Commentary on Sections Section 1 and the Schedule: The Office of Communications
9.Section 1 establishes OFCOM as a statutory corporation with not more than 6 and not less than 3 members. The power to make appointments is conferred upon the Secretary of State. It is intended that appointments will be made by the Secretary of State for Trade and Industry and the Secretary of State for Culture Media and Sport acting together. The Secretary of State is also given power to make orders, subject to negative resolution procedure, to alter those limits. This power could be used to increase the size of the board when its preparatory function is supplemented by regulatory functions under the Communications Bill. She will appoint the Chairman and the non-executive members. The Chairman and non-executive members will appoint a Chief Executive, with the approval of the Secretary of State, and the Chief Executive will be a member of OFCOM. It is also for the Chairman and the non-executive members to decide on appointing executive members to the OFCOM board, after consulting the Chief Executive.
10.The remainder of Section 1 and the Schedule cover the members, staff, finances, organisation and procedures of OFCOM. Some specific provisions that relate to OFCOM are explained below.
11.Paragraphs 1(4), 17(8) and 20 of the Schedule contain provisions dealing with the relationship between OFCOM and persons involved in the existing regulatory arrangements. On the one hand, they provide that persons connected with the existing regulators will not be regarded as having an interest which affects the performance of their role as members of OFCOM or of its committees solely by reason of being, or being a member or member of the staff of, an existing regulator. On the other, it provides that membership of OFCOM does not disqualify a person from any office connected with an existing regulator or from acting in relation to matters connected with OFCOM for such a regulator. The persons affected by these provisions are: the Director General of Telecommunications and the members of his staff, the members and staff of the other existing regulators and civil servants working on wireless telegraphy (primarily those in the Radiocommunications Agency).
12.Paragraph 14 of the Schedule provides that OFCOM has the power to establish committees. The membership of those committees may include people who are neither members nor employees of OFCOM; but except in the circumstances specified in sub-paragraph (3) of paragraph 14, the committees must include at least one member or employee of OFCOM. This allows lay members to be included within the process of setting codes and standards for the communications sector once OFCOM has received the relevant functions when the Communications Bill comes into force. OFCOM will have the flexibility to determine their own internal working arrangements – committees can either be advisory or can have decision-making functions delegated to them. Paragraphs 15 to 19 deal with the arrangements for the procedures of OFCOM and their committees. Under paragraph 16, OFCOM is required to maintain proper records of their proceedings whether in OFCOM, in any of OFCOM’s committees, in meetings of the Chairman and other non-executive members, or in the course of delegated action by OFCOM staff. In addition, paragraph 23 makes OFCOM subject to the provisions of the Public Records Acts 1958 and 1967 and places it under obligations in relation to the maintenance and safe-keeping of its records.