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My Lords, the noble Baroness, Lady Hooper, hoped that she was tail-end Charlie, and I apologise for depriving her of the appellation. In introducing this group of amendments, the noble Lord, Lord McNicol, described them as being about the smooth organisation of business post Brexit, while my noble friend Lord Fox described them as the necessary day-to-day plumbing of post-Brexit life. As we have heard, the amendments cover a wide range of issues, including mutual recognition, not least of qualifications, but also seeking a way to have the maximum continued relationship with many EU bodies, expert groups, agencies and so on. In that regard, Amendment 70 is perhaps the most comprehensive. I share the view of the noble Lord, Lord Lansley, that it is of mutual benefit to ourselves and the European Union if we can find ways of staying as close as possible to many of those bodies. If we fail to do so, there will be some serious difficulties. I believe we need to take positive steps, as is suggested in Amendment 70, for instance, to achieve that close working relationship. If we do not do that, I believe there will be very significant problems.
To illustrate that very briefly, I will touch on two of the bodies that are referred to in Amendment 70: the Body of European Regulators for Electronic Communications—BEREC—and the European Regulators Group for Audiovisual Media Services, or ERGA. It is worth remembering that the telecoms industry in this country has revenues of something like £40 billion a year and our broadcasting industry is probably one of the best in the world; both are critical to the UK’s economy and their success depends to a large extent on close co-operation with the EU 27 countries. That is because, in the case of the telecoms industry, for instance, many of the bodies regulated by our own regulator, Ofcom, are members of subsidiaries which operate in many of those other countries—Virgin Media, Vodafone, Three and Telefónica are very good examples. In broadcasting, we have our own domestic channels, but Ofcom also acts as host to something like 500 channels which are not shown in the UK, but are regulated here and shown in other countries. Therefore, it is very important that our regulator continues to work in a way that allows close alignment with the regulations that will apply across Europe. That means having close involvement with those two bodies, BEREC and ERGA.
As such, my questions for the Minister are about how that will be achieved. I suspect he will reject most of the amendments in this group but that he will say it is important to have close relationships, as the noble Lord, Lord Lansley, said. It is worth reflecting that in the other place, the Minister for Digital and the Creative Industries, Margot James, said that Ofcom intended to “seek observer status” within BEREC. As I pointed out on another occasion, that is no longer possible following changes to BEREC’s regulations in December last year. For us to have observer status in BEREC, it would now be necessary for a formal agreement to be made between the UK and the European Union. I am not entirely convinced that that will be easy under the current arrangements without very active steps being taken by the Government.
In Grand Committee last week, the Minister, the noble Lord, Lord Ashton of Hyde, said he was confident that Ofcom would be able to be part of BEREC. He said that during the transition period,
“the UK will no longer be a member state of the EU but, as is set out in the terms of the withdrawal agreement, common rules will remain in place. That is why we expect Ofcom to continue to participate in BEREC”.—[
That is what they are expecting, yet it is in stark contrast to what the withdrawal agreement actually says. In Article 128, it says—I will paraphrase—that with only one caveat, we cannot participate in decision-making or even attend meetings of expert groups or similar entities. The caveat says—again, I paraphrase—that UK representatives or experts may, upon invitation, exceptionally attend meetings or parts of meetings of bodies such as BEREC or ERGA, provided that either the discussion concerns the UK or UK residents or,
“the presence of the United Kingdom is necessary and in the interest of the Union”.
The noble Lord, Lord Ashton of Hyde, saw this as a green light, and declared that there was “every reason” the EU would want Ofcom on these bodies because,
“Ofcom is one of the leading telecoms regulators in Europe—if not the leading one. The interchange between Ofcom and other European regulators has been extremely beneficial … There is every reason to think that they would wish to continue that”.—[
That is not an interpretation of Article 128 which any rational person can give. It actually says that we can be involved only in a small way, in exceptional circumstances and when it is necessary, so I do not read Article 128 as meaning that we will easily be able to participate in that particular organisation. The same case could be made for all the other organisations which the Government may wish for us to continue to have close relationships with. My question for the Minister is simple: does he agree with my interpretation, or with his noble friend during the debate in Grand Committee? If he agrees with my interpretation of Article 128, are the Government willing to take the positive steps referred to—for example, in Amendment 70—to achieve that close working relationship which is so important?
I have one other question for the Minister: does he also accept that we have an additional problem not referred to so far in these discussions, in relation to data adequacy? It will be necessary, as I understand it, for there to be a data adequacy agreement between the United Kingdom and the European Union before we will be able to participate in any way in the various bodies referred to in these amendments. Margot James said in the other place that in the event of an agreement, it would take two years. If it was a no-deal Brexit, it would take considerably longer. If that is the case, is it the Minister’s belief that we may have a huge gap between exit day and when we can even begin to have that close working relationship with the variety of groups referred to in these amendments, and which the noble Lord, Lord Lansley, and I believe is so important?