The Government last week published the Statutory Instrument (SI) covering the telecoms regulatory framework under the EU Withdrawal Act.
The affirmative SI will need to be actively approved by both Houses of Parliament and is largely technical in nature – correcting references or processes in legislation (eg Communications Act 2003) that were established to ensure a harmonized application of regulation across the EU. Naturally, as the UK will no longer be in the EU these are being removed.
However, there are some amendments which are more significant. In particular Government has decided that it does not need to replicate the EU Commission’s oversight role of Ofcom with a new third-party body. In the explanatory notes the Government explains that they understand the Commission’s role to be one of ensuring a standardized application of regulatory approaches across member states. Although most in industry would suggest that such an oversight body (rather than the Commission per se) provides a useful and cost-effective route to providing a challenge to regulatory decisions.
This goes against the recommendations in the BSG’s Brexit paper in which we argued that such a review process allowed for proper scrutinisation of decisions and helped maintain quality decision-making by Ofcom. It was assumed that the Competition and Markets Authority would be a suitable body, but Government has felt that this was unnecessary. Given that industry’s preference is to prevent a cliff-edge exit of the EU it is unlikely that these concerns will turn into full-blown objections but depending on the nature of the UK’s future relationship with the EU it will be interesting to see how thinking on the regulatory framework develops.
In terms of Ofcom’s interaction with BEREC, full membership is restricted to the regulatory authorities of EU member states. Whilst Ofcom would be allowed to be an observer, Government has also made clear that it would be open to Ofcom participating further should this be made possible under the new BEREC Regulation.