Mobile Roaming (EU Exit) Regulations 2019

Lord Stevenson of Balmacara Excerpts

Thursday 14th March 2019 Lords Chamber

Moved by

[Lord Stevenson of Balmacara]

At the end insert “but that this House regrets that the draft Regulations do not, contrary to the recommendation of several consumer bodies, make provision for the maintenance of surcharge-free roaming for customers in the United Kingdom”.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I am very grateful to the Minister for introducing this SI and for his very clear explanation of the issues that were raised by the Secondary Legislation Scrutiny Committee, to which I may want to return. The department has had a good reputation in recent years for steering through some of the most complicated issues affecting modern society, concerning the internet, communications and related issues, with some skill. It is good that it is planning and thinking through some of the issues that have engaged this House, particularly in recent legislation concerning such issues as data protection and internet safety. We look forward to further work on that, with a White Paper coming soon. I never know what “soon” means, but the Minister is nodding so it will presumably be before Christmas.

[Lord Ashton of Hyde]

It is soon, verging on imminent.

[Lord Stevenson of Balmacara]

Variations on a theme are always interesting. However, I think that in recent weeks the department has not covered itself in glory. I thought that the decision on portability was wrong. Having seen the negotiations about that I know that there is considerable consumer interest in being able to take content that one has paid for on holiday and to use it in other territories. To find that being taken away after such a short period of time is going to be a disaster. I think that this issue about roaming is also going to be a problem for the Government when people realise what has happened and what decisions have been taken. I mention this because I want to go a little further into some of the background, although I know there has been some change and I hope that the Minister will flesh that out when he comes to respond.

We had a big discussion about roaming. I like this word “roaming”. It brings visions of going with one’s beloved at the end of the day with the sunset and enjoying whatever one does in those circumstances. Of course, it is not true when you cannot get the mobile signal that will allow you to communicate with your beloved these days. You cannot get it in London, let alone in the far reaches and romantic parts of the country. I do not know why I said that, but it gets us into a broader area of discussion and debate.

[Baroness McIntosh of Pickering (Con)]

It is more worrying when the expression is, “roaming away from home”.

[Lord Stevenson of Balmacara]

Indeed. The reason I touched on this is because of the irony around the issue of roaming, which we are going to centre this debate around. The EU regulation that brought this in is exactly as the noble Baroness said: the standard that the EU was trying to establish was that people travelling in Europe would have the same quality of service that they have at home. Indeed, the regulation was called the “roam like at home” regulation. Of course, we do not have roaming at home, in any sense of the phrase. The issue, therefore, is why? If you are in a not-spot you are not able to connect to get all the benefits of the internet and the mobile telephony that the Minister was talking about. Yet the Government have consistently set their mind against opening up the possibility of having some roaming charges in this country.

I know there is development on this, and I want the Minister to cover that, but I refer to the exchanges in the other place on the Urgent Question to which he referred, particularly that between Robert Halfon and Jeremy Wright, the Secretary of State. Robert Halfon asked why it was that,

“too many people do not get a mobile phone signal in our country? Indeed, we cannot even get one in many places in the House of Commons. Will he examine access to roaming charges, as his predecessor, the current Home Secretary, did, and allow people who cannot get a signal to roam on to other domestic networks?”

We spent a lot of time pursuing the Government on that in debate on the Digital Economy Act; although we did not get it through in the end, I still think it is an issue. However, the Secretary of State responded by saying the Government were committed to reaching,

“95% of the UK landmass with a mobile phone signal. I am determined to ensure that we meet that target, and to do so, we will rule nothing out that may achieve our objective”.—[Official Report, Commons, 7/2/19; col. 416.]

I also note that the department put out a Statement on the same day suggesting that it is going to consider the question of roaming at home more favourably. In other words, there is a proposal in the SSP for Ofcom that consideration should be given to the possibility of making sure that access to mobile telephony is increased, possibly by looking at this question of roaming at home. Can the Minister confirm whether this is now on the table again? Could he sketch out for us the actual issue that will be assessed under the SSP, and what the timescale will be? That would help us considerably on this issue.

There is no doubt at all in my mind—and it comes up every time we talk about mobile telephony in this House—that the current situation is not working. It is predicated on a competition between those who have licences to cover the country to the maximum effect, but it is clearly not working. It does not work locally; it does not work in far reaches; it certainly will not do the job it needs to do to tie up the wi-fi high-speed rollout, which will also require mobile telephony to get to the final few per cent of our population. We have a real problem facing us; if we cannot get the investment and we cannot get the technology to work, then we will need something better than what we currently have. I hope the Minister will be able to confirm that that is now firmly on the table.

If that is the case, then I return to the narrow question about why the SI is detailed in this way. I have two particular questions. The Minister touched upon the first but did not cover it in any detail—again, I hope there is more to come in his response. In Northern Ireland, there is obviously an issue about picking up signal from the other side of the border. In a single-country landmass, where there are no official borders or changes, one would think that this description of different approaches to the way in which people can receive signal would be entertained. What is meant by the Minister’s decision that measures will be taken to ensure that existing legislation preventing inadvertent roaming is going to be brought into effect in Northern Ireland? My understanding is that there is actually a benefit to those who live in Northern Ireland; they are getting access to better signal from south of the border, and they should not be penalised by inadvertent regulation—rather than inadvertent roaming—which will prevent them getting the service benefiting them and their businesses.

I have a similar problem in relation to Scotland. When I was on top of the mountain Sgorr Ruadh only six months ago, I discovered to my considerable interest that when you point your mobile phone in a certain direction, you actually start picking up signal from Iceland—it is really quite close, and I think the wind was in the right direction. If that is the case, why are we blocking this in Scotland in respect of other countries which have services that, for whatever reason, reach our far shores? Are the Government seriously saying that that will be made illegal, or is it again something that will be dealt with in a more appropriate arrangement?

The central point here is that the Government have made all the right noises about what they want to do in terms of telephony, wi-fi and investment in broadband. They have been overtaken to some extent by the technologies moving forward faster than some of the legislative processes; until now, the department has always been quite good at spotting this, and I hope it will continue. It would be great if the Minister could respond to some of the future issues that have been raised in this debate and try to give us some confidence that the Government are ahead of the game and that future statements will be made to give us confidence that they are addressing our concerns.

--- Later in debate ---

[Lord Ashton of Hyde]

We have had discussions with operators, and it is correct that they have said that they have no plans to do that after Brexit. They have not said that if they are charged increased charges by foreign operators, they will absorb all the costs ad infinitum, for the rest of time, irrespective of what they are. That is not an unreasonable position. The point is that since roaming as if at home has been introduced, consumer requirements have changed, what consumers want has changed, the methods and technology has changed and consumer data usage has changed. For example, I think there is four times as much data being consumed as phone calls. It is very difficult to compare the situation 10 years ago, before any caps came in, to what will happen now.

However, in this country, there is competition between operators, which does not exist in all European countries, so the competitive element is very much at the forefront of consumers’ minds, but we are not requiring operators to accept a differential status, a one-sided regulation. I shall come to that later. When the Regulatory Policy Committee considered the impact assessment, it said that it was satisfied that any impact on price changes will not be a direct result of this SI.

The noble Lord, Lord Foster, asked who we have consulted. We have consulted the big four operators O2, Vodafone, EE and Three, the mobile virtual network operators Sky, Virgin Media and Lebara, trade bodies Mobile UK, the Broadband Stakeholder Group and many consumer groups. He also asked what were the views of the mobile network operators. They expressed similar concerns about this scenario. Of course they were concerned about not being party to the EU roaming regulation, but that is a function of leaving the single market. They did not believe that the regulation mandating surcharge-free roaming could and should endure, for the reasons I mentioned, but I confirm that they said that, because of customer demand, they have no current plans to reintroduce roaming surcharges. That is not an unlimited guarantee forever, as I think I said.

As for BEREC, I agree entirely with both my honourable friend in the other place and the noble Lord, Lord Foster, that our relationship with the European regulator has been beneficial not only to us but to BEREC. We are one of the leading regulators in the EU. Of course, if there is an agreement and an implementation period, the Government will seek arrangements with the EU or BEREC and, if there is no deal, it will be desirable for the Government to seek participation in BEREC. We have agreed in government—not just in DCMS but more widely—that that is beneficial. We will therefore continue making overtures to BEREC to try to have an arrangement that will involve not full membership but, if you like, associate membership where we can contribute our views.

I turn to the amendment to the Motion, which implies that we should not have done what we said we would and capped roaming charges. I explained in my opening speech why the UK cannot retain surcharge-free roaming in law in the event of no deal. The instrument recognises this by correcting deficiencies in retained EU law and removing rules on wholesale and retail charges that are simply unworkable if we leave the EU without a deal.

The noble Lord, Lord Stevenson, prayed in aid the recommendations made by consumer bodies. As I said, we have had a number of conversations with them and provided detail of those interactions to the Secondary Legislation Scrutiny Committee in advance of its report. I mentioned that it noted the benefits of surcharge-free roaming, but the fact is that when the UK is outside the single market, we will not be able to control the charges levied on UK mobile operators by their European counterparts, because this Parliament has no authority over them. The consumer organisations recognise that. For example, Which? stated on its website on 7 February 2019:

“In order to keep ‘roam like at home’ going, it is likely a similar mutual cap”—


by which it means on wholesale prices—

“would have to be agreed for it to be cost effective for mobile operators”.

Let us be clear on the implications of the noble Lord’s amendment to make provisions to retain surcharge-free roaming. The policy would explicitly put British companies at a disadvantage, compared with foreign competitors, by capping their retail charges but allowing EU operators the freedom to charge them whatever wholesale rate they like. It would put roaming at risk for some operators, thus removing competition. It could therefore force British network operators to increase their overall prices to recoup the foreign charges, so the policy could increase consumers’ costs.

However, it is worse than that. It would mean that people who choose to remain in this country are subsidising those travelling to Europe. The policy would increase the risk of legal uncertainty. Lastly, it would penalise heavily smaller mobile virtual network operators, because they use the physical networks of the main operators and therefore must accept the increased costs without a corresponding network usage to offer EU operators in return. To sum up, the policy could increase costs, have a negative impact on consumers and increase the legal risks around future roaming policy.

Which? suggests that the UK should seek to include mobile roaming in a deal with the EU and in trade deals with other countries. As government Ministers first set out in Answers to Written Questions last June, mobile roaming could form part of any trade negotiation we have with other countries after we leave the European Union, and the Government are exploring all options. Any arrangements on mobile roaming would be subject to negotiations. In the meantime, as I said before, there is no reason to prevent commercial negotiations between UK and EU operators.

For reasons noble Lords will understand, it is too early to detail exactly the future arrangement with our European partners. In the event of a no-deal exit, the amendments in the SI are essential. They will ensure legal clarity for consumers and businesses, retain all operable parts of current roaming law and protect consumers in the event of a no-deal exit. Meanwhile, I repeat that the largest four operators have no current plans to reintroduce charges, so on exit day and thereafter there will be no change.

I hope therefore that we can all agree that it is in the clear interests of British consumers and businesses that this SI is in place in the event of a no-deal outcome. In the light of my remarks, I hope that the noble Lord will feel able to withdraw his amendment and I hope that these regulations will be approved.

[Lord Stevenson of Balmacara]

I am grateful to the Minister for a full and wide-ranging debate. I am also grateful to the noble Lord, Lord Foster, for adding to my comments on the amendment so that we could debate and discuss it.

I am left with two thoughts. First, this Government have not been slow to interfere in a market where they felt that the competitive environment was not as perfect as it could be; I am thinking of the price cap brought in for domestic energy, which was accompanied by a commitment to look more widely at how prices are set in the market. That is not terribly different from mobile operators relying, as they do, on those who generate and those who sell. The two sides of the energy equation have analogues in what we are talking about here in mobile telephony. I take the general point that, after consideration, the Government decided that this was probably not the best decision to take, but I wonder exactly how they have balanced the interests of operators—both small and large—against those of consumers. I wonder whether we have missed an issue there. The consumer groups the Minister mentioned were unanimous in their view that there was a case for a better regulatory approach. At this stage, the arguments are pretty finely balanced.

Secondly, although I was glad to hear about the measure to look at both home roaming and the wider context, including 5G and all the other issues that must be addressed, Ofcom’s capacity will be squeezed. The Minister did not provide a timescale for the consideration or when the results would come back to this House, but we can look at that outside this session. I hope that there will be time for that. I want it recorded that I am glad that, at last, there is a solution to some of the not-spots and our difficulties with our mobile telephony. We will support the Government seriously pushing Ofcom to come up with a proper plan for this going forward. With those thoughts, I beg leave to withdraw the amendment.

Amendment to the Motion withdrawn.