No legislative powers
The Scottish Parliament has no powers to legislate on telecommunications and Internet access, these are reserved for Westminster (see schedule 5 of the Scotland Act). At least until Brexit, Westminster mostly transposes European Union directives.
In practice the Scottish Government (and the Scottish Executive before it) has adopted policies, made public procurements and channelled state aid to operators to increase the availability of broadband in rural areas.
S.65 of the Scotland Act 2016 gave Scottish Ministers the power to nominate one of the directors of the Office of Communications (OFCOM) and to lay the OFCOM annual reports before the Scottish Parliament. Given the statutory independence of OFCOM (see Art. 1(3) of 2009/140/EC) and the harsh scrutiny of the Competition Appeal Tribunal (CAT), the effect of these measures is unlikely to be significant.
Total broadband coverage
In its manifesto for the 2016 Scottish Parliament election campaign, the Scottish National Party (SNP) promised broadband for all businesses, homes and other premises, regardless of their remoteness. This was confirmed in a statement after the SNP formed its minority administration. However, there has been neither an economic analysis nor an impact assessment, just a political assertion, for example, it is unrelated to any plans for economic growth or to key sectors (e.g., finance or food). Audit Scotland, which has examined expenditure but not policies, notes the lack of a plan to deliver 100% broadband.
The promise was surprising, firstly because it exceeds the commitments made by Her Majesty’s Government (HMG), and secondly because the Scottish Government has almost no powers to achieve its target. All the Scottish Government can do is to ask HMG and BT Openreach for more broadband and, where it can find the funds, to provide subsidies within the state aid rules. For example, it has provided £2.1 million for fifteen community projects. Consequently, it seems very unlikely that the SNP will be able to deliver on its promise and that if it does it will be more a matter of luck than of good policy execution.
HMG has been very cautious about funding universal broadband, top-slicing £500 million from the Television Licence Fee income for the current Broadband Delivery United Kingdom (BDUK) scheme to extend rural coverage, which requires ‘local bodies’ to match this, notably with European Union development monies. This is a state aid project approved by the European Commission, a requirement that will end with Brexit, as will the EU funds used by the Scottish Government to match HM Treasury spending.
BT is trialling fast broadband over longer distances at North Tolsta on the Long Isle. This could enable much cheaper provision of broadband in remote and dispersed communities.
The Digital Economy Bill, presently before Westminster, contains the potential for a future Universal Service Order that would include broadband. This is a somewhat opaque means of requiring households that are cheaper to serve to fund the provision of broadband to more remote households, a scheme likely to be managed by BT (see responses to OFCOM consultation). Since this would be a United Kingdom measure, and since Scotland has a markedly lower population density, it implies a transfer of funds from English to Scottish consumers.
The surprise vote in favour of Brexit was taken as a casus belli by the SNP to argue for a second independence plebiscite, though this may not happen very soon. Indeed, the prospect of a ‘hard’ Brexit creates significant challenges in terms of the border with England, either requiring customs checks or passport controls, and conceivably both, if Scotland was in the Schengen Area and the European Customs Union (EUCU) and England was not.
Consequently, there are a number of scenarios in which Scotland might, at different times, be in either or both the United Kingdom or the European Union, perhaps neither. It is likely to have to leave the EU along with the UK and then apply for membership under Article 49 TEU.
Independence, whether or not in the EU, requires splitting of the UK telecommunication markets and networks. It would be especially challenging to split Openreach, both the Agreement and the BT local access network that supplies retail Internet service providers. The consequential uncertainties can only reduce investment in networks. Moreover, faced with uncertainties and having to set up new network operations centres, lobbying groups, and regulatory compliance units, firms might prefer to spin off their operations in Scotland, for example, to hedge funds or to groups based in Scotland.
Independence would require a new legal framework, presumably by replicating the UK Communications Act 2003. However, this is complicated by Brexit, which necessitates considerable changes to the Act and the related statutory instruments, notably to remove obsolete references to the European Commission and the single market. Membership of the EU would require compliance with its acquis, including the telecommunications directives and creation of the associated institutions. The result could be a sequence of complex legal and regulatory changes, generating considerable uncertainty, not helped by the preference of the operators to test laws and rules in court.
Independence would require Scotland to create a ministry with policies for telecommunications and a host of new bodies, to replicate the functions of, inter alia, the following:
- · Competition and Markets Authority (CMA);
- · Competition Appeal Tribunal (CAT);
- · Gambling Commission;
- · Interception of Communications Commissioner's Office (IOCCO);
- · Internet Watch Foundation (IWF);
- · Investigatory Powers Tribunal (IPT);
- · Office of Communications (OFCOM);
- · Office of the Telecommunications Adjudicator (OTA2);
- · Ombudsman Services.
This represents an enormous workload for new ministries in preparing policies and drafting legislation, for new regulators in drafting, consulting on, and re-issuing licences, and for the Scottish Parliament in creating additional committees to scrutinise legislation, then to oversee the new ministries and agencies.
Ewan Sutherland (2013) “Independence and the regulatory state - Telecommunications in Scotland and the rest of the United Kingdom” Telecommunications Policy 37 (11) 1046-1059.
Ewan Sutherland (2013) A short note on Scotland's Future – the Internet, broadband and telecommunications.
Ewan Sutherland (2016) “Broadband and telecommunications markets—policy, regulation and oversight” Parliamentary Affairs 69 (2) 387-408.
Ewan Sutherland (2016) A short note on Brexit: Telecommunications issues after the Referendum. (30 June 2016).