DCMS faces legal threat over BDUK funding
Richard Brown, COO of Wispa, a Welsh communications consultancy, has sent Jeremy Hunt’s department of culture media and sport a final letter of notice before legal action, which is a kind of gentle nudge before the lawyers’ fee-meter goes into hyperdrive.
Brown is mildly peeved, if that’s the right expression, for a number of reasons. Firstly, he wrote a book which explains in lucid detail how BDUK can get its job done for a fraction of the money it is paying KMPG to screw up the procurement of broadband in rural areas.
His ideas have been supported by none other than Peter Cochrane, the former BT CTO, who has attracted headlines because of his damning evidence to the House of Lord enquiry into broadband.
He is also ticked off because Ofcom has not had the courtesy to acknowledge receipt of his petition, signed by more than 600, calling for a ban on “up to” advertising of broadband speeds, which Brown claims, and Ofcom itself reports, are misleading.
Finally Brown is irked by the fact that BDUK’s procurement framework for rural next generation broadband access, which was meant to deliver at least six bidders for the taxpayers’ £530m, has delivered only two, BT and Fujitsu. In practice, it appears that the odds are stacked in BT’s favour, and Fujitsu has still to confirm its on-going commitment to the framework process.
So Brown has written to the DCMS, threatening legal action to stop BDUK under state aid rules from giving BT any money. Furthermore Brown is asking DCMS to refund him his share of the £530m, a sum he calculates as £8.98, whereupon he will cease his action.
DCMS no doubt would like to laugh this off as a publicity stunt, but there’s a sting in the tail. Brown is asking for all the records relating to the pilot rural broadband projects as well as minutes of all meetings between DCMS and BT. In some quarters, these documents will generate more interest than Lady Chatterley’s Lover when it was unbanned.
Normally, the courts might take the view that Brown’s action falls into the nuisance or vexatious camp, and chuck it out without a hearing.
Brown says, “The action is legitimate on the basis that it is effectively money that is not the government’s or the department’s, it is simply in the custody of the the DCMS. As it is a custodial amount they have a legal obligation to demonstrate that it is being used appropriately (should they be requested to do so). As I have requested on a number of occasions that they do that, and they have failed to answer, I can demonstrate that they have failed to act, and so the only courses remaining are to forget it, or take some form of legal action.
“The best case would be that they send a cheque for C£9 – then everyone can ask for their money back
“The legal direction suggests that even if they consider it to be nuisance/vexatious then it is their responsibility to respond regardless, prior to such action being referred to a court.”
DCMS has 28 days to respond.
This is the text of Brown’s letter to DCMS.
BDUK Funding of BT
As it has not been possible to find a resolution to this matter amicably and it is apparent that court action may be necessary, I write in compliance with the Practice Direction on Pre-Action Conduct.
Summary of explanation of pending action
That the Department for Culture Media and Sport (DCMS) is willingly pursuant of a course of action that is contrary to our interests as a UK company, and is detrimental to us as citizens. In following a route that will fund a private organisation (BT) to the amount of C£530m of public funds (funds that have been contributed to by the citizens of the UK, or will have to be recovered from those citizens via a process of taxation)
Summary of expectation in prevention of legal action
I respectfully request, for the final time, that the action of State Aid funding a private organisation cease. This action is detrimental to the benefit of the UK citizens and is to be conducted without our express consent. In ceasing the action it will then be possible for those who have the knowledge to best advise the DCMS on how to allocate the funding in a more appropriate manner.
Sum(s) to be claimed
The sum of £8.98 is claimed in advance of this action. This has been calculated by the dividing the announced BDUK fund (£530m) by the 2001 census population (59m) and deriving the amount that a single individual will bear in new or paid taxation. Should we receive this sum we will cease our legal considerations.
Listed below are the documents on which we intend to rely in our claim against you:
How the State Aid Rules impact upon funding for the delivery of public services including services of General Economic Interest (http://www.bis.gov.uk/files/file53292.pdf)
Treaty establishing the European Community Part three – Title VI – Chapter 1 – Section 2 – Article 87-92 [So-called Maastricht Treaty] (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12002E087:EN:HTML)
Broadband Delivery UK – specifically Goals 1-4 (http://webarchive.nationalarchives.gov.uk/+/http://www.bis.gov.uk/bduk)
Broadband Delivery UK – Discussion forums – specifically statement from Hunt (http://discuss.bis.gov.uk/bduk/pilots/)
In accordance with Practice Direction on Pre-Action Conduct I would request that you provide me with copies of the following documents:
Outcome reports from Rural Market Testing Pilots (all)
Meeting minutes from Department with BT meetings (all)
I can confirm that we would be agreeable to mediation and would consider any other system of Alternative Dispute Resolution in order to avoid the need for this matter to be resolved by the courts and would invite you to put forward any proposals in this regard.
In closing I would draw your attention to section II (4) of the Practice Direction which gives the courts the power to impose sanctions on the parties if they fail to comply with the direction including failing to respond to this letter before claim. I look forward to hearing from you within the next 28 days, should I not receive a response to my letter within this time frame then I anticipate that court action may be commenced with no further reference to you.