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Michael Fabricant: I shall speak briefly in support of amendments, provided, that is, that I get no hostile interventions.
The Federal Communications Commission in Washington D.C., with which I am familiar, has an especially open policy. One of the reasons for that is to avoid judicial reviews. The Radio Authority has, on occasion, revoked a licence—usually quite rightly, in my view—and suffered a judicial review. That is because it does not have to give a reason, either for revoking or awarding licences.
I feel that the workings of Ofcom would be a little more reasonable if they were more open. The policy of both the Opposition and the Government is that government should be open and fair, and the amendment is a natural extension of that.
Dr. Howells: I believe that the amendments are important and measured and I am glad that they have been raised. I will resist Nos. 132 and 197 and new clause 6. I will, however, explain to the Committee why I accept amendment No. 2 in principle.
We expect Ofcom to be a model of good regulatory practice. In some parts of the Bill that is explicit; for example, in clauses 6, 7 and 8. However, throughout the Bill it is implicit that Ofcom should be transparent and that it should be accountable for its actions. I am wary of new clause 6, which appears to provide a rather bureaucratic approach to an integral part of Ofcom's operation. The concept of a statement of openness is worthy, but I am not sure that that is necessary, particularly when one considers the Office of Communications Act 2002.
Paragraph 22 of the schedule to that Act makes Ofcom subject to the Freedom of Information Act 2000 and paragraph 23 applies the Public Records Act 1958 to Ofcom. Taken together, those provisions mean that Ofcom's duty to maintain records and respond to requests for information is the same as that of other official bodies. Clause 3(3)(b) requires that in its undertaking of regulatory activities Ofcom should have regard to the principles of good regulatory practice, which include accountability and transparency. My hon. Friend the Member for Milton Keynes, North-East made that the central theme of his contribution, as did the hon. Member for South Cambridgeshire. More specifically, we would encourage Ofcom as a matter of course to set out the reasoning behind its decision when there was a conflict between the duties.
I listened to the strong views expressed by the hon. Member for Maldon and East Chelmsford in support of amendments Nos. 132 and 197, which would insert
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such a requirement in the Bill. I have noted those views and I am particularly sympathetic to amendment No. 2, which would require Ofcom to include in its annual report a summary of decisions made under subsection (6). That was also proposed by the Joint Committee and it suggested that that was the right approach. If the hon. Member for South Cambridgeshire does not press his amendment, I will be happy to accept it in principle and return with an appropriate amendment at a later stage.
10.30 am
Mr. Whittingdale: I am grateful to the Minister. I am slightly hurt that he has picked out the amendment in the name of my hon. Friend the Member for South Cambridgeshire rather than the one in my name, but I am sure that it does not indicate any partiality.
I appreciate the Minister's promise to try to amend the Bill to reflect the wishes that are felt on both sides of the Committee. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 ordered to stand part of the Bill.
Clause 4
Duties for the purpose of fulfilling
Community obligations
Mr. Whittingdale: I beg to move amendment No. 30, in
clause 4, page 4, line 44, leave out from 'networks' to end of line 4 on page 5 and insert ', electronic communications services and associated facilities; and'.
The Chairman: With this it will be convenient to take the following amendments: No. 31, in
clause 4, page 5, line 32, leave out from beginning to 'for' and insert 'with the standards mentioned in subsection (10) to such an extent as is strictly necessary'.
No. 32, in
clause 4, page 5, leave out line 36.
Mr. Whittingdale: The purpose of the clause is essentially to ensure that the requirements under the various directives made by the European Union are properly transposed into UK law. Therefore it is important that the wording of the Bill should precisely reflect the requirements under the various directives. I am keenly aware of the widespread view that all too often when we implement directives through legislation there is a tendency to go a little further than is necessarily required. It is known as gold-plating and it should be resisted wherever possible. The amendments change the provisions of the clause so that they precisely reflect what is required under the various directives.
Amendment No. 30 focuses on article 8(2) of the framework directive. Subsection (3) is drafted in a way that gives a wider meaning than is intended by the framework directive. The framework directive requires national regulatory authorities to promote competition only in relation to the provision of electronic communications networks, electronic communications services and associated facilities, but subsection (3) extends the provision to any type of
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service that is provided in association with those three categories. That could include television services.
Amendments Nos. 31 and 32 refer to subsection (9), which is intended to implement article 17(2) concerning standardisation. That subsection grants Ofcom discretion about whether to encourage compliance with standards; the directive provides that there shall be encouragement to use such standards only where ''strictly necessary''. Once again, the proposal goes beyond what the directive requires to give Ofcom slightly wider powers. The amendment would restore the wording of the Bill to reflect precisely what is required under the terms of the directive.
Mr. Allan: I shall be brief. Amendments Nos. 31 and 32 relate to the power in respect of European and international standards. The hon. Member for Maldon and East Chelmsford says that he does not want EU directives to be gold-plated, and I have much sympathy with that general principle. However, I am interested in how the standards, especially those referred to in the amendments, will be implemented by Ofcom, as there is potential for conflict.
Subsection (9) refers to standards to secure interoperability; subsection (6) states that one particular type of network technology should not be favoured, thus there is an inbuilt tension from the beginning. We are asking Ofcom to encourage the use of common standards for interoperability but saying that it must not favour one form of technology rather than another. Potentially, Ofcom will have to make some difficult judgments when implementing the requirements and taking real-life decisions.
I have been following a case that involves the use of power line technology for the transmission of data, which has been discussed by various agencies that will form part of Ofcom. In certain circumstances, the use of that technology can interfere with radio spectrum and decisions relating to it will therefore fall within Ofcom's remit. Those who introduce the power line technology will want to do so across the EU, and companies will seek an assurance on the basis that they are conforming to the EU standards referred to in the subsection. It will be a difficult judgment, with the potential to lead to drawn-out legal processes. If companies seek to introduce in the UK a technology that conforms to an EU standard, they will refer to that subsection, say that they are trying to be interoperable and market a product across the European Union, and seek protection from the framework directive. The precise definition, whether we accept the ''strictly necessary'' definition of the hon. Member for Maldon and East Chelmsford or the definition in the Bill, will be critical in determining whether companies can go ahead.
Michael Fabricant: It is interesting to note that the Minister referred in a previous sitting to radio astronomy and the application of frequencies. Is the hon. Gentleman aware that radio astronomers and the BBC World Service have said that the provision of data along power lines would interfere with their short-wave transmissions?
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Mr. Allan: I am grateful to the hon. Gentleman for that additional illustration. It is precisely such issues that will confront Ofcom. People are seeking judgment on new forms of technology all the time. They will cite European or international standards and look at the framework directive to govern how decisions are taken.
Mr. Bryant: I accept that if Ofcom were required to bring about mandatory standards there might be a problem, but a clause relating to interoperability is absolutely essential to the interests of consumers, otherwise there would be major problems for the buyers of, for example, Nokia telephones if they could speak only to the users of other Nokia telephones.
Mr. Allan: I will put my cards on the table: I am strongly in favour of interoperability and international standards and I want them to be observed. My natural instinct is to go with the wording in the Bill. However, the Conservative spokesman has teased out an important issue. An important distinction in future legal cases will relate to whether we accept the wording ''strictly necessary'' or what is currently in the Bill, which is ''consider appropriate''. My instinct is for international standards to be enforced.
That will also be significant for television standards, particularly digital television standards. Lively debates are continuing on whether we should have pan-European television standards. If we get to that stage, people will bring cases based precisely on what the clause says. People who want to advance common international standards will cite the fact that Ofcom has a duty to promote interoperability; those who wish to go with a proprietory standard will cite the fact that Ofcom should not prefer one technology over another.
I am merely asking the Minister to flesh out a little how he envisages the different powers working. Where might we find more detail on the implementation of the provisions, or will that come from Ofcom in future? The interesting and exciting thing is that Ofcom brings together all the different players in a way that did not happen before. The Radiocommunications Agency might have dealt with spectrum issues quite separately from those who were considering broadcasting or power line technology, for example. As I said, I am interested to know how we can get more clarity about the way in which the provisions will be implemented so that we meet the requirements of the framework directive.
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