Ofcom Updates Impact Assessment Guidance

Originally published at: https://decentered.co.uk/ofcom-updates-impact-assessment-guidance/

It’s good to see that Ofcom has published the results of their consultation on the process of Impact Assessments, and that they have made considerable changes to the process by which they account for their processes and decisions. Working with Better Media in responding to the consultation, several significant changes have now been agreed, though other areas, such as the presumption of non-intervention and the lack of a hierarchy of needs, require further lobbying.

Ofcom states that they have now incorporated the following changes:

4.2 Raising the prominence of our discussion of our equality duties: We have made clearer reference to our public sector equality duties earlier in the guidance. We have more explicitly recognised our duty to promote equality of opportunity, and integrated discussion of our public sector equality duties into the main body of the guidance rather than in a separate section dedicated to ‘other statutory duties’. We have also identified a wider range of specific groups of persons (including persons with protected characteristics; vulnerable persons including children; people of different socio-economic groups; people in different nations, regions and communities; and people in urban and rural areas) in our discussion of relevant sub-groups to consider as part of an impact assessment.

4.3 Emphasising our commitment to inclusive consultations: We have placed greater emphasis on the variety of experiences our stakeholders may have both in how we consider potential impacts and in presenting our thinking. We have made new references to considering different geographies where appropriate (including the nations, regions and communities across the UK), and to using market research to understand impacts on particular persons or communities most likely to be affected by our decisions.

4.4 Emphasising impacts on investment, competition and innovation: We have amended our guidance to make our obligations under the 2003 Act on investment, competition and innovation clearer, and to draw these issues out more explicitly when discussing example areas to consider when conducting an impact assessment. We have added considering investment, competition and innovation, where appropriate, as one of the key principles in our assessments. We have also clarified our legal obligation to review our regulation to ensure it is not unnecessarily burdensome.

4.5 When we will not carry out an impact assessment / equality impact assessment: We have clarified that whether we need to carry out an impact assessment will depend on the nature of the proposal we are putting forward, in particular (i) whether Ofcom is required to act in a particular way; and (ii) whether an individual proposal implements a policy or process on which an impact assessment has already been carried out. We have included some additional examples of when we will not, as a general rule, carry out an impact assessment and clarified that where we do not carry out an impact assessment as part of a consultation process, we will explain why. We have similarly explained when we will generally carry out an equality impact assessment.

4.6 Developing the counterfactual: We have included new text to explain that work to understand the current state of the world is important at the ‘understanding and scoping’ stage to help develop a later counterfactual, and that we may use sensitivity analysis to test the robustness of our assumptions where the counterfactual is uncertain.

4.7 Presenting our reasoning: We have emphasised the importance of clearly presenting our evidence and reasoning, including approaches we decided not to take, and evidence for qualitative impacts.

While Ofcom can clearly go further as an independent regulator, these changes will make a significant difference when consultations and policy changes are proposed, and should enable a broader range of considerations, as they affect people in minority communities, to have their views incorporated. The incorporation of the Equality Act 2010 explicitly into the consultation and impact assessment process is therefore welcome, and can be monitored because Ofcom will be publishing their impact assessments as a matter of course.