Telecommunications Infrastructure (Leasehold Property) Bill

Lord Clement-Jones Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 2nd June 2020 Lords Chamber

Moved by

[Lord Clement-Jones]

20: Clause 1, page 6, line 12, after “any” insert “direct”
Member’s explanatory statement
This amendment would probe the type of damage for which compensation will be paid under this sub-paragraph.

[Lord Clement-Jones (LD)]

My Lords, I will be extremely brief. I hope that the Minister will understand entirely the reason for this probing amendment. It arises from the way in which the compensation clause—new paragraph 27H—is worded. It seems to give enormous licence to award compensation under the terms of the Electronic Communications Code where a court has made a Part 4A order. That has been imposed, of course, but new paragraph 27H(2) states that:

“The court may, on the application of the required grantor, order the operator to pay compensation to the required grantor for any loss or damage that has been sustained or will be sustained by the required grantor as a result of the exercise by the operator of the Part 4A code right.”


I am concerned that these compensation requirements are drawn so widely so they could be a disincentive to an operator to lay fibre to a home or MDU as envisaged by this new section of the Electronic Communications Code.

What kind of compensation is contemplated in these circumstances? I have inserted “direct” because in law it is perfectly respectable to claim damages for foreseeable loss. That could mean economic loss—for instance, where a Part 4A agreement has been imposed and somebody loses two days’ worth of business or finds that they have to close unexpectedly a particular facility that is part of the building to which the order relates. Then there is ancillary land, where the landlord has some other kind of business next door to the MDU and it is necessary for the fibre to cross it or be laid across it by the operator, meaning closure and so on. What is contemplated? It seems extraordinarily wide-ranging. Of course, it provides for arbitration and agreement to be reached, but I want very much to hear from the Minister exactly what is contemplated by this clause. As I say, it is so widely drawn that it could be seen as a disincentive to the operators, which we all wish to see move pretty swiftly to ensure that the Government’s target for full fibre rollout is met. I beg to move.

[Lord Fox (LD)]

I thank my noble friend Lord Clement- Jones for setting out this amendment so effectively. He promised to be brief; I will be even briefer. Is this not symptomatic of the whole Bill, where the balance is against things happening rather than for making things happen? What was in the Government’s mind when they wrote this clause and put this Bill together? Is this an enabling Bill or a sort of grudging Bill that somehow lets a few things happen but ends up stopping a lot of other things? Why did the Government take this kind of attitude, which is symptomatic of the whole Bill?

--- Later in debate ---

[The Deputy Chairman of Committees (Lord Haskel) (Lab)]

No noble Lord has asked to speak after the Minister, so I now call the noble Lord, Lord Clement-Jones.

[Lord Clement-Jones]

I thank the Minister for that reply. It was a reply of some ingenuity, pulling together quite a number of different negative arguments against the amendment. I will briefly go through why I do not think that it holds a great deal of water.

I am grateful to my noble friend for pointing out that this remains a grudging Bill as opposed to an enabling Bill. It certainly feels very much like that to those of us who have been working on this and hoping that there was going to be a great deal more opening up of operators’ ability to lay fibre than purely the MDUs, the subject of this Bill. I am also grateful to the noble Lords, Lord Adonis and Lord Lea, for pointing out that it is important that tenants and lessees get the benefit from these new powers, not the landowners in that sense. I entirely agree that it would be quite possible for the lessor—the landlord—to have entirely different interests from the tenants, and it is tenants and lessees who we want to see get the benefit of fibre and the ability to have proper communications. This has been the frustration of operators. The reason for these new powers is precisely that landlords have been holding up progress in this respect. As the noble Lord, Lord Livermore, said, there is a danger of bad blood being created not just between the operator and the landlord—hence the reasons for orders under new Part 4A—but between tenants and lessees and the landlord.

The Minister’s main argument was that the language in new paragraph 27H mirrors the remainder of the Electronic Communications Code, but just because the rest of the code is written in a very pro-landlord way should not mean that these important powers should not be written in a different way. The argument is that it mirrors the language and that courts are experienced in dealing with it, but these are new provisions. Any lawyer will say that if there is a limitation on the definition of damage and the compensation that is available, it is much more helpful than having to decide at large the damage that has been suffered. The Minister’s case is that more lawyers will be required. Perish the thought!—I am lawyer. Her belief that more lawyers would be required with the new definition using the word “direct” is not entirely correct, I am afraid to say, because lawyers dealing with things such as indirect damage are going to dance on the heads of many more pins than they would if this wording were added.

I believe that the balance is wrong, not just in this clause but across this amendment to the code. I hope we do not all live to regret it by finding that operators are unwilling to go forward because of the threat of compensation hanging over their heads to the detriment of tenants and lessees, as the noble Lords, Lord Adonis and Lord Lea, said. Clearly I am not going to make much further progress today, so I beg leave to withdraw the amendment.

Amendment 20 withdrawn.