The stewardship of Ofcom is now with two government departments who both sponsor this quango. Both the Department of Culture, Media, Sport and the Department of Business, Inovation and Skills. The DCMS are currently under pressure to deliver the olympics on time and so the minister Jeremy Hunt is under pressure to sort this out along with the Olympic Delivery Authority. Therefore with the proposed merger of Ofcom with Postcomm, who are under the authority of BIS, the current arrangement is for BIS to take the lead over governance of Ofcom. I recently made an enquiry and the following information about responsibilities was given.
Department Head
The Rt Hon Dr Vince Cable MP
Ed Vaizey is the minister responsible for Ofcom within BIS and DCMS (who also sponsor Ofcom).
Simon Moseley, BIS/DCMS is the government sponsor at official level.
All are based at BIS, 1 Victoria Street, London, SW1H 0ET
I would like to say i am more assured that Ofcom now sit with this department as they are the one's driving deregulation throughout both central and local government.
Prior to the creation of BIS the department was previously known as the Department for Business, Enterprise and Regulatory Reform and was a key leader for dereugulation and support for small to medium sized enterprises, this work is continued by BIS.
Ofcom is a NDPB and is not part of a government department, and carries out its functions at arm’s length from central government. The Minister is responsible to Parliament for the activities of Ofcom who are sponsored by their Department and, in almost all cases, Ministers make the appointments to their boards. Departments are responsible for funding
and ensuring good governance of their NDPBs. NDPBs tend to be set up through statute, and most need primary legislation to alter their institutional framework.
I don't beleive that Ofcom are currently applying good governance over their treatment of the babe channels when they keep issuing stricter guidance than that required by their Broadcasting Code and without consultation. I believe these issues along with Ofcom's refusal to accept that their appeals procedure meets the requirements of the Hunan Rights Act needs to be brought to the attention of the Minister.
It has been said on various web sites that Ofcom are lacking with regard to how they consult in relation to their Generally Accepted Standards and how the information is collated and interpreted.
If you interogate the website of BIS you will find information on government guidance on how to carryout consultations. It also shows which organisations have signed up to follow these procedures. Suprise, suprise the Office of Communication is not listed.
http://www.bis.gov.uk/policies/better-re...n-guidance
Now Ofcom use both criminal law as well as administrative law to enforce their rules. With regard to the Broadcasting Code it is administrative law.
A review carried out under the direction of BERR highlighted the following when enforcing such law.
2.86 The review believes that administrative penalties, with provisions to appeal to magistrates’ courts, could make it easier for regulators to deter potential offenders, by showing they will not be able to keep any economic benefits of illegal activity.
Recommendation 8: The review recommends that the Better Regulation Executive (see Chapter 4) should undertake a comprehensive review of regulators’ penalty regimes, with the aim of making them more consistent. Administrative penalties should be introduced as an extra tool for all regulators, with the right of appeal to magistrates’ courts unless appeals mechanisms to tribunals or similar bodies already exist.
Recommendation 9: The review recommends that, two to three years after the introduction of administrative penalties, the Better Regulation Executive should review whether appeals to magistrates’ courts are being dealt with effectively, and whether a Regulatory Tribunal Service, using specialist judges, should be established to hear appeals.
So as part of this review for BERR it is heavily recommended that appeals against administrative penalties are heard by either a magistrate court or independent regulatory tribunal.
When the Health and Safety Executive, the main criminal regulatory body against industries carried out it's own review of it's regulatory regime back in 2005 it made the following comments concerning administrative law.
Administrative fines
What they are
Financial penalties where the dutyholder is subject to a variable fine, rather than a fixed penalty, and which are imposed by the regulator or enforcing authority without recourse to the courts. In the most likely scenario, the dutyholder can refuse to accept the administrative fine – in which case matters revert to consideration of a criminal prosecution in the normal way.
But if replacing (criminal) prosecution (with administrative penalties) for some breaches, would require robust and independent appeals process – possibly to Magistrates Court or Employment Tribunal - to satisfy ECHR requirements for fair trial.
So if Ofcom's current sponsors own review state that there should be recourse through the courts for appeals against administrative penalties as well as the HSE to satisfy Human Rights then why is Ofcom not abiding by this.
As i said before human right abusers. They are out of step with other regulatory agency's.
If Vince Cables aim is to reduce burden on SME's from Ofcom then a start would be putting in place an appeal system to the magistrate court rather than the current and very expensive judicial review process.
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