Joint Committee on Draft Communications Bill Report


(V) OFCOM AND THE SECRETARIES OF STATE

101. The general policy of the Government with regard both to content regulation and economic regulation is to maintain a proper distance between the Government and the regulator:

    "It is important to have a clear dividing line between Government and regulators. Government [sic] should set the overall legal framework and then allow the regulators independence to operate at arm's length from Government within that framework."[206]

—  Nevertheless, in addition to the framework to be established by Parliament, the Government is proposing to have a range of additional powers over OFCOM.

102. First, under Clause 7, the Secretaries of State are able to issue directions to OFCOM in respect of networks or spectrum functions in the interests of national security or relations with a foreign country, for the purpose of securing compliance with international obligations or in the interests of the safety of the public or of public health.[207] The Government is also proposing to seek an additional power (subject to affirmative resolution procedure) to extend this range of purposes further.[208] The purposes prescribed under Clause 7(3) are wide indeed and we are unconvinced that the power in Clause 7(8) to add extra purposes is warranted. We recommend accordingly that Clause 7(8) and (9) be removed.

103. Second, under Clause 8, the Secretaries of State are able to issue directions to OFCOM in respect of broadcasting functions for the sole purpose of securing compliance with an international obligation of the United Kingdom. This power is much more limited in its scope than that under Clause 7 and is not subject to extension by secondary legislation. Our main concern in relation to this power is that the Secretaries of State do not appear to be under a duty to publish a direction under Clause 8 analogous to the general duty (subject to exceptions) to publish a direction under Clause 7. We recommend that a requirement be placed on the Secretary of State to publish a direction under Clause 8 equivalent to the analogous obligation under Clause 7.

104. Third, the Secretaries of State have wide-ranging powers to alter OFCOM's legal framework on a continuing basis by means of powers to issue more specific directions and to make secondary legislation. We consider a number of these powers in more detail elsewhere in this Report. The point we wish to make at this stage is that, in consequence of these powers, the Secretaries of State will be able to exercise functions that are by their nature regulatory. This is indicated in respect of Part 2 of the draft Bill by the fact that certain functions of the Secretaries of State are subject to appeal in the same way as those of OFCOM.[209]

105. The regulatory character of certain decisions by the Secretaries of State reinforces the case made by the Royal National Institute for the Blind that the general regulatory duties under the draft Bill should apply to the Secretaries of State as well as to OFCOM.[210] This is not a novel concept. The Secretary of State is currently subject to the general duties under section 3 of the Telecommunications Act 1984. It is a generally accepted principle, in the words of the current Minister for Broadcasting, that general duties "set the framework in which regulators - both the regulatory authorities and the Secretary of State - exercise their functions".[211]

106. The Government has argued that its functions under the draft Communications Bill are more distinct from those of the regulator than is the case with the Telecommunications Act 1984 and the Utilities Act 2000. It also claims that application of the general duties to the Secretary of State would be incompatible with the exercise of powers on grounds of national security. We find this argument unconvincing. Under the Telecommunications Act 1984 the Secretary of State can exercise powers on grounds of national security (under section 94), but is subject to general duties in respect of some other functions (under section 3). Government should find it possible to draft the Bill so as to disapply the general duties from the Secretary of State where it is appropriate to do so. A general disapplication would appear to be at odds with the principles of earlier legislation. We recommend that the general duties in the final Bill be applied to the Secretaries of State in the exercise of their functions under that Bill as well as to OFCOM, except when the Secretaries of State are exercising powers for public interest purposes prescribed in relevant Clauses.

107. Just as the powers of the Secretaries of State under the draft Communications Bill are sufficiently extensive to justify bringing the exercise of those within the framework of general duties, so they require distinct arrangements for accountability. Although the Secretaries of State are properly and continuously accountable to Parliament for their activities, this does not facilitate focus on the particular range of powers under this legislation and the earlier legislation it seeks to amend. We recommend that the Secretaries of State be required to lay before Parliament a joint annual report on the exercise of their functions under the Communications Bill, the Office of Communications Act 2002, the 1984, 1990 and 1996 Acts and the other enactments relating to the management of the radio spectrum.


206   Economic Regulators: Government Response, para 37. Back

207   Policy, para 4.5.1; Clause 7(3). Back

208   Clause 7(8) and (9). Back

209   Clause 140. Back

210   Ev 530, paras 2.2, 2.9. Back

211   HC Deb, Standing Committee A, Utilities Bill, 29 February 2000, cols 232-233. Back


 
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