Loot Boxes

Baroness Merron Excerpts

Thursday 13th October 2022 Lords Chamber

[Baroness Merron (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Addington, and his request for action—as has been expressed by so many noble Lords today in the debate. I also congratulate the noble Lord, Lord Foster, on securing this debate and, more than that, on setting out the issues so clearly. I associate myself with the comments that he made about the need for a public health approach—that prevention is surely better than cure. That has underlined all of the debate today on an important matter that needs to be taken seriously by the Government.

Many people were disappointed when they read the Government’s response to the consultation on loot boxes prior to the summer break. As other noble Lords have highlighted, the Government acknowledged that there is a “consistent association” between the features of loot boxes and the characteristics of problem gambling, yet we await further action. We know that the Gambling Commission, various academics and multiple parliamentary committees have been calling on the Government to take action for some years. I therefore say to the Minister, who is new to his post—I have welcomed him previously and am glad to reiterate that welcome—that here is an opportunity to distinguish himself still further than he has done already. I hope that he will take up that opportunity.

As outlined in the Library briefing received by many noble Lords, a very high percentage of games available on the Google Play and Apple digital stores contain loot boxes, with a sizeable proportion of users paying for them at least once. I have previously made reference to the prevalence of media stories about high spends on loot boxes in games such as “FIFA” and “Call of Duty”, which are widely played on games consoles as well as on mobile phones. With all this in mind, the take-up of loot boxes is likely only to increase. They are becoming increasingly important to developers and, given the obvious links with gambling—as has been acknowledged to some degree—are we not looking at an exponential growth of risk in the coming years? As noble Lords have said, we should not wait for something of a crisis for action, but should seek to prevent that crisis happening.

Relatively tame controls around parental consent are indeed a step forward, but the question for the Minister is whether they are really sufficient to mitigate the risk that loot boxes become a gateway to “proper” gambling products. How are we to react to the effect of loot boxes on young people? We know that the rapid rise in online gambling activities affects not only children but parents, as the noble Lord, Lord McInnes, said—I was very interested to hear his comments about the role of parents in this. The rapid rise of online gambling activities has led to a lack of confidence for parents to understand and adequately protect their children from gambling harms. Some 42% of parents of children under 18 would not be confident in talking to their children about loot boxes—something that the noble Lord, Lord McInnes, bore out in his research. Indeed, 79% have never heard of skins betting. Should we not help parents to assist children and young people, and should we not help the children and young people themselves? Rates of harmful gambling among 17 to 20 year-olds are increasing more than threefold. There are some 55,000 children aged between 11 and 16 who are experiencing gambling harm in our country, with a further 85,000 estimated to be at risk. Does the Minister agree that this is a ticking time bomb that needs addressing?

It has been mentioned in this debate that several other countries have classified and/or applied gambling restrictions to loot boxes, yet the UK Government have opted against this. Will the Minister give us some indication as to why? One option, as we have heard, was to tie loot boxes in with the long-running and repeatedly delayed gambling review, but again the Government have declined this opportunity, as the noble Lord, Lord Butler, said. We now read reports that the Prime Minister is looking at scrapping the review altogether, meaning that practices that we know are harmful could be allowed to continue. Will the Minister comment on those reports and, if they are not true, will he tell your Lordships’ House when the much-delayed gambling White Paper will be published, so that we can ensure that the right legislation, the right regulation and the right resources are in place to protect people from gambling harms?

While I am on my list of requests for things we need, will the Minister provide an update on the video games research network, which it is hoped might guide and inform legislation to protect children and young people from gambling-related harms through video games? Further to that, it would be helpful if he would give details on progress made by the technical working group, which is due to be set up to develop industry-led solutions to mitigate the risk of harms from loot boxes in video games. We all know that the cost of living crisis is worsening, so has the department made any assessment of whether people may be tempted to try gambling as a way of covering growing household bills? If there has been such an assessment, what action is going to be taken? As we see a spiralling cost of living, this link will not go away.

On the matter of evidence, the noble Lord, Lord Trevethin and Oaksey, talked about the clear causal connections between loot boxes and problem gambling. There seems to be great resistance on the part of the Government to accept the evidence. If that reluctance continues, will the Minister consider a review of the existing evidence and perhaps identify any gaps in the evidence and seek to fill these?

Having listened to the debate today—as I have listened to debates on this subject a number of times, as many noble Lords have done—I am struck very much, and I hope it strikes the Minister equally, that there is a potential harm that access to loot boxes can do, particularly with regard to children. This is about the potential for problem gambling and it begs a question as to why the Government have dragged their feet in acting. Today gives an opportunity, I hope, for the Government to change that approach and seek to take action. I hope that we will hear from the Minister how he intends to do that.

Product Security and Telecommunications Infrastructure Bill

Baroness Merron Excerpts

Report stage
Wednesday 12th October 2022 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I too welcome the noble Lord, Lord Harlech, to the salt mines. He knows little yet of how much work is involved in being a Whip; that is all that I can say. I would also like to echo what the noble Baroness, Lady Harding, said about the noble Lord, Lord Parkinson, and his service as DCMS Minister. We all appreciated that very much.

I congratulate the noble Baroness, Lady Harding, who made a very powerful case for her amendment in Committee. I thank the Government for having agreed to that. CityFibre said, in its original briefing, before we had Committee, that this would make a huge impact, particularly in rural areas and in urban Scotland. I have just come back from the US and have seen, in some rural areas such as New Hampshire, the impact of being able to put these superfast fibre-optic cables on telegraph poles. It is really an effective way of delivering superfast broadband to those areas. CityFibre estimated that 1 million such poles exist across the UK, so we are not talking about a small issue.

Finally, the noble Baroness, Lady Harding, as ever, put her finger on the key issues in this particular new clause, about what constitutes agreement between operator and main operator, and operator and landowner. The more clarity that the noble Lord can give us, the better we will be.

[Baroness Merron (Lab)]

My Lords, first I also welcome the Minister to his place—long may he continue to be as helpful to your Lordships’ House as he is being today. We welcome this government amendment, in the name of the noble Lord, Lord Kamall, whom again I would like to welcome to his new place on the Front Bench. Again, let us look forward to many other sensible government amendments in response to the points that have been raised. I also thank and pay tribute to the efforts of the noble Lord, Lord Parkinson, who helped get us to this stage.

This is very much an issue, as noble Lords will be aware, that attracted cross-industry support, as well as support from all across the House. I pay tribute to the noble Baroness, Lady Harding, for leading the team. In view of her comments about the select group of us who have an interest in health and telegraph poles, perhaps that is an opportunity for an All-Party Parliamentary Group of some select membership.

This amendment does strike the right balance between speeding up fibre rollout and protecting the rights of landowners when upgrading and sharing pre-2017 poles on private land. It is consistent with the amendment that the noble Baroness, Lady Harding, put forward earlier, which we were very pleased to sign up to when it was tabled at Committee stage. So I do welcome this very much from the Government. I do wonder why, given the considerable cross-party consensus in both Houses, it took so long to bring it before us, but we are here today. I too would welcome the clarity about whether verbal agreement from a landowner is indeed sufficient for operators to then undertake necessary works, but with that, this government amendment is one that finds great favour on these Benches.

[Lord Harlech (Con)]

I thank noble Lords for the opportunity to clarify these points and for their welcome to the Front Bench. If the House could indulge me a little, I have spoken several times in previous debates about the need for better rural connectivity and better broadband, so it is a great pleasure to actually take part in this debate.

In response to my noble friend Lady Harding’s question about proof of permission from a main operator to an additional operator, these new provisions are intended to optimise the use of existing telegraph poles. They explicitly recognise the value for UK connectivity in different operators being able to upgrade and fly wires from each other’s poles as quickly and efficiently as possible. The provision does not require a second operator to secure the main operator’s permission in any particular form. In other words, formality requirements that apply to an agreement under Part 2 of the code do not apply here. We expect the sector to make sensible, efficient administrative arrangements to make clear that the required permission is held. For example, Ofcom’s duct and pole access remedy, which Openreach fulfils through its physical infrastructure access products, requires Openreach to grant other operators access to its ducts and poles. Operators may consider that they can satisfy the condition for the permission of the main operator for paragraph 74 purposes through their usual procedures for securing access through PIA.

I welcome the opportunity to point out that we expect a similarly pragmatic approach to be adopted in relation to new rights relating to underground networks, introduced through Clauses 59 and 60, which are also intended to facilitate faster and more efficient upgrading and sharing. For example, it may be sensible when granting permission for a second operator to share the use of ducts and poles for the main operator to authorise the second operator to carry out the appropriate fixing of notices on its behalf.

Turning to proof of consent, the provision makes clear that the formalities needed for a Part 2 code agreement will not be needed for an operator to secure permission to access land in order to exercise its paragraph 74 rights. A verbal agreement can therefore satisfy the condition, but of course individual operators may wish to have proof of that permission in writing.

Finally, on the occupier giving their consent to a contractor, the occupier of land on which a pole is situated will need to give the operator permission to access the land before the operator exercises its new rights. Industry stakeholders report that obtaining consent to access land to carry out one-off activities can be achieved in significantly less time and at much lower cost than it would take for a formal code agreement to be concluded. Limiting the activities that can be carried out using these rights means there is not the same need for a formal agreement between the operator and the occupier of the land since the terms upon which the rights may be exercised are effectively prescribed by the conditions attached to them. The conditions therefore achieve the dual purpose of protecting the occupier’s interests while removing the need for a formal agreement.

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[Lord Clement-Jones (LD)]

My Lords, on these Benches we strongly support these amendments which support changes to the current valuation basis, the flaws in which were so expertly explained by the noble Earl, Lord Lytton, in Committee, and so clearly today by the noble Earl, Lord Devon, the noble Baroness, Lady McIntosh of Pickering, and the noble Lords, Lord Cromwell and Lord Northbrook. As the noble Earl, Lord Devon, has said, the current provisions are a mistake—astonishing from a Conservative Government, as the noble Lord, Lord Cromwell, said—and the motives of many of us were reflected by what the noble Lord, Lord Northbrook, said: that what we are trying to do is to ensure that the ECC delivers the stated policy of the Government. All of us are behind the 1 gigabit policy, as delayed and slow as it may be, but we want it to be delivered. It appears that the Government, as the noble Lord, Lord Northbrook, also said, are completely ignoring the reports of the IEA, the CEBR and others who have pointed out that precisely these changes in valuation in the 2017 changes to the code have not, and those proposed will not, ensured faster rollout than the original valuation methodology.

Under changes to the code made in 2017, a “no scheme” valuation methodology for valuing land was introduced, as we have heard, and this allowed site providers to recover only the raw value of their land, rather than receiving a market price. As the noble Baroness, Lady McIntosh, has highlighted, operators have been able to use the changes made to the ECC to drive down the rents they pay to site providers, often to peppercorn rents. She also highlighted the impact assessment made by the Government which said that rent reductions should be no more than an absolute maximum of 40%. But of course, we know from the data quoted by operators that reductions have at best averaged 63%, a huge sum for many of the people who rent their land for use for telecoms infrastructure, and in many cases as we have heard today, reductions have been much higher—in the region of 90%. As I mentioned in Committee, the Protect and Connect campaign produced some powerful case studies, such as the Fox Lane Sports & Social Club in Leyland, Lancashire, to support this; and we agree that the right solution to get this market moving again is to reinstate a fair valuation mechanism, such as the one envisaged by the Law Commission.

In addition, in principle we entirely support the amendment spoken to today by the noble Baroness, Lady McIntosh, and the noble Earl, Lord Devon, designed to cap cuts to site provider incomes and prevent retrospective lowering of rents. I really do hope that the Government will give these amendments careful consideration, supported as they are by a very strong cross-party coalition—and indeed a country-wide campaign.

[Baroness Merron (Lab)]

My Lords, the issues addressed in this group of amendments have certainly exercised your Lordships’ House throughout the course of the Bill and have drawn much attention outside this House as well. I am grateful to the noble Earl, Lord Devon, and the noble Baroness, Lady McIntosh, for introducing their amendments with such clarity. I believe that all the amendments in this group seek to bring fairness, balance and efficiency to the task before us. The noble Lords, Lord Cromwell and Lord Northbrook, also spoke to these points, again with great clarity, in illustrating the challenge before us.

As we have outlined at previous stages, we are sympathetic to the concerns around the changes to the valuation of sites that host telecoms infrastructure. A point I have always found somewhat perplexing—I hope the Minister can assist on this—is that industry itself admits that reductions to rents have on average been far above the 40% promised by government, yet the 40% figure continues to be put before us. I would welcome some insight into that from the Minister.

We understand the importance of getting infrastructure rolled out swiftly to improve the availability of 5G and high-speed broadband and, as I have said, we all understand that a balance has to be struck. The amendments in this group would make a number of changes to the current regime to try to redress the loss of landowner rights. I certainly understand the motivation for these changes but suggest to your Lordships’ House that an independent review of the whole system would perhaps offer a more useful way forward. That is something we will return to in a later group of amendments.

Delivery, balance and fairness are key here. I hope that the Minister will take these points on board and find us a way forward, because that is what we are seeking.

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Moved by

[Baroness Merron]

28: After Clause 74, insert the following new Clause—
“Independent review of the electronic communications code
(1) Within the period of three months beginning with the day on which this Act is passed, the Secretary of State must appoint an independent person to undertake a review of the effect of—(a) the electronic communications code, and (b) the Telecommunications Infrastructure (Leasehold Property) Act 2021,on the deployment of 1 gigabit per second broadband and other forms of telecommunications infrastructure.(2) The review under subsection (1) must, in addition to any other matters the Secretary of State deems appropriate, include consideration of—(a) the extent to which revisions to the electronic communications code have secured progress towards His Majesty's Government's targets relating to telecommunications infrastructure,(b) the balance of rights and responsibilities of land- owners and telecommunications operators, and(c) the impact of this Act on the level of competition in the telecommunications sector.(3) The independent person may make recommendations to the Secretary of State on matters including (but not limited to)—(a) potential further revisions to the electronic communications code,(b) potential amendments to—(i) legislation, or(ii) guidance,relating to the valuation of land used to host telecommunications infrastructure, and(c) the potential benefits of imposing a requirement for telecommunications operators to report annually to OFCOM on their investment in new infrastructure.(4) Upon receipt of the report from the independent person, the Secretary of State must—(a) publish the report,(b) prepare a response to the report, and(c) lay a copy of the report and response before Parliament.”Member’s explanatory statement
This amendment would require the Secretary of State to appoint an independent person to conduct a review of recent changes to telecommunications infrastructure legislation and policy. This review would consider what further changes may be required to ensure regulation in this field delivers new infrastructure in a way that also preserves competition in the sector.

[Baroness Merron (Lab)]

My Lords, I am pleased to speak to Amendment 28, which we have tabled in an attempt to find a constructive way forward to perhaps the greatest area of discussion throughout this Bill which has not yet been resolved—how we bring together the balance, the fairness and the efficiency that we all say we are looking for. This amendment is an attempt to amalgamate various others that were debated at Committee stage. I am very grateful to colleagues across your Lordships’ House who have worked with us on the draft or have indicated their support for this approach. In particular, I thank the noble Lord, Lord Fox, for adding his name, and, of course, my noble friend Lord Bassam.

Since taking office, the new Prime Minister has made a lot of her commitment to rolling out high-speed broadband and 5G. We welcome that commitment and would like to see it come into reality, particularly as, regrettably, the former Prime Minister repeatedly watered down the targets. We want to see modern infrastructure installed and want that to happen quickly, but we also want the system to be fair—to operators, yes, but also to the landowners who host equipment and consumers who are in the midst of a cost of living crisis.

The Government, we understand, will say—and I hope the Minister will not be going down this road—that a review as proposed in this amendment would only slow things down. Let me deal with that. This amendment does not prevent any of the Bill’s provisions coming into force. The Government, we understand, are also minded to say that they are confident in their approach in this area and therefore no review is necessary. If that is the case, I suggest that an independent review would give their policies a clean bill of health. However, I suspect an independent review would conclude that all is not as well as has been presented, and its recommendations could therefore be a very helpful resource for the new Secretary of State and the Government.

We see no reason why the Government could not simply accept this amendment and get on with appointing somebody independent to lead a review. If the Government are not willing to do that, we will be minded to test the opinion of the House. I beg to move.

[The Earl of Devon (CB)]

My Lords, I added my name to this amendment at the last minute and I am very pleased to support it. From my earlier contribution, the House will be aware of my concerns about the lack of consultation prior to the passage of this Bill. The contributions of many noble Lords and the Ministers’ responses have only increased those concerns. I did not push for a vote on the prior amendments regarding valuation and ADR because I believe those issues will properly be considered in the context of this independent review.

The Government have suggested in discussions that a review will unduly impact the market and slow the rollout of digital infrastructure. This is not possible. We have established that the market is already broken and the costs of transacting telecoms sites have more than doubled since 2017, as reported in the RICS conference, and the number of cases before the lands tribunal has more than tripled. The ECC is not working and expanding its broken application to historic 1954 Act leases will only increase the challenges. A review is urgently required, and I urge that this be voted on.

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[Lord Kamall (Con)]

The noble Lord makes a reasonable point. I know that noble Lords are keen to see the data, but all that I can do at the moment is undertake to make it available as soon as possible—I did not say “in due course”, by the way. We believe that the prospect of another review will, quite simply, create chaos in the market—I know that noble Lords disagree with that. Site providers would inevitably, and not unreasonably, draw out negotiations as long as possible, in the hope that the “no scheme” valuation regime would be scrapped. It is important to consider that.

Secondly, the amendment seeks to impose a duty to assess, in isolation, the impact of this legislation and the previous reforms made to the code on digital connectivity and on stakeholder relationships. The Government question how feasible it is to quantify the extent to which such progress is attributable to a single piece of legislation, and we all know that the market to which these provisions apply is dynamic. By the time such a review has been commissioned, the research carried out and the findings reported on, the market is likely to have moved on significantly, rendering that report obsolete. In 1996, I wrote a bestseller on EU telecommunications policy—I am sure you have all heard of it—and, by the time it was published, it was already out of date. That shows how quickly this market develops. Funding such a report therefore cannot provide good value to the taxpayer, and the amount could be better spent helping the Government reach their ambitious connectivity targets, to which I will come in a moment. But remember: the report would probably be obsolete by the time it is published.

Finally, this amendment overlooks the substantial review and reporting mechanisms that are already in place. For example, in relation to progress on gigabit-capable broadband, my noble friend Lord Parkinson referred in Committee to Ofcom’s annual Connected Nations report, which is updated twice a year and provides a clear assessment of the progress in both fixed and mobile connectivity. The Government also monitor and report regularly on their connectivity commitments, with quarterly updates published by BDUK. The Government will of course carefully consider the implementation of this legislation to understand how it is working in practice. For these reasons, I believe that the proposals in this amendment, while well-intentioned, could be disproportionate and ultimately unhelpful. I have also written about unintended consequences, and we have to be very careful of these here.

I will respond directly to the question of the noble Lord, Lord Fox, about targets. The levelling-up White Paper set out our mission that, by 2030, the UK will have nationwide gigabit-capable broadband and 4G coverage, with 5G coverage for the majority of the population. The Government are developing a wireless infrastructure strategy to set out the strategic framework for that development, and this will be published later this year.

The existing 5G target, which is for the majority of the population to have access to 5G by 2027, has been met five years early, with basic non-standalone 5G. As part of the wireless infrastructure strategy, we are establishing a new ambition for 5G. The shared rural network will see the Government and industry jointly investing over £1 billion to increase 4G mobile coverage throughout the UK to 95% geographic coverage by the end of the programme, underpinned by licence obligations.

The UK Government’s other target for broadband remains to deliver gigabit-capable broadband to at least 85% of premises by 2025 and to reach over 99% by 2030. To achieve the minimum 85% objective, DCMS is stimulating the market to deliver as much as possible—at least 80% by 2025. It has also invested £5 billion as part of Project Gigabit to ensure that the remaining 5% in the UK receive coverage. If I have not answered the questions of the noble Lord, Lord Fox, I commit to write to him—perhaps he could let me know.

I understand that there was a lot of interest, and there have been very well-made points during the debate, but I am afraid that the Government cannot accept this amendment at this stage.

[Baroness Merron (Lab)]

My Lords, it is disappointing that the Minister has not found a way to respond to the very real, informed and evidenced points raised not just today but at previous stages. I am sure that the Minister knows full well that his response just will not do. This amendment seeks to find a constructive way forward—something that the Government have failed to do—and bring together people who previously were apart. It seeks to address the obstacles to the ambitions that the Government say they have, in a way that the Government have failed to do. It also seeks to bring transparency to assist a process. I have heard the Minister, but I am disappointed, and I therefore feel that I must test the opinion of the House.

Gambling White Paper

Baroness Merron Excerpts

Wednesday 20th July 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

The Government’s response makes clear that the purchase of loot boxes should be unavailable to all children and young people unless they are enabled by a parent or guardian, and all players should have access to and be aware of spending controls and transparent information to support their gaming. That is the right approach to address this issue.

[Baroness Merron (Lab)]

My Lords, as noble Lords have already pressed home, each delay to the long-awaited gambling White Paper potentially puts people at greater risk of falling into problem gambling, with all the human and societal costs that it brings. Does the Minister recognise that, in addition to the delayed review of gambling, the online safety agenda has stalled again, broadband targets are constantly watered down, and creatives are still waiting for support initiatives to come on stream? Why does DCMS struggle so much with delivery?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the noble Baroness is being a little unfair, particularly on broadband. Our rollout of gigabit-enabled broadband continues apace, bringing connectivity to many more households across the country. The department is still hard at work on all six Bills that we have this Session. I enjoyed speaking to her this morning about the Online Safety Bill and look forward to debating that and other measures in your Lordships’ House.

Musicians and Creative Professionals: Working in the European Union

Baroness Merron Excerpts

Thursday 7th July 2022 Grand Committee

[Baroness Merron (Lab)]

My Lords, I am also very grateful to the noble Earl, Lord Clancarty, for securing this debate. I thank him not just for today but for all the work he has done to shine a very helpful and practical spotlight on the difficulties encountered by those in the creative industries, whether music, fashion, dance, the visual arts or the many other aspects that our country can offer. As always, the noble Earl brings us all together. I hope that the Minister will have some comfort for us today about action that will be taken.

As we have heard, this is not just about the very important role of the creative sector in the economy—an economy which so desperately needs growth and improvements in productivity, and we can look to the creative sector for a major contribution there. It is also about flying our flag, which the right reverend Prelate spoke about. It is about entertaining and enriching us, as the noble Lord, Lord Cormack, said. It is about our heritage and culture. As the noble Lord, Lord Hannay, said, this is being hampered by an artificial set of obstacles under the banner of Brexit. I am sure it is within our wit to sort this out, and I remain mystified as to why it has not been possible to do so.

The noble Baroness, Lady Fleet, spoke about a focus on young people and their development in schools. It is one thing to educate, but there has to be an outlet for young people who want to go further. I believe we owe it to them to do this.

As has been referenced a number of times, the noble Lord, Lord Frost, conceded that the UK Government could and should have secured a better deal in this area. From these Benches, we also believe that a better deal could be available but that negotiations in this area were not helped by the Government’s ongoing approach to challenges around the Northern Ireland protocol. With the prospect of new leadership and a new Government in sight, perhaps the Minister might comment on what opportunities may now be liberated in this regard.

When I looked back, in preparation for this debate, at the Questions and previous debates we have had in the Chamber, I saw repeated comments that those in the creative sector can refer to GOV.UK, where requirements listed by individual country are available. I do not doubt that for a moment, but I do not feel that that is the answer we are looking for today. As the noble Baroness, Lady Bull, said, there are mechanisms that can already be used to find a way forward, without even looking at a number of the new solutions that various organisations and noble Lords have put forward to assist the Minister. That is an important point, because it is not just in our interests in the UK to remove the unnecessary obstacles; it is also in the interests of our European friends and neighbours, who I believe would be all the poorer if they did not have access to what our British creative sector can offer them.

I pick up the point referred to by my noble friend Lord Stansgate and other noble Lords in the course of this debate. What effect does the Minister feel that the difficulties to which we have alluded today have had on emerging talent? What assessment has there been of whether there has been an exacerbation of pre-existing inequalities? If there has been such an assessment, what steps will there be to deal with these inequalities? It cannot be right that young, working-class, diverse artists find themselves more likely to be stopped and denied entry. They are also the group that will find it harder to meet upfront fees.

I hope the Minister will reflect on this debate, as I know he always does, and see in it not just criticism of where we are but a will to find a constructive way forward, which I hope we can get to.

Clearview AI Inc

Baroness Merron Excerpts

Tuesday 5th July 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

CCTV can help people to feel safe on the streets and can help in the prosecution of crimes committed against people. We support the police using new technologies to keep the public safe, and we are simplifying the oversight of biometric and overt surveillance technologies such as CCTV cameras. The ICO will continue to provide independent oversight and regulation of all biometrics and surveillance camera use, including by the police.

[Baroness Merron (Lab)]

My Lords, as is so often the case, companies such as Clearview AI operate across the world and may attract the attention of multiple regulators. Given that these bodies may exchange information, can the Minister confirm whether a firm’s bad behaviour in another jurisdiction will provide grounds for investigation by the ICO? Also, what weight, if any, does the ICO give to events elsewhere when determining sanctions such as fines?

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness is right: global co-operation is needed on this. Our new Information Commissioner, who was previously commissioner in New Zealand, has recently been to Brussels to discuss how best the ICO can co-operate with international partners to tackle threats to privacy such as this, so he is indeed engaged globally, as noble Lords would hope.

Product Security and Telecommunications Infrastructure Bill

Baroness Merron Excerpts

Lords Hansard - Part 2 & Committee stage
Wednesday 29th June 2022 Lords Chamber

Moved by

[Baroness Merron]

45: After Clause 74, insert the following new Clause—
“Review of 2017 revisions to the electronic communications code
(1) Within the period of three months beginning with the day on which this Act is passed, the Secretary of State must undertake a review of the effect of Schedule 1 to the Digital Economy Act 2017 (the electronic communications code).(2) The review under subsection (1) must, in addition to any other matters the Secretary of State deems appropriate, include consideration of—(a) the extent to which the 2017 revisions have secured progress towards Her Majesty's Government's targets relating to telecommunications infrastructure,(b) the impact of the 2017 revisions on rents under tenancies conferring code rights, and(c) the case for re-evaluating the value of rents under tenancies conferring code rights.(3) Upon completion of the review under subsection (1), the Secretary of State must lay a copy of the findings before Parliament.”Member’s explanatory statement
This amendment would require the Secretary of State to undertake a review of the 2017 revisions to the electronic communications code, with a particular emphasis on the effect(s) of the substantially lower rents paid by operators to landowners hosting telecommunications infrastructure.

[Baroness Merron (Lab)]

My Lords, when the Electronic Communications Code was revised in 2017, the department committed to keeping track of developments and assessing the impact of those changes. I was grateful to the Minister for holding a meeting about the Bill prior to Second Reading, but when I queried the status of that review the response was that the Government had never explicitly committed to making its findings public. This leads me to Amendment 45.

Amendment 45 would require the Secretary of State to undertake a review and lay the findings before Parliament. This could be a new exercise or a matter of pulling together existing information. The amendment calls for a particular focus on issues around rents, but it also includes a request for a judgment on the extent to which the 2017 revisions have accelerated the rollout. This is a theme touched on by the other amendments in this group. I am sure the Government feel that they have a good story to tell, so I invite the Minister to accept the invitation to tell it.

Amendment 48 brings together a number of topics which were lightly touched on earlier today and calls for a comprehensive strategy for resolving issues around landowner rights, competition within the sector and so on. We believe that the department has a number of working groups which are supposed to deal with these issues. It would be helpful if the Minister could tell us when those working groups last met and when they are next due to meet. There is clearly work to be done to speed up the rollout of telecoms infrastructure and to ensure fairness in the system, which has also been a theme throughout the debate today.

We hope that the Government can clearly signpost how they are addressing the various issues raised in these amendments. If not, they are very likely to be revisited on Report. I beg to move.

[Lord Clement-Jones (LD)]

I shall speak to Amendments 47, 49 and 50, and I support the amendments in this group to which the noble Baroness, Lady Merron, has just spoken: Amendments 45 and 48.

As regards Amendment 47, as I said at Second Reading, we all seem to be trapped in a time loop on telecoms, with continual consultations and changes to the ECC and continual retreat by the Government on their 1 gigabit per second broadband rollout pledge. In the Explanatory Notes, we were at 85% by 2025; this now seems to have shifted to 2026. There has been much government bravado in this area, but it is clear that the much-trumpeted £5 billion announced last year for project gigabit, to bring gigabit coverage to the hardest-to-reach areas, has not yet been fully allocated and that barely a penny has been spent.

Then, we have all the access and evaluation amendments to the Electronic Communications Code and the Digital Economy Act 2017. Changes to the ECC were meant to do the trick; then, the Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations were heralded as enabling a stronger emphasis on incentivising investment in very high capacity networks, promoting the efficient use of spectrum, ensuring effective consumer protection and engagement and supporting the Government’s digital ambitions and plans to deliver nationwide gigabit-capable connectivity.

--- Later in debate ---

We believe that a further strategy on top of those I have outlined this evening would simply serve to muddle our work, and I hope that the noble Baroness will be content on that basis to withdraw her amendment, and that other noble Lords will not press theirs.

[Baroness Merron (Lab)]

My Lords, I thank the Minister for his response and assure him that I will not be speaking so long as to take him into his birthday—I am sure that is a great disappointment.

This has been a very helpful debate. I have listened closely to the Minister’s response and will of course be going through Hansard to consider how we might deal with these matters on Report. I am sure the Minister has heard what noble Lords said about the need for transparency and for reporting, not for reporting’s sake and not for transparency’s sake, but to actually support what we are seeking to do through the Bill.

I understand the point the Minister made about the tension between reporting and getting on with the job, but I do not feel that one needs to be at the expense of the other. In fact, they support each other. That is what we need to consider. Having said that, I will not press these amendments at this stage. I thank the Minister and wish him a happy birthday for tomorrow. I beg leave to withdraw my amendment.

Amendment 45 withdrawn.

Product Security and Telecommunications Infrastructure Bill

Baroness Merron Excerpts

Lords Hansard - Part 1 & Committee stage
Wednesday 29th June 2022 Lords Chamber

We fully support this amendment and if the Minister cannot agree to it, as the noble Baroness, Lady Harding, says, we look forward to him tabling the necessary amendment on Report. After all, this amendment would achieve a consistent application of paragraph 17 of the ECC by extending permissions to reasonably associated apparatus without the risk of also including the apparatus within the premises, which is the bone of contention on the earlier amendments.

[Baroness Merron (Lab)]

My Lords, I was very pleased to put my name to the amendment tabled by the noble Baroness, Lady Harding. As she says, this is simple, limited in scope and extremely practical. It is a clarification of and an improvement to this aspect of the Bill, which works for all parties. I hope the Minister will agree, even if what we end up with is not the exact wording that we start with today.

As the noble Baroness, Lady Harding, explained, poles, like ducts, are regulated under Ofcom’s PIA mechanism, so extending this provision to pre-2017 poles on private land would allow all operators to speed up their rollout equally. That is the essence of what we are talking about in the Bill: extending provision and allowing fair access. This amendment will greatly assist us, not least because if the reforms in the Bill do not work properly we will see more streets being dug up, which is never popular, and in this case might perhaps require the installation of new poles—again, something we could do without.

I hope that when the Bill is amended we will drastically contain the time, cost and disruption caused by the rollout. Although people want to see the rollout, the practical effects in communities create unwelcome disruption. This amendment is needed to confirm that sharing pre-2017 poles on private land needs to be included in the Bill. It will speed up the deliver of rollout and it is welcomed by all across the industry.

I shall briefly refer to the comments by the noble Lord, Lord Vaizey. I do not want at this stage to dwell on the amendments we did not have the benefit of discussing properly, but perhaps the noble Lord can look forward to Amendment 48, which we have tabled. It takes a different tack from the noble Lord’s amendments and puts the onus on government and the industry to find a way forward. I hope that when we get to that amendment the Minister will be open to detailed, cross-party discussion before Report on how we resolve the issue that we were not able to attend to earlier in the debate. I support this amendment and hope the Minister will feel similarly.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

My Lords, I think the whole House is grateful to its former Leader, my noble friend Lady Stowell, for moving Amendment 18 and keeping us on the right procedural track. Amendment 18, spoken to by my noble friends Lady Harding of Winscombe and Lord Vaizey of Didcot, the noble Lord, Lord Fox, and the noble Baroness, Lady Merron, who signed it, concerns rights to upgrade and share telegraph poles.

Clauses 59 and 60 will help to optimise use of the UK’s extensive duct networks through greater upgrading and sharing, but ducts and cables under land do not represent our entire digital network, as noble Lords have reminded us today. Telecommunications lines flown over land play a substantial role too. These lines are dependent on the telegraph poles that support them. Over 1 million such poles are installed across the UK, as noble Lords have noted, providing coverage and connectivity to entire communities, particularly in rural parts of England such as Herefordshire, as the noble Lord, Lord Fox, will know, and urban areas of Scotland.

Since the Bill’s introduction, the Government have been called on to introduce measures to facilitate the upgrading and sharing of poles. We understand that there are substantial public benefits in coverage, connectivity and consumer choice, so we welcome the attention that this amendment has drawn to the significance of poles and lines in network delivery, but as I anticipated at Second Reading, we have concerns as to whether the amendment would deliver material change.

I take on board fully my noble friend Lady Harding of Winscombe’s point about the constructive spirit in which the amendments are brought forward and agree that we must look beyond the drafting of this specific amendment, but as the noble Earl, Lord Lytton, says, this is a legally complex matter. For example, it is not clear whether this amendment would permit pole sharing or allow operators to carry out works beyond those needed for a line to be flown. That might exclude upgrade works that would allow a pole to be used for fibre rather than copper lines.

It is important to note that paragraph 74, to which this amendment refers, deals with land adjacent to or in the vicinity of that on which poles are situated. We need to think about works that might involve the land on which that pole is placed. The Government are looking closely at ways to optimise the use of telegraph poles, but we must ensure that if changes are made in this area, they not only deliver public benefits but include sufficient protections for individuals with poles situated on their land. We will continue to look closely at this issue, but I am not able to accept this amendment today. I repeat the assurance I made at Second Reading that we are actively looking at this issue, and we will continue to consider it ahead of Report.

In response to some general points about requests from the industry, we certainly agree that operators should be able to obtain the rights they need to install and maintain the apparatus needed for robust network coverage throughout the UK. The department undertakes regular engagement with the industry and, if we receive compelling evidence that the Bill can be improved, we are happy to consider whether there is a good case for going further. When doing so, however, the Government will always consider the effect that any potential changes could have on landowners.

My noble friend Lord Vaizey inventively asked why telegraph poles were less contentious than multiple dwelling units, the subject of the amendments lost to today’s debate. We must also bear in mind that a good regulatory framework encourages competition and investment, which are both crucial in delivering consumer choice and supporting deployment to hard-to-reach areas. Measures beneficial to one operator may not always encourage the market competition needed to deliver better outcomes for customers. Indeed, it is important to stress that there is no consensus from the industry on this issue. In fact, many operators have opposed the proposal on the grounds that it would create an unfair advantage for operators that already have equipment inside buildings, and so could potentially have anti-competitive effects.

--- Later in debate ---

[Baroness Harding of Winscombe (Con)]

My Lords, may I make one additional comment? Despite my noble friend Lord Vaizey thinking I am personally responsible for mobile investment and pricing, I should like to put on the record that TalkTalk did not do anything to mobile pricing; it is a fixed-line broadband provider, not a mobile provider.

Regardless, I should like to make a serious point about competition. The noble Earl made the point that we should believe in a free market, which I definitely do. I firmly believe that competition will get to the right answer, but completely unfettered, unregulated infrastructure markets do not drive competition—they drive the opposite. That is one reason I am really concerned about the multi-dwelling unit amendment that we did not debate, because that risks the absence of competition.

In the same way, I support my noble friend Lord Vaizey because if we do not have a regulated approach to the valuation, we will find not the domination of big mobile companies but the monopoly control of individual landowners, particularly when there is already a mobile mast on their site, as they have a complete monopoly control of that site. It is important that we find a balance because there is power on both sides of this relationship. Big is not always the most powerful. I say that having learned that myself at TalkTalk. I support the comments of my noble friend Lord Vaizey. This is not as one-sided as this debate has perhaps felt.

[Baroness Merron (Lab)]

My Lords, the issue of valuation, as we have heard clearly today, generates one of the most significant ranges of concerns. Noble Lords have been extremely helpful in unpacking the issues, whichever side they may be on in this debate. I will focus on Amendment 21, which I am pleased to have tabled. It seeks to guide courts in relation to the appropriate reduction in rents paid by operators to landowners. The amendment seeks to ensure consistency with the Government’s previous indication that losses would be confined to something in the order of 40% maximum. I will confine my comments to that point.

When the Government reformed the code in 2017, Ministers indicated that, although landowners would lose out overall, they could expect to receive some 60% of the sum to which they had become accustomed. As we have heard in this debate, losing 40% of proceeds, despite exactly the same access rights being granted to operators, is quite a situation to contend with. As discussed at Second Reading, cases have been cited where reductions reached some 90%.

I am aware that the campaign group Speed Up Britain has objected to the quoted figure of 90%, citing industry figures that show an average rental reduction of 63%. However, even that is substantially higher than the 40% promised by the Government, which has led to many churches, village halls, sports clubs, farmers and even hospitals scratching their heads, trying to make sense of the situation.

We all know that we need the infrastructure; that was made clear by the noble Earl, Lord Devon. We want that infrastructure quickly, but we also want an appropriate balance of the rights and responsibilities of both telecoms operators and landowners. It is not a convincing argument that lower rents automatically mean higher investment in infrastructure. I am sure that is a discussion we will return to during the eighth group for debate today.

Our Amendment 21 is but one suggestion and the noble Earl, Lord Lytton, has brought forward a number of his own. I am grateful to the noble Earl for bringing his expertise to bear in addressing these issues. I certainly hope the Minister will engage in his usual considerate way with all the propositions put before the Committee. I also appreciate the amendments brought forward by the noble Baroness, Lady McIntosh, who is also seeking to ensure fairness and balance between the parties.

So I hope the Minister will address a point that he made at Second Reading and that is relevant today. He suggested that rent reductions were likely to be compensated for—not directly but as a matter of degree —by funds allocated under other DCMS schemes. It would be helpful if he could provide the figures to back that up; I realise that that requires considerable detail, so he could perhaps respond not today but subsequently, in writing.

The list of case studies grows day by day and, given this, many people are asking why the Government did not stand by their original commitment to a maximum reduction of 40%. I hope that the Minister will consider the amendments and respond to that question.

--- Later in debate ---

[Baroness Merron (Lab)]

My Lords, the debate on this group raises a number of interesting points, but they are all on the same theme. They are about what happens should disputes arise. No one wants to be in dispute, but when one arises, it is crucial that everybody knows what the rules are and that the resolution creates an environment and practice which means that the same issues do not continually arise. The contributions from noble Lords today have talked a lot about fairness, respect and calling to heel those who need to be called to heel for fairness and respect to occur. It is about getting the balance of rights and responsibilities between the parties right. I hope the Minister will consider the valid points raised by this group.

In particular, it would be helpful to hear how the Minister feels about the present situation, where the operator must only consider the use of the dispute resolution system—and even then, only if it deems it is reasonably practicable to do so. Has that been satisfactory, because this set of amendments clearly suggests not? I was particularly struck by the words of the noble Earl, Lord Lytton, who spoke about such resolution being easily avoidable. That does not give us confidence. I therefore hope that the Minister will reflect on the spirit and intent and, perhaps, come to us with some practical measures to improve the current situation.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I shall first address points made by the noble Earl, Lord Devon, as well as my noble friends Lord Northbrook and Lady McIntosh, about some of the case studies. I certainly agree entirely with the noble Earl, who speaks from personal experience and makes the point that some of the lobby groups which have been vocal on the Bill are painting a very different picture to those directly involved, and with whom we have had extensive discussion. Your Lordships’ House benefits from having people such as the noble Earl and my noble friends who can speak from personal experience.

In particular, at Second Reading, the noble Earl showed how he speaks not just as a landowner and the litigator but as a consumer who shares the objective of wanting better connectivity. I am very happy to make absolutely clear that I understand that his point and those of other noble Lords are made in that spirit. I hope he can see that, for my part, we have been willing to listen and continue to be receptive to hearing contrary points; it is just that, in our discussions with the industry, we have had a clear picture painted.

The noble Earl asked a general but important question: why should site providers bother, given the other ways they could use their land? Without wishing to reopen the debate on valuation, we believe that the 2017 provisions created the right balance between the public need for digital communications and landowners’ rights. The code makes separate provision for landowners to recover compensation for loss or damages and, taken together, we think the provisions on consideration and compensation mean that landowners can still receive a fair payment for allowing their land to be used.

The new pricing regime is more closely aligned to those for other utilities, such as water, electricity and gas. We do not think it is less attractive than other comparable uses. As I said on a previous group in relation to a point raised by my noble friend Lady McIntosh, landowners should still receive their payments—which, among other things, take into account any alternative uses that the land may have and any loss or damage that may be incurred.

Turning to the amendments in this group, the purpose of Clause 68, as probed by my noble friend Lady McIntosh of Pickering and the noble Earl, Lord Lytton, is to encourage more collaborative discussions between landowners and operators and to ensure that litigation is only used as a last resort. We know that code negotiations can be difficult—my noble friend Lord Northbrook referred to that from his experience—and that, in some cases, landowners have felt pressured to accept any terms offered to avoid the risk of being taken to court. To address this, Clause 68 encourages the use of alternative dispute resolution to minimise the risk of landowners feeling pressured and to facilitate co-operative discussions.

At Second Reading, my noble friend Lady McIntosh suggested that alternative dispute resolution is optional for operators. I hope I can give her and other noble Lords some assurance on this matter, given the requirements for parties to consider use of ADR and for the courts to consider unreasonable refusal to engage in ADR when awarding costs.

ADR not being mandatory is a deliberate feature of this policy. That choice was made for two reasons. First, ADR may not be suitable in certain cases. For example, where a disagreement is based on differing interpretations of the law, this may have to be determined by a court. Mandatory ADR would add cost and time to this process without any benefit. Secondly, where ADR is appropriate, mandatory ADR would compel some parties to participate in a process they do not want to be involved in, making them less inclined to actively engage. This would increase the risk of failure, and the parties would then have to go to court anyway—only adding further time and costs for landowners. The clear majority of groups—including the Country Land and Business Association—opposed compulsory ADR when we consulted them.

I turn to Amendment 39, tabled by the noble Lords, Lord Clement-Jones and Lord Fox, and the noble Earl, Lord Lytton. This amendment would require evidence of a breach of Ofcom’s code of practice to be taken into account in ADR judgments. It should be noted that not all forms of ADR have judgments. Mediation is one such alternative. Furthermore, the Ofcom code of practice gives guidance on best practice; it does not set out specific requirements to be adhered to. As such, using the code of practice to underpin or effect decisions made in alternative dispute resolution risks creating further disagreements and disputes, rather than resolving them.

Finally, and most crucially, the amendment would undermine the open and collaborative approach on which successful ADR relies by forcing operators to enter any ADR process on a defensive footing. The outcome would be simply to blunt the effectiveness of alternative dispute resolutions and add to the administrative and cost burden for all parties. It is on this basis that I invite noble Lords not to press their amendments.

I turn to the Ofcom code of practice. We know that, in some cases, landowners are reluctant to enter into code agreements because they are concerned about how the operator or their contractors will behave when they carry out their works. Clause 69 addresses this issue by requiring guidance to be prepared by Ofcom, following consultation, regarding operators’ handling of complaints about their conduct. This guidance will be added to Ofcom’s code of practice. To complement this, the Government also intend to bring forward secondary legislation—in consultation with Ofcom and others where appropriate—to make regulations to achieve three things: first, to create a requirement on operators to have a complaints procedure in place to handle complaints relating to their conduct; secondly, to set out minimum standards which this process must meet; and, thirdly, to oblige operators to have regard for the Ofcom code of practice when handling complaints.

Amendment 40, tabled by the noble Lords, Lord Clement-Jones, Lord Fox and Lord Blunkett, and the noble Earl, Lord Lytton, would make adherence to Ofcom’s code of practice obligatory and make breaches of that code punishable by a fine of £1 million. As I mentioned in relation to Amendment 39, the Ofcom code of practice is intended to set out guidance. Deciding whether a particular course of action is a breach would be very subjective. The code of practice applies to both operators and landowners, and this amendment does the same. While some operators may have the resources to sustain such fines, very few landowners would.

We all want network rollout to proceed as quickly as possible. However, making compliance with the Ofcom code of practice mandatory and failure to do so subject to a heavy fine means that operators and landowners would be disincentivised from seeking to reach agreements at all. For those who might proceed, one can imagine them doing so as slowly and gingerly as possible to avoid the risk of breaching a code of practice that was never designed to be used in such a way.

Amendment 41, tabled by the noble Lords, Lord Clement-Jones and Lord Fox, and the noble Earl, Lord Lytton, and Amendment 42, tabled by the noble Lord, Lord Fox, set certain requirements regarding complaints handling, such as time limits for responding and compensation payable. As I noted earlier, Clause 69 will require Ofcom to amend its code of practice to include guidance on complaints handling. The Government also intend to make regulations to set out minimum standards for operators’ complaints processes. Both of these could feasibly include elements similar to those proposed in the amendments, and both will be developed through consultation. The Government firmly believe that this is the best way to encourage all parts of the sector to welcome and comply with the new procedure.

Also related to the code of practice is Amendment 42A, tabled by the noble Earl, Lord Lytton. Currently, for a private organisation to seek and exercise rights under the Electronic Communications Code, it must be the subject of a direction from Ofcom that the code applies to it. The first part of the noble Earl’s Amendment 42A would require Ofcom to reconsider each operator’s status as an operator for these purposes every five years, taking into consideration, among other things, complaints made against it for breaches of the code of practice. His amendment would make an operator’s rights to install, maintain and upgrade infrastructure potentially subject to adherence to a code of practice which, as I described just now, would serve only to disincentivise operators from extending their networks swiftly.

The second part of his amendment concerns obligations for operators to report to Ofcom about complaints that they receive, and for Ofcom to publish an annual summary of these reports. These are also the sorts of matters that will be considered when the Government make their regulations to set minimum standards for operators’ codes of practice, and when Ofcom amends its own code of practice.

Amendment 44, tabled by the noble Lords, Lord Fox and Lord Clement-Jones, concerns building safety. The importance of building safety is self-evident, and the Government are committed to doing everything possible to ensure that it is maintained at all times. None the less, the amendment is unnecessary since the code already contains ample protections to ensure that building safety is maintained. Paragraph 23(5) of the code requires that when a court imposes an agreement under part 4, that agreement must include terms for ensuring that the least possible loss and damage is caused in exercise of the rights. Such terms will provide significant building safety protections.

Paragraph 99 of the code makes it clear that the code does not authorise the contravention of laws passed before the code came into force. This means that legislation that was in place before the code came into force, including that on building safety, would not be superseded by measures in the code. Regulation 10 of the Electronic Communications Code (Conditions and Restrictions) Regulations 2003 requires that if an operator receives a report that its apparatus is in a dangerous state, it shall investigate and, if necessary, make the apparatus safe. Therefore, together these provisions already provide robust protections to ensure that building safety is maintained.

The noble Lord, Lord Fox, rightly mentioned Dame Judith Hackitt’s report, which places great importance on the clarity and simplicity of systems to ensure building safety. The Government believe that this amendment would add further unnecessary complexity to the robust protections that already exist in this area. Therefore, Amendment 44 is not needed.

Suicide: Online Products

Baroness Merron Excerpts

Monday 27th June 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My noble friend makes an important point. There are important protections for freedom of expression in the Online Safety Bill. The Bill works by setting out expectations for internet companies to have clear terms and conditions, which users will know of when they sign up to them and which give them recourse to speak to Ofcom if they feel that those terms and conditions are not being upheld. This will empower users, keeping them safe while protecting freedom of expression.

[Baroness Merron (Lab)]

My Lords, there are disturbing reports of TikTok users adopting the term “unalive” as a means of promoting suicide content, while others use shorthand hashtags, such as #ED for eating disorders, as a means of getting round censorship. Can the Minister tell the House whether the Online Safety Bill will do anything to tackle this dangerous creativity of social media users? How will social media platforms be directed to take steps to deal with this as part of their duty of care?

[Lord Parkinson of Whitley Bay (Con)]

The Online Safety Bill will protect users by putting in place systems and processes to mitigate risks. We know that algorithms play an important part in how companies operate their services. Companies will need to consider how these could cause harm and take steps to mitigate them, but the noble Baroness makes an important point about how people use social media. We are setting out a list of priority harms, such as those she mentions, to make sure that people—particularly vulnerable and young people—are kept safe online.

Product Security and Telecommunications Infrastructure Bill

Baroness Merron Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 21st June 2022 Lords Chamber

[Lord Fox (LD)]

My Lords, I rise to move Amendment 1 in my name and that of my noble friend Lord Clement-Jones, who is sadly unable to be here today. Should your Lordships feel at times that I am going on a bit long, just think of the alternative: it could have been both of us.

I should first say in the spirit of co-operation that the aim of this amendment is wholly positive; it is designed to firmly support the intentions of the first half of this Bill—support which we heard right across your Lordships’ House at Second Reading. While introducing this part of the Bill, the Minister set out a clear need for improved security. He told us:

“The average UK household now has nine internet-connected devices, and over 50% of all UK households purchased an additional consumer connectable product during the pandemic.”


The danger to individuals is getting worse. As the Minister also said:

“In the first half of last year alone, we saw 1.5 billion attacks on connectable products—double the figure of the year before.”


With this rise in connectable devices, the Minister said:

“Thousands of people in the UK have been victims of cyberattacks.”—[Official Report, 6/6/22; col. 1033.]


I suggest that this is understating the situation—it must be tens if not hundreds of thousands—but frankly, we just do not know.

This is an international business, which preys on poor security and badly configured devices. Further, our household devices can be co-opted by sophisticated criminal or political hackers to present significant threats to our national infrastructure. That is why this part of the Bill is important; I think we all agree on that. For a connectable device to be secure, it needs to be set up right but then supported throughout its active life to meet the changing environment of security threats. We are all used to updating our laptop security regularly, but how many times have we updated other household-connectable devices? A baby alarm, for example, is never updated.

At Second Reading, I described my fruitless search within the Bill for a definition of the security support that a consumer might reasonably expect for consumer-connectable products in the house. This Bill takes the secondary-legislative route. Rather than set out what consumers should legally expect in terms of through-life product security support, we were promised some SIs, and we heard what the focus would be.

In a letter sent last week, the Minister gave the Government’s reasons for choosing those three areas; I will come back to them briefly. He wrote:

“we are starting with a focus on the three security requirements that will make the most substantial change to consumer device security at a proportionate cost to business”.

But why just these three? The Bill is heavily based on the Code of Practice for Consumer IoT Security, in which 13 security issues were highlighted. To be clear, the first two—“No default passwords” and

“Implement a vulnerability disclosure policy”—

match those of the Minister. Interestingly, on the third one, there is a big difference in language between the Bill—which mentions providing transparency on how long, at a minimum, the product will receive security updates—and the code, which says, “Keep software updated”.

But there are 10 other major areas. I will not list them, but the fourth is:

“Securely store credentials and security-sensitive data”.

The eighth is

“Ensure that personal data is protected”.

Why are those two not as important as the other three? I cannot fathom why those have been left out and the previous three selected. So, given the choice of 13—the Minister can look them up—what was the logic in choosing just those three and dropping the fourth and eighth in particular?

There is also the issue of changing technology. Without a set of principles, the Government’s aim is to chase technological development with a string of statutory instruments, simultaneously keeping up with the world’s most innovative companies and pitting their ingenuity against the world’s top criminals. Life is moving fast—for example, a recent issue of Wired announced the beginning of the end for passwords:

“At Apple’s Worldwide Developer Conference yesterday, the company announced it will launch passwordless logins across Macs, iPhones, iPads, and Apple TVs around September of this year. Instead of using passwords, you will be able to log in to websites and apps using ‘Passkeys’ with iOS 16 and macOS Ventura. It’s the first major real-world shift to password elimination.”


On that basis, this legislation will be partially obsolete before it is enacted.

I have one further technical problem for the Minister to explain. Once again, different bits of government are moving in parallel. A seemingly entirely different exercise—a consultation on app security and privacy interventions—was published in May this year. The suggested interventions include

“a voluntary Code of Practice for App Store Operators and Developers that is intended as a first step.”

Other possible future options set out in the document include

“certification for app store operators and regulating aspects of the Code to help protect users.”

The document then says:

“These proposals link into the National Cyber Strategy through requiring providers of digital services to meet appropriate standards of cyber security and developing frameworks to secure future technologies.”


No mention of this legislation is made.

So where does a connected device end and an app start? Where does the Bill stop and this new code of practice start? If I install my temperature control system, it will involve connected hardware and an app; which of these two pieces of government activity will cover my system, and how are they connected? The Government have not joined this up, and, once again, two things are going on with no connection to each other.

So, I borrowed some of the Code of Practice for Consumer IoT Security for this amendment, which sets out some of the principles. Proposed subsection 2(a) sets a simple obligation for “manufacturers, importers and distributors” to demonstrate a “duty of care”. Proposed subsection 2(b) sets out that

“customers are entitled to have a reasonable expectation that manufacturers, importers, and distributors make sure their consumer connectable products meet minimum cyber security requirements before they are placed on the UK market”.

Proposed subsection 2(c) calls for

“manufacturers, importers, and distributors … to demonstrate an understanding of emerging security threats and a proactive, ongoing support programme to mitigate these risks and ensure that their products are safe by design.”

The Minister would be hard-pressed to argue against these—and his planned SI on accessibility vulnerability is close to proposed subsection 2(c) anyway.

I would like to hear that the Government recognise the benefits that having clear principles in the Bill can deliver. I am sure that the Minister can see these benefits. Secondly, I am not proprietorial over the exact wording. We can use the time between Committee and Report to fine-tune and wordsmith those principles, but I hope that this is a constructive and helpful start.

[Baroness Merron (Lab)]

My Lords, I restate these Benches’ support for Part 1, which introduces a range of important powers and processes relating to the security of consumer-connectable products, including smart TVs, smartphones, connected baby monitors and connected alarm systems, all of which we use in our day-to-day lives. For me, the legislation that we seek to improve today is much needed and needs to move with the times and the way we live. For example, in 2006 there were just 13 million of these devices but in 2024, there is likely to be more than 150 million in the UK alone—a huge projected rise.

I am grateful to the noble Lord, Lord Fox, for introducing this sensible amendment, and to the noble Lord, Lord Clement-Jones, whose name is also on it. It seeks to introduce or suggest some guiding principles relating to product security. For me, the key principles are that manufactures, importers and distributors have a responsibility and a duty of care to meet minimum cybersecurity requirements and look forward to emerging security threats. It seems wise and sensible to include these, so I hope the Minister will take them into account. As the noble Lord, Lord Fox, said, the exact wording of the amendment does not have to be used; it is about the principles. Indeed, it is about not just principles but practice: the message given to consumers as well as to manufacturers, importers and distributors.

I know that in other legislation the Government are often nervous about using the phrase “duty of care”, but, as the Minister knows, there are very real concerns about data collection and privacy. I suggest that this is the very least that consumers should be able to expect. While it may be said that the other principles are not necessary to include, there have been several cases of manufacturers knowing about, yet failing to act on, significant security flaws. I feel this is something we need to guard against.

--- Later in debate ---

In conclusion—noble Lords will be pleased to hear—I note the Minister’s letter of 14 June and respond that it is not good enough not to tell us which enforcement body it will be, because the various processes have to be gone through. This is particularly wrong as we believe that the Minister already knows who the enforcement body is going to be and has decided not to disclose it to your Lordships’ House. Either way, it should be specified in the Bill or subject to parliamentary oversight. The Government cannot have it both ways. I beg to move Amendment 6.

[Baroness Merron (Lab)]

My Lords, I am grateful, as ever, to the Delegated Powers and Regulatory Reform Committee for its very helpful report on this Bill. It would be fair to say that, in general, this Bill has fared better than most Bills, so that gives some comfort. Nevertheless, it is also true to say that the committee has raised a number of concerns and has put forward a very helpful range of recommendations, which are encapsulated in this suite of amendments. I thank the noble Lord, Lord Fox, for his detailed canter through what might be called a veritable feast of amendments.

As I say, this group of amendments very much reflects the concerns of the committee. I should also put on record that as the amendments were tabled at a relatively late stage, these Benches have not signed them. I say to the Minister that there is nothing to deduce from that, because I can confirm that we hope that he will take the concerns that are seriously and sensibly set out in this group and will look at revising the scope of procedures relating to certain powers when it comes to Report stage.

Product Security and Telecommunications Infrastructure Bill

Baroness Merron Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 21st June 2022 Lords Chamber

[Baroness Merron (Lab)]

My Lords, I am grateful to the noble Lords, Lord Clement-Jones and Lord Fox, for tabling these amendments, which seek to clarify how the new measures in the Bill will interact with existing consumer legislation. In a practical sense, they are about how comfort can be given to the consumer and redress made available where necessary.

We in your Lordships’ House know that consumers have had to fight hard over many years to secure important statutory protections, including rights of redress when products do not live up to the standards that people rightly expect of them. I say to the Minister that the new measures in the Bill are certainly welcome and will improve certain aspects of the consumer experience, but it is also right to probe how this new regulatory regime interacts with consumer rights and protections enshrined elsewhere.

I feel that Amendment 14 seeks to update the state of play to refer to compliance with security requirements, but that needs to be an area where consumer protection is enshrined in legislation. To me, it goes with the sweep of the Bill, which is to bring us into today’s world and able to cope with the new and constantly evolving situation. Amendment 14A is also interesting, in that it seeks to maintain the right of individual consumers to seek redress in relation to defective connectable products rather than leaving these matters to a particular enforcement body or to collective legal action.

We would appreciate it if the Minister could clarify some of these matters in the Bill itself. If that does not prove possible, this is another area where we would very much like rather more information to be made available by the department so that we can seek to protect the rights and interests of consumers.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

I am grateful to the noble Lord and the noble Baroness for probing through Amendments 14 and 14A as tabled by the noble Lords, Lord Clement-Jones and Lord Fox. The amendments seek respectively to amend consumer protection legislation and clarify the relationship between this Bill and consumer protection legislation.

The Consumer Rights Act 2015 requires goods and services to be of a satisfactory quality, and the Consumer Protection Act 1987 imposes liability for defective products. Breaches of this Bill that meet the criteria of these Acts already entitle consumers to the protections they provide. This Bill focuses on the supply chain and what it needs to do to protect and enhance the security of products and their users. The security requirements will relate to processes and services, not just to the hardware of a product as the product safety framework does. It is not appropriate to retrofit the security requirements of this Bill’s regime into the existing framework of consumer protection legislation, which was generally designed to ensure that consumers have rights when products are unsafe—although, as I said, I appreciate the probing nature of these amendments.

Some security requirements will require ongoing action from manufacturers after they make a product available. It would be inappropriate to require traders to confirm one-off compliance with such requirements before contracts become binding. I acknowledge that existing consumer rights legislation will not always enable consumers to seek redress for breaches of the security requirements. I reassure noble Lords that this is not a gap. The evolving technological landscape means that the threats to consumers change, and we need flexibility to protect and compensate customers where that is necessary. The Bill, together with existing consumer rights legislation, already offers this.

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[The Earl of Erroll (CB)]

My Lords, I would add that I completely trust my noble friend Lord Lytton on these affairs and issues. I have talked to him, particularly when discussing burying fibre and things like that, and he knows a lot about it.

[Baroness Merron (Lab)]

My Lords, this is of course the first of a number of amendments that deal with Part 2 of the Bill. The amendment refers to telecoms infrastructure. This is far from the only debate that we will have on broad issues around property rights, operators, access to land and so on but, as a general point, it is worth restating our belief that this country needs access to better digital infrastructure. Our concern is that the Government have not been hitting their targets for the rollout of gigabyte-capable broadband. There have also been issues around the rollout of 5G technology. Although we want to see decent infrastructure, we also want to see fairness in the system, and that is what this amendment speaks to. It seeks to ensure a degree of continuity and fairness as new agreements are made to replace existing ones.

The principles cited by the noble Lord, Lord Fox, and in the amendments tabled by the noble Lord, Lord Clement-Jones, are reasonable. Again, they are principles that I am absolutely sure we will return to next week, as we have ever-more detailed discussions about rents, dispute resolution and so on.

As has been outlined in this debate, the court is not currently bound to consider the terms of an existing agreement. This feels like a significant oversight. Perhaps the Minister can inform us about what actually happens in practice and what will happen in practice. Both operators and landowners have, or should have, certain rights and responsibilities within this process. I look forward to the Minister’s response to Amendment 17 and to moving some of our own amendments during day two of Committee.

[Lord Parkinson of Whitley Bay (Con)]

As the noble Baroness says, this begins to anticipate some issues to which I know we will return on the second day of Committee, but it is useful to begin them tonight.

Amendment 17 seeks to insert a new clause after Clause 57 of the Bill. Its purpose is to add an extra element to the test at paragraph 21 of the code, where an operator enters into a new agreement because of the provisions in Clause 57. This is likely to be in circumstances where an operator in occupation of the land on which its apparatus is installed has an existing agreement but wishes to seek an additional code right. The code currently provides that operators in exclusive occupation of land are unable to obtain additional code rights until their existing agreement is about to end or has ended. This is because the code currently provides that only an occupier can grant code rights, and the operator clearly cannot enter into an agreement with itself.

Clause 57 remedies this position and allows an operator to obtain code rights where it is in exclusive occupation of the land. The test at paragraph 21 of the code is often referred to as the public interest test and sets out what a court must consider when deciding whether to impose a code right on a landowner. Paragraph 23 then sets out how the court should determine the remaining terms of the code agreement. Clause 57 simply gives an operator the ability to obtain a new code right or rights that they do not already have. The clause does not allow an operator to force changes to its existing code agreement or to compel the other party to modify any of its terms—for instance, to attempt to reduce the amount of rental payments. Furthermore, the clause does not enable an operator to bring an existing agreement to a premature end in order to take advantage of more favourable terms. Any existing code agreement that the operator has will be expected to continue and operate alongside the agreement relating to the new code right.

Amendment 17 seeks to expand the test at paragraph 21 so that the court also has to consider the terms of any existing agreement and any other method of statutory renewal available. We are, however, of the view that the court can already take such matters into consideration when deciding whether to make an order under paragraph 20 of the code, and again when applying the test at paragraph 23 to determine what terms the code agreement should contain.

This is a topical issue. Clause 57 rectifies an issue in the code that currently prevents operators who are in exclusive occupation of the land being able to obtain new code rights. As I said, three cases have touched on this issue, all of which were heard in the Supreme Court earlier this year, and the Supreme Court is due to hand down its judgment tomorrow.

At present we believe that Clause 57, as drafted, achieves its intended objective, but we recognise that this is a complex and technical area, on which the noble Lord, Lord Fox, valiantly conveyed the expert view of the noble Earl, Lord Lytton, and it is imperative that any unintended consequences are avoided. We will of course look closely at the Supreme Court’s judgment and carefully consider whether further amendments are needed, engaging with interested parties as required to ensure that the aim of the clause is fully realised.

I too am very conscious that the noble Earl, Lord Lytton, with whom we have already had some discussions on this and broader aspects of the Bill, will want to join those discussions, so I am sure he will be following the official record. But I am very happy to meet the noble Lords who have spoken, as well as the noble Earl, to discuss this issue in further detail, particularly once we have seen the judgment. For now, I urge the noble Lord to withdraw the amendment.