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

Lord Pannick Excerpts

Thursday 7th February 2019 Lords Chamber

[Baroness Neville-Rolfe (Con)]

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

[Lord Pannick (CB)]

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

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


The memorandum goes on at paragraph 7.36 to note that,

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

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

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

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

[Lord Foster of Bath]

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

“the discussion concerns individual acts”,

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

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

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

[Lord Pannick]

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

[Lord Ashton of Hyde]

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

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

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

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

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


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

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

The new BEREC regulation provides that BEREC should be open to the participation of regulatory authorities from third countries, where those countries have entered into agreements with the EU to that effect. There has to be a bilateral agreement, as I said, but that agreement need concern only the observer status of BEREC; it does not have to be a future economic framework, or a data adequacy agreement. The noble Lords, Lord Pannick and Lord Foster, asked whether we have done anything to ensure that. They also asked about our future intentions on trying to become an observer of BEREC. We are doing what Switzerland, which is in a similar position to us, is doing. Ofcom has already had conversations with BEREC; it is keen to have observer status and the Government encourage that. We will have to see how that develops.

The questions the noble Lord, Lord Foster, raised about Article 128 of the withdrawal agreement do not pertain to this. However, if they do, that will be in the context of a deal and that is the best way of encouraging co-operation. We want to get a deal and I hope that we do. The Government encourage Ofcom in its attempt to be an observer. As I said in Grand Committee, we think it would be of mutual benefit and that it would be of benefit to BEREC, apart from anything else; we encourage Ofcom in its endeavours.

Motion agreed.