Telecommunications Infrastructure (Leasehold Property) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 22nd January 2020
(4 years, 11 months ago)
Commons ChamberRead Hansard Text
This text is a record of ministerial contributions to a debate held as part of the Telecommunications Infrastructure (Leasehold Property) Act 2021 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Matt Warman)
I beg to move, That the Bill be now read a Second time.
With apologies to T.S. Eliot, it is obvious that the naming of Bills is a difficult matter, but this Bill’s title does not do it justice. The Government are committed to delivering the infrastructure that this country needs, and the Bill is the first step on that road. To continue to channel T.S. Eliot, we know that if we do not deliver that infrastructure, too much of this country will be a digital wasteland.
Sir Desmond Swayne (New Forest West) (Con)
The Minister is right: this is the first part of a much greater endeavour. An increasing number of younger people find that they can do without a landline at all, so can he reassure me that this great, expensive endeavour will not be overtaken by the development of new technology, particularly as regards 5G, that will render it obsolete?
Matt Warman
I can absolutely assure my right hon. Friend that our approach to connectivity is technology-agnostic, and 5G is very much part of the solution, rather than something leading to the exclusion of connectivity. He is right to imply that we aim to go significantly beyond current demand to pre-empt the sort of problem that would occur if we did not build far in advance.
The Prime Minister and this Government have been unwavering in their commitment to the delivery of high-speed, reliable, resilient connectivity to every home and business as soon as possible. For the United Kingdom to remain at the forefront of the global economy, our businesses and consumers must have access to the tools they need to thrive. Already, our superfast broadband programme covers over 96% of the country and has brought connectivity to more than 3 million premises that would otherwise have been bypassed by commercial deployment.
Seema Malhotra (Feltham and Heston) (Lab/Co-op)
Labour Members recognise the importance of faster broadband. Indeed, I have worked with previous Ministers on this, and on the issue of notspots in my constituency. Does the Minister agree with me on the importance of the issue to young children, who need to study and do their school homework, and to people working at home? Issues have been raised about that in my constituency. Does he agree that the essential criterion of affordability must also be part of the Government’s strategy?
Matt Warman
Yes, the hon. Member is absolutely right. Teachers can only teach at the pace of the slowest broadband in the class if they are using digital technology; we have to be cognisant of that. We, with Ofcom, also have to be determined to ensure that competition continues to preserve the low prices that this country has typically benefited from.
Seema Malhotra
May I make a point of clarification? I was talking about children studying at home, and being able to do their homework. That is the issue raised with me by my constituents, particularly in areas where there are leasehold properties.
Matt Warman
The hon. Member is absolutely right. My point about teachers was that when they send pupils home to do their homework, pupils must of course have to have the tools to do it. The pencil is now digital, shall we say?
On that point, the universal service obligation will give people in the UK the legal right to request a decent and affordable broadband connection if they cannot get 10 megabits per second, and we intend to invest £5 billion to ensure gigabit-capable networks are delivered without delay to every area of the country. We are proud of the work that we have done, and continue to do, to support deployment across the United Kingdom, from the Scottish highlands to Cornwall, from Armagh to Anglesey, but the digital revolution is far from finished.
Matt Warman
I give way to the former Chair of the Select Committee on Digital, Culture, Media and Sport.
Damian Collins
And I am standing for re-election, as the Minister knows.
The Bill gets rid of unnecessary delays in rolling out superfast broadband, which is what consumers want. He will know that in some areas of the country, particularly rural, notspot areas, one of the problems is that alternative providers—say, to Openreach—will not come in and provide superfast broadband because they are concerned that it will be overbuilt by another operator. Are there things we can do beyond the scope of the Bill—things he is working on now—to give more certainty to people who want to invest in the network, but want to make sure that they get a fair return if they do?
Matt Warman
Absolutely. My hon. Friend will know that the single greatest barrier to rolling out in the final 20% of the country is the risk of overbuild, which makes roll-out uneconomic and potentially makes using public funds even harder. We are absolutely working hand in glove with Ofcom on that, and to ensure that the system that we design ensures that the money—as my right hon. Friend the Member for New Forest West (Sir Desmond Swayne) said, it is a significant amount—is spent in the best possible way.
Those gigabit-capable connections, by which I mean 1,000 megabits per second and above, will ensure that British businesses can retain their global reach. They will be a catalyst for entrepreneurs in areas such as cyber-security, big data and artificial intelligence, and will support innovation in operations that use cloud services and blockchain technologies. They will transform how and where people work and collaborate.
Perhaps the most exciting promise of gigabit broadband is for consumers, because as we all know, poor internet connections hold people back. They prevent children from doing their homework, the ill from arranging appointments to see their doctors and those who need it most from saving money online. It was superfast broadband that facilitated the rise of Netflix, Spotify and the iPlayer; gigabit broadband, with its improved reliability, resilience and speed, will herald the era of the internet of things, the connected home, integrated transport networks and personalised healthcare, and that is why this Government are committed to investing in it across the country.
Julian Sturdy (York Outer) (Con)
I wonder what conclusions my hon. Friend draws from York, which became a gigabit city in 2008, and whether the Government are looking at that example and learning from what has happened in that great city.
Matt Warman
York is an exemplar for these sorts of projects. It demonstrates why investment is the right thing to do for the commercial sector, and why it is right for the state to support it. I look forward to the other place seeing the Bill in much more detail. That will happen imminently, I am sure—or maybe not; we will see.
As I say, superfast broadband facilitated the original internet that we are so familiar with, and gigabit will do so much more. It will support older people in staying independent for longer, will allow people to work how and where they choose to a much greater extent, and will make sure that commuters can join up their life in a much more effective way. However, the benefits for businesses and consumers can be realised only if digital infrastructure providers such as Openreach, Virgin Media, CityFibre and many others—increasingly more—can access homes, workplaces and public buildings such as hospitals and train stations. It is for that reason that this Government have made the deployment of gigabit broadband one of our key priorities.
With this Bill, we are taking the first hammer blow to the barriers preventing the deployment of gigabit connectivity. We will similarly take aim at new-build homes that are being built without access to futureproof connections, and we are exploring how we can make it easier for digital infrastructure providers to share the infrastructure of others, and how we can promote 5G mobile services by simplifying the planning regime.
Daisy Cooper (St Albans) (LD)
The Minister mentioned delays. I welcome the Bill, although it is overdue, and its objectives. One of our challenges, however, is that up to 3,000 applications a year could be going to the tribunal from suppliers wanting to secure access. The Minister said that he would be taking a hammer to the delays and barriers; what will he do to ensure that the tribunal has the capacity and resources to process those applications and ensure that they go through?
Matt Warman
The hon. Lady is absolutely right that the system is only as good as the resourcing behind it. We will explore every option to ensure that the tribunal gets those resources. We are confident that what we are proposing will work—we will make sure that it does—but of course we are open to considering what we can do to make it better as soon as we might need to.
Seema Malhotra
I thank the Minister for giving way again. Will he clarify how he envisages the Government working with the devolved Administrations and councils —we should bear in mind the very good work with Transport for London on connectivity through tube stations—so that we get the maximum for the investment made from the public purse?
Matt Warman
Telecommunications is a reserved matter, but I have already discussed how the system will work through the equivalent tribunal schemes in the devolved Administrations. The hon. Lady is absolutely right that although bodies such as TfL are not directly affected by the Bill, we are working with colleagues at the Department for Transport to make sure that London and other places get the connectivity that they deserve on public transport. Plans are forthcoming for wider deployment of the wi-fi system that is currently available only in stations.
As I say, the Bill ensures that those living in blocks of flats and apartments—known by the telecommunications industry as multi-dwelling units, or MDUs—are supported in accessing new networks. Operators have raised concerns that multi-dwelling properties are proving exceptionally difficult to connect. As I am sure Members will know, operators require the permission of a landowner before they are permitted to install equipment on a property.
Mrs Flick Drummond (Meon Valley) (Con)
I welcome the Bill, which will help those people, but what about commercial tenants in business parks? I am thinking particularly of rural areas such as Meon Valley, where there are problems with connectivity.
Matt Warman
My hon. Friend is right that we should not simply look at residential property. We are exploring with the industry what that issue looks like; the Bill has been carefully designed to make sure that it delivers on what both the Government and industry feel is right. Obviously, commercial property is different. It is less prone to the sorts of issues that we are tackling here, but I will be happy to work with my hon. Friend to see what we can do to help Meon Valley in particular.
For those who own their houses, the issue is simple: they request the service and sign a contract, and an operator does the installation. However, for those in flats, whether rented or owned as a leasehold, the permission of the landowner or building owner is required for the common areas—the basement, corridors, stairwells and so on. Currently, on identifying a property in their network build area, operators will attempt to contact landlords, request permission to install, and offer to negotiate a long-term agreement on access. Those wayleaves set out the responsibilities of both the landlord and operator in respect of the installation.
Evidence from operators, however, suggests that across the UK’s major digital infrastructure providers, about 40% of requests for access issued by operators receive no response. That cannot be acceptable. Through inactivity, a building owner can prevent multiple families and households from accessing the services that, as so many people have said, are essential for modern life. The UK’s digital infrastructure providers are already upgrading this country’s broadband network. Failure to address this issue now will give rise to pockets of connectivity disparity. Neighbours will have different connections, based on whether they own a house or flat, and on whether their landlord is engaged or absent. That cannot be fair, and the Government are acting to address it.
This is about commercial realities. The Prime Minister and I made it clear to the industry only last week that we want nationwide access to gigabit-capable connection as soon as possible. Our ambition is to deliver that by 2025.
Edward Timpson (Eddisbury) (Con)
We all welcome the Government’s commitment to full-fibre broadband, particularly in Eddisbury, where it remains pretty woeful, but the quality of mobile phone coverage also leaves a lot to be desired. Will my hon. Friend update the House on what is being done through the shared rural network to improve that through a final agreement, and will that include indoor as well as outdoor coverage?
Matt Warman
My hon. Friend is right that mobile coverage, while unrelated to the Bill, is an essential part of the connectivity solution. We have committed to the industry concluding its negotiations in the first 100 days of the Government, which takes us to the middle of March, and we are on track for that. On measurement of a network, we have historically been lumbered with standards that are not terribly useful. We need to do more to ensure that we provide the right kind of information to consumers; Ofcom and the Advertising Standards Agency have a hand in that, alongside Government.
If operators are to achieve our ambitious target, they need to get on and deploy their engineers and civil contractors, and to keep them moving to maintain momentum. They cannot afford to keep their teams idle while they wait for a response from a landlord that never materialises; from a commercial point of view, it makes more sense to bypass the property and its residents and deploy elsewhere to prevent that situation. The Bill will create a new application process in the courts that will allow operators, when faced with an unresponsive landlord and with a resident requesting a service, to apply to the courts to gain the rights to install.
It is important to make it clear that the new court application process is a last resort for operators. The key goal of the legislation is to increase the response rate to operators’ requests for access. The Government have always believed—and continue to believe—that the best, most efficient way for operators to install equipment in a property is through a negotiated agreement being reached between the operator and the landlord.
In December 2017, this House passed the Digital Economy Act, which among other things updated the electronic communications code. The code provides a regulatory framework for the relationship between landlords and telecommunications operators and includes provision for the operator to use the lands chamber of the upper tribunal, or its equivalent in the devolved Administrations, to have rights imposed in situations where a landlord is unresponsive.
To the best of my knowledge, as I speak, operators have not sought to use that power to address an unresponsive landlord, in part because they estimate that it will cost £14,000 per application, including legal fees and administrative costs, and take six or seven months in practice, and the outcome would by no means be certain. However, there are estimated to be 450,000 multi-dwelling units in the UK, housing some 10 million people. If operators’ current 40% failure-to-respond rate is projected across the country, we are talking about 180,000 cases and some £2.5 billion in costs. I am sure that Members will agree that the money and effort would be better used delivering better connections. The new process proposed by the Bill is proportionate and balanced, and places an exceptionally low burden on the landlord and a high evidential requirement on the operator.
An operator will be expected to have a tenant in the property who has requested a service. They will have issued multiple requests over 28 days and, thereafter, a final notice that explicitly says that the court may be used to gain access, and they will be able to show evidence of all the above to the courts. A landlord who wishes to take themselves out of the policy’s scope need respond to only one of the operator’s multiple notices. I am sure that hon. Members will agree that responding when someone writes is simply a courtesy. The expectation is that applications made to the tribunal through the provisions in the Bill will allow judges there to make decisions based on operators meeting an evidential threshold. This will allow decisions to be reached quickly and efficiently. Discussions are still ongoing about how we can make the process even faster.
Jonathan Edwards (Carmarthen East and Dinefwr) (PC)
The Minister has said that landlords will have opportunities to respond. If, for whatever reason, they do not respond, and they find themselves in the tribunal, will any costs fall upon them?
Matt Warman
The charging landscape will be set in collaboration with the tribunals and—I suspect that the hon. Gentleman will care about this in particular—the devolved Administrations, but the whole point of this regime is for it to be faster and far more affordable than the current regime. As we work with our colleagues in the Ministry of Justice and the devolved Administrations, we will have that at the front of our minds.
If applicants are successful, they will gain interim rights under the electronic communications code in relation to a property. Those rights will allow them to install, maintain and upgrade infrastructure for a period no longer than 18 months and will be accompanied by strictly defined terms regarding their use. These terms, which we have committed to consulting on publicly, will set out the standard to which works must be completed, and will make it clear that care must be taken to minimise the impact on other residents. If an operator wishes to continue providing a service to the building after the interim code rights have expired, and the landlord continues to be unresponsive, applicants may use provisions in the electronic communications code to apply for full rights. Time-limiting the rights to a maximum of 18 months incentivises operators to continue their efforts to contact landowners so as to avoid the cost, time and uncertainty of making a further application to the tribunal. It also ensures that where a landowner does engage, there is sufficient time for negotiations to take place and an agreement to be reached without disruption to residents’ broadband service.
To conclude, this is a technical Bill that achieves a specific purpose, but it does that in the context of the Government’s significant scale of ambition in this area. Gigabit broadband will be the enabling infrastructure of the next century. It will turbo-charge businesses, facilitate innovation and change how we work, live and engage in society, and how society engages with us. It is good for every part of this country, for our economy and for the public. The Government will support every home—every family wanting to shop online, and every pupil wanting to do their homework—whether it is in the middle of a city or the middle of nowhere, and whether it is a mansion, a terraced house or a block of flats. The Government will help them all to be part of this country’s gigabit future. I commend the Bill to the House.
Matt Warman
I thank the Labour party for its support, however grudging. It is important to say what this Government have done over the last 10 years, however the hon. Member for Batley and Spen (Tracy Brabin) describes them; they have fostered the largest digital economy in the G20. That success does not happen by accident; it happens through effective regulation that supports investment from the private sector. We need a proper plan, she said, and we have got one. What the Opposition have is a plan to nationalise BT at a cost of £100 billion—or at least I think that is what they have, because when she was asked that question, I did not hear a full-throated endorsement of the Labour manifesto position. Perhaps she is just positioning herself for her future leader. None the less, I enjoyed her reference to the Spanish Armada and I look forward to an historical tour de force that covers bells and a whole host of telecommunications infrastructure as we work through the passage of this Bill in Committee.
The hon. Lady raised a number of points. We consulted extensively in ending up with this solution. We will, of course, continue to be flexible where we can be to make sure that it evolves if it needs to. It is, as the hon. Lady said, a bespoke process that is dedicated to the telecoms industry. She is right that it would be silly to suggest that this should be treated in exactly the same way as other infrastructure, but we need to bear in mind the fact that digital infrastructure will become progressively more vital, as well as the question of how we line up the appropriate regimes.
Paul Girvan (South Antrim) (DUP)
When it comes to the infrastructure for broadband and its delivery, we are at the mercy of very few suppliers or providers. Unfortunately, although they put money into their pockets, they sometimes do not deliver at all to rural communities. That is our problem in Northern Ireland: there is money there, but the providers cannot deliver.
Matt Warman
The hon. Gentleman is right that effective competition is absolutely essential to rolling out broadband in the best possible way. I have seen for myself in Dundrum and Belfast a whole host of really excellent work in Northern Ireland, demonstrating not only that it can be done but that it can be done at an even more efficient price than in some parts of the rest of the United Kingdom. Good work is going on that promotes competition. The role of the Government is, of course, to make sure we get maximum value for money across the whole of the United Kingdom.
I pay tribute to both the new Members who spoke for the first time. My hon. Friend the Member for Totnes (Anthony Mangnall) asked us to reimagine what a significant encounter might look like, but, more seriously, elsewhere demonstrated the depth of knowledge and breadth of expertise that he brings to this place. His constituents are lucky to have him, even though he is neither a communist spy nor a mystic—to our knowledge. Just as the Bill represents a significant upgrade for broadband in this country, my hon. Friend is an upgrade on communist spies and mystics, so we pay tribute to him.
I also welcome my hon. Friend the Member for Bury South (Christian Wakeford). He was initially somewhat disparaging about the Bill, and I was worried. But he showed genuine expertise on the topic as well as on antisemitism, one of the most challenging issues of our age. I also pay tribute to his courageous predecessor. I know from his funny and down-to-earth speech that he will be a worthy Member of this place.
Finally, my hon. Friend the Member for Bishop Auckland (Dehenna Davison) said that she had seen two new Members becoming initiated into full involvement in this place; I should say that full involvement comes when one colleague like her says something nice about me while another—who I shall not name—heckles to say that she is probably wrong. Welcome to politics. My hon. Friend is of course right to say that the Bill introduces things that will make a real and meaningful difference—not just in urban constituencies, but across the country. People are living in multi-dwelling units and blocks of flats in all our constituencies.
I am also, of course, happy to discuss some of the other issues that various Members raised in this debate. Some of those will come out in Committee. I was grateful to receive applications from a number of Members to serve on the Bill Committee—we will try to ensure that they do not regret it. It will be an important piece of legislation and I am grateful to them for their expertise in this debate and beyond.
To conclude, I am sure that we can continue to work together across the House to bring this important Bill into law as soon as possible, and on the other legislation that forms the building blocks of a comprehensive plan to deliver gigabit-capable networks across this country.
We are bringing this Bill forward first because it allows us to crack on with a plan that we would otherwise have to deliver by waiting for a single, larger piece of legislation. The Bill allows us to address some aspects of a broader challenge, and we will get on with the rest of the plan as soon as possible.
Matt Warman
I look forward to encountering the hon. Lady across the Dispatch Box—it would be mean not to give way to her.
Chi Onwurah
I was pleased to hear the third or fourth reference, I think, to a plan. Will he share with us when he will publish the plan for gigabit-capable broadband delivery?
Matt Warman
We will, of course, be talking much more extensively and consulting on various aspects of the plan, which the hon. Lady will see emerge in good time. We are genuinely keen to be collaborative on many aspects of the Bill, because it is good to see cross-party support for a Bill that we all acknowledge is important. We hope to be able to do the vast majority of any legislation with cross-party support, because that is the right thing to do.
Government Members care passionately about this issue, and I am sure that the same spirit will continue as the Bill makes its passage through the House. This is a real contribution to the agenda of levelling up across the country and bringing digital infrastructure to every school, home and classroom in a way that allows all our constituents to benefit from the infrastructure that they deserve, and from a digital revolution that this Government will foster.
Question put and agreed to.
Bill accordingly read a Second time.
Telecommunications Infrastructure (Leasehold Property) Bill (Programme)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Telecommunications Infrastructure (Leasehold Property) Bill:
Committal
(1) The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 6 February 2020.
(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Proceedings on Consideration and up to and including Third Reading
(4) Proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings on Consideration are commenced.
(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and up to and including Third Reading.
Other proceedings
(7) Any other proceedings on the Bill may be programmed.—(Mr Marcus Jones.)
Question agreed to.
Telecommunications Infrastructure (Leasehold Property) Bill (First sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 11th February 2020
(4 years, 10 months ago)
Public Bill CommitteesRead Hansard Text Amendment Paper: Public Bill Committee Amendments as at 11 February 2020 - (11 Feb 2020)
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
This text is a record of ministerial contributions to a debate held as part of the Telecommunications Infrastructure (Leasehold Property) Act 2021 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Chi Onwurah
My hon. Friend makes an excellent point, and her past experience in the IT sector leads her to understand and see the divides that exist—for example, people on lower incomes are less likely to use the internet and have access to broadband. There is also a real rural divide, with our rural telecoms infrastructure not enabling the kind of economic success stories of small businesses that she mentions. Unfortunately, the Bill does not address that. Indeed, many of the operators, such as TalkTalk, Mobile UK and Hyperoptic, have said that we need to upgrade our infrastructure, but the Bill does not address that.
In the last six months the Prime Minister has held three different positions on what kind of telecoms infrastructure we need: when he was standing to lead his party, he promised to deliver “full-fibre connectivity” to all households by 2025; the Government manifesto talked of “gigabit-capable connectivity” by 2025; and the Queen’s Speech dropped the 2025 reference altogether, promising instead to accelerate the roll-out. Will the Minister clarify exactly what the Government’s target is for broadband connectivity? Whatever the target is, and whatever the lofty ambitions are, I am afraid that the Bill will not achieve them.
The Bill is designed to enable people who live in flats and apartment blocks to receive gigabit-capable connections where their landlord repeatedly fails to respond to telecom operators’ requests for permission to install their infrastructure. The network builders say they face significant challenges in connecting people living in flats and apartment blocks when they do not receive a response from the building owner to requests for access. According to Openreach, 76% of multi-dwelling units miss out on initial efforts to deploy fibre because of challenges in gaining access.
The Bill provides a bespoke process for telecoms operators to gain access to MDUs in order to deploy, upgrade or maintain fixed-line broadband connections in cases where a tenant has requested an electronic communications service but the landlord has repeatedly failed to respond to an operator’s request for access. For a telecoms company to install equipment such as cables on public or private land, formal permission through an access agreement with the landowner/occupier is required. Under such an agreement, the landowner grants the communication provider a licence to install, access and maintain equipment on their land. The Bill takes into account the fact that landlords are not always responsive or eager to meet their tenants’ needs.
The measures in the Bill are welcome and the Opposition will not be voting against it. In the context of the lost decade, however, we are truly dismayed by the Bill’s limited scope. It proposes only minor measures to ease infrastructure build-out by giving operators more powers to access apartment blocks when tenants request service. The sector has welcomed the Bill but without any great enthusiasm, saying that the difference it will make will be marginal. The trade body for the tech industry, techUK, says it does not go far enough, stating that
“from new builds to street works”,
many issues
“have not been tackled by the Government’s Bill.”
We have tabled several amendments to improve the Bill, but before I speak to amendment 9, I will briefly mention additional flaws that the Opposition have not sought to fix through amendments. There is the matter of consistency with other regulations. The internet is now an essential utility for modern life and, as such, telecoms operators should possess the same powers as those who provide other utilities, but the Bill does not go far enough on that. We appreciate that the Government acknowledge the necessity of broadening the rights of telecoms providers, but they have not actually done so in the Bill. They have given no statutory rights of access to telecoms companies and placed no obligations on landlords to facilitate access.
Do the Government recognise that the internet is an essential utility, and do they believe that telecoms should be brought into line with other utilities, for which forced entry is permitted on the grounds of ensuring that there is no threat to life or safety? Obviously, that might not be the case with telecoms, but I want to understand the comparison that the Government make between the telecoms utility and other utilities.
The amendment is intended to ensure that operators can apply for a part 4A order only if they intend to supply gigabit-capable broadband. Of course, we need to understand what gigabit-capable broadband is, but I am sure that the Minister will relieve us of that uncertainty. As I said, we have suffered 10 wasted years under Conservative Governments of various types, a unifying theme of which has been a misunderstanding of technology interspersed with a misuse of it.
Given that the Prime Minister has expressed three different positions in six months, what is the aim of the Bill? Does it aim to provide gigabit broadband? On Second Reading the Minister said that the legislation will be a “hammer blow” to crack our woeful broadband nut. I can only assume therefore that the legislation does not serve simply to give operators opportunities to lock in my constituents to slow broadband. The Minister said that it must deliver gigabit-capable broadband, so I cannot imagine that he will have any objections to enshrining that in the legislation by supporting the amendment.
I also seek clarification on whether anything in the Bill confines it to fixed-line operators. Will the Minister confirm whether, under the terms set out in the Bill, it would be possible for a mobile operator to install a mobile base station, for example, for the purposes of delivering gigabit-capable broadband, either to one building or another? How does the Bill ensure, in the case of wireless or mobile broadband, that services are limited to a particular building only?
The amendment would make it clear that the Government are proceeding with their commitment to deliver on gigabit-capable broadband and that the Bill cannot be used to deliver slower broadband, so it will contribute to our broadband infrastructure.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Matt Warman)
It is a pleasure to serve under your chairmanship, Mr Davies. I welcome the hon. Lady’s acceptance that the Bill is an important part of the Government’s programme to deliver gigabit-capable broadband as quickly and as far across the country as possible. She is right that we have not got the numbers that some of our European competitors have, although we are now up to 3 million premises with full-fibre broadband in this country—the latest figure is 11%, rather than the 8% that she quoted. None the less, the Government are significantly more ambitious than that, so today we are delivering this narrowly focused Bill that will quickly address a pressing issue that the industry faces. As she also said, the industry has broadly welcomed it.
I will address the main parts of the Bill in the stand part debate later. As the hon. Lady has said, the Bill will introduce, when demanded by occupants of a building, a right for communications providers to access a building to provide a service that is fit for the 21st century when landlords have been unresponsive. It is, as she has said, a pressing issue for the industry that has affected too many tenants already and in part has affected too many tenants because the existing process is overly cumbersome. The Bill introduces a process that is far more speedy and cost-effective for operators.
Seema Malhotra
One issue that is not clear to me in the Bill or the explanatory notes is whether there is a time limit within which the operator might need to respond to a request from a tenant. There is more about the operator giving notices to the landlord—the grantor—but what about a deadline by which an operator might need to respond to a request from a tenant?
Matt Warman
There is no set deadline imposed on a private commercial organisation because individual operators are not all regulated in the same way. For instance, Openreach is regulated differently. It is a commercial decision for them, and the Government will do all that they can through processes such as this to try to encourage a speedy response. It is for Ofcom to regulate responses, as it does in the complaints procedure. As the legislation comes into force, Ofcom will consider whether response times to complaints might be thought of in the same way.
Seema Malhotra
Currently, in the way that the implementation of the Bill is envisaged, if an operator chooses not to respond or takes many months, is there anything in place to sanction or challenge that?
Matt Warman
The answer is that at the moment that is one of the problems. The Bill introduces the process by which we might look at whether the responsiveness to requests is something that Ofcom might look at. However, the hon. Lady is right to ask. We want to see a speedy roll-out, and the response from operators is an important part of a speedy roll-out. We are very much on the same page. We would not want to see operators ignoring the requests of potential customers, and I hope that neither would the operators, because in many cases they have a potential commercial opportunity.
Let me address the two specific questions asked by the hon. Member for Newcastle upon Tyne Central. As discussed on Second Reading, we see broadband as an important utility but, as she acknowledged in that debate, it is not the same as other utilities. It is obvious that as time goes on more and more essential services will depend on connectivity. As that situation evolves, we will need to keep it under review. However, she is accurate when she says that the threat posed by a lack of water is different from that posed by a lack of broadband. We should treat them differently; it is horses for courses.
Matt Warman
Yes, I am not sure how I would cope myself, but the principle is the same.
We sympathise with the spirit of the amendment. There is currently little evidence that anyone seeks to install services that are not gigabit capable; if one goes into an MDU, it is almost always fibre that is being installed. However, as the hon. Lady said on Second Reading, being technology-neutral is important and might enable the speedier roll-out of a service. If a group of residents or a telecoms operator sought to install a service that was not gigabit capable, although that is extremely unlikely, I do not think the Government should seek to withhold better broadband from a block of flats, for instance, simply because that is the only option available. Nor do I think, to be fair to the hon. Lady, that that is her intention. We should maintain technology neutrality and the commitment to speed and a possible service sooner rather than later, rather than have the Bill restrict it, when it is in most instances a hypothetical problem—we are not aware of a situation in which a slower service would have been suggested or provided by an operator.
On the hon. Lady’s point about mobile base stations, again the Bill is technology-neutral, but it is important to note that placing a base station on the top of one building usually benefits the buildings around it, as she knows, rather than that building itself. The triggering of the request that the Bill covers would not necessarily be valid because it would be a different building. It does not imply rights to install equipment on a connected piece of land rather than on the building itself. That is an issue we discussed at some length earlier. Both points indicate that although the measure is technology-neutral, it is more likely that it will not apply to either 5G or to base stations.
Chi Onwurah
I appreciate the points that the Minister is making, and the tone with which he is making them. Gigabit-capable broadband is technology-neutral. That is the only justification for having the full-fibre broadband that the Prime Minister initially promised. I therefore still do not understand why the Government are reluctant to put that in the Bill. As the Minister says, although there is no evidence of a desire to roll out a network that is less than gigabit capable now, once we have competition for a gigabit-capable network, some operators might seek to capture buildings and deliver broadband that, although better than what we have in some of our areas—the broadband in some areas is very poor—is not actually gigabit capable.
Matt Warman
I genuinely sympathise with what the hon. Lady is seeking to do, but her amendment also constrains a Bill that benefits from taking the approach that it does. Technically what she proposes would amend only one part, but amendment 9 would not amend the circumstances under which the part 4A order can be made because they are set out in paragraph 27B. There is a logical inconsistency in what she proposes, but the principle is very much the same as what the Government are seeking.
The hon. Lady would also inadvertently be delaying the roll-out of a service that would be a significant improvement even if it were not gigabit capable, and she undermines the principle of aspects of technology neutrality. Our intention has always been for the whole code to be technology-neutral. There would be no direct benefit from her amendment, although we very much share her ambitions. We want the Bill to benefit tenants whatever the service they request and, with that in mind, although the Government sympathise with her ambitions—
Seema Malhotra
I would like some clarification on a couple of points. What might the minimum speed be and would it be out of scope for a part 4A order to be used to upgrade broadband from copper networks to fibre, for example, if broadband were not fast enough for whatever reason? Do these plans sit alongside, or are they separate from, plans to implement the universal service obligation for a decent service broadband speed of 10 megabits per second, which is clearly much less than 1,000 megabits per second?
Matt Warman
I thank the hon. Lady for intervening just as I was finishing my remarks. There is no legislative flaw on the speed of a service that a commercial operator might seek to install, but the market is obviously going upwards rather than downwards. We have seen no evidence that anyone is seeking to install copper, for instance. The direction of travel in the market is clear across the country. When the USO comes into force, it will sit above this legislation. On her question about the scope of the Bill, I can confirm that those matters would be out of scope.
The Government want all networks to be gigabit capable, and through the work that we and Ofcom are doing, everything is moving in that direction, in terms of both market forces and the Government’s legislative programme. Although I sympathise with the spirit of what the hon. Member for Newcastle upon Tyne Central is seeking to do, I ask her to withdraw the amendment.
Chi Onwurah
I am grateful to the Minister both for his response and for his sympathy with what we are trying to do, despite his inexplicable reluctance to actually do it.
Part of the Minister’s critique of the amendment is that it is not comprehensive in amending other aspects of the legislation. He is actually critiquing his own Government’s approach, because the problem is that we do not have a comprehensive strategy—or any kind of strategy or plan—to deliver the gigabit-capable broadband of which he and the Prime Minister have spoken. I remain concerned that the legislation may well be used to deliver broadband that does not meet the expectations or the just deserts of British citizens, whether or not they live in apartment blocks.
I look forward to the Minister setting out at some point a plan that enshrines gigabit broadband in our lives, just as the Prime Minister enshrines it in his speeches. I do not believe that it is worth pressing the amendment to a vote. I note that the Minister’s commitment to gigabit broadband is on the record, as is his expectation that the legislation will be used to deliver it. That will have to suffice for today. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Chi Onwurah
My hon. Friend is right. I seek to understand whether the Government have considered that, and what their plans are to reflect it. As my hon. Friend says, it may be that tenants and leaseholders do want broadband access. We all have busy lives and are not full-time network engineers. They are not necessarily going to focus on that, whereas a mobile operator has the resources and expertise to make such a request. Tenants may feel that they do not want to annoy their landlord further in case they find themselves subject to an eviction notice or something similar. Mobile operators are in a better position to take on the power of the landlord in making that request. Operators acknowledged that potential logjam in the consultation on the Bill. Virgin stated that they would recommend that the Bill remove the requirement for tenant requests to trigger the process and that they typically
“will not attempt to seek a wayleave from a landlord unless…convinced of the prospect of selling services to the tenants within the MDU.”
Virgin also stated that demonstrating a tenant’s interest added another layer of administration to an already costly and bureaucratic process.
The Internet Service Providers’ Association, a trade body, also recommended an amendment to allow operators to use this mechanism where they are met with an “unresponsive” landlord, regardless of a tenant’s requests. ISPA would further recommend that all landlords be compelled to engage meaningfully with the code, regardless of any tenant request.
Why have the Government apparently ignored or rejected the industry’s requests? There may be a number of reasons. Perhaps the Government do not trust telecoms operators to make credible requests, perhaps they are afraid that big operators—given their deep pockets and big legal departments—will capture all the buildings. Perhaps they simply want to reduce the legislation’s scope so that it is less effective than it would otherwise be. Amendment 7 seeks clarification from the Minister of why the circumstances in which requests are initiated are so limited, and why the Minister has not given operators the opportunity to also make the request.
Matt Warman
Once again, I absolutely understand the spirit in which the hon. Lady raises the amendment, and I admire her gymnastic ability to bring all the points about leasehold into a telecommunications Bill. It is admirable. She is right to address her point specifically on business parks, and will know that the Bill does include the power for the Secretary of State to expand the types of land covered by the Bill, when there is evidence, to business parks, for instance. We do not have all the necessary evidence to do that. The issue of speedily fixing the problem for MDUs while also having the opportunity to fix the problem for business parks in the future is in the spirit of the Bill. I hope that she understands that it makes sense. She knows that there are almost half a million MDUs in this country. It is important to address that problem as soon as we can.
She will know that the Bill is ultimately about a relationship between a telecommunications provider and an unresponsive landlord. The provision can be triggered by a tenant of a building. That is an important factor. However, she will also be aware that the Bill contains the important concept of the “required grantor”. Proposed new paragraph 27B(1)(c) of schedule 3A to the Communications Act 2003, with which I know we are all intimately familiar, confers on the operator a code right in respect of connected land, or allows a person to be bound by such a code right exercised by the operator. In practice, that means that anyone with an interest in the land will have to be contacted. Therefore, when it comes to the operation of the Bill, there will be an opportunity for communications providers in practice to work with anyone in a building to seek to trigger what they would hope to go on through improved provision of broadband. Ultimately, however, the relationship is between the communications provider and the landlord, or the unresponsive landlord.
I think the hon. Lady seeks to expand the number of people who can have an impact on the process. Obviously, the consent of a freeholder, for instance, would still be required even though the property was sub-let. I hope she understands that, while we envisage everyone being able to trigger the process, the legal mechanism under which it operates ultimately is between the communications provider and the landlord—or the unresponsive landlord or the tribunal.
Chi Onwurah
I thank the Minister for giving way. I should say that I am familiar with the electronic communications code, having worked for years with it on my desk at Ofcom. It certainly is not a piece of regulation that I would expect tenants of buildings to be familiar with. Will the Minister clarify whether he is saying that the tenant can make the request, or that the tenant can work with the leaseholder, the freeholder and the telecoms operator to make the request? Can the tenant make the request?
Matt Warman
Ultimately, it is for the telecommunications provider to make the request, having been contacted by people with an interest in the building. However, it is important that it does that in the context of the person who is the leaseholder or the freeholder in any particular building. Obviously, there is nothing to stop an individual getting in touch with a potential telecommunications provider and saying they would be interested in taking up a service, but the formal relationship ultimately has to be with the person who has the leasehold or the freehold. It has to be between the communications provider and, in due course, the landlord, responsive or otherwise. I hope that clarifies some of what the hon. Lady asked about.
I appreciate that amendment 4 is probing, and I understand what the hon. Lady seeks to do. In the usual course of business, any communications provider would seek to expand its network because it knew there was demand. To enable a provider to seek to expand its network without doing any work with a potential tenant that may, in due course, trigger the code would expand that process significantly.
We have tried to take a balanced approach to accessing land to deploy or maintain networks, and it is essential that we try to keep that balance. We believe that allowing operators to access property without the landlord’s agreement is justifiable only in limited circumstances—where a customer has expressly requested a service, or where the operator has taken the steps outlined in the Bill to evidence that it has tried repeatedly to contact the landlord. It seems to me that that combination is the fair and balanced approach, and that if we allowed operators to do that without the consent, in effect, of either an absentee landlord or the people in a building, we would go further than we would reasonably want to. Actually, I think in some ways that would go further than what the hon. Lady suggested, but that would be the consequence of amendment 4.
We remain mindful of striking a careful balance between the rights of both landowners and telecoms operators. The need for a request to come from a tenant is an important element of that careful balance. Ultimately, a tenant, under whatever type of leasehold or contract can make that request. With that balance in mind, I hope that the hon. Lady is content to withdraw both amendment 7 and amendment 4.
Chi Onwurah
I thank the Minister for his response, which has given some more clarity, but I am afraid he has not clarified what the situation will be.
Amendment 4 highlights the lack of a coherent telecoms industrial strategy and a plan for the delivery of gigabit broadband to the country. Opening it up to mobile operators could have unforeseen consequences, which the Government apparently have not had the foresight to investigate fully. While limiting it in this way could be detrimental, I see no alternative but not to press amendment 4, because the Government have apparently not investigated the best way of opening this up to mobile operators.
In relation to amendment 7 the Minister talked about leaseholders, freeholders, tenants and customers, but I remain unclear whether tenants—those who are not the leaseholder or freeholder but are occupying the building or the land—who make a request for service from a broadband provider are within the scope of this legislation.
Matt Warman
They can make the request but, within the scope of the Bill, there is also a requirement for consent from the freeholder, for instance.
Chi Onwurah
I thank the Minister for that. Will he point to where in the Bill it says that a tenant can make the request? I am sorry to put him on the spot, but the Bill seems to refer to leaseholders and freeholders, and I do not see tenants there. That is the reason for amendment 7. On that basis, and in order to provide clarity, I would like to press the amendment to a vote.
Matt Warman
My understanding is that, within the context of this Bill, a tenant would absolutely be within the legal definition. I am not pretending that I am wholly answering the hon. Lady’s question, because there is still a requirement for the freeholder, for instance, to be a part of the process.
Question put, That the amendment be made.
Chi Onwurah
I beg to move amendment 8, in clause 1, page 2, line 14, at end insert—
“(f) the proportion of the operator’s network which uses vendors defined by the National Cyber Security Centre as high risk vendors does not exceed 35%.”
This amendment would prevent operators which heavily use high risk vendors from being granted Part 4A orders.
I want to move to an issue that has dominated our discussions on telecoms infrastructure for the past 18 months and is not reflected in the Bill at all: the role of high-risk vendors such as Huawei in the UK’s full-fibre, 5G and gigabit-capable future. The Foreign Secretary recently said that he wanted to
“legislate at the earliest opportunity to introduce a new, comprehensive telecoms security regime to be overseen by the regulator, Ofcom, and Government.”
He also said that the Government would
“legislate at the earliest opportunity to limit and control the presence of high-risk vendors in the UK network, and to allow us to respond as technology changes.”—[Official Report, 28 January 2020; Vol. 670, c. 709-711.]
Just this weekend the Minister’s senior colleagues on the Back Benches continued to express dismay at the rejection of our technological sovereignty.
I therefore want to give the Minister an opportunity to do what the Foreign Secretary called for—I hope that the Minister agrees that a Bill on telecoms infrastructure might be considered the earliest opportunity to legislate—by taking the first step in achieving the aim of limiting the role of high-risk vendors in our telecommunications networks. The amendment would limit the use of high-risk vendors so that
“the proportion of the operator’s network which uses vendors defined by the National Cyber Security Centre as high risk vendors does not exceed 35%.”
The National Cyber Security Centre stated in a recent report that for mobile operators security does not pay, and that market incentives had to be changed to deliver on security. It also made it clear that having high-risk vendors in the network was a risk, which seems obvious, but that the risk could be mitigated if the Government took certain steps, such as limiting the vendors to 35% of the network. The Government have yet to make clear the 35% of which network, when it should happen by and what enforcement powers would apply to the operators that do not meet the requirements. Although the Bill focuses on fixed-line operators, I am sure that the Minister and the Committee are aware that with the convergence of fixed-line and mobile operators, the core networks and aspects of the access network can be shared.
The amendment would prevent operators that heavily use high-risk vendors from being granted rights under code powers. It would therefore send out a clear signal that the Government are serious about following the recommendations of the National Cyber Security Centre, and as a consequence would lead to some monitoring of what is already in place and some reporting of that in order to meet the requirements.
Mr Davies, I am sure you agree—and I hope the Committee agrees—that nothing is more important than our national security. I am equally sure that you will not allow me to set out all the issues raised by the challenges of national security and our mobile networks. I will test your patience by saying that I have been highlighting for years the fact that there is a hole the size of a mobile network in the Government’s cyber-security strategy.
The NCSC says that the market is broken. Well, the Minister will not be able to fix it today, but I do expect him to answer some questions. Will he at least give some practical detail regarding how the recommendations of the National Cyber Security Centre will be implemented? Also, can he confirm that operators that heavily use high-risk vendors will not benefit from code powers, including those enabled by the legislation?
Matt Warman
I once again admire the hon. Lady’s ability to get national security matters into the discussion, as she herself to some extent implied, although her doing so was a lot less gymnastic than her peroration on leasehold. Although today is the first opportunity that we have had to talk about telecommunications since the announcement, there will be a far broader important debate on national security and high-risk vendors. That legislation will, of course, overarch many pieces of legislation, including this Bill.
We have listened carefully to the broad debate, both on high-risk vendors and on the amendment. I know that Members are interested in this matter, following the Government’s decision. In that decision, it was made clear that there will be new controls across the board on high-risk vendors, who will be excluded from all safety-related and safety-critical networks in critical national infrastructure, excluded from the security-critical core network functions, limited to a minority presence of up to 35% in the other parts of the network, and subjected to tight restrictions, including exclusions from sensitive geographic locations.
The Government made the decision on high-risk vendors after considering all the necessary information and analysis from the NCSC, industry and our international partners. It was an evidence-based decision, taken on a comprehensive security assessment, and noting the realities of the telecoms market. Members will be given a full opportunity to contribute to the important debate on high-risk vendors when the relevant legislation is brought before Parliament. However, as I think the hon. Member for Newcastle upon Tyne Central knows, to do so for this piece of legislation risks introducing a degree of incoherence in what is an important debate. We will do it in a coherent, sensible way in due course, and I hope that Members are reassured that the Government remain committed to working with Parliament as a whole to protect our future telecoms network, important though this Committee is.
Seema Malhotra
This is indeed a very important area. I slightly disagree with the Minister on whether referring to high-risk vendors is to extend the debate on today’s legislation. However, in terms of the implementation of the legislation, and operators and leaseholders going through the process, assuming that those operators obtain permission from the granters, will it be Ofcom that works to ensure that they abide by today’s legislation and the future high-risk vendor legislation?
Matt Warman
The hon. Member asks me to pre-empt what will be an important piece of legislation. What I can say is that we will ensure that nothing in today’s legislation could be used to circumvent that broader and more important piece of legislation, because obviously we have to ensure that 35% means 35% in whatever context.
I hope that Members understand that this is a hugely important issue. The Government are intent on doing things in a coherent and sensible way, so that we deal with matters of national security in the appropriate place rather than in a patchwork of measures with bespoke things in such places as this legislation. I therefore hope that the hon. Member for Newcastle upon Tyne Central will withdraw her amendment.
Chi Onwurah
I thank the Minister for his response. I understand that he is in a difficult position. He talked of a coherent response from the Government, but it is the lack of any coherence in our telecoms infrastructure that has placed us in this position. My deep and real concern is when the Minister says “in due course”. We know that this form of language avoids any precision as to whether something will happen in the next few weeks, months or years. Telecoms infrastructure providers are taking decisions on their equipment suppliers as we speak. Customers and businesses, but also the public more broadly, are concerned about the security of their broadband networks. The Government have said that there will be a plan to ensure that security, but the only detail we have is that it will come forth “in due course”. Will he give a little more precision?
Matt Warman
The hon. Lady asks for coherence, but when I offer it to her she says that she does not like it. It is important to say that guidance from the NCSC is already out there, and the Government are seeking to put that on a statutory footing as soon as possible. The idea that information is not already out there is unfair, not least on the NCSC, which has worked incredibly hard on this. It is now the Government’s role to have a parliamentary debate and put that on the statute book.
Chi Onwurah
I thank the Minister for that response. He is right that I am seeking coherence in a plan, rather than coherence in rejecting changes to the legislation. The important point is that the NCSC guidance mainly takes the form of excellent blogs written by the technical director, which are very helpful in many ways but do not go into detail about, for example, what the 35% means in practice, how it will be measured, how it will be enforced, who will regulate it and at what point these enforcement measures will start.
I accept that “as soon as possible” is slightly more enthusiastic than “in due course”, and I recognise the difficult position that the Minister is in. While noting my real concerns that to deliver on our gigabit-capable infrastructure we need greater clarity on the role of high-risk vendors as soon as possible, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Matt Warman
I do not wish to sound less conciliatory than previously, but those matters are already defined in the Bill. I will briefly go through them, but the definitions that the hon. Lady seeks are already in the Bill, which renders the amendment unnecessary.
First, new paragraph 27B(1)(d) makes it clear that a request notice is a notice in accordance with paragraph 20(2) of the electronic communications code. That sub-paragraph is clear that it constitutes a notice in writing from the operator to a person setting out the code, rights and terms of agreement sought by the operator. The notice states that the operator is seeking the person’s agreement to those terms. In addition, the hon. Lady will know that Ofcom already produces template paragraph 20 request notices to ease the burden. I am confident that the request notice is already defined.
Secondly, the hon. Lady asks about the response. That answer lies in new paragraph 27B(4), which makes provision for how the required grantor—the landlord, as we might say in common parlance—responds to the operator. That provision states clearly two ways in which a landlord can respond: he or she either
“agrees or refuses, in writing”
or
“otherwise acknowledges the request notice in writing.”
That makes it straightforward and transparent for landlords. The amendment risks upsetting that balance by unnecessarily introducing additional regulations.
I am confident that those terms are already defined and I consider that it would be unhelpful for us to make additional requirements.
Chi Onwurah
I thank the Minister for his clarification regarding the request. I acknowledge that there is detail on requests, as requests have been required previously, as the Minister said. With regard to the response, the term “otherwise acknowledges” is quite broad. Given that the next step is to go to a tribunal, which will incur costs, it would be helpful to have greater clarity on that term.
Matt Warman
The important point is that there has to be a formal response “in writing”. By definition, in responding a landlord ceases to be unresponsive. This legislation aims to deal with unresponsive landlords.
Seema Malhotra
It would be an interesting exercise to go through all the different ways in which one could respond, but we would then be here for the afternoon session. The purpose of the Bill is to speed up the process for residents to secure superfast broadband. New paragraph 27B(4)(a) reads
“agrees or refuses, in writing, to confer or otherwise be bound by the code”
and so on. A response will surely be either an agreement or a refusal, or a point of clarification. The “otherwise acknowledges” could be as simple as an email saying, “I have received your notice.” For the purpose of speeding things up rather than providing new ways in which blocks could be put in place, it is important that the Minister provides further explanation of what is intended to be covered by “otherwise acknowledges” and how it helps, given the clarity of 27B(4)(a).
Matt Warman
I come back to my central point, which is that the Bill addresses the problem of landlords who do not respond. Ultimately, it does not confer a right to install equipment against the will of a landlord. Once a landlord engages with the process, they are not considered unresponsive and are not covered by the Bill. Obviously, a landlord has the right to prevent access—either through prevarication or by withholding permission—in almost all circumstances, whether for telecommunications infrastructure or for anything else.
I completely understand what the hon. Member for Newcastle upon Tyne Central is seeking to do, but ultimately the things that she wants defined are already defined on the face of the Bill, and they will clearly not benefit from being separately defined again. It is important that we are consistent with the electronic communications code and, although I sympathise with the hon. Lady’s desire to see broadband rolled out wherever it can be, I ask her to withdraw the amendment.
Chi Onwurah
I thank the Minister for his response. He said that the Bill does not confer a right to install equipment against a landlord’s will, and I am concerned that that effectively means that tenants do not have a right to superfast or gigabit-capable broadband, which I would argue is an increasingly important part of modern life. We joked earlier about the difference between access to water and access to broadband, but for many people broadband is an absolutely essential part of their working and social lives, and a forward-looking Government would ensure that citizens have a right to gigabit-capable broadband. Although the universal service obligation confers some rights, it does not deal with recalcitrant or unwilling landlords.
Seema Malhotra
Does my hon. Friend agree that there could be a compromise or third way on this? The terms of new paragraph 27B(4)(b)—
“otherwise acknowledges the request notice in writing”—
are superfluous if a landlord is seeking to push action further down the road. If that is an incentive for landlords to engage less positively with those seeking to build networks, would the Minister at least consider reviewing—if not deleting—sub-paragraph (4)(b)? If responses from landlords fall considerably under that option, rather than agreeing or refusing with the reasons that one would expect in a positive dialogue, will the Minister consider whether that option should stay in the Bill?
The Chair
As a matter of procedure, the Minister may wish to respond to the intervention by way of intervention, which I would welcome.
Chi Onwurah
Thank you for that guidance, Mr Davies. I want to emphasise that my hon. Friend makes an excellent point. I am sure that the Minister will agree that the Committee should look for a compromise that allows this important legislation to pass. Landlords may be eccentric and unwilling in their responses, and people’s gigabit-capable broadband should not depend on that. If the Minister is interested in intervening, I will happily give way.
Matt Warman
I am delighted to intervene spontaneously. Essentially we are having a conversation about whether there is a universal right to internet access, and whether that should be something that people can request by one means or another. That concept has been widely explored in many ways. It is surely not right to introduce a universal right of access for people who happen to live in blocks of flats via a small route intended to speed up one process. If we wanted to do that, we would surely seek to do it in a coherent and wide-ranging way, rather than in an incoherent way that I am sure the hon. Lady would criticise at great length.
Chi Onwurah
That is an interesting response from the Minister, because having coherent legislation—I think the Opposition called it a “digital bill of rights”—was exactly what we sought, in order to protect citizens and offer them the kinds of digital rights that are required in the digital age. We have not had such a response from the Government; we have incoherent and ad hoc legislation. That was one part of the argument being made.
My hon. Friend the Member for Feltham and Heston mentioned another part of the argument. Landlords are individuals, and we have all had experience—I certainly have—of landlords who were eccentric or who responded in ways that were unresponsive. Perhaps it would be a positive step to consider how the legislation works in practice. If unresponsive landlords are an issue, will the Minister at least commit to reviewing the situation?
Chi Onwurah
Well, I am glad you do not find it strange, because it reflects what I am afraid experience has taught me—that the present generation of Conservatives appears to be willing to sacrifice competition to vested interests. Under the Bill one operator could capture a building, roll out infrastructure to that apartment block and fleece the tenants there for ever—having had the first mover advantage in a block, and/or having installed infrastructure so that other competitors cannot install further infrastructure. Examples of that might be using very small ducts, or taking up all the equipment space in a basement.
The amendment would ensure that tenants could not be locked into a particular operator, by requiring that it should be possible for the infrastructure to be shared easily. It would give Ofcom the duty to define what “easily” means. Having worked for Ofcom, as I have said, I know that that can be done quite easily.
Other countries require shared access to building infrastructure. Has the Minister looked at that? Both France and the Netherlands have a much higher proportion of apartment blocks than we do in the UK. As I am sure Members of the Committee are aware from visiting those countries, proportionately many more people live in apartment blocks, and their approach to broadband regulation has ensured that there is better access for competition through a requirement for infrastructure sharing. Could not the Government take stock of those pre-existing solutions, just across the channel, to respond to some of our competition concerns?
Ofcom is taking steps to promote infrastructure competition in what is known as ducts and poles. At this point I should probably declare another interest, in that I was responsible for Ofcom’s 2009 survey of the availability of duct and pole infrastructure. I hoped that it might be taken up a little more quickly than this. Companies laying high-speed fibre cables for broadband and mobile networks may benefit from greater access to Openreach’s telegraph poles and underground tunnels under decisions announced last year by Ofcom, so I would like the Minister to confirm whether similar ease of access can be a part of the Bill. The opportunity to let rival companies access the new buildings when a company such as Openreach provides access represents a real opportunity to increase competition in the market and avoid operator lock-in for what is an essential utility, as the Minister has said. Will the Minister confirm, therefore, that in the spirit of recent Ofcom initiatives we can also extend the scope of the Bill?
Matt Warman
I can return to my conciliatory tone, in the sense that in this case we are interested, through both Ofcom and the Department, to see what can be done on infrastructure sharing. The hon. Lady is right that it is potentially a hugely important initiative, and I enjoyed her account of her 2009 duct and pole work; but she is also right to say that the work is still ongoing, because it is a hard thing to do and it is important that we take a coherent approach to it. In that spirit, I am afraid I would argue that we should be coherent in our approach to infrastructure sharing across the piece, rather than simply introducing a separate regime for people living in multiple dwelling units.
The Bill aims to support leaseholders to access the services they request from the providers they want. It already ensures that leaseholders are not per se locked in to services provided by a single provider; nothing in the Bill prevents a leaseholder with an existing gigabit-capable connection from one service requesting an alternative network to come in and request code rights as well. The Government cannot and should not compel independent commercial companies to alter the way they choose to deliver their services unless there is evidence that a problem exists. That problem is one that we are looking at more broadly.
Far from improving competition in access to gigabit services, the amendment may actually have the unintended consequence of doing the opposite. As the hon. Member knows, much of the cost of connecting premises is in the initial installation. The amendment could therefore seriously undermine the case for operators to make that initial installation, as they risk being undercut by second or third movers who would not have to bear the same costs. Forcing network builders to deploy in a way that allows competitors easy access is likely to benefit only the largest players in the market.
While I sympathise with the aim of the amendment, I do not think the hon. Member seeks to entrench the position of any one large operator further. Part 3 of the code already provides for operators to be able to upgrade electronic communication apparatus and to share use of such apparatus with another operator, should they wish.
The hon. Member might alternatively be seeking to test our thinking about the terms of what an agreement to be imposed might look like. It is worth saying that the process of that agreement is dictated in paragraph 27E(6) of the code, which makes it clear that before we make regulations in relation to the terms that she has discussed, which will be under the affirmative resolution procedure, we must consult interested parties, including operators. The Bill already envisages that the views of interested parties such as other operators will be invited before the details of a regulation are made.
I hope that the hon. Lady understands that we are looking at this more broadly, that we are seeking to do it in the coherent way that I know she is so keen on and that we are going to look at making sure that that is fair and compatible with our other approach. It would surely not be right potentially to restrict the advantage of investment in a particular MDU in a way that could actually discourage that investment in the first place and leave people stranded without the broadband that the whole Bill is intended to produce. With that in mind, while I sympathise with what the hon. Lady is seeking to do, I hope she understands that what she is proposing does not actually do what she seeks to do and could hold back some of the progress that we seek to make with the Bill. I ask that she withdraw the amendment.
Chi Onwurah
I want to continue in the conciliatory tone that the Minister has returned to, so I start by saying that I welcome his clarification that nothing in the Bill prevents a tenant who already has a broadband service from making a request for another broadband service and so invoking the code rights that the Bill gives. I know that that will be welcomed by tenants who have an unacceptable service or receive bad customer service, of which there are unfortunately far too many.
I welcome that clarification, but I cannot be so welcoming of the rest of the Minister’s speech, which raises many issues of competition and economics within the telecoms network sector, with which I am very familiar. When he says that the amendment would not do what I am looking to do, I am afraid that we will have to agree to differ on that. I find it strange that I should say this to him, but the key difference is that Opposition Members do not believe that there is a contradiction between investment and competition, which was the implication of his comment that the amendment, by opening up access to competitors, might chill investment. All the evidence shows—I again refer him to Labour’s example of unbundling local loop—that competition drives investment; it does not chill investment.
I think the Minister was trying to say that a small operator looking to put infrastructure into a 100-apartment block would do so only if it knew that it had exclusive access to that building for a number of years, to recoup its investment, which means that he acknowledges that tenants of that block would likely be locked into using that operator. However, smaller operators could benefit from having easy access to infrastructure installed by larger operators.
On that basis, the Minister’s comments do not reassure me. I gently say to him and the Government that saying that we cannot take measures now because at some point in the future we will have a coherent framework is partially what got us into this position of incoherent ad hoc responses to legislation that is obviously obsolete. While we cannot solve all problems with this legislation, we can at least help to solve problems for tenants and leaseholders in apartment blocks by ensuring greater opportunities for competition. As such, I will press my amendment to a Division.
Question put, That the amendment be made.
The Chair
We now come to the question that the clause stand part of the Bill. Members who have not spoken may want to make a short speech, but I am not requesting it.
Question proposed, That the clause stand part of the Bill.
Matt Warman
I will be considerably briefer than I would be in a normal stand part debate, because we covered a lot of ground in discussing the amendments. However, suffice it to say that the purpose of the Bill is to create a bespoke process for telecoms operators to seek access to leased premises, starting with MDUs in cases where a landlord repeatedly fails to respond to an operator’s requests for access. As we have discussed, part 4A is the crux of the Bill. To be brief, new paragraph 27A is an introductory provision that explains the ambition of a court making an order imposing an agreement that provides rights under the code between an operator and a landlord. That will be where: first, those rights are required in respect of land that is connected to the lease premises; and secondly, the occupier or another person with an interest in the land has not responded to repeated notices given by the operator seeking agreement to confer or otherwise be bound by those rights.
The Bill sets out the time period between giving and receiving notices, and it is only in the case of unresponsiveness that an operator is able to apply for a part 4A order. Crucially, an effect of new paragraph 27D is that a landlord who responds in writing to any of the operator’s notices will come out of the scope of the part 4A process, as we discussed at some length earlier. The Bill makes it clear that access rights may be used only for the purposes of providing an electronic communications service to the target premises.
Therefore, I hope that you will agree, Mr Davies, that this clause, in terms of both its length and the matters contained within it, is central to the Bill and to the policy underpinning it. It provides a much-needed process that will play a large part in ensuring that many tenants are part of this Government’s nationwide gigabit broadband upgrade.
Chi Onwurah
I am disappointed that the Minister has not seen fit to accept any of the amendments that we have put forward.
Chi Onwurah
The Minister indicates from a sedentary position that he has accepted the spirit, and I welcome his conciliatory tone in that respect. I hope that the clause will achieve its objectives by making it easier for telecoms operators to gain access in order to deploy gigabit infrastructure. I remain convinced that this will not do much to make up for the time lost in deploying gigabit-capable infrastructure and that, in rejecting our amendments, the Minister has lost an opportunity to improve the Bill. However, we accept that the Bill is positive and will support the clause.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Related amendments
Question proposed, that the clause stand part of the Bill.
Matt Warman
Clause 2 is a brief but important clause that introduces the schedule that makes related amendments to two pieces of legislation to complement the Bill. That legislation is the Communications Act 2003 and, contained within it, the electronic communications code and its related jurisdiction rights.
Chi Onwurah
I rise simply to say that we are happy for clause 2 to stand part of the Bill.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Schedule
Related amendments
Matt Warman
I beg to move amendment 2, in the schedule, page 9, line 17, at end insert—
“(10A) In paragraph 95(1), after paragraph (a) insert—
(aa) in relation to Wales, the First-tier Tribunal, but only in connection with proceedings under Part 4A;”.
This amendment is consequential on Amendment 3.
The Chair
With this it will be convenient to discuss the following:
Government amendments 3 and 1.
New clause 1—Report on resources to deal with proceedings arising under Part 4A of the code—
“The Secretary of State must prepare and publish a report on the adequacy of the resources available to First-tier Tribunal to deal with proceedings arising under Part 4A of the electronic communications code and must lay a copy of the report before Parliament within six months of this Act receiving Royal Assent.”
Matt Warman
At its heart, the Bill is about making it faster and cheaper for digital infrastructure providers to seek rights to install their services in leasehold properties. The Bill is also concerned with not permitting consistently unresponsive landlords to stand in the way of receiving the connectivity that households need. The Government have tabled three amendments that respond to helpful suggestions, first made by the senior judiciary of both the first-tier and upper tribunals. Our amendments also respond to the welcome interventions made by hon. Members on Second Reading—I am glad to see some of those Members here today.
Without these amendments, applications would commence in the upper tribunal in England and Wales and the Lands Tribunal for Scotland, and would be dealt with in the county court in Northern Ireland. Commencing cases in the upper tribunal is a reasonable route, because it aligns the new process with the electronic communications code. The process still works in principle, but we should also ensure that it works as well as possible in the real world to deliver the faster, cheaper outcomes that we seek. We continue to be mindful that, with up to an estimated 2,650 cases per year in England and Wales, we need to hear cases at the most appropriate level.
Presently, the upper tribunal hears cases and makes determinations in respect of disputes concerning the interpretation. As such, the Government need to continue to work with that tribunal and its equivalents elsewhere. The need to ensure that the upper tribunal has the capacity to deal with the part 4A applications was raised on Second Reading. The matter has also been the subject of discussion between my officials and their counterparts at the Ministry of Justice, as well as senior members of the judiciary from the relevant chambers of the first-tier and upper tribunals.
The number of part 4A cases is estimated to be significant. The upper tribunal, with just two judges, would not have the bandwidth to deal with that volume of cases, regardless of the fact that the applications are expected to be relatively straightforward. While the process as drafted continues to work in principle, therefore, in practice we agree with the representations that we have heard that placing an additional burden on the upper tribunal would not necessarily provide us with the resources that we need. We are grateful to senior members of the judiciary from the first-tier and upper tribunals with whom my officials met.
In the light of those considerations, the amendments provide for applications for part 4A orders to commence in the first-tier tribunal in England and Wales and the sheriff court in Scotland. I hope that Committee members agree with that important change. In comparison with the small number of judges that I mentioned, 15 salaried judges and an additional 125 fee-paid judges sit in five courts across England, and 142 sheriffs preside over 39 courts in Scotland, so the change significantly increases the resources available and addresses some of the concerns expressed, sensibly, by hon. Members from both sides of the House on Second Reading. I am glad that we have found a sensible way forward that increases the resources available. It is a sensible and pragmatic move that has a significant effect but does not alter the principle of the Bill.
New clause 1 proposes that a report be made to make it clear that we have the necessary resources. As I said, we are confident that applications for part 4A orders will, in due course, be heard on the papers—without the need for an oral hearing—and our intention is for the process to be as low in burden as possible. Of course, we will monitor the resourcing of the first-tier tribunal to ensure that it has the capacity to dispense with those cases. Ultimately, that information can be obtained in a number of ways, such as by tabling parliamentary questions or through the fact that the proceedings are public.
Again, we sympathise with the intentions of the hon. Member for Newcastle upon Tyne Central, but it is clear from the amendments tabled in my name that we are already addressing the substance of what she asks. Ultimately, the information that she seeks is already widely available in equivalent cases and will continue to be in future, so introducing an additional administrative burden would neither provide more information nor be a sensible use of resources. I hope that she will withdraw the new clause in that spirit.
Chi Onwurah
It is a pleasure to respond positively, and not just in spirit but in practice, to the Minister’s amendments. They respond to concerns that we raised on Second Reading and those raised by others about increasing resources. The number of judges available to consider those requests and cases leaves much to be desired. Hopefully the Government’s amendments will make the limited scope of the Bill more effective, so we are happy to accept them.
New clause 1 responds to that by acknowledging that our judiciary is under severe strain at every stage. The new clause is designed with accountability and transparency in mind, so that we can see the impact of the new legislation on the resources available. The legislation sets out new legal functions. As with all good legislation, we must ensure that the new mechanisms are robust and well-resourced to ensure that the legislation does what it is meant to do, and does not fail when it makes contact with reality.
The new clause would require a report on resources to deal with proceedings arising under part 4A of the code be prepared and published within six months of the Act receiving Royal Assent. It aims to ensure that we see the impact on our judiciary. Although the information may be available, I am sure that the Minister is aware that nothing concentrates minds as much as laying a report before Parliament for scrutiny by right hon. and hon. Members. That gives an opportunity to see how the legislation works in practice. I am sure the Minister is proud of the legislation and the impact it will have, so he must welcome the opportunity to speak to that in the House.
We do not have an impact assessment for this legislation. It is a short Bill, but that does not mean that its impact may not be important. When I spoke to operators, they estimated that it might cost around £30,000 to take a request through the tribunal. That is their estimate—I have not seen any Government figures to confirm whether they consider that to be high or low, but that would have been a welcome part of an impact assessment. The sum of £30,000 for a tribunal to access an apartment block with 10 apartments means an additional cost to the operator of £3,000 per customer. That has an impact on the business case for that investment in the first place.
Matt Warman
I take the hint, Mr Davies. I will briefly address a couple of issues raised by the hon. Lady. The cost of an application by an operator will be determined by the court, but we anticipate that the application fee will be under £500. She might have been including the cost of investment, which by definition is an investment that the operator is seeking to make by applying through the code.
Chi Onwurah
To clarify, I am not including the cost of investment. From talking to operators, on top of the cost of applying they will have lawyers’ fees and internal costs. Those are the costs that I have been told about—not the cost of the infrastructure, but the cost of going to tribunal for an organisation, as part of its daily operating costs.
Matt Warman
None the less, the legislation cuts a tribunal process from several tens of thousands of pounds to a £500 fee, which is indisputably a significant reduction.
The hon. Lady talked about focusing the minds of Ministers. I would say gently that parliamentary questions, oral questions and indeed Westminster Hall debates also focus minds. I look forward to celebrating the success of the Bill through that means, rather than through the proposal set out in the new clause.
Amendment 2 agreed to.
Amendment made: 3, in the schedule, page 9, line 22, leave out paragraphs 4 and 5 and insert—
“4 The Electronic Communications Code (Jurisdiction) Regulations 2017 are amended as follows.
4A In regulation 2(1) (interpretation), after the definition of “the code” insert—
‘“Part 4A proceedings” means proceedings under Part 4A of the code;’.
4B (1) Regulation 3 (conferral of jurisdiction on tribunals) is amended as follows.
(2) The existing text becomes paragraph (1).
(3) In that paragraph—
(a) in the words before sub-paragraph (a), after “Subject to” insert “paragraph (2) and”;
(b) for sub-paragraphs (a) and (b) (including the final “and”) substitute—
“(aa) in relation to England and Wales, the First-tier Tribunal and the Upper Tribunal, and”;
(c) omit the words after sub-paragraph (c).
(4) After that paragraph insert—
“(2) Functions are exercisable by the First-tier Tribunal under paragraph (1)(aa) only—
(a) in connection with relevant proceedings in relation to England that have been transferred to the First-tier Tribunal by the Upper Tribunal, and
(b) in connection with Part 4A proceedings (whether in relation to England or Wales).
(3) Any provision of the code which confers a function on the court is, to the extent that the function is exercisable by a tribunal under this regulation, to be read as if the reference to the court included reference to that tribunal.”
4C (1) Regulation 4 (jurisdiction for commencement of proceedings) is amended as follows.
(2) In the heading, for “relevant” substitute “certain”.
(3) The existing text becomes paragraph (1).
(4) After that paragraph insert—
“(2) Part 4A proceedings must be commenced—
(a) in relation to England and Wales, in the First-tier Tribunal, or
(b) in relation to Scotland, in the sheriff court.”
5 The amendments made by paragraphs 4 to 4C do not limit the provision that may be made by regulations under paragraph 95 of the code.” —(Matt Warman.)
This amendment provides that proceedings under new Part 4A of the Code must be commenced in the First-tier Tribunal (in relation to England and Wales) or in the sheriff court (in relation to Scotland), instead of in the Upper Tribunal or the Lands Tribunal for Scotland respectively.
Question proposed, That the schedule, as amended, be the schedule to the Bill.
Matt Warman
I shall be brief. The schedule sets out related amendments to other legislation which were introduced by clause 2. It contains the amendments to section 402 of, and schedule 3A to, the Communications Act 2003, also amending the electronic communications code. We have already discussed the consequences of the schedule so, with that, I commend it to the Committee.
Question put and agreed to.
Schedule, as amended, accordingly agreed to.
Clause 3
Extent, commencement and short title
Amendment made: 1, in clause 3, page 7, line 21, leave out—
“amendment made by paragraph 4 of the Schedule extends”
and insert—
“amendments made by paragraphs 4 to 4C of the Schedule extend”.—(Matt Warman.)
This amendment is consequential on Amendment 3.
Question proposed, That the clause, as amended, stand part of the Bill.
Matt Warman
The clause makes an important provision in respect of the Bill’s territorial extent and commencement. As Members may be aware, telecommunications is a reserved matter in all three of the devolution settlements. The territorial extent of the Bill is to England and Wales, Scotland, and Northern Ireland, but there is one exception: the amendment made by paragraph 4 of the schedule, which extends only to England and Wales, and Scotland because the statutory instrument being amended by paragraph 4 does not extent do Northern Ireland. It is important to have that on the record. I commend the clause to the Committee.
Question put and agreed to.
Clause 3, as amended, accordingly ordered to stand part of the Bill.
Matt Warman
On a point of order, Mr Davies. I will briefly do the customary thing of thanking the Bill Committee members who have had such a full and compressed day. I also thank all the officials who have worked so hard on the Bill and you, Mr Davies, for such brilliant chairmanship.
Telecommunications Infrastructure (Leasehold Property) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 10th March 2020
(4 years, 9 months ago)
Commons ChamberTelecommunications Infrastructure (Leasehold Property) Act 2021 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 10 March 2020 - large font accessible version (PDF) - (10 Mar 2020)
15:26 - The House divided: - Ayes: 242 / Noes: 343 - Question accordingly negatived.
15:40 - The House divided: - Ayes: 282 / Noes: 306 - Question accordingly negatived.
This text is a record of ministerial contributions to a debate held as part of the Telecommunications Infrastructure (Leasehold Property) Act 2021 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Mr David Davis
My hon. Friend makes a very good point, but I suspect that seven years is a massive overestimate. Like our telephones, this technology changes every 18 months. Seven years is the achievement of an Einstein of this sector. That is point No. 1: our expert argument in the UK is that we are the only ones in step. That is not an argument that stands up very often.
My second point, to which my right hon. Friend the Member for North Somerset (Dr Fox) referred earlier, is that this is a national security issue. The most recent debates on national security in this House in the past decade or so have been about terrorism, rather than potential massive conflicts between major powers. The House will remember that the IRA always used to say that we have to be lucky all the time, but they had to be lucky only once. That is a demonstration of the sort of analysis we must apply to security issues. Let us consider the Government’s argument. Let us imagine that the Government are right and we are wrong, but we do what we want to do. The worst case is that we spend a little more money and we introduce a technology, possibly better technology, maybe a year or two later. That is the worst-case outcome for our analysis. But if we are right and they are wrong, and we do what they say, the outcome will be to allow the undermining of our complete national infrastructure. This is not just a telecoms system; it is fundamental to the lifeblood of our entire national infrastructure. On a security analysis approach, it is just plum wrong.
Finally—this is designed to help the Secretary of State—there is the argument about time. I confess that I probably take the hardest line in our group on timing. My view is simple: we should separate this into two pieces. One is what happens about new installations. In my view, since they are called high risk vendors—the clue is in the name—there should be no more installations. I can see no loss in not installing another single piece of Huawei equipment. The argument that it cannot be done by anybody else has been proven by several speakers so far to be completely without foundation. My argument to the Secretary of State is that when he stands up, he must tell us whether his proposal involves continuing to put in place Huawei kit that we will then have to take out in our move to zero. On that basis, I am afraid it is very clear that the Back Benchers are right and the Government are wrong.
The Secretary of State for Digital, Culture, Media and Sport (Oliver Dowden)
Connectivity is the lifeblood of any modern digital economy. It is vital if we are to create the conditions where anyone can succeed and thrive, regardless of their background or their postcode. The Bill is crucial if we are to deliver that. It is one of a number of steps that the Government are taking to increase connectivity speeds, reduce costs and create the right environment to encourage investment. The Bill is a crucial plank in delivering the manifesto commitments, on which we on the Conservative Benches stood and were elected three months ago, to deliver broadband to the whole of the UK and to support the levelling up agenda. However, I have concerns that some of the amendments would undermine that work. They could mean the UK risks losing out on the economic benefits of nationwide access to faster broadband networks and that many families living in blocks of flats would not be able to benefit from new broadband services.
It has been clear from the debate so far that there is one principal amendment at stake, amendment 1, in the name of my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith). Amendments 4 and 5, which I will deal with together, relate to high-risk vendors. The first point I would like to make is that I genuinely understand concerns, which many hon. Members have raised with me, that they have not had the time to consider these issues or to scrutinise them properly. The reason for that is that we will be bringing forward a Bill—as my right hon. Friend the Member for North Somerset (Dr Fox) said, my first task as Secretary of State is to convince the House on the approach to high-risk vendors—on telecoms security, which will enable the House to consider all these points. We will bring forward that legislation before the summer recess, so all hon. Members will be able to debate these points extensively. There will be opportunities for amendments to be made and an opportunity for the whole House to consider all these issues at great length. I will proceed to set out the steps that have led us to this point and the further steps that we are announcing today.
Oliver Dowden
If my right hon. Friend will allow me to set out those steps, I assure him that I will take as many interventions as he wishes me to.
We looked at this issue over many months and in great technical detail through our telecoms supply chain review. This review was informed by technical and security analysis undertaken by GCHQ’s National Cyber Security Centre. It was the most detailed study of what is needed to protect 5G, anywhere in the world. The recommendations from the review will substantially improve the security and resilience of the UK’s telecoms networks, which are a critical part of our national infrastructure.
The Government’s decision on high-risk vendors remains. As we have said, we are clear-eyed about the challenges posed by Huawei. That is why the National Security Council has decided that high-risk vendors should be excluded from sensitive and critical parts of networks and that there should be a strict 35% cap on the market share in the rest of the network—
Several hon. Members rose—
Oliver Dowden
I assure hon. Gentlemen that I will give way if they allow me to proceed a little more, because I want to set out the context, which may address some of the points that they intend to raise.
We will of course keep the 35% cap under review and, over time, our intention is to reduce our reliance on high-risk vendors as the process of market diversification takes place. We want to get to a position where we do not have to use high-risk vendors in our telecoms networks at all, but to do that, we have to work with our Five Eyes and other partners to develop new supply chain capacity in our critical national infrastructure. I can tell the House that we will do that in this Parliament.
We are not in a position today to set out a specific date or timetable for reaching no high-risk vendors. That would require a new decision to be taken by the National Security Council, but we will continue to engage with hon. Members over the weeks ahead.
Oliver Dowden
I will make a final point and then I will give way to Members. Hon. Members will have the opportunity to discuss controls on high-risk vendors when the Government bring forward legislation. I confirm that we will do that before the summer and that there will be an opportunity for colleagues to engage fully on how and when the commitments will be implemented. That will include the National Cyber Security Centre ensuring—exceptionally—that it will give evidence to parliamentary Committees, in addition to the Intelligence and Security Committee.
Several hon. Members rose—
Oliver Dowden
It would be fair to give way to my right hon. Friend the Member for Chingford and Woodford Green first.
Sir Iain Duncan Smith
I am grateful to my right hon. Friend. Let me bring him back to the Government’s position. Is it correct, and does he agree, that the position of Her Majesty’s Government is now to move towards no involvement—I repeat: no involvement—of high-risk vendors in our system and that that, in the five-year period that he is talking about, will be the purpose of what they engage in?
Oliver Dowden
I think we are all in agreement—certainly on the Government side of the House, and I believe that many Opposition Members also agree—that in an ideal world, there will be no need for any high-risk vendors at all. However, what we have to do, as a first step to getting to that point and within this Parliament, is ensure that we have developed the supply chain capacity. The point has been made by many right hon. and hon. Members that there is a lack of capacity on the supply side at the moment. That is why we are making this very strong commitment—by the way, this relates to the point made by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis)—which will involve considerable expenditure by the Government to ensure that we work with our Five Eyes and other partners to develop new supply chain capacity in our political and national infrastructure in this Parliament, so that we can then commence the process of ensuring that we move away from high-risk vendors.
Mr David Davis
Point No. 1: there is unavailable capacity—well, Ericsson says that that is not true. It said that at Davos earlier this year and Samsung says that it is not true, but if we want proof of that, the Australians, who denied Huawei, already have 5G operations in Sydney and Melbourne being put together and the fastest 5G operations in the world exist already in America. There is not the shortage that the Minister claims.
Oliver Dowden
I understand the point that my right hon. Friend is making, but I hope that he would accept that at the moment, aside from Huawei, there is Ericsson and Nokia, which we are currently reliant on, and we need to enhance that capacity. That is why the Government are committing today to ensuring that within this Parliament, we work with our Five Eyes and other partners to ensure that we develop the extra capacity.
Dr Fox
My right hon. Friend said that a change in the decision by the National Security Council would be required. In fact, it would require a change in the decision by the Government. The NSC does not govern the United Kingdom—Her Majesty’s Government do. However, I still cannot understand the idea of our having to remove high-risk vendors—we should not be incorporating risk to our national security into 5G at all. That capacity will emerge. The United States will not build a 5G network that incorporates that risk. What is the rush?
Oliver Dowden
My right hon. Friend raised two points. First, he referenced the role of the National Security Council. As he will be aware, that was created when he served as Defence Secretary under the former Prime Minister, David Cameron. It is a committee of the Cabinet. That is how decisions are made on behalf of the Government. The Cabinet delegates decisions to the National Security Council. That is the Government’s decision-making process and, of course, it is endorsed by the Cabinet. Forgive me, his second point was on—
Oliver Dowden
The National Security Council looked at that. The National Cyber Security Centre advised on it, working with GCHQ. We took that analysis of the risk. That was then assessed by Ministers through the National Security Council, who weighed up that risk. The Government took the decision that we should have a cap of 35% for high-risk vendors—principally, Huawei—and we would then seek to diversify and reduce that. We are clear in that commitment: we want to diversify away from Huawei. What we are setting out today is the process for achieving that, and that is, first of all, about ensuring that we get the capacity there in the first place.
John Redwood
Why is there no sense of urgency about getting the alternative capacity in? This is not a unique technology to the Chinese company. These are potentially massive orders. Put it out to bidding and see what is out there.
Oliver Dowden
I thank my right hon. Friend for his intervention. There is a huge sense of urgency in this. That is why we are committed to working with our Five Eyes partners to make sure that, for the first time, we set out a timetable to say that within this Parliament, we will get the capacity, so that we can then ensure that we will start to move away from our reliance on high-risk vendors. It is already capped at 35%. We want to get to a position where we do not need to rely on them at all. This is the important first step and it is about assuring the House that we are on the path towards diversification.
Mr Paterson
I very much welcome the Bill coming up and the commitment to move. However, the commitment to having no high-risk vendors so that we do not have to use them at all is where we are today. No company has to use this equipment, but they are forced to by the imperatives that they will be undercut if they do not. The Under-Secretary of State for Digital, Culture, Media and Sport, my hon. Friend the Member for Boston and Skegness (Matt Warman), who wound up the debate last week, said that
“we will work to move towards no involvement of high-risk vendors.”—[Official Report, 4 March 2020; Vol. 672, c. 299WH.]
Can we not just have a commitment that that is the destination to which we will move? That will send a massive signal out to our allies and customers and it will encourage the Five Eyes alliance to work together, all of which we know will take time, but there has to be a clear commitment to zero.
Oliver Dowden
We are clear in our commitment to diversification. That is the path by which we get to that point and those are the steps we are setting out today.
Steve Brine (Winchester) (Con)
I thank the Secretary of State for his commitment that as well as the ISC—I would love to know when it will be re-formed—scrutiny in this space will be given to Select Committees; I am a member of the Select Committee that scrutinises his work. But there is clearly an impasse here and a problem. My right hon. Friend the Member for Haltemprice and Howden (Mr Davis) says there are other suppliers in the market that can do this now. The Secretary of State is talking about diversification in the supply side of the industry. I do not understand—where is the difference between those two positions? Can it be done now without Huawei, or not? Which is the truthful position?
Oliver Dowden
Of course it can be done now without Huawei, but what we have set out is, first, the cap, at 35%, and then the process of diversification to get from that point—
Oliver Dowden
I will allow one more intervention, but then I should make some progress.
Oliver Dowden
The rationale, as decided by the National Security Council, on advice from the agencies, was that that was a sustainable point—a cap from which we could start to work down. As my hon. Friend well knows, of course, there is a degree of arbitrariness in any number, but on balance it was decided that 35% was the appropriate place for us to land.
Sir Iain Duncan Smith
I am trying to help my right hon. Friend, believe it or not. I understood from the discussions that our position was clear. I accept that the engagement of the Five Eyes is a new position. I congratulate them on that. But critical to that is that the point of our engagement will start with, as the Under-Secretary of State for Digital, Culture, Media and Sport, my hon. Friend the Member for Boston and Skegness (Matt Warman), said, moving towards no involvement of high-risk vendors. If we start by having diversification, we have no position for our Five Eyes partners. But if our purpose is to get this right for no involvement—I want the Secretary of State to say that now. If I do not get that—others can do as they like here—it will be my purpose to press the amendment to a vote.
Oliver Dowden
When the telecoms security Bill comes forward, we will have the opportunity to have exactly this kind of debate. This is an amendment to a Bill that is about ensuring that we get broadband into blocks of flats. I completely appreciate why my right hon. Friend and others have chosen to table the amendment. The concerns of hon. and right hon. Members have been clearly heard and understand. This can be dealt with in the telecoms security Bill, but ahead of that, in recognition of those concerns, we already setting set out a pathway. First, we have made clear our intention to reduce our reliance on high-risk vendors as that diversification takes place. That gives further clarity to the House about the diversification process set out in the announcement from the National Security Council. Further, we have said we want to get to the position where we do not have to use them at all, which gives a sense of the clear endpoint and trajectory. But we are saying that in order to get from point A to point B we need to develop capacity, which is why we have said we will work with Five Eyes and other partners to develop this new supply chain capacity in our critical national infrastructure. Beyond all that, I recognise that this gives rise to tremendous questions about the basis on which the National Cyber Security Centre reached its decision. That is why for the first time we are saying that other than the ISC other Committees will have a chance to scrutinise and hold it to account for that decision.
Several hon. Members rose—
Oliver Dowden
I really feel that at this point I need to make a little more progress and deal with some of the other amendments, because I can see that you are concerned, Madam Deputy Speaker. I will happily take further interventions later on, though I feel I have dealt with a wide scope of them.
Oliver Dowden
Yes, I will give way, as it is the Opposition Front-Bench spokesperson.
Chi Onwurah
This is clearly a question of great importance, yet unfortunately I hear nothing new. The Secretary of State seems to be committing to diversification, but what is the new commitment? Is it diversification of the supply chain, which was in the review, or is it diversification of the supply chain leading to the elimination of high-risk vendors, and if so by what date?
Oliver Dowden
We have made at least three new commitments today. First, we will bring back the telecoms security Bill by the summer, which will enable the House—[Interruption.] The hon. Lady repeatedly challenged me over when the Bill would be brought back. We have said when we will bring it back for the House to debate. In the announcement from the National Security Council —from the Government—we said we wanted to diversify away from the 35% cap over time. For the first time, we are now setting out the process by which we will work with our Five Eyes and other partners to develop the new supply chain capacity to enable us to do that, and we have set a timetable for doing it within this Parliament. Finally, we have also said for the first time that we will allow much greater scrutiny by allowing the National Cyber Security Centre to—
Bob Seely
I understand that the Secretary of State and his Front-Bench team are trying to make sense of a bad situation, but he is not saying what point B is. He says we will “diversify away”. Are we doing that because it will give us a bit more leverage with China, or are we diversifying to the point of 0% high-risk vendors, and if so by what date?
Oliver Dowden
The Government—I think we all share this objective—would like to get to the point where we do not need any high-risk vendors at all, and we are setting out that process. That said, I want to be candid with hon. Members: I am not today repeating the words of the Under-Secretary of State for Digital, Culture, Media and Sport, my hon. Friend the hon. Member for Boston and Skegness (Matt Warman), lest they be misunderstood. We are not today setting out a timetable or date to get to a point where we do not have to rely upon them at all. When we introduce the telecoms security Bill before the summer, hon. Members will have the opportunity to debate this further.
I will make a little more progress and turn my attention to amendment 2. The issue of who is able to request a service from an operator is something that we were conscious of when we were drafting the Bill. As drafted, the Bill, particularly the term “lessee in occupation”, refers to a person who occupies a property under the terms of a lease. For the avoidance of any doubt, this could include assured shorthold tenancy or assured tenancy agreements. It is these types of tenancy agreements that I believe the shadow Minister is seeking to ensure are captured by the Bill, so we will not be supporting that amendment. My concern is that to expand the definition of persons who can make the service request would be disproportionate and potentially undermine a key policy aim of the Bill, which is for operators and landowners to reach agreements between themselves.
The Bill also reflects the fact that the evidence we have received does not suggest that the policy needs to be expanded. I am sure Members will agree that this is a sensible approach that maintains a healthy balance between all parties involved. I hope this clarifies who is likely to be a lessee in occupation and that this satisfies the shadow Minister.
I turn now to my concerns about amendment 3. The Bill aims to support leaseholders to gain access to broadband services from the providers they want. As drafted, the Bill already ensures leaseholders are not locked into services provided by a single provider. Nothing in the Bill prevents a lessee in occupation with an existing gigabit-capable connection from requesting a new service from another alternative provider. That alternative provider will need to give notices to the landowner in line with the electronic communications code. Should that landowner repeatedly fail to respond, that provider could apply for a part 4A order of its own in order to deliver that service. The Government cannot and should not compel independent, commercial companies to alter the way they choose to deliver their services unless there is evidence that a problem exists. Furthermore, far from improving competition and access to services, the amendment might have the unintended consequence of doing the complete opposite. Much of the cost of connecting premises is in the initial installation.
Finally, let me deal with amendment 6. The new connections provided by operators as a result of the Bill will allow greater efficiency and connectivity for consumers and give them an opportunity to benefit fully from certain services including “smart” or internet-connected products, which are often described as the internet of things. The amendment proposes that any operator exercising a part 4A code right must supply provide written information to new customers in the target premises. That would cover best practice on cyber-security in the use of the network connections that have been provided.
I appreciate the sentiment behind amendment 6, and the Government are committed to ensuring that the UK is one of the safest places to be online, but the amendment would impose an additional and disproportionate burden on operators, who may not be best placed to provide consumers with up-to-date information.
The Government have ambitious plans for the roll-out of greater connectivity throughout the United Kingdom, and I can assure the House that in doing so we will never compromise the safety and security of our telecoms networks. Trust in these networks is vital if we are to encourage the take-up of new technologies that will transform our lives for the better.
I have talked at great length to my right hon. Friend the Member for Chingford and Woodford Green and others about our proposals and their amendments. I understand their genuine concerns about the decision taken by the National Security Council and the Government, which was presented to the House about a month ago. I hope that I have given them some comfort, although I accept that it is not all that they have been seeking. I hope I have at least reassured them that the Government appreciate their concerns, and that we are embarking on a path towards the ideal point that we all want to reach where we will have no high-risk vendors. I also hope that they in turn will appreciate that this is not the end of the process but an opportunity for their concerns to be expressed in the amendment, and that the substantial debate will come when we introduce the telecoms security Bill.
Ahead of that, for several weeks—indeed, a few months—there will be the opportunity for intensive engagement in all these issues, including full access to, and scrutiny of, the National Cyber Security Centre and its representatives. I hope that that will enable the House to make progress, but when the Bill is introduced there will of course be huge opportunities for all Members to table appropriate amendments, and the Government will address each one of them.
Oliver Dowden
I will take one last intervention, but then I really must stop.
Steve Brine
This has been a good discussion, although heated. I do not think that this is the right Bill for the amendment, so I will not be supporting it. My right hon. Friend has mentioned the telecoms security Bill. Will it come before the relevant Select Committee and the aforementioned Intelligence and Security Committee for pre-legislative scrutiny, or will it be introduced in the House first?
Oliver Dowden
The convention is that representatives of the NCSC appear only before the ISC, but when I spoke to the NCSC’s director this morning, I suggested—and he agreed—that he should appear before any appropriate Committee, such as, perhaps, the Defence or the Foreign Affairs Committee. We will seek maximum engagement before that, so that the Committee can have all the relevant information.
I have made my points about the Government’s position, and about the opportunity to debate these issues again. I do not know whether I have convinced my right hon. Friend the Member for Chingford and Woodford Green, but I hope that he will consider withdrawing his amendment and allowing the House to discuss his proposal in due course when the telecoms security Bill is introduced, before the summer recess.
John Nicolson
I support amendment 1. I think that the Secretary of State took eight or nine interventions, and I was interested in his language. As a journalist, I know that when politicians talk about “moving towards”, it means that there is no end in sight, and that “like to” means “perhaps, but I am not going to give any commitment of any kind”. We could sense the feeling of disappointment on the Conservative Benches.
The Secretary of State said that he would never compromise safety and security, and then went on to detail all the ways in which he was compromising the nation’s safety and security. Huawei is not a normal company. Huawei is an arm of the Chinese state., which is exactly why our fellow members of Five Eyes are so frustrated by the Government’s behaviour. We are also being told repeatedly that only a certain percentage of the nation’s infrastructure will be surrendered, but, as I said in my intervention on my hon. Friend the Member for Inverclyde (Ronnie Cowan), that suggests a misunderstanding of the whole nature of 5G.
I apologise for my hoarseness, Madam Deputy Speaker. Please excuse me while I drink the water with which I have been provided. I always think it is terribly unfair that Labour Front Benchers are given glasses while we are forced to rely on plastic—that is yet another example of anti-Scottish discrimination in this place—but I thank the hon. Member for Newcastle upon Tyne Central (Chi Onwurah).
The distinction in 5G between core and edge collapses. There is no distinction: that is the point. It is meaningless twaddle to keep talking as if 5G were no different from current technology. I recognise, of course, that the Government are between a rock and a hard place, facing a decision between spiralling costs and high security, but here in the UK we have spent, and continue to spend, billions of pounds on the development, maintenance and renewal of 20th-century defence systems that simply are not fit to face the security challenges of the modern era. Those who pose the biggest threats that we now face— terrorism, climate change and, of course, cyber-attacks—will not be deterred by multi-billion-pound nuclear missiles in the Firth of Forth.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Matt Warman)
I beg to move, That the Bill be now read the Third time.
Today we have had an important debate on an important Bill. The Government have heard loud and clear the points made in all parts of the House. As we move towards the telecoms security Bill, we will engage intensively with colleagues across the House to make sure that we make our case at every possible level, and we will underline the fact that we will always put national security at the very top of our agenda.
Although this is a short and technical Bill, it is an important one. Fast, reliable, resilient broadband connections are the lifeblood of our economy and our society, and ensuring that every home and business can access these connections is a priority for this Government. It is vital if we are to create the conditions where anyone can succeed and thrive, regardless of their background or their postcode, as my right hon. Friend the Secretary of State said. The Bill sends a clear message that this must be a priority for landowners because fast reliable broadband is good for their residents. Connectivity can create thriving technology scenes in rural areas. It can enable closer relationships for the socially isolated. It can open people up to a world of inspiration and education.
This Bill demonstrates that this Government are serious about doing what it is necessary to do to ensure that everyone, wherever they live, is part of a levelled-up United Kingdom. It shows that the Government will create an environment that promotes investment and encourages deployment, and will not shy away from making the changes necessary to ensure that every household can access the connectivity they need from the provider they want.
This is a vital Bill that is critical to the success of our digital economy in the decades ahead. I thank Members from across the House for the scrutiny that they have provided today and for raising all the points that they have raised. The Government will, as I say, continue to engage intensively with those concerns. We will bring forward the telecoms security Bill before the summer recess. In advance of that, we will provide all the information that we possibly can. I commend the Bill to the House.
Chi Onwurah
We have had a very interesting and at times lively debate. On Third Reading, I would say that this Bill gives us baby steps towards rolling out the infrastructure that so many millions across this country are in desperate need of—full-fibre broadband infrastructure. This is no time for the Government to be patting themselves on the back. This is a mediocre Bill that, in addition, risks being derailed by the Government’s failure to take a longer-term view on our national networks, full-fibre, 5G and more. In terms of the Secretary of State’s responses, we will take forward the reassurances on tenants and hold the Government to account. Tenants should be able to access the provisions of this legislation. I fear that the Government do not understand the basis or need for competitive infrastructure, because the Bill does not support competitive access to multiple-dwelling units. We will hold the Government to account on that. We will also hold them to account on the assurances given on information and better dissemination of digital skills and digital guidance.
The big Huawei hole in which the Government find themselves has not been reconciled by today’s debate. The Secretary of State promised several things, including a new telecoms security Bill, but he could not give us any of the details. He promised a diversification strategy but, to be clear, that was the basis of the telecoms supply chain review report in July 2019, and we would hope that there would be some detail on what that strategy is. The Budget is tomorrow. Will we see funding for significant investment in the diversification of the supply chain that the Secretary of State promised?
Will we get greater clarity on what the diversification strategy is leading to? Is it leading to non-dependence on high-risk vendors within this Parliament or at some unspecified date in the future? We have heard little on the industrial strategy that will make diversification possible. Are we talking about UK capacity to deliver 5G and 6G in future networks, or are we talking about greater support for Japanese and Korean companies to enter our supply chain? Will the timetable for this diversification strategy be on the face of the telecoms security Bill?
Those questions all remain to be answered. It is an indictment of this Government’s support for our national security—and the clarity of that support for our national security—that at this stage so many Conservative Members feel it necessary to vote against their own Government, in order to press home the needs of our national security and, specifically, our technological capability in the key areas of 5G, 6G and future telecommunications. We are told that, in network design, it is always important to design in the possibility of breach, but the Government seem to be designing in breach of our entire network system.
Chi Onwurah
The Minister shakes his head. In that case, I hope he will be able to say how we will ensure that we are not dependent on high-risk vendors before the end of this Parliament. Until we see a detailed plan, an industrial strategy and funding for all the different components of that, the Opposition will remain concerned that the Government are not prepared to make the interventions necessary to ensure that our national security is safeguarded.
Telecommunications Infrastructure (Leasehold Property) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 22nd April 2020
(4 years, 8 months ago)
Lords ChamberTelecommunications Infrastructure (Leasehold Property) Act 2021 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 10 March 2020 - large font accessible version (PDF) - (10 Mar 2020)
This text is a record of ministerial contributions to a debate held as part of the Telecommunications Infrastructure (Leasehold Property) Act 2021 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)
My Lords, I do not need to say how vital to the continuation of everyday life and to broad swathes of the economy our broadband connectivity has been in recent weeks. The Covid-19 pandemic has brought into very sharp relief the importance of robust and rapid broadband connectivity. The telecommunications network has never been more important. Right now, it is permitting millions to work at home, providing information and entertainment to those isolating themselves and allowing children to continue their education while their schools are closed. It is at times like this that we must turn our attention to the children, older people and workers who live in areas with limited or no access to the internet. How they are coping in these unprecedented times, and what can we do to ensure that this country’s communications infrastructure is able to meet these and future challenges?
In the other place, my honourable friend the Minister for Digital Infrastructure spoke about how gigabit-capable connectivity can grow businesses internationally and into areas such as big data, artificial intelligence and blockchain technologies. He explained how it more easily allows us to have smart meters and other forms of connected homes, and how faster, more reliable broadband makes accessing media content and finding the best deals online even quicker and easier. Gigabit-capable connections certainly do all these things. It has become increasingly apparent that access to the internet is now an ever more important aspect of daily life, especially at times of national crisis.
It is a credit to our telecommunications operators that the UK networks have responded so quickly to provide the capacity that this country needs during the Covid-19 outbreak. I have no doubt that operators will continue to work tirelessly to optimise their networks and ensure that all of us can access the services we need.
These uncertain times show clearly the need to ensure that everyone in this country has access to fast, reliable, resilient connectivity. Currently only about 12% of the country can access the latest generation of broadband that this Government are determined to roll out nationwide. Gigabit-capable connections are those that offer download speeds of 1,000 megabits per second and above. By way of comparison, the average download speed in the UK is about 54 megabits per second. The Bill before the House today ensures that those living in blocks of flats and apartments—known by the telecommunications industry as multi or multiple-dwelling units, or MDUs—are supported in receiving new connections. We know that such MDUs are often especially difficult to connect. As your Lordships will know, a building’s owner must give their permission before a telecoms operator is permitted to install its equipment in the common parts of the building. When a person requesting a connection lives in a flat, whether they are renting or they own the leasehold, the permission of the landowner is required for the common areas, such as basements and stairwells, so that a telecoms operator can then install its infrastructure.
In practice, an operator will attempt to contact a landowner to request permission to install its equipment and cabling and will offer to negotiate a long-term agreement on access. I am sure many noble Lords will be familiar with the process. These access agreements—or wayleaves, as they are often known—set out the responsibilities of both the landowner and operator with regard to installation, maintenance and future access. It is these agreements that allow residents to be connected.
We understand from the likes of Openreach, Virgin Media, CityFibre, Gigaclear and other major telecoms providers that around 40% of their requests for access in such situations receive no response. I want to make it clear: we are not talking about instances where a landowner refuses to allow telecoms operators access, which they are well within their rights to do. Neither are we talking about landowners who respond to an operator’s notice requesting time to consider the offer, which is also a reasonable course of action. The policy aim of this Bill focuses only on circumstances where a lessee in the property is seeking a service and where a landowner repeatedly fails to respond to a telecoms operator’s request for access.
Currently, when an operator finds itself in the situation I have just outlined, our understanding is that it opts to bypass the property in order to maintain momentum of its wider deployment. The result of that operator’s commercial decision is that the residents within the property concerned are left with little choice but to accept that they will miss out on connections or upgrades to their existing connections. The Government consider this to be unacceptable.
The Bill before the House today seeks to provide operators with an alternative course of action by creating a new streamlined process in the courts to gain rights to install their infrastructure. Clearly, there must be conditions to be satisfied by the operator, and I will come to those shortly. This application process is intended to be a last resort for operators. We hope that through the passing and implementation of this legislation, landowner response rates will increase and this new court process will, over time, not even need to be used.
As I am sure noble Lords will agree, the best way for operators to install equipment in a property is as a result of an agreement negotiated by the operator and landowner. Noble Lords will recall that, in 2017, this House passed the Digital Economy Act. Among other things, that Act updated the Electronic Communications Code, which I shall call “the code”. The code provides a regulatory framework for the relationship between landowners and telecommunications operators. The code does not prevent operators from making use of the courts to have rights imposed in circumstances where a landlord is unresponsive. However, we are not aware of any operators having sought to use the code as it presently stands in order to gain access rights in such a situation. We understand from operators that this is due to the cost and time of doing so. There are varying estimations of the cost of using the current court system, but a conservative estimate is around £14,000 per application, including legal fees and administrative costs. It can take six to seven months from the commencement of proceedings until their conclusion.
There are around 450,000 multiple-dwelling units in the UK, housing approximately 10 million people. If we consider that 40% of the people who own those buildings do not respond to operators’ requests for access, then some 4 million people are losing out. It is avoidable.
The process proposed by the Bill is proportionate and balanced. It places a low burden on the landowner and proportionate evidential and procedural requirements on the operator. First, a tenant in the property must have requested a service. Then, the operator must have issued three notices to the landowner requesting access over 28 days, plus a final notice explicitly referencing the fact that the court may be used to gain access. Only once that period has ended will an operator be able to apply to a court for rights under the code, which will allow it to enter the common areas of the landowner’s property to install its infrastructure, allowing the operator to provide the connection requested by the tenant. On application to the court, the operator must be able to provide evidence of all this. Should the landowner in question wish to stop this process at any point, they need only respond to one of the operator’s multiple notices. The expectation is that applications made to the court will allow judges to make decisions based on operators meeting clear evidential requirements. This will allow decisions to be reached quickly and efficiently.
Indeed, during Committee in the other place, the Government tabled amendments to make the adjudication of applications under the court process set out in the Bill more efficient by ensuring that those applications would be heard by courts and tribunals even better placed to do so. Those amendments make provision for the First-tier Tribunal to hear applications made under this legislation, instead of the Upper Tribunal. This will apply to cases in England and Wales. In Scotland, applications will be heard by the sheriff court. In Northern Ireland, applications will be heard by the county court. This way, the applications will be heard by judges at an appropriate level. The amendments were tabled as a result of engagement with the devolved Administrations and senior members of the affected judiciary themselves, as well as in response to valuable points about the judiciary’s capacity identified in the other place during the Second Reading debate there.
If an application is successful, the operator will obtain interim rights under the Electronic Communications Code, allowing it to install, maintain and upgrade its infrastructure in the property for a period no longer than 18 months. The interim rights will have terms attached; we will consult on those terms before they are set out in regulations. They will include such things as requirements on the standard to which works must be completed and that care is taken to minimise the impact on other residents.
If an operator wishes to continue providing a service to the building after the interim code rights have expired and the landlord continues to be disengaged, it may use existing provisions with the code to apply for full access rights. However, we hope that time-limiting the rights to a maximum of 18 months will incentivise operators to continue to try to negotiate an agreement with the landowner so as to avoid the cost, time and uncertainty of making an application to the tribunal for full access rights.
I look forward to noble Lords’ contributions, and to seeing this short and technical—but significant—Bill pass through this House. I beg to move.
Baroness Barran
My Lords, I thank both the noble Baroness, Lady Northover, and the noble Lord, Lord Collins of Highbury, for their contributions. I will start with the noble Baroness’s comments on behalf of her noble friends. We all hear the concerns that she shared with the House but I think we are also aware that the House authorities have been working absolutely tirelessly to change how we work as a Chamber—in ways that perhaps none of us could have imagined would be possible. The Government will make sure that time is given to her noble friends and all Members of this House to contribute fully and perhaps slightly more conventionally as we progress with the Bill.
More broadly, I would also like to put on the record that the Government recognise the sacrifices that are being made all around the country by people whose lives have been turned upside down by what has happened over the last few weeks. We are enormously grateful to them.
The noble Lord, Lord Collins, finished by suggesting that the Government could do more to combat some of the misinformation about 5G and coronavirus. I stress that the Government’s view is that 5G conspiracy theories in this area are baseless, exactly as the noble Lord said. There is absolutely no evidence of any link between 5G and coronavirus. The Government have been very active both in working with the industry to address this matter and in taking extremely seriously any threats of violence or actual violence towards workers or damage to mobile phone masts.
The noble Lord also raised the question of high-risk vendors. As he will know, the Government have thought very carefully about this matter. As my honourable friend said in the other place, the security and resilience of our telecom networks is of paramount importance. The decision by the Government on high-risk vendors was made after considering all the necessary information and analysis from the National Cyber Security Centre and from the industry, and in conversation with international partners. As the noble Lord noted, legislation is being brought forward. He asked about the timing. It will be brought forward before the summer. We believe that that will be the right opportunity for amendments in this area to be introduced, and we look forward to engaging with colleagues ahead of that time.
As both noble Lords noted, in the past few months, and undoubtedly in the weeks and months ahead, the country’s telecoms infrastructure has proven and will continue to prove that it is a key pillar of our society, allowing families who are separated to be together and workers to continue to do their jobs, and providing the essential communications that our blue light services need to do the work that we all value so enormously. We are proud of our nation’s telecommunications infrastructure. I am sure noble Lords will agree that our network operators have more than risen to the challenge posed by the coronavirus pandemic and should be commended for the service they are providing to the country. The ability of our network to cope in the past few months is thanks in part to the investment that this Government have made in the past decade.
The noble Lord, Lord Collins, challenged us on why we have not gone further on speeds and been more ambitious in the Bill, suggesting that we have chosen the least ambitious route. I hope I will be able to convince him otherwise. Superfast broadband is available to 96% of the country, up from 58% in 2011, as a result of the interventions made by the Government over the past 10 years, including the hugely successful BDUK programme. This ranks the UK seventh across the EU.
For those who cannot access decent connectivity, the universal service obligation, which went live last month, ensures that everyone across the UK has a clear, enforceable right to request high-speed broadband of at least 10 Mbps, which acts as an important safety net. But I assure the noble Lord that the Government are intent on delivering nationwide gigabit-capable services as soon as possible. It is through interventions such as the Bill that we are creating a regulatory and legislative environment that will promote the nationwide deployment of these gigabit-capable connections. These are bearing fruit, with more than 13% of premises now able to access full-fibre networks and 18% with access to gigabit-capable services. Operators are connecting increasing numbers of premises every month. Last year we saw 1.5 million homes connected, and this year we are beginning to see connections rising to around 200,000 a month.
More broadly, on the noble Lord’s questions about why the Bill is so narrow in focus and what else we could be doing, there is a balance to be struck between how we can implement our ambitious plans as practically and as quickly as possible, and our judgment was that to combine the measures into a single Bill would be less practical and slower. I think we share the noble Lord’s aspirations, but perhaps have chosen a different route to get there.
To reiterate, the Government announced £5 billion of funding in the Budget to support the rollout of gigabit-capable networks, which I hope goes some way to addressing the noble Lord’s point about how people can have confidence, and there is a particular focus within that in reaching the hardest-to-reach areas of the country. We are also legislating to make sure that new-build homes come with gigabit-capable broadband fit for the future. We are working with the Department for Transport to reform the street works regime to help operators roll out more quickly and easily, so there is a very comprehensive programme of work that seeks to address these issues.
The Government really do not accept that we are not being ambitious enough. The league tables that the noble Lord refers to often lag behind the latest data and do not reflect the significant uptick in UK rollout over the last year. They also do not take into account the full range of gigabit services available, since they are focused on full-fibre build only.
We continue to work closely with operators and landowners to identify and address the barriers to deployment. If appropriate, we will bring forward further reforms to ensure that fast, resilient and reliable broadband reaches every home and business.
This Bill marks an important step forward. It will bring gigabit-capable connections to tens of thousands of households that may otherwise be left behind and ensures that our telecommunications network operators remain ready to meet the challenges of the future, whatever it may be.
I have tried to address the points raised by noble Lords as fully as I can and thank them for sharing their reflections ahead of this debate given the unusual circumstances. I invite any noble Lords who wish to talk about any issue related to the Bill to contact me and my officials. We would be very happy to discuss by various virtual means their thoughts, reflections and concerns. I look forward to a fuller debate in Committee in due course.
Telecommunications Infrastructure (Leasehold Property) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 19th May 2020
(4 years, 7 months ago)
Lords ChamberTelecommunications Infrastructure (Leasehold Property) Act 2021 Read Hansard Text Amendment Paper: HL Bill 107-I Marshalled list for Virtual Committee - (14 May 2020)
This text is a record of ministerial contributions to a debate held as part of the Telecommunications Infrastructure (Leasehold Property) Act 2021 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Lord Stevenson of Balmacara (Lab)
My Lords, the benefit of making one or two Second Reading-style comments at the start of the debate on these amendments has been well proven by what has been said. A lot of context has been brought out, as has the theory underpinning some of the lines of argument. That is all to the good.
I want to make a couple of initial points. I take it as read, and I am sure that the Minister will confirm this when she responds, that we are all supportive of the speedy and complete rollout of a gigabit-capable economy. There is no question about our support in terms of previous chances because we have focused on or around this topic for a number of years now. Indeed, we have had a couple of Bills on it. It is on the record that, on our side of the House, we have tried hard to raise the unambitious USO target, as my old friend, my noble friend Lord Adonis, mentioned. We have also brought forward other measures—they were picked up on by other speakers, including the noble Lord, Lord Clement-Jones—which may have helped us to get a bit further down the line to where we are.
In the Digital Economy Act and subsequent legislation, we asked how to get everyone together on the path and moving toward a gigabit economy. The Government chose to go down the voluntary route. Of course that ended in tears, with very few respondents happy with where they are—so here we are again. I will not go into that in any detail. Having said that, times have changed. Other noble Lords have said it but I am sure that the Minister will agree that the internet’s role has changed as a result of Covid-19. It would have changed anyway but it has certainly been brought into focus because of the crisis. We certainly do not want a situation where individuals or families could be left behind because they have not been given access to gigabit-capable broadband.
Underneath the general points that have been made, there are probably a couple of major positions that we ought to focus on as we go through these amendments. Surely the default position should be that, like water, gas and electricity, gigabit-capable connections should be available to all premises. The acid test for us on this Bill is whether its measures advance that. The noble Lord, Lord Haselhurst, said that there were points that we could agree did bring us forward, but I think the general feeling so far is that perhaps there is not a deep enough cut being taken from those issues.
My second point is: where are the other pieces of legislation that will back this up? Where are the points that address bringing forward access to all properties on the same terms as other utilities? Where are the measures that will help with works that have to be done on a village-wide or town-wide basis in order to get access to cables? When will we get some sense of the overarching position and the legislation for that?
We support the amendments of the noble Lord, Lord Clement-Jones, and the one raised by my noble friend Lord Adonis. There needs to be broader support for legal occupiers to be able to initiate and unblock the process. I particularly liked a comment made in the middle of the debate about the future ownership of Openreach, and I look forward to the Minister’s response.
Throughout all this we are not in any sense saying that the owner of the property is diminished by any proposals to improve the quality of what is available in the premises. However, we clearly need it to be possible for all properties to be supplied with public utilities, and I think the internet has to be regarded as one. If this is not the case, it is up to the Minister to make very clear today why not. Can she address that point? Will she take back, perhaps for further consideration on Report, the wider concern—it was expressed by the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady McIntosh, in particular, but I think was raised by just about everybody—that the Bill actually has not tackled the essential question of who it is talking about when it deals with property rights?
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)
My Lords, I thank the noble Lord, Lord Stevenson of Balmacara, for his support and that of his colleagues for the Government’s work in this area; I thank all noble Lords in that regard. I also thank the noble Lords who tabled these amendments, which seek to clarify who is able to make a request for a service, and therefore begin a path for an order process.
The noble Lord, Lord Clement-Jones, and my noble friends Lady McIntosh and Lord Holmes raised questions about our 2025 manifesto target and the impact of Covid-19 on achieving that. As many noble Lords noted, the current pandemic has re-emphasised the importance of digital infrastructure in the UK, and we are fully committed and resolved to deliver on this. Obviously, Covid-19 is likely to have an impact on the pace of the rollout in the short term, but we cannot assume that we cannot recover that, make up ground and still meet our target. We are doing everything we can to assure this, including investing £5 billion in the hardest-to-reach areas such as the rural areas to which my noble friends Lord Haselhurst and Lady McIntosh referred.
Questions were also raised by several noble Lords, particularly the noble Lords, Lord Adonis and Lord Clement-Jones, about investment and competition. I cannot comment on the rumours about the status of Openreach, which is obviously something for the BT Group to announce or comment on, but our understanding from subsequent press reports is that the original Financial Times report was inaccurate. Officals will continue to engage with BT and Openreach, but it is ultimately a private company. [Inaudible.] They also raised a number of other questions, particularly in relation to the status of broadband connections as a utility—if I may, I will comment on those in a later group. Some specific and quite detailed questions were also raised which I will respond to in writing, including the question from my noble friend Lord Holmes as regards learning from previous Openreach rollout.
Turning to the specific amendments, I note that Amendment 6 is similar to an amendment tabled in the other place during the passage of the Bill there. I believe that the noble Lords who have tabled the amendment are seeking to ensure that tenants are covered by the Bill. If noble Lords are indeed seeking clarification on that point, I am able to confirm that as currently drafted, the provisions in this Bill can be used by people who rent their homes. This includes people with assured shorthold tenancy or assured tenancy agreements which, as many noble Lords will be aware, are the most common forms of tenancy agreement. These will include second homes and sub-lets as long as they meet the requirements in the Bill. I will confirm this in writing, but my understanding is that in relation to renewable tenancies—a point raised by the noble Lord, Lord Clement-Jones—if they have the characteristics of a lease, they would not be affected by this Bill. [Inaudible.] They would not be covered by this Bill. I can cover the impact of that in a letter to noble Lords.
Our concern is that the amendments as tabled would have a significant effect on the Bill. They would significantly expand the scope of who is able to make a service request to include anyone who is the legal occupant of a property, tenancy, or a freeholder. For example, the amendment could bring into scope a tenant who rents their property from an individual who is illegally sub-letting the property or a short-term lodger in a single room in someone else’s home. I am sure noble Lords will agree that, while the Government are committed to providing widespread access to fast, reliable and resilient broadband, it is important to ensure that the ability to make fundamental changes regarding the rights over property begins with an individual who has a legitimate interest in the property. Furthermore, Amendment 6 would considerably increase the ambit of the Bill and make it very different from the model which was consulted on. The Bill as drafted already works in respect of tenants, so noble Lords will appreciate the unintended consequences of extending the definition to those who may begin a Part 4A process.
Lord Liddle (Lab)
My Lords, I am grateful for being allowed to intervene. Had I realised the procedure, I would have made some Second Reading remarks myself at an earlier point. I support the Bill. It is a modest measure that takes us nearer what I think should be the public objective of a universal service of high-speed broadband. It therefore has my general support.
There are two points from the Minister’s summing-up on which I would like to press her. The first concerns the question that my noble friend Lord Adonis asked about the future of BT Openreach. I am afraid I did not fully catch what the Minister said in reply because of connection problems, but I regard this as a subject of fundamental public interest. I would like to be assured that the Government will also regard it as such and will not just say, “This is a matter for BT to decide what it wants to do in terms of its own private interests and its shareholders’ interests”. I would like an assurance that this is regarded as a matter of great public interest.
My second point relates to the final section of the Minister’s legal bit at the end about who is and is not entitled under these arrangements to press for better connections. I shall look at this question in a very practical way. I am very concerned about young people, including students, living in short-term lets in multi-occupier buildings—for instance, in old council blocks where someone has bought a flat to rent it out and their main occupiers are students on short-term tenancies. I should like an assurance that this provision applies to young people and students whatever the basis of their living in that kind of accommodation. It is fundamental that young people have access to high-speed broadband. This has been brought home to me as chair of Lancaster University, where we are now doing our teaching online. Even when the Covid-19 crisis comes to an end, a much higher proportion of university teaching will be online, and this applies to many other vital spheres of life. There is a practical concern here. I ask the Minister to go back to the department, think about all the circumstances in which young people and students rent accommodation in blocks of flats and multi-occupier properties, and say whether they have an untrammelled right to ask for better provision and whether the process will be so rapid that a student on a short-term tenancy will want to see it through.
Baroness Barran
I thank the noble Lord for his additional questions and I apologise to your Lordships. There is a certain irony in my signal not being quite strong enough for this Committee stage.
In answer to the noble Lord’s question about Openreach, what I tried to say in response to the noble Lord, Lord Adonis, when he put this point, is that any sale is a matter for the BT Group, but the department’s understanding, based on further articles in the press, is that the original Financial Times article was inaccurate. We continue to engage with BT and Openreach, but ultimately it is a private company, albeit subject to all the competition laws and wider legislation that might be relevant.
In relation to students, the noble Lord makes a very important point. I spent quite a lot of time recently talking to young people, including students, about the impact of Covid on their lives. The points he makes are definitely reiterated by them. As the noble Lord knows, students will live in a range of different types of accommodation with different arrangements. Where they are occupying accommodation such as an assured shorthold tenancy or an assured tenancy, they will be covered by the Bill.
The noble Lord’s wider point was about thinking through the practicalities, which is what my officials have spent much time doing. This was explored extensively in the other place. The balance we need to strike is between the three parties—the landlord, the tenant or leaseholder and the operator—and that is what this legislation seeks to do.
Baroness McIntosh of Pickering
I thank my noble friend for her very comprehensive reply to the opening remarks on Amendments 1, 3, 4 and 5. She referred specifically to the hardest-to-reach properties and the sum of money that has been allocated. I repeat here a plea that I have made on many occasions, in the hope that it might be listened to sympathetically. By 2025, the 5% hardest to reach properties, which will inevitably be in rural areas, will, in all likelihood, still not have fast, high connectivity or even fibre broadband. Will the Government look sympathetically on a request to reverse the priorities, to ensure that the 5% hardest to reach will be dealt with first? A great number will indeed be leasehold properties, and many will be tenanted; and many will have residents who are hoping to run rural businesses, or people who are having to work from home at this time. I know that this will strike a particular chord with them.
Given that in areas such as North Yorkshire, the Lake District and Devon, or in any hilly area, you have to deal with the terrain and with the geography of being a substantial distance from the exchange, it seems unfair that these properties—I repeat that many will be leasehold properties—are being disadvantaged and discriminated against. They should be fast-tracked, to allow them greater access to all forms of telecommunication.
Baroness Barran
My noble friend makes an important point. It is something we keep constantly under review and I will take her comments back to my colleagues in the department, so that they are aware of her remarks.
Lord Adonis
I am glad that the Minister has a sense of humour. Those of us in this Committee will regard her predicament of having a very weak connection as fully justifying the Bill. I do not know whether she is in a shared property that does not have fibre throughout, but we cannot properly conduct this Committee stage because even among ourselves we do not have a sufficiently strong internet signal, despite having weeks to prepare. This demonstrates why, as a country, we need to get going on this.
I did not pick up the first time round what the Minister said about BT, because of her dropped connection. When she repeated it in response to my noble friend Lord Liddle, she left me somewhat concerned. She said that the stories in the FT were “inaccurate”, but she would not say in what respect; she simply referred to other press comments. I see exactly what she is seeking to do: she is trying to keep clear of revealing to us private information, which the Government or the regulator will surely have, about what is going on in this context. However, I think she will understand that we do not really regard this situation as satisfactory.
As my noble friends Lord Liddle and Lord Stevenson rightly said, although Openreach is formally a private company, our whole understanding is that rolling out enhanced gigabyte connectivity crucially depends on Openreach. If we do not have confidence in its capacity to do this, the Committee will certainly not be satisfied that the Government have a strategy. To be fair, I do not think that the Government themselves would be satisfied with the situation either.
Baroness Barran
I thank the noble Lord for his further questions. To cover the point about Openreach, the noble Lord will be aware that on 15 May the Financial Times suggested that BT was considering the sale of a stake in Openreach to potential buyers, including Macquarie. Officials spoke to BT last week, which confirmed that this was inaccurate. Both Openreach and Macquarie sources have also publicly told the press that this is inaccurate. On his wider point, if the Government became aware that Openreach did not have the capacity to deliver on our target, we would obviously reconsider how best to meet it, but I am not in a position to be able to give any more detail here.
I will also correct something. I hope noble Lords did not understand me to say that potential delays in rollout from the impact of Covid-19 are only short term. At the moment, we understand some of the short-term impacts and we hope we will be able to absorb them, but given that none of us has a crystal ball on how this will all unwind, I wanted to clarify that for the record.
Lord Clement-Jones
My Lords, I thank the Minister for her response. As the noble Lord, Lord Adonis, implied, it was ironic that we were talking about fast, reliable, resilient broadband, in the Minister’s words, yet she is the one who has principally suffered from not having it in the course of the debate. I thank her anyway, and I look forward to the letter she will send, which might be a little bit clearer than the reception we had for her response.
I thank noble Lords for their support for the amendments. In particular, the noble Baroness, Lady McIntosh of Pickering, and the noble Lord, Lord Liddle, brought out some of the real issues associated with getting the wording wrong. I say to the noble Lord, Lord Haselhurst, that there is nothing wrong with Liberal with a large “L”. We might want to see the ECC interpreted with a large “L”, not just a small one.
I felt the Minister really did not start off on the right foot when talking about the actual aim—the Government’s objectives. I understand that there may be some delay as a result of Covid-19, but the target was set out in the Conservative manifesto. We have not really had a pledge on that. We have had “as soon as possible”—I think that that was in the Minister’s speech last time—but no pledge that that is the objective and that all the Government’s sinews are being strained to achieve it. That is what we want to see.
On the amendments, we are back to the question of access. As I said, the noble Lord, Lord Liddle, and the noble Baroness, Lady McIntosh, got this right. It is about absolute access for various types of occupier. We should be treating this as a utility. We cannot be talking about this in 19th-century property terms. It is as if we were at the end of the 19th century and beginning of the 20th century, when people were arguing about whether electricity should be installed in their houses. Broadband should take its place alongside gas, electricity and water as an essential utility and we should give suitable powers of access to do that.
I look forward to the letter from the Minister but to say that my amendments affect the clarity of the drafting of the wider Bill is almost laughable, because the drafting of the Bill is not clear. The use of the term “lessee”, which excludes quite a number of different types of occupation and tenancy—as has been pointed out—is not adequate. We do not just have a legal issue; we have a clear access fault line about how we treat broadband and its essential nature. We are going to have have-nots who are not able to benefit from the ECC and that will be greatly regretted, not least by those who are unable to access the kind of service that the Minister herself would like. I do not necessarily take on board the arguments about unintended consequences and occupation. One is being over-cautious in the way that the Bill has been put together, but that is a characteristic of the Bill as a whole. We will, no doubt, come back to this on Report. In the meantime, I beg leave to withdraw the amendment.
Lord Clement-Jones
My Lords, I absolutely support what the noble Lords, Lord Adonis and Lord Livermore, said on this matter. A lot of what we are trying to achieve with our comments on the Bill—clearly there is a great deal of commonality here—is to get the Government to state very clearly what their objectives are and how they will achieve them. This is a very well-worded amendment designed to do just that, so that the operators must commit to a one-gigabit-capable broadband commitment. Amendment 21, when we come to it, has a very similar intention.
The problem is that we seem to be faced with a really slippery objective that we cannot quite get our hands on; the Government have not quite committed to it. We really need to see proper commitment from the Government to full access to the one-gigabit-capable broadband which they absolutely promised in their manifesto. At the moment, there seem to be an awful lot of get-out clauses. That is not satisfactory. We will keep arguing through this Bill for a proper commitment to the one-gigabit-capable broadband promised at the last general election.
Baroness Barran
My Lords, I will now respond to Amendment 2 and the points raised by noble Lords.
This amendment would limit the use of the powers contained in Part 4A only to operators installing gigabit-capable services. As the noble Lord, Lord Adonis, stressed, the spirit of this amendment is to test the Government’s commitment to providing gigabit-capable broadband. I am obviously disappointed that he found insufficient the remarks of my honourable friend the Minister for Digital Infrastructure in the other place.
The Government remain completely committed to bringing faster, gigabit-capable broadband to the whole country as soon as possible. Our ambition remains nationwide coverage by 2025. However, we do not believe that we should force consumers to take out specific services.
Clause 1, as currently drafted, supports our ambition. It provides a bespoke process in the courts that will allow an operator faced with a landowner of a premises within the scope of this Bill who repeatedly fails to respond to notices, and a tenant waiting for a service to be connected, to gain interim code rights for the purpose of connecting that building to their broadband service. To limit provision only to services
“that can deliver an average download speed of at least one gigabit per second”
runs the risk, particularly in the short term, of limiting access to better broadband, which, as all noble Lords have agreed, is extremely important.
This Bill, like the Electronic Communications Code, which it amends, is technology neutral and therefore speed neutral. It makes no distinction between the type of service being deployed but recognises the consumer’s right to choose the service they want from the provider they want. Of course, many consumers will want the speed, reliability and resilience offered by full-fibre or gigabit-capable connections, and it should not be the role of government to limit their ability to choose.
In a similar vein, although gigabit-capable services are being rolled out across the UK, they are not yet being deployed everywhere. In practice, the amendment would mean that households in areas yet to be reached by gigabit-capable networks would have to wait—maybe for a long period—even though a superfast or ultrafast service might already be available. Our experience and current practice suggest that an operator would be very unlikely to install outdated technology, and therefore such a delay would be unnecessary and extremely frustrating for consumers.
Finally, were this amendment to form part of the Bill, we consider that it would not have the effect intended by noble Lords. It amends paragraph 27A, which is an introductory provision and explains in very general terms what Part 4A of the code does. The amendment in itself does not amend any of the Bill’s substantive provisions, such as paragraph 27B of the code. Its drafting would not therefore operate within the rest of the Bill.
I understand what noble Lords are seeking to achieve in tabling the amendment. The Government absolutely share the aspiration of achieving gigabit-capable broadband across the whole country, but it is important that the Bill, and the Electronic Communications Code more widely, stay technology neutral for the sake of the consumer’s right to choose and to ensure that we do not allow the perfect to become the enemy of the good.
A number of noble Lords raised the question of the universal service obligation, which is the safety net that we legislated for and which went live on 20 March. It ensures that everyone across the UK has a clear and enforceable right to request high-speed broadband of at least 10 megabits a second from a designated provider and up to a reasonable cost threshold of £3,400. We keep the speed and quality parameters of the USO under review all the time to make sure that it keeps pace with consumers’ evolving needs, and our officials work closely with Ofcom regarding the implementation of the universal service obligation.
With that, I hope that the noble Lord will agree to withdraw his amendment.
Lord Adonis
Before I make my concluding remarks, perhaps I may ask the Minister three further probing questions. I am obviously extremely grateful to her for her full response, but she raised three questions in my mind.
First, she raised some technical concerns about the amendment—in particular, that it amends not the code but only the introductory provisions. That raises an obvious question. If I return with this amendment on Report, properly drafted—indeed, I might invite the noble Baroness herself to provide a draft that the Government think is adequate—would the Government then be prepared to accept it? Indeed, if they proposed it themselves, they would not have to accept it.
That is important because there is an inconsistency in the noble Baroness’s argument in respect of the other two points. She said that it is unlikely that operators would want to install what she called “outdated technology”. I take that to mean technology that is not gigabit-capable. Not only is that unlikely but, if they were to do so on any large scale, of course the Government would then not meet their target, which is to have gigabit-capable coverage.
If the Government are committed to their target and believe that operators are unlikely anyway to want to take forward what she calls outdated technology, what is their objection to having this specification in the Bill? I do not understand what it is. I will give the Minister a moment further to consider her answer to that.
I was very concerned about a point she made about the Government being speed neutral. When Matt Warman spoke in the House of Commons, he did not use the phrase speed neutral but said the Government were technology neutral. I am sympathetic to technology neutral but totally unsympathetic—as I suspect colleagues in the Committee will be—to the idea that the Government are speed neutral. Speed neutral means that the Government may not actually be committed to having superfast broadband rolled out across the country in the first place. Indeed, if the Minister considers what she means by speed neutral and elucidates it a bit further for the Committee, it may be that we get to a position where we have underlying concerns about whether the Government are committed to their own target.
Can the Minister tell us what she means by speed neutral? Does she mean that the Government would be perfectly happy to have a national rollout of something less than gigabit-capable coverage? If she does not mean that and is committed, on behalf of the Government, to gigabit-capable coverage—which I think is what the Committee wants to see—why will the Government not accept an amendment of this kind, properly drafted, which does no more than hold them to their own public commitments?
Baroness Barran
With regard to the noble Lord’s first point about the technical amendment, he is of course right on one level. We—or, I am sure, the noble Lord himself or his team—could make technical amendments to make sure the Bill is coherent and consistent. We could address those points. However, the central issue is one of not delaying the implementation of the rollout and staying true to technology neutrality. I gather that speed neutral is a consequence of tech neutrality, so it would insert into the Electronic Communications Code a tech-specific provision that does not exist anywhere else in the code. The code is about regulating relationships between operators and landowners, not about technology. I will set out these points clearly for the Committee and the noble Lord in a letter.
Lord Adonis
I am extremely grateful to the Minister for her last point about setting this out in a letter. It is very important to the Committee that the Government do so. I do not at all like this idea of speed neutrality, which implies that the Government’s target might not be worth the paper it is written on and that Parliament is about to grant the Government powers that in principle we support but whose purpose will not necessarily be met unless we can maintain the commitment to gigabit-capable coverage. I think the Minister understands that, because, while she said that speed neutrality is a consequence of technology neutrality, she has not said that the Government are not committed to gigabit-capable coverage across the country.
If the Government are committed to gigabit-capable coverage nationwide, it follows logically that it is not speed-neutral. The Committee is looking forward to hearing, in the Minister’s reply, how the Government will square that circle. What she says in that regard will have a big bearing on how we take this matter forward at Report, but on that basis, I beg leave to withdraw this amendment.
Lord Clement-Jones
My Lords, I have put my name to the amendment in the name of the noble Lord, Lord Stevenson, who is correct in saying that the purport of our amendment, Amendment 8, is very similar. I was struck by the Minister’s implying that, if we are not careful, consumers will be forced to take a service. That is not the situation. What we want to do, as far as possible, is to facilitate the laying of fibre across 100% of the country. Consumers can well make up their own minds about whether to enter into a consumer contract. We need, as far as we can, to facilitate the operators in what they do. Just as with electricity—we have had several references to the utilities aspect—people should have access to this. I cannot understand why the Government are not making a distinction between laying the infrastructure and then entering into consumer contracts for the supply of internet services; the distinction is readily understood.
I accept that the Bill introduces a new process for operators to gain access in cases where a tenant has requested a service and the landlord is unresponsive. This will, of course, be helpful for deployment but it depends on a tenant requesting a service rather than supporting the proactive laying of cable ahead of individual customer requests. That means that operators’ teams may not be able to access buildings in areas where operators are currently building, or plan to build, so they will be less effective in supporting rapid deployment. That is what the Bill is ostensibly about: facilitating the deployment of fibre. The most efficient building process is when operators can access all premises in a given area, rather than having to return to them when a building team may have moved many miles away.
Operators say that if they were able to trigger this process without relying on a tenant request for service, they would be able to plan and execute deployment much more efficiently—in effect, proactively building in these MDUs at the point where their engineering teams are in place, rather than waiting for a tenant to request a service. Both these amendments are pure common sense; I hope that the Minister will accept them.
Baroness Barran
My Lords, I thank the noble Lords for tabling these amendments, which would allow telecommunications operators to apply to the courts for a Part 4A order without requiring a “lessee in occupation” in the property making a request for a service. I appreciate the intention behind the amendments, but we are concerned that both have the potential to undermine the balance between the rights of the landowner, the rights of the operator and the public interest.
The noble Lord, Lord Stevenson, referred to our comments in the Future Telecoms Infrastructure Review but we then consulted publicly on the policy in this Bill. What is here in the Bill reflects the outcome of that consultation. The Bill, like the rest of the Electronic Communications Code, was designed to create a fair and balanced framework to underpin the relationships between telecoms operators and landowners. We believe that it works because it is balanced and gives the interests of all sides careful consideration. We believe the Bill continues that balance. Where a landowner is unresponsive, for whatever reason, it is important to ensure that an interest other than that of the operator is being considered by granting an order which potentially impinges on an individual’s property rights.
This is the reason for the requirement that the lessee in occupation of the property actively requests that a telecommunications service be delivered. This is integral to the policy. This request is an unequivocal demonstration that the interests of parties other than the operator alone are reflected and goes to the heart of the Bill’s carefully crafted work, taking into account and balancing the respective interests of tenants, landowners and operators. Some network operators may well welcome the freedom of being able to judge for themselves what is and is not in the public interest and the ability to gain access to a property simply by proposing to make a service available. That freedom is what these amendments would give them. However, I hope noble Lords will agree that without any accompanying constraint on such a freedom, such a system could be capable of being abused, and that is a risk the Government are not willing to accept.
I am also mindful that these amendments would mark a significant shift from the policy that was consulted on, and that is something to be particularly cautious of when dealing with issues around property rights. With that in mind, I beg the noble Lord to withdraw his amendment.
The Deputy Chairman of Committees
No other noble Lords wish to intervene on this amendment.
Lord Livermore
My Lords, Amendments 9 and 14 were tabled in the House of Commons, leading to a commitment that we will shortly consider a further Bill on telecommunications infrastructure security. Given the urgency with which the department claimed to be dealing with this matter, the retabling of these amendments provides us with an opportunity to see what, if any, progress has been made.
Let me be clear that the Labour Party supports the swift but safe rollout of 5G technology. Fully embracing this technology could fundamentally change how we live and work, creating countless opportunities for new forms of communication, entertainment, and so on.
Operators are very keen to get on with the job of rolling out 5G. As we have heard on a number of occasions, the previous lack of clarity over the role of high-risk vendors led to different companies taking different approaches. Some decided to press ahead, gambling on their mix of equipment, whereas others awaited more detailed guidance. The result is that, much like fixed broadband, we are not where any economy of our size should be. This has been compounded by the extraordinary conspiracy theories over the safety of 5G, which saw hardware targeted in the early stages of the Covid-19 pandemic. I know the Minister strongly criticised these myths at Second Reading and I hope she will do so again today.
As I mentioned previously, we have been promised an additional Bill to deal with the issue of security and high-risk vendors. We welcome this announcement but would like more detail on the timescales involved and the proposed scope of the legislation. As my Commons colleagues pointed out during their consideration of this Bill, concerns around Huawei have arisen because the Government have failed to nurture this sector here in the UK. Our lack of expertise and capacity in this country has left operators reliant on know-how and technology from overseas, including from high-risk vendors.
We have been told that there is a plan in place to reduce the market share enjoyed by these vendors. However, this will not happen overnight, and it certainly cannot happen without a proper, robust strategy, coupled with meaningful investment. I hope, therefore, that the upcoming Bill will not be about only security, as vital as that is. It needs to give us opportunities to debate the bigger picture. If, when the Bill is published, the direction of travel is still not entirely clear, we will need to use that process to shed more light on how the Government intend to get to their end destination.
We want to work with the Government to make 5G happen both quickly and safely, and to improve other forms of digital connectivity. We want to work with operators to ensure users right across the UK can enjoy the very best services. I hope that these amendments, coupled with the others we are discussing this afternoon, can be the start of a productive dialogue about how we make that happen.
Baroness Barran
My Lords, I have listened carefully to the debate on this amendment and thank all noble Lords for their extraordinarily high-quality contributions. I particularly thank the noble Baroness, Lady Falkner of Margravine, for her speech introducing the amendment.
As my noble friend Lady Morgan of Cotes explained, this is a matter of huge importance, in relation to both the security and resilience of our telecoms networks and the important and troubling human rights issues that the noble Lord, Lord Alton, covered in relation to the Uighurs. I fear that my comments now will not do justice to this issue, but I would like to put on record my recognition of his work in this area.
On the point that the noble Lord, Lord Livermore, just raised, I can reiterate that the Government continue to condemn those spreading myths about the links between 5G and Covid-19. There is no basis for those assertions.
Turning to the substance of this amendment, it is clearly an issue that the Government consider to be of paramount importance, as this House knows. The Government conducted a comprehensive review into the telecoms supply chain to ensure the security of our networks. The review set out that we will introduce one of the toughest regimes for telecoms security in the world, and I reiterate that high-risk vendors never have been and never will be in the most sensitive parts of our networks.
As my noble friend Lady Morgan said, this decision was taken with enormous care, given its importance. As my right honourable friend the Secretary of State said recently in the other place in relation to a similar amendment to the Bill, the Government will introduce legislation to establish this new regulatory framework as soon as possible.
This legislation will establish stronger national security powers to allow the Government to impose stringent controls on the presence of high-risk vendor equipment in the UK’s 5G and full-fibre networks. It will be a crucial step forward in implementing the conclusions of the Government’s review into the telecoms supply chain, which was underpinned by careful security analysis by our world-leading cybersecurity experts. It will implement a new and robust security framework that ensures the UK’s telecoms critical national infrastructure remains secure now and in the future, which I know is what is behind the amendment of the noble Baroness. Officials are working to develop that legislation as quickly as possible.
I am grateful to the noble Lord, Lord Clement-Jones, for agreeing with the Government that that piece of legislation will be the right opportunity to debate telecom security and high-risk vendors in detail. I hope that this gives your Lordships some reassurance that the Government remain absolutely committed to working with Parliament to ensure the security of our networks.
I understand that the intention of Amendment 9 is to impose a timetable for an effective ban on the use of equipment from high-risk vendors. However, our reflection is that, in practice, this amendment would not necessarily result in the removal of high-risk vendors from the network. Rather than incentivising operators to remove high-risk vendor equipment from their networks, operators could simply not make use of the powers in this Bill, thereby creating a barrier to many families living in blocks of flats who cannot access the benefits unlocked by new broadband services while having no practical impact on the presence of high-risk vendors in the UK’s telecom networks. That is clearly not something, listening to your Lordships today, that this House would like to see happen.
This Bill, in terms of its practical operation, is about access for fixed-line providers and not 5G services. Therefore, the impact of this amendment would not only be more limited in its practical implications than I believe the noble Baroness intends but could slow down the rollout of full-fibre networks and prevent the UK economy seeing the benefits that nationwide access to faster broadband networks could bring.
Amendment 14 is aimed at obliging telecoms operators who exercise Part 4A code rights to set out publicly plans to remove high-risk vendors from their networks to the satisfaction of a regulator. The Government have consistently made it clear that the security of our telecoms infrastructure is paramount. I know that the House shares this view. The amendment touches on details which will need clarification when we come to the telecoms security Bill, such as details around the information that plans should contain any sanctions and what would constitute satisfaction to a designated regulator. That is work to be done in the telecoms security Bill.
We have made evidence-based decisions in relation to high-risk vendors based on the world-class expertise of the National Cyber Security Centre. It has always been the Government’s position that operators should pay due regard to the NCSC’s advice on reducing their Huawei equipment to the recommended level as quickly as practicable. However, the Bill is neither the right place to put an obligation on operators to set out detailed plans, nor to designate an appropriate regulator to assess those plans. As I have made clear, the Government are committed to implementing a framework for telecoms security that is right for the UK’s specific security needs and takes into account the advice we have received from our cybersecurity experts.
This is an important debate which needs full consideration by Members in both Houses and the forthcoming legislation to implement the new telecoms security framework is the right vehicle to do that. The Government are committed to ensuring full consideration by Members in both Houses. On a personal note, I find it a real privilege to take part in a Committee with Members who have such expertise in the technology, security and human rights aspects. I know that my colleagues in the department will be keen to work with noble Lords as we progress with the security Bill and our ambitions to achieve faster broadband rollout. With that, I hope that the noble Baroness will feel able to withdraw her amendment.
The Deputy Chairman of Committees
My Lords, the noble Lords, Lord Adonis and Lord Alton of Liverpool, have expressed a wish to speak again, so I will call them in order and the Minister will answer after each noble Lord has spoken.
Lord Adonis
My Lords, I shall make a brief comment and ask a question in response to what the noble Baroness has just said. She and the noble Baroness, Lady Morgan, both talked about assessments of telecoms and infrastructure security that have been made historically. Does she accept that relations with China are dynamic and appear to be particularly so at the moment, in dealing with the Covid epidemic and its fallout, which could have a significant bearing on future relations, not only with us but with the West. Are the Government cognisant of that?
Because I have not been following these things very closely, my question is this. Have the Government given a categorical undertaking to introduce a telecoms security Bill before the summer?
Baroness Barran
I think the noble Lord knows that the Government are absolutely cognisant of how international relations with multiple partners, including China, evolve. The current situation is obviously unprecedented. Forgive me, but I must ask the noble Lord to repeat his second question.
Lord Adonis
My question was: have the Government given a categoric undertaking to introduce a telecommunications security Bill before the summer?
Baroness Barran
I apologise to the noble Lord. We have said that we will introduce the Bill as soon as possible, but the Covid situation has caused some disruption to the parliamentary timetable. The commitment to do it as quickly as possible stands, however.
Lord Alton of Liverpool
My Lords, first, I thank the Minister for the way she has responded to the debate, particularly her remarks about how important this question is. What she just said to the noble Lord, Lord Adonis, is particularly interesting. If there has been slippage in the legislative timetable, and I recognise the reasons for it, surely that makes it even more important that this paving Bill—that is what this is, effectively—is the right place to address these questions. If it is not, they will go off into the future and we know that the future can be the long grass.
It is the age-old argument about the right place and the right time but, given the Minister’s welcome remarks about the importance of this issue, may I ask her to do one thing between now and Report? I would be very grateful if she could assure the Committee that she will liaise with the noble Lord, Lord Ahmad of Wimbledon, at the Foreign Office and the noble Baroness, Lady Williams of Trafford, at the Home Office about our obligations, referred to in my remarks, under Section 54 of the Modern Slavery Act 2015. These require any company with a turnover of more than £36 million to publish details of what steps they are taking to prevent modern slavery. Perhaps in that period there could also be a meeting with me, my noble friend Lady Falkner and the Independent Anti-slavery Commissioner, who was appointed by the Government. He could come in and talk further to the Minister about our obligations and why we really need to act now, rather than push the matter off into the future.
Baroness Barran
I shall answer that in two ways, if I may. Of course, I would be delighted to meet the noble Lord in conjunction with my noble friends Lord Ahmad and Lady Williams, and with the noble Baroness, Lady Falkner, if she wishes to join. We can pick that up after the Committee. I assure the Committee that there is no loss of will or momentum on the Government’s side about the telecoms security Bill. Purely practical issues prevent me giving a firm date for its introduction.
Baroness Falkner of Margravine
My Lords, I start by thanking the Minister for the manner in which she has dealt with this Bill. I will take up that offer of further conversations on it. In the meantime, I shall briefly address some of the issues raised by noble Lords.
I was grateful to the noble Lord, Lord Adonis, for his support. Yes, these amendments are very close to those tabled in the House of Commons. They are certainly in scope of the Bill, and he will be reassured to know that Chi Onwurah supported them in the House of Commons in February and March, and in fact moved one of them.
I think the noble Lord, Lord Adonis, mentioned the new US-Australia trade war when he meant, I think, the China-Australia trade war. I say that just for the Hansard record. I think that is what he meant. I will leave it at that.
I was enormously grateful to the noble Lord, Lord Alton, for his speech. He has great knowledge of human rights around the world. He is right to say that we have collaborated over a very long period on the situation of the Chinese Uighurs. It saddens me that that seems to have dropped off the agenda completely in the light of the Covid story. From what I read on the internet, those people have higher rates of infection and they were infected in their internment camps and so on. It is something we must continue to watch.
I come specifically to the comments made by the noble Baroness, Lady Morgan of Cotes. I accept that the Bill is a less than ideal vehicle for the passage of these amendments, but I reiterate that they are not wrecking amendments of any sort. They are to strengthen the Government’s hand and to give predictability to providers about the necessary risks that face them as we go forward. She said that the manifesto target was part of the levelling-up agenda to improve connectivity, but I do not believe that United Kingdom citizens who have their personal details stolen or their financial details sold on the dark web and suffer losses would be grateful to the Government for having rolled out 5G perhaps 24 months sooner than if they had used an alternative provider. She and the Government may find themselves on the defensive when such things happen.
The noble Baroness also said that she believes that the decision is right in its assessment of risk, but future risk is always best approached tentatively, after careful evaluation. The most important thing is that the best way to evaluate risks is to have conversations with others who have been victims of the malpractice, particularly when the others are your trusted friends.
That brings me to the remark I find almost patronising on her part, when she warned us that those supporting the Bill in the House of Commons were perhaps part of an agenda to do a trade deal with the US—in other words, she was implying that those of us supporting the Bill here, particularly me, are being naive in our support for the discussions that took place in the Commons. I have pointed out that I do not think that one could accuse Mr Jeremy Corbyn, who added his signature to the Bill, of being desperately keen to do a trade deal with the US, or of being one of the usual suspects in terms of the European Union research group. I can reassure her that not only have I served on the National Security Council, but I first went to China 42 years ago, and I know it fairly well. So I am not walking into this with my eyes closed.
Let me also say, as I am looking at the noble Lord, Lord Clement-Jones, on the screen and having been reminded of his Huawei connection, that perhaps I needed to have declared that I serve as a vice president of the APPG on China, along with the noble Lord, Lord Clement-Jones, who is the vice chairman, if I recall correctly. So I have been engaged in Parliament in a very positive way with China as well.
It is almost trivialising to suggest that the motivation of lawmakers trying to improve legislation in the House of Lords is somehow guided by groupthink, or by a desire to fall into a certain line. All lawmakers across the House are motivated by the desire to do the best by the country, and there is nothing more important when trying to do the best by a country than caring for its national security.
I come to the noble Lord, Lord Livermore, and his questioning of the telecoms security Bill that the Minister has reassured the House will come to us shortly. In response to the question from the noble Lord, Lord Adonis, Mr Oliver Dowden gave repeated reassurances in the House, but only after some considerable pressure, that the Bill would be brought back before the summer.
I would actually be entirely content to deal with the context of the telecoms security Bill only when the House returns in full form, so that we can have the appropriate scrutiny of the Bill that we need in the proper manner. That Bill is of such critical importance to our national security that this virtual proceeding, and allowing Bills to go through on the basis of their being possibly uncontroversial, simply will not do. I say to the Minister that I would rather the Bill came back somewhat later than when the House is not ready to receive it in full, in the normal way.
Let me conclude by thanking the Minister for her very positive tone. I accept that she is eager to engage with those of us who have concerns and reservations, and I will go away and read her comments on these amendments more carefully, and will then consider my response and whether I will bring the amendments back on Report or not. On that basis, I beg leave to withdraw the amendment.
Lord Livermore
My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for tabling and introducing this amendment. It is relatively straightforward, but it could have far-reaching consequences for operators.
As the noble Lord outlined, the Bill currently defines “connected land” as being in common ownership with the target premises. Operators who have contacted us have expressed concern that this will limit their ability to roll out new technology, particularly in rural areas, where infrastructure may have to cross multiple fields to reach the desired building. They believe that removing the common ownership provision will also help accelerate their deployment of high-speed services to small businesses and other commercial properties.
Given our previous debates on the economic benefits of improving connection speeds, we should ensure that this Bill facilitates such work. There was clearly a rationale for including this provision in the Bill, so I hope that the Minister will be able to clarify the position and its practical impact on the provision of new connections. Should she accept that the requirement may have unintended consequences on the ability of operators to roll out new infrastructure, I hope that officials can look again at the detail and engage with the sector to address its concerns.
Baroness Barran
I thank the noble Lords, Lord Clement-Jones and Lord Fox, for tabling this amendment. The noble Lord, Lord Clement-Jones, asked for a positive and ambitious response—I think those were his words. I hope to give him a positive response, but I fear that it will be a practical one.
This amendment seeks to understand our thinking on the key concepts of connected land and common ownership, and the impact of this link on the speed and ease of the rollout of gigabit-capable broadband. As the noble Lord, Lord Livermore, outlined, the concepts of connected land and common ownership form a vital underpinning of the Bill.
It may be helpful to noble Lords if I give a slightly more technical explanation of the concept of connected land. In technical terms, let us consider land in respect of which an operator wishes to have code rights, which we will call Land A. In order for Land A to be “connected land”, it must satisfy both limbs of the definition set out in paragraph 27B(3) of the code. It is not enough that it is used for access to, or otherwise in connection with, the target premises—limb (b). Land A must also be in common ownership with the target premises—limb (a).
The concept of common ownership as drafted in the Bill therefore stands and falls with the need for Land A to be held or used for access to, or otherwise in connection with, the target premises, as contained in limb (b).The definition of “common ownership”—as set out in paragraph 27I(2) of the code, towards the end of Clause 1—will catch two pieces of land which have the same freeholder, or which are held under a lease of any sort by the same person. It will also catch two pieces of land where the same person owns an interest in each but at a different level; for example, where a person owns the freehold of one but is the lessee of the other. I am happy to give practical examples of that point if that would be useful to your Lordships.
The connection set out in paragraph 27B(3) of the code is a conjunctive test, so both limbs (a) and (b) are needed for the concept of “connected land” to work. Without that, the essence of the concept of connected land is removed, and it is completely integral. The amendment would remove the requirement for the land to be in common ownership, thus allowing operators to use this policy on any land that exists between their exchange and the target premises. In practice—this is the key reason why the Government do not support the amendment—it would give operators code rights to access land where a landlord was not responsive. A landlord who has no connection to the properties where the operator is going to make their installation could be opened up to potential Part 4A orders, which we believe is disproportionate.
There are other, technical points which could affect the powers in the Bill with the amendment as currently drafted. Paragraphs 27I(2) and (3) seek to define “common ownership” and “relevant interest”. This was designed to ensure that the Bill worked within the different ideas of land ownership in Scotland. The amendment would render those paragraphs ineffective and affect the efficacy of the Bill, particularly in Scotland.
While I recognise that operators are encountering significant problems gaining access rights in situations other than multiple dwelling buildings, this Bill is not the right vehicle for a change as profound as this. My officials have engaged with them, and representatives of landowners, on these points and we are considering what, if any, action could be taken to support delivery if evidence emerges that further interventions are necessary. With that reassurance, I hope that the noble Lord will agree to withdraw the amendment.
The Deputy Chairman of Committees
I understand that the noble Lord, Lord Fox, has indicated that he wishes to speak after the Minister.
Lord Fox
I thank the Minister for her anatomical explanation of the situation. Large lumps of Victorian and Georgian cityscapes have been converted into a multiplicity of dwellings and flats, many of which are going to find themselves unable, within the definitions of limbs (a) and (b) and the rules set out in the Bill, to request access. Is that correct? There is obviously complicated ownership in all such places: perhaps the need to go through one flat to get to another; there may be leaseholds and freeholds muddled up. However, the point of the Bill should be to get gigabit broadband capacity to as many people as possible, rather than rule out everybody except a very pure clay of candidates. Perhaps the Minister is grasping—albeit eloquently—at the wrong end of this stick.
Baroness Barran
I thank the noble Lord for pressing this point. I cannot comment on the specifics of different layouts. As he noted, this is a very complicated area. We have tried to listen to operators on the issue of unresponsive landowners more widely and they have highlighted difficulties where there are owners of third-party land which the operator needs to cross in order to deploy their equipment.
As I said, we are very concerned that the risk of a non-responsive landlord and the operator then getting code rights would be disproportionate and would unbalance the Bill. However, the noble Lord makes a fair point about the spirit of the Bill being to open up access. We certainly share that goal and I will take his points back and consider them further.
Lord Fox
I agree with the two previous speakers. The Bill would mean that a landlord could be considered responsive simply by acknowledging the request notice in writing without taking the engagement further. In fact, it is pure territory for what I would call passive-aggressive obfuscation—a serious of meaningless letters going back and forth but leading, in the end, to absolutely nothing. It would mean, in the end, the operator being unable to meet the needs of the potential customer. Frankly, the operators have so many other options at the moment that they would simply walk away and go where it is easier to install, leaving yet another person disfranchised from the digital economy. We have heard from operators that they are identifying landlords who will potentially act in this way.
Again, this is a proving amendment; I thank the noble Lord for moving it. What constitutes a meaningful response that moves this forward? Put simply, a passive-aggressive, obfuscatory approach will mean that, in the end, a bad landlord or a landlord who really does not want to enfranchise their tenants will win.
Baroness Barran
My Lords, I thank noble Lords for tabling the amendments, which would require a landlord to respond to the substantive point of the notice—that is, providing access. The amendments seek to examine our thinking on allowing a landlord to remove themselves from the scope of Part 4A simply by responding to the operator’s notice. The Government understand and appreciate the intention behind the amendments, but there is the potential for unintended consequences, if the noble Lord, Lord Clement-Jones, will forgive me for saying so.
The Bill was created to address the specific problem of the repeatedly unresponsive landlord. That is what telecoms operators have told us is one of the biggest issues they face when it comes to rolling out networks. The Bill was not intended to offer a solution to instances where a landlord may take longer than the operator would like to agree to the terms proposed in their request notices. The noble Lord, Lord Fox, gave the example of the passive-aggressive landlord, but there could be absolutely fair instances where a landlord sends a holding response because they are seeking legal advice. The Bill gives flexibility for that, but its real focus is on incentivising landlords and operators to engage with each other in the first place. We believe that the Bill, as drafted, reflects that crucial distinction.
As was discussed in the debate on previous amendments, we are aware of the challenges that some operators face in reaching agreements with landlords. We have held numerous discussions with a wide range of stakeholders since the implementation of the reforms to the Electronic Communications Code in December 2017, and we continue to do so, but we do not think that this Bill is the appropriate vehicle for addressing the wider range of ongoing access issues. Any broader changes to the code would need to be carefully considered and consulted on, but if we saw sufficient evidence that there is a problem, we would of course consider what intervention to take.
Lord Fox
I am grateful to the noble Lord, Lord Adonis, for introducing this, because it throws up a sort of paradox—although the noble Lord did not mention it—and I am interested to know the Government’s view on it. In certain categories of installation government money is going across either directly or through local authorities into investment in installation and hardware. Are the Government suggesting that state-subsidised and state-supported hardware would not be mandatorily interchangeable?
Baroness Barran
My Lords, I thank the noble Lords, Lord Adonis, Lord Griffiths and Lord Stevenson of Balmacara, for tabling Amendments 15 and 16. As I have said several times in Committee, the aim of the Bill is to support lessees in occupation to access the services they request from the providers they want. As drafted, we believe the Bill already ensures that they are not locked into services provided by a single provider. Nothing in this Bill prevents a person with an existing gigabit-capable—or indeed any—connection from requesting another service from another network provider. Nothing in the Bill prevents such a provider from requesting code rights from a landlord. If the landlord repeatedly refuses to engage with that provider, then, as we discussed earlier, that provider could apply for a Part 4A order of their own to deliver the service.
I understand that operators may be concerned that certain of their competitors may install their digital infrastructure in such a way as to physically prevent others installing their own. However, we consider that this issue could be better dealt with through the terms of an agreement imposed by a Part 4A order. Those terms are to be specified in regulations made subject to the affirmative resolution procedure. Noble Lords will be aware that the Delegated Powers and Regulatory Reform Committee recently considered the Bill and concluded that there was nothing in it to which it wished to draw the House’s attention. Noble Lords may also be aware that that particular regulation-making power is subject to a consultation requirement that is expressly set out in the Bill. This reflects our concern and commitment to get this crucial aspect of the Bill’s practical operation right. The Bill therefore already envisages that the views of interested parties will be invited before the regulations are made.
With each operator undertaking works in a slightly different manner and there being a number of differences between network infrastructures, it is exceptionally difficult to place into primary legislation a requirement for operators to undertake works in a specific way or in a way that cannot easily be circumvented, for example by an operator stating that it was not “reasonably practicable” to select and install apparatus. Furthermore, far from improving competition and access to gigabit services, the amendment may have the unintended consequence of doing the opposite.
The noble Lord, Lord Adonis, referred to the words of my honourable friend the Minister for Digital Infrastructure in the other place, when he said that much of the cost to operators of connecting premises is in the initial installation. The noble Lord challenged whether this was an anti-competitive statement, if I followed his comments accurately.
Lord Adonis
I am extremely grateful to the Minister. As she says, there are drafting issues, but I am sure that if they were the only concern we would all be happy for the Government to do the drafting for us. There seems to be a contradiction in the Government’s position. May I ask the Minister to clarify it? Is she saying that under the Bill as drafted, and the terms of the agreement with the proposed Part 4A order, alternative operators will or will not have easy access to new infrastructure? To prevent people unfairly undercutting initial investors, it is important that they should not. It is not clear to me and that point seems to go to the heart of the Government’s argument. Are they arguing that operators will have easy access, so that what is proposed here is irrelevant; or that operators will not have easy access, which is intentional because if they did, there would be undercutting? Which of those is the Government’s position?
Baroness Barran
The Government’s position is that there is fair access, in that any provider can apply for a Part 4A order of their own to deliver a service. Alternative operators have equal access to the existing operator or other alternatives.
Lord Adonis
That is a very helpful response because it seems to indicate a possible way forward in a redrafted amendment that underpins fair access. In my proposed new sub-paragraph (3) to new paragraph 27F, instead of saying
“that alternative operators can easily install the hardware”
it should say that they can install their hardware on a fair basis. My sub-paragraph (4) would then be the definition of fair, to be provided by Ofcom. I do not want to press the Minister too far, but can she at least undertake at this stage to look at such an amendment, without making any commitments to come back on Report, and write to me about it?
Baroness Barran
What I am saying is that we believe that we already have a fair system and that this could best be explored in the accompanying regulations. However, I will be happy to write to the noble Lord on the point.
Lord Fox
Amendment 17 seeks to remove the 18-month time limit, while Amendment 19 seeks a mechanism that would extend it. Both amendments are guided by the same curiosity. In a sense, what was driving the Government’s objective in including the limit of 18 months? As the noble Lord, Lord Stevenson, asked, why was the period of 18 months chosen? Why not 20, 16 or 28? What was the economic analysis that arrived at 18 months? In consulting with operators, what was it that any operator said that encouraged the Government to put this clause in? I cannot imagine it was anything, so I can conclude only that it was about what grant is set. We are back on the same balance of the equation in terms of where the Bill balances itself between the granters and the operators, who are essentially the champions of the consumer in this process.
Can the Minister explain what it was that the granters, landlords and owners put to the Government that pushed them into putting in this 18-month time limit? As the noble Lord, Lord Stevenson, said, it will seriously compromise the investment prospects for operators, particularly in difficult or harder-to-reach areas––possibly places like where I come from in Herefordshire. Why would an operator invest huge sums of money without any security, knowing that in 18 months’ time that investment could be written down to zero? These amendments together are all part of the same spirit of inquiry. What was the Government’s thinking when this was included in the Bill?
Baroness Barran
I thank noble Lords for tabling Amendments 17 and 18. I will do my best to address the very valid points raised.
I will clarify the intention of the amendments. Amendment 17 seeks to examine the rationale for placing a maximum time period of 18 months for the interim code rights granted under a Part 4A order in the Bill. Amendment 18 would require the Government to consult on the maximum time period for which the interim code rights should last. I want to highlight, in response particularly to the point made by the noble Lord, Lord Stevenson of Balmacara, that the Government have already consulted on the principle that there should be a period during which code rights arising from this Bill should last.
In the original consultation for this policy in October 2018, we proposed that these rights should be enjoyed until an agreement was reached with a landowner. A number of responses to that consultation made compelling arguments that we should consider imposing a maximum time limit. This was to ensure that operators continued to engage with landowners to try to reach a permanent agreement, and to ensure that the important balance of rights was maintained. I hope noble Lords agree that an indefinite time period could risk being open to abuse, deliberate or otherwise, and importantly potentially leave both landowners and operators with great uncertainty.
It was never the intention that this process should replace the existing process under the code, by which an operator can apply to the court to have permanent code rights imposed. That process requires the judiciary to carefully consider the merits of the case before it, and to make a judgment on which rights should be imposed, and potentially any compensation or consideration to be paid. The process envisaged under a Part 4A order requires the judiciary––in this case, the First-tier Tribunal––to be satisfied that the evidential requirements laid out in the Bill have been met.
This leads us to the maximum 18-month time limit that we have settled on. Following consultation and subsequent stakeholder engagement with representatives of operators and landowners, they informed us that, in practice, when a landowner does not respond to requests for access, if an operator continues to make attempts to engage, the majority of landowners will eventually respond within approximately 12 months. Setting a slightly longer time period gives the operator a degree of flexibility. Another reason for the decision to set the time limit for the Part 4A interim code rights at 18 months was to provide certainty to consumers. Most consumer broadband contracts last for either 12, 18 or 24 months. Placing the time limit at 18 months, depending on the speed with which the operator can enter the property after a successful application, will allow consumers to enter into a standard contract for either 12 or 18 months, enjoy the special discounts offered by retail broadband providers for those taking out such fixed-term deals, and be confident that their service will be uninterrupted for its full duration.
I ask your Lordships to note that the Bill contains a clear power to make regulations to specify the period for which code rights arising from the making of a Part 4A order are to last. New paragraph 27G(3) of the code, as inserted by Clause 1 of this Bill, makes clear that the specified period is to be no more than 18 months, and it will be for the regulations made under that power to specify the period itself.
Lord Fox
I thank the Minister for her answer; I felt the language was revealing. Perhaps I am confused and the legislation has confused me, but the way in which she described the process was as if she was trying to calm down someone who did not want this to happen, rather than encourage someone who did. “No more than”, “a maximum of”—this is language that I would use if I were trying to pacify someone who did not want this to happen, which perhaps is what is happening. She mentioned that there had been a number of responses that led to the 18-month period being adopted. Perhaps she could indicate, without revealing exactly who those responses were from, which sector they came from—was it the operators, or was it landowners and potential granters of this technology?
I think that to use legislative nit-picking, if the Minister will excuse the phrase, to unseat probing amendments such as Amendment 19 is a little below the belt. The idea is not to complete a work of drafting genius; it is to get the Government to commit time to produce something that instils some flexibility into the Bill and provides an opportunity to extend things when they need to be extended and puts the courts and due process, if noble Lords will excuse the phrase, in place in order for that to happen.
Baroness Barran
I thank the noble Lord for his remarks. Just to clarify, I am sorry if the language sounded pacifying. The noble Lord will remember that in an earlier amendment I talked about the spirit of the Bill being about incentivising communication between landowners and operators. The aim of this is to bring clarity and certainty to all involved, including consumers.
In the consultation we had responses from landowners and local authorities. The noble Lord will not be surprised to know that some who responded thought this was too short a period and some that it was too long, so this feels like a bit of a Goldilocks moment. There is a balance to be struck between the flexibility that the noble Lord rightly points to and clarity and certainty. Based on the consultation responses that we received, we hope that we have achieved that balance.
Lord Stevenson of Balmacara
I am very grateful to all those who have contributed, particularly the Minister, whose detailed explanation deserves further consideration and I will read it very carefully in Hansard. I am also delighted to have escaped at least one amendment that did not get criticised for having unexpected consequences, so I must have got something right on that one.
This is very difficult to get right and I appreciate the difficult issues that have been raised. I will reflect on what has been said. In the meantime, I beg leave to withdraw the amendment.
Telecommunications Infrastructure (Leasehold Property) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 2nd June 2020
(4 years, 6 months ago)
Lords ChamberTelecommunications Infrastructure (Leasehold Property) Act 2021 Read Hansard Text Amendment Paper: HL Bill 107-II Second marshalled list for Virtual Committee - (28 May 2020)
This text is a record of ministerial contributions to a debate held as part of the Telecommunications Infrastructure (Leasehold Property) Act 2021 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Lord Livermore (Lab)
My Lords, we support this attempt to probe the Government on the practical implications of the compensation provisions laid out in new paragraph 27H. Not qualifying the types of losses or damages that are subject to compensation seems a curious choice when amendments to simplify processes are frequently resisted on the basis that, while often cumbersome, legislation needs to set clear parameters for the processes it establishes. This is not a concern that has been raised directly with us, but it seems a recipe for potential bad blood between lessees and operators. While there will inevitably be some scrapes along the way, we need to ensure as harmonious a relationship as possible.
I hope the Minister will be able to point to provisions elsewhere in the parent Act, or to established precedents, to assure us and the noble Lord, Lord Clement-Jones, that this has been fully considered and is not likely to become an issue once the new measures are operational.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)
My Lords, I thank the noble Lords, Lord Clement-Jones and Lord Fox, for tabling this amendment. As your Lordships have heard, this amendment seeks to test our thinking on the types of damage for which compensation will be paid and for which operators will be held liable and—as the noble Lord, Lord Clement-Jones, mentioned— to establish whether this could lead to any delays in implementation on the part of operators.
This amendment would mean that the courts would be able to award compensation only in situations in which a landowner is able to demonstrate a direct loss. I understand that the amendment aims to limit the scope, and in turn the extent, of compensation that may be paid by an operator in respect of loss or damage sustained by them. I understand that intention and the concerns that underlie it. However, I do not think that those concerns are founded in this case, and I will try to set out the reasons for that.
Telecommunications Infrastructure (Leasehold Property) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 29th June 2020
(4 years, 5 months ago)
Lords ChamberTelecommunications Infrastructure (Leasehold Property) Act 2021 Read Hansard Text Amendment Paper: HL Bill 107-R-I Marshalled list for Report - (24 Jun 2020)
16:36 - Division conducted remotely on Amendment 1 - Ayes: 294 / Noes: 234 - Amendment 1 agreed.
20:06 - Division on Amendment 7 - Ayes: 279 / Noes: 227 - Amendment 7 agreed.
This text is a record of ministerial contributions to a debate held as part of the Telecommunications Infrastructure (Leasehold Property) Act 2021 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Lord Livermore (Lab) [V]
My Lords, I am grateful to the noble Lords, Lord Clement-Jones and Lord Fox, for tabling Amendment 1, which would have a very similar practical effect to Labour’s Amendment 2. My noble friend Lord Stevenson and I also tabled Amendment 3, which would enable operators themselves to initiate their Part 4A process. While we feel very strongly about this, it is one of the many issues that could be addressed as part of the review envisaged by Amendment 7, so I will not detain the House by repeating past arguments.
Returning to Amendments 1 and 2, this is an area that has been probed extensively during the Bill’s Commons stages and in Committee here, and where fundamental differences remain. Despite what I feel are very clear arguments in favour of amendments giving certainty to those who rent, the Government have resisted changing the Bill at all stages. When responding to a similar group of amendments in Committee, the Minister said:
“Our concern is that the amendments as tabled would have a significant effect on the Bill. They would significantly expand the scope of who is able to make a service request”.—[Official Report, 19/5/20; col. 1031.]
That is, after all, what we are trying to achieve, and I therefore find it puzzling that we find ourselves in this position.
The Minister went on to suggest that broadening the Bill’s scope could, for example, enable a tenant renting from an individual who is illegally subletting a property to request a broadband connection. While we do not condone such practices, there are, in my view, several issues with this argument. First, I do not believe that the number of such cases would be particularly high, whereas the number of renters who would benefit from the right to request a service is likely to be significant. The risk is very definitely outweighed by the reward. Secondly, the existence of such issues should not preclude people who are renting a property in good faith from being able to access quality telecommunications services. If there are issues with particular landlords, that is for local authorities to resolve. If the problem is bigger than that, Whitehall has responsibilities too. Thirdly, if the department felt that there were legitimate deficiencies in the drafting of earlier amendments, it would have been possible for the Government to table their own text for consideration today. No amendment was offered because renters do not seem to figure in the department’s so-called balanced and proportionate approach.
I do not think any of those arguments from the Government are particularly convincing, and the strength of the Government’s opposition to straightforward, well-intentioned amendments casts doubt on Ministers’ insistence that they will take any and all available opportunities to widen access to high-quality broadband and mobile connections. I hope the Minister feels able to accept either Amendment 1 or 2 today. She could do so and, if necessary, table tidying-up amendments at Third Reading. If that is not the case, I urge your Lordships to back the noble Lord, Lord Clement-Jones, should he choose to test the opinion of the House.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)
My Lords, I shall speak first to Amendments 1 and 2. I thank noble Lords for again bringing forward these amendments, one of which is identical to an amendment tabled in Committee. I note that amendments to this effect were also tabled in Committee and on Report in the other place. At the fourth go around, I will do my best to clarify our arguments more effectively.
As I said earlier, I believe that the intention in tabling this amendment is to ensure that this Bill benefits those who rent their homes. The noble Lord, Lord Clement-Jones, quoted from my letter on this, and I agree entirely. However, as I stated in Committee and then in the correspondence with which I followed up, the Bill already has within its scope many of those who rent by virtue of the term “lessee in occupation”. The Bill makes it clear, in paragraph 27B(1)(a) of the code it inserts, that
“premises within the scope of this Part are occupied under a lease”.
A tenancy agreement, which also provides for exclusive possession, is a form of lease. Any tenant with exclusive possession is therefore in scope of this Bill, and no further provision needs to be made in this Bill for such a person.
The noble Lord, Lord Livermore, and my noble friend Lord Naseby both questioned the Government’s commitment to expanding access to broadband, and my noble friend Lord Naseby and the noble Lord, Lord Clement-Jones, quoted multiple examples of complexities in tenancies, but this Bill is about simplicity. There is one principle on which the ability to use a Part 4A order stands or falls: exclusive possession.
Conversely, a tenant who holds a licence—a lodger, for example—is not within the scope of the Bill, because a licence does not give exclusive possession. To be clear: that does not preclude them from contacting their licensor to request a service. I do not think it is possible to be much clearer than this. I realise that the noble Lords may be seeking to ensure that there is no ambiguity and that the legislation provides judges with all the information they might need to enable a swift and easy decision; I understand that motivation. However, I believe we need to trust the specialist judges in the First-tier Tribunal in England and Wales and those sitting in equivalent courts elsewhere in Scotland and Northern Ireland, who deal regularly with such matters.
To be as clear as possible, I will cover some of the points that I alluded to in my letter and that the noble Lord, Lord Clement-Jones, raised. For the avoidance of doubt, not all tenancies need to be in writing or formed by deed, and the case law is relatively settled in relation to this. As the noble Lord, Lord Clement-Jones, mentioned, the Appellate Committee of the House of Lords, in its judgment in Street v Mountford in 1985, found that an agreement is a lease if it provides for the following four things: first, exclusive possession; secondly, of a defined premises; thirdly, for a fixed or periodic term; and fourthly, at a rent. This is a matter of substance rather than form; it does not become a lease simply if the parties describe it as a lease. In a later case, the Court of Appeal held in Ashburn Anstalt v Walter John Arnold and WJ Arnold & Company Limited in 1989 that there is no requirement that a lease reserve a rent. As I said earlier, the distinguishing feature of a lease is that the tenant has exclusive possession of a property.
Pegging the Bill to the concept of a lessee in occupation therefore ensures that the Bill includes tenants who rent under assured shorthold tenancy or assured tenancy agreements—which, as many noble Lords will be aware, are the most common forms of tenancy agreements. It also includes tenants at will and renewable tenancies, in so far as the tenancies that are renewable had provided for exclusive possession in the first place.
To be clear: we believe Amendment 2 would expand the scope—that is clearly its intention. It would be extended to include those who occupy a property without exclusive possession and therefore under a licence, which would include lodgers, people staying in holiday cottages and those staying in hostels. That is to say, the amendment would provide someone who may be a temporary guest in someone else’s home with powers over that property. I am sure your Lordships would agree that this is neither fair nor appropriate. The “lessee in occupation” allows this Bill to fit within the Electronic Communications Code while also describing that limited but nevertheless still important role for the person living in the property.
Amendment 2 would considerably increase the ambit of the Bill and make it very different from the model consulted on. This is something one should be mindful of when dealing with matters that consider property rights. It should also be noted that, for the reasons I have previously set out, Amendment 1 is not necessary because if the target premises are already “occupied under a lease”, it follows that the person so occupying will have exclusive possession. That is because the existence of exclusive possession is one of the key elements of a tenancy agreement constituting a lease rather than a licence. In a letter dated 9 June 2020, we sought to explain this to all noble Lords who had expressed an interest in this Bill in Committee. To be clear once again: the Government’s intention in bringing forward this legislation is that those who occupy a flat or apartment under a tenancy agreement are in scope of this policy.
The noble Baroness, Lady Meacher, asked about the criteria for including things such as business parks. I think I said at an earlier stage of our debates that we would wait for evidence that there is a genuine demand and need to do that. The spirit of this Bill remains: we want to expand access to broadband while maintaining the balance in the relationship between landowner, operator and tenant.
My noble friend Lady McIntosh asked whether this would create further delay from the landlord. The whole point of this Bill is to try to make sure that people living in blocks of flats can access broadband in the timeliest way possible. I hope noble Lords are now assured by the fact that the Bill as drafted already works in respect of tenants and understand the reason behind “lessee in occupation” and why it may be a mistake to seek to extend the scope in the manner proposed.
I now move on to Amendment 3, which would allow telecommunications operators to apply to the courts for a Part 4A order without requiring a lessee in occupation in the property to request the provision of a service from an operator. It would therefore allow the operators themselves to determine whether the connection of the property to their network is in the public interest, in order to commence the Part 4A process. I note again that this amendment is identical to one tabled in Committee and similar in concept to others tabled throughout this Bill’s passage in both this House and another place.
I appreciate the intention behind the amendment, which is to remove what noble Lords see as an unnecessary step in the process, and I am well aware that this is a point on which telecoms operators have been particularly active. However, I cannot support the amendment.
Lord Parkinson of Whitley Bay
My Lords, I am conscious that we have had nearly an hour’s debate already on this and have a large number of noble Lords who wish to speak to this amendment. I appreciate that one of the difficulties of our current arrangements is that noble Lords might feel they have to make speeches of considerable length to pre-empt what my noble friend the Minister might say. The Companion allows a Minister to speak early if it might assist the House so, with the leave of the House, I suggest that she makes her speech at this point, to cover points that noble Lords might be anticipating.
Baroness Barran
My Lords, I thank the House for the opportunity to respond to this important debate at this stage, and the noble Lord, Lord Alton, for his very generous words. I found the meetings with him and the noble Baroness, Lady Falkner, really important and valuable. Again, I reiterate my respect for everything that he and his co-sponsors are doing to raise awareness of human rights abuses all around the world, even though many of the examples that we have listened to this afternoon are hard to hear.
In responding to the contributions from your Lordships, I will first address the invitation from the noble Lord, Lord Alton, and his co-sponsors to bring this issue back to the House on Third Reading—in his words, “at this late hour”. Then I will turn to the implications that this amendment would have on the operability of the Bill. This Government take human rights immensely seriously, and that is why I entirely support all noble Lords in bringing these issues to the fore, and I understand why they are bringing forward this amendment so that this important discussion can take place.
From the outset, I say that I have definitely felt the strength of feeling conveyed by your Lordships, whether virtually or physically, in the debate today. I very much welcome the invitation from the noble Lord, Lord Alton, to meet to work on this issue ahead of Third Reading, and to discuss it with him and his co-sponsors in greater detail, with the aim of addressing it in a manner acceptable to the House. I hope that clears up that point at this stage.
I return to the amendment. It is difficult when all my arguments have already been put so eloquently by your Lordships, but I will try and explain, genuinely, that we face twin difficulties in accepting the amendment as it stands. The first, importantly, is that we do not believe that it will achieve the aims of the noble Lords who support it. Secondly—and I absolutely understand that this is not your Lordships’ intent—it will wreck the purpose of the Bill, which is to facilitate the provision of fibre broadband to leasehold properties, starting with blocks of flats.
Perhaps I should repeat at this point that the Bill is about broadband, not about 5G. A number of noble Lords referred to 5G in their speeches and, to be clear, the Bill does not cover 5G.
Regarding the impact of the amendment in practice on human rights abuses, I urge your Lordships to note that the Bill is not about awarding contracts to particular vendors of equipment; as we have discussed, it is about making it easier for telecoms operators—the companies that, as my noble friend Lady Morgan said, are working so hard to keep this country connected during a public health emergency—to apply property rights to install a connection when a landlord is repeatedly failing to engage with them.
The noble Lord, Lord Adonis, mentioned the importance of finding alternative providers of equipment and, as my noble friend Lady Morgan pointed out, we are actively working on that. We have plans in process to promote it, but this is not a quick or instant win. Rather—I think the noble Lord, Lord Alton, referred to this—the amendment will impact companies such as Openreach and Virgin Media, which I think account for about 96% of the infrastructure in this country. It will not bite directly on the companies about which noble Lords have expressed their concern today.
My noble friend Lord Forsyth suggested that companies such as Huawei and, I assume he implied, other high-risk vendors could grow in the network. My noble friend will remember that in January the National Cyber Security Centre put a limit of 35% in our networks for high-risk vendors and is banning those vendors from the core of the network.
I will come back in more detail to the upcoming telecoms security Bill, which a number of your Lordships mentioned, but it is fair to say that it will give more clarity and certainty to operators about the use of high-risk vendors. Therefore, until that legislation has been passed, it is unlikely that operators would make firm commitments with regard to the future procurement of equipment, so the trend is down rather than up.
I hope this helps to clarify why the amendment will not address the truly awful practices raised by the noble Lord, Lord Alton, and others and will not affect the equipment manufacturers that may be complicit in human rights violations. This leads me to my second point, which is the inadvertent outcome of the amendment. That will be to take away the safety net we seek to provide to those living in blocks of flats who, due to an unresponsive landlord, are being left behind in our national upgrade to gigabit-capable broadband. Our concern is simply that operators will not use Part 4A orders and will continue their activity of seeking to expand their networks across the country. That will almost certainly leave behind the 14% of the population who live in blocks of flats, because there is an undoubted chilling effect that the uncertainty in the law created by the amendment will have.
Noble Lords will be aware that the Internet Service Providers’ Association, which represents the operators in the field, has expressed its concern that,
“in its current wording, amendment 5 would introduce legal uncertainties and as drafted could open network operators to unforeseeable legal challenges. As a result, we believe it would be less likely that operators would seek to make use of the powers in the Bill. This would reduce the effectiveness of the Bill and obstruct the delivery of gigabit connectivity across the UK”.
Our understanding is that these challenges would relate to potential breaches of different human rights from those debated today. Due to the ambiguity of the amendment’s drafting, the disputes over its wording could generate legal wrangling over whether the amendment relates to domestic human rights such as the right to “peaceful enjoyment of property”. I am happy to give your Lordships examples of this, but the key point is the uncertainty that would be created. That uncertainty is mirrored in the fact that there is currently no agreed definition of telecoms infrastructure, so the operators would be concerned, given the inter- operability of different parts of the network. The noble Lord, Lord Alton, gave an example of exactly that—there are parts of the network over which they have no control. I stress that we do not believe that this is what the noble Lords who tabled the amendment intended but it is the consequence that we see in practice. We believe that, to define telecoms infrastructure, litigation would need to be relied upon to provide that clarity, which could take a long time. In the meantime, many families would miss out on access to broadband. So, our concern is that the Bill would not be used, which means that the amendment would not have the intended effect.
I hear your Lordships’ claims that the issue requires urgent redress. That is why it is being been raised in this Bill. I understand and have sympathy for what they are saying in this regard; as I said at the beginning of my remarks, I would be very happy to meet to find a way to bring this issue back at Third Reading, in a manner that is acceptable to the House. However, we are saying that this amendment risks restricting broadband access for 10 million people living in blocks of flats—people who, as we have discussed several times recently in the House, are most in need of the opportunity to participate in society, particularly in these extraordinary times.
We want respect for human rights to be at the centre of all business that takes place in this country. It is not right, nor, in our opinion, good lawmaking, to have a provision in legislation focused on a very narrow and specific problem faced by residents of blocks of flats who are currently struggling to get a broadband connection. The Government absolutely share noble Lords’ concerns about human rights and modern slavery. We are fully committed to promoting respect for human rights in business and eliminating modern slavery from the global economy. Where we have concerns, we always raise them in national and international forums.
Given the provenance of some telecommunications equipment, I understand that noble Lords are particularly concerned about the situation facing the Uighur population in China. The Government have raised serious concerns about the situation in Xinjiang on numerous occasions, including with the Chinese Government directly. We have serious concerns about the human rights situation in Xinjiang, including the extra-judicial detention of over a million Uighur Muslims and other minorities in so-called political re- education camps, the systematic restrictions that we have heard described today on Uighur culture and the practice of Islam, credible reports of forced labour and extensive and invasive surveillance targeting minorities.
We have consistently demonstrated global leadership in our efforts and continue to evolve our approach. The UK was the first state to produce a national plan to respond to the UN’s guiding principles on business and human rights. The plan sets out our expectations of UK businesses’ conduct; we updated it in 2016 and continue to develop our approach, particularly concerning how we incentivise business action to prevent modern slavery in global supply chains.
Lord Stevenson of Balmacara (Lab) [V]
My Lords, this has been a very interesting debate, not least, as others have said, because of the way in which it has been structured. I do not think anybody who has seen “Hamlet” will have seen the death of Hamlet and the ensuing chaos placed right at the beginning of the play, but things seem a bit like that tonight. I jest—I should not do so because it is a very serious issue—but in some ways it was not unhelpful to have heard the Minister earlier on. She was certainly able to reassure us that it is in her mind to make an opportunity for this issue to come back at Third Reading; I hope that the Government back this when she responds.
Between now and then we may have a bit more time than we originally thought to engage with those who have spoken today, as I believe there is no date yet set for Third Reading. The noble Lord, Lord Alton, in particular made a wonderful speech and covered the ground so carefully, but others came in behind him and raised issues of substance. I hope these will be put forward in the best possible spirit as a rallying call for those who have concerns in this area to seize this opportunity, even though it is not perfect, to begin to stake out ground that should be at the heart of all our engagements with manufacturers and others concerned with the sorts of issues that have been raised today.
I ask the Minister to be as explicit as possible in her responses to a number of points. Is she content for this issue to come back to the House at Third Reading in a form that allows the noble Lord, Lord Alton, to raise the issues covered by his amendment? We do not have a date for that. Can she assure us that we will have time to meet the noble Lord, Lord Alton, and his co-sponsors, and to engage with other voices in your Lordships’ House who care about this, with the aim of finding sufficient common ground to table an amendment that will do justice to the case that has been made today? Will she confirm that her earlier statement, mid-debate, did not stifle this process? I suggest that, as a result of the amendment which we hope to get together to discuss, we start by ensuring that at least we have a process in Parliament that clearly demonstrates that Ministers take Section 54 of the Modern Slavery Act seriously, and are prepared to bring their decisions to Parliament for discussion.
Baroness Barran
My Lords, I start again by thanking your Lordships for giving me the opportunity to speak, rather unusually, in the middle of this very important debate. In no way was there any intention to shut down the debate. I hoped that clarifying the Government’s position would allow noble Lords to focus their remarks. I offer my thanks again for that flexibility.
I would like to address two things. First, a number of noble Lords raised the point about companies needing to do the right thing. Of course the companies that we are talking about are in compliance with the Modern Slavery Act and Section 54 but, as the noble Lord, Lord Alton, knows better than probably the rest of us put together, there are problems and issues with the teeth of Section 54; that is, in a way, at the heart of his amendment and will be at the heart of our response to the consultation later this summer. Secondly, I would like to reflect on the comments of the noble Lord, Lord Stevenson, and others, so as to bring absolute clarity to my remarks.
I hope that I echo exactly the suggestions of the noble Lord, Lord Stevenson, if I confirm that I am happy and content to bring this issue back at Third Reading. We will also allow time for the noble Lords, Lord Alton and Lord Stevenson, and others who have spoken today to address the issues raised by the noble Lord, Lord Alton, in his amendment. We will endeavour to find all the time possible to have sufficient ground to bring back a government amendment. I hope that the concerns of the noble Lord, Lord Alton, will be rooted in that amendment and with that, I ask him to withdraw his amendment.
Lord Alton of Liverpool
My Lords, we have been privileged to hear outstanding speeches from many outstanding Members of your Lordships’ House. We have heard moving, powerful and well-informed contributions throughout the debate. I have great admiration for the sincerity and integrity of the Minister, and the House will be relieved to know that the word “but” does not now follow—at least, not just yet.
I am not precious about the wording of the amendment but I am determined about the principle. The Minister will understand that the House has been determined about that in speech after speech today. The frustration that her noble friends Lord Cormack and Lord Balfe expressed about our procedures and the inadequate way—inevitably, because of the current circumstances—in which we have dealt with this has, I think, not been lost on her either. I have to tell the Minister that a flurry of messages I have been receiving, from those who contributed to the debate and people outside the Chamber, are saying “Please press this to a vote”. It is therefore a tricky thing to decide what to do in these circumstances. After 40 years of battles on the Floors of both our Houses, I am long enough in the tooth to recognise a change of heart when I see it. I see the beginning of a change of heart in what the Minister has said to us today. I am pragmatic about these things; I believe one should accept that in the spirit in which it has been given and try to build on it.
This is where the “but” falls. The four sponsors of the amendment may be called many things—indeed, we all have from time to time been called many things—but I think we have never been described as naive and none of us are gullible. We are all seasoned in the practical art of politics and will of course be wary of Greeks and their gifts. In other words, if the Government are able to produce a human rights threshold with teeth —as the Minister has been urged to do by the noble Lord, Lord Stevenson, speaking from the Opposition Front Bench; by the noble Lord, Lord Fox, speaking for the Liberal Democrats; by my noble friend Lady Falkner and many of the Cross-Benchers who contributed to the debate; and, most notably really, by many of her own noble friends because this goes left, right and centre, not just in your Lordships’ House but in the House of Commons—we must find a way to catch the sharks but not the minnows. That is at the heart of what the Minister was saying, and I agree with her about that. We have to catch those who collaborate, aid and abet in these egregious violations of human rights that we have heard about today.
If the Minister is able at Third Reading to come back with an amendment that does those things, then I for one will be the first to stand and applaud it, and to support her. If she is unable to do that, this amendment, thanks to the procedures of your Lordships’ House, will stay in contention. It is important for some of our noble friends and colleagues to realise that if we vote now and this amendment is lost, that will be the end of the matter. There is nothing then to send back to the House of Commons; nothing that people in another place can consider further. But if the matter stays in contention, as the Minister has offered, for another week or 10 days—however long it is before the Bill comes back for Third Reading—then under our procedures this amendment will appear again on the Order Paper, alongside whatever she is able to provide for us.
I hope that the Minister can provide an amendment that cuts to the core of what my noble friend Lady Cox described as a battle of beliefs. I hope that it will do something to overcome some of the issues that the noble Baroness, Lady Morgan, raised. These are not insuperable problems; they can all be overcome. Perhaps most importantly of all, such an amendment would set a benchmark and a threshold, showing that we will not do business with people who incarcerate, torture, abduct and silence. We are not prepared to tolerate those things—why should we?
Our values are something that this House has stood for down the generations; although those values have sometimes been tarnished, generally, we have tried in this parliamentary democracy to show what it is we believe in. We have been united in that, in good times and in bad. However, I fear that we have had a crisis of belief. In recent times, we seem to have forgotten the nature of liberal democracy and the things that we stand for as a nation: the rule of law and human rights. My noble friend Lady O’Loan spoke so eloquently about such universal values, as enshrined in the 1948 Universal Declaration of Human Rights.
This amendment is a modest attempt—in this Bill and in all the Bills that will follow, on this issue and others—not just for a review, as some have called for, but for a legislative provision with teeth. We have an opportunity. Because of the good will that the Minister has shown, and because I am not naive or gullible and know that there will be a chance to come back on another occasion to both this amendment and to whatever the Government can offer, we will postpone—not cancel—the Division. On that basis, I beg leave to withdraw my amendment.
The Deputy Speaker
Let us see if we can get the noble Lord, Lord Adonis, back. No? In that case we will hear from the Minister.
Baroness Barran
My Lords, Amendment 6 raises the important issue of competition, about which I think we are all in agreement. Of course the Government think that no operator should be able to prevent another from providing their own service to potential customers living inside a building. We believe that the Bill already ensures that no one is locked into services provided by a single provider. It allows for subsequent operators to apply for and make use of Part 4A orders in the same block of flats, and regulatory measures are already in place to ensure that operators, whenever they install their equipment, not just in this scenario, do not do so in an anti-competitive manner.
I direct noble Lords’ attention to paragraph 27E(4) of the Bill and the terms that will accompany a Part 4A order. These terms set out how Part 4A orders are to be exercised—for example, the time of day that operators can carry out works and that they conform to health and safety standards. We have set out in the Bill the areas that those regulations must include. It has always been our intention that the terms of an agreement impose by a Part 4A order would set out that the operator must not install their equipment in such a way as to physically prevent others from installing their own.
However, as the noble Lord, Lord Fox, put it very elegantly, we aim to simplify the lives of consumers. In response to his remarks and those of my noble friend Lord Holmes, the noble Lord, Lord Clement-Jones, and of course the noble Lord, Lord Stevenson, if it would reassure noble Lords then the Government would be willing to table an amendment to the Bill at Third Reading to that effect. We consider it fair to amend the Bill so that it is absolutely clear that these terms should include measures to ensure that an operator must not install their equipment in such an anti-competitive way. If the noble Lord, Lord Stevenson, is content with that approach, I ask that he withdraw his amendment.
Lord Stevenson of Balmacara [V]
Yes, my Lords, I am extremely content. I thank the Minister for that, and I am very happy to beg leave to withdraw by amendment.
Lord Fox
My Lords, I am glad to follow my colleague, my noble friend Lord Clement-Jones. This amendment is largely built on Amendment 21 from Committee. During the response to that amendment, the noble Lord, Lord Parkinson, described the Bill as
“one discrete instrument in the Government’s overall strategy for speeding up the deployment of gigabit broadband.”—[Official Report, 2/6/20; col. 1331.]
What are the other discrete elements of this strategy? What other legislative elements are there? My understanding is that this is the only legislative element currently available—leaving aside the security Bill, which is entirely different and not focused on the delivery of gigabit speeds—which is why I, the noble Lord, Lord Stevenson, and others seek to use this as an opportunity for the Government to reaffirm their commitment to one gigabit by 2025. As my noble friend Lord Clement-Jones asked, is 2025 still serious, when the Minister is now using the language of “as soon as possible”, which of course means many things to many people?
This amendment calls for a review of the impact of this Act on the Electronic Communications Code, focusing in particular on progress towards that one-gigabit target by 2025 and looking at whether we should grant rights of access to telecom operators akin to those enjoyed by other utilities. The review would also make recommendations for future amendments and legislation.
As I said in Committee, there is an urgent need to inject some adrenaline into the Bill, as we have seen in other areas, in delivering the 2025 target. Proposed new subsection (1) of the new clause envisioned by this amendment causes Her Majesty’s Government to review the impact of this Bill on the delivery of one-gigabit broadband to every home and business by 2025. As my noble friend pointed out, this is not an unreasonable target, given that it is the Prime Minister’s stated aim and therefore the stated aim of Her Majesty’s Government. We feel that this will be helpful to the department and the Government.
The second proposed new subsection backs this up by requiring the Government to look at what is needed to deliver sufficient support. As my noble friend Lord Clement-Jones just pointed out, there has been significant dialogue around the meaning of “utility”. I too appreciate the response from the Minister and the department. The gist of that response is that there is no single definition of what a utility has or is. I am sure that they are right, because the needs of electricity are different from the needs of water. The industries and their histories are different. Therefore, one would not expect a consistent picture, given how British law is constructed.
However, there is one overriding similarity: the complete assumption that every dwelling and business should have access to electricity, water and so on. These utilities come with a sense of assurance, a halo of necessity, and the legislation around them delivers on that. For all the assurances we have had from the Minister and the Government, this and previous Bills do not give that similar assurance for telecoms infra- structure enjoyed by those other things we call utilities. That is why this amendment is important; it promotes the cause of telecoms infrastructure as a modern-day necessity. If we ever needed evidence of that, this crisis has delivered it. Every day we see in the House of Lords the huge variation and poverty of connection that even your Lordships enjoy, never mind people across the rest of this country. That is why it is important and why the spirit of treating it like a utility is central to this amendment.
Subsection (3) calls for widespread consultation and sensible measures to ensure that both tenants and landowners are listened to. The Minister talked about maintaining the balance between landowners, tenants and property owners; subsection (3) allows that balance to be continued. Subsections (4), (5) and (6) ensure that the review is laid before Parliament within a year and looks at the scope of the code.
At its core, I really do not see why this is objectionable to the Minister or the Government. Indeed, as I have said, it is helpful in that it codifies the Prime Minister’s words into something tangible. That is why we on these Benches and Liberal Democrat Peers attending virtually will support the amendment if it goes to a vote.
Baroness Barran
My Lords, I thank the noble Lords for tabling this amendment, which I note is a revised version of the amendment tabled in Committee. I very much appreciate the spirit of this amendment, as set out by the noble Lord, Lord Stevenson. It is designed to be supportive of gigabit broadband deployment and to ensure that the legislative and regulatory environments support that deployment.
As we have discussed on several occasions this afternoon, this Bill has been introduced to address a specific issue. It is not, and has never been intended as, a panacea for the rollout of gigabit connectivity; it is one element of a multifaceted approach to improving the nation’s connectivity. In a moment I will try to set out some more elements of that approach.
I remind noble Lords that we are also bringing forward legislation to ensure that gigabit connectivity is provided to all new-build developments; working to improve the street works regime so that it works better for broadband deployment; and investing £5 billion in areas the market alone is unlikely to reach—which the noble Baroness, Lady Wilcox of Newport, quite rightly highlighted.
This measure was designed from the outset to be a precision instrument that supports the 10 million people living in apartment blocks in the UK to access better broadband. It is on this point—the idea of better broadband—that I feel I should begin. We are confident that Part 4A orders will be used by operators predominantly to deliver gigabit-capable connections, as we discussed in Committee, but the Bill does not mention gigabit-capable networks. For that matter, it does not mention broadband, 5G or any type of connection. As noble Lords know, 1 gigabit connectivity is not tech-neutral; not all forms of broadband can deliver 1 gigabit per second of connectivity. For example, copper-based superfast connections would not be able to do that.
The Electronic Communications Code, of which the Bill will form a constituent part, does not mention broadband; nor does it mention any connection speed or anything about the technology installed. The Bill and the code are technology-neutral; I believe there was some confusion on this in Committee. To put that another way: the code deals with the how, where and when of deployment, not about what is installed. I am making this point again because technological neutrality is important, as it allows a consumer to get the connectivity they need from the operator they want at the best price.
None of this is to detract from noble Lords’ appetite to ensure that the Government are on track to deliver gigabit-capable connections, which is entirely understandable and reasonable. Many noble Lords will know that there are already ways in which some or all of the amendment’s effects can be achieved without the need for the amendment. I will give three examples.
First, Ofcom publishes its annual Connected Nations report, which it updates two further times each year. It provides a clear assessment of the progress that the country is making in providing connectivity, both fixed and mobile. I hope your Lordships would agree that the regulator, which is independent of government, is well placed to provide information on the progress of gigabit-capable broadband.
Secondly, the Government continue to answer questions and provide clarity on any aspects of its work in this area, in both this House and the other place. Noble Lords are familiar with asking questions and I endeavour, as always, to answer them.
Thirdly, in this House and in the other place there are established means of scrutiny through Select Committees. Indeed, the DCMS Select Committee in the other place has already launched an inquiry into the Government’s gigabit broadband ambitions. That committee has made it clear that it will
“focus on how realistic the ambition is, what is needed to achieve it, and what the Government’s target will mean for businesses and consumers.”
I hope that that goes to the heart of the spirit of the amendment.
The amendment also asks us to reconsider giving telecoms operators similar rights to access land as those enjoyed by gas, water and electricity operators. This is entirely understandable: the coronavirus pandemic has thrown into sharp relief the increased need for fast, reliable and resilient networks. Indeed, the argument was well made in Committee and I have had further conversations on the issue since then.
It is important to be specific when talking about operators’ access to land. The Electronic Communications Code provides a degree of operational flexibility to telecoms operators. The amendment talks of rights of access “akin” to those of gas, water and electricity. I would be interested to understand precisely where noble Lords think telecoms operators might be disadvantaged. Indeed, the Bill gives them a simple way to apply for rights to gain access to land where there is an unresponsive landlord. It is already giving them more.
That said, I will concede that the rights of telecoms operators are not identical to those of gas, water or electricity operators, but nor do they need to be; they are comparable in many important ways. The code gives operators a framework that incentivises them and landowners to reach a duly negotiated agreement. If, for whatever reason, an agreement is unable to be reached, it allows an application to be made with the court to have rights imposed. Also, Schedule 4 to the Communications Act 2003 makes provision for them to compulsorily purchase land. I hope noble Lords agree that these are quite significant powers. To be clear, there are differences, but I think we would all recognise that certain rights of entry and access are to be expected due to the nature of the gas, water and electricity networks, not least given the potential threat to life that even a minor fault could cause.
In Committee, the noble Lord, Lord Stevenson, asked why we had gone back on our assertion in the future telecoms infrastructure review about giving operators similar powers to utilities. I wonder whether some of the issues around that come from that statement in the infrastructure review.
As I tried to point out in Committee, the consultation for the Bill explored the possibility of giving telecoms operators a warrant of entry through the magistrates’ court, similar to the process for operators of other utilities. However, the responses to the consultation made it clear that warrants of entry were not suited to the problem faced by telecoms operators here; they are used largely for single access, for example to remove existing equipment. That is why we consulted on this and the judiciary agreed that it should instead be either the Upper Tribunal Lands Chamber or First-tier Tribunal granting interim rights codes to operators. I hope that I have alighted on the right issue that has given rise to this element of the debate.
Baroness Barran
It is still the Government’s intention to deliver gigabit-capable connections to every home and business in the UK as soon as possible. We seek to do that by 2025. The noble Lord will remember that we talked in Committee about the impact of Covid on the rollout; I think that I clarified that we know that there is a short-term impact and we are doing everything we can to try to work through it—but, obviously, none of us can predict the future.
Lord Stevenson of Balmacara [V]
My Lords, I am grateful to those noble Lords who contributed to this short debate. I am particularly grateful to the Minister, who has spent a lot of time going back through some of the discussions that we had on this issue in Committee, and indeed further back than that, to come up with a comprehensive response, which I recognise and welcome. However, the argument that I was trying to make through the amendment—indeed, it carries on from discussions in Committee—was precisely illustrated by what she had to say in her response. The attempt to do this for every property in the country by 2025 must, by its very definition, range across departments other than DCMS, so it would be extraordinary if there was no central planning document at the very least, or legislative background at the highest end, to allow that to work through in the way that we do.
Those of us who have been around the block in government or close to government for many a year recognise that cross-departmental issues—the wicked issues, as they are often called—are always the ones that bring people down. Here we are, trying to suggest to the Government that we recognise that this is what they need; they may not like it and they may find that it causes more difficulties than it solves in the initial stages, but by goodness they will need it by the end of the process—and, as we get closer to 2025, they will definitely wish that they had taken this advice at this time.
To take an example, just on the simple question of reporting and accountability to Parliament, it was said in Committee and repeated today that the combination of Ofcom reports, Oral Questions, debates and Select Committee reports would be tantamount to a regular review carried out by the Government. But it would not. Ofcom is a regulator with separate focuses and functions. Oral Questions are random and not always coherent, and Ministers are expert at making sure that we get the least information for the maximum effort on our part. Debates, Select Committees and special reports are what they are. They are random and they come forward in response to particular and different pressures. They are not in any sense a replacement for a coherent approach in the way that we have talked about in this arrangement.
Having said that, the record of what the Government are currently doing is not to be decried. They are moving on new build and thinking about street works. There is money in the back pocket—£5 billion for hard to reach properties—and there are other lessons to be learned. There will be difficulties—these things are always difficult—but at least there is progress. What we are offering is a coherence and a shape and the legislative back-up to do that. I do think that the Government could have taken our advice and accepted the amendment. But, in the interim, even though it is late, I would like to test the opinion of the House.
Telecommunications Infrastructure (Leasehold Property) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateThursday 28th January 2021
(3 years, 10 months ago)
Lords ChamberTelecommunications Infrastructure (Leasehold Property) Act 2021 Read Hansard Text Amendment Paper: HL Bill 118-I Marshalled list for Third Reading - (25 Jan 2021)
This text is a record of ministerial contributions to a debate held as part of the Telecommunications Infrastructure (Leasehold Property) Act 2021 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Lord Stevenson of Balmacara (Lab) [V]
My Lords, I am glad that the noble Lord, Lord Alton, has rehearsed the background to his Report stage amendment and explained the reasons for bringing it back to your Lordships’ House today. We simply cannot turn a blind eye. Standing aside or ignoring what is happening in China is tantamount to condoning the appalling actions described by the noble Lord in his powerful and moving speech.
A lot has changed since June. I am sure that the Minister will update us on subsequent government action, particularly in relation to Huawei equipment. As a number of noble Lords have said, other legislation—including the Trade Bill, before your Lordships’ House again next Tuesday—has amendments bearing on this issue. The case made by the noble Lord, Lord Alton, is unanswerable, as I have made clear. However, tabling this amendment to this Bill is perhaps not the best way of achieving his wider objectives. It might, I suppose, adversely affect the chances of the big win that we hope to achieve on Tuesday with his amendment to the Trade Bill.
Everyone who has spoken today has supported the noble Lord, Lord Alton, and paid tribute to his campaigning and his ceaseless tenacity on this cause. If he chooses to divide the House, we will support him, but I hope that he will feel able to accept the Government’s position on this narrowly focused Bill and that it would be better to defer the decision to Tuesday’s debate on the Trade Bill.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)
My Lords, I thank all noble Lords for their contributions to this important debate. We all agree that this is a matter of great importance, which is why, on Report, I committed to bringing the issue back at this stage. I said:
“We will endeavour to find all the time possible to have sufficient ground to bring back a government amendment.”—[Official Report, 29/6/20; col. 538.]
I would like to reassure noble Lords that, working with officials in my department, I have tried my utmost to find a way forward.
I thank the noble Lord, Lord Alton, for his generous words. I have virtually met and spoken with him and other noble Lords on several occasions to discuss their concerns. My officials have had discussions with their colleagues in the Home Office, the Foreign Office and the Public Bill Office on how the Government might bring forward a legislative provision that—to quote the noble Lord, Lord Alton, on Report—had “teeth”.
We put two different versions of a government amendment forward to do this but were advised by the Public Bill Office that they were out of scope. It has been unequivocal that this includes any amendment addressing issues in the supply chain, such as those issues rightly raised by the noble Lord. Such issues—and thus, amendments seeking to address them—are therefore out of scope of this Bill. As a result, regrettably the Government have been unable to table an amendment to this effect, as I set out in my letter to all Peers on 26 January.
This also means that this amendment will not impact on the supply chain in the way that its sponsors intend. Indeed, it does not touch the supply chain at all. This is why we are resisting the amendment today, but along with other noble Lords, I commend the noble Lord, Lord Alton, for beginning a very important new stage of the conversation about modern slavery, particularly in Xinjiang, and human rights more broadly.
Several noble Lords invited me to share some of the actions that the Government have taken, and I am pleased to do so. On 12 January, the Foreign Secretary announced a series of measures to ensure that UK businesses and the public sector are not complicit in human rights violations in Xinjiang. This includes four main actions: first, strengthening the overseas business risk guidance to make clearer the risks to UK businesses investing in, or with, supply chains in Xinjiang; secondly, a review of export controls as they apply to the situation in Xinjiang, to ensure that we are doing all that we can to prevent the export of goods that may contribute to human rights violations in Xinjiang; thirdly, the introduction of financial penalties for organisations which fail to comply with the Modern Slavery Act; and, fourthly, ensuring that government and public sector bodies have the evidence that they require to exclude suppliers that are complicit in human rights violations in Xinjiang.
This announcement is a clear demonstration of the UK’s global leadership role in standing up for the rights of Uighurs and other ethnic minorities in Xinjiang. I thank all noble Lords who acknowledged that Government’s work in this area. These measures will help to ensure that no British organisation, whether public or private sector, is contributing inadvertently to violations in Xinjiang. As we know, consumer opinion and reputational considerations can and do play an important part in influencing corporate behaviour, and we as a Government are sending a strong signal that we will not stand by as these violations continue, and that there is a reputational and economic cost to them.
The noble Lord, Lord Alton, asked me three questions. The first was about the timing of putting into practice the legislation from the Home Office. We will legislate as soon as parliamentary time allows us to introduce penalties for non-compliance, and other measures which will strengthen the transparency legislation.
Regarding our conversations with BT, I am sure that he will understand that it would not be appropriate to comment on conversations with an individual company, but I think that he will also agree that we, like him, want respect for human rights to be at the centre of all business that takes place in this country.
On the role of the judiciary and state genocide, which the noble Lord understands much better than many people, and certainly me, state genocide clearly is very difficult to prove in a judicial context. The evidential threshold is high, and proceedings tend to be long and costly. It would be difficult for the High Court effectively to determine genocide, with the inevitable constraints that would exist on access to evidence and witnesses, and it would be wrong for the Government or MPs to subcontract to the courts our responsibility for deciding when a country’s human rights record is sufficiently bad that we will not engage in trade negotiations. Parliament’s responsibility is to determine when sanctions take place and with whom we negotiate. We continue to believe that responsibility rests with Parliament.
Lord Adonis (Lab)
My Lords, we are very grateful for the Minister’s reply. She said that the Government wished to table a specific amendment which was ruled out of order by the Public Bill Office. Is it the Government’s intention to bring the precise power that they were going to take in this Bill in the Telecommunications (Security) Bill? The Government control the legislative process. Will they bring forward the precise proposal they wished to bring forward in this Bill in another, which will come before us in the near future?
Baroness Barran (Con)
Just to clarify, the Government brought two versions of the amendment, not one. To the best of my knowledge, there is no intention to bring it back because the focus of the Telecommunications (Security) Bill is on telecoms security and national security. Therefore, any such amendment would face the same barrier as it faced in this Bill—namely, it would be out of scope. If it were effective on the supply chain, it would be out of scope.
Baroness Northover (LD)
The Government have always said that genocide must be decided judicially. The noble Lord, Lord Ahmad, has always reiterated that. Can the Minister clarify what she apparently said —that the Government seem now to have decided, in effect, that genocide might be decided by Parliament?
Baroness Barran (Con)
I hope I did not confuse the House. I am very happy to put in writing the Government’s exact position on this.
The Deputy Speaker (Lord Haskel) (Lab)
I have received a request to ask a short question from the noble Lord, Lord Alton.
Lord Alton of Liverpool (CB)
My Lords, I am very grateful to the Minister for the way she set out the case to the House. In response to the noble Lord, Lord Fox, she talked a little more about digital supply chain transparency. Given that this falls within her departmental brief, can she explain whether it will be within the security Bill that will come forward, so that it can be part of the discussion that takes place on that Bill? Also, will she share the wording of the two amendments she referred to in reply to the noble Lord, Lord Adonis, with the House so that Members can decide whether there are things that we would like to test on the Table Office, to see whether they could be brought into scope?
Baroness Barran (Con)
On the noble Lord’s second point, I will have to defer to colleagues about the ability to do that. In relation to the supply chain, my understanding is that that work is complementary to the security Bill rather than directly within it. Again, I am happy to write to the noble Lord to confirm that.
Lord Alton of Liverpool (CB)
My Lords, I promised the House that I would listen carefully to noble Lords’ contributions. I gently say to the noble Baroness, Lady Morgan of Cotes, that we would not have been having this debate if the amendment had not been in scope, so this amendment is in scope. The problem for the Government has been being able to get an amendment in scope to deal with the human rights issue. I recognise that the problem is that this is not a tree on which you can very easily hang new limbs. The Bill was therefore an opportunity, rather than necessarily the right piece of legislation, to bring before the House the enormities of what is happening in Xinjiang and the links of state agencies and arms, such as Huawei, to the Chinese Communist Party. That we have done across the Chamber very successfully, and I am grateful to the Government for the moves they have made. I set that out in my remarks at the outset of the debate. I am particularly grateful to the Minister, the noble Baroness, Lady Barran, who has been exemplary in the way she has dealt with the arguments and with individuals, especially difficult, persistent, awkward Members of your Lordships’ House, who do not easily let go on issues of this kind, and I do not think the House would expect us to.
The Minister has been given notice that we will be here again on Tuesday dealing with the extraordinary issue of genocide and what can be done about it. Like the noble Baroness, Lady Northover, I was puzzled by what the Minister said to the House a few minutes ago. It has always been the position of the Government—not just this Government, but their predecessors as well—that the determination of genocide is a matter for the courts. Indeed, the Prime Minister himself said that in the House of Commons only a week ago, and therein lies the problem. If there is not a court mechanism in the United Kingdom to deal with this, we have to rely on international courts, particularly the International Criminal Court, and everyone knows that if you were to take to the Security Council the horrors taking place in Xinjiang, which have been described in your Lordships’ House, the possibility that the People’s Republic of China would refer itself to the International Criminal Court for a criminal investigation is risible.
I am a great supporter of the ICC, which was set up by the Rome statute and a genuine attempt to fill the gap that has always been there since the 1948 convention on the crime of genocide, but sadly it has not done so and we still have to address how we can get determinations of genocide made. I think the only way we can do that is now through our own courts. Senior figures from our judiciary have spoken in favour of this. Retired Supreme Court judges, a former Lord Chief Justice and many senior figures in your Lordships’ House with a legal background have said that it is practical and something that our courts can and should do. I hope the House will have heard what the noble Lord, Lord Forsyth, said today.
I end by saying two things, one which the Minister will be pleased to hear and the other directed to the House authorities. Like the noble Lord, Lord Forsyth, I find it extraordinary that, under ping-pong arrangements, it is not possible to take part in a debate on something as important as an amendment sent back to your Lordships’ House by the House of Commons on an issue such as genocide without being physically present. To be told that in the same week that we are being told that we should not be here at all unless we really have to be is vexing, to put it mildly. I hope the House authorities will consider that and see whether there is anything that can be done before next Tuesday, as the noble Lord said.
Having made all those points, the Minister will be very pleased to know that it is not now my intention to force this issue to a vote today. I simply thank all those who have taken part in our proceedings. Like the noble Lord, Lord Fox, I say to the House that this is not over yet and there is so much more that can be said and will be said before it can be brought to a resolution. I beg leave to withdraw the amendment.
Baroness Barran
“(k) aimed at ensuring that nothing done by the operator in the exercise of the Part 4A code right unnecessarily prevents or inhibits the provision of an electronic communications service by any other operator.”Member’s explanatory statement
This amendment would require a Part 4A code right to be subject to terms intended to prevent uncompetitive behaviour.
Baroness Barran (Con)
My Lords, I have tabled this amendment in light of the strength of feeling in both Houses. Throughout the passage of the Bill, the Government have been clear about the intentions and goals of the legislation. We want to make it easier for digital infrastructure providers to access multiple-dwelling buildings so that those living in flats and apartments can access the connectivity they need from the providers they want. We want to ensure that residents are given choice and are able to access fast, reliable connectivity without being limited by their property owner’s silence.
Members of both Houses have raised concerns that consumers could find themselves locked into a provider as a result of this legislation. We continue to believe that such a scenario is unlikely and the legislation as drafted originally prevents it happening. The Bill, for example, does not limit the number of concurrent Part 4A orders that can exist at a property. This allows any resident in the property to search for the provider or service they want and request a service, even in properties where gigabit-capable, full-fibre connections might already exist. That provider is then able to make an application for a Part 4A order via the courts, should the landowner repeatedly fail to respond to requests for access.
Nevertheless, while we are confident that sufficient protections are already in place, we believe there is a benefit in taking a belt-and-braces approach. This amendment ensures that when operators access a property under a Part 4A order the terms on which they will do so will preclude them installing their infrastructure in such a way that would prevent a subsequent operator installing their own apparatus. As with the other terms imposed by a Part 4A order, they will be contained in regulations. Those regulations will be subject to the affirmative resolution procedure and, before they are made, they will have been consulted on with a range of key stakeholders. In this way, we seek to prevent a scenario whereby an operator purposefully installs their network equipment within the property so that it obstructs a second operator in installing theirs and providing a service to the building. I hope that this amendment reassures noble Lords and alleviates their concerns on the matter. I beg to move.
Baroness Barran (Con)
I thank noble Lords who spoke in this short debate for their support and reflections. In response to the questions from the noble Lord, Lord Fox, about “unnecessarily” and “nothing”—a level of detail of which your Lordships’ House can be proud—“unnecessarily” is included to allow for the possibility that there might be circumstances in which an operator may have to, by necessity, prevent or inhibit the provision of a service, such as a broadband connection by a subsequent operator. I am happy to put this in writing. Similarly, nothing done by the operator is a protection to make clear that an operator cannot hide behind exercising their Part 4A code right, to do something that would unnecessarily prevent or inhibit the provision of a connection by a subsequent operator.
The key point, as I said in my opening remarks, is that we will be setting out in secondary legislation the terms under which operators will be granted access rights. We have committed to consulting on those terms and it is of the utmost importance that we get that right. The noble Lord also asked how this will impact on real life and the tenant—another important question. A customer can always request an operator of their choice; nothing has changed in the legislation. Nothing in the Bill prevents a second operator requesting code rights from a landlord.
Turning to the noble Lord’s questions about the Government’s ambition in this area, I thank my noble friend Lord Vaizey for highlighting the important progress we have made. The Government are working hard with industry to target a minimum of 85% gigabit-capable coverage by 2025, but will seek to accelerate rollout further to get to 100% as soon as possible We have committed £5 billion to support the delivery of gigabit-capable connections to the hardest-to-reach locations in the country.
My noble friend Lord Vaizey and the noble Lord, Lord Stevenson, referred to the further progress needed to facilitate the rollout and welcomed the new consultation on the electronic communications code, which was announced yesterday. We are seeking advice and guidance on a number of potential changes, including addressing unresponsive landowners outside multi-dwelling building environments—a subject debated by your Lordships in earlier stages of the Bill—and supporting operators and landowners to reach mutual agreement that facilitates the deployment of gigabit-capable networks. While the consultation does not propose specific reforms, it sets out a range of possible measures to tackle the issues raised with us about the current code. These include the time it takes for agreements to be completed, the confusion about upgrading and sharing rights, the lack of consistency in the treatment of entirely new agreements and the renewal of expired agreements.
My noble friend Lord Vaizey asked some very particular questions, including about the imposition of obligations on companies to allow others to use their infrastructure. If I may, I will write to my noble friend to clarify those points.
In the words of the noble Lord, Lord Stevenson, the noble Lord, Lord Clement-Jones, asked a “blizzard” of questions about diversification. Our diversification strategy was published on 30 November. We were very clear in it that we seek to create a much healthier supply market that is open, flexible and diverse. We have backed that initially with £250 million of investment. In relation to the noble Lord’s other points, I hope I may write to him.
Baroness Barran (Con)
My Lords, as noble Lords will be aware, this piece of legislation, though short in length, has taken many months to reach this stage and has sparked impassioned debate from all sides of this House. It is a Bill that will benefit huge numbers of people, and I appreciate the dedication with which your Lordships have scrutinised it. Our debate and your Lordships’ questioning have exposed important global issues, particularly in relation to human rights, and no one watching the passage of this Bill could doubt the rigour of your Lordships’ scrutiny.
I am particularly grateful for the openness and co-operation shown by Members on the Front Benches opposite: the noble Lords, Lord Stevenson, Lord Livermore, Lord Clement-Jones and Lord Fox. I must of course mention the noble Lord, Lord Alton, from whom I have learned much in our conversations during the passage of the Bill. He has shone a light on some terrible human rights abuses. I also thank his co-signatories: my noble friend Lord Forsyth, the noble Baroness, Lady Falkner, and the noble Lord, Lord Adonis.
I will take this opportunity to congratulate the noble Lord, Lord Stevenson, on his appointment to your Lordships’ Communications and Digital Committee. I thank him for his generous advice behind the scenes and his friendly challenge in the Chamber. I will miss seeing him opposite me, virtually or physically, but look forward to working with his successor.
I am pleased with the shape in which the Bill leaves the House. Once it comes into force, it will ensure that those living in apartments and blocks of flats are supported in accessing fast, reliable and resilient connectivity. I do not need to remind your Lordships how important that is.
Finally, I take the opportunity to thank the Bill team and officials across government who have worked tirelessly and very patiently with this Minister to deliver this important piece of policy. I beg to move.
Lord Stevenson of Balmacara (Lab) [V]
My Lords, I thank the Minister for her kind words. We have enjoyed working with her over this period. The Bill has been an exemplary one in terms of making sure that the House is able to do its job and that the processes necessary to make it fit for legislation once it leaves Parliament are carried out in the best way. That can be done only if there is a spirit of mutual support and trust, and we certainly had that.
I actually took this Bill over at a relatively late stage. Most of the heavy lifting was done initially by my noble friend Lord Griffiths of Burry Port, and the show was kept on the road by Dan Stevens, our legislative assistant, whose skills and expertise I have drawn on mercilessly. I join the Minister in thanking members of the Bill team, who made themselves very much available and answered our detailed questions in the private meetings that we had.
This is a small but important Bill. As the Minister said, it will affect a lot of people; it will make their lives better and give them access to what has become a utility necessary for modern living. It has been scrutinised carefully in this House, and I am confident that it will play a part in helping to achieve a gigabit-enabled economy across the whole country—something that we need as soon as possible. There remains a lot to do, as we picked up today, but it is good to hear that the consultations on the remaining issues are taking place, particularly on the rollout of 5G and the development of fibre to the home. I urge the department to up its game on this and on a number of other issues that we talked about, and I will be watching from the sidelines.
Telecommunications Infrastructure (Leasehold Property) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 24th February 2021
(3 years, 9 months ago)
Commons ChamberTelecommunications Infrastructure (Leasehold Property) Act 2021 Read Hansard Text Amendment Paper: Commons Consideration of Lords Amendments as at 24 February 2021 - (24 Feb 2021)
19:52 - The House divided: - Ayes: 365 / Noes: 264 - Question accordingly agreed to.
This text is a record of ministerial contributions to a debate held as part of the Telecommunications Infrastructure (Leasehold Property) Act 2021 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Matt Warman)
I beg to move, That this House disagrees with Lords amendment 1.
Madam Deputy Speaker (Dame Rosie Winterton)
With this it will be convenient to discuss the following:
Government amendments (a) and (b) in lieu of Lords amendment 1.
Lords amendment 2.
Lords amendment 3, and Government motion to disagree.
Matt Warman
At the time of the Bill’s Second Reading in the House in early January 2020, it would have been impossible for any of us to foresee the challenges that this country would endure over the following 12 months.
Throughout the pandemic and the lockdowns, this nation’s telecommunications network has provided information and enabled education; it has allowed businesses to operate, children to continue to learn and those in isolation to continue to speak with their families. I take this opportunity to pay tribute to the UK’s digital infrastructure providers, our internet service providers and our mobile network operators. They have stepped up and worked with us to bridge gaps in provision, be that through whitelisting websites, providing data to struggling families or connecting the Nightingale hospitals. They have done Herculean work, and we should all be grateful.
Matt Warman
Members will be aware, none the less, that despite the importance of that connectivity, there are barriers facing infrastructure deployment, and there is no panacea. But there are steps and then strides and then leaps in the right direction, and this Bill is an important one of those steps.
We expect these provisions, which will affect some 10 million people in the UK who live in flats and apartments, to make a real difference to the vital roll-out of better broadband to which the Government remain totally committed. I trust that Members will have seen that a consultation on further potential changes to the electronic communications code has now been published. We will carefully consider whether further legislative changes are necessary as a result of what we learn from that consultation. Crucially, these measures will take into account the interests of those needing greater connectivity, balancing the interests of landowners as well. Just as with the Bill, that balance is crucial to ensuring that we continue to bridge the digital divide.
The House is here to debate three Lords amendments. I will deal with Lords amendment 1 first. The purpose of Lord Clement-Jones’s amendment on Report in the other place was to clarify that people who rent their flat can make use of the policy in the Bill. Earlier this year, when the Bill made its way through this House, hon. Members felt similarly to Lord Clement-Jones, and that sentiment was subsequently shared in the other place. It remains the case that the Bill has always applied to people living in a flat under the terms of any lease. The most common form of tenancy in the UK, assured shorthold, is a lease, and it has never been our intention to provide otherwise. However, we are aware of the strength of feeling, and while, as drafted, Lords amendment 1 would create an inconsistency with the rest of the electronic communications code, the amendment I am moving clarifies that people who occupy a property under a lease are able to make use of this policy, and it does so in a way that avoids legal ambiguity by clarifying the definition of the lease in the electronic communications code to ensure that that definition includes, for example, any tenancy.
I also encourage the House to agree with Lords amendment 2, tabled in the name of the Minister, Baroness Barran, on Third Reading in the other place in the light of concerns that have been raised there—and, indeed, here—regarding anti-competitive behaviour. It protects competition in the market and ensures that those installing infrastructure do not do so in a way that would prevent a subsequent operator from installing their own apparatus.
I now turn to the main business, which is really in Lords amendment 3. This amendment would add a new clause to the Bill requiring the Secretary of State to commission a review of the impact of the Bill on the electronic communications code, including an assessment of whether the code is sufficient to support 1 gigabit broadband roll-out to every premises by 2025, and further requiring that separate assessments be made of whether the code should be amended to introduce a number of rights, which I will come on to in a minute.
I am grateful to members of the other place for bringing forward the amendment, which the Government understand aims to provide transparency, but those good intentions would none the less introduce some impractical and unnecessary measures to the code that fall outside the purpose of the Bill and, indeed, the code itself. The code is a framework for regulating agreements between landowners and telecoms operators for the installation and maintenance of communications equipment on public and private land. The code is technology-neutral. It is simply not possible to judge whether the code supports access to 1 gigabit broadband because it is not designed to facilitate solely gigabit-capable connections; it is about access to land to facilitate installation, maintenance and upgrading.
That said, while it is logical to assume that, with the market currently deploying those connections, the provisions in this Bill will be used for deployments of those connections, they may equally be used for superfast, ultrafast or other services. The only basis on which to judge the code is to examine the availability of all types of connections. That is why Ofcom, the independent regulator, publishes its annual “Connected Nations” report, which provides a wealth of information on fixed and mobile connections. Should Ofcom raise questions, the Government continue to provide answers in the House and the other place. The report shows progress in 4G and 5G.
Furthermore, there are also other established means of scrutiny through Select Committees. In the past three months, there have been a number of reports from various Select Committees. Hon. Members can rest assured that the Department’s feet are being firmly and regularly held to the fire. Ministers, of course, always relish that process.
The amendment moves on to matters relating to the powers of gas, water and electricity suppliers. The Government recognise that further changes to the code may be required if it is to support the achievement of our coverage and connectivity targets effectively. Shortly before the Bill’s Third Reading in the other place, the Government published a further consultation on possible changes. I encourage Members to respond to that consultation. I am sure they will appreciate and understand the importance of respecting a person’s right to enjoy their property peacefully, so any intervention that seeks to interfere with property rights must be proportionate and justified. The new consultation seeks those reports until 24 March.
Additional permitted development rights are a planning matter and an issue not for this Bill or the electronic communications code. I am sure that many Members know that telecoms operators are afforded significantly more flexibility in how they install their infrastructure. That includes, for example, permitted development rights and exemptions from a number of requirements to request planning permission. That is why my Department continues to work very closely with colleagues in the Ministry of Housing, Communities and Local Government. In August 2019, we launched a joint consultation with MHCLG regarding potential reform of permitted development rights. The Government published our response in July 2020, and, subject to a technical consultation, we will take forward proposed reforms. We expect to publish that consultation in spring this year.
Encouraging telecommunications operators to undertake infrastructure works alongside other works was another issue raised. It relates to the co-ordination of streetworks to promote greater collaboration between telecoms providers, local authorities and the suppliers of gas, water and electricity. My Department has worked closely with the Department for Transport on a number of areas of mutual interest, and it will continue to do so.
In 2020, the Government released a new street manager digital service—the largest update to streetworks in a generation—that has already helped to simplify and improve the planning and co-ordination of works throughout England. That is vital for the deployment of broadband. I hope that hon. Members recognise that streetworks are a transport issue, and not a matter for this Bill or the electronic communications code. It should be noted, furthermore, that roads are a devolved matter and therefore should not be considered in legislation that relates to the reserved matter of telecoms, as this Bill does.
Although we absolutely appreciate and understand that this is a well-intentioned amendment, it is, as I have outlined, none the less impractical. It seeks details on matters outside the code’s competence to provide, such as gigabit connections, and improved planning and streetworks. I hope hon. Members are none the less reassured by the recent publication of the Government consultation, which seeks responses on whether further changes are required to the electronic communications code. I also hope they trust that the Government stand ready to look at the evidence that is made available and act where the need to act is demonstrated. We are hopeful that, once the responses are received and considered, we will have an even more informed idea about the way forward to support the delivery of connectivity and the role that the Government should play in relation to that. I ask the House to disagree with amendment 3.
I thank all hon. Members who are down to contribute for taking an interest in this vital issue. Parliamentary scrutiny is an important part of our commitment to rolling out the broadband that all our constituents deserve across the country. I look forward to hearing the subsequent debate.
Chi Onwurah (Newcastle upon Tyne Central) (Lab) [V]
I begin by thanking colleagues in the other place who have worked so hard to improve the Bill—and for longer than many would have expected, as the Government delayed the Bill until they thought they could resolve their Back Benchers’ concerns on the human rights amendment. That continues to ping-pong as part of the Trade Bill, but I hope we can now move quickly and decisively to resolve the matters of telecoms infrastructure.
The pandemic has shown us how important good fast stable broadband is, with so many people currently depending on it to work from home and stay in contact with friends and family. It is just over a year since I stood at the Dispatch Box for the Second Reading of the Bill and argued that broadband was a vital utility. The pandemic has proved that beyond doubt. I join the Minister in paying tribute to the infrastructure providers who have supported our connectivity at this difficult time, while recognising how much still needs to be done to close the digital divide. I am pleased that the Lords amendments we will be discussing today reflect the issues that Labour has been raising consistently at every stage of the Bill.
The first amendment removes ambiguity over the definition of a lessee and expands the scope of the Bill to be more inclusive with regard to tenants. The amendment would ensure that introductory or probationary tenancies in local authority housing, flexible or joint tenancies and demoted tenancies were all covered. Labour first raised this as amendment 2 on Report, and the Liberal Democrats tabled an amendment in the Lords. This has been replaced by the Government amendment in lieu, with parts (a) and (b) making technical changes to avoid contradictions between this Bill and the Communications Act 2003. We welcome that, but we are concerned that the Government missed this issue, leaving it for others to raise. The interests of tenants as well as those of leaseholders must be kept in mind.
The Government’s amendment, Lords amendment 2, is based on Labour’s amendment 3 on Report. Labour is the party of business, and we are keen to remove barriers to competition and interoperability, and to encourage a competitive market. However, we feel that the Government’s changes to this amendment mean that it does not go far enough.
As the Bill stands, one operator can technically “capture” a building, locking the residents into its service. The Government amendment seeks to ensure that this cannot happen, and the option for diversification is left open. However, it does not encourage deployment and inter- operability. Labour is pleased that the Government have offered concessions on competitiveness and inter- operability, so we will not oppose this amendment as we consider it a gesture in the right direction. However, UK businesses and consumers deserve more than gestures. They need real action to promote competition, and the Bill was a chance for the Government to do that.
Finally, Lords amendment 3 is Labour’s new clause. This has been designed to provide accountability and transparency via a review of the impact of the Bill and the sufficiency of the electronic communications code to support gigabit roll-out. Labour believes that this is vital to ensure that the mechanisms in the Bill are robust and well resourced enough to ensure that legislation does not fail when it makes contact with reality. We do not want to be back here with further legislation after more wasted years for our telecoms infrastructure. This amendment provides the mechanisms to empower the Government to meet and assess their roll-out targets. The Government tell us that the Bill is just about freeholders, but it is clearly part of a larger puzzle. Indeed, the noble Lord Parkinson confirmed that, stating that the Bill was
“one discrete instrument in the Government’s overall strategy”—[Official Report, House of Lords, 2 June 2020; Vol. 803, c. 1331.]
We must know, first, what that strategy is and, secondly, how this Bill is contributing positively or negatively to the telecoms landscape. The Minister said that this would undermine technology neutrality, which is somewhat rich, given that the gigabit ambition was a technologically neutral downgrading of the Prime Minister’s original fibre ambitions.
Matt Warman
I will address the number of interesting points that have been raised.
The hon. Member for Newcastle upon Tyne Central (Chi Onwurah) raised a number of interesting points. She talked about satellite broadband and a broader strategy for this Government’s vital gigabit ambitions. The Opposition are right to raise those issues, but I humbly suggest that they also know that this Bill is not the place to put a wide-ranging review of the Government’s gigabit strategy. They will get that strategy in short order, but I think they know that this is not the place to insert that review. I hope that they will not seek to turn the Bill into a Christmas tree, as has previously happened, but I have huge sympathy with the hon. Lady and look forward to providing her with the detail that she craves.
A number of Members made points on broader connectivity. Whether it is the issue that my hon. Friend the Member for Bury South (Christian Wakeford) raised in his maiden speech or the communities that my hon. Friend the Member for West Bromwich West (Shaun Bailey) mentioned, people have been held together in a way that we had not envisaged before the pandemic, and now we realise that connectivity is essential for that sense of community.
The hon. Member for Inverclyde (Ronnie Cowan) raised issues around definitions. The drafting of the Bill and our consultation on the electronic communications code are specifically to address those legitimate issues he raises, but we do not envisage them arising in practice. The hon. Member for Westmorland and Lonsdale (Tim Farron) is absolutely right that the USO does not function perfectly; Ofcom is investigating it. He is absolutely right that the emergency services network is a core part of the ambitions of the Department for Digital, Culture, Media and Sport to deliver a shared rural network, and we are engaging intensively with the Home Office on that. I remember being involved in an incident myself at the top of Scafell Pike, where we had to descend the mountain in order to get mobile phone signal to call a helicopter, which thankfully came rather quickly, but would have come earlier had we had a signal on the top of that mountain.
Finally, let me address the international issues that were raised by my right hon. Friend the Member for Bournemouth East (Mr Ellwood). The global role of the UK’s potential as a leading digital economy is well documented, and Bills such as this are part of our ability to make the very most of those ambitions. We will use this as a small piece in the puzzle, and it is a part of that broader strategy that we will be delivering to the House as soon as we can. He also tempted me to talk about broader tech monopolies, but because this is a small and tightly drawn Bill, I will resist that temptation.
I thank the Bill team and all the officials across many Departments who have worked so hard over the past year to reach this stage. It will help people up and down the country to access the digital services that they need, and I commend it to the House.
Lords amendment 1 disagreed to.
Government amendments (a) and (b) made in lieu of Lords amendment 1.
Lords amendment 2 agreed to.
Motion made, and Question put, That this House disagrees with Lords amendment 3 .
Telecommunications Infrastructure (Leasehold Property) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateThursday 4th March 2021
(3 years, 9 months ago)
Lords ChamberTelecommunications Infrastructure (Leasehold Property) Act 2021 Read Hansard Text Amendment Paper: HL Bill 174-I Marshalled list for Consideration of Commons amendments in lieu and reason - (2 Mar 2021)
This text is a record of ministerial contributions to a debate held as part of the Telecommunications Infrastructure (Leasehold Property) Act 2021 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Baroness Barran
That this House do not insist on its Amendment 1 and do agree with the Commons in their Amendments 1A and 1B in lieu.
“1A In section 134 (restrictions in leases and licences), in subsection (8), for the definition of “lease” substitute—
““lease”—
(a) in relation to England and Wales and Northern Ireland, includes—
(i) any head lease, sub-lease or underlease,
(ii) any tenancy (including a sub-tenancy), and
(iii) any agreement to grant any such lease or tenancy;
(b) in relation to Scotland, includes any sub-lease and any agreement to grant a sub-lease,
And “lessor” and “lessee” are to be construed accordingly;”.”
Baroness Barran
That this House do not insist on its Amendment 3 to which the Commons have disagreed for their Reason 3A.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)
My Lords, I am moving Motions A and B en bloc. When the Bill was introduced in early 2020, we could not have predicted the situation that we find ourselves in now. Over the past year, our telecoms network has allowed businesses to continue to operate, children to continue to learn and those in isolation to continue to see and speak to families and friends. As the Minister for Digital Infrastructure has done in the other place, I give wholehearted thanks to the UK’s digital infrastructure providers, internet service providers and mobile network operators. They have stepped up and worked with us to bridge the gaps in provision, be that through whitelisting educational websites, providing free data and devices to struggling families or coming together to deliver connectivity to the Nightingale hospitals and vaccination sites. As with any industry, there is a tendency to pay attention only when something goes wrong and to ignore the huge amount of effort and hard work it takes to keep things working normally. The industry’s efforts during this extraordinary time cannot and must not be forgotten.
However, the coronavirus pandemic has put into sharp relief the divide between the digital haves and the digital have-nots. This Government’s ambition is to support the delivery of fast, reliable, resilient broadband to every home and business in this country. Noble Lords will be aware—not least from our discussions during the passage of the Bill—of the myriad, complex barriers that face infrastructure deployment. There is no panacea, but the Bill provides a modest yet vital development. Despite having once been described by the Guardian as “an obscure technical bill”, it has within its initial scope some 10 million people in the UK who live in flats and apartments. It also contains the flexibility to bring still more people into its scope in the future, such as those in office blocks and business parks, where the evidence points to it.
We expect these provisions, once commenced, to make a real difference to rollout, along with other measures we are taking forward such as mandating gigabit connectivity to new-build developments and reforms to the street-works regime so that it better supports deployment.
I trust that your Lordships will have seen that a consultation on further potential changes to the Electronic Communications Code has now been published. We will carefully consider whether further legislative changes beyond those made in the Digital Economy Act 2017 are necessary as a result of what we learn from that consultation. These are all steps that, combined, will help operators achieve their, and this Government’s, ambitious connectivity targets. Crucially, these measures will take into account the interests of those needing greater connectivity, balancing those interests alongside those of landowners. Just as with the Bill, that balance is crucial to ensure that we continue to bridge that digital divide.
The Motion asks that this House does not insist on its Amendment 1 and does agree with the Commons in its Amendments 1A and 1B in lieu. As noble Lords will recall, Amendment 1 was tabled by the noble Lord, Lord Clement-Jones, following similar amendments by the Opposition Front Bench, here and in the other place. Its purpose is to clarify that people who rent their flat can make use of the policy in the Bill. While we maintain that the Bill has always provided for that, the strength of feeling on the matter is undeniable. To make it clear that the Bill serves the interests of tenants as well as leaseholders, the Government have tabled two amendments in the spirit of that tabled by the noble Lord, Lord Clement-Jones. The amendments clarify the definition of “lease” in the Electronic Communications Code, to ensure that it includes, for example, any tenancy. I hope that your Lordships will support these amendments.
I hope that the House will not insist on Lords Amendment 3, to which the Commons has disagreed for Reason 3A. That amendment, tabled by the noble Lord, Lord Stevenson of Balmacara, adds a new clause requiring the Secretary of State to commission a review of the impact of the Bill on the Electronic Communications Code. The proposed new clause requires the commissioned review to include an assessment of whether the code is sufficient to support the delivery of one gigabit per second broadband to every premise in the country by 2025. The amendment also requires that further, separate assessments be made of whether the code should be amended to
“introduce rights of access to telecommunications operators akin to those available to suppliers of electricity, gas, and water”.
The amendment also provides for an assessment as to whether the code should be amended to provide additional development rights and encourage collaboration alongside other works being carried out in the locality.
I recognise and appreciate the intention with which this amendment was tabled. It is important that the Government are held to account over their rollout targets, and it is frustrating that many parts of the country still do not have access to the digital services they need. However, we continue to believe that the amendment is unnecessary and seeks to introduce provisions which fall outside the purpose of the Bill and, indeed, the code itself. As I have said, there are already mechanisms in place by which the department’s rollout targets are measured and scrutinised.
Ofcom, the independent regulator, publishes its annual Connected Nations report, which it updates a further two times a year. This provides a clear assessment of the progress that this country is making in providing connectivity, both fixed and mobile. These reports provide detailed analysis of the connectivity available in the UK as a whole, in each of the nations and in urban and rural areas. They show the progress that is being made in the deployment of gigabit-capable networks and 4G and 5G coverage. They show progress in relation to connections to superfast services, as well as the areas in this country which are not yet served—for example, those premises unable to access a broadband speed that meets the minimum under the universal service obligation. Should the Ofcom reports raise questions, the Government continue to provide answers and clarity on any aspects of their work in this area, both in this House and in the other place.
Baroness Barran (Con)
My Lords, I thank all noble Lords for their helpful contributions to the debate and I will respond to some of the questions that have been raised. I start by sharing the aspiration of the noble Lord, Lord Fox, that future Bills should move more smoothly. I shall try not to take too much personal responsibility for the pace of this Bill, but I know he will accept that the breadth of Bills can slow them down. There is a tension between wishing that there could have been more in this legislation and the speed of its progress.
Along with the noble Lord, Lord Clement-Jones, the noble Lord, Lord Fox, raised questions about our diversification strategy and its progress, particularly in relation to open RAN. I want to reassure all noble Lords that we have made early progress in our work to accelerate the development of open interface solutions by committing to work with NEC to launch the NeutrORAN test bed as part of the wider 5G test beds and trials programme that will showcase 5G open RAN technology. As noble Lords are aware, our strategy in this area is backed by an initial investment of £250 million to kick off this work. We are trying to take a balanced approach to this diversification, which will see measures introduced across three separate strands of activity; that is, by supporting incumbent suppliers such as Ericsson and Nokia, as well as attracting new suppliers into the UK market and, as I said, accelerating open interface solutions and deployment.
The noble Lord, Lord Fox, asked why we are nervous about a review. I do not think we are nervous and I hope I have made it clear that we do not think that that kind of review is necessary given the level of scrutiny already given by Ofcom and Select Committees across both Houses.
The noble Baroness, Lady Falkner of Margravine, asked about the vital issue of network security. As she will know, the Telecommunications (Security) Bill being debated in the other place introduces a stronger security framework for all UK public telecom providers. It will ensure that providers design and manage their networks in a secure way. In response to her point about future-proofing the legislation, the Bill will introduce a new national security power to manage the risks posed by high-risk vendors in our telecom networks both now and into the future.
The noble Lord, Lord Clement-Jones, asked about the universal service obligation. We will keep the speed and quality parameters of the USO under review to make sure that it keeps pace with consumers’ evolving needs.
I must offer an apology to the noble Lord, Lord Stevenson of Balmacara, if I was critical of any of his drafting skills, which will certainly be vastly superior to anything I could manage. I am genuine in saying that the Government are very grateful to him for raising important issues, including how we should tackle the matters that cut across different government departments and their different legislative responsibilities, which are so crucial.
The noble Lord also challenged the Government’s ambition in this area. As he will know, by 2025, the Government are targeting a minimum of 85% of gigabit-capable coverage, but we will seek to accelerate rollout further to get as close to 100% as possible. That target is based on extensive engagement with the industry over the past year as well as the current industry rates of deployment and how those may be increased. We have also made a major investment of £5 billion in the UK gigabit programme, which has galvanised commercial build in the market.
In closing, I was reminded while listening to noble Lords of my low point on this Bill. It was when my own internet connection failed while we were all working remotely. I think it happened during the Committee stage and I was unable to use my video camera, so I have had a personal interest in this. I close by thanking again the Bill team, who have been enormously knowledgeable, professional and helpful in supporting me and, I know, a number of noble Lords through the passage of the Bill. I thank all noble Lords for their scrutiny, their challenge and the quality of the debate and I commend the Motions to the House.