adonis]

Provided it is clear that we can speak after the Minister.

[Lord Ashton of Hyde]

I do not think that I can stop the noble Lord speaking whenever he wants.

[Lord Adonis]

I am delighted to hear it.

[Lord Ashton of Hyde]

The noble Lord asked a lot of questions. Underlying it all is the fact that this SI is there in the event of no deal. Of course, it is not surprising that references to and some of the effects of being in the EU are going to change. The essential point of the SI is that telecoms regulation is performed by national regulatory authorities with EU supervision. The issue is whether the supervision element is significant. The whole point of the SI is to make the regulatory system the same after we leave. The noble Lord made a lot of mileage out of whether we would remain a member of BEREC—

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[Lord Ashton of Hyde]

I was going to read out that exact clause to make my point. If it is,

“in the interests of the Union”,

or where the discussion concerns acts addressed to the UK and its citizens, it provides that the UK will continue to participate in EU agencies and bodies. I think that those two things apply and, as I was saying, the reason why I think that is the mutual benefit Ofcom has. It is a world-leading, well-respected regulator. However, I accept that it does not have the right to do these things. That is not surprising, because we are leaving the EU. Why should it have the right? I think that we have come to stalemate on that point.

The noble Lord mentioned the fact that BEREC rules have changed and that it is not just a question of having been invited to be an observer. He is absolutely right: either there has to be an agreement with the EU as part of a future economic partnership or a bilateral agreement can facilitate it. Under that facility, which the EU has deliberately put in the new BEREC regulations, Ofcom can—under a bilateral agreement—be a member of the board of regulators, the working groups and the management board.

I will move on to data adequacy later. The important issue that both noble Lords mentioned is, crudely put, whether the regulator will still be regulated. The European Commission does not regulate Ofcom. It has a supervisory power, which is principally designed to ensure the consistency of regulatory practices across the EU, in order to contribute to the development of the single market. It is quite understandable that the EU should want to harmonise national regulators to facilitate the single market. Of course, if we leave the EU, that will no longer apply. The role of the European Commission in telecoms regulation is unique and should not be compared to EU scrutiny powers over other UK economic regulators. There is sufficient accountability in the domestic system, because Ofcom decisions can be challenged in the courts—of course, the primary area in which they are challenged is in the statutory appeal before the Competition Appeal Tribunal.

In fact, the withdrawal Act is not a vehicle for policy changes, as I am sure the noble Lord, Lord Adonis, will remind us. We think that, under the terms of the Act, recreating a domestic equivalent for the oversight of Ofcom’s decisions will be considered going beyond what is appropriate to correct the deficiency.

[Lord Adonis]

I am grateful to the Minister, but does he not accept that this could be argued both ways? It is clear from reading the materials available to me that one could say that replicating the status quo means having some consultation and appeal role for a competition body above Ofcom, which is the role currently played by the European Commission, or one could take the Government’s view that there should not be such a role. It appears to me that the reason why this has happened is twofold: first, because the whole government mindset is to have as little Europe as possible—as a matter of prejudice the Government do not want any continued consultation role for the European Commission, even if that might be in the best interests of Ofcom and the robustness of our regime, given how intertwined our companies and industries are—and, secondly, because Ofcom would obviously prefer not to have any oversight. Any regulator in Ofcom’s position would much rather not have somebody else marking its homework. It appears that the Government have been unduly swayed by Ofcom in drawing up these regulations, particularly in the light of the observations from the noble Lord, Lord Foster, that key industry groups have not even been consulted.

[Lord Ashton of Hyde]

I do not think that you can argue it both ways. Of course we will not be involved in the EU supervision, given that the whole point of the supervision is to affect the European single market, of which we will not be a part. To set up a completely new supervisory authority, with a completely different function from what it had before, would, I think, be beyond the powers of the withdrawal Act—it will obviously be different if we are not talking about EU supervision to maintain regulatory harmony.

I come to both noble Lords’ points about the consultation, because I do not believe that they are true. The noble Lord, Lord Foster, made a reference to the UKCTA—its members, by the way, are also members of the BSG—and read out the names of a number of companies that are part of the group which facilitated the round tables. There may be a disagreement with us, as my information is that it was asked to at least one of the round tables. It has met DCMS and has had the opportunity to raise concerns about the SI—as he said, it met DCMS only very recently—and of course our technical notice explains some of the problems and issues about telecoms regulation when we leave the EU, so it is not as though it did not mention it. Therefore, some of that body’s members have sat round the table with DCMS; they have been asked. There is no requirement to send the draft SI to industry, but it had every opportunity to contact DCMS and every opportunity to raise it at the meetings that the noble Lord referred to. We have ongoing and good relations with all parts of the sector, so there is absolutely no reason why, if there is a problem, it could not be raised with DCMS. I do not accept that in this case the consultation has been insufficient. We have had regular and continued consultation with the industry, not only with the telecoms sector but also with consumers and Ofcom itself.

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On retaining the same level of consumer protection, the consumer protection part of the legislation is established by the general conditions set by Ofcom, which apply to communications providers. This does not alter Ofcom’s powers to set general conditions to protect end users. There is no reason to suppose that it would change consumer protection after exit. I hope that that answers most of points raised by noble Lords.

[Lord Adonis]

My Lords, the Minister has done a conscientious job of explaining the regulations and dealing with the concerns raised by the noble Lord, Lord Foster. However, I did not greatly care for the intervention at the beginning by the noble Baroness, Lady Goldie, which sought to prevent me from posing questions to the Minister. I hugely respect the noble Baroness, but it is important to understand what is going on in this Grand Committee. We are making significant changes to the law. It is true that we are doing so in an emergency situation because we have to agree things in the next eight weeks in case the United Kingdom crashes out of the EU without a deal, but we should not minimise the fact that we are making significant changes to the law. Because of the emergency nature of events, we are doing this by means of statutory instruments, but the fact that these are called statutory instruments does not make the changes to the law less substantial.

The changes to the law involved in this one statutory instrument would, in the normal course of events, require primary legislation, with Second Reading, Committee, Report and Third Reading. We would have ample opportunity to engage with the Minister, move amendments and probe issues around consultation and appeal mechanisms and so on, which we have been debating across the Floor. Because of the constraints of the statutory instrument process, all this is being done by means of one statutory instrument, with one debate in Grand Committee and potentially another in the Chamber.

When we went to the Chamber on the venture capital regulations yesterday, I had expected that the Minister, the noble Lord, Lord Bates, would present the regulations to the House in the light of the debate that had taken place in Grand Committee and to reply to that debate. I thought that he would do the same on the interchange regulations; the noble Baroness, Lady Bowles, who is in her place, had raised a lot of significant policy issues on those regulations. But things did not happen at all as I had expected. What happened was that the noble Lord, Lord Bates—

[Lord Ashton of Hyde]

The noble Lord is kind to let me in. I think he is in danger of making a generic speech here. In this SI, we are retaining the status quo in telecoms legislation. We are trying to maintain EU law, which has been implemented in UK law. I accept that there are changes—for example, the European Commission is mentioned in relation to supervision—but obviously those changes will result from our coming out of the EU. I do not accept that, in this case, we are making substantive changes. I suppose that one area that one could argue we are changing is giving the Secretary of State powers to amend regulations so that the eCall system works. That is clearly to everyone’s benefit who drives or travels in a car. That is one area where we are possibly giving the Secretary of State more powers, but I do not accept that there is a whole swathe of legislation that normally would have required to be made through primary legislation.

[Lord Adonis]

I am grateful to the Minister for that intervention, but I note that the issues raised in paragraphs 10.2 and 10.3 of the Explanatory Memorandum indicate that significant players in the industry do not accept the statements that he has just made. They do not accept that this is the best way of transposing the status quo into a new regime following a no-deal Brexit. On the contrary, as I will explain in a moment, they think that the Competition and Markets Authority should have replicated the existing role of the European Commission, but the Government decided not to do that. I accept that the Minister has said what he said in good faith, but what he said is not the view of a large number of players in the sector.

[Lord Ashton of Hyde]

The noble Lord is surely not suggesting that every time we have a consultation we should agree on everything with every person who is consulted.

[Lord Adonis]

My Lords, the problem with this situation is that we do not know what happened in the consultation, because nothing has been published. Let me read out what paragraph 10.1 says, so that it goes on the record. Under the heading “Consultation outcome”, it says:

“Informal consultation has been undertaken with Ofcom, whose views have been taken into consideration in development of the instrument”.


In the case of informal consultation, nothing is published. Indeed, I am anxious to read the letter that Ofcom sent to the noble Lord, Lord Foster, because it will be the only thing that has come out in public saying what Ofcom actually thinks. For the process of making the law, the right course to pursue would have been to have had a formal consultation, with Ofcom’s formal view, but the Government did not do that. At the moment, we are legislating in the dark.

[Lord Ashton of Hyde]

Ofcom has been consulted all along. It worked with DCMS in drafting the SI. It is keen to retain its independent status. It will not come out and say, “This is a joint DCMS/Ofcom SI”, but it has been consulted all the way along. It was instrumental in the drafting of the SI.

[Lord Adonis]

I do not for a moment expect that Ofcom should be required to agree. On the contrary, it is the job of the Government and Parliament to decide what the law and the regulations will be. However, it is our responsibility as parliamentarians to be fully informed about what the stakeholders think. Nothing has been published. The consultation with Ofcom has been informal. We have no details of the consultations referred to in paragraph 10.2. The noble Lord, Lord Foster, told us that the UK Competitive Telecommunications Association, which some of us had never heard of before, was not consulted. The Minister says that it was consulted. This issue of what in fact happened is still not resolved across the Grand Committee. The whole situation is unsatisfactory.

To complete the broader point that I was making in respect of the noble Baroness, Lady Goldie, I do not think it reasonable to curb the rights of noble Lords to question Ministers on fundamental changes to the law of the kind that are being proposed simply because it is inconvenient to the Government, but that is what the noble Baroness and other Ministers have sought to do.

[Baroness Goldie]

I thank the noble Lord for allowing me to intervene. I am interested in his surmise, because he gave me no opportunity to say why I wanted to intervene. In fact, there was a procedural issue to be addressed by the Chairman. I say to the noble Lord that there are rules, practices and courtesies in this House, which are listed in the Standing Orders and detailed in the Companion, whose purpose is to ensure that opportunities exist for full debates on important issues such as this. I would merely have observed earlier that the noble Lord should be careful not to stray into repetition, which Standing Orders do not permit, and be careful not to be accused of speaking on multiple occasions. I think I am not alone in being unclear about whether he is currently making a speech or another intervention. I merely ask him to observe the courtesies which everyone else in the House tries to observe for the mutual benefit of the House and all Members.

[Lord Adonis]

I am very grateful for the noble Baroness’s explanation but I do not believe that I was in any way infringing the courtesies of the House in seeking to question the Minister. The job of a Grand Committee is to elicit from Ministers information which is relevant to our consideration of these matters. However, we do not have the equivalent of a Committee stage in which we can propose amendments and hear explanations from the Government, which can then be questioned, so the only mechanism that we have in Grand Committee is to ask direct questions before the Minister sits down. Therefore, I do not accept for a moment that I was infringing the courtesies, the Standing Orders or the reasonable procedures of the House.

Unfortunately, it has become a pattern in Grand Committee for Whips to seek to curb proper debate and discussion. They are trying to railroad through these significant changes to the law with the minimum debate and the minimum questioning possible. I absolve the Minister from any intent to refrain from giving information, because he has been very forthcoming.

[Lord Ashton of Hyde]

Perhaps I may help. There is another way in which the noble Lord could find out the information that he requires. He knows well in advance that these SIs are coming up, so he could always write to me and ask.

[Lord Adonis]

My Lords, I would be delighted to write to the noble Lord when his next lot of SIs are due to come before the Grand Committee and ask him for more information, but until I have heard the explanation and his account, it is often difficult to know what questions one wants to ask. I should observe that at the moment we are having these statutory instruments at the rate of about 20 to 30 a week, so, although I take my duties as a Member of the House very seriously, it would not be possible for me to correspond with Ministers in advance of each of them in a way that would be productive, given that we are going to debate them in any event.

[Lord Ashton of Hyde]

The noble Lord would be able to spend less time in Grand Committee, so he would have some more spare time.

[Lord Adonis]

I am not sure whether the noble Lord meant that as a serious contribution to the debate. I cannot think of anything that I would find more felicitous than engaging in correspondence with the Minister, so I would be happy to do that hereafter.

I sense that we will return to the issues raised in paragraphs 10.2 and 10.3 of the Explanatory Memorandum when the regulations go to the Chamber. The Minister has already undertaken to publish the relevant minutes of the Broadband Stakeholder Group and it is important that we have an opportunity to take account of those before these regulations go to the House. If the Minister does not mind my saying so, we will need to have resolved what consultations have taken place with the UK competitor telecoms authority and its members, and having that information before the House would be useful too. That is important to enable the House to make a judgment on the issues raised in paragraphs 10.2 and 10.3. Perhaps I may read to the Grand Committee what is said there:

“Some stakeholders expressed concerns that removal of the requirement for EU consultation on certain Ofcom proposed regulatory measures (and in particular the Commission’s ability to require Ofcom to withdraw its proposed measure in some circumstances) … amounted to loss of a valuable check on Ofcom’s decision-making. Those stakeholders proposed that an equivalent function be recreated domestically (for example, requiring the Competition and Markets Authority to approve certain of Ofcom’s proposed measures”.


The Minister has just said that doing that would involve a change in the status quo. However, the contention of stakeholders in the sector is that, far from constituting a change in the status quo, it would transpose an equivalent function to the one currently performed by the European Commission once we leave the European Union. To me, the issue set out in paragraph 10.2 is significant, and the noble Lord, Lord Foster, who is much more knowledgeable about the sector than I am, made the concern of the sector a significant part of his remarks.

I entirely agree with the Minister that the Government should not be expected to give a veto to telecoms companies and other stakeholders which is in any way unreasonable. I accept that; as a former telecoms correspondent for the Financial Times, I am only too aware of the market power of those bodies, and it is important to have strong regulators. I am not saying that those telecoms companies and interest groups are necessarily right—the Government might be right not to give further supervisory powers to the Competition and Markets Authority that would lead to further appeals, litigation and huge expense to the public—but my concern, which goes to the whole procedure of dealing with these no-deal regulations, is that this is an important issue. I think that the Minister would accept that it is a pretty significant issue in terms of the construction of the regulatory regime. This decision has been taken on the basis of no formal consultation, and the views of stakeholders have become apparent to your Lordships only during this debate and were brought up particularly by the noble Lord, Lord Foster.

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[Lord Ashton of Hyde]

That is not right. That is why the Explanatory Memorandum specifically mentioned their views. It is not that the noble Lord has found them at the last minute, because he was citing the very Explanatory Memorandum that told him that there were opposite views, which we disregarded for reasons with which I think he agrees.

[Lord Adonis]

Let me correct myself. The Minister is quite right that the Explanatory Memorandum mentions that at paragraph 10.2. However, all it says is “some stakeholders”, so there is no explanation of who those stakeholders were. The noble Lord, Lord Foster, brought out who they were and why they hold those views. For our next consideration of this measure, we need to know more about which stakeholders expressed the views in paragraph 10.2 and why they did so, so that we can form a view as to whether the Government’s judgment, which is that there should be no role for the Competition and Markets Authority, is correct or whether the right approach would have been to have given some supervisory role to the CMA, as is envisaged by the stakeholders in paragraph 10.2.

[Lord Ashton of Hyde]

This may help the noble Lord and cut down on the time. I have been told that we will continue to consult the industry on the scrutiny of Ofcom’s draft regulatory decisions, but we do not believe that this SI is the vehicle for such policy changes—because that is what they are. I committed to the noble Lord, Lord Foster, that I would outline the people whom we had consulted. I take his point about a formal consultation; we decided not to do that, but that is not to say that there has not been extensive consultation, which I have agreed to make clear. I hope that the noble Lord will accept that we will continue to consult on that, but will not do it through this SI.

[Lord Adonis]

I fully accept what the Minister said. He has been very forthcoming in making further information available to noble Lords. It would be very useful to us to have that further information before these regulations go to the House. We need that further information so that we can form a judgment on whether the Government’s decision as to how they will frame the regulatory regime after 29 March, if we crash out of the EU, is correct or whether it would have been appropriate to have in domestic arrangements some function equivalent to that performed by the European Commission; for example, by requiring the CMA to approve certain of Ofcom’s proposed regulatory measures. I hope that the Minister will be able to make that information available to the House so that we can form a judgment when this regulation comes to the House.

[Lord Griffiths of Burry Port (Lab)]

My Lords, I suspect that all present will be delighted to hear that I do not intend to detain your Lordships for very long. This has been a clash of the Titans, and a lot of material has come out from the noble Lords, Lord Foster and Lord Adonis, and the Minister’s responses. Having read diligently the papers that I had and highlighted the questions which concerned me, I find, alarmingly, that they have all been dealt with. For that reason, and hearing the question about repetition, I shall not go over the ground again.

However, I would make one or two observations, perhaps from a different angle. For example, I note at the beginning of the Explanatory Memorandum the number of Acts of Parliament and other measures that have had to be gone through with a tooth comb to produce 10 pages of minutiae—which in their totality are more than minutiae—affecting legislation in the way that the noble Lord, Lord Adonis, says. I would like to know as a point of information how many hours have been spent on teasing out these details in order to produce this one statutory instrument. On page 2, it deals with minor affairs and states that it must not be confused with other statutory instruments which will soon come through. It beggars belief that all this lies ahead. I read The Pilgrim’s Progress when I was a young man. The slough of despond and the swamp of despair are lurking and waiting for us before we will get to the celestial city.

[Lord Adonis]

Dante is more appropriate because he talks about the circles of hell.

[Lord Griffiths of Burry Port]

We will have to have a consultation about that in order to find out who forms which view about Dante’s Inferno.

There are two focal points to my remarks. I wanted to ask about the data adequacy agreement but the Minister has answered that. I also wanted to ask: who regulates the regulator? I was very interested indeed to read about Ofcom. While I in no way have the level of expertise of other noble Lords who have spoken, just reading the text—I know how to do that—what hit me between the eyes begged questions: is this regulation or supervision? Are we talking about harmonisation? I have sat in on several debates to try to gauge what is happening in consideration of these statutory instruments and I am beginning to form the view that between where we are now and where we expect to be if all goes according to plan, in several instances there will be a lessening of the oversight and direction that we have currently through our membership of the European Union.

For example, I listened to the debate on nuclear safeguarding yesterday. I was not convinced by either the debate or the material I read that the concerns being expressed would be adequately met. It was a similar case as regards non-native invasive species. Again, I was left with questions which may be answerable: I am not an expert in these fields. However, simply because we are under pressure to agree to these statutory instruments, we must not go on driving them through in such a way that in the end the accumulation of feeling about what we are achieving is that we are making too much haste and should have a bit less speed. I know that there are just 70-something days and the pressures that we are under, but in the end we will have to live with what we decide now.

All of those Acts of Parliament were carefully gone through. I have just one brief observation to make about Ofcom because the others have been made. Most of my consideration was on paragraph 10, but I will not cover that at all. However, in paragraph 7, I find that again and again what Ofcom is required to do while we are a member of the European Union “may” turn into something later. The indicative mood turns into—what? Is it the optative or is it the subjunctive? The word “may” allows itself to be interpreted either way. The optative reflects the mood of wishful thinking while the subjunctive reflects the mood of doubtful assertion. I am truly interested in knowing whether Ofcom’s different field of endeavour and focal points amount to it having the same quality and weight of oversight that it currently enjoys and whether the subjective element which is being introduced by the verbs I have described allow for a different way for it to operate or a different mood to be generated. I do not know, because the words do not allow me to make a deduction and I have certainly not heard this mentioned or dealt with in our discussion thus far.

I said that I would not detain noble Lords for long and I shall not. I am normally an optimistic person and I end my short interventions by saying that I look forward to the next one. However, I sit down on this occasion in a more desultory manner, not sure that I do.

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[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

The Question is that the Motion be agreed to. As many as are of that opinion will say “Content”; to the contrary “Not-content”.

[Lord Adonis]

Not-content.

[The Deputy Chairman of Committees]

I must remind the Grand Committee that a single call of Not-Content has the effect of negativing the Motion.