Removing The UK From The ECHR?

While much emphasis domestically is concentrated somewhat understandably on the UK's membership of the European Union an often forgotten supranational influence on the UK is by the Council of Europe (pictured above) - notably in the form of the European Court of Human Rights (ECHR) pictured below:

The Council of Europe is a European body, based in Strasbourg, which was an attempt - the second attempt - by Jean Monnet to create "ever closer Union" soon after WWII.

In this it is nothing more than a failed predecessor of its far more successful offspring, the EU - established by the Treaty of Rome 1957. In simple terms the Council of Europe could be considered historically as 'a dry run' for European integration. It's tempting therefore in light of its intrinsic failure to view the Council of Europe, with its same flag and anthem, as a relic of the past which has little importance.

Yet while the Council of Europe floundered in its primary role of creating "United States of Europe" it found a new purpose in human rights, inspired by the United Nations' Universal Declaration of Human Rights (UDHR). But this diversity into a role that was not intended meant a flawed and weak structure in the form of the Committee of Ministers, which was unable to keep in check the very court (ECHR) it established. Thus, powered by its supranational ambitions, we now see an unelected court unrestricted by the normal conventions of the separation of powers - no proper legislature to keep it in check.

So unsurprisingly we increasingly see the unchecked ECHR acting as both a judiciary and a legislature combined. A classic example would be prisoners' right to vote regarding the UK. Despite the UK's Parliament's long-standing objections as a reflection of public opinion the matter remains unresolved to the ECHR's satisfaction.

We see another example when it comes to immigration. Booker in his Sunday Telegragh column notes:

But the real problem posed by loss of control over our borders stems not from the EU treaty or even laws passed by politicians. It comes from law made by judges, most notably those of the European Court of Human Rights (ECHR), as they have interpreted international treaties to mean something quite different from the way their framers intended.

And with the case of Golajan Tarakhel, the ECHR has taken upon itself to trample all over the Dublin Regulation and EU Treaties on a whim. A mixture of unaccountable power with the increasing role of pressure groups has led to a disproportionate effect despite only appealing to a narrow politically active section of the electorate. This has led to mission creep or what is known as “rights contagion”. 

Thus inadvertently what we have here is a war of the supranationals. Jean Monnet despised democracy, and its messy outcomes, and wanted an "organised world of tomorrow" What irony then, and with some amusement, that the mess he left us was at least two supranational organisations at odds with each other - the failed Council of Europe, and its court, now trying to exercise its power against its EU successor.

What is clear is to regain control of our borders we must also remove ourselves from the ECHR as well. Out of this though emerges an interesting question; if the UK joins EEA/EFTA as part of the Flexcit process of exiting the EU would leaving the ECHR as well jeopardise our position in EFTA/EEA?

Firstly it's important to note that membership of the EU does not mean we have to remain members of the ECHR. It is not a requirement of existing member states.

There is no explicit clause in EU Treaties for existing member states to come under the jurisdiction of the ECHR, a point which as we see on Question Time 2012 left Nigel Farage backtracking somewhat under pressure. Nothing in the relevant EU treaties requires adherence to the ECHR as a condition of continued UK membership of the EU - if they had meant to say that, they would have said it. But they didn't.

As Julien Frisch notes on his now defunct blog (my emphasis):

Since through its member states the legal traditions of the ECHR are also informally part of the EU's legal traditions, the European Court of Justice (the EU's court) is already taking into account rulings of the European Court of Human Rights, but so far there is no legal obligation for the Union to follow the Human Rights Convention's provisions.

As per our membership conditions the UK only has to conform in principle, confirmed by the EU Commission:

Respect for fundamental rights as guaranteed by the European Convention on Human Rights is an explicit obligation for the Union under Article 6(2) of the Treaty on European Union, and the Court of Justice has held that the Convention is of especial importance for determining the fundamental rights that must be respected by the Member States as general principles of law when they act within the scope of Union law.

The rights secured by the Convention are among the rights guaranteed by the Charter of Fundamental Rights of the European Union. In the negotiations for the accession of new Union members, respect for the Convention and the case‑law of the European Court of Human Rights is treated as part of the Union acquis.

Any Member State deciding to withdraw from the Convention and therefore no longer bound to comply with it or to respect its enforcement procedures could, in certain circumstances, raise concern as regards the effective protection of fundamental rights by its authorities. Such a situation, which the Commission hopes will remain purely hypothetical, would need to be examined under Articles 6 and 7 of the Treaty on European Union.

In other words the Commission’s reply confirms that European Convention standards are general principles of EU law. Thus as long as the UK adheres to the principles of the European Convention even via a domestic bill, for example - a UK Bill of Rights which closely follows the Convention - there is no need for a EU requirement for membership of the ECHR to enforce it. This enforcement could be done by domestic judges alone.

However complication, in terms of EU membership, comes in the form of the European Court of Justice (ECJ). The Lisbon Treaty gave an enhanced role to the ECJ in human rights protection with the Charter of Fundamental Rights of the EU. The ECJ less an independent judiciary body but more a fundamental component to help facilitate European political integration.

While Lisbon broadened the scope of human rights protection within the EU, it came with a problem of overlapping jurisdiction. There are now two equally binding legal texts, the Charter of Fundamental Rights of the EU and the European Convention of Human Rights, and subsequently two corresponding European courts; the ECJ and the ECHR both concerned with human rights protection but also inevitably concerned with who will be 'top dog'. A problem which was compounded by Article 6 (2) of Lisbon which requires the EU to join the Council of Europe given that it now has a legal personality. Some five years later the legal complications have yet to be resolved.

Inevitably therefore the opaque imprecise nature of implication often leads to contradiction and dispute between differing supranational bodies each eager to assert its supremacy - in blunt terms a penis measuring competition.

Therefore we can see that one benefit of leaving the EU but retaining a EFTA/EEA status would remove us from the ECJ jurisdiction and as such removing a possible judicial conflict. Also EFTA/EEA status means that no longer is "Single Market status" one of a supranational organisation but instead is made up of treaty rules which are agreed by countries with the EU rather than between EU "member states".

Yet despite this another possible supranational conflict may arise. Similar to EU membership there is also no specific requirement in the 1994 EEA agreement for countries to join the Council of Europe and thus come under ECHR jurisdiction.

That said the question of whether EEA countries had to be members of the Council of Europe never arose as a political issue due to applicants already being long-standing members of the Council of Europe when they joined the EEA; Norway in 1949, Liechtenstein in 1978 and Iceland in 1950. In fact no country has ever applied to be a member of the EU or EEA without first being a member of the Council of Europe and no country has ever left it.

But while EEA members are directly removed from the ECJ they rather like EU member states still have implicit obligations to the ECHR not explicit ones and they are subject to another supranational court - the EFTA court which is modelled on the ECJ. The implicitly of ECHR obligations are made clear in the preamble of the EEA agreement that "a European Economic Area will bring to the construction of a Europe based on peace, democracy and human rights".

Thus although not specified in terms of adherence to the ECHR, the EEA agreement it is argued could be endangered if EFTA states were able to obtain advantages, for example in competition, by applying provisions of European integration law in a manner conflicting with the ECHR. But even here we can see that the EFTA Court is willing to stand up to the EU and the ECJ when it ruled that Iceland did not break EU depositor protection laws by refusing to return Icesave money. 

Thus Europe is awash with unaccountable supranational courts each eager to compete with the other. So as Switzerland has shown we are beginning to seeing a conflict between these competing and incompatible supranational bodies and democracy - where despite a vote earlier this year imposing limits on immigration, Switzerland has been caught by an ECHR judgement on deportation.

In the words of Chris Grayling over prisoners right to vote; "Parliament must squarely confront what it is doing and accept the political cost".

Black Spots, Not Spots And Shadows

There's an interesting piece in the Telegraph from Monday regarding mobile phone coverage in the UK. Despite that during the 1980's the UK, along with other European nations, were leading the way in GSM standardization, rollout of subsequent technologies such as 3G, since telecoms has become an EU competence, has been less than satisfactory:

There is little more debilitating in a supposedly digital world than the mobile black spots that still plague so many parts of the UK. These are the areas where mobile phones don’t have a signal, and where it is therefore impossible to make voice calls or send texts. Almost as bad are the even larger areas with no 3G reception (let alone 4G, of course) and where it is therefore impossible to access the internet from smartphones or tablets on the move.

It's certainly no secret that UK mobile phone 3G coverage is poor in many areas of the country, particularly in comparison with other countries. Cornwall for example which is a popular tourist destination has long suffered with sub-standard coverage - Orange (now part of EE) being one of the only operators for some time to attempt to provide a decent mobile signal. An article in Tech Advisor from May this year expressed a view that in general 3G coverage in the UK was "embarrassing".

OFCOM, under The Wireless Telegraphy Act 2006 required that by June 2013 the four mobile phone license holders meet and maintain a 90% population 3G coverage, three providers met the target with only Vodafone missing its target by 1.4% by the deadline - only to meet it this year.

Yet despite the 90% coverage claim there are reasons why 90% coverage doesn’t really mean that at all. To achieve coverage of 90% of the population the networks only really need to cover the most populated areas of the country, leaving rural areas scorned. As the Guardian noted in December 2013:

Today, 80% of the population can get a signal from all of the four operators – EE, O2, 3 and Vodafone – but geographically it remains very patchy, with just 21% of the landmass being served by all four. Nearly 23% of the UK has no 3G at all, and in nearly 13% of the country making any kind of mobile call is impossible.

The lack of 3G coverage begins to matter when we consider that with the growth of smartphones, data and the demand for broadband is far outstripping voice as the main means of communication on the move. The graph below (click to enlarge) from the Ericsson Mobility Report, released in June 2013 illustrates this acutely:

At this point we could be mischievous and, using the criteria set in terms of coverage based on population by OFCOM, compare the UK with North Korea which since 2011 has had a 3G coverage of 94% in terms of population served. On this basis it could be argued that North Korean mobile coverage is better than the UK's. The North Korean network (Koryolink) is provided by the Egyptian international telecommunications company Orascom, with officially 10% of North Koreans (2 million) being subscribers, though the figure may be much higher due to the practice common in poorer countries of renting phones out to family and friends to share the costs.

With poor coverage in the UK it is understandably that the government is keen to improve 3G coverage at the very least. This though has prompted what appears to be a dispute in government between Sajid_Javid of the Department for Culture, Media & Sport arguing for better UK coverage...

I’m determined to ensure the UK has world-class mobile phone coverage as investment in infrastructure will help drive this government’s long-term economic plan.

It can’t be right that in a fifth of the UK, people cannot use their phones to make a call. The government isn’t prepared to let that situation continue.

...and the Home Secretary, Teresa May, who seems to be unwilling to reveal "not spots" as reported by the Times (£):

A confidential letter from the home secretary, seen by The Times, advises that plans by Sajid Javid to make mobile phone companies improve their coverage threaten to damage the ability of intelligence agencies to thwart plots.

With this in mind we probably for security reasons shouldn't mention that a notable "not-spot" is RAF Menwith Hill with its oversized golf balls in North Yorkshire:

Here, and in surrounding areas, mobile phone coverage drops off the end of a cliff. No mobile phone signal is usually possible when close by.

One of the proposals by the government to counter the lack of 3G coverage, (and not unsurprisingly a top down 'solution') is new legislation to force "providers to introduce network roaming across Britain, ensuring that customers automatically switch networks when they have no signal from their usual provider":

National roaming – phones would roam onto another network’s signal when theirs was not available. This is similar to what happens when you’re abroad.

Infrastructure sharing – mobile networks would be able to put transmitters on each other's masts.

But again this demonstrates that technology is simply marching on far ahead of regulators and government. Not only costing the sharing of private mobile networks will be a nightmare, by the time any kind of legislation is invoked technology will have moved on.

With the release of the new Apple's iPad Air 2, is the emergence of a programmable SIM card (backed by standards set by the ETSI) which will allow users to switch mobile network providers and plans at the touch of the button which could be the first step towards freeing mobile devices from restrictive mobile contracts, allowing users to switch carrier just by selecting an option in settings.

Thus government legislation may prove to be unnecessary...

"Third World Europe Finished"

The Sunday Telegraph reports that Formula One boss Bernie Ecclestone "has become the latest high-profile business leader to write off the stagnating economy in Europe":

“Slowly but surely what I predicted about Europe is happening. What I said 10 years ago is that it would soon become a third world economy."

We don't of course dispute the thrust of Ecclestone's views. In charge of a global 'circus' which takes in five continents, nineteen countries and draws in a global television audience measured in the hundreds of millions", he is well placed to understand the stagnation of "little Europe" in contrast to the economic realities of globalisation.

And this matters to the UK because, despite F1 being a global business, its home is in the UK, notably in an area known as "Motorsport Valley" - its contribution to the UK economy not insignificant:

Now almost 3,500 companies associated with motorsport are based in Motorsport Valley, employing around 40,000 people. That represents around 80% of the world's high-performance engineers.

The industry continues to grow, with companies in Motorsport Valley producing an estimated turnover of £6bn, of which £3.6bn is exported. 

But this endorsement from 'Bernie' comes with a caveat. Ecclestone's business deals are...erm... somewhat less than candid. He once donated £1 million to the Labour party in an attempt to exempt F1 from tobacco advertising. Having achieved that exemption he then got his money back, leading to this infamous quote by Tony Blair:

"I think most people who have dealt with me, think I'm a pretty straight sort of guy and I am." .

Then we have Ecclestone paying off German judges with £60 million to end a very damaging bribery trial which would end his tenure in F1. A tenure that has left a sport in crisis with two F1 teams now in administration, and 'Bernie' admitting he doesn't know how to fix the crisis.

Views from a man who in charge of a multi-billion pound industry is out of touch with the need to adopt a social media outlook. Ironic really in a ruthless sport where technology is king, that same technology which is passing the old man by.

In this sense Ecclestone's views on Europe and its problems are not helpful. Rather like Richard Branson who claims exit for the UK would be disastrous, we have two less than candid business leaders with reputations tarnished slogging it out over the economic case for EU membership - with no altruistic intentions intended. Thus with Ecclestone's intervention for the outers it's a case of; "with friends like this..."

As Richard North notes the EU is a political project not an economic one:

...while Osborne is pretending we joined the EU "economic proposition" when, quite obviously, we joined a political project.

Everybody is pretending here that their particular corner of the EU is something it isn't, and then to cap it all, Osborne joins with his boss in lusting after something neither of them can have – a reformed EU. One of these days, these people are going to grow up, face reality and talk about the EU as it really is, rather than they would like it to be – or think it should be. Then, perhaps we might just start making some progress. But, as always, it would be unwise to hold our breath.

In this sense the message therefore to the likes of Ecclestone and Branson is mind your own business.

Giving Up Blogging?

I confess I completely forgot to acknowledge the passing of the 1st November. Apparently due to changes in the Lisbon Treaty which come into force regarding changes to QMV on November 1st Parliament ends and exit is now impossible.

Thus all eurosceptic blogging is now futile, as are UKIP and eurosceptic comments on internet newspaper and social media sites. We now have to accept that we've lost... November 1st has come and gone and we can no longer leave. We simply didn't exit in time.

It's all over...*

*Unless of course the dastardly German Angela Merkel decides otherwise...

"Let Them Eat Cake"

If ever we needed further proof that the rot in UK politics is not necessarily due to our membership of the EU but instead one of a domestic making, Denis MacShane's tweet (above) regarding expenses and MPs' cynically shredding documents is it.

Openingly mocking the electorate in this way, I would suggest, is not entirely wise...he might find ultimately that the consequences are far more unfortunate than a mere jail sentence...

Daily Fail

Understandably the Daily Mail has its main story the sad death of Michael Payne, father of of Sarah Payne who was murdered in 2000. Given his death is attributed to alcohol abuse it's more than a little insensitive to run with this story directly underneath:

Total Recall

One possible positive that may be garnered out of the debate yesterday on the Recall of MPs Bill is the fact that the debate is even happening at all is tacit acknowledgment within the Westminster that something has gone wrong with the system.

But it was of no surprise that Conservative MP Zac Goldsmith's proposals, which would have excluded Parliament's standards committee from any role in determining whether errant MPs should face re-election, was defeated - it is entirely within character that MPs would be somewhat reluctant to support reducing their powers with enthusiasm. It therefore was of some amusement the naive astonishment shown in some quarters on social media at MPs unwilling to give up powers.

All of this though misses the point. The debate regarding the recall of MPs is Westminster talking to itself - the proposal nothing more than a tinkering around the edges while in effect maintaining the status quo. Very much a politician's solution then...

Unwittingly Zac Goldsmith betrays this view in his arguments in favour of his proposals by trying to persuade MPs and Ministers that they have nothing to fear from recall decided by the people because it would very rarely be used:

The third concern relates to the fear that Members would face endless recall attempts, amounting almost to a form of harassment, an issue raised several times in last week’s debate. I see no need for a limit, as the experience of recall around the world shows that its use is extremely rare and that it is used only in extreme circumstances. In 100 years of recall in the United States, where there are virtually no financial controls or controls on broadcasters and so on, it has happened only 20 times. There have been 40 recall referendums...

This argument has the backing of Douglas Carswell:

Far from leading to a flood of vexatious attempts to remove sitting MPs, this second stage makes it almost impossible to oust a sitting MP on partisan grounds. Note how few recall attempts have ever been successful in California. 

In other words, vote for this measure because it won't make any difference at all. It's a ... er ... curious argument to make for a democratic device to say the least.

It's safe to assume that the great expenses scandal of 2009/10 is a cloud hanging over the recall debate, with examples such as Labour MP Margaret Moran going into hiding leaving her constituents unrepresented and they having no means to force a by-election.

Yet it is with some irony that the expenses scandal actually show up the ineffectiveness recall would have. While there was a lot of public anger, further provoked by MPs’ attempts to prevent disclosure under Freedom of Information, voters did not punish them electorally in 2010.

Many MPs (and over 50% sought re-election) who were embroiled in the financial scandal were still re-elected in the 2010 election. Take Alistair Darling for example, who abused taxpayer's money by 'flipping' his two houses four times was re-elected in 2010 with an increased majority.

As this report from 2011 finds, titled "Electoral Accountability and the UK Parliamentary Expenses Scandal: Did Voters Punish Corrupt MPs?" the expenses scandal came low down voters' priorities. This chimes with my own experience as a PPC in 2010 when the subject was never raised once on the doorstep nor in hustings.

The report finds instead that there was only a modest 1.5% voting impact on MPs implicated:

We find that implicated MPs received a vote share about 1.5 percentage points lower than non-implicated MPs (after controlling for incumbency, region, and previous constituency results). Intriguingly, we do not nd an association between vote share and either the amount the MP claimed in expenses or the amount an MP was required to repay...

The findings may not be so surprising when we consider that the representative ballot is a blunt instrument to deal with the complexities of voters' concerns such as the economy, immigration and of course partisan competition. Thus the report comes to an interesting conclusion:

The degree to which voters punished individual MPs for expenses abuses (a drop in vote share of about 1.5% on average) is modest in comparison to voters' responses to corruption in the US and other settings, but the lower magnitude seems reasonable given the fact that most British MPs have few individual powers and British voters have no other opportunity to express a party preference at the national level.

The findings thus illustrate the fact that the degree to which electoral accountability can constrain individual politicians depends on political institutions including the electoral system, separation of powers, and legislative organization.

A better example of why recall won't work would be hard to find and further demonstration that something far more radical is need to grap MPs by their goolies - The Harrogate Agenda.

Brexit And Telephones (2)

Following on from our previous post on Telecoms, we intend to address more fully the complexities of European and international political and regulatory networks of telecommunications which present significant challenges when considering Brexit. We begin here though as background with the impact of the rise of the mobile phone before we move in further pieces which look at national, EU and international regulation in detail.

As would be expected due to its inherent nature regarding communication, telecoms is a truly globalised industry which is reflected by the fact that many of its well known companies are multi-national businesses. For example the biggest and most valuable telecoms giant is US-based AT&T which provides mobile and fixed-line telephone service and broadband cable whose overall revenues grew to more than $127 billion in 2012. UK based Vodafone is the world’s second largest mobile phone operator on revenue and subscribers, behind only China Mobile.

Yet the rapid advancements in the last 30 years in technology have not only been reflected in the diversity of services provided by telecoms companies but also that the market is now populated extensively by what are traditionally non-telecoms specific enterprises.

We can appreciate the rapid advancements most acutely when we consider that in the time it took fixed lines, since the invention of the phone some 140 years ago, to progress from analogue, to digital circuit switching and then to packet switching technology courtesy of VoIP, it has only taken mobile phones around 30 years to achieve the same progression path.

When the traditional telephone was first challenged properly by the mobile phone in the early 1980’s operating on a cellular network– it was essentially by a two way radio which operated on two different analogue frequencies in order to receive and transmit conversations at the same time. It was an advancement on Push-to-Talk technology.

The rapid rise of early mobile phone efforts and vigorous competition though meant incompatibility of technology between carriers and also capacity problems. Other problems were that some services in the UK services such as Rabbit, Phonepoint and Mercury Callpoint could only make outgoing calls near a designated base station.

Even in the United States by the mid 1990s, there existed competing and incompatible second-generation digital wireless — channel access technologies such as CDMA (code division multiple access), TDMA (Time division multiple access) and iDEN, ensuring that phones would not work from one system to another.

The situation in Europe in the early 1980s was initially even worse. The first European mobile cellular systems were introduced in Scandinavian countries in 1981 and 1982. Following on shortly were the likes of Spain, Austria, the UK, Netherlands, Germany, Italy, and France. These systems were all analogue, now known in hindsight with the technological advancements as first generation (1G), however the problem was that there were eight of them which were all different and incompatible. Thus mobile communication was generally restricted to one country only.

This led to the intervention by the Telecommunications Commission of the European Conference of Postal and Telecommunication Administrations (CEPT), a voluntary association of European countries where policy makers and regulators from 48 countries across Europe collaborate to harmonise telecommunication, radio spectrum, and postal regulations. The CEPT established a study group called the Groupe Speciale Mobile (GSM) to develop the specifications for a European-wide second-generation digital cellular system in the 900 MHz band.

The requirements were that it was to be fully digital, incorporating the best technology of the time. There would be no backward compatibility with existing systems and they desired that their new wireless standard would be similar to landline requirements for ISDN, hoping to make a wireless counterpart to it.

Here conflicts emerged between the national self interest of countries, of mobile phone companies and the need for standardisation.

The GSM group wanted to select the most appropriate technology by assessing a number of demonstration systems by interested parties. Eight systems were submitted which were between broadly TDMA technology and those incorporating CDMA technology. TDMA and CDMA were split along Scandinavian countries (Nokia, Ericsson and Elab) and the Germany/France axis respectively - whose systems were heavily subsidised by the French and German governments. The split reflected differing demographic characteristics between the countries.

TDMA with its fewer time slots thus its relatively moderate traffic capacity was less cost intensive and meaning it was easier and quicker to rollout across rural communities. Conversely the systems of Franco/German origin were generally designed with high traffic capacities in mind. This was a cost effective solution in more urban and dense areas with high traffic-density requirements but is more expensive for rural areas where many time slots are not needed.

Yet at least if not more as important as technology were; political issues, property rights issues and vested interests. Obviously the stakes were enormous for suppliers and states. One of the two shortlisted by SEL/Alcatel was considered to be “too proprietary” and held the patents on its CDMA-based proposal. There was reluctance by some countries to approve the other shortlisted option (TDMA) submitted by Ericsson due to it being based in a country that at the time was not a member of EEC. Other disputes included the use of encryption in GSM (A5/1), with eventual agreement that it should be optional – countries such as France do not allow it to be activated.

Interestingly, although the EEC privately supported narrowband TDMA solution, it wasn't in a position to act to facilitate a breakthrough, as 84/549/EEC: Council Recommendation of 12 November 1984 confirms the EU only had the power to recommend:

that the Governments of the Member States ensure that:
- the telecommunications administrations:

1. consult each other, preferably in the framework of CEPT, before they introduce any new service, notably between Member States, with a view to establishing common guidelines so that the necessary innovation takes place under conditions compatible with harmonization;

It was not until the Treaty of Maastricht (Article 129 D) that, for the first time, the EU was given a competence in the field of telecommunications. Instead it was diplomatic efforts by individual countries, notably by the UK, that lead to a breakthrough which came via the Bonn Declaration in 1987. This confirmed that a decision had been reached to use TDMA technology:

Europe must have a single standard supported throughout the CEPT- This should be based on the narrowband TDMA concept defined by CEPT at its Madeira meeting in Feb 1987.

The ministers also called for the agreement between network operators to be formalised by a Memorandum of Understanding (called the GSM MoU) which they did, not long after:

The signatories shall support the open (non proprietary) definition of at least the following interfaces in the form of CEPT recommendations:

Mobile/BaseStation (air interface) based on the narrowband TDMA concept defined by CEPT at its Madeira meeting in Feb 1987 enhanced in the areas of modulation and coding to provide the greatest flexibility in receiving equipment implementation as agreed by CEPT GSM at its Brussels meeting 9-12 June 1987

Base Station/MobiIe services Switching Centre

Mobile services Switching Centre,/Mobile services Switching Centre/Location Register

In 1987 the then EEC adopted, via Council Directive 87/372/EEC, frequency allocations proposed by the CEPT covering the 25 MHz bands of 890 - 915 MHz for uplink - mobile to base station, and 935–960 MHz for downlink - base station to mobile to apply to the Single Market.

(Interestingly the rights to the GSM trademark and logo were held by France Telecom)

The first GSM systems were up and running by 1991 with Vodafone launching the UK's first GSM commercial service in the same year. Having been deployed throughout Europe, GSM allowed smooth roaming from country to country.

GSM has since become the most popular worldwide technology regarding the standardisation of mobile phone calls:

More than 6 billion people worldwide use the Global System for Mobile Communications (GSM) family of technologies. GSM is the most widely used wireless technology in the world, available in more than 219 countries and territories worldwide, with a market share of more than 90 percent.

What made GSM so successful, was not that it was a far superior technology - indeed the first GSM handsets in 1992 were not much better than the old analogue ones - but instead that it established a complete telecommunications network in one package. Other worldwide standards bodies only produced a specification for the radio piece of the mobile network. Automatic roaming and handover of calls between base stations required dedicated exchanges for numbering and switching management and this is what GSM provided. It turned out to be a very successful illustration of European co-operation, ironically, with little involvement of the EEC/EU.

Born out of the 'GSM MoU' in 1987, and powered by the success of GSM, was the emergence of the GSM Association (GSMA) which represents the interests of mobile operators. Thus GSMA has "evolved to become one of the most powerful trade associations in the world, lobbying governments on everything from tax policy to pricing strategy":

Spanning more than 220 countries, the GSMA unites nearly 800 of the world’s mobile operators with 250 companies in the broader mobile ecosystem, including handset and device makers, software companies, equipment providers and internet companies, as well as organisations in industry sectors such as financial services, healthcare, media, transport and utilities.

In 1988, created by CEPT the European Telecommunications Standards Institute (ETSI) was established. ETSI is an independent, not-for-profit, standardisation organisation in the telecommunications industry and, although not an EU organisation, it is officially recognised by the EU. Crucially ETSI allows direct participation in its technical committees from non-EU companies that have commercial interests in Europe which means it has a global outlook and influence - for example it was a founding member of the Global Standards Collaboration.

GSM thus was a big success, and probably due to this success 'Europe' began to become complacent - an unwise position to take as technology marches on relentlessly. While GSM second generation (2G) cellular systems were used principally for the purpose of transmitting voice calls - there was a growing use for the transmission of data. GSM acknowledged this with the flexibility of using Signalling System No. 7 which was essential to support new data services and SMS (text messages). Within a decade one billion text messages were being sent in a month. The development of third generation (3G) meant that term 'mobile broadband' reflected the growing demand for phones to emulate domestic PC broadband speeds.

While GSM was ultimately a triumph of European co-operation without the intervention of the then EEC, it was inevitable that the EU would use telecommunications as another excuse for further political integration which it retrospectively added to the Maastricht Treaty. Not unsurprisingly since becoming an EU competence the progression of telecoms innovation and co-operation within Europe has not been much short of stagnation.

We can see this acutely with the emergence of LTE (Long-Term Evolution) commonly known as 4G. Whereas European countries took the initiative in the '80s with GSM now other non-EU countries are doing so with 4G. Rather ironically the GSMA writes in its assessment - Mobile Wireless Performance in the EU & the US:

There is broad agreement that the EU mobile wireless market is underperforming relative to other advanced economies, including the U.S. We find that the EU is lagging well behind the U.S. in deployment of next generation wireless infrastructures and the advanced services they make possible, and that EU consumers are worse off as a result.

EU regulatory policies have resulted in a fragmented market structure which prevents carriers from capturing beneficial economies of scale and scope and retards the growth of the mobile wireless ecosystem. We recommend reforming and harmonizing spectrum policies, permitting efficient levels of consolidation, and promoting innovation by fostering dynamic competition.

It then notes that:

Growth in investment in the U.S. is translating into faster data connection speeds: U.S. speeds are now 75 percent faster than the EU average, and the gap is expected to grow.

The U.S. is deploying ITE at a much faster pace than the EU; by YE 2013, 19 percent of U.S. connections will be on lTE networks compared to less than two percent in the EU.

LTE 4G data networks will have the potential to make different streams needed for mobile voice and data services obsolete. Traditional cellular networks require a separate stream to carry voice traffic and data network. With LTE, rather like VoIP on landlines, voice traffic can be carried by IP technology, known as Voice over LTE (VoLTE). The final convergence for mobile phones is following the path trod before it by traditional land lines where the technology of VoIP has begun to establish itself.

Thus with the potential abolition of circuit switching technology within mobile phones this process to just being a mini computer will be complete. What for some time was effectively a phone with just some relatively simple software during the ‘90s where phones could text and allow users to play simple games like snakes as epitomised by the utter domination of Nokia, has become instead, with the development of smartphones, a small computer with telephony attached almost as an optional extra.

This convergence regarding mobile phones means we see telecommunications becoming an important component of the broader IT industry as companies such as Google with Samsung and Microsoft with Nokia enter the telecoms market.

In many ways the complexity of telecoms and indeed international regulation is demonstrated most clearly by the smartphone – the complexities of modern international regulation laid bare by a device small enough to fit in a pocket.  A modern smartphone contains many technologies which are regulated in different ways, by way of an example modern phones tend to have the following features for example:

Bluetooth: Regulated by the United Nations Economic Commission for Europe (UNECE): "Before launching a Bluetooth classified product it must be ensured that the product is in compliance with the international RF, EMC, Safety and Health standards set by the regulatory authorities of the various regions."

WiFi: Products are certified by the WiFi Alliance, which is a global non-profit industry association stating "The members of our collaboration forum come from across the Wi-Fi ecosystem and share a vision of seamless connectivity. Since 2000, the Wi-Fi CERTIFIED™ seal of approval designates products with proven interoperability, industry-standard security protections, and the latest technology.

GPS: Civil signal designs are owned by the US as confirmed by this statement in 2013 "The governments of the United Kingdom and the United States of America today announced that they had reached a common understanding of intellectual property rights related to the Global Positioning System (GPS) and will work together to address broader global navigation satellite systems’ intellectual property issues.

Radio: FM radio is available on modern phones via plugging in a headset and receiving analogue signals, frequencies agreed under the International Telecommunication Union (ITU).

NFC/RFID: Near Field Communication - technology in smartphones which allows contactless electronic payments. It is based on the international ISO/IEC 18092 standard.

Camera: Photographs made with a camera phone can fall outside the jurisdiction of the EU: "A photographer who requested Wikimedia to remove one of his images used online without his permission has had his wishes dismissed, with the US organisation behind Wikipedia claiming that because a monkey pressed the shutter button it should own the copyright".

Ringtones: Companies who offer ringtone services to sell to the UK public pay royalties to PRS for performance rights.

Music: Related to the above the issue of copyright and competing international trademark rights became an issue as illustrated by the Beatles (Apple Corp) verses Apple computer case.

What this illustrates neatly is that the telecommunications field is so vast, and changing so rapidly, it is difficult to cover all aspects of it. But its globalised complexity requires global involvement.

In the next few blog pieces we will concentrate on national, European and international telecommunication regulation in turn.

Flexcit: How To Leave The EU

From Richard North, an edited version of his speech at Dawlish which addresses the issues of how we can leave the EU and negate the inevitable FUD in a referendum:

EU Referendum: How We Can Win

My previous piece reflected on the free bet that is the offer of a referendum in 2017. It maybe that Cameron doesn’t deliver, and that is of course a risk, but it’s the only offer currently on the table. We should remember that extracting this promise from Cameron has long been UKIP policy. For example in 2011 (2 years after “cast iron”) Farage had this to say:

…Ukip could form an electoral pact with the Conservatives at the next election if David Cameron were to promise a referendum on membership of the European Union. There was "every chance of forcing David Cameron into giving us a referendum", he said. Whether or not to propose an electoral pact with the Conservatives in 2015 would be a "huge decision" for the party, he said. But he had offered the Tories a pact before the 2010 election, he said.

Given Cameron’s track record it’s reasonable not to trust him, though that would imply that other politicians can be trusted. However in my view the question of trust doesn’t come into it. If Cameron wins in 2015, albeit with a small majority, he won’t have any choice but to deliver lest the party give him an offer he can’t refuse. Less a case of trust, more a case of pure political calculation.

If there is to be a referendum in 2017 then another obvious concern is that it will be loaded in favour of staying in. It’s worth noting at this point that exit is very unlikely to ever occur without a referendum being offered and won. The precedent for constitutional change has now been set with the referendum in 1975, Scottish & Welsh devolution, the AV vote and the Scottish independence vote. Nor indeed can we expect ‘perfect conditions’ for one being held.

It’s certainly going to be a challenge to overturn the message of the establishment, media and FUD all of which will be heavily funded. An example of this was during our entry into the then EEC where pro market lobby groups were co-ordinated under the umbrella of the European Movement part funded by the EU Commission to act as an integral part of the government campaign. Efforts were made to bring the media on board particularly the BBC where eurosceptic presenters were dismissed in favour of more sympathetic ones.

However this is not 1975, the world has moved on in 40 years and as a consequence we do have a number of potential advantages over that campaign which can help nullify if not overcome the challenges.

The EU: 
The first advantage is that the EU is no longer just the EEC or a ‘Common Market’. In some 40 years since UK membership the EU has taken ever larger strides towards political union such that its ultimate goal has become much more obvious.

Now it is a ‘European Union’ rather than a ‘Market’. By calling it a “Common Market” meant the 1975 referendum was defined by the terms pro-marketeers and anti-marketeers – membership argued in simple economic terms. Thus in this context Wilson was able to get away with his sham negotiations by reducing it down to the level of import quotas on New Zealand butter and cheese.

40 years on, Cameron could not get away with anything so lightweight. It’s no longer a Market but a Union. Thus there would be demands for a far more substantial return of powers - none of which can be achieved without Treaty change. And that leads us neatly onto the next advantage...

David Cameron:
As has been well documented Cameron did not want a referendum nor does he want to leave the EU. That he has offered a referendum against his wishes is a reflection of his political weakness not his view that he thinks he can win it. We know this because he has made a political mistake. His offer was due to being under pressure from backbenchers who in turn are under pressure from UKIP in the belief that such a promise would win him the next election, and it is an offer made regardless of what concessions Cameron thinks he can spin from Brussels. It is very likely he chose the date as the UK takes over the Presidency of the Council of the EU rather than any other consideration.

The reform option has always been dangerous as it splits the “out” vote to the benefit of those who wish to remain EU members. However Cameron’s promise largely negates the reform option as he can’t possibly hope to have any substantial concessions which he can put to the electorate by 2017. The changes needed to the founding Treaties simply cannot be achieved in time. Thus all he can rely on is what will be unconvincing spin without substance.

And this is where his track record of ‘PR man’, ‘cast iron’ and ‘lack of trust’ becomes an asset to the out campaign. Without Treaty change it will be spin few will believe and it is a mistake we can capitalise on. A mistake that Clegg appears to appreciate very acutely during the Lib Dem conference:

The Lib Dem leader said he was committed to a vote when there was EU treaty reform, but criticised the "arbitrary date" of 2017 set by the Conservatives.

It’s worth noting that the Scottish referendum also had superficial promises of the reform option announced by, among others, Gordon Brown who tried to rewrite the UK constitution on the back of a fag packet in an impassioned speech by offering essentially devo-max to the Scots. Yet the pledge of reform made little difference to the final results which were in line with months of predictions by the polls. Other core substantive issues instead decided the referendum which we will explore later in this piece.

Experience: 
The 1975 referendum was the first ever in the UK, thus there was no real direct experience to draw upon. As a result many mistakes by both sides were made, not least in the failure of establishing a coherent message particularly from the anti-marketeers - with the word 'anti' portraying negative connotations, In contrast we have the opportunity to learn not only from the referendum of 1975 but subsequent ones over AV and Scottish independence, and we can endeavour to try not to repeat mistakes made there.

The Internet:
In 1975 the media and all the newspapers bar one – the communist Morning Star – supported EEC membership. Such support would be similar today, including from the likes of the Daily Mail which in editorials has made it clear it supports EU membership.

However unlike 1975 we now have the internet and everything that comes with it; smartphones, Twitter, Facebook and forums. The establishment no longer has a monopoly on information. Scotland revealed the significance of this development. The independence campaign was a dry run of how an EU referendum would be conducted and it showed comprehensively that unofficial campaigns centered on social media was very powerful.

Indeed the Scottish referendum has revealed that social networking via Twitter and Facebook played a very significant part in the vigorous and intellectual debate to the extent that the “yes” vote remained strong in the final outcome:

The 2008 US election showed how politicians could use it as a campaigning tool, but it wasn't until the Scottish referendum that Britain really caught up.

According to Facebook, more than 10 million interactions were made about the fight in a month. So who won the social media wars - and what can we learn from it? The simple answer is: the Yes campaign was victorious.

The official Twitter account of the Yes campaign has an impressive 103,000 followers compared to 42,000 for Better Together. Alex Salmond boasts 95,000 Twitter followers and Nicola Sturgeon has 66,000 - while Alistair Darling has just 21,000. On Facebook, the Yes campaign page attracted more than 320,000 likes compared to 218,000 for the No.

But debate was not only held on the most well known outlets, there was much passionate debate on forums such as Celtic Football Club’s which ran to an impressive 1674 pages.

It’s also worth noting that during any campaign the URL address http://www.eureferendum.com/ would be much sought after – and this is already registered by Richard North. Typing the words “EU Referendum” into a search engine and links to the country’s premier eurosceptic blog comes top of the search results.

Thus with the internet we can bypass the mainstream media. This is a tactic that was used by Farage in UKIP’s early days. Comprehensively ignored at the time by the media, Farage went under the radar by taking the message direct to people by travelling the country and addressing local meetings. He was to replicate this method in 2013 with the Common Sense tour.

As UKIP proved, such methods can be very effective in getting the message across despite the bias of the legacy media and so it can prove with a referendum in 2017.

There's a strong anti-establishment vote: 
Unlike 1975 where there was more deference to the political system, we now have the obvious decadence of Westminster politics. A decadence which reveals itself by the increasingly lack of quality in MPs, hopeless leadership, the lack of relevance of political parties with membership plummeting, and the electorate itself being treated with contempt and their anger in return.

Revulsion at this decadence and alienation from Westminster is common to both England and Scotland. In England it expresses itself partly in UKIP; in Scotland it helps power the SNP.

Thus unlike 1975, the parties of Westminster campaigning as one in 2017 to stay in the EU could actually prove to be useful as part of an effective anti-establishment campaign which when based around sound exit answers can win over a lot of people, as was shown in Scotland.

The establishment is not always united:
The Scottish referendum illustrated that the establishment campaign epitomised by Better Together was not always united. Although they shared the same aims of keeping the union together the fundamental differences between parties and between themselves could not help coming to the fore. Gordon Brown was sidelined until the last minute, Darling was consistently criticised for running a poor campaign, for example in May 2014:

Alistair Darling has effectively been dumped as head of the campaign to keep Scotland in the UK following crisis cross-party talks.

And naturally there were tensions between the Tories and Labour:

A Labour MSP has criticised his party’s decision to “hold hands” with the Tories in the ‘Better Together’ alliance against Scottish independence and has claimed that the No campaign is now unable to “outline a coherent vision”.

Then arguments over "reform"

The Better Together campaign has been accused of “spiralling into self-destruction” after UK cabinet ministers appeared at odds over enhanced devolution proposals.

And after the vote:

Ed Miliband today publicly snubbed Gordon Brown after thanking every Labour MP who campaigned against Scottish independence – apart from the former Labour leader.

The 'in' campaign is likely to be as split as the 'out' one.

Having a major party on board is not always necessary:
As the SNP found out to its cost, a major party with an official position does not always mean party supporters and members follow suit  - voters in Salmond's own 'backyard' of Aberdeenshire gave independence the thumbs down. Official positions of Labour and the Tories in an EU referendum are likely to be very different to its members when deciding on an EU referendum and there are likely to be splits within.

The question has already been decided:
Should Cameron endeavour to progress with a referendum then it's out of the question that he can manipulate the question. The Electoral Commission has already given its advice to Parliament - the full details of its advice can be found here. In summary it advises:

If Parliament wants to retain the use of ‘Yes’ and ‘No’ as response options to the referendum question, then the Commission has recommended that that the question should be amended to:

'Should the United Kingdom remain a member of the European Union?'

If Parliament decides not to retain a ‘Yes’ and ‘No’ question, the Commission has recommended the following referendum question:

'Should the United Kingdom remain a member of the European Union or leave the European Union?'

The European Economic Area (EEA):
Unlike in 1975 we have an off-shelf economic model in form of the EEA which can successfully nullify the FUD which will undoubtedly be deployed to portray by fear that leaving would be economically disastrous. The EEA was designed as a ‘stepping stone in’ for reluctant countries such as Norway and this can very easily be used as a ‘stepping stone out’. The economic arguments of 1975 would be made redundant:

Let us be clear about one thing: In or out of the Common Market, it will be tough going for Britain over the next few years.

In or out, we would still have been hit by the oil crisis, by rocketing world prices for food and raw materials.

But we will be in a much stronger position to face the future if we stay inside the Market than if we try to go it alone.

Inside, we can count on more secure supplies of food if world harvests turn out to be bad. And we can help to hold down Market food prices - as we have done since we joined in 1973.

The EEA therefore allows us to sideline the economic arguments effectively and so use the referendum to concentrate on the political aspects of the EU which prove to be so unpalatable for the British people (my emphasis):

Public opinion is divided on the detail of Britain’s role in Europe, however. Around three in ten each would prefer to see ‘Britain’s relationship with Europe remaining broadly the same as at present’ (32%) and ‘Britain returning to being part of an economic community, without political links’ (30%). One in five would like to see ‘Britain leaving the European Union altogether’ (20%), with ‘closer political and economic integration’ with other EU member states the least favoured option (13%).”

The 1970's pessimism has gone:
It's not unreasonable to suggest that the early 1970s provided probably the only window of opportunity to have joined the EEC. The UK was beset by a national lack of self confidence not long after "Great Britain had lost an Empire and had not yet found a role", the Suez crisis, devaluation in the 1960's, a global recession, spiralling inflation, collapse of Britain's traditional manufacturing industries and rising unemployment and industrial unrest.

With this in mind it's easy to understand why the UK sought refuge in the EEC. Yet largely as the result of the Thatcher reforms of the 1980s, the UK escaped from the inward straightjacket of its past. Rather than pessimism overshadowing the next referendum a confident UK will now be able to take advantage, outside the EU, of the dominating factor of trade...

Globalisation:
Nothing illustrates the ever decreasing need for single market access for the UK than the rise of globalisation. This is the EU's redundancy notice, its P45. The EU is a relic of the 20th century, a time when the cold war dominated, when memories of war on the continent were still painfully fresh. Yet during the late 1970s and 1980s we had the emergence of other markets such as Japan.

Fueled by the evolution of technology, improved transport (Containerisation) and the growth of multinational companies and trading blocks globalisation is now the dominating factor. With the growth of China and India, the United States for example is increasingly looking east rather than to the EU in terms of importance of trade.

With globalisation has come the increasing importance of global bodies setting international standards. The Single Market, is a collection of regulation which drives the harmonisation of standards, with a view to not only facilitate trade throughout the Communities but to lead to increasing "political union" in the EU. It has primarily a political objective not an economic one.

However the EU acquis of harmonisation is gradually being replaced by international regulation which does not have the same political overtones. As such the EU loses its European distinctiveness and simply becomes a property shared by all members of the WTO, which they will all use as the basis for international trade. The EU's Single Market thus will become redundant. Gradually it is being replaced by the globalised market.

As it stands, as long as we are in the EU, we have a subordinate position, (only 8% of the vote within the EU) on international bodies and the agreements on international standards are negotiated and approved by the EU on our behalf. 

However EFTA/EEA countries such as Norway are able to negotiate for themselves at the top international table and only after they have agreed them are they then processed into actionable law and passed down to regional trading areas such as the EU. The following graph illustrates how this works:

The early '70's demonstrated the UK's lack of ambition and self-confidence by tying itself to an inward-looking customs union based on the European continent.  A 2017 referendum will give the opportunity to argue instead for a vision which was not available in 1975 - a vision that embraces the globalisation one which the UK can fully participate in.

An Exit Plan:
With the above in mind it is essential then that there is a detailed, workable and credible exit plan. Nothing illustrates this better than what has been very apparent from the Scottish independence referendum. The 'yes' campaign was not undermined by FUD, nor by the closing of ranks by the establishment, nor by a loaded referendum question nor by the lack of funds. Instead what the polls clearly showed is Salmond lost primarily due to not answering the currency question:

Meanwhile so far as the issues are concerned, if the Yes side does lose it will probably have done so not least because it never managed to persuade a majority of Scots that the country would be more prosperous under independence. YouGov find in their latest poll that only 35% think Scotland will be economically better off under independence while as any as 47% reckon it would be worse off.

 And:

Of course, describing the patterns of the kinds of people who were more or less likely to vote Yes or No does no more than give us clues as to why people voted they way they did. What we can note at this stage is that women, older people, those in ABC1 occupations and those born elsewhere in the UK were all, according to YouGov’s final poll for The Times and The Sun, relatively pessimistic about the economic consequences of independence. And as we have repeatedly noted on this site, nothing seemed to matter more to voters in deciding whether to vote Yes or No than their perceptions of the economic consequences of leaving the UK.

In other words Salmond did not have a well thought out exit plan to deal with the basics. And failure to address the core problem of currency if Scotland left the Union then plants further doubts in voters' mind about other issues such as; defence, NHS,oil, immigration, EU membership, the Monarchy, pensions and so on. If Salmond had provided answers to these then it is very likely we would be looking at an independent Scotland.

One of the fatal flaws of the 1975 campaign was its inability to come up with a credible alternative to then EEC membership, a situation replicated by Salmond. With a fully workable exit plan we can avoid that flaw and crucially win...

Eurozone:
This is the joker in the pack. Without yet a resolution to the inherent problems of the Eurozone namely it's still only an economic union without the political union necessary its problems are far from resolved. Given that a referendum is likely to take place in September of 2017 (during the UK Presidency of the Council of the EU) it will be at a time that is traditionally one of market turbulence. We could see a Eurozone crisis right in the middle of a referendum campaign.

In many ways therefore we can see that winning a referendum in 2017 is perfectly possible. Reluctance to take a calculated risk until conditions are just 'perfect' obviously begs the question if not in 2017, then when?