Yesterday Ofcom pleased its political masters by repealing laws passed by Parliament. It may have repealed a dodgy law, but that’s beside the point: it’s not how our system is supposed to work. No matter how dodgy a law may be, it is not a quango’s job to repeal it. It’s the job of legislators. And a powerful regulator should be independent, and not heel to its political masters – although anyone who followed the history of the regulator will permit themselves a hollow cackle at that principle.
Ofcom repealed Sections 17 and 18 of the Digital Economy Act by expressing no more than an opinion: the justification to support that opinion is absent from its report. Ofcom could have set out its case in terms of explaining the legal framework, for example, but it didn’t. It could have argued the costs and benefits of each approach to web-blocking – but it didn’t, it hadn’t even attempted to do that kind of empirical research.
Instead, on page 43, we learn that: “It is our current belief that the blocking of discrete URLs, or web addresses, is not practical or desirable as a primary approach.” What’s practical is not defined, what’s “desirable” is well beyond Ofcom’s remit.
Imagine the uproar if a quango had interposed itself to block significant primary legislation: Britain’s entry into the Common Market for example, or the minimum wage. All are quite complicated issues, after all. The blame isn’t entirely Ofcom’s; the regulator was permitted to do this because ministers wanted to find a way to bury the Sections without Parliament formally repealing them. Again, this is dishonest, and not the way laws are made or unmade. Ed Vaizey has been trying to get industry to agree to self-regulation which would allow him to announce their imminent repeal (most likely in the next Communications Act).
The Conservatives came to power vowing to abolish Ofcom, and declaring war on what they saw as Leftish academic poseurs, and business-hostile bureaucrats. They now seem to be at the mercy of all three. How on Earth did that happen?