Working with other regulators

The requirement to work with other regulators was dropped between the response to the White Paper and the draft Bill[1]. Despite a significant suite of recommendations on this matter from the Joint Committee, there is no mention at all of any requirement to cooperate or coordinate with other regulatory bodies – though the ICO has been added in a few places as a statutory consultee. While OFCOM may not need a new “co-designation” power[2], it will need to work with other regulators – for example, the FCA in relation to OFCOM’s powers in enforcing the new duty on fraudulent advertising. This has consequences not just for – e.g. sharing of information between the regulator or ensuring clear lines of responsibility and cooperation in relation to evidence-gathering, horizon-scanning or enforcement – but also for upstream policy oversight. For example, which department holds the ring on the policy oversight and related Ministerial advice on the implementation of the duty on fraudulent ads? DCMS, as the sponsor of OFCOM, or HMT, as the sponsor of the FCA, or Home Office, as the department with the policy responsibility for combatting fraud? From the other end of the process, it is instructive to contemplate what would happen to a case file on an issue as it winds its way between regulators. Are all the powers in place to allow information to cross boundaries and for bureaucracies to resource their teams for cross boundary working?

Curiously, clause 97 makes express provision for OFCOM to work with overseas regulators, but not UK ones.

It would do no harm to set out in the Bill a requirement on OFCOM to define the terms of its relationships with other regulators and the power, if needed, to get them to work effectively together.

[1] We have written previously about interlocking regulation: https://www.carnegieuktrust.org.uk/blog-posts/online-harms-interlocking-regulation/

[2] See para 223 of the Government response to the Joint Committee: “Ofcom already has the power to co-designate other bodies to carry out separate functions by virtue of Section 69 of the Deregulation and Contracting Out Act 1994, and Section 1(7) of the Communications Act 2003. We are satisfied that these powers are sufficient, should other bodies be required to deliver aspects of the regime. As such, we do not see a need to amend the Online Safety Bill” (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1061446/E02721600_Gov_Resp_to_Online_Safety_Bill_Accessible_v1.0.pdf)