Telecommunications Infrastructure (Leasehold Property) Bill

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 22nd April 2020 Lords Chamber

Second Reading

13:05

Moved by

[Baroness Barran]

That the Bill be now read a second time.

[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.

13:18

[Baroness Northover (LD)]

My Lords, I thank the noble Baroness for introducing the Bill. I also thank the noble Lord, Lord Parkinson, who is assisting her, for contacting me to see what issues I might raise. I hope that both of them will be somewhat reassured, as in my response I indicated that I would not cover the subject matter of the Bill but would speak on behalf of my colleagues who cannot and should not be present because of social distancing. I speak in this Second Reading on behalf of the Liberal Democrat Benches. My colleagues who lead the team for this Bill are my noble friends Lord Clement-Jones and Lord Fox.

It is good that the House is moving forward on the current need for us to conduct our business in virtual form. The Bill is about new technologies, so perhaps it is especially puzzling that the House of Lords has not managed to resolve the need to sit virtually on all aspects of its business by now. My task therefore is to put on the record excerpts from my noble friend Lord Clement-Jones in relation to the Second Reading of the Bill needing to be held in the Chamber today. At his request, I will read from his letter to the Procedure Committee.

“Dear Lord Chairman, I am writing to express both concern and disappointment at the decision of the Procedure Committee to conduct the Second Reading of the Telecommunications Infrastructure (Leasehold Property) Bill not virtually but in the Chamber on 22 April. I am the digital spokesperson on our Liberal Democrat Benches and would have expected to wind up in the Second Reading debate. Chris, Lord Fox, our BEIS spokesperson, would have opened for us. A decision which compels those of us who have so far stayed safe in lockdown to attend in person in the Chamber if we are to participate is quite extraordinary when, of all the virtual proceedings possible, a Second Reading debate would be the most technically and technologically straightforward. Neither I nor Lord Fox will be attending on 22 April. We will be speaking in Committee whenever it occurs, but wanted to leave you and the Procedure Committee in no doubt as to our views on this decision. With regards, Tim Clement-Jones.”

I know that both my noble friends feel passionately about the huge possibilities of new technology and how vital it is that the UK leads in this area while at the same time looking closely at the possible risks and down sides, and I know that they look forward to participating in the Bill virtually in due course. I understand that the Procedure Committee has accepted the proposition that those unable to be present today—we have very small numbers in the Chamber—will be able to give their Second Reading speeches about the key principles and concerns of the Bill in Committee, although that usually looks at only the detail of a Bill. That is certainly welcome and it sounds as though this situation will not arise again.

However, when I see that my noble friend Lady Harris had to swear in in person when she should be shielding at home so that she can continue to participate virtually in our proceedings, I do wonder when the House of Lords will catch up. Having just observed the hybrid Questions to the acting Prime Minister, Dominic Raab, from the Commons Public Gallery, it seems clear that there are ways of doing things in the Commons that can be very effective. Members asking Questions remotely were interspersed with those present in the Chamber and were clearly visible on monitors set up around the Chamber. Not only could we see and hear each of them ask their Questions, we could also see their reaction to the Minister’s response. I know that we are all learning and I appreciate the opportunity to put my colleagues’ concerns on the record.

[Lord Adonis (Lab)]

It is difficult to follow the noble Baroness because the House of Commons is sitting both physically and virtually. It has not moved to being entirely virtual, but she is making the case for moving to entirely virtual. That is emphatically what the House of Commons has not done, which is part of the reason it has maintained such a high media and public profile, whereas I am afraid your Lordships’ House has almost vanished from sight so far as the public are concerned.

[Baroness Northover]

I take very seriously what the noble Lord has said. One of the things that emerged yesterday was that each House will be looking carefully at how the other operates and what works well. What I am saying in this learning process, having just watched how it worked in hybrid fashion in the Commons, is that it is very interesting. Clearly, we have a different demographic in this House and there may be more people who need to work virtually. It is therefore exceptionally important that we place their health first and foremost, but there may well be ways in which we can learn from how the Commons is dealing with things and make sure that we are as effective as the second Chamber of Parliament needs to be in holding the Government to account.

13:24

[Lord Collins of Highbury (Lab)]

My Lords, I am grateful to the Minister for introducing the Bill. I am also grateful to my noble friends Lord Griffiths of Burry Port and Lord Stevenson of Balmacara for assisting me in this Second Reading speech. They should of course be leading on the Bill, but we have worked collectively in the past and we are doing so today. We have also taken the opportunity to put our arguments out there in a blog on the Labour Lords website. I am not sure that I should be plugging such things—whether it is against the rules—but I have done it anyway.

It is great not to have to worry about unmuting my mic to ensure that I get heard; a lot of noble Lords have found that process a bit frustrating. As we have heard, we are debating this legislation in a very different context from that originally envisaged. Here we are in Parliament, having to learn as best we can. As the noble Baroness, Lady Northover, said, as we go through this process, we need to learn the lessons about how we can do business virtually to safeguard our Members. It is about not only safeguarding our Members but sending a clear, positive message to everyone in the country about the importance of social distancing during this crisis.

Of course, the way the internet allows us to deal with our business highlights the necessity of making these facilities available to the population at large. It evidences the need to improve the country’s infrastructure and to ensure the universal availability of broadband for everyone, regardless of whether they live in urban or rural areas, in their own houses or—the focus of the Bill—in shared dwellings. The Bill seeks to address the issue of telecoms network operators being unable to gain access to multiple-occupier buildings in cases where a landlord has failed to respond to requests for access. This is, of course, a welcome step for tenants wishing to access or upgrade broadband services.

We certainly do not oppose the Bill. However, I must say to the Minister that we and many of the key players in the telecoms industry—I have had numerous emails and briefings from people in the sector—had anticipated a much more wide-ranging and ambitious piece of legislation. The last Labour Government achieved a strong rollout of the so-called first generation broadband through a clear digital strategy. They commissioned specialist reports and introduced detailed and ambitious legislation, including the Communications Act 2003 and the Digital Economy Act 2010.

The target set by that legislation was no less than 100% broadband coverage by 2020. As is the case with technology, things have of course moved on. In theory, much quicker and more robust services should now be available to vast swathes of the country. I say “in theory” because politics as well as technology has moved on. A decade of Conservative rule has seen the 2010 target missed by a mile. The rollout of second and third generation fixed broadband has been left largely to the market, with entirely predictable consequences.

Over the last decade, and despite being one of the largest economies, Britain has rapidly fallen down the international league tables. In 2018, Britain ranked 35th out of 37 countries assessed by the OECD on the proportion of fibre in their total fixed broadband infrastructure. This should give Ministers cause for serious concern and reflection. As the Minister stressed, the importance of strong connection to the web cannot be overstated at the best of times, and certainly not in the current crisis. The internet enables locked-down pupils and students to keep on learning, and shut-in older and vulnerable people rely on online orders to get their groceries in. The internet contributes hugely to getting the nation fed, its banking done and its entertainment needs met. Countless people are currently doing their work at home. How on earth could they have done this without the availability of broadband?

We know from Ofcom that almost 700,000 people in the UK are without a decent broadband connection. We also know that there are significant regional disparities across the UK. The most innovative services, such as those which do not require a landline, are often available in and around London and other major cities but not in towns and villages. The Government’s response to these worrying trends has been to tweak the universal service obligation; the Bill is evidence of that. As we have debated on many occasions, in doing so, they have chosen to pursue the least ambitious option put to them by Ofcom—not full fibre nor gigabit-capable broadband but 10 megabits per second. As my noble friends have noted in previous debates, this decision was regrettable for a number of reasons. It leaves us falling behind our neighbours, many of whom have significantly better fibre coverage, even in rural areas.

Be that as it may, the USO is now in force and I am confident that Ofcom will do everything within its powers to enforce it. In her 25 March letter to all noble Lords, the Minister offered warm words about the Government’s commitment to fibre and other innovative services. However, the Prime Minister does not seem to share her commitment. The Queen’s Speech promised full fibre for all by 2025. Since then, No. 10 has downgraded that commitment. First, it became universal gigabit-capable broadband. It has now been further watered down and is being described merely as an acceleration of rollout. How can individuals and businesses have confidence in delivery when the goalposts have been moved so drastically and frequently? How can the firms responsible for delivering infrastructure have confidence in the Government’s approach when what ought to have been a flagship piece of legislation—the Bill we are now debating—is so short and narrowly focused, and the public funding available for rollout so lacking?

There is another issue that could have been addressed in this legislation but is conspicuous by its absence. It has already been debated at length in the Commons, so I do not wish to detain noble Lords with a lengthy argument at this time. However, it would be remiss of me not to mention it at all. Of course, the issue I am referring to is that of so-called high-risk vendors in the rollout of new telecommunications infrastructure in the United Kingdom. Granted, 5G is a different form of telecommunications from fixed broadband, but, as we have heard so often, it has the potential to revolutionise how individuals and businesses go about their everyday lives.

The Government have introduced a cap on the proportion of technology that high-risk vendors can provide. This was welcomed by my party, but we require further detail on how that market share will be reduced and over what timescale. The Government need to spell out when and how they intend to address the need for increased support for research and development in this area, so that the United Kingdom can be better resourced and less reliant on both technology and expertise from overseas. We are told that such considerations will be part of a forthcoming tele- communications security Bill. It is a pity that these matters are not part of the Bill we are dealing with today.

While I am on the topic of 5G, I also place on record my disappointment that more has not been done by the Government to combat the dangerous and unfounded theories that 5G is in any way responsible for the public health crisis that we currently find ourselves in. We understand and appreciate that social media platforms are taking action to tackle the spread of this urban myth, but surely there is a greater role for Ministers to play in this as well.

These Benches will not oppose the Bill, but we will seek to improve it. The Government claim to be ambitious when it comes to a digital revolution. This Bill, important as it is, is hardly evidence of that. Industry wants the licence and the tools to lead the way. Let us make this Bill fit for purpose, so that people in all parts of the United Kingdom have a broadband connection that is fit for purpose.

13:36

[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.

Bill read a second time.

House adjourned at 1.46 pm.