Why A 2015 EU Referendum Cannot Happen.

As noted in the Independent last Sunday, Nigel Farage has indicated that he will support a minority Conservative Government if Prime Minster David Cameron promises a referendum in 2015:

“The terms of my deal with the Tories would be very precise and simple. I want a full and fair referendum to be held in 2015 to allow Britons to vote on being in or out of the European Union. There would be no wiggle room for ‘renegotiation’ somewhere down the line’.

“The EU is facing an existential crisis and, given that it only takes a few weeks to launch and organise a referendum, it should be held in 2015.”

Although we would largely agree with the sentiments of a “full and fair” referendum, we would take issue with the “very precise and simple” demand that a referendum should be held in 2015 and “given that it only takes a few weeks to launch.” For the very precise and simple reason that it can’t be done. Farage is offering impossible terms on the practicality of timescale.

To support Farage’s demands comparisons are sometimes made with the 1975 referendum where it is claimed that it is possible to have a referendum in a few weeks, the timeline often quoted is as follows:

December 1974: Harold Wilson requests renegotiation of EEC membership terms.

European Council agreed to new terms for UK in Dublin by 11 March 1975 and renegotiation largely ended.

26 February 1975: White Paper announcing referendum to be held after result of renegotiation was known

26 March 1975: Referendum Bill published.

31 March 1975: White Paper setting out the results of the renegotiation of the UK membership of the EC.

9 April 1975: after a three-day debate on the Government’s recommendation to continue Britain’s EC membership, the Commons voted 396 to 170 to continue in Common Market on the new terms. At the same time Government drafts Referendum Bill, to be moved in case of a successful renegotiation.

On 22 April 1975 the House of Lords approved continued membership by 261 votes to 20.

Post-legislative referendum held 5 June 1975. Referendum not directly related to White Paper on renegotiation, but preamble referred to renegotiation. Question much broader: “Do you think the UK should stay in the European Community (Common Market)?” The result was 67 per cent in favour on a 65 per cent turnout.

As we can see in 1975 the passage through Parliament to holding a referendum took circa 10 weeks (26 March – 5 June) from publishing the Bill to holding the Referendum. The 1975 Referendum book though notes (p.66):

“But the real reason for the unexpectedly easy passage of the Bill was political: pro-Marketeers were in an overwhelming majority in the House of Commons and they had belatedly realised that the referendum would go their way.”

Even with an easy passage it still took two and half months to have a referendum. The election in 2015 is in May, then there’s a summer recess so we can expect it to take longer. Especially when we consider that due to the complexity of an EU that has significantly evolved in over 40 years of UK membership and the less certainty of a referendum result, that its passage through Parliament will be more turbulent and difficult.
 
We have noted before regarding trying to win a referendum, 1975 is not 2015. The country has moved on in forty years. Procedures are now different, for example in 1975 the campaign started in January 1975 long before the Referendum Bill had been passed – with self-appointed “umbrella” groups.

However unlike 1975 referendums are now the responsibility of the Electoral Commission, which was established under Political Parties, Elections and Referendums Act 2000. Thus on that alone the timescale in comparison to 1975 has changed.

With the establishment of the Electoral Commission it means that campaigning groups can’t begin to officially campaign until they submit bids for the official “in” and “out” campaign and have been approved. This process cannot happen until after the referendum bill becomes law.

There has to be a reasonable period to allow the Electoral Commission to invite submissions and make the designation, and then the lead organisations must be given time to organise themselves.

As we can see from the Electoral Commission December 2014 report on the Scottish Independence Referendum held on 18 September 2014, it recommends (my emphasis):

… that in planning for any future referendums, not only in Scotland but also those held across or in other parts of the UK, governments should aim to ensure that legislation (including any secondary legislation) is clear at least six months before it is required to be implemented or complied with by campaigners, the Chief Counting Officer, Counting Officers or Electoral Registration Officers.

Thus “a reasonable period” according the Electoral Commission amounts to six months, as it argues to allow for (again my emphasis):

The benefit of this additional time was passed on to campaigners, EROs and COs in preparing for their respective roles at the referendum:

Campaigners were able to engage constructively with the legislative process and had time to develop an understanding of the relevant guidance and rules, before they came into force. EROs and COs benefitted from sufficient time to put robust plans in place for the delivery of their responsibilities under the legislation, from targeted public awareness activity to the booking of polling places and the training of staff.

In addition the Electoral Commission also recommends (again my emphasis):

2.39 Following the 2011 referendum on additional powers for the National Assembly for Wales and the Parliamentary Voting System for the House of Commons, we recommended that for future referendums the detailed rules should be clear at least 28 weeks in advance of polling day, based on a statutory regulated referendum campaign period of 16 weeks.

Although the Electoral Commission cannot demand, where it recommends will be taken into account should there be a challenge to the Bill and it goes to a Judicial Review as undoubtedly it would should there be any form of corner cutting or fast-tracking.

Yet even with a relatively smooth process by the Electoral Commission’s recommendations there would be a ten month delay between an Act of Parliament and a vote: that obviously takes us well into 2016.

In addition Farage thinks he can determine the referendum question:

 “Do you wish to be a free, independent sovereign democracy?”

Despite the fact that the Electoral Commission has already put forward its proposals for the referendum questionits full report is here, Farage’s suggestion wouldn’t even pass the unambiguity test let alone the neutral one.

At this point I don’t know what to conclude. Either Farage is very poorly briefed which is a reflection on a lack of a decent research department despite having (now) 22 very well paid MEPs or he knows this and is deliberately demanding conditions that Cameron (or indeed anyone else) cannot possibly meet.

The latter of course allows UKIP to put forward the criticism that Cameron cannot be trusted which conveniently helps prop up Farage’s position. If one is to be cynical there’s nothing better than having a perpetual enemy to oppose to justify your own existence, especially in the absence of any party polices.

Either way the eurosceptic movement is being very poorly served by UKIP.

Advertisements

BBC License Tax Bullies

It is well documented that the state broadcaster known as the BBC has an institutional left wing bias, or more accurately perhaps we should describe it as has having a Guardian-based (London centric) bias – which is not necessarily the same thing.

More objectionable, from this blog’s point of view, is BBC bias regarding membership of the EU – this becomes acutely apparent with its EU coverage. Leaving aside the techniques it used in the early ’70s of removing “anti-marketeer” broadcasters at the behest of the then Tory Heath government, subsequent and various internal reports have detailed the fundamental lack of BBC impartiality.

The BBC’s own internal reports acknowledges albeit very reluctantly the problem of EU coverage – this is evident in the infamous Wilson report for example. The BBC’s “we’ve listened but we’ll do nothing” response to the Wilson Report is very familiar to any of us who have complained – as taxpayers our impotency is laid bare by BBC’s stock answers which amount to little.

The Wilson report is not the only accusation of BBC pro-EU bias – further independent analysis of BBC coverage of EU matters has delivered more damning evidence:

Consistent airtime imbalance between advocacy and presentation of the Europhile perspective and the Eurosceptic case in an overall ratio of 2:1.

Consistent presentational bias (in the limited time allocated) through treating Eurosceptic opinion as extreme rather than as an alternative policy approach ñ reflecting and supported by public opinion ñ to membership of the EU.

Poor journalistic standards, including inaccurate reporting of statistics and sources. For example, the BBC Programme Complaints Unit has acknowledged that figures on Irish inward investment were used misleadingly.

The wrong use of these figures influenced the coverage of the second Irish referendum on the Treaty of Nice in October 2002.

Of course it’s not helpful trying to persuade us that the BBC is impartial when it receives millions from the EU itself; funding which it tries to hide. Those of us who have fought for many years know the BBC pro-EU bias, and certainly I experienced it directly as a Parliamentary candidate in the 2010 election on a number of occasions.

Further suspicion of its significant lack of impartiality comes when we consider that the BBC, being a state broadcaster, was immune from EU single market competition rules in 2002:

Finally, part 5 gives Ofcom tough competition powers to act concurrently with the Office of Fair Trading. Ofcom will be able to use general competition powers, but we are also retaining, very importantly, sector-specific competition rules for broadcasting—a vital part of protecting markets that do not deliver key policy objectives purely by leaving them to competition alone. Ofcom will have flexibility to use sector-specific powers, but it will not use them where it would be more appropriate for it to use general competition powers.

Of course we would argue that the BBC can be as bias as it like except for the simple fact that its funding in the main comes from threats to send UK citizens to jail on failure to pay its television tax. Thus it has an inherent principle that it should be bound to be impartial. Failure to do so makes it morally right to withdrawal our funding.

It then clearly fails, and with this in mind it’s odd then to observe that a nation which comprehensively rejected a poll tax under Margaret Thatcher is largely willing to accept what is a poll tax on a widely used item which provides information. A poll tax which is regressive and so affecting the poorest the greatest.

Aside from being regressive it is a television poll tax which enables the BBC to essentially be immune from market forces – no-one has to take responsibility for institutional and systematic failings.

In addition to the lack of accountability, it also means that the BBC has the power to try to bully those who do not conform when it comes to paying the television tax. YouTube has a plethora of examples of bullying when it comes to collecting the television tax.

Nothing can demonstrate this culture better than the BBC’s notorious and sinister ‘Big Brother’ type propaganda; “We know where you live“. Oddly this particular BBC advert for its license fee, which was withdrawn after protests, has proved to be harder to find on the internet than we would reasonably assume for a relatively recent campaign,

And it is for these reasons I no longer pay my license fee and I haven’t for around five years. Using a PlayStation 3 (PS3) or now a PS4 to view television programmes on demand removes me from the need to legally have a license. In addition I have withdrawn TVL’s implied right of access to my property and that so far seems to have done the job in terms of being harassed. I rarely receive reminder notices nor have I ever had a “visit”.

Yet just this week a young single mum, who has three children and lives not far from me, has been on my doorstop in tears. I have known her for over 10 years. Financially restricted she doesn’t pay her tv license.  Yet while she was briefly visiting her neighbours, a TVL Visting Officer (VO) entered her property having been let in by her 11 year eldest child. There where no adults in the property at the time. As a consequence TVL are trying now to use evidence gained as a result against her.

This completely contrary to the guidelines which are perfectly clear:

Entry To Premises.

7.0 When there is admitted or suspected evasion, or where the interviewee claims that there is no television, the VO should ask permission to enter the premises in order to confirm this.

Premises must never be entered when the only person present is a child/minor.

We would view that entering a property with only minors present would not only be a legal problem but also one which a VO would consider puts them in a position of vulnerability regarding accusations of inappropriate behaviour. How revealing that didn’t occur to him in his enthusiasm to fulfill a target.

The requirement to pay for a TV license comes under the Communications Act 2003 and Communications (Television Licensing) Regulations 2004 (as amended). A licence is not needed simply for holding a television set itself, but merely makes it an offence to watch or record television programmes as they are being broadcast including on other platforms such as; satellite and cable channels, mobile phones and the internet.

So how ironical that it’s not the bullying nature of the license fee collectors that will undermine the BBC…but technology, which is embraced by the BBC itself.

The Decline Of The Westminster System: The Fusion Of Powers

 

As we edge closer to the general election in May, it is rather inevitable that the polling would show a trend in decline regarding UKIP’s support, which has been consistently argued by EUReferendum:

Talk of a major Ukip “revolution” at the general election looks to have been seriously overblown, says Politics.co.uk, a view based on new constituency polling released by Lord Ashcroft.

The data show that Ukip is not on course to win any of its key target seats currently held by the Conservatives. Most worrying for the party, we are told, in the poll of Boston and Skegness – where Ukip won its largest majority in last year’s council elections – it has been pushed back into second place.

There are a myriad of reasons for a decline in UKIP’s poll rating. As has been well documented here and elsewhere, such as Complete Bastard, is that UKIP’s problems have in the main been self inflicted. There is a fundamental lack of coherence, a geographical divide in message – depending on Labour areas or Tory ones, no fully worked out policies, and u-turns in under 24 hours at the whim of the party’s leader.

So-called policies which do manage to remain intact, on its website, are almost identical to the ones contained within the 2010 manifesto which Farage infamously dismissed as drivel.

Thus, with the decline in UKIP support, we can note with wry amusement that UKIP will be having their Spring Conference in Margate – where apparently we will see the launch of UKIP’s manifesto. For those who may have not visited Margate recently, it would be described by estate agents euphemistically as ‘tired‘. Many of its attractions, like the Winter Gardens, are in need of urgent repair.

However we also consider that the UKIP has an inherent problem, which is not entirely its fault, and that is the failings of the “Westminster System” and First Past The Post. ‘Winning’ the Euro elections is one thing, but with the business end of a Parliament coming to its end, and a looming election, the electorate have real choices to make. Ultimately they have to make a decision on who they would like as Prime Minister. UKIP is going to face a squeeze in an electoral process that is a Presidential System by proxy.

As Tory Michael Heseltine noted on BBC’s Question Time last night (04:30 mins in):

“There’s only one choice Cameron and Tories and economic recovery or Miliband and Balls the people who caused the economic problems in the first place.”

The Westminster System is no longer about electing MPs but electing Prime Ministers by proxy. Further confirmation comes with the forthcoming leaders’ debates which we have criticised here.

Interestingly we can also look back to the 19th Century to make our case with Chartism. Chartism: A New History by Malcolm Chase is a fascinating account of a British mass movement for democratic rights in the 19th Century.

Chartism was one of the very rare moments in British history where it is legitimate to speculate how close the country came to revolution. And what is interesting is Chase’s attention to detail which allows the story to come alive for those in the 21st Century. One intriguing passage was this regarding the presentation of the first petition:

The Petition was finally presented to the House of Commons on Friday 14 June 1839. Few Chartists had expected it to make a difference to parliamentary attitudes and in this respect 14 June did not disappoint. No indication was given whether MPs would formally debate it, and when Attwood and Fielden…rolled the giant [petition] into the Commons chamber it was greeted with laughter.

And Chase then describes the attempts to present the massive second petition in 1842:

[It was arranged] to bring ‘the Chartist leviathan petition’ direct to the Commons chamber while it was in session. But…Parliament’s officials had realised the physical problem this posed. The Petition became jammed tight in the Members’ Entrance. Attempts were made to dismantle…part of the door frame; but eventually the Petition had to be disassembled and taken into pieces into the Commons. Heaped up on the floor of the chamber, it dwarfed the clerks’ table on which, technically, it was supposed to be placed.

One senses here the familiar futility of lobbying a system that would not listen. But those with a keen eye will notice that the Chartists’ leviathan petitions, in 1839 and 1842, were delivered to Parliament. Not to Government, not to Number 10, but to Parliament – to representatives.

In stark contrast we now see petitions presented to the Prime Minister (government), and with the rise of e-petitions such process is now made official:

Alone this little detail illustrates that the people now, perhaps unconsciously, have appreciated how the power has been consolidated and fused between the government and Parliament. Bypass the monkeys – the middle men – and go straight for the organ grinder. And it’s with great irony, that Chartists tried to petition representatives when they had no vote and now in the age of universal suffrage we no longer bother.

Thus if we want an effective ‘people’s army’ and a ‘revolution’ we need to fundamentally change our failed parliamentary system. Demand #3 of the Harrogate Agenda is as good as place to start as any:

3. Separation of powers:
The executive shall be separated from the legislature. To that effect, prime ministers shall be elected by popular vote; they shall appoint their own ministers, with the approval of parliament, to assist in the exercise of such powers as may be granted to them by the sovereign people of England, Wales, Scotland and Northern Ireland; no prime ministers or their ministers shall be members of parliament or any legislative assembly;

The EU And Telecoms (Part 1)

With this piece, in part 1, we turn our sights on the EU’s complex role in member state telecommunications regulation, with emphasis on the UK. The above graph gives some indication of the intricate nature of telecommunications regulation within the EU and the partial subservient relationship for a member state such as the UK.

As can be seen above (click to enlarge) the UK’s main regulator Ofcom has direct relationships with EU bodies which bypass UK ones, as well as having interaction domestically. The EU and UK regulatory structures increasingly are indistinguishable from each another.

Yet also the bewildering emergence and relentless progress of technology means we will also see that EU has only become a partial player in what is increasingly a global regulatory industry. This becomes evident when we consider that even within Europe itself where many functions are regulated beyond the EU.

An earlier example can be seen acutely with the establishment of the mobile phone standard GSM in the 1980s. GSM, with very little if at all EEC/EU involvement, was an illustration of European nation state co-operation and subsequently the GSM standard became a global success story.

The GSM agreement was reflected in the long standing establishment of non-EU bodies include the European Telecommunications Standards Institute (ETSI) and the European Conference on Posts and Telecommunications (CEPT).

Despite the existence of non-EU bodies it is with no surprise, due to the inherent cross-border nature of telecommunications, that the EU saw the sector as an opportunity to use the growth of telecoms to try to facilitate ‘ever closer Union’ further.

Pre-Maastricht the EEC had attempted to use the Terminal Equipment Directive (88/301/EEC) – issued under Article 90 of the Treaty of Rome – to force the liberalisation of telecoms including the satellite and mobile markets. Despite Member States objecting on the basis it was outside the EEC’s own competences (satellite communications for example have military implications) the ECJ after 30 months of legal wrangling upheld the Directive.

Naturally the solution for the EEC (EU) to such legal wrangling was to make communications a competence via a Treaty. Thus not long after, we see the clear intentions of the EU’s ambitions when in the Maastricht Treaty (Article 129 D) it for the first time gave the EU competence in the field of telecommunications (my emphasis):

The Maastricht Treaty gave the EU the task of establishing and developing trans-European networks (TENs) in the areas of transport, telecommunications and energy, in order to help develop the internal market, reinforce economic and social cohesion, link island, landlocked and peripheral regions with the central regions of the Union, and bring EU territory within closer reach of neighbouring states.

Even in the early 1990s telecommunications, which for obvious reasons was becoming a globalised industry, increasingly relied on global bodies to set global standards for convenience. The EU though envisaged the sector more as a mechanism and means to facilitate its own political union – despite the example of GSM and mobile technology where nation states had led and the EU had merely followed.

Typically then we saw in the early 1990s the EU arguing in favour of more telecommunications liberalisation with a view to completion of the internal market with an EU wide regulator. Emboldened by new powers in Maastricht led to the EU Commission launching a strong push to adopt a common strategy for the creation of a European information society driven by a European information infrastructure. In 1993, the Council of Ministers (EU) agreed to fully liberalise voice telephony services by 1 January 1998:

[The EU Commission] it is asking the Council to decide  on a number of principles contained in the Commission communication, in particular:

   –  the complete liberalization of services;
   –  a transitional period ending in 1998
   –  a precise schedule  in two main stages with a consolidation
      phase (1993-1995)  and a phase of gradual opening up to
      competition  (1996-1998);
   –  the role of infrastructures.

Following  its discussion,  the Council  instructed the Permanent Representatives Committee to continue work on this dossier with  maximum efficiency,  in order to enable the Telecommunications Council convened for 16 June to arrive at an agreement.

In addition the European Council meeting of December 1993, in its Presidency Conclusions considered a European Commission policy paper – European Commission White Paper, Growth, Competitiveness, Employment – The Challenges and Ways Forward into the 21st Century, 1993 which argued:

The Community needs an adequate frame-work for the developing of new market opportunities. In Europe some sectors are traditionally the exclusive preserve of non-market services or public utilities, in particular when it comes to the fulfillment of public needs. Reforms aiming at separating the different functions of public authorities with regard to the supply of such services as producer, purchaser and regulator, in sectors such as health care, telecommunications, etc. should enable the needs of users to be better served at less cost for public finances and with market creation potential .

The Presidency Conclusion on behalf of Member States accepted the EU Commission White Paper noting:

A more decentralized economy, given the growing importance of the local level; the economy needs to be geared to the possibilities offered by the new technologies…

…the trend towards a decentralized economy, which has been made possible by new information technologies, must be encouraged….The European Council asks the
Commission to examine ways of achieving this objective.

Thus the European Council requested a report be prepared for its 1994 Corfu meeting by a group of prominent persons on the specific measures to be taken into consideration by the Community and the Member States for the infrastructures in the sphere of information.

Such a group ‘of prominent persons’ became known as the ‘High Level Group on the Information Society’ – organized by the Commission and chaired by the then Commissioner for the Internal Market and Industrial Affairs (soon to become the Commissioner for Industrial Affairs, Information and Telecommunications Technologies), Martin Bangemann – a former leader of the German Free Democratic Party (FDP).

By 1994 the High Level Group on the Information Society produced a report for the 1994 European Summit; “Europe and the Global Information Society: Recommendations to the European Council” a report which became widely known as the Bangemann Report and was adopted by the European Council, Corfu, June 1994.

The report urged the European Union “to put its faith in market mechanisms as the motive power to carry [Europe] into the information age. This meant that actions must be taken at the European level and by Member States to strike down entrenched positions which put Europe at a competitive disadvantage.”

The report proposed “fostering an entrepreneurial mentality to enable the emergence of new dynamic sectors of the economy; [a means of developing] a common regulatory approach to bring forth a competitive, Europe-wide, market for information services.”

It then noted:

In addition to its specific recommendations, the group proposes an action plan of concrete initiatives based on a partnership between the private and public sectors to carry Europe forward into the information society.

The Bangemann Report was to have a very significant and lasting influence on the framing of subsequent EU policies for Information and Telecommunications Technologies (ICT) research and communication services. For many years following its publication the report was repeatedly cited as a kind of “Bible” by Commission documents and officials on a very wide spectrum of industrial and social policy initiatives. For example it was explicitly invoked as a framework for an important 1994 document setting out a new strategy for the audio- visual sector in the EU single market context and another paper in 1994 titled ‘Europe’s way to the Information Society: An Action Plan‘.

Yet despite its significance within EU circles the Bangemann report was out of date almost as soon as it was written. It had largely ignored the emergence of the internet and what it did acknowledge was to highlight its basic lack of understanding and knowledge. Consequently it expressed a level of discomfort – page 27 (my emphasis):

Internet is based on a world-wide network of networks that is not centrally planned. In fact nobody owns Internet. There are now some 20 million users in more than 100 countries. The network offers electronic mail, discussion forums, information exchange and much more. Internet is so big, and growing so fast, that it cannot be ignored. Nevertheless, it has flaws notably serious security problems. Rather than remaining merely clients, we in Europe should consider following the evolution of Internet closely, playing a more active role in the development of interlinkages.

In the meantime, while largely failing to anticipate or understand the internet, the liberalisation process in other telecommunications sectors was being extended post 1994, for example in satellite communications.

By 1995 via the American based GPS had became a system that had broken out of realms of science fiction and used as an everyday tool for navigation by private vehicles, ships and aircraft. The EU in response planned to install a rival system called Galileo where it recognised “the value of a space programme, of which Galileo is a part, in completing the process of European integration“.

In contrast to the liberalisation process, and interestingly, the intention to adopt similar criteria to public broadcasting services (PBS) came with a great deal of reluctance – the EU itself noting that “the relationship of European Union policy and Public Broadcasting Services could be summarized as a historic dilemma without a clear answer. The balance between a strong European competition policy and public broadcasting survival has still to be found. Perhaps the text cited below explains the Gordian knot faced by European Union”:

“We need balanced solutions able at the same time to respect two important points. The first is the basic function of Public Broadcasting Services in the most of EU Member States. This fact has been recognised recently in Amsterdam Treaty with the Public Broadcasting Protocol. The second is that European integration is based on free market and equal competition. The future of the dual European TV system depends on how we can be able to combine these two apparently incompatible principles” (The digital age: European Audiovisual Policy. Report from the high level group on audiovisual Policy, 1998).

In essence the EU faced a dilemma; how to make compatible its own competition rules with public state funding of PBS. Article 87 forbids the state aid, which distorts or threatens to distort competition, insofar as it affects trade between Member States but with broadcasting an exception was made which notably meant that PBS could remain publicly funded to ensure the promotion of the “democratic, social and cultural needs of each society and to the need to preserve media pluralism”.

This role of public service broadcasting in promoting cultural diversity was recognised in 2005 by the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.

The reluctance of the EU was undoubtedly due to its appreciation that member states’ PBS networks would be more sympathetic to its integration project under the guise of the ‘cultural need’ criteria. This becomes especially evident when we consider the BBC receives a substantial amount of money from the EU and possibly related (or not) has long been criticised for pro-EU bias.

Public broadcasting aside, generally from 1994 onwards, in the context of developing the ‘information society’, general liberalisation of telecommunications structures was presented as the way to develop multimedia – cable television networks were ‘liberalised’ in 1996, with mobile communications following on 1st January 1998.

Bangemann’s report thus was hugely influential, and despite failing to anticipate properly or appreciate the approaching dominance of the internet, its vision of telecommunications liberalisation would influence the EU Commission’s thinking regarding the internet.

The EU’s determination to ‘liberalise’ markets resulted in a growth of “regulator watching”, which followed closely the experiences of the privatisation drive in Member States particularly the UK. “Regulator watching”, or a regulatory state, provided a convenient opportunity in extending EU governance across member states via a regulatory body.

By separating out the service provision by companies from sector oversight privatisation, and the creation of markets, allowed conditions to exist for the adoption of common rules by an independent regulatory body and the conditions of access to the market for new operators to be harmonised. All of which naturally increased the call for ‘more Europe’ under one EU regulator.

And in part 2 of the EU’s effect on the telecoms industry we will see how it attempted to facilitate the emergence of an EU regulatory body.

Leaders’ Debates: UK Democracy’s Failings In Plain Sight

Within our ‘representative democracy’ expressed by so-called Parliamentary sovereignty the idea of Prime Minister debates, first instigated in 2010, is absurd if not downright objectionable.

The electorate in a General Election do not vote for the PM, instead they vote for their local MP which helps form a Parliament from which a Prime Minster is chosen.

One often consistent criticism of Gordon Brown’s tenure up until the 2010 election was that he was ‘not elected’. But of course he was elected – by the constituents of Kirkcaldy and by members of his own party – it was that he simply didn’t have an electoral mandate (as neither did Major for example in 1990). Brown’s position was less a reflection of the failings of himself and more a reflection of the failings of current Parliamentary system.

More seriously the lack of separation of powers represents a system where MPs become hopelessly compromised – by default. After being elected for 5 years their main objective is to achieve a ministerial career rather than attempt to hold the government to account. They want to join the government not listen to their constituents; which one pays more…?

The constituents of Witney, Doncaster and Sheffield will know this best – their own MPs wear two contradictory hats, a situation that Witterings from Witney knows only too well.

And with this in mind we see Cameron and Miliband, among others, engage in unedifying comments regarding a leadership debate without so much as a by-your-leave to the rest of us:

Did you notice that the letter sent to David Cameron about disputed formats for the election TV debates was itself a delicate contribution to pariah politics? Though identical in contents, as Rowena Mason explains, the missives were dispatched separately by Ed Miliband, Nick Clegg and Nigel Farage. Ed and Nick did not sign the same letter as Nigel, oh dear no.

Thus it’s acutely apparent that the entire idea of leadership debates is an admission by the establishment that Parliament is failing and that we, as an electorate, are now effectively voting for the executive – the government and the Prime Minister – by proxy.

This becomes even more (offensively) absurd when we consider that Nigel Farage, although leader of UKIP, is not currently an elected MP even though his party has two elected MPs and Farage himself is currently not on course to win South Thanet seat in May.

Thus more than ever the case becomes stronger that we need to directly elect our Prime Minister – and as a consequence separate out more formally the executive from Parliament. This idea is nothing new, it was proposed back in the 18th Century by Thomas Paine. Although born in England, via Common Sense, he was one of the fiercest critics of what he regarded as British tyranny.

The current, and rather childish standoffs over a Prime Ministerial leadership debate merely confirm that such reform is now very long overdue.

Blocked By Carswell!

On this blog we have followed Douglas Carswell on Twitter for many years; when he was a Conservative MP and now as a UKIP MP. However recently (not long after he has joined UKIP) we are now blocked from seeing his twitter feed as the above screenprint illustrates clearly.

To block our Twitter account is obviously his prerogative, but it confuses us why… Our Twitter account rarely uses bad language, never insults nor is gratuitously offensive. In fact our Twitter exchanges with Douglas Carswell have been minimal to say the least.

Yes, this blog has not always been complimentary about Carswell, but given his inconsistent position on aspects of EU membership among other matters then as an elected MP he should expect a degree of scrutiny and questioning.

It’s thus strange from the same chap who argued for more internet interaction in politics as per the Plan page 24:

Analogue politics in a digital age.

Never has the expectations gap been so wide. when we book a holiday or buy a DVD we expect choice and immediacy. we browse the internet for options, we click a couple of buttons, and we get what we came for.

Compare this to the experience of applying for a driving licence, or getting planning permission – let alone trying to get a child into a particular school. The technological advances of the past decade have empowered consumers in everything except their dealings with the state.

Previous generations were much readier to accept that what they wanted might not be available and that, even when it was, they would have to queue for it.

But the internet has created almost unlimited capacity, eliminating storage costs and reducing barriers to entry. whatever we want, the chances are that someone somewhere will be selling it. And it is now more feasible than ever to deal with that someone – unless that someone is a government agency.

Odd again when we consider this from page 27 from the Plan:

The web has made it possible, as never before, for a politician to come from outside, appealing directly to voters over the heads of party bigwigs.

Even more odd behaviour when we see this from Carswell’s blog in 2013:

Twitter is killing spin

Twitter is a great detector of bull. It is changing the way that news is managed fundamentally. And for the better.

We guess though we shouldn’t expect any different. Like every other politician what Carswell says is not what he does. He advocates open primaries as per page 23 of the Plan:

Many of the peculiar features of American democracy – the election of public officials, from the school board to the Sheriff; the fiscal and legislative autonomy of the 50 states; the use of open primaries to select candidates; term limits and recall procedures to control politicians; open congressional hearings for big appointments; local and state-wide referendums – are designed to prevent law-makers from becoming remote.

Yet when he defected to UKIP he was made the UKIP candidate in Clacton with no open primaries and as result of trampling all over UKIP party rules to the detriment of the hard work by Roger Lord.

Presumably UKIP is supposed to be the new anti-establishment politics, but for the life of me I can’t see the difference.

Oftel, Ofcom And BT

With this piece we seek to explore the nature of the regulatory structure of telecommunications within the UK as illustrated in the above diagram. The intention is an attempt at simplicity which is to look at national, EU and international regulation in turn.

However problems emerge in the sense that such dividing lines don’t truly exist – the EU for example is a fundamental part of the UK government, as is international governance. This becomes especially so with telecommunications. An example is that the Body of European Regulators for Electronic Communications (BEREC) has a direct relationship with the UK regulatory body The Office of Communications (Ofcom) as do indeed EU bodies such as COCOM.

So while we wish to deal with each in turn as an attempt to illustrate clearly the very complex world of telecommunications, we appreciate that there is a very fine line to be drawn between attempting simplicity and being inaccurate. With this in mind the above picture showing the EU as a separate ‘cloud’ and the following piece should be viewed with EU and international governance in mind, and as a consequence much overlap will occur over the next few pieces.

Yet even on just a domestic basis regulation is continually being updated, the above diagram was relevant until April 2014. The Enterprise and Regulatory Reform Act 2013, merged the ineffectual Office of Fair Trade and Competition Commission (established in 1999) to create the Competition and Markets Authority (CMA) meaning the diagram now looks more like this below:

Further domestic complexity was brought to the fore by the Scottish independence vote; that despite political and legislative devolution to Wales, Scotland and Northern Ireland, there aren’t any formal mechanisms which involve the devolved legislatures with representation in telecoms governance and oversight.

Governance at a global, EU, ministerial and and regulator levels exclude representation from the UK’s four nations. For example in the Scotland Act 1998 which established a devolved Scottish Parliament, telecoms was kept as a “reserved” matter – a constitutional term meaning that it was to be decided by the UK Parliament as per Section C10:

  1.     Telecommunications and wireless telegraphy.
  2.     Internet services.
  3.     Electronic encryption.

With Scotland rejecting independence recently, telecoms regulation remains a democratic challenge within the UK. Ofcom appointed the Advisory Committee for Scotland (ACS) to advise Ofcom “about the interests and opinions, in relation to communications matters, of persons living in Scotland.” However as only an advisory committee it sits to one side, unelected and unaccountable. The same lack of ‘devolution adjustment’ also applies to Wales and Northern Ireland. This could be consider unsatisfactory when telecoms across the UK have different needs with regard to rural location, broadband and 2G, 3G 4G mobile phone access.

Thus not unsurprisingly, with this in mind, the demand for an independent Scotland to have a say in telecommunications regulation was made in its White Paper, Scotland’s Future – Your Guide to an Independent Scotland (page 276):

The government of an independent Scotland will have the powers to properly prioritise the needs of rural Scotland in relation to telecommunications…

Scotland’s dissatisfaction with regard to a lack of representation laid bare on page 311 (my emphasis):

We have also felt the impact of other decisions in communications policy that did not take account of Scotland’s circumstances. When 3G mobile licences were auctioned in 2000, an initial coverage target of 80 per cent of the UK population was set. This was increased to 90 per cent of the UK population in December 2010. Despite the efforts of the Scottish Government, a distinct Scottish target was not set. Currently, 3G coverage in Scotland is the lowest of the four UK nations, reaching only 96 per cent on the most optimistic estimates. 

Furthermore, there is a disparity between urban and rural Scotland. Coverage in rural Scotland drops to as low as 92 per cent, demonstrating that there will always be poorer coverage in rural areas unless these areas are given priority in allocating licences.

A contrast could be considered between the lack of telecoms representation by Scotland within Ofcom and with Ofcom’s broadcasting responsibility – where the BBC, with its Audience Council Scotland, has a representative member for Scotland on the BBC Trust which is currently Bill Matthews.

To explain Ofcom’s lack of coherence we can see that one of the notably observations taken from the above graph as indicated by the arrows is that in terms of its relationships with other interested regulatory bodies Ofcom has a prominent central role to play in UK communications regulation. But it is a role that is always inconsistent.

The lack of consistency has been a consequence of a lively mix of ever evolving nature of technology, of the growth of “regulator watching” and of the ever integration of the EU and international considerations.

Domestically the implementation of privatisation of previously nationalised industries under Margaret Thatcher led to a growth of “regulator watching” with often mixed success for the customer, and this was particularly apparent in telecoms.

Ofcom’s predecessor was the telecoms regulator Oftel. Oftel was established under the 1984 Telecoms Act  which had privatised the telecoms market, known as the “Abolition of British Telecommunications’ exclusive privilege”. It was the first major privatisation by the then Conservative government.

Oftel was often accused, particularly towards the end of its regulatory life, of being very sympathetic to BT and with good reason. BT’s relationship with the regulator Oftel was one of “coercive-diplomacy” rather than a telecoms company being more subservient to an assertive telecoms regulator.

The relative impotency of Oftel largely stemmed from BT remaining intact instead of being broken up; a decision which reflected the government’s view on maximising proceeds from shares and future tax revenues on what was the world’s biggest telecommunication company. But by remaining effectively as a monopolist telecoms company BT had every incentive to exclude competition by refusing interconnection between networks or threatening competition by fixing interconnection charges as high as possible.

So what followed was “coercive diplomacy” between the powerful monopolistic BT and its less powerful regulator. This somewhat uneven conflict was particularly encouraged by modifications to BT’s operating licenses. BT was entitled to reject licence modifications proposed by Oftel under Section 12A of the 1984 Telecoms Act.

Thus despite privatisation, many difficulties were experienced by other companies attempting to enter a market wholly dominated by BT, particularly with its inherent well established infrastructure. A problem acknowledged by Oftel itself in its 1st report of 1984:

BT is competing in a large number of spheres of activity in the telecommunications industry from a position of significant strength, resulting from such factors as its established reputation and its established customer base supported by a selling organisation of extensive scope. Understandably many organisations have been apprehensive about the possibility of effect competition in this situation.

Problematic regulation and promotion of competition could also be seen when Mercury (Cable and Wireless) obtained its licence in 1985.

According to condition 13.1 of BT’s licence at the time, any competitor which had been licensed had to enter into a connection agreement with BT to run a connectable system and therefore needed connection to BT’s network. BT’s reluctance to succeeded a measure of market share became apparent in 1985 when Mercury and BT had failed to agree terms for a connection contract.

So Mercury applied to the Director General of Telecommunications (DGT) to make a ruling under the conditions 13.5 and 13.6 of the BT licence. However while the outcome eventually favoured Mercury, who had incurred significant financial costs, the difficulties of overcoming BT’s market place dominance meant that UK privatisation of telecommunications remained little more than a duopoly until the early ’90s.

BT’s dominance as underpinned by Section 12A meant it could bypass Oftel by threatening to force the issue to go for consideration by the then Mergers and Monopolies Commission (MMC) – a body which was eventually replaced by the Competition Commission in 1999, (given further powers under the Enterprise Act 2002) and then itself replace by the CMA.

By going to the MMC then open up the possibility of third party challenges to the cosy and convenient alliance of both BT and Oftel. Thus at the time Section 12A gave both strong incentives to negotiate terms to avoid uncertainties outside the charmed world of telecommunications that a third party may induce. The threat of a big stick in the guise of MMC gave each party a mechanism which could be used to bear down pressure on the other.

As a result Oftel was to suffer from “regulatory capture” by BT, eventually becoming as a regulator unfit for purpose. A successor was needed to further open up the telecoms market to competition. That came in the form of Ofcom whose prominence as the major regulator was established by The Communications Act 2003 (TCA)

Yet it was less Oftel’s failings as a regulator that led to its demise but more a need to implement a number of EU directives into UK law which resulted in the Communications Act – EU Directives which unsurprisingly sought to further harmonise communications regulation across the European Union under the guise of modernisation but naturally implied a further step towards EU integration. Such EU Directives included; Directive 2002/19/EC, Directive 2002/21/EC, and Directive 2002/22/EC.

Using these EU Directives the then Labour government established Ofcom which inherited the duties of five separate other former regulators – the Broadcasting Standards Commission (BSC) the Independent Television Commission (ITC), Oftel, the Radio Authority and the Radio Communications Agency.

Out of the TCA Ofcom became a “super regulator” and it comes as no surprise given Ofcom’s inheritance that it was criticised for having “a too wide a brief“. Not for the first time this was less a reflection of EU law and more the habitual enthusiasm of UK governments to gold plate EU law. Thus we have to query whether the initial establishment of Ofcom needed such a wide brief to comply with EU law or whether it was the political nature of the then Labour government which had unwelcome habit of reliance on big state solutions.

However it was not only the wide ranging powers that posed Ofcom problems but the inconsistency of those powers. Despite inheriting the briefs of the ITC, BSC and the Radio Authority it became clear that Ofcom was to have limitations in certain areas for domestic political reasons.

During the Parliamentary debate in 2002 on the Telecommunications Bill, Labour MP, Secretary of State for Culture, Media and Sport, Tessa Jowell argued in support of the Bill that:

Finally, part 5 gives Ofcom tough competition powers to act concurrently with the Office of Fair Trading. Ofcom will be able to use general competition powers, but we are also retaining, very importantly, sector-specific competition rules for broadcasting—a vital part of protecting markets that do not deliver key policy objectives purely by leaving them to competition alone. Ofcom will have flexibility to use sector-specific powers, but it will not use them where it would be more appropriate for it to use general competition powers.

Reading carefully Tessa Jowell’s statement indicates very clearly that the BBC was not to be fully within the remit of Ofcom a single independent regulator for the UK’s broadcast media. From the outset its creation is fatally flawed as long as the biggest and most powerful broadcaster is not fully under the supervision of the independent regulator for the UK communications industries.

Other issues which became apparent with the TCA 2003, as is typical of the UK’s relationship with the EU, was that it took advantage of EU legislation as an excuse to go further with lawmaking and introduce other controversial parts. An example being, Section 127 of the Act 2003 which makes it:

…an offence to make improper use of a public electronic communications network such as grossly offensive, indecent, obscene, menacing or annoying phone calls and emails.

This was used notoriously used against Paul Chambers who joked on Twitter that he would “blow Doncaster airport sky high”, a charge which he was subsequently cleared by the Supreme Court in London.

With Ofcom we can see that a consequence of a national regulatory body emboldened by new powers is that they purse paths different from government national bodies unhindered. In the UK this was reflected by Ofcom’s decision in 2003 having been established by the TCA 2003, in response to the telecommunications market developing rapidly, to conduct what it called a ‘root-and-branch’ strategic review of the regulatory regime.

Unlike its predecessor Ofcom, determined to breakup BT’s monopoly further, concluded in 2005 a major strategic review of the fixed telecommunications sector by using its separate powers under the Enterprise Act 2002 – itself a result of EU Directives. The objective of the review was to determine whether the sector was suffering from competition problems of such a persistent nature that they could not easily be remedied using Ofcom’s specific market review powers under the TCA.

The outcome of the strategic review meant that BT offered a host of undertakings to Ofcom by which it agreed to set up a separate network access division called Openreach (a so-called “BT group business”) and also to offer its wholesale products on an equivalent basis to both external customers (Cable and Wireless, Carphone Warehouse etc) and its own downstream divisions. The undertakings have brought about a fundamental shift in the way in which BT had conduct business with all its customers, meaning all were now on a more equal footing in terms of wholesale access.

Thus despite the EU inspiration behind TCA and the Enterprise Act, from a regulatory perspective, the establishment of Openreach and its relationship to external customers is currently unique to the UK and is being actively studied by regulators in other European countries who experience similar competition problems arising from the presence of a large incumbent telecommunications operator.

The term “super-regulator” though does not mean Ofcom is the only regulator when it involves telecommunications, there are at least sixteen others and the list below demonstrates with great clarity the criticism that Ofcom has a brief which is too wide, and a reflection of the diversity of telecoms: it has its tentacles everywhere:

1)   Advertising Standards Authority (ASA)
2)   Telephony Preference Service (TPS)
3)   Ombudsman Services
4)   Communications and Internet Services Adjudication Scheme
(CISAS)
5)   PhonepayPlus
6)   Internet Watch Foundation (IWF)
7)   UK Council for Child Internet Safety (UKCCIS)
8)   UK Safer Internet Centre
9)   Child Exploitation and Online Protection Centre (CEOP)
10) NICC – UK home of network interoperability standards
11) Go On UK – “empowering everyone in the UK to reach their digital potential”
12) NGN UK – dormant now part of OTA
13) Office of the Telecommunications Adjudicator (OTA)
14) Gambling Commission
15) Information Commissioner’s Office
16) British Board of Film Classification (BBFC)

Not surprisingly with sixteen different organisations we have a complex mixture of Ofcom approved and EU financed regulatory structures. An example of the myriad structure can be found with the Internet Watch Foundation which came to media attention when it censored a Wikipedia page over an entry regarding an album cover by the German band The Scorpions. Here we see a registered charity, which works very closely with Ofcom (although Ofcom has no powers to regulate the internet) and receives EU funding. Susie Hargreaves the Chief Executive has also joined the BBFC’s Consultative Council.

Further evidence of the diversity and Ofcom’s overreaching remit comes via the Advertising Standards Agency which describes a system as being one of “co-regulation of broadcast advertising” – it is self-regulation within a co-regulatory framework. It is underpinned by an enabling statutory instrument, The Contracting Out (Functions Relating to Broadcast Advertising) and Specification of Relevant Functions Order 2004 and a formal Deed between Ofcom and the ASA (Broadcast), BCAP and Basbof.

Interestingly Ruth Sawtell who is on ASA Council is also a non-executive director of PhonepayPlus, the regulator of premium rate telephone services.

In addition to the hydra nature of Ofcom, and its regulatory offspring, telecommunications are also responsibilities imbued within various government ministries and the agencies for which they are responsible, requiring within government itself a need for coordination as the table below illustrates (click to enlarge):

Thus it’s apparent that even on a domestic basis telecoms regulation is diverse, overlapping and often incoherent. In the next piece we will move our focus away from domestic regulatory structures and turn our sights on the EU’s role in UK telecommunications regulation.