Clause 4 - Duties for the purpose of fulfilling
Communications Bill
10:30 am

Mr John Whittingdale (Maldon and East Chelmsford, Conservative)

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'.

Mr Peter Atkinson (Hexham, Conservative)

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 John Whittingdale (Maldon and East Chelmsford, Conservative)

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

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 Richard Allan (Sheffield, Hallam, Liberal Democrat)

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.

Mr Michael Fabricant (Lichfield, Conservative)

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?

Mr Richard Allan (Sheffield, Hallam, Liberal Democrat)

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 Chris Bryant (Rhondda, Labour)

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 Richard Allan (Sheffield, Hallam, Liberal Democrat)

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.

Dr Kim Howells (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Pontypridd, Labour)

Through you, Mr. Atkinson, I apologise to the hon. Member for Maldon and East Chelmsford for upsetting him. He will be pleased when we have finished dealing with this group of amendments.

I shall talk about the significance of the clause, then address the issues raised by the hon. Members for Sheffield, Hallam and for Maldon and East Chelmsford. As hon. Members will know, a substantial part of the Bill is concerned with the implementation in United Kingdom law of four European directives on the regulation of electronic communications. Indeed, part 2 is largely taken up with those matters. However, one aspect of the directives is dealt with appropriately at this point,

immediately following the clause that we have just debated on the general duties of Ofcom.

Article 8 of the framework directive, in setting out the basic provisions of the Community regulatory scheme, sets out the policy objectives and regulatory principles that will govern the performance by the national regulatory authorities in respect of the responsibilities that are assigned to them in pursuit of the directives. As the hon. Member for Sheffield, Hallam made clear, when Ofcom assumes its regulatory responsibilities, it will become the national regulatory authority for the UK. It will also be the source of the information that he rightly flags up as being required after that point. The objectives required by the directives will therefore become in effect an additional set of duties governing the performance of Ofcom's functions so far as they fall within the scope of the directives.

The duties in relation to Ofcom, or ''Community requirements'' as the Bill describes them, are: to promote competition; to contribute to the development of the European internal market; to promote the interests of all citizens of the European Union; to carry out its functions so far as possible without discrimination between technologies or modes of electronic communication—that relates to the important point made by my hon. Friend the Member for Rhondda; to encourage the provision of network access and service interoperability; and to encourage compliance with international standards so far as is appropriate to facilitate service interoperability or to secure freedom of choice for consumers.

Mr. Whitt—Whittingdale is popping up again; it is a fascinating place, Mr. Atkinson. The Bill will form part of UK law and has to be construed using the conventions and principles of interpretation of UK law. As those are not the same as the conventions and principles of interpretation of European Community law—the point raised by the hon. Member for Maldon and East Chelmsford—it is not always possible to use the literal words of directives to obtain the intended effect. The aim is to transpose the effect of directives as faithfully as possible into UK law, and we believe that we have achieved it.

Members of the Committee will note that some of the duties that I have listed overlap with, or are similar to, the duties under clause 3—the promotion of competition, for example. Others deal with issues not covered by clause 3. Partly for that reason and partly to provide a clear and distinct implementation of the directive, those requirements are implemented through a separate clause. Because the requirements implement provisions of European law, Ofcom must, under clause 3(5), give them precedence over the clause 3 duties in any case of conflict. I hope that that explanation helps.

At first sight, amendment No. 3 looks like a laudable simplification of the Bill. It substitutes a defined term—''associated facility''—for what appears at first sight to be a passage effectively restating exactly

the same concept. However, subsection (3)(b) runs wider than the concept of associated facilities because it also covers associated services. It must do so because the directive requires it. In setting out the policy objectives of national regulatory authorities on promoting competition, the directive refers to electronic communications networks and services, and associated facilities and services. If we are to transpose the directive's provisions faithfully, we need the broader concept of ''associated facilities and services''.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

I appreciate the Minister's careful response to my hon. Friend the Member for Maldon and East Chelmsford. However, if the intention is to reflect the directive precisely and if amendment No. 30 does not quite achieve that because it should read ''electronic communications services and associated facilities and services'', why would an amendment in those terms be unacceptable?

Dr Kim Howells (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Pontypridd, Labour)

That is not the amendment before us. As the hon. Gentleman said, the wording must be precise. If I can move on, it should help to explain the position.

Amendments Nos. 31 and 32 are designed to replace

''to such extent as OFCOM consider appropriate''

in subsection (9) with

''to such extent as is strictly necessary''.

At first sight, it seems a more faithful transposition of article 17.2 of the directive, and we shall certainly examine the amendments carefully. If necessary, we shall table suitable amendments on Report. I therefore ask the hon. Gentleman to withdraw the amendment.

Mr John Whittingdale (Maldon and East Chelmsford, Conservative)

I can assure the Minister that the small degree of hurt that I felt earlier has largely been removed as a result of his contribution. My hon. Friend the Member for South Cambridgeshire made a good point about amendment No. 30, when he said that the Minister acknowledged that removing two paragraphs and replacing them with a much smaller form of words would simplify and improve the Bill. If the addition of the words ''and services'' to my amendment would negate the need for paragraphs (b) and (c), surely it would be an improvement.

Nevertheless, I accept the Minister's explanation and welcome his undertaking to re-examine the wording of subsection (9) in order properly to reflect the directive's requirement. I look forward to seeing his later conclusions and perhaps his tabling of amendments on Report. In the spirit of his response, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.

Clause 5 ordered to stand part of the Bill.