Clause 90 - Notification of contravention of condition
Communications Bill
10:15 am
Mr John Greenway (Ryedale, Conservative)
We are in similar territory to our previous discussion. Clause 90 gives Ofcom powers of enforcement in respect of all types of conditions pursuant to clause 41. Where Ofcom has reasonable grounds for believing that a person is or has been in
breach of any condition, it may notify that person accordingly, allow them time to make representations and take steps to make them comply.
The amendment focuses on whether there are ''reasonable grounds for believing''. Notwithstanding the Minister's earlier remarks on Ofcom's duty under clause 3 always to act in a proportionate and measured way, it seems to us inappropriate for a person to be expected to remedy notified contraventions only on the basis of there being reasonable grounds for believing that there may have been a contravention. It also does not seem reasonable and appropriate that remedying a notified contravention should be required to be done at the same time as the person concerned is making representations. The requirement to remedy should be in place only after there has been a finding of guilt, which would occur after a full investigation in which the person concerned would have had a full opportunity to present their case and make their representations.
My hon. Friends and I think that the amendment is a more reasonable way of dealing with the matter. There ought to be an investigation and a finding that there is a problem as opposed to Ofcom simply saying that it thinks that there are reasonable grounds for believing and therefore intends to impose a condition with which, although they can still make representations, a service provider or supplier must comply. That approach does not seem to be correct.
The problem is that the clause does not correctly implement article 10 of the authorisation direction, which states:
''Where a national regulatory authority finds that an undertaking does not comply with one or more of the conditions of the general authorisation . . . it shall notify the undertaking of those findings and give the undertaking a reasonable opportunity to state its views or remedy any breaches''.
Ofcom's saying that it has ''reasonable grounds for believing'' is not a finding. Faced with a finding of guilt, an undertaking has a clear choice between remedying the matter or maintaining their innocence, which would risk enforcement action and the imposition of a penalty. It is not as though Ofcom does not have strong powers to deal with an undertaking where there has been a clear finding of guilt or a breach. We think that the group of amendments would bring the clause more in line with the requirements of the directive, and put in place a process that achieves greater equity and makes better sense.
At this juncture, I should also comment that the enforcement requirement of other clauses in part 2 uses the same formulation as the one that we are complaining about. I suggest that the Minister should keep our concerns in mind; we would like all those clauses to be changed to refer to a finding of a breach, and not have Ofcom's action on an undertaking, which could be draconian, based merely on ''reasonable grounds for believing''.