Joint Committee on Statutory Instruments Twelfth Report


Memorandum by the Department of Trade and Industry


  1. The Committee requested the Department to submit a memorandum on the following points:

    (1)   Regulation 3(1) modifies the BT and Kingston Licences by incorporating provisions as set out in Schedule 1. Explain what is the effect of regulation 3(2) in deeming those modifications to have been made by the Director under section 12 of the 1984 Act.

    (2)    Regulation 5(3) disapplies regulations under section 27A of the 1984 Act (overall standards of performance) in relation to relevant Licensees "in so far as that power is exercisable in respect of the target indicators for services to which the Voice Telephony Directive applies". Explain -

    (a)   whether any such regulations are in force for any of the relevant Licences, and if so why no textual amendments have been made to them to effect the disapplication;

    (b)   what is the intended effect for any future such regulations.

Question 1

    2. In regulation 3(2), the words

    " . . . the modifications . . . shall have effect as if they were made under section 12 of the Act by the Director"

ensure that the Licence modifications made by these regulations (being made under section 2(2) of the European Communities Act 1972) have effect within the scheme of the Telecommunications Act 1984. It is thus clear that the modifications themselves may be amended by the Director, subject to the general duty on the Director to comply with European law and in particular this Directive, under sections 12 to 15 of the 1984 Act, that is to say, without the need for further regulations under section 2(2) of the 1972 Act. Modification of any condition introduced into a Licence may for instance be necessary to deal with cross references to other conditions or consequential on modifications made to other conditions.

Question 2

  3. The Department was aware at the time of making S.I. 1997/1886 that the Voice Telephony Directive was expected to have a limited lifespan, since a replacement directive was under negotiation. The draft replacement directive at that time contained different provisions concerning standards of performance.

  4. The Committee may be aware that the Competition, Service and Utilities Act 1992, section 1 of which inserted section 27A, was part of the Citizen's Charter package. It was enacted inter alia in order to provide for the setting of standards externally where the operator failed to set adequate standards for itself.

  5. Regulation 5(3) is drafted as it is to ensure that no exercise of the power to make Regulations under section 27A could be construed as overriding the provisions concerning target indicators for services provided by organisations to which the Directive applies (not necessarily the same class of operators as that to which section 27A may be applied) and that there was no partial repeal of that section. Partial repeal was to be avoided because it could not be assumed that the Voice Telephony Directive or any successor or modification would continue to make provision about target indicators or if it did whether the limitations on the organisations to which they should be applied would be the same.

  6. As to the Committee's point (a), no regulations have been made under section 27A.

  7. As to the Committee's point (b), the intended effect in relation to future regulations is that none could be made which were capable of having effect in relation to the target indicators for services to which the Voice Telephony Directive applies. That limitation would cease automatically on repeal of that Directive.

  8. The draft replacement directive is about to be subject to the conciliation procedure between the European Parliament and Council (the latest published text is the Common Position (EC) No. 27/97 with a view to adopting a European Parliament and Council Directive on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment; OJ No. C 234, 1.8.97, p.87). Article 12.1 of the draft directive requires that Member States shall have the power to set the quality of services where they deem it necessary; in particular they are to have the power to set performance targets.

  9. The conciliation procedure is expected to take place, and the new directive be adopted, shortly. It is possible that the original implementation date of 31st December 1997 (in Article 32) may be put back, but it is likely to be within a short time of adoption. It now appears likely therefore that at that time section 27A for all practical purposes will be spent, and the Department will consider what provision is appropriate to address the matter in implementing the new directive.

3rd November 1997

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