The Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019 have been made. The Regulations reject proposals to recreate the EU Consultation procedure after Brexit.
The Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019 SI 2019/246 have been made, under the European Union (Withdrawal) Act 2018, to address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the UK from the EU.
The Regulations make amendments to legislation in the field of electronic communications and, in particular, amend legislation relating to the implementation in the UK of the EU framework for electronic communications and wireless telegraphy. Schedule 1 amends primary legislation, Schedule 2 amends subordinate legislation, and Schedule 3 amends or revokes retained direct EU legislation.
The EU regulatory framework for electronic communications has already been transposed into UK law, principally in the Communications Act 2003 and (in respect of the management of the radio spectrum) the Wireless Telegraphy Act 2006.
The Regulations amend those Acts to ensure that the law continues to operate effectively, and in substantively the same way as before exit. The deficiencies are for the most part minor and technical in nature, or concern the procedures established to ensure the harmonised application of the regulatory framework across the EU, recognising that the UK will no longer be a part of the EU regulatory system as a result of leaving the EU. In some places, technical amendments are needed because the drafting approach taken in UK law relied on the existence of those EU obligations.
The Regulations remove requirements for EU consultation on some of Ofcom’s proposed regulatory measures, and references to the European Commission’s ability to require Ofcom to withdraw proposed measures in some circumstances. Discussions took place with stakeholders in the telecoms sector about their concerns regarding EU exit in relation to telecoms policy on a number of occasions between mid-2017 and mid-2018. In relation to the matters addressed by the Regulations, the main area of interest was in relation to EU consultation. Some stakeholders expressed concerns that removal of the requirement for EU consultation on certain Ofcom proposed regulatory measures (and in particular the European Commission’s ability to require Ofcom to withdraw its proposed measure in some circumstances), while a necessary consequence of EU exit, amounted to loss of a valuable check on Ofcom’s decision making. Those stakeholders proposed that an equivalent function be recreated domestically (for example, requiring the Competition and Markets Authority to approve certain of Ofcom’s proposed measures).
The UK government has decided not to adopt this proposal. It says that it is not necessary to recreate the EU consultation procedure after EU exit, since its principal objective is harmonisation of regulatory practice to consolidate the EU internal market. It is clearly desirable that Ofcom’s decision-making is of a high standard, but safeguards already exist to ensure this, both in the procedural statutory requirements and in the availability of statutory appeal before the Competition Appeal Tribunal (or judicial review before the Administrative Court) of Ofcom’s decisions. In these circumstances, the potential benefits of the proposal (for which there was limited evidence) were outweighed by its costs (in terms of resource, duplication of responsibility and delay).
The Regulations also ensure that the legislation relating to electronic communications and wireless telegraphy will continue to operate effectively and in substantively the same way as before exit.
An explanatory memorandum has also been published.