Communications Act (e-Commerce) (EU Exit) Regulations 2020

Lord Clement-Jones Excerpts

Tuesday 10th November 2020 Grand Committee

[Lord Clement-Jones (LD) [V]]

My Lords, the ending of the country of origin principle on access to the EEA digital internal market in e-commerce is, I am afraid, the inevitable consequence of our regrettable decision to leave the EU and not to seek to stay in the internal market.

I agree with everything the noble Baroness, Lady Wheatcroft, said. I also want to draw attention to paragraph 12 of the Explanatory Memorandum relating to impact. It says:

“A full Impact Assessment has not been prepared for this Statutory Instrument because there is a low level of impact per business. A De-Minimis Assessment showed that ... there were annual time-saving benefits to certain UK businesses”.


For businesses which offer services to the EEA but not the UK, the Government estimate an annual time-saving benefit of circa £0.5 million. This is pretty breath-taking stuff, as I hope to demonstrate. The Government say that this is because they will no longer have to comply with UK legislation, as well as with the domestic legislation of the EEA state where the service is received. This is looking at it very much from the wrong end of the telescope. The Explanatory Memorandum goes on to say that for all businesses in scope:

“This will result in a small annual net direct cost to business of £0.6m over 10 years. Transition costs refer to the cost incurred by businesses when adjusting to new legislation, in this case the time that organisations will have to take to familiarise themselves with this new legislation.”


In their guidance on the e-commerce directive after the transition period, the Government say:

“The eCommerce Directive applies to ‘information society services’. These are defined as any service that is normally provided: for payment, including indirect payment such as advertising revenue … ‘at a distance’ (where customers can use the service without the provider being present) … by electronic means, and … at the individual request of a recipient of the service. This covers the vast majority of online service providers, for example online retailers, video sharing sites, search tools, social media platforms and internet service providers.”


As commentators have said, after the end of the EU transition period, service providers with a place of establishment within the UK will lose the article 3 protection and will need to comply with the relevant legal requirements within the “co-ordinated fields” of the directive in each EEA country in which they operate. UK online service providers may also become subject to “prior authorisation” schemes, such as licensing requirements, in EEA countries where they operate.

What assessment has been made of the amount of digital trade which will suffer from cost penalties as a result of the withdrawal of country of origin protection? The impact on online services could be immense. The loss of these protections will mean that cloud service providers based in the UK and providing services to customers across the EEA will need to consider and take steps to comply with the national rules applicable to their cloud services in each EEA country where they are available. Online advertising, online retail and online contracts as a whole will suffer. This SI was inevitable but it is not without severe consequences. Should there not have been a full impact assessment of the regulations? Has a profound impact assessment of any kind been done?

This is a grossly inadequate debate, without any understanding by the Government of the real impact of this SI on all those businesses engaged in the digital market. I agree with the noble Baroness, Lady Wheatcroft, about Ofcom. I look forward to the Minister’s answer to this and to the impact question.

Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020

Lord Clement-Jones Excerpts

Tuesday 10th November 2020 Grand Committee

[Lord Clement-Jones (LD) [V]]

I thank the Minister for her introduction. I should declare an interest as chair of Ombudsman Services, which deals with customer complaints regarding telecommunications.

I was delighted to hear the noble Baroness extol the virtues of an EU directive, which I think was a bit of a novelty, coming from a Minister. It is sad that we have only three speakers on such an important SI. After all, it encompasses a whole Bill’s-worth of changes to our communications laws. When I first looked at it, I thought, “Well, all I can do is to try to stop the ship sailing on regardless and stick an oar in here and there”, because quite a few substantive issues are involved.

The Government response to the consultation on implementing the European electronics code states:

“a ‘copy out’ approach to the Directive”

is being taken

“where we consider change is needed in UK legislation”,

but in line with

“our overarching approach of a minimal transposition”.

I am not quite sure that we can have it both ways. I am going to kick the tyres on the “minimal transposition” aspect, because the Minister seemed to be quite positive about the impact the directive will have on investment and rollout of our 1 gig capability.

The response also says:

“In some cases, we will adopt an alternative approach to transposition to certain provisions in a way that is tailored to UK markets. We take this approach where there is sufficient justification and evidence for doing so, for example, where it would contribute to the government’s ambitions for digital connectivity.”


We heard some of the positive approach, but I am not quite sure whether we fully heard the more minimal approach. We have heard about further aspects—I think the Minister said that there are two categories they are considering—but we did not hear in the interim about where a minimal approach had been taken.

The Government set out three categories in the response:

“Articles which we consulted on given their potential to support the UK’s digital ambitions”—


fine;

“Incremental changes to the existing framework which we intend to transpose in a minimal way”—

again, there is the use of the word “minimal”; and

“Deprioritised from 21 December 2020 deadline”.

The problem is that there is a rather inadequate approach to this issue in both the Explanatory Notes and the response to the consultation. There is no easy breakout of what changes fall within the three categories. You have to rather laboriously cross-refer when you get to the table which glosses annexe A of the response. I therefore hope that the Minister will forgive me if I go through a few aspects of the statutory instrument and ask a few questions.

The fundamental flaw is where the consumer comes in all this. The list of respondents to the consultation consists solely of telecoms companies. As we go through certain areas, can we be sure that the way the Government have transposed the directive is acting in the best interests of consumers?

The Government say that the transposition of the code

“recasts the objectives and regulatory tools of the current”

European framework on electronic communications

“to place a stronger emphasis on incentivising investment”.

They say that:

“The Regulations support the government’s digital ambitions and plans to deliver nationwide gigabit-capable connectivity ... This will enable Ofcom to support deployment and investments in gigabit-capable networks … These include ensuring that Ofcom’s use of specific market regulatory tools promotes very high capacity networks. Ofcom are also required to promote measures that facilitate a competitive retail market for consumers.”


It would be useful if the Minister could unpack some of those statements. Are they going to speed up rollout? Are they going to make up for the fact that Covid-19 seems to have delayed that 1 gigabit capability rollout?

I can see the benefit of transposing Article 22 in terms of survey information and designation of areas where there is no planned coverage, but what are the other benefits? For instance, what substantive difference will these changes make to rollout of 1 gigabit capacity? Why only the minimum transposition of Articles 76 and 79? The Explanatory Memorandum states:

“There are specific conditions known as significant market power … conditions, which can only be imposed on providers with market dominance. Ofcom must analyse markets on a regular basis in what is known as a market review.”


The Government seem simply to have decided to swallow Article 61 whole and extend the market review to five years, increasing the maximum time between market reviews from three years to five. In a sense, they are therefore making the situation worse from the competitive point of view. Of course businesses that were consulted prefer this, but what about consumers? Does that not precisely show up the problems with the original consultation?

Surely when major developments occur with great speed, as with a consolidation of digital assets—for instance, specialised mast companies such as Phoenix Tower with its significant market shares, or the joint venture between Liberty Global’s Virgin Media and Telefonica’s O₂—these kinds of reviews are required at very regular intervals. There are some aspects which I unreservedly welcome, such as the new protection for certain end-users who purchase a bundle of services. There are the social affordability aspects, too.

When we come to the universal service obligation, we see a certain amount of changes. There is no change to the inclusion of affordability requirements, but it should be said in passing that the 10 megabits per second universal service obligation is still miserably unambitious. We have made that point many times before on these Benches and it was, of course, criticised by one of our own Select Committees. I hope that the Minister will give an indication of when it might change. It seems extraordinary that we have this ambition for 1 gigabit capacity, yet we are still hobbling along on 10 megabits per second as a universal service obligation.

What about the impact assessment? If all these provisions are to be so beneficial, as I hope they will be, why do the Explanatory Notes say that there will be an impact of less than £5 million on the economy? Surely the idea is to incentivise investment. Were we doing absolutely fine before we adopted this directive or was the Minister engaging in a bit of hyperbole? Where do we stand on the impact of these new regulations and what are the substantial changes? Will it mean faster rollout and, if so, in what respect?

It is interesting that the Minister’s colleague, the noble Lord, Lord Vaizey, wrote a very percipient piece in the Telegraph in July. I think the headline was “It’s high time we fixed Britain’s patchy mobile networks”. How will all this contribute to that, or are the Government really just making a virtue out of necessity?

Amazon

Lord Clement-Jones Excerpts

Monday 12th October 2020 Lords Chamber

[Baroness Barran (Con)]

The noble Lord raises an important point, but I remind him that the Government have established a number of groups and reviews, starting with the Furman review, which reported in March 2019, and most recently the digital markets task force. One of the recommendations we have accepted is the development of a code of conduct, just as the noble Lord suggests.

[Lord Clement-Jones (LD)]

My Lords, the chief executive of the CMA described the market position of some of the major US online platforms as “unassailable”. The Government are clearly going to give in to the US on food standards in any trade deal; will they do the same with the digital sales tax and competition regulation?

[Baroness Barran (Con)]

The Government remain determined to create the most innovative pro-growth economy that we can. That is dependent on effective competitions in all markets, particularly digital markets, so that is where our focus remains.

Music Industry

Lord Clement-Jones Excerpts

Thursday 10th September 2020 Lords Chamber

[Baroness Barran (Con)]

Unfortunately, the data my noble friend seeks has not yet been published. We are expecting Arts Council England to provide that data shortly, and it will obviously be shared publicly. In terms of reallocation, an enormous amount of work went into deciding the proportions within the fund, and those reflect where we think funds are needed.

[Lord Clement-Jones (LD)]

My Lords, at a minimum, the furlough and the SEIS scheme should be extended, but we need to go further. The Prime Minister in his Statement yesterday outlined plans to pilot mass testing in Salford for indoor venues. Will the Minister ensure that music venues in the local area are part of these pilots, and will the Government look into underwriting insurance to event promoters in the event of short-notice cancellation in any pilots?

[Baroness Barran (Con)]

I can certainly confirm to the noble Lord that the Government really value the contribution of the arts, including music, are ambitious in trying to get venues open as quickly as it is safe to do so, and are considering all options to do that.

Covid-19: Artificial Intelligence

Lord Clement-Jones Excerpts

Wednesday 9th September 2020 Lords Chamber

[Baroness Barran (Con)]

My noble friend is right to highlight the importance of the Global Partnership on AI. The Government hope this will be a tool for spreading good practice across the world, allowing us to both innovate and learn very quickly.

[Lord Clement-Jones (LD)]

My Lords, the AI Barometer talks of low levels of public trust being one fundamental barrier to the use of AI in both public and private sectors. Trust in government use of AI has been hugely damaged by the A-level algorithm fiasco. What are the Government doing to restore that trust? Is it not now crucial to put the CDEI on a statutory footing and ensure that there is a proper mechanism for ethical compliance across government services?

[Baroness Barran (Con)]

The noble Lord is absolutely right to focus on the importance of trust: it is a vital underpinning in the development of AI. I imagine he is aware that we have just published our National Data Strategy, which sets out very clearly the importance of public understanding of both government and non-government data within an ethical framework.

Digital Platforms: Impact on Democracy

Lord Clement-Jones Excerpts

Thursday 16th July 2020 Lords Chamber

[Baroness Barran]

I cannot give a simple “yes” or “no” at this time; all these things will be considered in detail, as I have mentioned already.

[Lord Clement-Jones (LD) [V]]

My Lords, the Select Committee chaired by the noble Lord, Lord Puttnam, rightly says:

“The digital and social media landscape is dominated by two behemoths—Facebook and Google … Platforms’ decisions about what content they remove or stop promoting through their algorithms set the de facto limits of free expression online”—


a concern expressed by Facebook’s own recent audit. The Minister will be aware of the boycott of Facebook, Twitter and Instagram by leading companies over their approach to hate speech and fake news. Will she now ensure that all government departments join that boycott?

[Baroness Barran]

I would hope that government departments are putting nothing on Facebook or any other platform other than helpful and accurate information, so I cannot give the noble Lord that guarantee.

Telecommunications Infrastructure (Leasehold Property) Bill

Lord Clement-Jones Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 29th June 2020 Lords Chamber

Moved by

[Lord Clement-Jones (LD)]

1: Clause 1, page 1, line 11, after “premises” insert “(which include premises where a tenant is in exclusive possession)”
Member’s explanatory statement
This amendment would clarify that tenanted premises are included under the provisions of this bill.

[Lord Clement-Jones (LD)]

My Lords, it is a mixed pleasure to be back in the Chamber. In her speech in Committee on 19 May, the Minister said in response to my amendment:

“I believe that the noble Lords who have tabled the amendment are seeking to ensure that tenants are covered by the Bill. If noble Lords are indeed seeking clarification on that point, I am able to confirm that as currently drafted, the provisions in this Bill can be used by people who rent their homes.”


She went on to say:

“This includes people with assured shorthold tenancy or assured tenancy agreements which, as many noble Lords will be aware, are the most common forms of tenancy agreement.”—[Official Report, 19/5/20; col. 1030.]


In her subsequent letter, the Minister said:

“As drafted, this Bill allows a lessee in occupation—i.e. someone who has a leasehold agreement with a person able to confer on an operator or otherwise be bound by a code right—to request that an operator provide an electronic communications service to the premises so occupied. It is that which is the trigger for the whole process set out in the Bill. It is for that reason that the Bill does not use the language of landlord and tenant law, which was one of the—entirely understandable—points made during the first Committee session.”


The Minister then referred to the definition of lease set out in Street v Mountford cited at [1985] UKHL 4:

“An agreement is a lease if it provides for (i) exclusive possession, (ii) of defined premises, (iii) for a fixed or periodic term and (iv) at a rent.”


She said:

“The distinguishing feature of a lease, as opposed to a licence, is that the tenant has exclusive possession of the let property.”


The letter continued:

“My understanding is that a tenant at will could be a person able to make a request that would trigger the Part 4A process… If an agreement for occupation constitutes a lease, then the fact that it is renewable does not change the Government’s intended approach. As I mentioned at the first Committee session ... My understanding is that the impact of that would therefore be that so long as a renewable tenancy has the hallmarks of a lease then it would not fall outside the scope of this Bill. I must stress again, though, that this will be both a matter of substance that will turn on the facts of each case and ultimately, the interpretation of the law will be a matter for the courts.”


All this added some clarity but, in the view of my noble friends and I, not enough. The noble Baroness, Lady McIntosh of Pickering, said quite rightly in Committee:

“Leasehold properties are a very grey and disaffected area of property rights.”—[Official Report, 19/5/20; col. 1025.]


I agree with the noble Baroness. The noble Lord, Lord Liddle, referred to his concern for

“young people, including students, living in short-term lets in multi-occupier buildings—for instance, in old council blocks where someone has bought a flat to rent it out and their main occupiers are students on short-term tenancies.”—[Official Report, 19/5/20; col. 1032.]

This amendment is designed, as crisply as possible, to dispel any lack of clarity or misapprehension to ensure that we have as inclusive as possible a definition of those who could be regarded as tenants, without straying into the territory of licensees or licences, which do not grant exclusive possession. If there is exclusive possession, even if the language of “a licence” is used, the occupier will be covered by the code. I am concerned to ensure that all tenancies are included, even if not, strictly speaking, leases.

Tenancies in the public sector are of a particular nature, and we need to make sure that they are clearly covered. For instance, the amendment would make sure that introductory or probationary tenancies in local authority housing, flexible or joint tenancies, and what are called demoted tenancies are all covered, as well as tenancies by succession and starter tenancies from housing associations. It would include written or verbal agreements. The position of a tenant at will or renewable tenancy, if there is such a residential status, may also demonstrate the need for this clarification. All these tenancies will have exclusive possession and it needs to be made clear that they qualify, for the purposes of the code.

What could an objection to any of these examples be? If the amendment is unnecessary or tautologous, it is innocuous. If I am right, however, and clarification is needed for a number of ordinary tenancies to be covered, the case is made for its inclusion. I beg to move.

[Lord Fox (LD)]

There is nothing I can add to the comprehensive speech of my noble friend Lord Clement-Jones, so I shall sit on my hands.

--- Later in debate ---

I draw your Lordships’ attention to new paragraph 27F(1)(b) of the code inserted by the Bill. It permits an operator who has successfully applied for a Part 4A order to connect not only the property of the individual who made the initial service request but, provided that there is no additional burden on the landowner, all the other premises. In the context of a multiple-dwelling building, that could therefore mean the rest of that block of flats. Therefore, I hope that it is clear that the Bill already makes significant provision for the interests of operators. With that, I ask the noble Lord to withdraw his amendment.

[Lord Clement-Jones]

My Lords, I thank the Minister for her response. I particularly thank the noble Baroness, Lady McIntosh of Pickering, and the noble Lord, Lord Adonis, and the noble Lord, Lord Naseby, for his reflections on tenancies and the complexities of that subject.

I agree with Amendments 2 and 3 in terms of the desirability of expanding the definition of those who have access to fibre broadband. However, I also agree with the noble Lord, Lord Livermore, that perhaps the most convenient point for the examination of expansion of rights under the Electronic Communications Code is at a point of review, such as proposed in our Amendment 7, which we will discuss later.

Probably my first comment in response to the Minister is that I would not really have started from here regarding the way in which the definitions are provided under the Electronic Communications Code. That is borne out by the very fact that on many occasions in the Commons and in Committee here we have debated the width or not of the definition of “lessee” and “lease”. We have tried to refine that and make sure that what it covers is utterly clear beyond peradventure. I believe that it is important to send a very clear signal to tenants who rent that they are covered by the Bill.

The noble Lord, Lord Livermore, was also correct to say that, if the Government felt so strongly about it, they should have offered an amendment of their own. We need to be absolutely clear about who has access to the rights under the Bill. We need to make that simple and put it on the face of the Bill. As I said earlier, if, according to the Government, our proposal is belt and braces and is not necessary, there is no harm in that, because it would give a clear signal and the interpretation of the Electronic Communications Code would be that much clearer. Therefore, I wish to test the opinion of the House.

--- Later in debate ---

[Lord Fox]

My Lords, this amendment addresses a real issue. We have seen in the past that control of the final few yards into a house or the ownership of a switch in a box on a street has prevented the smooth changing of vendors and complicated the lives of consumers. We should not be replicating this control as we go forward, so the amendment deserves a positive response from Her Majesty’s Government. I am sure that in future there will be examples where the cost of initial installation causes operators to want contracts in excess of 18 months, but that should always be covered by commercial concerns, not locked in by technology. So we on these Benches are interested to hear whether the Government have sympathy with the amendment and, if they do, how that sympathy will be manifested.

[Lord Clement-Jones]

As ever, my noble friend Lord Fox and the noble Lords, Lord Holmes and Lord Stevenson, have put their finger on the issues. I was going to ask the Minister how she thought the question of open radio access networks fitted into this picture, but I will not.

[The Deputy Speaker]

Let us see if we can get the noble Lord, Lord Adonis, back. No? In that case we will hear from the Minister.

--- Later in debate ---

[Baroness Wilcox of Newport (Lab) [V]]

This amendment would serve a necessary purpose: the delivery of 1 gigabit per second broadband to every home by 2025. It is an ambition stated by the current Prime Minister, but what is the hesitation? The lack of bold leadership and ambition to get this done is of concern. Amendment 7 builds on an amendment tabled by Liberal Democrat colleagues in Committee but is significantly wider in its scope.

A review of the impact of the Act would require consideration of the suitability of other parts of the Electronic Communications Code in facilitating the Government’s aim of universal access to high-speed broadband. It is clear from some of the stories and examples raised during this Bill’s passage that for a variety of reasons there are significant obstacles to meeting the Government’s target. As such, I hope the Minister will recognise that Amendment 7 is designed to be helpful and to bring us closer to the destination that we all agree on.

The country has a mountain to climb after the serious damage sustained to the economy during and after this health pandemic. Millions of lives will be affected by the implications of unemployment and a contracting public sector. The UK, ill prepared for the onset of the virus and constantly playing catch-up during it, has to try to regain momentum in delivering a fair and balanced economy to benefit the majority of its citizens. The recovery programme that must be implemented after the pandemic will be utterly dependent on how we connect ourselves and the wider world. As it is expected that working from home will continue for some and develop and reproduce, we need good and reliable internet speeds across the country to support this. The universality of the service, so that it is available to all irrespective of location, is also an important point, raised previously by my noble friend Lord Adonis.

The mix of cybersecurity-focused big business, a critical mass of small enterprises and GCHQ-recognised academic excellence, promoted by the Welsh Government’s strategy, is presently located in my home city of Newport.

There must be an evaluation of the impact, over at least a six-month period, to aid the recovery of the economy after Covid, and residents of houses in multiple occupation should not be treated less favourably in any aspect that inhibits the rollout of this vital public service. While steps to improve rollout of new infra- structure to multiple-occupancy dwellings is welcome, I ask the Minister what plans the Government have to deal with issues in rural areas. I therefore speak in favour of the amendment.

[Lord Clement-Jones]

My Lords, the purpose of the amendment is extremely clear and should be welcomed by the Government. It is to ensure that the code is fit for the purpose of delivering the Government’s own manifesto commitment—and that personally expressed by the Prime Minister—of 1 gigabit per second-capable broadband to every home by 2025.

However, in the Minister’s letter to me about comparative rights of entry for different utilities—I thank her for it—she describes it as the Government’s ambition to deliver gigabit-capable broadband to every home and business “as soon as possible”; that is my emphasis. All of us, whether at Second Reading or in Committee, have described the importance of delivering what we must now call ultrafast broadband by any appropriate technology by 2025, particularly in the light of the demonstration through the Covid-19 lockdown of our increasing dependence for remote working, education and many other aspects of life on good broad- band connectivity, as the noble Lord, Lord Stevenson, described.

It is clear that the Electronic Communications Code needs regular review to ensure that this vital objective is met and that operators have all the rights of entry they need. It is all the more important given that, as all of us know, previous pledges and commitments have not been met—and, this year, we can hardly celebrate the arrival of a universal service obligation of a miserable 10 megabits per second.

I am glad that we have started a genuine debate around whether we can describe broadband as a utility and what the appropriate rights of entry are. The amendment is by no means prescriptive on the point, but it should definitely be a matter of consideration on review, particularly given that, unlike with electricity, gas and so on, the rights of broadband operators are only ever temporary in the code at the moment. The amendment would be an extremely valuable addition to the Bill.

Data Strategy

Lord Clement-Jones Excerpts

Wednesday 24th June 2020 Lords Chamber

[Baroness Barran]

Our plans for our data strategy are extremely ambitious. We see it as a crucial part of driving economic prosperity and social good. We believe that we have laid the foundations for that already and will announce more detail in due course.

[Lord Clement-Jones (LD) [V]]

My Lords, the Government’s call for evidence on digital identity was issued in July 2019; it rightly emphasised the importance of public trust and the role that a successful approach to digital identity can play in the use of public data. That call closed last September, so is it not high time that we had some policy proposals in this crucial area, too—especially given the failures of the past, such as Verify—so as to ensure that, as techUK has suggested, we create a framework of standards that can be used by all players in this field?

[Baroness Barran]

The noble Lord is right that digital identity and having clarity on that is critical. The Government have been very open about having had some unavoidable delays, most particularly around the election and now, sadly, with Covid. Part of the work within the strategy will be to identify which areas and datasets to prioritise and focus on.

Children: Exposure to Harmful Content

Lord Clement-Jones Excerpts

Thursday 11th June 2020 Lords Chamber

Asked by

[Lord Clement-Jones]

To ask Her Majesty’s Government what assessment they have made of the research by the British Board of Film Classification on the extent of exposure of children and teens to harmful or upsetting content while in lockdown, published on 4 May.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con) [V]]

My Lords, children are going online more due to Covid-19 measures. As the British Board of Film Classification’s report has highlighted, this can put them at greater risk of encountering harmful content. DCMS published new online safety guidance on 23 April which includes guidance for parents, including on preventing children’s exposure to age-inappropriate content. There is advice on implementing content filters and on talking to your child about staying safe online. Children’s online safety is a priority for this Government, and new online harms legislation will be ready in this Session.

[Lord Clement-Jones (LD) [V]]

My Lords, the research carried out for the BBFC has revealed that, in lockdown, 47% of all children and teens—that is nearly half—have seen content that they wish they had not. Given these appalling figures, and previous figures from the Government themselves about children’s access to pornography, will the Minister now make clear the Government’s commitment to urgently introduce long-delayed and much needed age verification for online pornography? This is a vital child protection measure which parents overwhelmingly support, and which Ministers themselves have described as a critical and urgent issue.

[Baroness Barran [V]]

The noble Lord will be aware that in our proposals we take the duty to deliver a much higher level of protection for children and adults extremely seriously. We are following an approach of requiring a duty of care on social media and other online content providers, and we think that this is more robust than any particular set of procedures, although it would obviously include age verification.

Telecommunications Infrastructure (Leasehold Property) Bill

Lord Clement-Jones Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 2nd June 2020 Lords Chamber

Moved by

[Lord Clement-Jones]

20: Clause 1, page 6, line 12, after “any” insert “direct”
Member’s explanatory statement
This amendment would probe the type of damage for which compensation will be paid under this sub-paragraph.

[Lord Clement-Jones (LD)]

My Lords, I will be extremely brief. I hope that the Minister will understand entirely the reason for this probing amendment. It arises from the way in which the compensation clause—new paragraph 27H—is worded. It seems to give enormous licence to award compensation under the terms of the Electronic Communications Code where a court has made a Part 4A order. That has been imposed, of course, but new paragraph 27H(2) states that:

“The court may, on the application of the required grantor, order the operator to pay compensation to the required grantor for any loss or damage that has been sustained or will be sustained by the required grantor as a result of the exercise by the operator of the Part 4A code right.”


I am concerned that these compensation requirements are drawn so widely so they could be a disincentive to an operator to lay fibre to a home or MDU as envisaged by this new section of the Electronic Communications Code.

What kind of compensation is contemplated in these circumstances? I have inserted “direct” because in law it is perfectly respectable to claim damages for foreseeable loss. That could mean economic loss—for instance, where a Part 4A agreement has been imposed and somebody loses two days’ worth of business or finds that they have to close unexpectedly a particular facility that is part of the building to which the order relates. Then there is ancillary land, where the landlord has some other kind of business next door to the MDU and it is necessary for the fibre to cross it or be laid across it by the operator, meaning closure and so on. What is contemplated? It seems extraordinarily wide-ranging. Of course, it provides for arbitration and agreement to be reached, but I want very much to hear from the Minister exactly what is contemplated by this clause. As I say, it is so widely drawn that it could be seen as a disincentive to the operators, which we all wish to see move pretty swiftly to ensure that the Government’s target for full fibre rollout is met. I beg to move.

[Lord Fox (LD)]

I thank my noble friend Lord Clement- Jones for setting out this amendment so effectively. He promised to be brief; I will be even briefer. Is this not symptomatic of the whole Bill, where the balance is against things happening rather than for making things happen? What was in the Government’s mind when they wrote this clause and put this Bill together? Is this an enabling Bill or a sort of grudging Bill that somehow lets a few things happen but ends up stopping a lot of other things? Why did the Government take this kind of attitude, which is symptomatic of the whole Bill?

--- Later in debate ---

[The Deputy Chairman of Committees (Lord Haskel) (Lab)]

No noble Lord has asked to speak after the Minister, so I now call the noble Lord, Lord Clement-Jones.

[Lord Clement-Jones]

I thank the Minister for that reply. It was a reply of some ingenuity, pulling together quite a number of different negative arguments against the amendment. I will briefly go through why I do not think that it holds a great deal of water.

I am grateful to my noble friend for pointing out that this remains a grudging Bill as opposed to an enabling Bill. It certainly feels very much like that to those of us who have been working on this and hoping that there was going to be a great deal more opening up of operators’ ability to lay fibre than purely the MDUs, the subject of this Bill. I am also grateful to the noble Lords, Lord Adonis and Lord Lea, for pointing out that it is important that tenants and lessees get the benefit from these new powers, not the landowners in that sense. I entirely agree that it would be quite possible for the lessor—the landlord—to have entirely different interests from the tenants, and it is tenants and lessees who we want to see get the benefit of fibre and the ability to have proper communications. This has been the frustration of operators. The reason for these new powers is precisely that landlords have been holding up progress in this respect. As the noble Lord, Lord Livermore, said, there is a danger of bad blood being created not just between the operator and the landlord—hence the reasons for orders under new Part 4A—but between tenants and lessees and the landlord.

The Minister’s main argument was that the language in new paragraph 27H mirrors the remainder of the Electronic Communications Code, but just because the rest of the code is written in a very pro-landlord way should not mean that these important powers should not be written in a different way. The argument is that it mirrors the language and that courts are experienced in dealing with it, but these are new provisions. Any lawyer will say that if there is a limitation on the definition of damage and the compensation that is available, it is much more helpful than having to decide at large the damage that has been suffered. The Minister’s case is that more lawyers will be required. Perish the thought!—I am lawyer. Her belief that more lawyers would be required with the new definition using the word “direct” is not entirely correct, I am afraid to say, because lawyers dealing with things such as indirect damage are going to dance on the heads of many more pins than they would if this wording were added.

I believe that the balance is wrong, not just in this clause but across this amendment to the code. I hope we do not all live to regret it by finding that operators are unwilling to go forward because of the threat of compensation hanging over their heads to the detriment of tenants and lessees, as the noble Lords, Lord Adonis and Lord Lea, said. Clearly I am not going to make much further progress today, so I beg leave to withdraw the amendment.

Amendment 20 withdrawn.