Musicians and Creative Professionals: Working in the European Union

Lord Clement-Jones Excerpts

Thursday 7th July 2022 Grand Committee

[Lord Clement-Jones (LD)]

My Lords, the noble Earl, Lord Clancarty, aided and abetted by many of those who have taken part in today’s debate, has been raising these issues for well over two years now. I congratulate him on his tenacity in securing this debate and his comprehensive introduction today. I certainly hope that the Minister has now got the picture—or should I say the mood music, with all the variations, perhaps, that the noble Baroness, Lady Bull, described in her speech.

As we have continuously emphasised in the last two years, we are talking about not only touring by the music industry—one of the most successful and fastest growing sectors, where real jobs and livelihoods now risk being lost—but by a number of other important parts of the creative sector as well: museums, theatre and the wider visual arts sector, as described by the Contemporary Visual Arts Network, and indeed the sports sector, as described by the noble Lord, Lord Moynihan. The ramifications are very broad. The right reverend Prelate reminded us that this impacts on levelling up and on values. We heard from the noble Baroness, Lady Fleet, about the impact on the talent pipeline and the potential to impact on communities through music education.

The dual registration deal on cabotage, which we have debated previously, falls short of satisfying the greater number of smaller specialist hauliers and own-account operators—it was described as a sticking plaster by my noble friend Lord German, and he is correct. On these Benches, we pointed out that the issues on cabotage were just one part of a huge cloud now hanging over the creative sector as a result of Brexit. The noble Viscount, Lord Stansgate, my noble friend Lord Strasburger and the noble Lord, Lord Hannay, all described that, including the requirement for work permits or visa exemptions in many EU countries, CITES certificates for musical instruments, ATA carnets for all instruments and equipment, and proof of origin requirements for merchandise. It is a real return to the past, as described by my noble friend Lord Jones.

The failure to secure a reciprocal exemption to permit freedom of movement for creatives on tour or short-term paid engagements and their support staff when we left the EU has been catastrophic for UK and EU touring creatives. The sheer disparity of treatment was described by my noble friend Lord German. As the noble Lord, Lord Hannay, said, it was very clear from the outset that that would be the impact.

The reason we are in this mess is that the Home Office refused to grant particular categories of EU citizens, including sportspersons or artists performing an activity on an ad hoc basis, the right to 90 days permitted paid engagement, and so the EU would not reciprocate. We are still pursuing freedom of information requests to find out exactly what the UK Government put forward. The problems with merchandise, carnets and CITES are, if anything, worse, as described by a number of noble Lords. As the noble Baroness, Lady Bull, confirmed, the ISM says:

“In fact, almost nothing has changed since the TCA came into effect, as recent accounts from musicians resuming EU tours have demonstrated.”


As the Classical Music APPG, LIVE, UK Music, the ISM and many others have advocated, what is urgently needed are permanent solutions which will secure the kind of future that the noble Viscount, Lord Stansgate, referred to.

Some require bilateral negotiation and some can be done unilaterally through greater engagement, but the key to this is multilateral action. As a number of noble Lords have said, we need more productive, collaborative relationships. This was mentioned by the noble Lords, Lord Hannay and Lord Cormack, my noble friend Lord German and the noble Baroness, Lady Bull. The noble Baroness made some very constructive, detailed suggestions about how we can get to that point on those multilateral negotiations. We need comprehensive negotiation on road haulage for cultural purposes, a cultural waiver in relation to ATA carnets and CITES, and a visa waiver agreement.

There is a very depressing letter from former Minister Lopez to my colleague in the Commons Jamie Stone, which sets out very few constructive proposals. I hope the Minister here today does rather better. Will we get the kind of new beginning that the noble Lord, Lord Cormack, mentioned? We need something simple and effective.

Clearview AI Inc

Lord Clement-Jones Excerpts

Tuesday 5th July 2022 Lords Chamber

Asked by

[Lord Clement-Jones]

To ask Her Majesty’s Government what assessment they have made of the decision by the Information Commissioner’s Office to fine and issue an enforcement notice against Clearview AI Inc. in respect of its use of images of United Kingdom residents collected from the internet without their knowledge or consent.

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

My Lords, organisations based in the UK and those based overseas which process data of UK residents for the purposes of providing services must comply with our data protection legislation. Where personal data are more sensitive in nature, such as where they relate to a person’s biometric information, stricter rules and safeguards apply. The Information Commissioner’s Office enforces legislation independently of government. In the case of Clearview AI, it decided that the data protection principles were not complied with and enforcement action was needed. Further details can be viewed on the ICO’s website.

[Lord Clement-Jones (LD)]

My Lords, Clearview is a US company that is in clear breach of data protection laws, collects facial images for its database without our knowledge or consent, uses it to train its algorithms and then offers special deals to schools and the police to use the database on their live facial recognition systems. What are the Government doing to prohibit public authorities contracting with Clearview? Clearview has said it will not even pay the ICO’s rather limited fine. What will the ICO and the Government do now to ensure that it pays?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, Clearview is appealing the ICO’s finding, which it is entitled to do, but I note that the ICO is not the only regulator to have taken action against it: its French, Italian, German, Canadian and Australian counterparts have reached similar conclusions. The ICO has issued a fine and served an enforcement notice issuing orders for Clearview to delete the data. Subject to its appeal, that is what it will have to do.

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[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness is right: there are important ethical questions which need to be fed in. The College of Policing provides guidance on the use of surveillance technology and facial recognition technology, which should take these into account. The general principles of facial recognition technology are that it should be lawful, transparent and fair to the individual.

[Lord Clement-Jones (LD)]

My Lords, is not the bottom line that Clearview AI should have no business dealing with our public authorities, whether the police, schools or otherwise? Should not the Government be banning Clearview AI from any public contracts?

Product Security and Telecommunications Infrastructure Bill

Lord Clement-Jones Excerpts

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

[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.

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[Lord Clement-Jones (LD)]

I am sorry to interrupt the Minister. As he knows, certainty is absolutely crucial for business. What is always created when new legislation supersedes old legislation is uncertainty. What confidence can the Minister possibly have that the impact of this Bill will be beneficial to rollout?

[Lord Parkinson of Whitley Bay (Con)]

With such an accelerating market, thanks to the pro-investment environment that the Government are creating, it is quite challenging to quantify the extent to which progress is attributable to any single piece of legislation in a market that reflects so many factors. That is one reason why we think it would be of limited value.

My noble friend Lord Northbrook asked me to comment on the Centre for Economics and Business Research report on the 2017 reforms. We believe that the CEBR report does not provide a sufficiently rounded picture in its assessment of how the 2017 reforms have affected the pace of telecommunications delivery. The Government, as I have said, acknowledged in 2017 that reductions in payments could make landowners less keen to enter into agreements to host apparatus on their land. We expected an initial slowdown following the implementation of the 2017 reforms while the market adapted to them, but our understanding, informed by our conversations and consultation, is that both new and renewal agreements are now being successfully concluded. For instance, we were informed in January this year that, since 2017, 900 agreements had been renewed and that 83.5% of those agreements were concluded consensually, to give noble Lords some data.

Product Security and Telecommunications Infrastructure Bill

Lord Clement-Jones Excerpts

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

[Lord Vaizey of Didcot (Con)]

I will take advantage of the flexibility in the Chamber to say that, notwithstanding the intervention of a cup of tea, my amendment will be moved on Report.

[Lord Clement-Jones (LD)]

My Lords, following that very provocative statement from the noble Lord, Lord Vaizey, I will not go into great detail about Amendments 17A and 17B because they have not been moved, although by a side wind the noble Lord mentioned MDUs and various other aspects. All I can say is that if they are moved on Report they will be very firmly opposed from these Benches. There are many reasons for that, which I will not go into, but we look forward to the debate on Report. In the meantime, we will keep our powder dry.

The noble Baroness, Lady Harding, made an extremely good case for her Amendment 18, as has my noble friend. I do not think that the noble Earl, Lord Lytton, is a great fan of poles, but we will just have to live with that. Amendments such as this would ensure that an explicit right exists to access the pole itself or place apparatus on it. That amendment is supported by all operators. It is good that we have one amendment that is almost unanimously supported by the operators.

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[The Earl of Devon (CB)]

My Lords, I will speak briefly in support of the two proposals from the noble Baroness, Lady McIntosh, to which I have added my name, that Clauses 66 and 72 do not stand part of the Bill. As I noted at Second Reading, I am a landlord to a telecommunications mast, granted by my father under the 1954 Act. The renewal of this has been complicated considerably by the 2017 reforms and the huge uncertainty that has followed.

Just last week, the Supreme Court ruled on a group of three cases involving the last set of amendments to the Electronic Communications Code. The lead case was Cornerstone Telecommunications v Compton Beauchamp. The court ruled that, among other things, a landlord under a “subsisting agreement” is entitled to insist on renewal under the 1954 Act and the operator cannot insist on a code renewal by application to the Upper Tribunal. It seems ironic timing that, just as the highest court in the land has finally got to grips with those 2017 amendments and provided a little clarity, we are seeking to make yet further changes and further confuse the issue.

Since Second Reading, I have been in contact with a number of groups representing site owners, and all have reported incidents of unprecedented dispute and considerably challenging renewals. As I said at Second Reading, this cannot have been the intention of the 2017 amendments and should not be the result of this legislation either, which is why I put my name to the proposals that Clauses 66 and 72 do not stand part.

I think that we all agreed at Second Reading that we wish Project Gigabit to succeed, and my intention is to ensure that landlords and site owners are encouraged to grant leases to telecoms masts and other infrastructure. The recent soundings of the market suggest that this is not currently the case and that the granting of new leases has slowed considerably since the 2017 amendments and the decrease in rents and increase in disputes that have resulted.

On these clauses, the draconian access provisions for unresponsive occupiers and the rights of network providers in relation to infrastructure are simply too broad and uncertain and, as the noble Baroness, Lady McIntosh, stated, they will serve only to discourage the granting of leases for further network infrastructure. I do not think that that is in anyone’s interest.

Specifically on Clause 72, the noble Baroness, Lady McIntosh, raised the regulations. I note that new subsection (7) says:

“Before making regulations under subsection (1) the Secretary of State must consult … OFCOM”


and

“such other persons as the Secretary of State considers appropriate.”

In responding, can the Minister clarify who that would be, because surely representatives of the site providers should be consulted? We should get an opportunity to understand exactly what these regulations will entail; otherwise, we seem to be providing Ofcom carte blanche to do whatever it likes. As we have seen, whatever it likes has not resulted in a satisfactory outcome for connectivity.

[Lord Clement-Jones (LD)]

My Lords, I want to mainly talk about Amendment 19 put forward by the noble Lord, Lord Bassam. Before doing so, I say that I have some considerable sympathy for the noble Baroness, Lady McIntosh, and the noble Earl, Lord Devon, because one of the themes we are very much going to come to with the coming amendments is this steady shift in the bargaining power away from site providers towards the operators over a period of years, which started in 2017 and culminates in the current Bill. We had a number of debates on unresponsive occupiers when we last debated this on the then Telecommunications Infrastructure (Leasehold Property) Bill. As the noble Earl said, it is ironic that the cornerstone case has decided what it has, yet here we are changing the legislation away from that decision. I hope the Minister will be able to answer some of the questions that have been put to him.

On these Benches, we support Amendment 19. As the noble Lord, Lord Bassam, said, it would mandate operators with agreements under the code that are not subsisting agreements—namely, agreements that came into force before the code was agreed—to give advanced notice to sites that provide and deliver emergency services, such as hospitals, fire stations and ambulance stations. It is clearly important for providers of emergency services to be given advance notice of when work is going to be undertaken, so that they can take appropriate action to ensure that they are not affected.

The noble Lord, Lord Bassam, mentioned the Minister’s response in the Commons; she prayed in aid the rights under paragraph 17 of the ECC,

“which authorise only activity that will have no more than a minimal adverse impact on the appearance of the apparatus”.

However, this takes no account of the fact that, while the works may involve minimal adverse impact, it may actually involve disconnection at the time of installation. The Minister said that she was,

“not aware of any instances in which an operator has relied on its paragraph 17 rights to carry out upgrading and sharing activities that have gone beyond the scope of what that paragraph allows”.—[Official Report, Commons, Product Security and Telecommunications Infrastructure Bill Committee, 22/3/22; col. 120.]

However, that is not the right question. The right question is: what kind of resilience and risk planning do the emergency services have in those circumstances? If they do not know that there is a risk of disconnection, how can they plan for it? This seems an extremely sensible amendment which will allow the emergency services to have notice and to be able to plan for circumstances when they may be disconnected.

[Lord Vaizey of Didcot (Con)]

My Lords, this is an interesting debate on these proposals, which are potentially linked and will develop into a theme which perhaps redresses the balance.

When commenting on the amendment to notify emergency services, it must be acknowledged—by those of us who regard our telecom infrastructure providers as providing an extremely important service to the country, doing difficult, tedious and time-consuming work with private investment—that they do not always get it right. I again remember—this will become a theme of my speeches—that, in my time as Minister, one would have local authorities refusing to give permission to broadband providers to put in place infrastructure because of the mess they had left behind from their previous work. The most notorious and, I thought, slightly irritating resistance came from Kensington and Chelsea Council, which did not like the design of the green cabinets—perhaps it wanted them designed by David Linley or someone like that. Both the noble Earl, Lord Lytton, and this emergency services amendment highlight the fact that, too often, when infrastructure providers are allowed in to upgrade their apparatus, they do not take account of the knock-on effects of their work, either by not taking into account building safety regulations or by not notifying the occupiers that there might be disruption. The amendment is well placed to raise these points and for this House to remind infrastructure providers that they must continue to improve on this.

What I find interesting, from the perspective of landowners, is the balance between wanting, obviously, a reasonable rent for the disruption and visual intrusion that telecoms equipment can bring when it is placed on one’s land—certainly one’s property rights should be sacrosanct and no one should be allowed simply to arrive without notice and put infrastructure where they please—and the point about bringing huge benefit to a local community where one’s land is situated, and indeed to one’s own operations when infrastructure provides the connectivity. I can never get my head around that.

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[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have spoken in the short debate on this group, particularly the noble Lord, Lord Bassam, for introducing Amendment 19, also signed by the noble Baroness, Lady Merron, and the noble Lord, Lord Clement-Jones. The amendment proposes the introduction of a 21-day notice requirement for operators who want to exercise code rights where apparatus is situated on, under or over a site provided by an emergency service provider. It is of course important that emergency service providers are aware of work on their sites which may have an impact on their day-to-day activities, as all noble Lords have noted. In this context, it is crucial to look at the scope of the paragraph 17 rights. They authorise activity that will have

“no more than a minimal adverse impact”

on the appearance of the apparatus, and impose

“no additional burden on the other party to the agreement.”

Given the limited activities that paragraph 17 permits, we do not consider a notice regime necessary. To put one in place would undermine the policy intention of these rights, which is to enable limited upgrading and sharing works to be carried out quickly and efficiently. Operators may need to upgrade and share apparatus that will have a greater impact on a site provider than paragraph 17 permits. We think that they should be able to do so but, in those circumstances, they must obtain the site provider’s agreement or seek to have the required rights imposed by the tribunal.

In contrast, the paragraph 17 conditions exclude activities that would impose an additional burden on a site provider. Activities that disrupted a site provider’s day-to-day business, or created new health and safety risks, would be unlikely to satisfy this requirement. I am not aware of any instances where an operator exercising their rights under paragraph 17 has caused any issue in relation to an emergency service site. I note, however, that the noble Lord, Lord Bassam, mentioned one example and I am very happy to discuss that further; perhaps we could join the group cup of tea.

[Lord Clement-Jones (LD)]

My Lords, the Minister is making exactly the same case as the Commons Minister, Julia Lopez, made on this there. What about the circumstances that I mentioned, where you might be within paragraph 17, but where it may involve minimal adverse damage but nevertheless involves switching off the service for a period, however short or long that may be? Surely that is something that the emergency services involved on site should have notice of.

[Lord Sharpe of Epsom (Con)]

My Lords, I think that they should have notice, but the point is that the paragraph 17 conditions exclude activities that would impose an additional burden on a site provider, as I have just said, and activities that disrupted their day-to-day business or create new health and safety risks would not satisfy the requirement. I honestly think that answers the point.

I think that I have answered most of the questions; I will obviously check Hansard and, if I have not, I will come back. In the meantime, I hope that the noble Lord, Lord Bassam, is prepared to withdraw this amendment.

I move on to Clause 66, as probed by my noble friend, Lady McIntosh of Pickering, with the support of the noble Earl, Lord Devon. It creates a bespoke process for the court to impose an agreement where an operator needs a person, to whom I shall refer as “the landowner”, to confer or be bound by code rights and that person fails to respond to repeated requests for such rights.

The provisions require an operator to have sent an initial request notice and two warning notices, followed by a final notice, to the landowner. There must be a period of 14 days between the giving of each notice, meaning that the landowner will have been given a minimum of 56 days in which to respond to the operator. For the landowner to fall out of scope of Part 4ZA, all that is required of them is to respond to any of the above notices in writing before the operator applies to the court. If granted, a Part 4ZA order will impose an agreement on the landowner and operator. The terms of that agreement are to be specified in regulations made following stakeholder consultation.

My noble friend asked about situations where landowners are non-responsive. If they are unwilling to engage, for example, in alternative dispute resolution processes, it will remain open to the operator to apply to a court under Part 4 of the code to seek an order to impose an agreement granting code rights. These provisions impose a six-year maximum time limit on the period for which rights conferred under a Part 4ZA order may last. I emphasise this detail because it forms an important part of the Bill’s safeguards on landowners’ property rights. This clause provides a much-needed process that will play a large part in ensuring that homes and businesses benefit from the national gigabit broadband upgrade and are not left behind. I therefore commend Clause 66.

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[The Earl of Lytton (CB)]

My Lords, I have a group of amendments here, all of them covering very technical bits and pieces and, rather than trying to deal with one at a time, disaggregate them and give an individual explanation for each, I felt it would be helpful for the Committee if I put them in context and dealt with in this way. I assure the noble Baroness that I shall be as speedy as I can, but I crave the Committee’s indulgence in that respect, and I should like to continue with what will be my principal contribution on the Bill.

I was talking about the question of fair value and had got to Amendment 24. This amendment would ensure that, where a site agreement is first renewed using part 5 of the code, the courts are unable to impose a rent reduction of more than 40% on the rents that fall under the existing consideration. This would ensure that the Government’s original expectation that rates would fall by no more than a maximum of 40% was delivered by legislation, and would prevent what I described to the Minister as the cliff edge that has occurred in the arrangements. Subsequent renewals under the code would then be made on a no-network valuation. It would also enable consideration of the effects of the policy on rollout and upgrade of sites and whether the objectives were being met.

Amendment 25 would require the Secretary of State to publish guidelines on the level of factors influencing the expected value of the imposed considerations. This would ensure some clarity about the Government’s expected policy. Amendment 26 would phase in the application of a newly fixed rental consideration imposed by the courts. The intention would be for the new consideration to become payable only, if it was a reduction, after 24 months from the date of the court order. Prior to that point, the operator would continue to pay the previous rent. Amendment 27 is similar to Amendment 26. This amendment would create a tiered phase-in period for the application of a new consideration imposed by the court.

The amendments fall under two options. The first tries, as far as possible, to remedy the effects that have occurred under the 2017 code. The second lot gives a sort of halfway house to build in what the Government say they are trying to do but, at the same time, ameliorate the effects with the same long-term result. I apologise for dealing with this at length. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, on these Benches, we support the amendments introduced by the noble Earl, Lord Lytton, with his expertise both as a valuer and surveyor and as a site provider. I well understand why he has taken the trouble to take us through the amendments in the way he has, because they lie absolutely at the core of the Bill, of the relationship between site providers and operators over a long period, and of Protect and Connect’s campaign. It is quite reasonable to unpack the valuation system that has been in place and explain in some detail his proposals by way of the amendments for a new valuation system, or at least an alternative way to deal with the current one.

I start by quoting the Central Association of Agricultural Valuers:

“The tragedy of the 2017 Code is that, far from encouraging collaboration over sites assisting roll-out, some leading operators have made heavy handed, confrontational and attritional use of the powers and privileges they were given by it, very largely to reduce the cost of renewing existing agreements rather than winning new ones or make themselves attractive as tenants. The irony is that, as reported to November’s RICS Telecoms Conference, even if rents may now be much reduced, the overall cost of securing a site has doubled and timescales lengthened.”


That seems very paradoxical. This refers to the fact that, as the noble Earl said, under changes made to the code in 2017, a no-scheme or no-network valuation methodology for valuing land was introduced. As he also explained, this allowed site providers to recover only the raw value of their land, rather than receiving a market price. It did this by inserting a new line into the code that, when setting the value of a site, prevents courts from taking into account a site’s potential use for the provision or use of an electronic communications network.

At the same time, as the noble Earl has also explained, another change was made to the code’s valuation provisions to ensure that site owners cannot charge ransom rents. Any valuation must assume that there is another site available to operators so there is no monopoly in land provision around any site. As he also mentioned, this was recommended to the Government by the Law Commission. Operators have been able to use these changes to drive down the rents that they pay to site providers, often to peppercorn rents. In 2017, the Government said that they expected that rent reductions should be no more than an absolute maximum of 40%, and that has been cited at Second Reading and on many other occasions. However, we know from data cited by the operators that reductions have at best averaged at 63%, a huge sum for many of the people who rent their land to be used for telecoms infrastructure, and in many cases, as we have also heard, reductions have been much higher—in the region of 90%.

The Minister will be aware of the Protect & Connect campaign, and many Members around the House will have had communication with it. It cites the Fox Lane Sports & Social Club, which had a mast on its land for 12 years owned first by Orange and now by EE. The club was getting £7,800 a year but it has now been told that it will get only £794 a year from 2023. Billericay Rugby Football Club had a mast for over 20 years and allowed Vodafone—now Cornerstone—to attach infrastructure to the mast. It paid the volunteer-run club £8,500 a year. However, with the changes to the code, EE says that it will cut the rent by more than 90% to £750 a year. There are many such case histories worth looking into. The evidence is there.

[Lord Vaizey of Didcot (Con)]

Surely the noble Lord agrees that a mast on a community sports building, although it provides a generous rent, should not be regarded as some kind of lottery win. I return to my point that the benefit of that mast—the connectivity it gives to not only the sports club but the community around it—is to be considered, as well as the vast rent that was charged until the code revision.

[Lord Clement-Jones (LD)]

My Lords, I cannot believe that the noble Lord believes that it is reasonable to reduce the rent by 90%. There may be community benefits. However, I will come on to whether the consumer has had the benefit of these reductions, which is a very important point, and to the point about aggregators versus mast operators, which seems to be the battle of the behemoths. That is not a very happy situation but, in a sense, one caused by the changes that have been made to the ECC.

Protect and Connect estimates that providers have lost more than £200 million a year in income, including £60.5 million of lost local authority income, £44 million of lost agricultural rural site-owner income and, as the noble Earl, Lord Lytton, says, the Government’s legislation expands the no-scheme valuation regime into approximately 15,000 agreements governed by the Landlord and Tenant Act 1954 and the Business Tenancies (Northern Ireland) Order 1996. This would allow operators to ignore contractual agreements entered into in good faith, leading to more incomes being dramatically reduced.

I come on to the question of consumers. The noble Lord, Lord Vaizey, talked about the aggregators but my noble friend Lord Fox and I have brought up throughout the passage of the Bill the question of what is in the interests of the consumer. The benefit appears not to be coming down to the consumer. In fact, a great deal of money is being made in other parts of the forest. The Times yesterday reported that Digital 9 Infrastructure has bought 48% of Arqiva Group Ltd from the Canada Pension Plan Investment Board, using £300 million in cash and a loan note. Clearly there is money to be made, but is any benefit flowing through to the consumer? If the site providers are being heavily reduced in income, that is clearly not going through to the consumer.

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I just want to be clear about precisely what the extent of that compensation will be. Can we assume that it will be radically less than was previously the case? Does the Minister accept that, rather than increase the ability for faster speeds—greater connectivity for broadband and wi-fi, and a better signal for mobile connections—it will have the perverse effect of achieving the complete opposite? I press my noble friend on what exactly the extent of the compensation will be. In the event that the compensation is radically reduced to that previously intended, do my noble friend and his department envisage revisiting this clause at a later stage?

[Lord Clement-Jones (LD)]

My Lords, I shall speak to Amendments 28, 29, 30, 31, 32, 33 and 34. This may well be another part of the Bill where we have differing views about the balance to be struck between site providers and operators, and whether the Bill’s provisions will actually hamper the rollout of 1-gigabit connectivity.

In the consultation response that accompanies the Bill, the Government stated explicitly that agreements could not be changed by court order during the course of a contract, but changing the definition of a person able to grant code rights to an operator is likely to allow the cancellation or modification of agreements that were agreed in good faith and still have years to run and impact every single relationship between site owners and operators. This is because of the changes made by Clause 67, which do not limit an application to a situation where the existing agreement has expired. Telecoms companies, the operators, will now be able to choose which method of renewal or modification they wish to use. Moreover, site owners are unable to remove operators from their land if negotiations break down. Given this, it is likely that operators will seek to review all contracts they have on their books, allowing for retrospective application of the changes.

Site owners and operators should have certainty of contract. If an agreement has been reached, the terms of this should be settled and respected until the end of the agreement. If they are to be changed, it should be by mutual consent and commercial negotiation rather than by this type of intervention. Rents should be changed only from the point at which courts have made a decision, respecting existing contracts. Site providers are routinely being taken to court by operators to reduce the prices they pay, using, as we have heard, the changes made in 2017 that inserted a no-scheme or no-network valuation methodology into the code. This tactic is used to drive down rents to the lowest possible level.

The Bill gives operators sweeping new powers, which would mean that when the parties to an expired agreement are unable to agree on the terms of any renewal agreement, operators can seek modified terms to code agreements on an interim basis, including reducing the level of rent they pay. This change is likely to lead to a substantial number of claims by operators as a matter of course, regardless of the state of negotiations in individual cases. If an operator is able to fast track a no-scheme reduction, there is little incentive to reach a consensual deal at a potentially higher level. What is more, when a case does get to court and a renewal agreement is subsequently imposed, the court will be able to retrospectively backdate any new financial terms of that code agreement to the date that an initial notice was made, not the date of a court judgment. Some of these notices could have been served years ago, leading to sudden, huge repayments from site providers to operators. This retrospective application of court-ordered rent reductions cuts against legal norms and a common understanding of fairness.

Many site providers already face severe financial pressure as a result of the 2017 reforms, as we have heard. This could lead to unnecessary financial difficulties or even bankruptcies, given the huge disparity between the market-based rent they have been receiving and the rent obtained through the courts. These amendments, however, are not intended to prevent courts imposing rent reductions in line with the workings of the code. In all situations, operators would still be able to obtain savings on rent payments. These are merely trying to ensure that these savings are not imposed retrospectively on contracts entered into in good faith by site providers.

Amendments 28, 29 and 32 to 34 aim to address in its entirety the issue of backdated payments made on the basis of interim orders. Amendment 28 would prevent courts retrospectively imposing rent reductions made on the basis of no-scheme valuation. Amendment 29 would mirror the impact of Amendment 28 of removing the risk of backdated payments being imposed on site providers by ensuring that operators are unable to seek interim orders simply to agree a lower rent. Amendment 34 is intended to apply to sites governed by the Landlord and Tenant Act 1954.

Amendment 30 would ensure that where interim orders are made and a consideration is imposed on the basis of the code, the retrospective application of the reduction in rent achieved does not automatically go back to the time at which the initial notice was made. Instead, it would go back to that point or a maximum of 12 months, whichever is the shorter.

Finally, Amendment 31 would ensure that where interim orders are made and a consideration is imposed on the basis of the code, the cumulative total of the retrospective application of the reduction in rent achieved is limited to £l,000.

These amendments are all designed, as I mentioned in opening, to redress the balance and make sure that this kind of retrospectivity is not taken advantage of by the operators against the site providers. I hope they commend themselves to the Committee.

[The Earl of Devon (CB)]

My Lords, I rise briefly to support the noble Baroness, Lady McIntosh, once more, and the noble Lord, Lord Clement-Jones. I note in response to the Minister on the last group of amendments that I am not parroting the words of lobby groups; I am reporting personal experience to your Lordships, and that of people personally known to me. I am not a mouthpiece of some body.

On the prevalence of litigation, the Minister pointed out in his last summation that it may be for the courts to provide definition. The Supreme Court ruled on three separate cases last week; clearly, there is far too much of this renewal debate going on in the courts system—that is coming from a litigator. The Supreme Court should not be ruling on three cases in one go. It should be possible to handle this in the marketplace, as the noble Earl, Lord Lytton, said. It is indicative of a broken system.

I reiterate in the context of this further valuation group a question I posed before that has not yet had an answer. Given that landowners have such a plethora of tradeable ecosystem services to provide from their landscape, why on earth would they commit these days to a telecoms lease, with all the nefarious impacts of these amendments—the access rights that have been given and the heavy burden of renewal requirements—when they have so many other options to consider? I would like an answer to that point.

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[Lord Sharpe of Epsom (Con)]

The noble Earl, Lord Lytton, raises some very specific and technical points, if I may say so. I am afraid I am going to have to write to him.

I turn to Amendments 28 to 33, tabled by the noble Lords, Lord Clement-Jones, Lord Fox and Lord Blunkett, and the noble Earl, Lord Lytton. These seek to amend Clause 67, which relates to interim orders where an agreement is being renewed under part 5 of the code. Paragraph 35 of the code covers situations where an agreement to which part 5 of the code applies has expired or is about to expire, and the parties are unable to agree whether that agreement should be terminated or what the terms of any new agreement should be. In those circumstances, proceedings may be issued so that a court can decide what terms should be imposed.

Such disputes can take time to be determined. The provisions in Clause 67 which amend paragraph 35 of the code enable either party to ask for an interim order in relation to any term of the current agreement. The benefit of this is that specific issues can be dealt with at a much earlier stage of the proceedings. The clause gives the court more flexibility than currently contained in paragraph 35 of the code, enabling it to look at situations where a party needs an urgent change to any term of their agreement. An example of this is where an operator needs amended terms to allow it to upgrade an existing site, to improve capacity and coverage for consumers. It also allows an operator to ask for the financial terms of the agreement to be reviewed at this interim stage. This ensures that the code valuation framework can be applied at an early stage in the proceedings, which may speed up negotiations on other areas in dispute.

It is the financial terms that the court could impose that have prompted the proposed amendments to Clause 67. These amendments seek to restrict an operator’s ability to apply for interim financial terms to be imposed, and fetter the discretion of the court when deciding them. The Government think it right that an operator can make an application for interim financial terms to be imposed, irrespective of whether other interim terms are sought. Allowing this to happen means that an operator can benefit from the code valuation framework at an earlier stage. This should give operators more capital to invest in the expansion and upgrade of their digital networks, which is of huge benefit—

[Lord Clement-Jones (LD)]

The Minister is saying that it is retrospective and therefore exactly the effects that I mentioned will take place—that a contract can effectively be torn up.

[Lord Sharpe of Epsom (Con)]

I am about to get on to the various backdating aspects of this, so I hope that will answer some of these more specific questions.

I think I got to this being of huge benefit to both business and consumers. There are concerns about the backdating of the consideration which the court may impose at this interim stage, and that this may cause site providers financial hardship. Clause 67 provides that the court may backdate the interim terms only from the date of the application. It is anticipated that these applications will be dealt with quickly by the courts. The Government intend to make changes that will assist in the resourcing of code disputes, particularly in light of other changes made by the Bill. For example, the Government intend to amend regulations so that, in England and Wales, court proceedings on code disputes can be commenced in either the Upper Tribunal Lands Chamber or the First-tier Tribunal. Currently, proceedings can be commenced only in the former, which has only two regular judges, while the First-tier Tribunal has over 100 who consider a range of property law disputes. This will lend much more flexibility to the Courts & Tribunals Service in its handling of code disputes.

[Lord Clement-Jones (LD)]

My Lords, I am sorry to intervene again, but of course I will not be responding at the end of the group. The Minister is saying that the whole idea is to get these hearings as quick as possible, so that the site provider is prejudiced as quickly as possible, but it all depends on the availability of lawyers by the sound of it, which is a somewhat tenuous argument.

[Lord Sharpe of Epsom (Con)]

As my noble friend the Minister has pointed out, lawyers do well whatever happens. I am coming on to expand a little more on the protections for site providers, if the noble Lord will please bear with me.

The time between the making of the application and it being determined should be relatively short. Officials will be working closely with Ministry of Justice counterparts and members of the judiciary to ensure that the right processes and so on are in place to support this. The landowner will be on notice from the date of the application that some of the amounts received from the operator may have to be repaid at a later date and will be able to plan accordingly. We hope that this will alleviate concerns.

Finally, Clause 67 gives the court discretion as to the date from which the interim order may have effect, providing that the court may provide for the order to have effect from the date of the application for the order. We do not believe there is the need to impose limits on what the court can decide, as it is already able to take into account what the effect would be on the site provider if consideration payments were backdated. Interim applications are usually heard quickly, and therefore the likelihood is that rent will be backdated only for a small amount of time.

The impact is potentially much greater in cases where the agreement is renewed under the 1954 Act, where interim rent can be backdated to the earliest date on which the tenancy could have been terminated where the landlord serves notice, and the earliest date on which the new tenancy could have begun where the tenant serves notice asking for a new tenancy. We have heard from stakeholders that, under the 1954 Act regime, some landowners have faced large claims from operators in respect of overpayment of rent where a lower rent has been backdated. We are listening to those concerns, and we will consider this carefully before the measures in the Bill are brought into force. Should we consider that something specific is required, this can be taken into account when developing any transitional provisions in respect of the Bill.

[Lord Clement-Jones (LD)]

First, is it the case that the Bill will be changed on Report, or are we talking about a new piece of legislation? Secondly, have the Government made any estimate of the number of cases that will now be brought as a result of this change?

[Lord Sharpe of Epsom (Con)]

I am afraid that the answer to both of those questions is that I do not know. It would be remiss of me to anticipate the sorts of concerns we are listening to and the subjects they may raise. I will have to write to the noble Lord on that.

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Moved by

[Lord Clement-Jones]

35: Clause 68, page 58, line 38, leave out from “must” to “use” in line 39 and insert “attempt to make”
Member’s explanatory statement
This amendment would mandate the use of Alternative Dispute Resolution schemes to resolve disagreements before either party could ask for a consideration to be imposed by the court.

[Lord Clement-Jones (LD)]

My Lords, I should just say that it is not my role to make friends among my colleagues in the legal profession; it is to try to get the right result out of the Bill.

I have just one observation on the previous group. It is interesting to note that the Government have some wonderful ways of resisting amendments. They say that it would be inconsistent with the Bill, but they are perfectly capable of passing amendments of their own which are not fully consistent, because that is what exceptions are—they are there because there would otherwise be an injustice.

The site providers are making and have made a very strong case that they need better protection against abuse by operators. Throughout this Bill, we are of course very mindful of the balance between site providers and operators. The Government believe that the provisions of the Bill are putting this in order, but many of us believe that they are putting it in disorder as a result. The Protect and Connect campaign has come up a number of times already during the course of debates on the Bill. It surveyed 116 site owners that host mobile telecoms masts and found that 23% have suffered damage to their property; 35% have had their sites upgraded without permission; 46% have found telecoms companies on their land without warning; and 50% have been threatened with legal action. That does not sound like very good behaviour on the part of the operators. In this context, Clause 68, on the alternative dispute resolution, is of great importance. It sets out the process by which an operator can request rights to land from an occupier, which will now include information about alternative dispute resolution.

The clause however requires operators only to “consider” the use of ADR for resolving disputes with site owners where “reasonably practicable”. It also permits courts to take an operator’s “unreasonable” refusal to consider ADR into consideration when deciding on remedies during a dispute. The ADR process that the Government are providing is therefore non-binding. Telecoms companies need only show that they have considered it in order to avoid costs.

To address this point, the Government should make ADR compulsory for any dispute and issue guidance about reasonable terms. Properly enforced, it would reduce the operators’ reliance on litigation through the courts and encourage better behaviour by both parties. It is important that there is greater onus on the operators to make use of this process, because the terms of the code are so heavily weighted in their favour and their ability to use the courts in general is far greater, befitting their corporate size compared to the average site owner. Given the potential benefits for both parties and the wider public interest, it is difficult to see the case for this process remaining purely advisory.

As regards Ofcom’s guidance, Ofcom has long provided guidance on the ECC, but to date it has not provided any real support for site owners experiencing problems. Amendment 39 is intended to force operators to give greater weight to Ofcom’s code of practice, which it is currently obliged to prepare under paragraph 103(1) of the ECC. Tribunals would be obliged to take into account an operator’s compliance, or lack thereof, when making costs awards. The purpose of this is to render Ofcom’s code of practice meaningful, rather than just optional guidance that is all too easily disregarded.

Amendments 40, 41 and 42 aim to address the issue of non-compliance with Ofcom’s code of practice. It is right that operators are held to standards in how they treat site providers, including measures such as the provision of information or the conduct of negotiations. However, there is a significant body of evidence that, despite the code of practice, site providers are not being treated fairly or with respect by the operators from whom they rent their land. The solution to the problem of non-compliance with the code of practice is to strengthen these measures, yet Ofcom has failed to invest adequately in this area and the Government have spent too long asking the industry to solve its own problems through stakeholder workshops, rather than showing direct leadership. These amendments will collectively place obligations on both operators and site providers. The intention here is not to place an asymmetrical set of requirements on either party in these negotiations or to these agreements.

Amendment 40 would create an obligation to follow the code of practice. It would create a maximum financial penalty for non-compliance of £1 million and require Ofcom to have regard to prior history of non-compliance when assessing the size of any penalty imposed. This amendment would provide a strong incentive for adherence to the code of practice. Moreover, it would require a previous history of poor behaviour to be taken into account. This means that operators or site providers would not be able to disregard the code of practice just because they think they can pay the fine, and poor behaviour would have increasingly impactful consequences. Amendment 42 requires that Ofcom include in its code of practice guidelines on when operators must pay compensation to those affected by a failure by the operator to adhere to the code of practice.

If the Government are serious about promoting consensus-based agreements and getting this market working again, having clear and enforceable guidance on the standards expected by the parties is essential. This is what these amendments try to achieve. I very much hope that the Minister will take all the amendments and their intention on board.

[Baroness McIntosh of Pickering (Con)]

My Lords, I shall speak to Amendments 36, 37, 38 and 39, and the proposal that Clauses 68 and 69 do not stand part of the Bill. I am delighted to have the support of the noble Earl, Lord Devon.

I am slightly stung by something my noble friend the Minister said earlier: that perhaps we are all paying too much heed to lobbyists. I think my noble friend knows me well enough now to know that I am of particular independence of mind. However, when an allegation is made by those seeking to brief us on the Bill that the Bill has swung too heavily against the interests of the landowners—of which I am not one; I have no particular interest in this other than as a consumer, as I said—and too heavily in favour of the operators and networks, that is something that I think he would expect us to explore. It is something we are encouraged to do when we are introduced. The Reading Clerk reads out that we are given a seat, place and voice in the councils, assemblies and Parliaments to enable us so to do. I take those responsibilities very seriously indeed.

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[Lord Parkinson of Whitley Bay (Con)]

I am sorry to disagree with my noble friend, but the CLA’s response to the consultation opposed compulsory ADR. I would be very happy to speak to her and triple check that with officials afterwards, but we clearly have different understandings of its position. I would be happy to speak to her afterwards to make sure that we can clarify that.

[Lord Clement-Jones (LD)]

My Lords, we clearly have some clearing up to do between Committee and Report on who said what and who supports what. I too was quite surprised to hear that the CLA would be opposed to compulsory ADR in these circumstances.

I thank noble Lords for their support for the amendments and the Minister for his very detailed reply. I do not think there is any dispute between us. We all want greater connectivity and to see 1-gigabit rollout. The whole question is whether we want greater trust—the word that I think the noble Earl, Lord Lytton, used. Quite frankly, across the Committee there is a view, on the valuation questions, on retrospectivity in the previous group and on the lack of compulsory ADR, that this will lead to more disputes. The Government seem to be going down this track where they plan for there to be more disputes so that more tribunals can be brought into effect and more lawyers will be employed, no doubt with rejoicing in various parts of the City. Everything in these amendments was designed to minimise the number of disputes, and to make sure that we had compulsory ADR and that Ofcom’s code actually bites.

It was very disappointing to hear what the Minister had to say. I hope that, between Committee and Report, he will reflect on some of the points made in this respect and that we can check to see whether landowners are unanimous on this, because using ADR as a filter would be a perfectly acceptable way of doing things. Once certain aspects are established as a matter of law then a dispute can of course be referred, but a mediator can, by agreement of the parties, refer it to a court to be determined. There is no impediment to using ADR as that initial filter, which would mean that there would be many fewer disputes. We would actually have faster rollout as a result and the Bill’s purposes would be entirely achieved.

I am sure that this will be a candidate for Report as well. In the meantime, I beg leave to withdraw the amendment.

Amendment 35 withdrawn.

Media Literacy

Lord Clement-Jones Excerpts

Monday 20th June 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

I am afraid that I am not sure that I fully follow the point that the noble and learned Baroness makes. If she is talking about the importance of respecting freedom of expression and views and protecting debates through the Online Safety Bill, as well as guarding against misinformation and disinformation, there are important protections in the Bill to make sure that we can have free and unbridled debate. However, if I have misunderstood, I will be very happy to speak to her afterwards in more detail.

[Lord Clement-Jones (LD)]

My Lords, I remind the Minister that, as recently as April, his department was making the case for more powers for Ofcom in its Year 2 Online Media Literacy Action Plan, so the Minister’s replies today have been somewhat extraordinary. Given the extent of misinformation and disinformation on social media, is it not absolutely clear that we need more specific powers and duties on Ofcom, in particular to ensure that Ofcom can set minimum standards for media literacy initiatives? Why do not the Government commit to put these in the Bill?

[Lord Parkinson of Whitley Bay (Con)]

Through the Online Safety Bill, we are giving Ofcom strengthened media literacy functions on transparency reporting, information gathering and the other areas I set out. However, through its strategy announced in December last year, Ofcom has set out its own expanded work programme to discharge its existing duty, which includes pilots, campaigns to promote media literacy, establishing best practice and creating guidance on evaluation, so we are pleased to see that it is using and extending the powers that it has.

Product Security and Telecommunications Infrastructure Bill

Lord Clement-Jones Excerpts

2nd reading
Monday 6th June 2022 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I start by thanking the Minister for his comprehensive introduction. We have had a really well-informed debate today; it has, in the words of the noble Lord, Lord Arbuthnot, been enjoyable to hear the expertise displayed around the House. As the noble Baroness, Lady Harding, made clear, a lot of the Bill will involve arguing about technical issues. I look forward to many happy hours talking about ducts and poles as we proceed.

As many noble Lords have said, the Bill clearly falls into two distinct parts. The first is a very welcome but overdue addition to the security of connected products; the second concerns a telecom infrastructure element which makes yet more changes to the Electronic Communications Code. The product security elements are a welcome follow-on to the original 2018 Code of Practice for Consumer IoT Security. As the noble Lord, Lord Arbuthnot, also said, the internet is fundamentally insecure. I pay tribute to Which? and the PETRAS National Centre of Excellence for IoT Systems Cybersecurity for highlighting security issues in connected devices, and we welcome the proposals in the Bill.

As techUK says, demand and consumer appeal rose across all categories during the pandemic, and Covid-19 saw UK consumers buying 21.8 million smart home devices—a 22% rise in volume compared with 2019. People overwhelmingly assume these products are secure, but only one in five manufacturers have appropriate security measures in places for their connectable products. While there are strict rules about protecting people from physical harm such as overheating, sharp components or electric shocks, there are currently no such rules for cyber breaches.

My noble friend Lord Fox mentioned some survey work by Which? that found that a home filled with connected devices could be exposed to more than 12,000 hacking or unknown scanning attacks from across the world in a single week. There is, however, a series of issues in this area that will require amendment to the Bill. I am very sorry to disappoint the noble Lord, Lord Vaizey, in this respect—I do not know whether I should say he is from Vivaldi to Velasquez, but maybe we can continue with that later.

As my noble friend Lord Fox emphasised, at the very least there should be an upfront clause that sets out the purpose of the Bill. It should set out the minimum expectations for what a consumer should enjoy with respect to security because the danger, otherwise, is that these requirements are simply treated as a tick box. Which? has called for the three security requirements to be set out expressly as well, in Part 1 of the Bill or an appropriate schedule. At the moment, they are promised in secondary legislation without any draft being available. Will the Government supply this during the passage of the Bill so we can be vouchsafed what these three principles are going to look like? Why are only three out the six principles set out in the original guidelines covered, including minimise exposed attack surfaces and securely store credentials and security-sensitive data—can the Minister explain why these are not going to be included in the legislation?

The noble Lord, Lord Arbuthnot, raised some very interesting points about products being secured by design and access by engineers, and the noble Earl, Lord Devon, raised the very important issue about compatibility with international standards. The proposed mandatory requirements need to be matched with strong enforcement arrangements ensuring that consumers are able to get effective redress when they purchase devices that fail to meet security standards, and there need to be sufficient measures to keep people safe from harms caused by the weak security of these products. At present, the Bill gives the Secretary of State enforcement powers with the ability to delegate to a regulator. What are the Government’s intentions in this regard? What is the regulator going to be?

There are further amendments which we agree with Which? should be made to the Bill and which we will be advancing. We want to ensure that every individual device has a unique or user-set password that meets effective complexity requirements; there should be very clear provision of vulnerability disclosure policy information; and there is a variety of other aspects, such as ensuring that intermediaries, such as listing platforms, online marketplaces and auction sites, are covered as well.

The noble Lord, Lord Bassam, also mentioned the question of exemptions, and these include medical devices. These are increasingly common, and the data captured is sensitive but the regulations covering these are outdated. If they are going to be excluded, what assurance do we have from the Minister that conformity requirements are being updated for these devices to the latest security standards?

As the noble Lords, Lord Vaizey, Lord Holmes and Lord Arbuthnot, said, we have difficulties surrounding the ability to report flaws in device security. The CyberUp campaign has made the case that, without a statutory defence in the Computer Misuse Act 1990, cybersecurity researchers can still face legal action for testing and reporting a vulnerability to a manufacturer—the noble Lord, Lord Arbuthnot, raised the case of Rob Dyke. Can the Minister respond on this very important aspect—will the Government put forward an amendment during the passage of this Bill?

With the latter half of the Bill, we all seem to be trapped in a time loop on telecoms, with continual consultation 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. Can the Minister confirm that that should now read 2026? My noble friend Lord Fox asked the Minister a number of questions about the detail, where we were talking about fixed on the one hand and broadband on the other. I very much hope he will come back on that. But how long will all those targets stick? They seem to be changed just about every six months.

There has been so much government bravado in this area, but it is clear that the much-trumpeted £5 billion announced last year for Project Gigabit, bringing gigabit coverage to the hardest to reach areas, has not even been fully allocated, and not a penny has been spent. As the noble Lord, Lord Hunt, said, this is despite the increased importance of connectivity through the pandemic and the importance of digital exclusion, as the noble Lord, Lord Holmes, mentioned.

The changes to the ECC in the Digital Economy Act 2017 were meant to do the trick. Then the electronic communications and wireless telegraphy amendment regulations 2020 were heralded as enabling

“stronger emphasis on incentivising investment in very high-capacity … networks”,

promoting “efficient” use of spectrum, and

“ensuring effective consumer protection and engagement.”

Then we had the future telecoms infrastructure review and the Telecommunication Infrastructure (Leasehold Property) Bill, where we argued about the definition of “tenant” and “rights of requiring installation” and “rights of entry”. Sadly, we were not able to include a clause that would have required a review of the Government’s progress on rollout—and of course now we know why. Even while that that Bill was going through in 2021, we had the Access to Land: Consultation on Changes to the Electronic Communications Code. That has now resulted in this Bill. It is an extraordinary saga of chopping and changing to the ECC. After all this, we are no further forward on the extent of the universal service obligation, which is so frustrating for rural areas.

Where in all this, as my noble friend Lord Fox and I have asked each time we debate these issues, are the interests of the consumer, especially the rural consumer? How are they being promoted, especially now that the market review is only once every five years? As my noble friend Lord Fox said, the big question is what has and has not worked in all these changes. I fully join with the point made by the noble Baroness, Lady Stowell, that we have not had the promised impact assessment to see where we are on the ECC and the impact it has had.

Regarding the changes to the ECC made by the Bill, we have heard a great deal from, and many noble Lords have mentioned, the Protect and Connect campaign, which represents land and property owners, including sports clubs, churches, farms and country parks. Personally, I found what the noble Earl, Lord Devon, had to say extremely persuasive. Contrary to what the noble Lord, Lord Hunt, said, and as described by the noble Lord, Lord Bassam, and the noble Baroness, Lady McIntosh—I think the phrase the noble Earl, Lord Devon, used was “taking a sledgehammer” to existing property rights—the campaign says that those it represents have been severely impacted by the changes to the Electronic Communications Code made by the Digital Economy Act 2017. It appears that, since 2017, site providers, with rent reductions of up to 90% as opposed to the anticipated 40%, have lost more than £200 million per year in income, including £60.5 million of lost local authority money, while in some cases the capex of some operators has fallen. The Protect and Connect campaign believes that the

“push for massive rent reductions, compared with existing agreements, trample over property rights, and place farmers, small land and property owners, community organisations, charities, and other site providers, who have come to rely on this rental income, in financial peril, not least because it may unfairly result in these groups being forced to refund or repay operators thousands of pounds”.

I can give the Minister some very powerful case histories. It is noteworthy that work by the Centre for Economics and Business Research shows that the 2017 changes have led to a slowdown in rollout and the current government proposals will not remedy this. What is the Government’s assessment of that CEBR response?

We have also heard support for Openreach’s position on achieving easier upgrade rights as regards installation of broadband in MDUs. Like the noble Baroness, Lady Stowell, these Benches are not yet persuaded that this will not give Openreach an unfair competitive advantage, but we look forward to having that debate during the course of the Bill.

My noble friend Lord Fox had no time to raise the implications of the Hackitt report into building regulations and fire safety, and the aspect of broadband installation. We will raise this in Committee, because we believe that could provide a solution to the MDU contact issue by providing a single point of responsibility.

That was a bit of a gallop, but I look forward to the Minister’s reply.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am very grateful to all noble Lords for their contributions to what I agree has been a very enjoyable debate this afternoon. I am sure these contributions will form a prelude to some further interesting and enjoyable debates in Committee and later stages of the Bill. I am grateful, too, for the excessively generous compliments from my noble friends behind me, which I am sure are an illustration of the great harmony and mutual affection for which the Conservative Party is, today of all days, renowned.

As my noble friend Lady Harding of Winscombe rightly said, this is a technical but important Bill, and I am pleased that all noble Lords from all parts of your Lordships’ House are in agreement that people from across the country should be able to benefit from faster digital connectivity and the assurance that their technology is secure. The Bill therefore comes at an opportune time, when cyberattacks are on the rise and when digital connectivity is increasingly important for all the reasons that my noble friend Lady Hodgson of Abinger and other noble Lords set out. We have heard examples in today’s debate of the benefits which will accrue to communities, urban and rural, right across the country.

I am conscious that in Committee we will go into greater detail in some of the areas which noble Lords have alluded to, but I want to respond to some of the points which they have raised in today’s debate. The noble Lord, Lord Fox, began in general terms by asking whether we ought to set out a clear explanation in the Bill of what consumers can expect in terms of product security. The fundamental purpose of the Bill, as set out in its first clause, is to embed security requirements to protect and enhance the security of connectable products and their users. That is the measuring stick against which the impact of the Bill and future regulations will be assessed.

As I alluded to in my opening remarks, there are no silver bullets in cybersecurity. Thousands of people in the UK have been victims of cyberattacks, and cybercriminals are using connectable products to attack large infrastructure as well. Our approach to connectable products lies in both the UK and wider international expertise. Our own 2018 code of practice is the foundation of the first international standard for consumer security and there is an international consensus behind this standard. We are also, through the Bill, the first to embed these protections in legislation. At the moment, some security-conscious manufacturers address these threats, but through the Bill we will now make sure that all manufacturers follow best practice in future.

The noble Earl, Lord Devon, rightly spoke of our international standing. The UK has established global leadership in this area. We have worked closely with our international partners and have seen evidence of other countries and organisations embedding the approach that we have taken in their own codes. In my opening remarks I mentioned Australia and India, which have published codes of practice with the same 13 principles which we published in 2018, but Singapore, Germany and Finland among others have made their own domestic interventions which also align with the UK’s code of practice. The European Commission has also published its intention to explore regulation for connected devices through the cyber resilience Act.

On Part 2, the noble Lord, Lord Fox, in general terms asked why we were revisiting and changing the code again. As noble Lords noted, it was substantially reformed in 2017, following the important and substantial work undertaken by my noble friend Lord Vaizey of Didcot when he was the responsible Minister. A key aim of those reforms was to make it cheaper and easier for digital infrastructure to be deployed, maintained and upgraded. The Government recognised that this would mean telecommunications site providers receiving lower payments than had previously been the case. However, those changes were introduced only following an extensive period of consultation and research and were considered necessary to reduce operator costs and to encourage the industry investment required for the UK to get the digital communications infrastructure that it needs.

The Government intended that the 2017 reforms would speed up deployment and reduce operator costs, and indeed the changes have borne fruit. However, since the changes have come into force we have also received feedback about how they have worked in practice and about some of the ongoing challenges which people face. The Bill aims to tackle those problems and to ensure that the aim and the ambition of the 2017 reforms is realised. To give an example, both operators and landowners have pointed to problems regarding negotiations, with operators saying that they take too long and landowners saying that they face too much pressure to accept certain terms. This is one of the areas we will address through the Bill.

A number of noble Lords spoke about the valuation work which came from the 2017 reforms. The new pricing regime is more closely aligned to those for utilities such as water, electricity and gas, and we think that is the correct position. Landowners should still receive fair payments which, among other things, take into account any alternative uses that the land may have and any losses or damages that may be incurred. We think that the measures in the Bill will support greater collaboration between operators and landowners and help agreements to be completed more swiftly.

The prices being paid for rights to install communications apparatus before 2017 were too high and reflected the rapid explosion that was taking place in demand for digital services; it was right that they were addressed. The 2017 reforms were intended to strike a balance between ensuring that individual landowners are not left out of pocket and making network deployment and maintenance more cost-effective.

The noble Earl, Lord Devon, and others asked about reviewing the impact of the reforms made in 2017. We recognised when the 2017 reforms were introduced that the market would need time to adapt and settle, and it would be premature to carry out a full assessment of the 2017 reforms at this time. There is not enough evidence about agreements which were completed after they came into force for a properly robust and comprehensive analysis to be made—not least, of course, because of the impact of the pandemic. However, the evidence and feedback we have received provides a compelling case that the changes we are making in this Bill will ensure that the 2017 reforms have their intended effect. Making these changes now will help to deliver the Government’s 2025 connectivity target of at least 85% of homes and businesses having access to gigabit broadband. That is not to say that we think the 2017 reforms failed. Much progress has been made. We simply think that more can and must be done to maximise their impact.

The noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Merron, asked about impact assessments. The impact assessments which accompanied the 2017 reforms did not state that the Government would undertake a full economic review of the code’s impact on rents, but in that document the Government committed to reviewing the 2017 reforms as a whole by June 2022—this month. The Government have met this commitment through their continuing engagement with interested parties, including holding monthly access to land workshops. This engagement and the issues which have been highlighted through it prompted the 2021 consultation and the measures in the Bill, which we think are needed for the aims of the 2017 reforms to be fully realised.

[Lord Clement-Jones (LD)]

That sounds a bit feeble. DCMS has had workshops but has not produced a review. That does not sound like any sort of review.

[Lord Parkinson of Whitley Bay (Con)]

The noble Lord perhaps thinks we committed to more in 2017 than we did. We have met the commitments we made in 2017 through our engagement with the industry. The points it made have informed the Bill before us. I am sure we will debate—

[Lord Clement-Jones (LD)]

May I suggest that if the passage of the Bill is to be smooth, any information the Minister is able to provide about the impact, past or expected, would be extremely helpful? Otherwise, we are all going to be arguing about suppositions.

[Lord Parkinson of Whitley Bay (Con)]

Certainly. I pointed out that the time that has elapsed since 2017 has perhaps not given us as much real data as we would have had, were it not for the pandemic, but of course we will be influenced by what have seen as we scrutinise the Bill in Committee and later.

We have heard a range of views on multiple dwelling units. The Government are aware of calls from parts of the industry for greater automatic rights to upgrade existing infrastructure in multiple dwelling units. The Government are not convinced that granting those rights is proportionate, because we must strike the right balance between private property rights and public benefits. There are other ways that operators can arrange to upgrade equipment in multiple dwelling units. They can ask for those rights and if landlords fail to reply, they will be able to use the process created through the Telecoms Infrastructure (Leasehold Property) Act 2021. If landlords refuse, operators can ask the courts to impose additional rights to upgrade existing equipment if their agreement with the landlord does not already provide them with those rights.

Other measures in the Bill encourage the use of alternative dispute resolution to support more collaborative negotiations. The Government are also considering further changes through regulations to help code disputes be dealt with more quickly. Finally, it is important to stress that there is no consensus from the industry on this issue, just as there was no consensus in our debate today. In fact, many operators have opposed the proposal on the grounds that it would create an unfair advantage for operators who already have equipment inside buildings and could therefore have anti-competitive effects.

My noble friend Lady Harding of Winscombe asked about telegraph poles. It is important that any automatic rights in relation to apparatus on, under or over private land strike a fair balance between any interference with private property rights and any public benefits that can be delivered. We think that the measures in this Bill on rights to upgrade and share apparatus under land achieve that balance. However, we have seen some evidence that further public benefits might be achieved if telecommunications poles sited on private land could be upgraded and shared more easily. Operators already have statutory rights to fly wires between these poles and it is obviously important that the legislative framework supports the effective use of these rights; we are looking into this matter closely.

A number of noble Lords touched on what is and is not in scope of Part 1 of the Bill. The Bill sets out what types of products should be treated as “consumer connectable”. This includes products that can be connected to the internet, such as routers, smart TVs, smart home products and connectable toys. I can tell my noble friend Lord Arbuthnot of Edrom that toasters are indeed in scope, although the idea of an internet-connected toaster makes me think of Wallace and Gromit. I share his bafflement at why people might want to do it, but they are in scope.

The powers in the Bill will allow the Government to update products that are in scope where changes to the wider regulatory, technological or threat landscape render this appropriate. The Government also intend to remove some products from scope where their inclusion would subject them to double regulation or where that would be disproportionate to the level of security risk. An example of such an exception is automotive vehicles, which I can tell my noble friend Lord Vaizey of Didcot include e-scooters; other examples are medical devices and smart charging points.

My noble friend Lord Arbuthnot talked about the vulnerability disclosure process. Of course, manufacturers will not see every vulnerability in their own products. Increasingly, the people best placed to spot them are everyday users and designated security researchers; but the potential point of failure here is the process for reporting those vulnerabilities to the manufacturer, which is often difficult to navigate. The security requirement will mandate a clear point of contact and the policy for the manufacturer to receive such reports and take meaningful action to address them. That is an important step forward, which, I am pleased to say, has widespread industry and expert support.

The noble Lords, Lord Clement-Jones and Lord Bassam of Brighton, the noble Baroness, Lady Merron, and others asked about future-proofing. There is a common notion that Governments are behind the curve when it comes to regulating technology, but not in this case. As well as setting the stage to introduce the regulations to which we have already committed, this Bill establishes a flexible and future-proof regulatory framework so the Government can be agile and proactive in amending and introducing security requirements in step with technological innovation. That is exactly why we have not included the three security requirements on the face of the Bill. By design, the Bill not only addresses the current problem but looks beyond it to ensure that UK consumers can be protected no matter how technologies and threats change and emerge.

My noble friend Lord Holmes of Richmond asked about the Computer Misuse Act. Colleagues at the Home Office are currently taking forward work to identify whether the proposals made in response to the review of that Act, which was launched in May last year, will assist in helping to protect the UK from cybercrime, or whether they are addressed under other programmes of work. We will provide an update to your Lordships’ House in due course, but this Bill will enhance protection for consumers and networks from the range of harms associated with cyberattacks. It equips the Government with the necessary powers to set and update security requirements within a fast-growing area of emerging technologies.

[Lord Clement-Jones (LD)]

I am sorry to interrupt the Minister again, but I am frightened that he is not going to tell us who the regulator will be, explain why we are covering only three of the many principles covered in legislation in other territories, or provide us with a glimpse of the secondary legislation.

[Lord Parkinson of Whitley Bay (Con)]

The noble Lord is eager to hear answers to questions to which I may yet turn; on some of them I will write. Work has been done to identify the regulator, but it would not be right to refer to that person at this stage and ahead of Royal Assent. I will write to the noble Lord on the other points he mentioned. I talked just now about our approach, through secondary legislation, to future-proofing and the reasons for not setting out the first three principles in the Bill. We have set out what those standards will be up front.

My noble friend Lord Holmes of Richmond spoke about the important issue of digital inclusion and skills. We run programmes to give young people the opportunity to learn digital skills and to improve their cybersecurity. More than 100,000 young people have participated in these programmes. We have expanded that with a new online training platform, Cyber Explorers, which aims to engage 30,000 young people, and DCMS funded the creation of the UK Cyber Security Council to create professional standards and pathways for cybersecurity.

The noble Lord, Lord Fox, asked about Huawei equipment in our infrastructure. The Government have undertaken a consultation with the industry on the designation of Huawei as a high-risk vendor and proposed directions relating to Huawei goods and services. The responses we receive will inform any final post-consultation decision on whether to issue the designation notice and direction. The Government have also undertaken a public consultation on a set of draft electronic communications security measures regulations and a draft code of practice, the outcome of which will be published in due course.

AI in the UK (Liaison Committee Report)

Lord Clement-Jones Excerpts

Wednesday 25th May 2022 Grand Committee

Moved by

[Lord Clement-Jones]

That the Grand Committee takes note of the Report from the Liaison Committee AI in the UK: No Room for Complacency (7th Report, Session 2019–21, HL Paper 196).

[Lord Clement-Jones (LD)]

My Lords, the Liaison Committee report No Room for Complacency was published in December 2020, as a follow-up to our AI Select Committee report, AI in the UK: Ready, Willing and Able?, published in April 2018. Throughout both inquiries and right up until today, the pace of development here and abroad in AI technology, and the discussion of AI governance and regulation, has been extremely fast moving. Today, just as then, I know that I am attempting to hit a moving target. Just take, for instance, the announcement a couple of weeks ago about the new Gato—the multipurpose AI which can do 604 functions —or perhaps less optimistically, the Clearview fine. Both have relevance to what we have to say today.

First, however, I say a big thank you to the then Liaison Committee for the new procedure which allowed our follow-up report and to the current Lord Speaker, Lord McFall, in particular and those members of our original committee who took part. I give special thanks to the Liaison Committee team of Philippa Tudor, Michael Collon, Lucy Molloy and Heather Fuller, and to Luke Hussey and Hannah Murdoch from our original committee team who more than helped bring the band, and our messages, back together.

So what were the main conclusions of our follow-up report? What was the government response, and where are we now? I shall tackle this under five main headings. The first is trust and understanding. The adoption of AI has made huge strides since we started our first report, but the trust issue still looms large. Nearly all our witnesses in the follow-up inquiry said that engagement continued to be essential across business and society in particular to ensure that there is greater understanding of how data is used in AI and that government must lead the way. We said that the development of data trusts must speed up. They were the brainchild of the Hall-Pesenti report back in 2017 as a mechanism for giving assurance about the use and sharing of personal data, but we now needed to focus on developing the legal and ethical frameworks. The Government acknowledged that the AI Council’s roadmap took the same view and pointed to the ODI work and the national data strategy. However, there has been too little recent progress on data trusts. The ODI has done some good work, together with the Ada Lovelace Institute, but this needs taking forward as a matter of urgency, particularly guidance on the legal structures. If anything, the proposals in Data: A New Direction, presaging a new data reform Bill in the autumn, which propose watering down data protection, are a backward step.

More needs to be done generally on digital understanding. The digital literacy strategy needs to be much broader than digital media, and a strong digital competition framework has yet to be put in place. Public trust has not been helped by confusion and poor communication about the use of data during the pandemic, and initiatives such as the Government’s single identifier project, together with automated decision-making and live facial recognition, are a real cause for concern that we are approaching an all-seeing state.

My second heading is ethics and regulation. One of the main areas of focus of our committee throughout has been the need to develop an appropriate ethical framework for the development and application of AI, and we were early advocates for international agreement on the principles to be adopted. Back in 2018, the committee took the view that blanket regulation would be inappropriate, and we recommended an approach to identify gaps in the regulatory framework where existing regulation might not be adequate. We also placed emphasis on the importance of regulators having the necessary expertise.

In our follow-up report, we took the view that it was now high time to move on to agreement on the mechanisms on how to instil what are now commonly accepted ethical principles—I pay tribute to the right reverend Prelate for coming up with the idea in the first place—and to establish national standards for AI development and AI use and application. We referred to the work that was being undertaken by the EU and the Council of Europe, with their risk-based approaches, and also made recommendations focused on development of expertise and better understanding of risk of AI systems by regulators. We highlighted an important advisory role for the Centre for Data Ethics and Innovation and urged that it be placed on a statutory footing.

We welcomed the formation of the Digital Regulation Cooperation Forum. It is clear that all the regulators involved—I apologise for the initials in advance—the ICO, CMA, Ofcom and the FCA, have made great strides in building a centre of excellence in AI and algorithm audit and making this public. However, despite the publication of the National AI Strategy and its commitment to trustworthy AI, we still await the Government’s proposals on AI governance in the forthcoming White Paper.

It seems that the debate within government about whether to have a horizontal or vertical sectoral framework for regulation still continues. However, it seems clear to me, particularly for accountability and transparency, that some horizontality across government, business and society is needed to embed the OECD principles. At the very least, we need to be mindful that the extraterritoriality of the EU AI Act means a level of regulatory conformity will be required and that there is a strong need for standards of impact, as well as risk assessment, audit and monitoring, to be enshrined in regulation to ensure, as techUK urges, that we consider the entire AI lifecycle.

We need to consider particularly what regulation is appropriate for those applications which are genuinely high risk and high impact. I hope that, through the recently created AI standards hub, the Alan Turing Institute will take this forward at pace. All this has been emphasised by the debate on the deployment of live facial recognition technology, the use of biometrics in policing and schools, and the use of AI in criminal justice, recently examined by our own Justice and Home Affairs Committee.

My third heading is government co-ordination and strategy. Throughout our reports we have stressed the need for co-ordination between a very wide range of bodies, including the Office for Artificial Intelligence, the AI Council, the CDEI and the Alan Turing Institute. On our follow-up inquiry, we still believed that more should be done to ensure that this was effective, so we recommended a Cabinet committee which would commission and approve a five-year national AI strategy, as did the AI road map.

In response, the Government did not agree to create a committee but they did commit to the publication of a cross-government national AI strategy. I pay tribute to the Office for AI, in particular its outgoing director Sana Khareghani, for its work on this. The objectives of the strategy are absolutely spot on, and I look forward to seeing the national AI strategy action plan, which it seems will show how cross-government engagement is fostered. However, the Committee on Standards in Public Life—I am delighted that the noble Lord, Lord Evans, will speak today—report on AI and public standards made the deficiencies in common standards in the public sector clear.

Subsequently, we now have an ethics, transparency and accountability framework for automated decision-making in the public sector, and more recently the CDDO-CDEI public sector algorithmic transparency standard, but there appears to be no central and local government compliance mechanism and little transparency in the form of a public register, and the Home Office appears to be still a law unto itself. We have AI procurement guidelines based on the World Economic Forum model but nothing relevant to them in the Procurement Bill, which is being debated as we speak. I believe we still need a government mechanism for co-ordination and compliance at the highest level.

The fourth heading is impact on jobs and skills. Opinions differ over the potential impact of AI but, whatever the chosen prognosis, we said there was little evidence that the Government had taken a really strategic view about this issue and the pressing need for digital upskilling and reskilling. Although the Government agreed that this was critical and cited a number of initiatives, I am not convinced that the pace, scale and ambition of government action really matches the challenge facing many people working in the UK.

The Skills and Post-16 Education Act, with its introduction of a lifelong loan entitlement, is a step in the right direction and I welcome the renewed emphasis on further education and the new institutes of technology. The Government refer to AI apprenticeships, but apprentice levy reform is long overdue. The work of local digital skills partnerships and digital boot camps is welcome, but they are greatly underresourced and only a patchwork. The recent Youth Unemployment Select Committee report Skills for Every Young Person noted the severe lack of digital skills and the need to embed digital education in the curriculum, as did the AI road map. Alongside this, we shared the priority of the AI Council road map for more diversity and inclusion in the AI workforce and wanted to see more progress.

At the less rarefied end, although there are many useful initiatives on foot, not least from techUK and Global Tech Advocates, it is imperative that the Government move much more swiftly and strategically. The All-Party Parliamentary Group on Diversity and Inclusion in STEM recommended in a recent report a STEM diversity decade of action. As mentioned earlier, broader digital literacy is crucial too. We need to learn how to live and work alongside AI.

The fifth heading is the UK as a world leader. It was clear to us that the UK needs to remain attractive to international research talent, and we welcomed the Global Partnership on AI initiative. The Government in response cited the new fast-track visa, but there are still strong concerns about the availability of research visas for entrance to university research programmes. The failure to agree and lack of access to EU Horizon research funding could have a huge impact on our ability to punch our weight internationally.

How the national AI strategy is delivered in terms of increased R&D and innovation funding will be highly significant. Of course, who knows what ARIA may deliver? In my view, key weaknesses remain in the commercialisation and translation of AI R&D. The recent debate on the Science and Technology Committee’s report on catapults reminded us that this aspect is still a work in progress.

Recent Cambridge round tables have confirmed to me that we have a strong R&D base and a growing number of potentially successful spin-outs from universities, with the help of their dedicated investment funds, but when it comes to broader venture capital culture and investment in the later rounds of funding, we are not yet on a par with Silicon Valley in terms of risk appetite. For AI investment, we should now consider something akin to the dedicated film tax credit which has been so successful to date.

Finally, we had, and have, the vexed question of lethal autonomous weapons, which we raised in the original Select Committee report and in the follow-up, particularly in the light of the announcement at the time of the creation of the autonomy development centre in the MoD. Professor Stuart Russell, who has long campaigned on this subject, cogently raised the limitation of these weapons in his second Reith Lecture. In both our reports we said that one of the big disappointments was the lack of definition of “autonomous weapons”. That position subsequently changed, and we were told in the Government’s response to the follow-up report that NATO had agreed a definition of “autonomous” and “automated”, but there is still no comprehensive definition of lethal autonomous weapons, despite evidence that they have clearly already been deployed in theatres such as Libya, and the UK has firmly set its face against laws limitation in international fora such as the CCW.

For a short report, our follow-up report covered a great deal of ground, which I have tried to cover at some speed today. AI lies at the intersection of computer science, moral philosophy, industrial education and regulatory policy, which makes how we approach the risks and opportunities inherent in this technology vital and difficult. The Government are engaged in a great deal of activity. The question, as ever, is whether it is focused enough and whether the objectives, such as achieving trustworthy AI and digital upskilling, are going to be achieved through the actions taken so far. The evidence of success is clearly mixed. Certainly there is still no room for complacency. I very much look forward to hearing the debate today and to what the Minister has to say in response. I beg to move.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful to the noble Lord, Lord Clement-Jones, and all noble Lords who have spoken in today’s debate. I agree with the noble Lord, Lord McNally, that all the considerations we have heard have been hugely insightful and of very high quality.

The Government want to make sure that artificial intelligence delivers for people and businesses across the UK. We have taken important early steps to ensure we harness its enormous benefits, but agree that there is still a huge amount more to do to keep up with the pace of development. As the noble Lord, Lord Clement-Jones, said in his opening remarks, this is in many ways a moving target. The Government provided a formal response to the report of your Lordships’ committee in February 2021, but today’s debate has been a valuable opportunity to take stock of its conclusions and reflect on the progress made since then.

Since the Government responded to the committee’s 2020 report, we have published the National AI Strategy. The strategy, which I think it is fair to say has been well received, had three key objectives that will drive the Government’s activity over the next 10 years. First, we will invest and plan for the long-term needs of the AI ecosystem to continue our leadership as a science and AI superpower; secondly, we will support the transition to an AI-enabled economy, capturing the benefits of innovation in the UK, and ensuring that AI benefits all sectors and parts of the country; and, thirdly, we will ensure the UK gets the national and international governance of AI technologies right to encourage innovation and investment, and to protect the public and the values that we hold dear.

We will provide an update on our work to implement our cross-government strategy through the forthcoming AI action plan but, for now, I turn to some of the other key themes covered in today’s debate. As noble Lords have noted, we need to ensure the public have trust and confidence in AI systems. Indeed, improving trust in AI was a key theme in the National AI Strategy. Trust in AI requires trust in the data which underpin these technologies. The Centre for Data Ethics and Innovation has engaged widely to understand public attitudes to data and the drivers of trust in data use, publishing an attitudes tracker earlier this year. The centre’s early work on public attitudes showed how people tend to focus on negative experiences relating to data use rather than positive ones. I am glad to say that we have had a much more optimistic outlook in this evening’s debate.

The National Data Strategy sets out what steps we will take to rebalance this perception from the public, from one where we only see risks to one where we also see the opportunities of data use. It sets out our vision to harness the power of responsible data use to drive growth and improve services, including by AI-driven services. It describes how we will make data usable, accessible and available across the economy, while protecting people’s data rights and businesses’ intellectual property.

My noble friend Lord Holmes of Richmond talked about anonymisation. Privacy-enhancing technologies such as this were noted in the National Data Strategy and the Centre for Data Ethics and Innovation, which leads the Government’s work to enable trustworthy innovation, is helping to take that forward in a number of ways. This year the centre will continue to ensure trustworthy innovation through a world-first AI assurance road map and will collaborate with the Government of the United States of America on a prize challenge to accelerate the development of a new breed of privacy-enhancing technologies, which enable data use in ways that preserve privacy.

Our approach includes supporting a thriving ecosystem of data intermediaries, including data trusts, which have been mentioned, to enable responsible data-sharing. We are already seeing data trusts being set up; for example, pilots on health data and data for communities are being established by the Data Trusts Initiative, hosted by the University of Cambridge, and further pilots are being led by the Open Data Institute. Just as we must shift the debate on data, we must also improve the public understanding and awareness of AI; this will be critical to driving its adoption throughout the economy. The Office for Artificial Intelligence and the Centre for Data Ethics and Innovation are taking the lead here, undertaking work across government to share best practice on how to communicate issues regarding AI clearly.

Key to promoting public trust in AI is having in place a clear, proportionate governance framework that addresses the unique challenges and opportunities of AI, which brings me to another of the key themes of this evening’s debate: ethics and regulation. The UK has a world-leading regulatory regime and a history of innovation-friendly approaches to regulation. We are committed to making sure that new and emerging technologies are regulated in a way that instils public confidence in them while supporting further innovation. We need to make sure that our regulatory approach keeps pace with new developments in this fast-moving field. That is why, later this year, the Government will publish a White Paper on AI governance, exploring how to govern AI technologies in an innovation-friendly way to deliver the opportunities that AI promises while taking a proportionate approach to risk so that we can protect the public.

We want to make sure that our approach is tailored to context and proportionate to the actual impact on individuals and groups in particular contexts. As noble Lords, including the right reverend Prelate the Bishop of Oxford, have rightly set out, those contexts can be many and varied. But we also want to make sure our approach is coherent so that we can reduce unnecessary complexity or confusion for businesses and the public. We are considering whether there is a need for a set of cross-cutting principles which guide how we approach common issues relating to AI, such as safety, and looking at how to make sure that there are effective mechanisms in place to ensure co-ordination across the regulatory landscape.

The UK has already taken important steps forward with the formation of the Digital Regulation Cooperation Forum, as the noble Lord, Lord Clement-Jones, and others have noted, but we need to consider whether further measures are needed. Finally, the cross-border nature of the international market means that we will continue to collaborate with key partners on the global stage to shape approaches to AI governance and facilitate co-operation on key issues.

My noble friend Lord Holmes of Richmond and the noble Lord, Lord Evans of Weardale, both referred to the data reform Bill and the issues it covers. DCMS has consulted on and put together an ambitious package of reforms to create a new pro-growth regime for data which is trusted by people and businesses. This is a pragmatic approach which allows data-driven businesses to use data responsibly while keeping personal information safe and secure. We will publish our response to that later this spring.

My noble friend also mentioned the impact of AI on jobs and skills. He is right that the debate has moved on in an encouraging and more optimistic way and that we need to address the growing skills gap in AI and data science and keep developing, attracting and training the best and brightest talent in this area. Since the AI sector deal in 2018, the Government have been making concerted efforts to improve the skills pipeline. There has been an increased focus on reskilling and upskilling, so that we can ensure that, where there is a level of displacement, there is redeployment rather than unemployment.

As the noble Lord, Lord Bilimoria, noted with pleasure, the Government worked through the Office for AI and the Office for Students to fund 2,500 postgraduate conversion courses in AI for students from near and non-STEM backgrounds. That includes 1,000 scholarships for people from underrepresented backgrounds, and these courses are available at universities across the country. Last autumn, the Chancellor of the Exchequer announced that this programme would be bolstered by 2,000 more scholarships, so that many more people across the country can benefit from them. In the Spring Statement, 1,000 more PhD places were announced to complement those already available at 16 centres for doctoral training across the country. We want to build a world-leading digital economy that works for everyone. That means ensuring that as many people as possible can reap the benefits of new technologies. That is why the Government have taken steps to increase the skills pipeline, including introducing more flexible training routes into digital roles.

The noble Lord, Lord St John of Bletso, was right to focus on how the UK contributes to international dialogue on AI. The UK is playing a leading role in international discussions on ethics and regulation, including our work at the Council of Europe, UNESCO and the OECD. We should not forget that the UK was one of the founding members of the Global Partnership on Artificial Intelligence, the first multilateral forum looking specifically at this important area.

We will continue to work with international partners to support the development of the rules on use of AI. We have also taken practical steps to take some of these high-level principles and implement them when delivering public services. In 2020, we worked with the World Economic Forum to develop guidelines for responsible procurement of AI based on these values which have since been put into operation through the Crown Commercial Service’s AI marketplace. This service has been renewed and the Crown Commercial Service is exploring expanding the options available to government buyers. On an international level, this work resulted in a policy tool called “AI procurement in a box”, a framework for like-minded countries to adapt for their own purposes.

I am mindful that Second Reading of the Procurement Bill is taking place in the Chamber as we speak, competing with this debate. That Bill will replace the current process-driven EU regime for public procurement by creating a simpler and more flexible commercial system, but international collaboration and dialogue will continue to be a key part of our work in this area in the years to come.

The noble Lord, Lord Browne of Ladyton, spoke very powerfully about the use of AI in defence. The Government will publish a defence AI strategy this summer, alongside a policy ensuring the ambitious, safe and responsible use of AI in defence, which will include ethical principles based on extensive policy work together with the Centre for Data Ethics and Innovation. The policy will include an updated statement of our position on lethal autonomous weapons systems.

As the noble Lord, Lord Clement-Jones, said, there is no international agreement on the definition of such weapons systems, but the UK continues to contribute actively at the UN Convention on Certain Conventional Weapons, working closely with our international partners, seeking to build norms around their use and positive obligations to demonstrate how degrees of autonomy in weapons systems can be used in accordance with international humanitarian law. The defence AI centre will have a key role in delivering technical standards, including where these can support our implementation of ethical principles. The centre achieved initial operating capability last month and will continue to expand throughout this year, having already established joint military, government and industry multidisciplinary teams. The Centre for Data Ethics and Innovation has, over the past year, been working with the Ministry of Defence to develop ethical principles for the use of AI in defence—as, I should say, it has with the Centre for Connected and Autonomous Vehicles in the important context of self-driving vehicles.

The noble Baroness, Lady Merron, asked about the application of AI in the important sphere of the environment. Over the past two years, the Global Partnership on Artificial Intelligence’s data governance working group has brought together experts from across the world to advance international co-operation and collaboration in areas such as this. The UK’s Office for Artificial Intelligence provided more than £1 million to support two research projects on data trusts and data justice in collaboration with partner institutions including the Alan Turing Institute, the Open Data Institute and the Data Trusts Initiative at Cambridge University. These projects explored using data trusts to support action to protect our climate, as well as expanding understanding of data governance to include considerations of equity and justice.

The insights that have been raised in today’s debate and in the reports which tonight’s debate has concerned will continue to shape the Government’s thinking as we take forward our strategy on AI. As noble Lords have noted, by most measures the UK is a leader in AI, behind only the United States and China. We are home to one-third of Europe’s AI companies and twice as many as any other European nation. We are also third in the world for AI investment—again, behind the US and China—attracting twice as much venture capital as France and Germany combined, but we are not complacent. We are determined to keep building on our strengths, maintaining and building on this global position. This evening’s debate has provided many rich insights on the further steps we must take to make sure that the UK remains an AI and science superpower. I am very grateful to noble Lords, particularly to the noble Lord, Lord Clement-Jones, for instigating it.

[Lord Clement-Jones (LD)]

My Lords, first I thank noble Lords for having taken part in this debate. We certainly do not lack ambition around the table, so to speak. I think everybody saw the opportunities and the positives, but also saw the risks and challenges. I liked the use by the noble Baroness, Lady Merron, of the word “grappling”. I think we have grappled quite well today with some of the issues and I think the Minister, given what is quite a tricky cross-departmental need to pull everything together, made a very elegant fist of responding to the debate. Of course, inevitably, we want stronger meat in response on almost every occasion.

I am not going to do another wind-up speech, so to speak, but I think it was a very useful opportunity, prompted by the right reverend Prelate, to reflect on humanity. We cannot talk about artificial intelligence without talking about human intelligence. That is the extraordinary thing: the more you talk about what artificial intelligence can do, the more you have to talk about human endeavour and what humans can do. In that context, I congratulate the noble Lords, Lord Holmes and Lord Bilimoria, on their versatility. They both took part in the earlier debate, and it is very interesting to see the commonality between some of the issues raised in the previous debate on digital exclusion —human beings being excluded from opportunity— which arise also in the case of AI. I was very interested to see how, back to back, they managed to deal with all that.

The Minister said a number of things, but I think the trust and confidence aspect is vital. The proof of the pudding will be in the data reform Bill. I may differ slightly on that from the noble Lord, Lord Holmes, who thinks it is a pretty good thing, by the sound of it, but we do not know what it is going to contain. All I will say is that, when Professor Goldacre appeared before the Science and Technology Committee, I think it was a lesson for us all. He is the chap who has just written the definitive report on data use in the health area for the Department of Health, and he deliberately opted out, last year, of the GP request for consent to share data, and he is the leading data scientist in health. He was not convinced of the fact that his data would be safe. We can talk about trusted research environments and all that, but public trust in data use, whether it is in health or anything else, needs engagement by government and needs far more work.

The thing that frightens a lot of us is that we can see all the opportunities but if we do not get it right, and if we do not get permission to use the technology, we cannot deploy it in the way we conceived, whether it is for the sustainable development goals or for other forms of public benefit in the public service. Provided we get the compliance mechanisms right we can see the opportunities, but we have to get that public trust on board, not least in the area of lethal autonomous weapons. I think the perception of what the Government are doing in that area is very different from what the Ministry of Defence may think it is doing, particularly if they are developing some splendid principles of which we will all approve, when it is all about what is actually happening on the ground.

I will say no further. I am sure we will have further debates on this and I hope that the Minister has enjoyed having to brief himself for this debate, because it is very much part of the department’s responsibilities.

Motion agreed.

Legislative Reform (Renewal of National Radio Multiplex Licences) Order 2022

Lord Clement-Jones Excerpts

Monday 4th April 2022 Grand Committee

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

My Lords, I am pleased to introduce a statutory instrument which was laid before your Lordships’ House on 31 January 2022: the draft Legislative Reform (Renewal of National Radio Multiplex Licences) Order 2022.

This is a short but important order that will bring clarity and certainty to the UK’s commercial radio sector. In particular, it will allow the holders of the two national commercial radio multiplex licences, Digital One and Sound Digital, to renew these licences for a further period—12 years and 7 years respectively—to 2035. This provision will have the most immediate effect for the Digital One licence, which is due to expire in November 2023. The measure meets the tests set out in the Legislative and Regulatory Reform Act 2006 and has been approved by the Delegated Powers and Regulatory Reform Committee of your Lordships’ House and the Business, Energy and Industrial Strategy Committee in another place as being appropriate for a legislative reform order with the affirmative procedure.

Since the launch of the Digital Radio Action Plan in 2010, the Government have supported the listener-led transition of radio from analogue to digital, through measures including the expansion of the digital transmission networks to substantially match FM coverage. There has been significant progress in the past decade. Digital radio now accounts for two-thirds of all radio listening, having been less than 30% 10 years ago.

Digital radio differs from analogue broadcasting, where a single encoded signal is broadcast on an analogue frequency, such as AM or FM. A digital radio multiplex or network compresses and bundles a number of radio services into one frequency and transmits it digitally to a certain geographic area. The signal is then decoded by a digital radio receiver used by listeners either in-home or in-vehicle. Digitisation allows radio broadcasters to use spectrum more efficiently, giving listeners more choice when listening to digital radio.

The UK’s independent broadcasting regulator, Ofcom, is responsible for the licensing of commercial digital radio multiplex services under Part 2 of the Broadcasting Act 1996. Radio multiplex services are licensed by Ofcom in terms of national, local and small-scale coverage.

Currently, there are two UK-wide national commercial digital radio multiplexes with around 20 digital radio stations broadcasting on each network. The licence holders are Digital One Ltd and Sound Digital Ltd. These two national digital radio multiplexes are an essential means of distributing national commercial radio stations to audiences across the UK. They have been successful in opening the national airwaves to more commercial radio services and in allowing commercial radio to compete with the BBC, which operates its own national multiplex.

The licence for the Digital One national radio multiplex was first issued in November 1999 and was granted with a right for one further renewal of 12 years. The licence was renewed by Ofcom in 2011 and runs to November 2023. The second licence is held by Sound Digital Ltd and was issued in March 2016. This multiplex licence will expire in March 2028 and currently has no renewal option.

Under the Broadcasting Act 1996, Ofcom does not at present have power to renew these national multiplex licences beyond the current expiry dates. Therefore, with the existing Digital One licence due to reach its final expiry date in November next year, and with Ofcom having no authority under the existing legislation to extend these further, the Government believed it was important to give the commercial radio operators who use these networks clarity and certainty about the future of the platform.

In July 2021, we issued a consultation to explore the options for reform: a do-nothing option, which would involve allowing the licences to be readvertised, or to legislate to allow the further renewal of the two licences for a further period, to either December 2030 or December 2035. Having carefully considered the feedback from the consultation, our conclusion was to legislate to allow for an automatic renewal of the two national radio multiplex licences. This was supported by the majority of respondents.

We believe that allowing the licences to be renewed will give national commercial radio broadcasters the long-term certainty and stability for their businesses and the confidence to continue to invest in digital radio services. It will also avoid a complex, disruptive and time-consuming relicensing process at a time when commercial radio is still recovering from the impacts of the Covid-19 pandemic on advertising revenues.

While some respondents were in favour of opening up the national radio multiplex licences to new competition, in our view a competitive bidding process for relicensing the licences would be disruptive and would have administrative, cost and management time burdens not just for the existing multiplex operators in rebidding for the licences but, more importantly, for the commercial radio stations carried on the networks. There would also be an administrative burden for Ofcom in running a competitive process for the licences.

Noble Lords may be concerned that the measure restricts competition. However, there has been little interest in operating a national radio multiplex, in part due to the high barriers to entry. There have been no market, technical or regulatory changes in recent years that would in our view make it more attractive for an external party to operate a national radio multiplex; indeed, digital radio is now an increasingly mature platform. The Business, Energy and Industrial Strategy Committee in another place considered this issue in detail and was satisfied that the competition concerns were fully considered by Her Majesty’s Government.

In setting the length of renewals, we reflected carefully on the feedback received from respondents, which was strongly supportive of a longer renewal for both licences. The provisions in this order will therefore update the legislation to allow Ofcom to grant a renewal of the national commercial radio multiplex licences for an additional 12 years in the case of the Digital One multiplex and seven years for the Sound Digital multiplex, with both licences to end on 31 December 2035.

In our view, the order will support the next phase of the radio industry’s transition towards digital transmission. It will provide national commercial radio operators much-needed certainty and the confidence to continue to invest in their digital services. I should make clear, however, that the Government, while supportive of the transition to digital transmission, have made no firm commitments about a future radio switchover. The joint industry and government Digital Radio and Audio Review, published in October last year, examined future trends and concluded that, while digital’s share of listening will continue to grow, FM will be needed until at least 2030—a view the Government support, given the important role that FM listening still plays for many radio listeners.

In summary, the order will allow for the renewal of the national multiplex licences. It will provide stability and certainty to the commercial radio industry during this tough time, while supporting the progress of UK radio and audio towards a digital future. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I cannot believe that this is going to be a mass event. I thank the Minister for his introduction to the LRO and welcome the commitment to digital radio represented by this LRO. However, as we noted during recent Oral Questions, we are all looking forward to the government response to the Digital Radio and Audio Review of last October, which has not yet been published. Perhaps the Minister would reveal a little more than he did about when we can expect it to be forthcoming—“spring” or “summer” would do; “shortly” is a word he might wish to deploy as well.

There are some questions to be answered, which I hope will appear in the response and which are relevant to today’s LRO. I recognise that the BEIS Select Committee asked some of these, but I want to go a little further. Clearly, IP radio is coming in in force, especially with smart speakers and voice assistants now beginning to replace dedicated radio sets. I for one will be interested in what the Government have to say about prominence and algorithmic curation of playlists, station selection and content, and how this will fit with the new statutory competition framework for the Digital Markets Unit.

Last week, representatives from news media and publishing, including radio, highlighted the need for the Government to introduce statutory powers for the DMU to help tackle the threat of tech platforms, but over the weekend there were reports that this may be dropped from the Queen’s Speech. Does the Minister recognise the urgency of putting in place such powers in regulating online gatekeepers such as smart speakers and voice assistants? What proposals will there be in the next parliamentary Session to address the significant current risk to media plurality and broadcasters’ business models from the digital platforms linked to these devices?

In June 2021, the then Secretary of State for DCMS announced plans for a broadcasting White Paper, which would address a range of issues, including regulation of commercial radio and prominence of UK radio services online and on smart speakers. When is this White Paper expected and will it address these issues?

However, surely key in all this is that spectrum for the multiplexes is a scarce commodity, and demand for it will depend on how much commercial radio DAB is replaced by IP broadcasting. Should not any renewal of the DAB multiplex licences have been set in context with the response to the review on this, particularly in terms of the competition issues associated with any renewal and the pressures on the two multiplexes? In addition, is not the potential change to mandatory licence conditions to include the necessity to include DAB+ relevant in terms of the pressure on the two systems, as well as the ability to satisfy demand for space on the multiplexes?

Similarly, I note the commitment mentioned by the Minister not to switch off FM services before 2030, despite digital reaching 66% of listening. Is not the future of FM relevant to the renewal of the multiplex licences? Will this be covered by the response to the review?

There seems little price competition in the grant of licences. In other areas, such as mobile telephony spectrum, we have seen a bidding system—why not in this area now that digital radio technology is well established?

The general impression is that the Government might have jumped the gun in this area, but in other areas relating to commercial radio they are dragging their heels. What can the Government say in response to all these concerns, many of which are shared by the commercial radio industry?

[Lord Bassam of Brighton (Lab)]

My Lords, we too welcome the order, which secures the future of popular radio stations including Absolute Radio, Classic FM and Times Radio, and will ensure that, as a product of the renewal of the UK national digital radio multiplex licences, we have stability and certainty for the next decade, as the Minister said.

As I understand matters, the Government are giving Ofcom the power to renew the two commercial radio multiplex licences, Digital One Ltd and Sound Digital Ltd, which, as the Minister explained, are due to expire in 2023 and 2028 respectively. This move will mean that audiences across the UK can enjoy uninterrupted access to the huge range of radio content available from the country’s national commercial broadcasters through their digital devices on a free-to-air basis. Well-known stations on the Digital One Ltd multiplex include Absolute Radio, Capital and Smooth. Listeners can find the likes of Jazz FM and talkRADIO on the Sound Digital Ltd multiplex. That is all to the good.

As I understand it, the first of the two licences is due to expire in November next year. Rather than going continually through the bidding process every five years, the Government seem to have decided to spare both sides the time and cost of doing so. That too is welcome.

As has been said, the Commons BEIS Committee has published its report on the order. This confirms that it meets all the relevant tests that would be expected. We welcome the fact that those have been properly gone through, and we consider the policy to be proportionate. It has been subject to appropriate consultation, and that too is to be welcomed.

We support the change and recognise the enduring value of radio in general terms. Who does not love “The Archers”, “Desert Island Discs”, Jazz FM, BBC 6 Music—I could go on? All these bring great pleasure to us.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful to both noble Lords for their comments and their support for the order. As ever, with a brisk debate such as this, it can be difficult to scribble down all the questions, so if I have missed anything I will of course write to noble Lords with points that I have not been able to address.

The noble Lord, Lord Bassam of Brighton, is right to name some of the much-loved stations that are covered by the order—that is the importance of this for radio listeners across the country, and it is right to have them in mind.

Both noble Lords took the opportunity, not unreasonably, to ask about other legislative vehicles. They will understand that, this close to the gracious Speech, I am limited in what I can say, but the Government certainly agree that the current commercial radio licensing framework requires simplification. In particular, we need a regulatory structure for commercial radio that supports investment by broadcasters in content and the long-term sustainability of the sector. We feel that the current structure falls short, and we will be introducing the relevant legislation as soon as parliamentary time allows. On other legislative vehicles, I am afraid that noble Lords will have to wait for the gracious Speech and the details contained therein.

On the legislative background and technical details, as I set out in my opening speech the Government have decided to allow the two national commercial radio multiplex licences on the digital terrestrial radio platform, which are due to expire, to be renewed for a further period. The two national multiplexes, which carry 44 national commercial radio stations, in total facilitate coverage to around 91% of homes across the UK at the moment.

The noble Lord, Lord Clement-Jones, asked about our support for this technology into the 2030s. We know that the terrestrial DAB platform is popular with UK audiences and plays an important role in supporting public service broadcasting by providing a universal, reliable, secure and free-to-air distribution channel. Audience figures from Radio Joint Audience Research show that DAB is the single largest platform, with a 42.5% share of all radio listening in the fourth quarter of last year. By contrast, analogue radio via FM or AM services continues to fall and accounts for 35.6% of all listening. Research for the joint government and industry Digital Radio and Audio Review indicates that the terrestrial DAB platform will continue to be the most important means by which listeners access radio content into the mid to late-2030s.

The noble Lord, Lord Clement-Jones, asked about the Digital Radio and Audio Review, which looked at the issue of smart speakers that we touched on in the Oral Question a few days ago. As I said then, we agree that good arguments have been made for taking action to protect radio’s long-term position, in the context of the rapid growth in usage of connected audio devices, and to ensure the continuation of the huge public value which radio provides. But, as we noted in the exchange on that Question, this will not be straightforward: any significant intervention in this area will need to be considered in the wider context of other work that we are carrying out, particularly in relation to digital markets and data protection reform. Both noble Lords asked when our response to the Digital Radio and Audio Review will be published; we expect to publish this response in the coming weeks.

We believe that the provisions in the order before us will allow national commercial radio operators to focus their efforts at this difficult time on continuing to deliver the vital news and entertainment that listeners value most, while supporting the ongoing transition towards a digital future for the radio sector. I commend this order to the Committee.

[Lord Clement-Jones (LD)]

Before the Minister sits down, one question that he has not really answered is why this LRO is taking place before the response to the review is available. The particular question that I asked in relation to that response was about the place of IP radio, for instance. This is all about what different kinds of radio broadcasting are taking place. Of course, if one wishes to renew these multiplexes, it is all about how much multiplex space is required relative to IP and FM. I talked about jumping the gun, but I do not quite understand why the LRO is taking place now, before the response, when if it were actually set in context we would have a much better idea when that response comes out.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, as I outlined at the beginning, this is the result of significant consultation, which agreed very much with the Government’s approach. We want to provide national commercial radio operators with the certainty and confidence that they need to continue to invest in their digital services, which is why we are doing it now. However, I will certainly write to the noble Lord with further detail on the point about IP radio, which we continue to look at. As we noted on the Question a few days ago, that area is changing rapidly. The landscape continues to evolve, but this order is being made so that the industry has the confidence and certainty that it needs to invest to support the transition to the digital future, which I think all noble Lords have agreed with today.

Broadcasting White Paper

Lord Clement-Jones Excerpts

Monday 14th March 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

Yes, I agree with the noble Viscount. As I say, as the review noted, these devices have opened up new avenues for content creators to reach audiences with podcasts and other audio output. There are very exciting job opportunities for people in this area and part of the work we are leading through DCMS is to make sure that people have the opportunity to work in our vastly expanding creative industries.

[Lord Clement-Jones (LD)]

My Lords, tech platforms and smart speakers have now become gatekeepers to the UK radio broadcasters, with access to all their valuable audience data. Will the Government ensure that the long-delayed new statutory competition framework for the Competition and Markets Authority’s Digital Markets Unit becomes a priority, levels the playing field between broadcasters and online platforms and addresses the significant current risk to media plurality and radio broadcasters?

[Lord Parkinson of Whitley Bay (Con)]

We recognise that good arguments have been made for taking action to protect radio’s long-term position and ensure the continuation of the huge public value which radio provides. However, that will not be straightforward; any significant intervention in this area will need to be considered in the wider context of other work we are carrying out, particularly in relation to digital markets and data protection reform.

Digital Technology (Democracy and Digital Technologies Committee Report)

Lord Clement-Jones Excerpts

Friday 11th March 2022 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, this has been an inspiring debate. Events in Ukraine should make us all cherish our democracy in Britain and reinforce our determination to reinforce democratic values across the world. Nothing can compare with the suffering of the Ukrainian people in the defence of their democracy: they are a shining example to us all.

It is regrettable that we are debating this excellent report, which is still highly topical, nearly two years after it was published. I, like all of us who have spoken in this debate, very much miss Lord Puttnam leading the charge on the issues so important to him, and with which his valedictory lecture last October dealt so brilliantly. We also owe a big debt of gratitude to the noble Lord, Lord Lipsey, for stepping in and for his masterful introduction. It is good to see so many members of the committee participating today.

As the noble Lord, Lord Lipsey, says, what seemed controversial then has become commonplace today. Some of the recommendations of the committee are already in the pipeline, but we need to give far more attention, as the noble Lord, Lord Harris, said, to the other recommendations that are not in the pipeline. Given the crossover with many aspects of the report of the Joint Committee on the Draft Online Safety Bill, I am particularly pleased to be taking part in this debate today.

In a piece four years ago, US tech journalist Dylan Matthews wrote:

“The internet was supposed to save democracy… How could we have gotten this so wrong?”


He wrote this in the light of alleged manipulation by Russia both in the US presidential elections and in the Brexit vote, with the aid of Cambridge Analytica, which used data collected online from millions of personal Facebook accounts, targeting individuals with specific misinformation. As the noble Baroness, Lady Morris, said, we were too slow to see the risks. As the noble Lord, Lord Stevenson, said, who doubts this activity now?

In the intervening years, the power of viral disinformation on social media has become even clearer. The long-delayed report on Russian interference, by the Intelligence and Security Committee in July 2020, said:

“The UK is clearly a target for Russia’s disinformation campaigns and political influence operations and must therefore equip itself to counter such efforts.”


We also had the riots at the Capitol in Washington DC on 6 January 2021, mentioned by the noble Lord, Lord Harris. An investigation by ProPublica and the Washington Post found that Facebook groups swelled —with at least 650,000 posts attacking the legitimacy of Joe Biden’s victory—between election day and the 6 January riot, with many calling for executions or other political violence.

We have had former Facebook—now Meta—employee Frances Haugen’s damning testimony, mentioned by the noble Baroness, Lady Kidron, and the noble Lord, Lord Mitchell, to the USA Senate and our own Joint Committee on the Draft Online Safety Bill, on which I sat. She accused the company of putting

“astronomical profits before people.”

Most of us need little convincing that things have gone badly wrong somewhere, and in 2022, after Covid lockdown, the situation seems worse. But as the report of the Democracy and Digital Technologies Committee says, we must look at the roots of the problem and the accountabilities involved. It is all about the power of the algorithm and data, as the noble Lords, Lord Stevenson and Lord Mitchell, said.

We are being targeted with our own data. Online political microtargeting is used to alter how we vote, especially with misinformation. As the noble Lord, Lord Harris, said, extreme content is amplified as part of the platform business model. Outrage is encouraged. Their business models operate directly against the best interests of a democratic society. They prey on us, in that vivid phrase quoted by the noble Baroness, Lady Kidron. Lord Puttnam made the strong point in his valedictory lecture that 6 January was a wake-up call to tackling the problems with microtargeting and algorithm bias which underlie the business models of the social media platforms.

Ownership of data is increasingly concentrated in the hands of big internet brands, as we have heard from a number of noble Lords today. Metcalfe’s law of networks has led to enormous and growing power for social media.

What should the consequences be for social media? How can we prevent these harms to democracy? How can we restore trust—or resurrect it, in the words of the report? The bottom line is that we do have the power, as the noble Lords, Lord Holmes and Lord Stevenson, said. We need government regulation, and quickly, as the noble Baroness, Lady Kidron, said. In the phrase used by Avaaz, we need to detoxify the algorithm, not only regarding hate speech, terrorism and cyberbullying but in very clear electoral regulation and action by the Competition and Markets Authority to enforce competition in the tech and data space.

We also need much greater personal control over our data and how it is used. Misinformation and disinformation are particularly hard to define, but as the committee said, if the Government decide that the online safety Bill is not the appropriate place to do so, then it should use the Elections Bill, which is currently making its way through Parliament. Tackling societal harms caused by misinformation and disinformation is not straightforward, as our Joint Committee found, but the draft online safety Bill, as we described in our report of last December, needs to go further.

There is of course a tension with freedom of expression. I agree with the noble Baroness, Lady Fox, about that being a major consideration, but I certainly do not agree with her analysis, and as we emphasised, we must prioritise tackling specific harmful activity over restricting content.

In our Joint Committee report, we recommended safety by design requirements, such as increasing transparency and countering algorithmic power and virality; as Fair Vote says, it is a proven way to preserve free speech, while limiting free reach of content that poses societal harm at scale. For example, we heard that a simple change—introducing more friction into sharing on Facebook—would have the same effect on the spread of misinformation and disinformation as the entire third-party fact checking system.

We do not yet know what the Government’s response to these recommendations is—that may come next week—but we do have the Elections Bill in front of us. The real government reluctance is in reform of electoral law and regulation of digital political activity. Apart from the digital imprint provisions, the Bill fails to take any account of the mounting evidence and concerns about the impact on our democracy of misinformation and disinformation. The Government are yet even to adopt the Electoral Commission report of June 2018, Digital Campaigning: Increasing Transparency for Voters, which called for urgent reforms to electoral law to combat misinformation, misuse of personal data and overseas interference in elections amid concerns that British democracy may be under threat. Why are these recommendations not contained in the Elections Bill? We heard in the previous debate today about the flaws in that Bill, and I am very pleased that the noble Lord, Lord Lucas, is very well aware of the deficiencies in the Bill.

How prescient was the ISC in its Russia report:

“The links of the Russian elite to the UK – especially where this involves business and investment – provide access to UK companies and political figures, and thereby a means for broad Russian influence in the UK. To a certain extent, this cannot be untangled and the priority now must be to mitigate the risk and ensure that, where hostile activity is uncovered, the tools exist to tackle it at source.”


Most recently, the Committee on Standards in Public Life has made a number of other important recommendations regarding digital and social media campaigning.

But, as have heard today, this is not enough. Regulation by itself will not deal with all the issues. Even though we are facing issues that threaten democracy, we should be trying to preserve the good that the internet has done as we work to mitigate its harm to our political system. So, as well as regulation, there needs as be—as the Democracy and Digital Technologies Committee report says—public engagement to support digital understanding at all levels of society. As several noble Lords said, including the noble Lords, Lord Vaizey and Lord Harris, and the noble Baroness, Lady Morris, digital literacy and digital skills are of huge importance, as also emphasised by the committee’s report. We must do more than simply expect Ofcom—even under the chairmanship of the noble Lord, Lord Vaizey—to deliver a digital media strategy. This needs a whole-of-government and whole-of-society approach. We are supposed to be the cradle of democracy, yet the EU is way ahead of us in its proposals to regulate political advertising. This needs cross-governmental action and much greater action from social media platforms themselves.

At the end of the day, however, we need to look in the mirror. We deserve a better system. The Government are playing into the hands of those who wish to erode our democracy by digital means. Why are they intent on reducing the independence of the Electoral Commission? As the noble Lord, Lord Griffiths, said, trust in our democracy has been eroded by this Government—certainly by the negative response so graphically described by the noble Lord, Lord Mitchell. The Government must change tack and provide effective safeguards.