United Kingdom – Brexit means no more European regulatory networks, no BEREC, no RSC, no RSPG, etc … splendid isolation

The vote for Brexit means the United Kingdom will cease to be a member of the European Union (EU) and, consequently, to play a role in the development of the rules applied to the single market. It will no longer to be represented in the European Parliament and Council of Ministers, while British staff will no longer work at the European Commission (EC) and Court of Justice of the European Union (CJEU).

It also means the United Kingdom will cease to participate in the EU advisory and governance committees and working groups, sometimes termed European Regulatory Networks (ERNs). It will be outside the EU multi-level governance.

Brexit means no more ERNs

In the Daily Telegraph, the ex-Treasury Mandarin, Sharon White wrote of the Office of Communications (OFCOM) that it participated in European Union regulatory committees and groups in which:

Ofcom has represented the UK’s position on these matters for many years, working closely with our European counterparts. We’ve helped shape the arguments, leading to many EU proposals that we welcome … After Brexit, we want to remain an influential player in these debates, sharing our expertise.

She seems to have missed the point of the United Kingdom returning to being a “sovereign and independent nation” and of leaving the decision making institutions of the European Union, because they constrain and interfere with the making of domestic policies and regulations.

These arrangements have been voted down and end with Brexit in early 2019. There will be neither more comitology nor multi-level governance, with the exception of domestic arrangements (e.g., Joint Ministerial Committees).

From the day of Brexit, OFCOM will cease to participate in:

• ·         Body of European Regulators of Electronic Communications (BEREC);
• ·         Communications Committee (COCOM);
• ·         Radio Spectrum Committee (RSC); and
• ·         Radio Spectrum Policy Group (RSPG).

These bodies are constituted by EU legal instruments derived from EU treaties, with the committees and groups advising EU institutions. They have coordinated the creation and implementation of policies within the EU and European Economic Area (EEA).

The only possible exception would have been the “Norway option”. This now seems extraordinarily unlikely, though it might have preserved participation or observer status in some groups.

Additionally, the participation and funding of the Internet Watch Foundation (IWF) from the EU Safer Internet Programme would expire with Brexit.

British participation in the European Union Agency for Network and Information Security (ENISA) would also end.

The same is true in other subject areas, notably withdrawal from:

• ·         Article 29 Working Group on data protection; and
• ·         European Regulators Group for Audiovisual Media Services (ERGA).

HMG might allow OFCOM to continue to participate in ‘trade associations’ for European regulators:

• ·         European Platform of regulatory authorities (EPRA); and
• ·         Independent Regulators Group (IRG).

Non-EU inter-governmental bodies

The United Kingdom will continue to participate in:

• ·         European Conference of Postal and Telecommunications Administrations (CEPT):
•  Electronic Communications Committee (ECC);
• ·         Organisation for Economic Cooperation and Development (OECD);
•  Internet economy (ICCP); and
• ·         International Telecommunication Union (ITU).

Given the need for regional and global coordination in the allocation of spectrum bands, the work of ITU-R and the related work of the ECC will continue to require participation from the United Kingdom.

Whether the United Kingdom should be represented in these bodies by the Department of Culture, Media and Sport (DCMS) or by OFCOM is an open question. Logically, it should be by officials accountable to ministers and thus to parliament, rather than by an independent regulatory authority, which can only represent British interests indirectly and only be accountable indirectly.

A good example to follow would be the USA, where the NTIA Office of International Affairs (OIA) holds consultations prior to inter-governmental conferences and meetings. The US Trade Representative (USTR) publishes an annual report, drawing on the experience of US-based firms, identifying failings in the implementation of trade agreements related to telecommunications. The important principles are transparency during the processes and accountability thereafter.

Conclusion

The United Kingdom will still be subject to EU influences, given it has been so closely integrated and that some operators which will continue to have continental operations. However, it can now be much more selective in its borrowings from EU policies and regulations, explicitly adapting them to British needs.

It can and should try to become a leader, developing innovative and novel approaches that might be taken up by EU member states and institutions.

It can seek to influence the rules of the Single Market, but from 2019 it must do so from the outside the single regulatory space of the EU.

References

Ewan Sutherland (2016) A short note on Brexit: Telecommunications issues after the Referendum. SSRN.

Emilia Korjea-Aho (2016) ‘Mr Smith goes to Brussels’: Third country lobbying and the making of EU law and policy pp 1-24 in Cambridge Yearbook of European Legal Studies. Cambridge: Cambridge University Press.

David Levi-Faur (2011) Regulatory networks and regulatory agencification: towards a single European regulatory space Journal of European Public Policy 18 (6) 810-829.