Public Service Broadcasting: BBC Centenary

Lord Clement-Jones Excerpts

Thursday 3rd November 2022 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I also congratulate my noble friend Lord Foster on initiating this debate and, in particular, on provoking some fine contributions so far. The much-respected Sir Peter Bazalgette, who has just stepped down as chairman of ITV, said in his Hay Lecture last month:

“Our viewing is so much richer than it used to be and the streamers have hugely enhanced this … Long may we have a system of broadcasting designed to deliver this.”


The streamers have returned the compliment:

“The impact that the BBC has had over the last few decades in building the profile of the UK creatively, in nurturing talent, its investment in production and so forth, is one of the key reasons why we have chosen to make our home here and … why we are such strong supporters of what it does and want to see it continue doing.”


That was Benjamin King, director of public policy for Netflix UK and Ireland, giving evidence to the Commons DCMS Committee back in 2020 in its inquiry into the future of public service broadcasting.

Anne Mensah, vice-president of original series at Netflix, who used to work at the BBC, went further, and I hope that the noble Baroness, Lady Stowell, notes this. She was asked if she thought the licence fee was a sustainable way forward for the BBC in the long term. She said:

“I absolutely believe in the long-term sustainability of the BBC. I love the BBC. I think that it makes some of the best shows, if you look at what it has done this year from ‘I May Destroy You’ to ‘A Suitable Boy’. I back the idea of having a UK creative economy that is built on a number of different models from subscription through to licence. I would hate to see the BBC diminished in its impact in the UK.”


Much the same could be said of the importance of commercial PSBs, such as Channel 4 and ITV. That is why the majority Conservative and Conservative-chaired committee concluded its report by saying:

“The strong, varied public service broadcasting ecology in the UK has played a significant role in the growth of the production sector in the UK. PSBs have been described as underpinning the wider creative economy and whilst SVoDs are beginning to invest more in production in the UK, the number of UK-originated content hours is hardly comparable.”


It is clear that we need a plurality of provision. Each has an important place in our broadcast ecosystem and they are interdependent. They rely on different funding mechanisms and that is a strength, not a weakness.

As Ofcom’s recent report into how the PSBs have delivered for UK audiences states, the amount and range of first-run original UK programmes on the PSBs

“far outweighs what is available on other commercial broadcast channels and the global streaming services.”

It also notes that the streaming services

“do not offer the same mix of original UK content as broadcast services, consisting of predominantly US produced drama and comedy programmes”.

The report, Public Service Broadcasting: As Vital as Ever, from the Select Committee on Communications and Digital—whose chair and former chair are present—concluded that

“TV which reflects UK culture is in demand at home and abroad. However, changes in the market may make the future of individual SVoDs and TV services uncertain. New entrants complement but cannot replace public service broadcasters, which guarantee continued investment in a wide range of original UK content no matter the state of the global market.”

Libby Purves, at the end of her insightful and far from uncritical article on the BBC last month in the Times—“Happy 100th, BBC, You Dear Old Monster”—wrote:

“Something must be done to keep the best of the BBC both safe and independent. Finding it is a serious job for serious politicians, if we ever get any again. And they should remember that every investigation and commission into the corporation has led, however reluctantly, to the conclusion it has unique value.”


I was here in 1999, when the noble Lord, Lord Bragg, concluded his splendid opening speech in a debate on the BBC. He said:

“For over 75 years the BBC has stood for something singular and been seen to be singular. If that goes the BBC will eventually go and a great chapter in our social and cultural history would have come to an end. It need not be like that. But the dangers are clear and the time to act is now.”—[Official Report, 3/3/1999; cols. 1668-69.]


Let us not keep repeating history, but recognise once and for all the huge value and quality in the variety of broadcasting we have, the core of which is our public service broadcasting.

In this light, I believe in particular that the media Bill and government policy should—to ensure that variety, diversity and quality in our broadcast services is included—definitely not contain the privatisation of Channel 4 which, as we have heard, is celebrating its 40th anniversary. As we noted earlier, it was created by a Conservative Government. The Bill should give Ofcom the powers promised in the White Paper to draw up and enforce a new video on demand code, to ensure that television-like content will be subject to similar standards regardless of how it is accessed, so that that age ratings used by all VoD services must meet the three criteria set out in the Government’s consultation response. It should reinstate the BFI young audiences content fund and—as recommended by the Commons Digital, Culture, Media and Sport Committee—reform rules around prominence, legislate to give a remit to the digital markets unit over PSB content and plurality in broadcast media, and extend the requirements for diversity reporting to streaming services. I hope the Minister will confirm that the Bill will contain that.

Freedom of Expression (Communications and Digital Committee Report)

Lord Clement-Jones Excerpts

Thursday 27th October 2022 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I congratulate the Select Committee on yet another excellent report relating to digital issues and the noble Lord, Lord Gilbert, on his masterly introduction. It really has stimulated some profound and thoughtful speeches from all around the House. This is an overdue debate, as the noble Lord, Lord Griffiths, put it.

As someone who sat on the Joint Committee on the draft Online Safety Bill, I very much see the committee’s recommendations in the frame of the discussions we had in our Joint Committee. It is no coincidence that many of the Select Committee’s recommendations are so closely aligned with those of the Joint Committee, because the Joint Committee took a great deal of inspiration from this very report—I shall mention some of that as we go along.

By way of preface, as both a liberal and a Liberal, I still take inspiration from JS Mill and his harm principle, set out in On Liberty in 1859. I believe that it is still valid and that it is a concept which helps us to understand and qualify freedom of speech and expression. I was very interested in the speech of the noble Baroness, Lady O’Neill; like the noble Lord, Lord Griffiths, I think I need to take it away and think about the difference between freedom of speech and freedom of expression. Clearly, it is something of considerable importance conceptually. Of course, we see Article 10 of the ECHR enshrining and giving the legal underpinning for freedom of expression, which is not unqualified, as I hope we all understand.

There are many common recommendations in both reports which relate, in the main, to the Online Safety Bill—we can talk about competition in a moment. One absolutely key point made during the debate was the need for much greater clarity on age assurance and age verification, a point made by the noble Lords, Lord Griffiths, Lord Vaizey, Lord Gilbert and Lord Londesborough. It is the friend, not the enemy, of free speech.

The reports described the need for co-operation between regulators in order to protect users. On safety by design, both reports acknowledged that the online safety regime is not essentially about content moderation; the key is for platforms to consider the impact of platform design and their business models. Both reports emphasised the importance of platform transparency. Law enforcement was very heavily underlined as well, particularly by the noble Lord, Lord Gilbert, in his introduction. Both reports stressed the need for an independent complaints appeals system. Of course, we heard from all around the House today the importance of media literacy, digital literacy and digital resilience, from my noble friend Lord McNally and the noble Lords, Lord Griffiths and Lord Vaizey. Digital citizenship is a useful concept which encapsulates a great deal of what has been discussed today.

The bottom line of both committees was that the Secretary of State’s powers in the Bill are too broad, with too much intrusion by the Executive and Parliament into the work of the independent regulator and, of course, as I shall discuss in a minute, the “legal but harmful” aspects of the Bill. The Secretary of State’s powers to direct Ofcom on the detail of its work should be removed for all reasons except national security.

A crucial aspect addressed by both committees related to providing an alternative to the Secretary of State for future-proofing the legislation. I agreed with the noble Viscount, Lord Colville, and the noble Baroness, Lady Uddin, who talked about the metaverse, but the digital landscape is changing at a rapid pace—even in 2025 it may look entirely different. The recommendation—initially by the Communications and Digital Committee—for a Joint Committee to scrutinise the work of the digital regulators and statutory instruments on digital regulation, and generally to look at the digital landscape, were enthusiastically taken up by the Joint Committee.

The committee had a wider remit in many respects in terms of media plurality. I was interested to hear around the House—not only from the noble Lord, Lord Gilbert, but from the noble Baroness, Lady Stowell, in her intervention, and the noble Viscount, Lord Colville—support for this and a desire to see the DMU in place as soon as possible and for it to be given those ex-ante powers.

Crucially, both committees raised fundamental issues about the regulation of legal but harmful content, which has taken up some of the debate today, and the potential impact on freedom of expression. However, both committees agreed that the criminal law should be the starting point for regulation of potentially harmful online activity. Both agreed that sufficiently harmful content should be criminalised along the lines, for instance, suggested by the Law Commission for communication and hate crimes, especially given that there is now a requirement of intent to harm. I was not very clear from the intervention of the noble Baroness, Lady Fox, as to whether she even accepted that that could be regulated online.

Under the new Bill, category 1 services have to consider harm to adults when applying the regime. Clause 54, which is essentially the successor to Clause 11 of the draft Bill, defines content that is harmful to adults as that

“of a kind which presents a material risk of significant harm to an appreciable number of adults in the United Kingdom.”

Crucially, Clause 54 leaves it to the Secretary of State to set in regulations what is actually considered priority content that is harmful to adults.

The Communications and Digital Committee thought that legal but harmful content should be addressed through regulation of platform design, digital citizenship and education. However, many organisations argue—I take quite a degree of comfort from my noble friend Lord Allan’s points, made as someone with experience within the industry—especially in the light of the Molly Russell inquest and the need to protect vulnerable adults, that we should retain Clause 54 but that the description of harms covered should be set out in the Bill.

Our Joint Committee said, and I still believe that this is the way forward:

“We recommend that it is replaced by a statutory requirement on providers to have in place proportionate systems and processes to identify and mitigate reasonably foreseeable risks of harm arising from regulated activities defined under the Bill”,


but that

“These definitions should reference specific areas of law that are recognised in the offline world, or are specifically recognised as legitimate grounds for interference in freedom of expression.”


We set out a list which is a great deal more detailed than that provided on 7 July by the Secretary of State. I believe that this could form the basis of a new clause. As my noble friend Lord Allan said, this would mean that content moderation would not be at the sole discretion of the platforms. The noble Lord, Lord Vaizey, stressed that we need regulation.

We also diverged from the committee over the definition of journalistic content and over the recognised news publisher exemption, and so on, which I do not have time to go into but which will be relevant when the Bill comes to the House. But we are absolutely agreed that regulation of social media must respect the rights to privacy and freedom of expression of people who use it legally and responsibly. That does not mean a laissez-faire approach. Bullying and abuse prevent people expressing themselves freely and must be stamped out. But the Government’s proposals are still far too broad and vague about legal content that may be harmful to adults. We must get it right. I hope the Government will change their approach: we do not quite know. I have not trawled through every amendment that they are proposing in the Commons, but I very much hope that they will adopt this approach, which will get many more people behind the legal but harmful aspects.

That said, it is crucial that the Bill comes forward to this House. The noble Lord, Lord Gilbert, pointed to the Molly Russell inquest and the evidence of Ian Russell, which was very moving about the damage being wrought by the operation of algorithms on social media pushing self-harm and suicide content. I echo what the noble Lord said: that the internet experience should be positive and enriching. I very much hope the Minister will come up with a timetable today for the introduction of the Online Safety Bill.

Online Pornography: Digital Economy Act 2017

Lord Clement-Jones Excerpts

Wednesday 26th October 2022 Lords Chamber

[Lord Kamall (Con)]

On that particular piece of research, I will have to check with the department and write to the noble Baroness. We are quite clear that, when we bring back the Online Safety Bill, the focus will mostly be on the protection of children from harm. We can have a debate on some of the other issues—the tension between freedom of speech and what adults should have access to—sensibly and calmly, as noble Lords usually do, but we want to get this right for the protection of children.

[Lord Clement-Jones (LD)]

My Lords, does the Minister agree with the evidence that Barnardo’s gave to the Joint Committee on the Draft Online Safety Bill? It said that the failure to enact the original age-verification legislation over three years ago has meant that thousands of children have continued to easily access pornography sites. Does the Minister agree with that? Given his comments today, will he undertake to tell Ofcom that its road map needs changing and that this needs to be a major priority, in that road map, for implementation?

[Lord Kamall (Con)]

Indeed. One of the issues my department has been discussing with Ofcom is age verification and age assurance. We have to remember that age verification is one form of age assurance. The other thing we have to be aware of is how technology changes very quickly, so we must make sure that we can be as flexible as possible so that Ofcom can update its guidelines or advice on tackling this. We are clear that we do not want to be technology-specific. We want to make sure that it is future-proofed when it comes to age verification and age assurance.

Product Security and Telecommunications Infrastructure Bill

Lord Clement-Jones Excerpts

3rd reading
Wednesday 19th October 2022 Lords Chamber

[Baroness Merron (Lab)]

My Lords, on the face of it, this Bill might have looked purely technical, but it will affect the day-to-day lives of millions up and down the country. It improves security for smart devices—products which are now second nature to so many of us. We know there will be regulations to follow and that the devil will be in the detail; we look forward to examining that detail. The Bill will also assist the installation of infrastructure and support greater connectivity, whether through wired broadband or wireless 5G networks.

From these Benches, I thank the ministerial team, who have been courteous, professional and ever willing to engage in meetings and discussions. To refer to the ministerial team of three on this occasion, I would like to say how grateful I am to the noble Lord, Lord Kamall, who cut his DCMS teeth on this Bill. My thanks also go to the noble Lord, Lord Harlech, who recently joined the Government Front Bench, and the noble Lord, Lord Sharpe, who bought his Home Office experience to bear. I also associate with myself with the comments of the noble Lord, Lord Kamall, in expressing my particular thanks to the former Minister, the noble Lord, Lord Parkinson.

From these Benches, we are also grateful to the Bill team, the ministerial office team, the clerks, the staff of the House—indeed, all those who worked front of house as well as behind the scenes to make this Bill possible. As ever, it has been my pleasure to work with my noble friend Lord Bassam, who has brought his valuable experience and knowledge to bear. We were very fortunate to have the highly professional support of Dan Stevens, our excellent adviser who has guided and advised us throughout, to whom we express our thanks. Of course, my thanks are also due to all noble Peers who have worked in a cross-party and constructive fashion on this Bill.

I am very glad that the Government listened to a number of noble Lords regarding the delegated powers in the Bill, and that a particular amendment was brought forward to enhance operators’ rights in respect of telegraph poles. I thank the noble Baroness, Lady Harding, for her work on this issue.

Finally, I hope that the Minister will recognise that the amendment passed by your Lordships’ House, which requires an independent review of the Electronic Communications Code, offers a sensible and important way forward on a number of outstanding and key issues, including access to multiple-dwelling units and land valuation. These matters need resolution, and I therefore hope that the Government will take this amendment seriously ahead of the Bill’s return to the other place.

[Lord Clement-Jones (LD)]

My Lords, I add my thanks to the Minister, the noble Lord, Lord Kamall, the noble Lord, Lord Sharpe, and their team, and of course to the Minister’s predecessor, the noble Lord, Lord Parkinson. I would describe him as “urbane”— I can flatter him now that he is no longer a Minister.

I also thank the noble Baroness, Lady Merron, and the noble Lord, Lord Bassam, on the Labour Front Bench for making common cause on so many issues, and quite a number of Cross-Benchers and Conservative Back-Benchers who have played such a prominent role in trying to improve the Bill with their expertise alongside external organisations—such as Which?, Protect and Connect, ISPA and CityFibre—which have been so helpful in their briefings. However, my particular thanks are due to my fellow in arms, my noble friend Lord Fox—who has borne at least half the burden of this Bill with me and was described rightly in Committee as a “supersub” by the noble Lord, Lord Bassam—and, very importantly, to the very expert Sarah Pughe in our whips’ office. I thank in particular the noble Lord, Lord Kamall, for his efforts; this was his first DCMS Bill, but I am sure it will get worse.

I am pleased that the Government have made some concessions and given assurances during the course of the Bill, particularly about the regulations to follow. However, on the central aspects of not specifying enough in primary legislation in terms of security requirements for IoT devices and the retention of unfair valuation and ADR provisions, the Bill is ultimately disappointing. I hope that the Minister will ensure that the review mechanism is retained and does not return to this House.

In general, the objectives on all sides of the House are not very different, but I must say that the Government’s one gigabit strategy really has seemed to mutate throughout the course of this Bill, so I do not believe that there is a great deal of clarity yet on when the Government’s strategy is actually going to be accomplished. In general, as regards retaining the review mechanism, a little willingness to accept this might earn this Government just a few, badly needed friends out there—they might find that quite useful at the current time.

[The Earl of Lytton (CB)]

My Lords, first, I apologise for my unavoidable absence at Report last week, but I add my belated welcome to the Minister on his appointment and thank him for writing today, as well as my appreciation to his predecessor, the noble Lord, Lord Parkinson. On product security, I certainly wish this Bill well. I am somewhat less enthusiastic about its telecommunications infrastructure measures, particularly on the matter of valuation.

I express my thanks to the clerks and the wonderful co-ordination run from the Liberal Democrat offices. I thank colleagues who spoke in favour of the valuation amendments that I tabled at earlier stages, particularly the noble Earl, Lord Devon, who cannot be here today, and the noble Lord, Lord Cromwell, who I am glad to see is in his place. I also thank noble Lords across the House—I am extremely grateful, particularly for the Labour amendment of last Wednesday, so ably pressed by the noble Baroness, Lady Merron, which really remains the only man standing on the measures that might ultimately address market concerns on telecoms sites. I thank the noble Baroness warmly for that and pledge my support going forward. I pay tribute to the CLA, of which I am a member, the NFU, and other bodies such as Protect and Connect, which we have heard about, for their support and persistence.

Whatever the economic and political rationale, impressions matter and govern transaction analysis—and market confidence also, as we have seen recently in grand style. So I regret that, despite the Minister’s letter of today, a reasoned justification and clear evidence for further interventions into landlord and tenant practice are not apparent to me, especially looking at contractual terms beyond rent. Although as a property practitioner and fellow of the RICS, I believe that these measures are in that sense regrettable, divisive, avoidable and likely to cause the supply of mast sites to shrivel, I appreciate that the Minister demurs and disputes the evidence that has been put forward of lessor reticence, increased legal disputes and slower market process. So we will just have to see. Site providers in the market, their advisers and so on will have to take note, and they may become increasingly wary, not only for what this means in terms of mast rentals but for the wider implications for property rights going forward.

Product Security and Telecommunications Infrastructure Bill

Lord Clement-Jones Excerpts

Report stage
Wednesday 12th October 2022 Lords Chamber

Moved by

[Lord Clement-Jones]

1: Clause 1, page 1, line 17, at end insert—
“(2A) Regulations under this section must, among other things, include security requirements that—(a) prohibit the setting of universal default passwords and the ability to set weak or easily guessable passwords;(b) require the production and maintenance by manufacturers of regular publicly-available reports of security vulnerabilities; (c) ensure the provision of information to the consumer, before the contract for the sale or supply of a relevant connectable product is made, detailing the minimum length of time for which the consumer will receive software or other relevant updates for that product;(d) introduce appropriate minimum periods for the provision of security updates and support, taking into account factors including the reasonable expectations of consumers, the type and purpose of the connectable products concerned and any other relevant considerations.(2B) Regulations under this section must include provision that all security requirements specified in accordance with this Act are included as essential requirements in statutory conformity assessments and marking procedures under the Radio Equipment Regulations 2017 (S.I. 2017/1206), and in any other such assessments and procedures applicable to relevant connectable products.”Member’s explanatory statement
This amendment expressly sets out on the face of the Bill security requirements, which this bill seeks to establish through future regulations, providing specific legal guidance regarding the individual security requirements and obligations on relevant parties.

[Lord Clement-Jones (LD)]

My Lords, in moving Amendment 1, I shall speak also to Amendment 13. My noble friend Lord Fox will speak to Amendment 3 in the same group. First, I warmly welcome the noble Lord, Lord Kamall, to his new role in DCMS and join others in that welcome. I am sure he has already found the company of those who speak on DCMS matters very congenial, but he will also note that there are a number of all-purpose vehicles here, so he has probably met quite a number of us already.

In Committee, we called for the three security requirements to be set out expressly in Part 1 of the Bill. At the moment they are promised in secondary legislation without any draft being available, as is, I am afraid, the Government’s consistently bad habit. Customers need absolute clarity on the support period that manufacturers will offer so that they are able to make more informed purchasing decisions. I cannot understand why the Minister’s predecessor insisted in Committee that the minimum security requirements should be stated in secondary, not primary, legislation. He said it was important that technology regulation enables the Government to respond to changes in threat and technology and to the regulatory landscape; surely, these are security principles which should endure.

As for mandating minimum security updates for periods for connectable products, the Minister said that there is no consensus among industry experts on how long security updates ought to last. This is foggy thinking—how can the Government not have taken a view? Contrast the approach of the European Union, which has recently published its own equivalent Cyber Resilience Act. Crucially, the EU has imposed a five-year mandatory minimum period in which products must receive security updates. A rigid five-year period is not necessarily desirable, but the commitment to set out in legislation a mandated period in which products receive security support is very welcome. Before Third Reading the Government really should undertake to look closely at the EU proposals and tighten up the Bill. Why should EU consumers get a better deal than UK ones?

As regards Amendment 13, on computer misuse, the noble Lord, Lord Arbuthnot, introduced this amendment in Committee and this one is exactly the same. Under regulations that will be introduced following the passage of the Bill, manufacturers will be required to provide a public point of contact to report vulnerabilities. However, without a statutory defence in the Computer Misuse Act, it is clear that cybersecurity researchers can still face spurious legal action for reporting a vulnerability to a company which can decide on a whim to ignore its vulnerability disclosure policy—a practice known as “liability dumping”. Amendment 13 seeks to ensure that cybersecurity professionals who act in the public interest in relation to testing relevant connectable products can defend themselves from prosecution by the state and from unjust civil litigation.

In Committee, the noble Lord, Lord Parkinson, seemed to say conflicting things. He said that the key thing is to set professional standards to measure the competence and capability of security testers, and that that is why the Government set up the UK Cyber Security Council last year. On the one hand, he said:

“We should be encouraging this rather than creating a route to allow people to sidestep these important issues.”


On the other, he said that the Government are listening to the concerns expressed by the CyberUp campaign and that the Home Secretary had announced a review of the Computer Misuse Act. The Minister said:

“The evidence which is being submitted to the review is being assessed and considered carefully by the Home Office.”—[Official Report, 21/6/22; col. 212.]


Are the Government positive or negative on this? What approach are they taking? We are past the summer now, in any event. Is there any prospect of change to the Act? I beg to move.

[Lord Fox (LD)]

My Lords, I too welcome the Minister to his new role. I think DCMS will be at least as busy as his previous engagements, so we look forward to seeing him on his feet at the Dispatch Box quite a lot.

The unifying feature of these three amendments, which in policy terms are different, is that we are seeking some clarity. So, I support my noble friend in Amendments 1 and 13, and I rise to speak to Amendment 3 in my name. Given that online marketplaces represent the single most popular point of sale for connected products, these platforms should have responsibilities for the security of the products they are selling. That is what we are seeking clarity on today. If online marketplaces are not held responsible under the Bill, these insecure products will continue to be sold and, in all likelihood, their sale would become more prolific.

One of the last things the noble Lord, Lord Parkinson, did as Minister was to dispatch a letter to me in response to queries such as this raised in Committee about the status of online marketplaces—the fear being that channels such as listings platforms and auction sites such as eBay, Amazon Marketplace and AliExpress might present a loophole. The problem is the lack of clear definition for the various players that are part of the internet value chain and the fact that these players have different degrees of insight or control over what is happening online.

As the Minister will see from his predecessor’s letter, dated 21 September 2022, the department’s stated position for online marketplaces is that,

“businesses need to comply with the security requirements of the product security regime in relation to all new consumer connectable products offered to customers in the UK, including those sold through online marketplaces”.

I would appreciate it if the Minister could confirm this from the Dispatch Box. It is paramount that online marketplaces are given this obligation in the Bill to ensure this security, regardless of whether the seller is a third party. It would help very much if the Minister set out what the Government’s definition of an online marketplace is.

How does the Minister’s department plan to deal with the retailers, which are far away, possibly with their real identity obscured on the online marketplaces? Will the department go to the online marketplace first and how will that process be marshalled? In other words, when a customer has a problem, who do they contact?

--- Later in debate ---

[Lord Kamall]

We understand that they are two different things, but I am happy to clarify and come back to the noble Lord—I hope to do so before we come to future amendments.

Amendment 3 aims to define what a “distributor” is for the purposes of the PSTI Bill. The Bill requires all UK consumer connectable products to be secure. Where it does not happen, the regulator will act promptly. For e-commerce, given the double-edged sword of technology, reviewing that framework is important. I hope the ambition of the Bill encourages noble Lords to consider not pressing the amendment, but once again I am happy to engage further for clarification and to address any outstanding concerns.

Let me turn to Amendment 13. The Government are listening to and considering concerns that the Computer Misuse Act is constraining activity that would enhance the UK’s cybersecurity. We understand that if you want to test cybersecurity you have to be able to test its breaking point. We are trying to strike the right balance between providing suitable reassurances for well-meaning individuals who want to identify vulnerabilities and not allowing malicious actors to access devices without consent. There are risks here. It is very nuanced, and the Government do not want to rush into legislative change without clear evidence to justify any such change to existing law. As the noble Lord, Lord Clement-Jones, said, the Home Office has been conducting a review of the Act since 2021, and the proposals for statutory defences have been an integral part of this review. I can confirm that a response that sets out how the Government plan to proceed should be published in the coming weeks, and an update will be provided to this House.

I hope that this will provide sufficient assurances on these three amendments, and the noble Lords will consider withdrawing and not pressing their amendments. I repeat the offer of continued engagement and meetings for clarification and to reassure noble Lords.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for those three sets of assurances. I should have thanked him too for meeting with us prior to today.

I am interested in the Minister’s change of language in the department: we have got “by the end of the year” and “in the coming weeks” rather than “in due course”. I think we are making some progress, which is very helpful.

I notice too his unwavering commitment—that was very firm—to publish the regulations by the end of the year. It is grossly unsatisfactory not to have the secondary legislation in draft when the primary legislation contains virtually nothing of the real meat. I am afraid that this Bill is not alone in that respect; it is one of the common complaints that we have whenever legislation comes forward.

As regards the online marketplaces, I am grateful for those assurances, which are accepted and are very much in line with the letter. The new consultation on a new set of regulations about unsafe products is interesting, and I hope the Minister will clarify and give us further and better particulars, and more specifics about what that actually involves.

As regards the Computer Misuse Act—I notice the noble Lord, Lord Arbuthnot, is in his place—it is satisfactory that the Home Office is going to divulge what it really thinks about this. We wait with trepidation for what it is going to say on the subject, given some of the negative responses that Ministers have given previously. We can wait and look forward to that. In the meantime, I beg leave to withdraw Amendment 1.

Amendment 1 withdrawn.

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Secondly, the amendment makes it clear—rightly, in my view—that the occupier would still need to grant their consent before works on the pole commence. However, I do not think that any of us want to create extra layers of bureaucracy in doing that. Therefore, could my noble friend explain what proof of consent will be needed for an operator to access land to access their paragraph 74 rights? Would, for example, verbal agreement be sufficient? Subject to hearing my noble friend’s response on those two questions, I am pleased with this amendment.

[Lord Clement-Jones (LD)]

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

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

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

[Baroness Merron (Lab)]

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

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

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

--- Later in debate ---

[Lord Northbrook (Con)]

My Lords, I declare my interests as a site owner and NFU member. I agree with every word that the noble Lord, Lord Cromwell, has said. I am astonished by this piece of legislation from a Conservative Government.

Amendments 19 and 22 aim to address the issue of valuation, one of the most significant concerns with the code. As other noble Lords have said, the “no scheme” valuation methodology introduced into the code in 2017 prevents courts taking into account sites’ potential use as provision for an electronic communications network. This allows operators to drive down the rents they pay to site providers, often by over 90%.

I was involved in negotiations for one of the two masts on my land and was lucky that I had only a 70% reduction. It was not so important for me, but this forces small businesses, sports clubs, community groups and hospitals to accept derisory amounts for the use of their land. It also reduces the motivation for operators to pursue consensual deal-making, in turn slowing down rollout as they can get greater discounts through the courts. As noble Lords have said, it also reduces the incentives for landowners to offer sites for masts in the first place—not an advantageous outcome for the Government’s mobile connectivity.

Amendments 20 and 21 are rather more impactful than Amendments 19 and 22, in that they would stop the Government’s “no scheme” valuation regime being extended to cover the roughly 15,000 telecoms sites governed by the Landlord and Tenant Act 1954 and the Business Tenancies (Northern Ireland) Order 1996. This would have the effect of ensuring that the rent on these 15,000 sites would continue to be set at market value, as is the case today. Importantly, this would prevent them being subject to the issues that have plagued sites governed by the code ever since the 2017 reforms.

Although I suspect the Minister will be opposed to these amendments, they are fully aligned with the Government’s repeated claim that this Bill does not address issues of valuation. How can the Government possibly continue to make that claim if, by their own admission, 15,000 new sites will have their rental value slashed from the moment this legislation comes into force? We are simply trying to ensure that the legislation delivers the Government’s stated policy intent. Parties on all sides of the debate have acknowledged the significant challenges created by the 2017 reforms to the code. It is only right that these changes are not imported wholesale into the Landlord and Tenant Act 1954 and the Business Tenancies (Northern Ireland) Order 1996, when there is no evidence whatever that the 2017 reforms have delivered the Government’s intentions.

I was very grateful, together with the noble Earl, Lord Devon, to the Minister for the meeting yesterday, but one problem seems to be that information provided by the operators, for confidentiality reasons maybe, has not been disclosed to us even though we have asked for it; that is a very frustrating thing. I am also very sad that His Majesty’s Government have paid no attention to influential, independent reports from the IEA and the Centre for Economics and Business Research stating the problems with this legislation. The CEBR report says—

“The government’s ECC changes have not delivered a faster 5G rollout, and it is slower than the pre-2017 status quo. The new proposals do not remedy this. But for the 2017 reforms, 8.2m more people would have had 5G coverage by now than currently can access it. This will persist in the long-term: national 5G coverage by 2022 will be worse than if there had been no changes to the ECC at all. The government’s proposed changes to the ECC will cost UK GDP £3.5bn by 2022, and fail to bring 5G coverage to where it would have been pre-2017.”

The Government want more growth; this legislation does not seem a good way to provide it.

[Lord Clement-Jones (LD)]

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

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

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

[Baroness Merron (Lab)]

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

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

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

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

--- Later in debate ---

[Lord Cromwell (CB)]

My Lords, I was in two minds about these amendments, but I will support them in the final analysis. ADR is of course a good thing if it avoids lengthy and costly court proceedings. My concern is that it can also become a token activity, backed by the threat of subsequent court action to intimidate site owners, reflected in the inequality of arms between the parties, which others have already referred to.

I would greatly prefer an outcome where disputes can be resolved between the parties, and perhaps their respective agents, where the balance of negotiation is fair. I made a proposal in my earlier remarks on this, to which I have received no response.

The Bill, as drafted, sets site owners and operators needlessly on a collision path. No disputes will be resolved; they will simply be won by brutal compulsion that will lead to delay and protracted proceedings. If the Bill goes ahead as is, ADR should be mandatory as a first step in at least seeking some resolution. I therefore support the amendments in this group.

[Lord Clement-Jones (LD)]

The view of these Benches is that throughout the passage of the Bill it has been clear that a strong case has been made for better protection for landowners against the power of telecoms operators. However, the ADR process that the Government are providing under Clause 68 is non-binding. Telecoms companies need to show only that they have considered it to avoid costs. This will not make them engage with the spirit of the process, and we expect telecoms companies to take matters to court as quickly as possible instead, with all the consequences that entails of costs on both sides.

As the noble Baroness, Lady McIntosh, stated, to address this the Government should make ADR compulsory for any dispute and issue guidance about reasonable terms. Properly enforced, we believe it would reduce operators’ reliance on litigation through the courts, which sometimes takes the rather oppressive form of threats, and encourage better behaviour by both parties. Given the potential benefits to both parties and the wider public interest, it is difficult to see the case for this process remaining advisory. In principle, we very much support Amendments 25, 26 and 27, so well advocated by the noble Baroness, Lady McIntosh, the noble Lord, Lord Cromwell, and the noble Earl, Lord Devon.

[Lord Bassam of Brighton (Lab)]

My Lords, this has been an interesting short debate. It was an interesting debate in Committee and I congratulate the noble Baroness on retabling her amendments. I do so because I am not completely convinced by the Government’s arguments here. There are real concerns from some that the tribunal system favours operators due to the experience and size of their legal teams. They are very powerful organisations and we should not overlook that. The legal system is there to protect all from overweening power. I understand that the ADR system is intended to prevent cases going to tribunal and court, with all the costs that come with that, and, given the timescales involved, there is clearly a benefit to reaching agreements under an alternative framework. However, if it is voluntary, where is the incentive for its use?

I shall ask one final question; I think this is the most important point. If ADR as a voluntary means of dispute resolution does not work, what will the Government do? Will they step in again and reconsider this issue? Will they give careful consideration to making it mandatory, because then it would have a more powerful effect?

I do not think this issue will go away. I do not find the Government’s arguments entirely compelling and the noble Baroness has made a very good case. I look forward to hearing what the Minister has to say.

Digital Regulation: Communications and Digital Committee Report

Lord Clement-Jones Excerpts

Thursday 21st July 2022 Grand Committee

[Lord Clement-Jones (LD)]

My Lords, I am pleased to be speaking in this short but perfectly formed debate. I congratulate the noble Baroness, Lady Stowell, on her accession to the chair of the Communications and Digital Committee and on her comprehensive introduction. I also congratulate the committee on a niche but highly significant piece of work.

In their digital regulation plan, first published last July and updated last month, the Government acknowledged that

“Digital technologies … demand a distinct regulatory approach … because they have distinctive features which make digital businesses and applications unique and innovative, but may also challenge how we address risks to consumers and wider society.”


I entirely agree, but I also agree with the noble Baroness, Lady Stowell, the noble Lord, Lord Vaizey, and the noble Earl, Lord Erroll, that we need to do this without the kind of delays in introducing regulation that we are already experiencing.

The plan for digital regulation committed to ensuring a forward-looking and coherent regulatory approach for digital technologies. The stress throughout the plan and the digital strategy is on a light-touch and pro-innovation regulatory regime, in the belief that this will stimulate innovation. The key principles stated are “Actively promote innovation”, achieve “forward-looking and coherent outcomes” and

“Exploit opportunities and address challenges in the international arena”.


This is all very laudable and reinforced by much of what the Select Committee said in its previous report, as mentioned by the noble Baroness. But one of the key reasons why the design of digital governance and regulation is important is to ensure that public trust is developed and retained in an area where there is often confusion and misunderstanding.

With the Online Safety Bill arriving in this House soon, we know only too well that the power of social media algorithms needs taming. Retention of public trust has not been helped by confusion over the use of algorithms to take over exam assessment during the pandemic and poor communication about the use of data on things like the Covid tracing app, the GP data opt-out and initiatives such as the Government’s single-ID identifier “One Login” project, which, together with the growth of automated decision-making, live facial recognition and use of biometric data, is a real cause for concern for many of us.

The fragility of trust in government use and sharing of personal data was demonstrated when Professor Ben Goldacre recently gave evidence to the Science and Technology Committee, explaining that, despite being the Government’s lead adviser on the use of health data, he had opted out of giving permission for his GP health data to be shared.

As an optimist, I believe that new technology can potentially lead to greater productivity and more efficient use of resources. But, as the title of Stephanie Hare’s new book puts it, Technology Is Not Neutral. We should be clear about the purpose and implications of new technology when we adopt it, which means regulation which has the public’s trust. For example, freedom from bias is essential in AI systems and in large part depends on the databases we use to train AI. The UK’s national AI strategy of last September does talk about public trust and the need for trustworthy AI, but this needs to be reflected in our regulatory landscape and how we regulate. In the face of the need to retain public trust, we need to be clear, above all, that regulation is not necessarily the enemy of innovation; in fact, it can be the stimulus and key to gaining and retaining public trust around digital technology and its adoption.

We may not need to go full fig as with the EU artificial intelligence Act, but the fact is that AI is a very different animal from previous technology. For instance, not everything is covered by existing equalities or data protection legislation, particularly in terms of accountability, transparency and explainability. A considerable degree of horizontality across government, business and society is needed to embed the OECD principles.

As the UK digital strategy published this month makes clear, there is a great deal of future regulation in the legislative pipeline, although, as the noble Baroness mentioned, we are lagging behind the EU. As a number of noble Lords mentioned, we are expecting a draft digital competition Bill in the autumn which will usher in the DMU in statutory form and a new pro-competition regime for digital markets. Just this week, we saw the publication of the new Data Protection and Digital Information Bill, with new powers for the ICO. We have also seen the publication of the national AI strategy, AI action plan and AI policy statement.

In the context of increased digital regulation and the need for co-ordination across regulators, the Select Committee welcomed the formation of the Digital Regulation Cooperation Forum by the ICO, CMA, Ofcom and FCA, and so do I, alongside the work plan which the noble Baroness, Lady Stowell, mentioned. I believe that this will make a considerable contribution to public trust in regulation. It has already made great strides in building a centre of excellence in AI and algorithm audit.

UK Digital Strategy elaborates on the creation of the DRCF:

“We are also taking steps to make sure the regulatory landscape is fully coherent, well-coordinated and that our regulators have the capabilities they need … Through the DRCF’s joint programme of work, it has a unique role to play in developing our pro-innovation approach to regulation.”


Like the Select Committee in one of its key recommendations, I believe we can go further in ensuring a co-ordinated approach to digital regulation, horizon scanning—which has been mentioned by all noble Lords—and adapting to future regulatory needs and oversight of fitness for purpose, particularly the desirability of a statutory duty to co-operate and consult with one another. It is a proposal which the Joint Committee on the Draft Online Safety Bill, of which I was a member, took up with enthusiasm. We also agreed with the Select Committee that it should be put on a statutory footing, with the power to resolve conflicts by directing its members. I was extremely interested to hear from noble Lords, particularly the noble Lord, Lord Vaizey, and the noble Earl, Lord Erroll, about the circumstances in which those conflicts need to be resolved. It is notable that the Government think that that is a bridge too far.

This very week, the Alan Turing Institute published a very interesting report entitled Common Regulatory Capacity for AI. As it says, the use of artificial intelligence is increasing across all sectors of the economy, which raises important and pressing questions for regulators. Its very timely report presents the results of research into how regulators can meet the challenge of regulating activities transformed by AI and maximise the potential of AI for regulatory innovation.

It takes the arguments of the Select Committee a bit further and goes into some detail on the capabilities required for the regulation of AI. Regulators need to be able to ensure that regulatory regimes are fit for AI and that they are able to address AI-related risks and maintain an environment that encourages innovation. It stresses the need for certainty about regulatory expectations, public trust in AI technologies and the avoidance of undue regulatory obstacles.

Regulators also need to understand how to use AI for regulation. The institute also believes that there is an urgent need for an increased and sustainable form of co-ordination on AI-related questions across the regulatory landscape. It highlights the need for access to new sources of shared AI expertise, such as the proposed AI and regulation common capacity hub, which

“would have its home at a politically independent institution, established as a centre of excellence in AI, drawing on multidisciplinary knowledge and expertise from across the national and international research community.”

It sets out a number of different roles for the newly created hub.

To my mind, these recommendations emphasise the need for the DRCF to take statutory form in the way suggested by the Select Committee. But, like the Select Committee, I believe that it is important that other regulators can come on board the DRCF. Some of them are statutory, such as the Gambling Commission, the Electoral Commission and the IPO, and I think it would be extremely valuable to have them on board. However, some of them are non-statutory, such the BBFC and the ASA. They could have a place at the table and join in benefiting from the digital centre of excellence being created.

Our Joint Committee also thoroughly agreed with the Communications and Digital Committee that a new Joint Committee on digital regulation is needed in the context of the Online Safety Bill. Indeed the Secretary of State herself has expressed support. As the Select Committee recommended, this could cover the broader digital landscape to partly oversee the work of the DRCF and also importantly address other objectives such as scrutiny of the Secretary of State, looking across the digital regulation landscape and horizon scanning—looking at evolving challenges, which was considered very important by our Joint Committee and the Select Committee.

The Government are engaged in a great deal of activity. The question, as ever, is whether the objectives, such as achieving trustworthy AI, digital upskilling and powers for regulators, are going to be achieved through the actions being taken so far. I believe that the recommendations of the Select Committee set out in this report would make a major contribution to ensuring effective and trustworthy regulation and should be supported.

--- Later in debate ---

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

My Lords, I am very grateful to my noble friend Lady Stowell of Beeston for moving and so expertly teeing up this debate on your Lordships’ committee’s report. It is yet another example of the committee’s foresight in placing digital regulation at the centre of public debate—something it also did very effectively through its 2019 report Regulating in a Digital World. I am very grateful to all the members of the committee for their work and to the noble Lords who have spoken today.

I certainly add my voice to the commendation of my noble friend on the constructive way she goes about her engagement and the scrutiny she gives the Government on behalf of your Lordships’ committee, and I also join her in paying particular tribute to our noble friend Lord Gilbert of Panteg, who chaired the committee so ably during the course of this and previous inquiries.

Before I turn to the specific recommendations made in the report, it may be helpful to set out briefly the fundamental issue which lies at the heart of this inquiry: how we approach the regulation of digital technologies. Your Lordships’ committee has done great work to highlight the importance of ensuring that our regulatory approaches can keep pace with the opportunities and the challenges posed by digital technologies, enabling us to maximise the benefits they bring while minimising the risks they pose. Crucially, that is not just about ensuring that our regulators are able to work effectively together, or that we have effective horizon scanning in place, important as these considerations are. It is also, more fundamentally, about how we design and implement our overarching regulatory approach.

The Government take this issue extremely seriously. In July last year we published the plan for digital regulation, setting out our overarching approach to digital regulation for the first time. The plan outlined our commitment to develop regulatory policy which is capable of delivering our core objectives: to promote competition and innovation, to keep the UK safe and secure online, and to promote a flourishing democratic society.

Momentum since the publication of the plan has been steady. Indeed, we have continued to make rapid progress even in the relatively short time since the committee concluded its inquiry. In March, the Online Safety Bill was introduced to Parliament, which will equip the UK with powerful regulatory and legal tools to keep internet users, especially children and vulnerable people, safe. As your Lordships know, it is still on Report in another place, which means that, regrettably, we will not have our Second Reading in the first week back after the Summer Recess. However, I hope that it will reach your Lordships’ House expeditiously so that we can do that swiftly.

Also in March, the Secretary of State wrote to the Digital Regulation Cooperation Forum outlining the Government’s priorities for digital regulation, including more effective horizon scanning and greater regulatory join-up, key elements of which are being addressed through the current work programme of the forum.

In May, we confirmed our approach to delivering the new pro-competition regime for digital markets, which will help to deliver lower prices for UK families, enable entrepreneurs to compete and grow, and give consumers more choice and control over the services that they use online.

In June, we confirmed our data reform proposals, setting out how we intend to update our data protection laws, implement a more flexible approach to compliance and ensure that the Information Commissioner’s Office is better able to account for the increasing importance of its remit for competition, innovation and economic growth.

In July, we published our approach to regulation in the UK Digital Strategy, including new research on regulatory innovation, as well as an “initial outcomes monitoring framework”, which will enable us better to understand and assess the evidence base for regulatory policy.

In addition, only this week, as my noble friend Lord Vaizey of Didcot spotted through his assiduous monitoring of the DCMS Twitter feed, we published a policy paper on the governance of artificial intelligence, setting out our proposals for a new approach to AI regulation, which will unleash growth and innovation while safeguarding our fundamental values and keeping people safe and secure, and we introduced the Data Protection and Digital Information Bill to Parliament.

I list all this to emphasise how seriously the Government take this issue, and I hope to provide some reassurance to noble Lords. Like your Lordships’ committee, we are committed to making sure we have a coherent approach to regulation which will deliver the full benefits of digital technologies, and we are taking the steps we needed to do this.

I turn now to the specific recommendations made by the committee in its report, beginning with its proposals on regulatory co-ordination and co-operation. As we have been discussing, the report made two connected recommendations: to expand the Digital Regulation Cooperation Forum and place it on a statutory footing as the “digital regulation board”, and to implement new statutory duties to strengthen and facilitate regulatory co-operation.

On the proposal for a digital regulation board, I emphasise the points that we made in our response to the committee’s report. Although the Government agree that the forum has a fundamental role to play in the regulatory landscape, we do not currently support the idea of converting it into a statutory body with the power to direct and oversee other regulators. That is partly due to the complexity that such a body would create in the regulatory landscape at a time when regulatory regimes and remits are quickly evolving, as noble Lords noted. In particular, we are concerned that such a move would confuse issues of accountability and ownership, at a point when consumers and industry are looking for more—not less—clarity on where regulatory responsibilities sit.

Our reticence to create more formal architecture at this stage also reflects the value that we attach to the agility of the forum. The former Minister for the Digital Economy, Chris Philp, made this point in evidence to your Lordships’ committee when he noted that the forum has to work much more quickly than would have been possible with a statutory body. Statutory bodies can be cumbersome to create and operate, whereas less formal approaches can enable us to move more quickly and make more rapid progress, which is critical given the fast-moving nature of digital technologies.

Indeed, I point noble Lords to the impressive work which the forum is doing, to some of which my noble friend Lady Stowell alluded in her opening speech. This year alone it has published a landmark statement on online safety and competition regulation, major publications on algorithmic processing and auditing and an ambitious work plan for 2022-23, as well as launching its digital market research portal. I also venture to suggest that it is the flexibility afforded by the forum’s model of co-ordination that has made it such a strong focus of international interest, with comparable bodies already established in the Netherlands and Australia, and other countries such as Singapore following its work with close interest.

I recognise that it was not only the legislative basis of the forum but the extent and scope of its membership that was a central concern in the committee’s proposal for a digital regulation board. As the Government have made clear in our plan for digital regulation, the digital strategy and the Secretary of State’s letter of priorities to the chief executives of the forum, effective co-ordination will need to involve a wider set of regulators than those currently included in the forum, although clearly they will play a central role in digital regulation. We therefore welcomed the commitment that the forum made in its current work plan and letter to the Secretary of State to engage comprehensively with other regulators via quarterly round tables and to identify opportunities for collaborative work on that basis. Those round tables have already seen the forum engage with the Gambling Commission, the Bank of England, the Payment Systems Regulator, the Advertising Standards Authority, the British Board of Film Classification, the Intellectual Property Office and the Electoral Commission. There is clearly scope for further engagement, although it is important to note that there is inevitably a trade-off between the breadth of the forum’s activities and its ability to progress specific projects quickly.

I turn to the second element of the committee’s recommendations on co-ordination. I am pleased to confirm that we are in the process of implementing a range of statutory measures to enable regulators to collaborate and share information in the delivery of new regulatory regimes. As recently discussed in another place in relation to the Online Safety Bill, we are updating Section 393 of the Communications Act 2003 to ensure that Ofcom can disclose information with other regulators including the Competition and Markets Authority, the Information Commissioner’s Office, the Financial Conduct Authority and the Payment Systems Regulator for the purposes of its functions under that Bill. We will likewise introduce a duty for the Digital Markets Unit to consult the Financial Conduct Authority, Ofcom, the Information Commissioner’s Office, the Bank of England and the Prudential Regulation Authority as part of the planned measures for the new pro-competition regime. Finally, in reforms to the data protection regime and ICO, the Data Protection and Digital Information Bill introduces a new duty for the ICO to consult regulators and other relevant bodies when exercising its duties to have regard to growth, innovation and competition.

We are confident from intensive discussions with regulators that these measures will provide them with the powers they need to address key points of intersection between the new regulatory regimes while being proportionate and tight in scope. Of course we recognise that further measures may be needed to address other challenges that may be raised in the future. For example, issues of co-ordination are likely to become a major area of focus as we develop our proposals for AI regulation and governance which will be outlined in our forthcoming White Paper. I assure noble Lords that we will continue to keep such issues under review.

I turn to the next key area of the committee’s recommendations: the need to ensure greater consolidation in regulatory horizon scanning. I agree that this is vital, given the speed and suddenness with which disruptive digital technologies can transform society. The Government have made science and technology policy, driven by evidence, a major priority. There are strong networks across government for sharing insights from the horizon-scanning teams in different departments. This is led by the national science and technology council, chaired by the Prime Minister, and the Government Office for Science, led by the Chief Scientific Adviser. These organisations bring together expertise from inside and outside government to identify the mechanisms required to deliver our ambitions for innovation.

It is also an area where the regulators, the DRCF in particular, are making rapid progress. Last year, for example, the forum launched its technology horizon-scanning programme, which is explicitly designed to enable join-up with small and medium-sized enterprises, start-ups and academia—partnerships which bring great benefit, as my noble friend Lady Stowell rightly said. In March, it followed this with the launch of a research portal to help regulators and others access existing knowledge about topical issues, and has undertaken the first of a projected series of symposia on issues such as fintech, the metaverse and Web3. Alongside this, it has continued to strengthen its engagement with international counterparts.

Government and regulators are also supported by a network of advisory bodies. These include the Alan Turing Institute, which specialises in data science and artificial intelligence, the Regulatory Horizons Council, an independent expert committee which identifies the implications of technological innovation and provides government with impartial expert advice on regulatory reform, and the AI Council, another independent expert committee that provides advice to government and high-level leadership of the artificial intelligence ecosystem.

As the noble Lord, Lord Clement-Jones, noted—

[Lord Clement-Jones (LD)]

Can the Minister say a bit more about the Regulatory Horizons Council? It seems to be one of these shadowy bodies that very rarely publish anything or make updates. The Minister mentioned many other bodies that clearly do useful work, but I have my doubts about the Regulatory Horizons Council.

[Lord Parkinson of Whitley Bay (Con)]

I would be very happy to provide an introduction for the noble Lord so that he can speak to it directly.

I was going to follow the point the noble Lord made about the report this week from the Alan Turing Institute on how regulators can address the challenges and opportunities of regulating AI. That report echoes the Government’s national AI strategy and plan for digital regulation in concluding that there is a greater need for regulatory co-ordination; it proposes enabling co-ordination, including resource pooling, as my noble friend Lord Vaizey mentioned in his points about joint hiring, to increase readiness for AI across the UK’s regulatory landscape. All these bodies provide us with useful insights. I am very happy to provide an introduction for the noble Lord, Lord Clement-Jones, to the Regulatory Horizons Council.

As ever, there is much more work to be done and the Government will continue to analyse how we can best support work across the different institutions involved in the complex science of horizon scanning. Again, this is likely to become a particularly salient issue as we develop our thinking on AI governance and regulation, and one where we expect to offer further suggestions in due course.

I turn to the committee’s recommendation for a new parliamentary Joint Committee to scrutinise digital regulation. Again, I refer noble Lords to the position we outlined in our response: we believe it would be unnecessary to establish a permanent Joint Committee of this kind when we already have rigorous scrutiny provided by established committees such as your Lordships’ committee and the DCMS Select Committee in another place. We will therefore not take forward the recommendation for a new Joint Committee, although, as the former Minister for the Digital Economy made clear in Committee on the Online Safety Bill, we continue to assess whether some form of additional scrutiny is needed in the context of that piece of legislation. We remain open-minded on that and I look forward to discussing it with noble Lords when the Bill comes to your Lordships’ House.

My noble friend Lady Stowell asked about the timing of the digital markets Bill. As she knows, the Queen’s Speech outlined that we will publish a draft digital markets, competition and consumer Bill. Publishing in draft allows us to engage with Parliament and interested parties on the details of the regime to ensure that the legislation is effective, balanced and proportionate. Pre-legislative scrutiny certainly improved the Online Safety Bill, and I hope the engagement that the publication of a draft Bill will allow us will help sharpen its proposals.

In the meantime, the Government will continue to work with the Digital Markets Unit to ensure the operational readiness of the regime, ahead of the legislation being passed. We have engaged with interested parties extensively, through a public consultation, and published our responses earlier this month. As I say, we committed in the Queen’s Speech to publish a draft Bill in this parliamentary Session, and that remains our commitment.

My noble friend also took the opportunity to ask a slightly off-topic question about BBC funding. As this is her last chance to do so before the Summer Recess, I am happy to say that DCMS will begin preparatory work over the summer, including considering the findings of your Lordships’ committee. We will look at what lessons we can learn from other countries on how they have reformed public service broadcasters in their jurisdictions in recent years. Although it has not been possible to launch a review of the licence fee funding model before the Summer Recess, the next Prime Minister will obviously have a role in deciding how we approach it.

To conclude, I reiterate the point about the speed with which new opportunities and challenges are being generated in the regulatory space. By necessity, the decisions that we make today about our regulatory approach and institutions will not be the final word on any of these questions, and the Government are fully committed to reviewing our regulatory approaches and structures.

I thank noble Lords for their willingness to engage so constructively with us as we chart our course through these new challenges. I encourage them to continue doing so as digital innovation continues to transform our lives still further—but perhaps not until after they have all enjoyed a well-earned summer break.

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.