Saturday, 24 January 2015

1 Down, 23 To Go


For all the celebrations last May from UKIP at 'winning' the European elections (on a very low turnout), and achieving an unprecedented 24 MEPs, those who had seen it all before were instead mentally marking up the odds of how many UKIP MEPs would be left by 2019.

Anticipation and history suggested strongly that the tally won't be good. UKIP's track record of keeping and maintaining MEPs is remarkably poor. To lose one or two maybe careless but to lose over half during the last Parliamentary session suggests a far more serious problem within the party.

And it's in this context we note that the Telegraph reports that UKIP MEP Bashir has defected to the Conservative Party:
One of the UK Independence Party’s most senior politicians has defected to the Conservatives in a major blow to Nigel Farage’s general election campaign.

Amjad Bashir, a Ukip MEP and the party’s leading Asian figure, told The Telegraph that Ukip had become a “party of ruthless self-interest” that was incapable of delivering a referendum on membership of the European Union. 
Interestingly the Mail also reports the defection with a different headline emphasising perhaps there was a different motive:

A senior Ukip MEP has defected to the Conservative Party as it emerged that he was suspended pending investigations into 'extremely serious financial and employment questions', the party said.
With two contrasting accounts for the defection it's naturally difficult to say for certain which report would be the most accurate. However given that the Mail's 'breaking news' piece had a link to the Telegraph website (which it very rarely does and is now removed) would indicate that Telegraph were planning this for a Sunday scoop. Thus all the signs suggest that having got wind of the defection the Mail has been briefed as a spoiler from sources close to Farage.

Whatever the true reasons though we can only agree with much of Bashir's analysis of UKIP:
In a damning broadside against his former colleagues, he described Ukip as “pretty amateur” and condemned its “ridiculous” lack of policies. He said the party was “delusional” about its chances of winning seats in May.
The lack of UKIP policies has long been issue and has led to defections before. Yet to point this out, even as rather gentle constructive criticism, invited much ridicule.

But the facts are clear, UKIP participated in the European Elections with no manifesto, and despite reassurances to its supporters by Farage leader that there would be a fully costed one by the 2015 general election we see little sign of one. Even here its deja vu all over again:
Ukip's policy chief has quit just six weeks ahead of the party's manifesto launch in February.
Thus UKIP candidates are being thrown into an election campaign with no party policies; a betrayal of those who have to campaign on doorsteps and in hustings meetings. No wonder many of them (maybe in frustration) are in absence sending out to the electorate the 2010 version which was dismissed by Farage as drivel.

So with a general election impending UKIP's catalogue of bad press is increasing substantially. Much of it self-inflicted is now entering its third month and shows no sign of letting up. It's clear there UKIP has significant problems which particularly suggests a deep dissatisfaction with the leadership.

Any idea that UKIP will hold the balance of power or even help the eurosceptic cause secure a referendum is looking wildly over-optimistic.

Thursday, 22 January 2015

Ex EU Commissioner Leon Brittan Dies

The headline, of course, could have just as easily said "Ex EU Commissioner Leon Brittan dies".

No doubt in part related to significant allegations made against him towards the end of his life, Brittan is seen as controversial.

But we mustn't also forget he was a long line of Tory MPs who supported further European integration and went "native" particularly over the UK's membership of the European Exchange Rate Mechanism - the very mechanism which led directly to the early '90s recession and so-called Black Wednesday. While Thatcher was fighting a rearguard action against membership, Brittan helped to isolate her.

The subsequent consequences of ERM membership were disastrous for Britain and for the rest of us.

One however appreciates the irony that being an EU Commissioner means always referring to the UK as a member state and never specifically naming the country of his birth (always "the country I know best" - in Euro speak) with the homophone that was his name.

We on this blog, rightly or wrongly, have never been a great fan of the phrase - or belief - of "not speaking ill of the dead". Our view of him while he was alive is no different now he's dead. To advocate otherwise would be dishonest...

Thursday, 15 January 2015

TBF's Local Council Is On Fire

Obviously we are unaware yet of the real reasons or motive, but the attack on South Oxfordshire District Council (SODC) based in Crowmarsh near Wallingford, Oxfordshire bears the hallmarks of a grudge.

In the early hours of the morning where there is likely to be no-one about bar possibly a couple of security guards, a man has apparently driven a car ladened with gas canisters into the Council building with devastating effects. It seems to reflect a determination to do the job properly.

The man's motives will undoubtedly become clear as the days pass, but given that on a daily basis I take Mrs TBF to work via Wallingford I can confirm that their usual Thursday bin collections have been unaffected - continuing as normal - with bin lorries which have £250 personalised "SODC" number plates attached on each lorry.

Wednesday, 14 January 2015

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.

Wednesday, 31 December 2014

Happy New Year

With 2014 now drawing to a close here at TBF towers we would like to wish all our readers a happy and prosperous 2015.

2015 has the potential of being rather interesting for eurosceptics with the impending general election in May (has it really been nearly five years since the last one...?). For us this may (or may not) prove to be a watershed in terms of the UK's membership of the EU and a promised referendum by Cameron should he win an overall majority.

Yet for the first time in decades, where the outcome of an election could have been confidently predicted, the 2015 general election is proving, so far, too hard to call. The Tories haven't yet achieved the 6% lead required just to have a majority, but Labour has its own problems being saddled with a leader who is clearly not a credible Prime Minister in waiting. Then we factor in the possible collapse of the Lib Dems and the rise of the "UKIP effect".

Perhaps the tight nature of the election reflects a national populace who have a low opinion of politicians overall, are expressing general apathy towards the process and see little difference between the bigger parties.

Eurosceptics though have a dog in the fight, namely Cameron's promise of a referendum on UK membership. As it currently stands anything less than a Tory overall majority denies us a potential referendum. This position may change in due course given that a week is long time in politics so just under six months is an eternity. Labour may also promise a referendum nearer the time. Anything can happen and this is particularly true of UKIP.

As we approach May, UKIP will inevitably face the traditional two party squeeze but it also faces other internal issues which have been seeping out in recent months. While newspapers have been conducting their usual summary and reflection of the year just past - the 'rise of UKIP' being one of them - it has been a very bad couple of months for the party. Bad headlines regarding allegations of unwelcome sexual harassment, racism and other shenanigans have led to a significant drop in poll ratings in recent weeks.

It is also true that what is emerging are internal tensions if not yet outright civil war within the party. The latest example being a leaked document reported by the Daily Mirror:
Ukip chiefs hired a City barrister to keep “bad stuff” hidden from the public, leaked documents show.
National executive committee meeting minutes from June 2013 detail how Matthew Richardson became Ukip secretary.

They state Mr Richardson’s role as party secretary would be deciding “whether to take injunctions out” when Ukip is criticised in the media.

The minutes state: “We need to ensure all of the bad stuff is kept out of the public domain.

“As party secretary (Mr Richardson) would try to ensure that we keep a tight reign on things.”

The revelation is damaging for Ukip chief Nigel Farage, who tries to present his party as a ‘people’s army’ which does not indulge in typical Westminster spin.
With further 'leaks' today, can the party manage to hold itself together before May, only time will tell.

All in all though it leaves us with something of a dilemma. Voting for the Tories - a party that has consistently betrayed its country, its members and its voters - is somewhat nauseating and is something I've never done before. This blog has never really forgiven the Tories for Maastricht and particularly the membership of the ERM. To vote for them would take a Herculean effort and the intake of industrial quantities of intoxicating substances. Having checked just to make sure, we discover that voting while inebriated isn't illegal:
I've been in the pub and feel drunk. Can I vote?

Yes. Polling station staff cannot refuse a voter simply because they are drunk or under the influence of drugs. However, if the presiding officer suspects you are incapable of voting you will be asked a series of questions to determine whether you are up to the task of casting your ballot. If the voter cannot answer satisfactorily they will be told to come back when they've sobered up.
Then there's always the risk that Cameron won't deliver - he certainly doesn't want one and only promised under political duress. Raw political calculation though suggests he won't have a choice but to deliver - he would be removed as leader and PM before we could say 1922. And his recent Article 48 proposal gives a very stong hint that he is already preparing for a referendum campaign should he win outright in May. Personally I have an additional advantage in that having access to the full version of Oxfordshire's electoral roll means I know where he lives should he renege...

Then there's UKIP. Yet it has been increasingly this blog's view that under its current leadership UKIP is detrimental to Eurosceptic cause - a party which has also performed copious u-turns within a very short space of time on the whim of its leader. Witterings from Witney notes yet another 'policy' inconsistency within UKIP.

More damaging is UKIP remains largely a single issue party but instead of being anti-EU it is now anti-immigrant and is being described as such. By reducing EU membership solely down to an aggressive stance on immigration, toxifies the debate, limits itself to dismissing an exit strategy which could actually win us a referendum and leaves itself very exposed to being outflanked by Cameron on Article 48.

And despite UKIP policy in the last 5 or 6 years, in so much as they have one, on demanding that Cameron promise a referendum, UKIP due to its disproportionate effect on Tory votes will deprive the party of victory which is so far the best chance we've got. 'Vote UKIP and let Labour in', is more than a soundbite. Although in terms of Prime Ministerial ability preferring Cameron to Miliband as Prime Minister is akin to wishing to be run over by a car doing 29mph instead of 30mph illustrating if one was needed what a mess our current system of governance is in.

But then, like many others, I live in a safe seat - in my case Tory - it matters little what I think...my vote is largely an irrelevance. So a spoiled ballot maybe an option which will have no impact on the outcome whatsoever and saves me from dilemmas.

Thus the UKIP sentiment of 'sod the lot' is understandable, although perhaps a better way maybe of annoying the establishment is for them to lose an in/out referendum. Oh the delights of seeing europhiles such as Howe, Clarke and the ungracious Mandelson (20mins in) weeping quietly into their state-subsidised drinks as a reaction to a successful "out" vote victory persuades me that dislike of the Tories is outweighed much more by the dislike of our EU membership and the lies that have gone with it.
 
So decisions, decisions decisions.

And with that thought in mind happy new year to you all...

Wednesday, 24 December 2014

Merry Christmas

...to all our readers. Many thanks to all for reading the blog and those who have taken the time to comment on it. It's all very much appreciated.

2015 of course could prove to be interesting regarding the Eurosceptic movement not least due to the general election which may or may not result in a possible referendum in 2017 as promised by Cameron. Whatever the outcome there's interesting times ahead.

A Merry Christmas to you all.

(Naturally if anyone wants to get into the Christmas spirit EU style there's always this).

Monday, 15 December 2014

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.

Sunday, 14 December 2014

Christmas Adverts

If Sainsbury's are to belittle the slaughter of WW1 by using it to sell more Christmas tat, then we might as well have a parody of it.

Saturday, 13 December 2014

Guess Me Weight

Following on from our previous post we see an interesting example of Ofcom's wide brief, with a "guess your weight" competition held in central London yesterday. Protesters took rather unusual measures to highlight their objections to an amendment made to the 2003 Communications Act.

This amendment meant that any paid-for pornography bought online will now be regulated by the same guidelines set out by the British Board of Film Censors (BBFC) as DVDs sold by sex shops, which involves a number of sexual activities, produced by UK film makers, being banned for online broadcast.

As the Telegraph notes:
The new rules were brought in after the Department for Culture, Media and Sport decided that the laws relating to DVDs and online paid-for video porn were inconsistent.
DVDs are regulated by the BBFC, while online porn is regulated by the Authority for Television On Demand (ATVOD) and Ofcom. With the rise of VOD, the DCMS concluded under 18s would be able to access R18 content.
Providers of what is known as On Demand Programme Services ("ODPS") are required by law to notify ATVOD before the service begins, and to advise ATVOD if the service closes or undergoes significant changes.

Despite calling itself an "independent co-regulator" it comes as no surprise to learn that the Authority for Television On Demand (ATVOD) is another example of the complex mixture of Ofcom approved and EU financed regulatory structures:
On 18 March 2010, Ofcom delegated certain of its functions and powers in relation to the regulation of On Demand Programme Services to ATVOD by means of a formal designation. The designation included provision for a review of the arrangements after two years. Accordingly, on 22 March 2012 Ofcom launched such a review and on 15 August 2012 issued a statement confirming the Designation with amendments to give ATVOD greater operational freedom.
And while service providers must pay a fee to ATVOD in relation to each On Demand Programme Service, the fees which are charged by ATVOD are the subject of a public consultation each year and are approved by Ofcom.

We see yet another cosy alliance between those which sit on, and have previously sat on, boards across the great number of Ofcom approved regulators.

For example we see that Ruth Evans is the independent ATVOD Chair, and has previously sat on the Deputy Chair of the Office for Communications Consumer Panel for five years and on the Board Director of PhonePay Plus, which regulates premium rate services in the UK.

The Deputy Chair, Nigel Walmsley, was until recently a Council Member of the Advertising Standards Authority, and the Chairman of the Broadcasters Audience Research Board (BARB), and Pete Johnson, the Chief Executive Officer was previously Head of Policy and Business Development at the British Board of Film Classification.

Independent Board Member Robin Foster's profile describes him as having:
... previous experience as a strategy partner at Ofcom, helping to establish Ofcom and playing a key role in Ofcom’s first major strategic reviews of public service broadcasting, telecommunications and spectrum.
Then ODPS have to consider the universal guidelines on child internet safety issued by the UK Council for Child Internet Safety (UKCCIS).

Ofcom is not ATVOD's only focus as it notes itself:
Under the terms of its designation as the appropriate regulatory authority for editorial content in On - Demand Programme Services (“ODPS”), one of ATVOD‟s designated functions is to ensure that Service Providers promote, where practicable and by appropriate means, production of and access to European works (within the meaning given in Article 1 (n) of the Audiovisual Media Services Directive („the Directive‟) (section 368C(3) of the Act) 
Thus those protesting might be interested to know that Westminster is largely impotent in this case. The dominating factor, which unsurprisingly the Telegraph fails report, is laid bare in the Statutory Instrument in the Explanatory Notes (page 3):
The Audiovisual Media Services Regulations 2009(a) and 2010(b) implement Directive 2007/65EC of the European Parliament and of the Council amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services(c) (“the AVMS Directive”).
And EU Directive 2010/13/EU (Audiovisual Media Services Directive) states:
It is necessary, in order to avoid distortions of competition, improve legal certainty, help complete the internal market and facilitate the emergence of a single information area, that at least a basic tier of coordinated rules apply to all audiovisual media services, both television broadcasting (i.e. linear audiovisual media services) and on-demand audiovisual media services (i.e. non-linear audiovisual media services).
Confirming once again the UK's submissive role as a European Union member state.

Thursday, 11 December 2014

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.