Telecommunications Infrastructure (Leasehold Property) Bill

Lord Clement-Jones Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 19th May 2020 Lords Chamber

Moved by

[Lord Clement-Jones]

1: Clause 1, page 1, line 13, after “leased” insert “or tenanted”
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, I shall speak also to Amendments 3, 4 and 5, but at the same time I will make some general comments on the Bill. I should explain that my noble friend Lord Fox will be present and making his general comments in the second session but, for the Chair’s benefit, will not be present at the proceedings until then.

It is rare to have the opportunity to hear both Ministers’ speeches at Second Reading before delivering my own take on the Bill, so there may be some advantages in our new Committee procedure.

As to the subject matter of the Bill, the Covid-19 lockdown has shown how dependent we all are on good, fast, resilient broadband. Indeed, it is clear from the inability of many MPs and Peers to contribute to Virtual Proceedings how woeful broadband is in some areas. Moreover, recent international comparisons show that we are 81st when it comes to value for money in broadband service internationally, so we need to move forward quickly. In her Second Reading speech, the Minister said that only 12% of UK properties currently had access to full-fibre connections, but the status of the Government’s intentions regarding delivery of a one-gigabit-capable service is unclear. From what the Minister said at Second Reading, this will happen “as soon as possible”, but that hardly matches the Prime Minister’s pledge during his leadership campaign of 100% fibre to the home by 2025 or the Conservative manifesto commitment.

What is the target? What is the strategy now? Is it 1 Gbps by any appropriate technology by 2025? We need a firm date and a clear plan. What is the relationship to the rollout of 5G? Indeed, are changes to the current, extraordinarily low universal service obligation of 10 Mbps contemplated? Superfast, namely 30 Mbps, broadband availability reached 95% of UK properties as of February 2018. Surely the USO, albeit new, needs upgrading to 25 or 30 Mbps from the current 10 as quickly as possible. We currently have an impossibly low bar.

When it comes to infrastructure spending, we also need a target of GDP percentage spending. What actual investment are the Government making in 1G rollout? What do they expect the private sector to make? The Commons briefing paper on the Bill highlighted the fact that the May Government’s future telecoms infrastructure review estimated that the national rollout of full-fibre broadband would require a total investment in the region of £30 billion. This Government have allocated £5 billion to tackle the hardest-to-reach 20% of UK premises, but there are no details yet of how that funding will be used.

There are several existing funding programmes for full fibre, launched under the May Government, including two voucher schemes to subsidise full-fibre connections to rural premises and small and medium-sized businesses. What is the status of these? How are the Government avoiding unnecessary duplication in the rollout of full fibre to the home? How will Ofcom’s determination that there will be market competition in some areas, prospective competition in others and non-competition in yet others work? Is the division into three types of area now agreed as the settled way of doing this?

Private sector plans are extensive. Openreach has committed to deliver full fibre to 4 million premises by March 2021 for its Fibre First programme; Virgin Media plans to reach 4 million premises by the end of 2019-20 as part of its Project Lightning network expansion, which includes a mix of full-fibre and cable broadband; Hyperoptic plans to expand its network to cover 2 million homes by 2021; and CityFibre, in partnership with Vodafone, has plans to roll out full fibre to 1 million UK homes and businesses by 2021.

However, the Government clearly need to will the means by breaking down the barriers to installing these networks. Generally, let us not forget that the PM described Theresa May’s Government’s target to build a UK-wide full-fibre network by 2033 as “laughably unambitious” and we must hold him to that statement. Indeed, many would give that description to this Bill. The future telecoms infrastructure review made it clear that a wide package of legislative and regulatory reform is needed to support the industry to deliver full fibre at scale across the UK. The industry says that it can meet the Government’s 2025 target only if public policy and regulatory decisions are made quickly to support rapid investment and rollout.

The Bill will go some way to address the challenges currently faced by network builders in connecting people living in flats and apartment blocks if they cannot identify, or do not receive a response to requests for access from, the building owner. According to Openreach, 76% of these MDUs—multi-dwelling units—miss out on initial efforts to deploy fibre because of challenges in gaining access. Up to 10 million people live in these properties across the UK. Even in this respect, the Bill should go further to provide greater flexibility for network operators. It should allow operators—not just tenants—to trigger the provisions. The time limit of 18 months within which the new rights would apply should not be on the face of the Bill. There should be a more specific requirement on landlords to engage with operators under the new process which the Bill establishes.

Ultimately, however, even if we made these amendments, should not broadband operators be treated as a utility and the operators given the same rights of entry that others—such as electricity companies—have under the Electricity Act 1989? The deployment of new 5G networks as well as fixed fibre should also be a focus. Surely, the 1 gigabit per second commitment is technology-neutral, but in other respects the Bill is deficient. What about other forms of wayleave, in particular in rural areas and commercial property such as business parks?

Why do we not see legislation for a complete rollout strategy? For instance, legislation on gigabit broadband infrastructure for new-build properties was promised in the December 2019 Queen’s Speech. Broadband operators also cite skilled labour shortages. What is the plan to overcome these? Is Ofcom now satisfied that adequate protection is in place for consumers, particularly as to the cost of services during the transition from copper networks to VoIP services?

Despite criticism of the wayleave situation, are the Government simply going to rely on their street works toolkit—which provides practical guidance for managing street and road works—for the deployment of broadband infrastructure, rather than the digital champions in local authorities that the National Infrastructure Commission recommended? Are the Government and Ofcom generally satisfied that their reforms to allow Openreach’s ducts and poles have been effective? Why does the business rates exemption apply only to laying new fibre and not to upgrading—in other words, substituting full fibre for copper?

The Minister outlined the Government’s intentions regarding the timing and content of a telecoms security Bill. On these Benches, we agree that that will be the appropriate time and occasion to discuss amendments relating to high-risk vendors. This is a very modest Bill, which raises so many questions about the Government’s strategy and their ability to deliver it. These cannot be addressed by responses alone to the detailed amendments which have been laid. I hope that the Minister will attempt to respond.

On the substance of the amendments, I hope that they are to some extent self-explanatory, so I will be brief. Surely the current wording of the Bill with regard to lessees creates considerable uncertainty as to whether tenants who do not hold a lease are covered. Conventionally, lawyers describe the areas of law covering contracts for the occupation of land as landlord and tenant law. So it would have been entirely understandable if the reference had been to tenants throughout, but this way around, where “lessees” are intended to encompass tenants, does create uncertainty.

What is the position of a tenancy at will or a renewable tenancy, which are not covered by the documentation of a lease as such? There are considerable distinctions between a tenancy and a lease in general parlance. A lease will normally have some kind of capital value attached to it on assignment. A tenancy, under a rental agreement, will be very unlikely to have that. I hope that the Minister can give a full answer on the legal point, including any legal authority. This will be important for any future interpretation purposes if a Pepper v Hart situation arises, as I suspect it may.

The words I have just spoken apply to Amendments 1, 3 and 4. Amendment 5 is seemingly small, but it is important. Why does a lessee have to be in occupation? What if it is a second home or a sublet? Does that disqualify a lessee from being able to invoke the Electronic Communications Code? This gives rise to many questions. Why should a lessee have to be in occupation? I very much hope the Minister will be able to answer that question. I beg to move.

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[Baroness Barran]

I thank the noble Lord for his further questions. To cover the point about Openreach, the noble Lord will be aware that on 15 May the Financial Times suggested that BT was considering the sale of a stake in Openreach to potential buyers, including Macquarie. Officials spoke to BT last week, which confirmed that this was inaccurate. Both Openreach and Macquarie sources have also publicly told the press that this is inaccurate. On his wider point, if the Government became aware that Openreach did not have the capacity to deliver on our target, we would obviously reconsider how best to meet it, but I am not in a position to be able to give any more detail here.

I will also correct something. I hope noble Lords did not understand me to say that potential delays in rollout from the impact of Covid-19 are only short term. At the moment, we understand some of the short-term impacts and we hope we will be able to absorb them, but given that none of us has a crystal ball on how this will all unwind, I wanted to clarify that for the record.

[Lord Clement-Jones]

My Lords, I thank the Minister for her response. As the noble Lord, Lord Adonis, implied, it was ironic that we were talking about fast, reliable, resilient broadband, in the Minister’s words, yet she is the one who has principally suffered from not having it in the course of the debate. I thank her anyway, and I look forward to the letter she will send, which might be a little bit clearer than the reception we had for her response.

I thank noble Lords for their support for the amendments. In particular, the noble Baroness, Lady McIntosh of Pickering, and the noble Lord, Lord Liddle, brought out some of the real issues associated with getting the wording wrong. I say to the noble Lord, Lord Haselhurst, that there is nothing wrong with Liberal with a large “L”. We might want to see the ECC interpreted with a large “L”, not just a small one.

I felt the Minister really did not start off on the right foot when talking about the actual aim—the Government’s objectives. I understand that there may be some delay as a result of Covid-19, but the target was set out in the Conservative manifesto. We have not really had a pledge on that. We have had “as soon as possible”—I think that that was in the Minister’s speech last time—but no pledge that that is the objective and that all the Government’s sinews are being strained to achieve it. That is what we want to see.

On the amendments, we are back to the question of access. As I said, the noble Lord, Lord Liddle, and the noble Baroness, Lady McIntosh, got this right. It is about absolute access for various types of occupier. We should be treating this as a utility. We cannot be talking about this in 19th-century property terms. It is as if we were at the end of the 19th century and beginning of the 20th century, when people were arguing about whether electricity should be installed in their houses. Broadband should take its place alongside gas, electricity and water as an essential utility and we should give suitable powers of access to do that.

I look forward to the letter from the Minister but to say that my amendments affect the clarity of the drafting of the wider Bill is almost laughable, because the drafting of the Bill is not clear. The use of the term “lessee”, which excludes quite a number of different types of occupation and tenancy—as has been pointed out—is not adequate. We do not just have a legal issue; we have a clear access fault line about how we treat broadband and its essential nature. We are going to have have-nots who are not able to benefit from the ECC and that will be greatly regretted, not least by those who are unable to access the kind of service that the Minister herself would like. I do not necessarily take on board the arguments about unintended consequences and occupation. One is being over-cautious in the way that the Bill has been put together, but that is a characteristic of the Bill as a whole. We will, no doubt, come back to this on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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[The Deputy Chairman of Committees]

The noble Lord, Lord Stevenson of Balmacara, is listed to speak next but I believe does not wish to contribute at this stage. I therefore move on to the noble Lord, Lord Clement-Jones.

[Lord Clement-Jones]

My Lords, I absolutely support what the noble Lords, Lord Adonis and Lord Livermore, said on this matter. A lot of what we are trying to achieve with our comments on the Bill—clearly there is a great deal of commonality here—is to get the Government to state very clearly what their objectives are and how they will achieve them. This is a very well-worded amendment designed to do just that, so that the operators must commit to a one-gigabit-capable broadband commitment. Amendment 21, when we come to it, has a very similar intention.

The problem is that we seem to be faced with a really slippery objective that we cannot quite get our hands on; the Government have not quite committed to it. We really need to see proper commitment from the Government to full access to the one-gigabit-capable broadband which they absolutely promised in their manifesto. At the moment, there seem to be an awful lot of get-out clauses. That is not satisfactory. We will keep arguing through this Bill for a proper commitment to the one-gigabit-capable broadband promised at the last general election.

[Baroness Barran]

My Lords, I will now respond to Amendment 2 and the points raised by noble Lords.

This amendment would limit the use of the powers contained in Part 4A only to operators installing gigabit-capable services. As the noble Lord, Lord Adonis, stressed, the spirit of this amendment is to test the Government’s commitment to providing gigabit-capable broadband. I am obviously disappointed that he found insufficient the remarks of my honourable friend the Minister for Digital Infrastructure in the other place.

The Government remain completely committed to bringing faster, gigabit-capable broadband to the whole country as soon as possible. Our ambition remains nationwide coverage by 2025. However, we do not believe that we should force consumers to take out specific services.

Clause 1, as currently drafted, supports our ambition. It provides a bespoke process in the courts that will allow an operator faced with a landowner of a premises within the scope of this Bill who repeatedly fails to respond to notices, and a tenant waiting for a service to be connected, to gain interim code rights for the purpose of connecting that building to their broadband service. To limit provision only to services

“that can deliver an average download speed of at least one gigabit per second”

runs the risk, particularly in the short term, of limiting access to better broadband, which, as all noble Lords have agreed, is extremely important.

This Bill, like the Electronic Communications Code, which it amends, is technology neutral and therefore speed neutral. It makes no distinction between the type of service being deployed but recognises the consumer’s right to choose the service they want from the provider they want. Of course, many consumers will want the speed, reliability and resilience offered by full-fibre or gigabit-capable connections, and it should not be the role of government to limit their ability to choose.

In a similar vein, although gigabit-capable services are being rolled out across the UK, they are not yet being deployed everywhere. In practice, the amendment would mean that households in areas yet to be reached by gigabit-capable networks would have to wait—maybe for a long period—even though a superfast or ultrafast service might already be available. Our experience and current practice suggest that an operator would be very unlikely to install outdated technology, and therefore such a delay would be unnecessary and extremely frustrating for consumers.

Finally, were this amendment to form part of the Bill, we consider that it would not have the effect intended by noble Lords. It amends paragraph 27A, which is an introductory provision and explains in very general terms what Part 4A of the code does. The amendment in itself does not amend any of the Bill’s substantive provisions, such as paragraph 27B of the code. Its drafting would not therefore operate within the rest of the Bill.

I understand what noble Lords are seeking to achieve in tabling the amendment. The Government absolutely share the aspiration of achieving gigabit-capable broadband across the whole country, but it is important that the Bill, and the Electronic Communications Code more widely, stay technology neutral for the sake of the consumer’s right to choose and to ensure that we do not allow the perfect to become the enemy of the good.

A number of noble Lords raised the question of the universal service obligation, which is the safety net that we legislated for and which went live on 20 March. It ensures that everyone across the UK has a clear and enforceable right to request high-speed broadband of at least 10 megabits a second from a designated provider and up to a reasonable cost threshold of £3,400. We keep the speed and quality parameters of the USO under review all the time to make sure that it keeps pace with consumers’ evolving needs, and our officials work closely with Ofcom regarding the implementation of the universal service obligation.

With that, I hope that the noble Lord will agree to withdraw his amendment.

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[Lord Liddle (Lab)]

My Lords, I strongly support what my noble friend Lord Stevenson has said. I do not understand the Government’s problem with giving operators this right. There is clearly a planning benefit, in terms of efficiency, in giving them the right to look at the problems area by area and to identify where additional provision needs to be made in order to promote a universal service. I just do not see why the Government want to deny us this amendment.

[Lord Clement-Jones]

My Lords, I have put my name to the amendment in the name of the noble Lord, Lord Stevenson, who is correct in saying that the purport of our amendment, Amendment 8, is very similar. I was struck by the Minister’s implying that, if we are not careful, consumers will be forced to take a service. That is not the situation. What we want to do, as far as possible, is to facilitate the laying of fibre across 100% of the country. Consumers can well make up their own minds about whether to enter into a consumer contract. We need, as far as we can, to facilitate the operators in what they do. Just as with electricity—we have had several references to the utilities aspect—people should have access to this. I cannot understand why the Government are not making a distinction between laying the infrastructure and then entering into consumer contracts for the supply of internet services; the distinction is readily understood.

I accept that the Bill introduces a new process for operators to gain access in cases where a tenant has requested a service and the landlord is unresponsive. This will, of course, be helpful for deployment but it depends on a tenant requesting a service rather than supporting the proactive laying of cable ahead of individual customer requests. That means that operators’ teams may not be able to access buildings in areas where operators are currently building, or plan to build, so they will be less effective in supporting rapid deployment. That is what the Bill is ostensibly about: facilitating the deployment of fibre. The most efficient building process is when operators can access all premises in a given area, rather than having to return to them when a building team may have moved many miles away.

Operators say that if they were able to trigger this process without relying on a tenant request for service, they would be able to plan and execute deployment much more efficiently—in effect, proactively building in these MDUs at the point where their engineering teams are in place, rather than waiting for a tenant to request a service. Both these amendments are pure common sense; I hope that the Minister will accept them.

[Baroness Barran]

My Lords, I thank the noble Lords for tabling these amendments, which would allow telecommunications operators to apply to the courts for a Part 4A order without requiring a “lessee in occupation” in the property making a request for a service. I appreciate the intention behind the amendments, but we are concerned that both have the potential to undermine the balance between the rights of the landowner, the rights of the operator and the public interest.

The noble Lord, Lord Stevenson, referred to our comments in the Future Telecoms Infrastructure Review but we then consulted publicly on the policy in this Bill. What is here in the Bill reflects the outcome of that consultation. The Bill, like the rest of the Electronic Communications Code, was designed to create a fair and balanced framework to underpin the relationships between telecoms operators and landowners. We believe that it works because it is balanced and gives the interests of all sides careful consideration. We believe the Bill continues that balance. Where a landowner is unresponsive, for whatever reason, it is important to ensure that an interest other than that of the operator is being considered by granting an order which potentially impinges on an individual’s property rights.

This is the reason for the requirement that the lessee in occupation of the property actively requests that a telecommunications service be delivered. This is integral to the policy. This request is an unequivocal demonstration that the interests of parties other than the operator alone are reflected and goes to the heart of the Bill’s carefully crafted work, taking into account and balancing the respective interests of tenants, landowners and operators. Some network operators may well welcome the freedom of being able to judge for themselves what is and is not in the public interest and the ability to gain access to a property simply by proposing to make a service available. That freedom is what these amendments would give them. However, I hope noble Lords will agree that without any accompanying constraint on such a freedom, such a system could be capable of being abused, and that is a risk the Government are not willing to accept.

I am also mindful that these amendments would mark a significant shift from the policy that was consulted on, and that is something to be particularly cautious of when dealing with issues around property rights. With that in mind, I beg the noble Lord to withdraw his amendment.

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[Baroness Morgan of Cotes (Con)]

I thank noble Lords for the opportunity to speak on this Bill. I will speak to Amendments 9 and 14, but, as I did not speak at Second Reading and before I get to Amendment 9, it is important to set out some context.

I am pleased to see that both Houses are now focusing on business other than the current virus crisis. We have already been reminded today that our democracy is dependent on fast and reliable broadband, and we have seen the struggles that some of us have had with that. Therefore, fast and reliable broadband connectivity has become a national utility and something that people should expect as a right.

It is right that we pay tribute to all those who have kept that national utility going in the past few weeks, as we rely more and more on wi-fi, broadband and mobile connectivity. Although the people who have kept such critical national services going are perhaps not often referred to as key workers, I think that they should be included as such. They have connected loved-ones in hospitals, often at the worst possible time in anyone’s life, and provided online access to education—the subject of a wider debate. They have enabled online appointments for doctors working from home, which is a working pattern that is likely to continue, and family harmony—if anything is to be taken from the example of how much time my 12 year-old spends on his Xbox.

Therefore, the Prime Minister and the Government were right to make a clear commitment to gigabit connectivity nationwide by 2025, and it is important that Ministers stick with that target. I know from my time as Culture Secretary just how personally committed the Prime Minister is to this. Having that target of 2025 should concentrate minds both within government and outside in terms of those responsible for the rollout. I hope that there will be no let-up in making sure that the target is achieved.

Having better connectivity across the country is part of the Government’s levelling-up agenda. It will also be part of necessary infrastructure spend, which will be very important in getting our economy moving after at least the first wave of the current crisis has passed and we can see how much work needs to be done to get our economy restarted.

This Bill is an important part of removing all barriers to faster broadband rollout. As we have heard, it is about accessing premises where leaseholders want better broadband. In a similar vein, I know that the department is working on removing other barriers to deployment. Another important step will be making sure that all new-build developments have broadband connectivity points installed right from the start so that people do not have to move into new homes or new business premises only to find that they cannot get better connectivity.

This is a short and focused Bill. That is why I argue today that Amendments 9 and 14, although very important—as we have heard, noble Lords feel very strongly about the issues under discussion—are not right for this Bill. I know that the Secretary of State made a commitment in the other place to bring forward a telecoms security Bill, but obviously he was speaking before the events of the last few weeks. The commitment was to bring forward such a Bill before the Summer Recess, although I think we all appreciate that the legislative timetable has been somewhat disrupted. However, we can see from the debates so far on these amendments that there is a real appetite both in this House and in the other place to have these discussions.

I have to say to the noble Baroness, Lady Falkner, that the decision to allow high-risk vendors to play a limited role in our national connectivity was not an easy one, and it certainly was not rushed through. It stemmed from years of looking at this situation, particularly the telecoms supply chain review conducted by my predecessor in the culture department, but I do think it was the right decision. I will talk about the Statement that I made in the House in January—not in March, as I think she said.

We need faster, better and resilient broadband. That is why having a number of key suppliers at this time is important, so that the infrastructure can be relied upon. It is also right, as I said in the Statement to the House on 28 January, that diversification of the suppliers’ market is important. We must not, as a country, find ourselves in this position again when we have to make difficult decisions about high-risk vendors. I understand the noble Baroness’s amendment but, as I say, the Government’s approach and the decision made at the National Security Council are right, not easy. I therefore hope that we will return to this important subject at a future date on a future Bill. Putting a hard deadline of the end of 2022 on it, although again understandable, also risks the wrong decisions being made and potentially a less resilient broadband network being rolled out across the country. That really will help no one in the longer term.

A full technical and security analysis was undertaken by GCHQ’s National Cyber Security Centre. Its view and advice were central to the conclusions of the telecoms supply chain review and the decisions taken off the back of that. Just as a reminder, the UK Government’s approach is obviously to have a new telecoms security regime, which we will discuss in that future Bill, to diversify the supply chain. Although subject to the current crisis, of course, work should begin to start on that. It is very important that we work with our allies around the world on that supply chain to ensure that it is more diverse. However, we will put ourselves on the back foot if we ignore any key suppliers at the moment.

The third condition was the most important: we have to be clear about what makes a vendor high risk and have clear rules and guidance on how we mitigate the many cyber risks to our telecoms networks. We know that cyber risks come from a variety of sources. As I mentioned in that Statement, the most recent cybersecurity risks have come from Russia, and the Russians play no part in our telecoms infrastructure at all.

I said in the House back in January that

“high-risk vendors should be excluded from all safety-related and safety-critical networks in critical national infrastructure; excluded from security-critical network functions; limited to a minority presence in other network functions up to a cap of 35%; and be subjected to tight restrictions, including exclusions from sensitive geographic locations.”

I noted what the noble Baroness said about the answer that I gave to her back in January. I will certainly check the 2013 report again, but I also ask her to check the words that I used about the most sensitive networks. It is clear, as I also said in the Statement, that

“nothing in the review affects this country’s ability to share highly sensitive intelligence data over highly secure networks, both within the UK and with our partners, including the Five Eyes. GCHQ has categorically confirmed that how we construct our 5G and full-fibre public telecoms networks has nothing to do with how we share classified data. The UK’s technical security experts have agreed that the new controls on high-risk vendors are completely consistent with the UK’s security needs.”—[Official Report, 28/1/20; col. 1340.]

Given the current crisis, there will be time for a full-scale evaluation of the relationship between the UK and China. I should make it clear that companies such as Huawei could help their cause if they encouraged the Chinese Government to participate fully in any global inquiries, particularly into how the current coronavirus crisis was started.

We also need to be clear about the motivations of some who are objecting to the use of high-risk vendors and want to set dates. As we have heard in this debate but also in the other place, there are many different motivations. The noble Lord, Lord Alton, has just set out a very powerful case in relation to human rights, and I hope that will be part of a future debate. There are of course issues of security and intelligence sharing, but there are also those who use this particular concern and debate to advance other geopolitical strategies: namely, the successful conclusion of a UK-US trade agreement. The US has strong feelings about Huawei’s involvement, as we have seen in recent developments. We need to be very clear, and the Government were very clear in January, that we were making a decision about the involvement of high-risk vendors on the basis of what was right for the UK.

I hope that the House will not want to see this amendment in the Bill, but it is clear that we must return to this issue in the Bill. It is right that we hold the Government to account over the diversification strategy so that, as I say, that we are not in this position in any further future telecom supply chain decisions that we might have to make.

[Lord Clement-Jones]

My Lords, we have heard some passionate speeches today, but, truth be told, this infrastructure Bill is about much more mundane matters. It is all about rights for operators getting access to install fibre broadband in order to achieve faster broadband rollout, not vendors or their equipment, or indeed high-risk vendors or their equipment, so we on these Benches do not believe that this is the appropriate time or place to discuss these amendments. Quite apart from that, the amendment deals with 5G infrastructure content and leads to our strong view that this debate is not appropriate now but will be when the telecom security Bill comes forward.

I do not say this very often, but I agree with the Government’s view on this, as expressed by the letter of the noble Baroness, Lady Barran. That will be the right peg for the noble Baroness’s amendments, and we should debate the substance then. For that reason, I am not going to engage with the substance of many of the statements made by the noble Baroness, Lady Falkner, in moving these amendments or indeed those of the noble Lord, Lord Alton.

The background is that, despite earlier speculation, as the noble Baroness, Lady Morgan, said, after some considerable consideration the Government made their Statement in January 2020 and said that Huawei would continue to play a limited role in delivering the 5G rollout. As she said, that decision took into account analysis and insight from several security bodies and experts in the UK, including GCHQ and the National Cyber Security Centre, and she explained the reasoning very clearly.

On these amendments specifically, there is of course a problem in the operators being given the right to install equipment from high-risk vendors now but ahead of a deadline set in future. Will that fibre have to be removed? What level of use by a telecoms operator and Huawei is sufficient—that its network supports connections from Huawei phones, or that it uses Huawei equipment in its 5G network but not in its fibre installation? What about a company that installs fibre under this legislation but then sells the infrastructure to another company? Why should operators be forced to develop plans to remove high-risk vendors on the advice of the NCSC when that advice is that the risk can be accepted up to a 35% network cap? Do companies now have to submit plans to reach 0% but without any expectation of that actually being implemented?

All this adds up to enormous uncertainty just at the point when we need the maximum rollout of fibre and 5G. That is why the Government are right in their approach—as I said, I do not say that very often—when they say that the issue of wayleads in the Bill should be kept separate from security considerations that will be covered by the telecoms security Bill.

For the information of the House, I do not underestimate the substantive arguments. I considered these matters very carefully myself some 10 years ago. I was a member of Huawei’s international advisory board, but I think that gives me a useful insight into these matters rather than any conflict in the current circumstances. I hope we can debate all these issues at a future date, but not in this Bill.

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Moved by

[Lord Clement-Jones]

10: Clause 1, page 2, line 17, at end insert—
“(aa) form part of a building used as the premises for one or multiple businesses or organisations,(ab) form part of a purpose-built retirement development,(ac) form part of a new building completed after the period of one year after the passing of this Act, or”Member’s explanatory statement
This amendment would include office blocks, retirement developments and new builds in the scope of the bill.

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[Lord Clement-Jones]

My Lords, I will be extremely brief, because I believe Amendment 10 is fairly self-explanatory. It includes many of the other premises that operators would like to see included in the Bill. For instance, legislation on gigabit broadband infrastructure for new-build properties was promised in the December 2019 Queen’s Speech, yet we have seen no evidence of it.

What is the difference between blocks and, say, a purpose-built retirement development that needs access to full-fibre broadband? This has been brought home to us more than ever in the past few weeks. Take business premises, such as business parks. Those kinds of development are absolutely crying out for the kind of operator access provided for by this Bill.

The purpose of this—clearly a probing—amendment is to see how far the Government’s ambition stretches. I have criticised this Bill on the grounds of lack of ambition to date, but it would be nice to hear from the Minister that the Government’s ambitions stretch rather further. I beg to move.

[Lord Fox (LD)]

I support my noble friend Lord Clement-Jones. This is a simple amendment, but if the Government are sincere in their ambition to roll out broadband to the widest possible number of people —in fact to everyone—it has to be grasped. It is all very well taking about a limited set of multi-occupancy buildings, but without this amendment that set is very limited. In brief, I support this amendment and look forward to hearing the Minister’s explanation of why this was not in the Bill in the first place and perhaps an undertaking to solve that in time for Report.

--- Later in debate ---

[Lord Parkinson of Whitley Bay]

My Lords, we have tried to strike a balance in the Bill so far between the requirements and the desires of providers and of course the rights of those owning property. At the moment, the evidence suggests that there is a distinction between multiple residential dwellings––where the owner of the building is perhaps not as easily contactable or is not responding––and business parks, for instance, whose owners seem to be more alert to requests from providers and are therefore responding in a more timely fashion to requests. However, if the evidence suggests that they are not, then the secondary power proposed in the Bill will allow the Secretary of State to make provisions and bring forward some statutory instrument to extend the Bill in this way, as the noble Lord, Lord Fox, says.

[Lord Clement-Jones]

My Lords, I thank the Minister for his response to my noble friend Lord Fox, for which I am grateful. The fact is that the Government have actually got the wrong mindset on this. This is not some precious commodity to be supplicated for by a group of property tenants or lessees. This is absolutely a utility, as we have debated and discussed throughout the relatively short period of this Committee.

That shows the poverty of ambition behind the Bill and, in a sense, behind the 1-gigabit strategy put forward by the Government. We should allow 1 gigabit to be laid by operators in all those places. Small businesses, almost more than ordinary consumers, are in desperate need of good connectivity. As we have seen, online business is now absolutely crucial, yet many business parks do not have proper connectivity.

--- Later in debate ---

[Lord Parkinson of Whitley Bay]

The Government are certainly very ambitious regarding the provision of sufficiently fast broadband for everybody. As mooted earlier in the proceedings, the current situation, with so many people working from home and relying on the internet to communicate with their loved ones, underlines its vital importance. We aim to lay the regulations as soon as possible, but I will be happy to write to noble Lords with further details of when they will come into effect.

[Lord Clement-Jones]

I thank the Minister for that clarification. Therefore, as yet the regulations are not in place and, as yet, there is no new-build obligation. We very much look forward to the Minister’s letter setting that out. I hope that there will be a sense of urgency, because the regulations were promised last year in the Conservative Party manifesto, and of course there is a great expectation that the manifesto will be fulfilled.

I thank the Minister for some of his clarifications. I keep urging the Government to be more ambitious but, in the meantime, I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

Moved by

[Lord Clement-Jones]

11: Clause 1, page 2, leave out lines 22 and 23
Member’s explanatory statement
This amendment would remove the requirement for land to be held in common ownership with the target premises.

[Lord Clement-Jones]

My Lords, again, I shall be extremely brief in the hope of eliciting a positive and ambitious reply from the Minister. This measure will inevitably be frustrating for operators because the current changes to the ECC allow access only where land is held in common ownership with the target premises. If we are not careful, in many cases that will be a barrier to the proper laying of cable.

To refer back to the Minister’s previous reply, I do not know what the evidence is but operators who have approached us on this question think that it is an important aspect. They may well need to access third-party land across multiple fields, for example, and it will help deployment, particularly in rural areas. That is where we are most mindful of the difficulties—where you cannot get a direct connection and you have to cross a field or other property which belongs to a third party and not the owner of the premises involved.

I would be very grateful to hear from the Minister just what the Government’s evidence has been and what the response to the consultation was, and why they have not managed to include this very sensible provision in the Bill. I beg to move.

[Lord Adonis]

I have nothing to add.

--- Later in debate ---

[Lord Clement-Jones]

My Lords, I thank the Minister for her reply. For one nightmarish moment, when she started talking about connected land, limb A, limb B and so on, I thought that I was returning to a land law viva circa 1971, but this was all in aid of explaining that it is not possible to do anything as far as 27B(3) is concerned. For one delirious moment, I thought she was going to say that the definition meant that my objections had been covered, but of course that was not to be. I understand where she is coming from, but I suspect we are again back into the language of unintended consequences which has been so freely bandied about. I congratulate the Minister on her restraint in not using that phrase in response to this, because this is about landowners’ rights.

Given the extensive compensation rights set out in the ECC, which are amended as part of today’s Bill, it seems to me that the boot is on the wrong foot. If we are really talking about opening up, which the Minister mentioned was a function of this Bill, then surely it is important that we get this right. What I will take as an invitation from the Minister, and I think the operators should too, is that evidence may emerge. If operators can actually demonstrate that there are issues with this kind of connected land, which is not in common ownership and therefore does not fall within 27B(3), they should try to demonstrate that beyond peradventure at the earliest possible opportunity. The representations that my noble friend Lord Fox and I—and clearly, the noble Lord, Lord Livermore—have received suggest that this is a major issue which will slow down deployment.

Whatever the solution—again, the Minister seemed to give some encouragement that thought is being given to this—I very much hope that the Government will continue to think about this and come up with a satisfactory solution. In the meantime, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

--- Later in debate ---

[The Deputy Chairman of Committees]

Lord Clement-Jones?

[Lord Clement-Jones]

I will not be speaking to this amendment.

[The Deputy Chairman of Committees]

Lord Adonis?

Data Protection: Age-appropriate Design Code

Lord Clement-Jones Excerpts

Monday 18th May 2020 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I was very disappointed to see in the final version of the code that the section dealing with age-appropriate application has been watered down to leave out reference to age-verification mechanisms. Is this because the age-verification provisions of the Digital Economy Act have been kicked into the long grass at the behest of the pornography industry so that we will not have officially sanctioned age-verification tools available any time soon?

[Baroness Barran]

There is no intention to water down the code. Its content is the responsibility of the Information Commissioner, who has engaged widely to develop the code, with a call for evidence and a full public consultation.

Social Media: Fake News

Lord Clement-Jones Excerpts

Wednesday 29th April 2020 Lords Chamber

[The Lord Speaker (Lord Fowler)]

Lord Griffiths of Burry Port. No? I call Lord Clement-Jones.

[Lord Clement-Jones (LD)]

My Lords, in the light of the Avaaz report and Ofcom’s latest figures showing the massive extent of Covid disinformation, is not the Government’s approach to social media platforms far too flabby? Should they not be obliging social media platforms to not only provide correct information, but issue warnings and then terminate the accounts of those disseminating misinformation about Covid-19?

[Baroness Barran]

We would rebut the allegation that our response has been flabby. This is clearly an incredibly fast-moving situation. My right honourable friend the Secretary of State meets regularly with the social media companies. As I said earlier, we think that there is more that they can do, but they have made some important moves in recent weeks.

Covid-19: Music Sector and Creative Economy

Lord Clement-Jones Excerpts

Thursday 23rd April 2020 Lords Chamber

[Baroness Barran]

I thank my noble friend for his question. We recognise the financial challenges which small venues face, particularly those in London that might not benefit from the relief to business rates because they have a rateable value above £51,000. We are grateful to the Music Venue Trust for the work it is doing to gather evidence from the sector, and we will use that to inform our plans as we move forward.

[Lord Clement-Jones (LD)]

As the Minister will know, and the noble Lord, Lord Black, and other noble Lords have highlighted, the music sector and other live arts performance has been extremely badly hit by the coronavirus lockdown. We have discussed current support for the sector this morning. Will the Government give serious consideration to financial incentives to stimulate and promote UK music and other live performance production after the lockdown, especially in view of the recovery period that will be required?

[Baroness Barran]

The noble Lord is right that the recovery period could be longer for these sectors than some others. As I said, we are working very hard to understand the evidence on this. Giving evidence to the Select Committee yesterday, the Secretary of State said that we have not reached the end of the road in our thinking. We are listening, analysing the evidence and working on where we should focus our support.

Covid-19: Public Interest Reporting

Lord Clement-Jones Excerpts

Tuesday 24th March 2020 Lords Chamber

[Baroness Barran]

I hope my honourable friend the Minister for Media and Data has the NUJ on speed dial, but I will check; he is certainly actively talking to broadcasters, the Society of Editors and others regularly. As the noble Lord rightly raised, work is going on in relation to the position of the self-employed.

[Lord Clement-Jones (LD)]

My Lords, I pay tribute to all the journalists, photographers and, in particular, camera staff in our 24-hour news service, who are providing a vital, trusted news source in an incredibly fast-moving situation. As the noble Lord said, many of them are freelancers. Does the Minister agree that it would be quite wrong for those freelancers to feel under pressure to work because they do not have the underpinning support enjoyed by those employees rightly identified by the Chancellor in the very supportive settlement that he arranged? There is no equivalent for those freelancers. We have the UQ coming in a minute, but I see that the Statement says that further help is coming. I hope that further help is coming very fast indeed; otherwise, we will see freelancers who feel obliged to carry on working when they are creating a danger to themselves and others.

[Baroness Barran]

The noble Lord has covered a number of points. I absolutely echo his sentiment about the importance of journalists and those involved in public service broadcasting at the moment; not only are they a trusted source of facts, but they will have a role to play in rallying communities and getting the message across about how we can keep ourselves and our families safe, and protect our NHS. Undoubtedly, they have a critical role. I know the noble Lord understands the pace at which government has had to work over the past couple of weeks. In a number of these areas, it may be worth waiting a couple more days and getting the solution right, rather than being too hasty.

Covid-19: Business Interruption Insurance

Lord Clement-Jones Excerpts

Tuesday 17th March 2020 Lords Chamber

Asked by

[Lord Clement-Jones]

To ask Her Majesty’s Government what consideration it has given to the ability of entertainment and hospitality businesses to claim on their business interruption insurance policies where customers have been advised to stay away but no order for closure has been given.

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

My Lords, the Government understand that this has been an unprecedented time for these industries and that Covid-19 has indeed had a very profound impact. At the Budget last week, the Government set out a £30 billion fiscal stimulus to support British people, British jobs and British businesses. I think the noble Lord will be aware of the statement this morning from the Association of British Insurers saying that the vast majority of businesses would not be covered for business interruption of the type we are talking about under their insurance, but my right honourable friend the Secretary of State is having calls across the industry this afternoon to make sure that our lines of communication are open.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for that reply. I, too, have read the statement from the ABI. This is a major issue which has rightly received extensive and negative attention in the media. These businesses are in limbo and are threatened with ruin as a result of being unable to invoke the terms of their business interruption insurance policies. Will the Government now reconsider their policy and direct closure, as has been the case in so many continental countries? It is much more likely—although not certain, as the ABI statement makes clear—that claims will be successful in those circumstances. The other alternative is for the Government to put their own scheme in place where insurance is not available. It is incumbent on the Government to show that they understand what business is facing.

[Baroness Barran]

The noble Lord is quite right. Across government we are trying to understand the challenges that business is facing, which is why all Ministers are in regular, frequent conversations with the key stakeholders they represent. I referred to the package of measures in the Budget, but we know that given the scale and speed of this epidemic we need to do more and we need to do it quickly, which is why the Chancellor will be addressing the other place with a package of measures at 7 pm today.

Algorithms: Public Sector Decision-making

Lord Clement-Jones Excerpts

Wednesday 12th February 2020 Lords Chamber

Asked by

[Lord Clement-Jones]

To ask Her Majesty’s Government what steps they have taken to assess the full implications of decision-making and prediction by algorithm in the public sector.

[Lord Clement-Jones (LD)]

My Lords, first, a big thank you to all noble Lords who are taking part in the debate this evening.

Over the past few years we have seen a substantial increase in the adoption of algorithmic decision-making—ADM—and prediction across central and local government. An investigation by the Guardian last year showed that some 140 of 408 councils in the UK are using privately developed algorithmic “risk assessment” tools, particularly to determine eligibility for benefits and to calculate entitlements. Data Justice Lab research in late 2018 showed that 53 out of 96 local authorities and about a quarter of police authorities are now using algorithms for prediction, risk assessment and assistance in decision-making. In particular, we have the Harm Assessment Risk Tool—HART—system used by Durham police to predict reoffending, which was shown by Big Brother Watch to have serious flaws in the way the use of profiling data introduces bias and discrimination and dubious predictions.

Central government use is more opaque, but HMRC, the Ministry of Justice and the DWP are the highest spenders on digital, data and algorithmic services. A key example of ADM use in central government is the DWP’s much-criticised universal credit system, which was designed to be digital by default from the beginning. The Child Poverty Action Group, in its study, Computer Says “No!”, shows that those accessing their online account are not being given adequate explanation as to how their entitlement is calculated.

The UN special rapporteur on extreme poverty and human rights, Philip Alston, looked at our universal credit system a year ago and said in a statement afterwards:

“Government is increasingly automating itself with the use of data and new technology tools, including AI. Evidence shows that the human rights of the poorest and most vulnerable are especially at risk in such contexts. A major issue with the development of new technologies by the UK government is a lack of transparency.”


These issues have been highlighted by Liberty and Big Brother Watch in particular.

Even when not using ADM solely, the impact of an automated decision-making system across an entire population can be immense in terms of potential discrimination, breach of privacy, access to justice and other rights. Last March, the Committee on Standards in Public Life decided to carry out a review of AI in the public sector to understand its implications for the Nolan principles and to examine whether government policy is up to the task of upholding standards as AI is rolled out across our public services. The committee chair, the noble Lord, Lord Evans of Weardale, said on publishing the report this week:

“Demonstrating high standards will help realise the huge potential benefits of AI in public service delivery. However, it is clear that the public need greater reassurance about the use of AI in the public sector. Public sector organisations are not sufficiently transparent about their use of AI and it is too difficult to find out where machine learning is currently being used in government.”


It found that despite the GDPR, the data ethics framework, the OECD principles and the guidelines for using artificial intelligence in the public sector, the Nolan principles of openness, accountability and objectivity are not embedded in AI governance in the public sector, and should be.

The committee’s report presents a number of recommendations to mitigate these risks, including greater transparency by public bodies in the use of algorithms, new guidance to ensure that algorithmic decision-making abides by equalities law, the creation of a single coherent regulatory framework to govern this area, the formation of a body to advise existing regulators on relevant issues, and proper routes of redress for citizens who feel decisions are unfair.

It was clear from the evidence taken by our own AI Select Committee that Article 22 of the GDPR, which deals with automated individual decision-making, including profiling, does not provide sufficient protection for those subject to ADM. It contains a right to explanation provision when an individual has been subject to fully automated decision-making, but few highly significant decisions are fully automated. Often it is used as a decision support; for example, in detecting child abuse. The law should also cover systems where AI is only part of the final decision.

The May 2018 Science and Technology Select Committee report, Algorithms in Decision-Making, made extensive recommendations. It urged the adoption of a legally enforceable right to explanation that would allow citizens to find out how machine learning programs reach decisions that affect them and potentially challenge the results. It also called for algorithms to be added to a ministerial brief and for departments to publicly declare where and how they use them. Subsequently, a report by the Law Society published last June about the use of Al in the criminal justice system expressed concern and recommended measures for oversight, registration and mitigation of risks in the justice system.

Last year, Ministers commissioned the AI adoption review, which was designed to assess the ways that artificial intelligence could be deployed across Whitehall and the wider public sector. Yet the Government are now blocking the full publication of the report and have provided only a heavily redacted version. How, if at all, does the Government’s adoption strategy fit with the publication last June by the Government Digital Service and the Office for Artificial Intelligence of guidance for using artificial intelligence in the public sector, and then in October further guidance on AI procurement derived from work by the World Economic Forum?

We need much greater transparency about current deployment, plans for adoption and compliance mechanisms. In its report last year entitled Decision-making in the Age of the Algorithm, NESTA set out a comprehensive set of principles to inform human/machine interaction for public sector use of algorithmic decision-making which go well beyond the government guidelines. Is it not high time that a Minister was appointed, as was also recommended by the Commons Science and Technology Select Committee, with responsibility for making sure that the Nolan standards are observed for algorithm use in local authorities and the public sector and that those standards are set in terms of design, mandatory bias testing and audit, together with a register for algorithmic systems in use—

[Lord Deben (Con)]

Could the noble Lord extend what he has just asked for by saying that the Minister should also cover those areas where algorithms defeat government policy and the laws of Parliament? I point by way of example to how dating agencies make sure that Hindus of different castes are never brought together. The algorithms make sure that that does not happen. That is wholly contrary to the rules and regulations we have and it is rather important.

[Lord Clement-Jones]

My Lords, I take entirely the noble Lord’s point, but there is a big distinction between what the Government can do about the use of algorithms in the public sector and what the private sector should be regulated by. I think that he is calling for regulation in that respect.

All the aspects that I have mentioned are particularly important for algorithms used by the police and the criminal justice system in decision-making processes. The Centre for Data Ethics and Innovation should have an important advisory role in all of this. If we do not act, the Legal Education Foundation advises that we will find ourselves in the same position as the Netherlands, where there was a recent decision that an algorithmic risk assessment tool called SyRI, which was used to detect welfare fraud, breached Article 8 of the European Convention on Human Rights.

There is a problem with double standards here. Government behaviour is in stark contrast to the approach of the ICO’s draft guidance, Explaining Decisions Made with AI, which may meet the point just made by the noble Lord. Last March, when I asked an Oral Question on this subject, the noble Lord, Lord Ashton of Hyde, ended by saying

“Work is going on, but I take the noble Lord’s point that it has to be looked at fairly urgently”.—[Official Report, 14/3/19; col. 1132.]


Where is that urgency? What are we waiting for? Who has to make a decision to act? Where does the accountability lie for getting this right?

Shared Rural Network

Lord Clement-Jones Excerpts

Monday 28th October 2019 Lords Chamber

[Baroness Barran]

I will try to clarify those issues for the noble Lord. This Statement is purely about mobile coverage in rural areas. The Government have made a number of other important Statements on broadband investment, again focusing on those parts of the country least well served today, but the two are separate. On interim targets, I can only repeat what I said earlier: we will be getting detailed plans from the mobile operators, and when we have them we will be working to agree targets. I am afraid I cannot give the noble Lord particular hope on the final 5%; there are currently no plans to cover that because of the costs involved.

[Lord Clement-Jones (LD)]

My Lords, the Minister leads me very neatly on to my question. It is important that we remember previous pledges, one in particular about broadband. When standing for the leadership of the Conservative Party, the Prime Minister described the previous Prime Minister’s pledge to have full- fibre broadband in all homes by 2033 as “laughably unambitious”. That appears to have been completely dropped. Do we now consider that the Government’s policy is still laughably unambitious?

[Baroness Barran]

On this side of the House—obviously, I cannot regulate other sides—we certainly do not think it laughably unambitious. Superfast broadband coverage reached 96% of premises in April this year, which is up from 45% in 2010. That means that over 5 million additional homes and businesses have superfast broadband available, thanks to the Government’s investment in the superfast broadband programme. We have talked about the universal service offer and I hear noble Lords’ reservations, but it means that from March next year customers will be able to request broadband connections. In addition, we have announced £5 billion of funding for the next stage of the Government’s broadband buildout. I see that as anything but laughably unambitious.

Age Verification

Lord Clement-Jones Excerpts

Thursday 20th June 2019 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I too thank the Minister for repeating the Statement. This is unfortunate to say the least, and it means these AV requirements will be put in place nearly three years after the original Digital Economy Act was passed. If the Minister does the maths, he will find it has been three years since they were incorporated into the Act.

The noble Lord, Lord Stevenson, asked all the right questions and made a comment about the professionalism of our Civil Service. But I find it staggering that, if you recall, we had exactly the same situation with the Video Recordings Act when notification did not take place. We all had to come back here and re-pass aspects of that Act because that notification had not taken place. I do not understand why that experience was not engraved on every heart in the DCMS or Home Office. I think it was a Home Office requirement at the time, but I dare say the people themselves transferred to the DCMS subsequently. In those circumstances, will compensation be available to companies that have developed age-verification solutions and gone through the voluntary certification and assessment process in anticipation of the guidance going live this July? I would expect nothing less.

During the passage of the Digital Economy Act, we on these Benches agreed in principle with the concept of age verification for pornographic sites for the purposes of child protection, but we wanted greater safeguards in the Bill in terms of third-party verification and privacy. Sadly, that did not happen. My noble friend Lord Paddick and I argued in 2017 for statutory third-party age verification and queried that last year when the regulator was nominated as the BBFC.

What is the current level of voluntary operation of age-verification methods, in response to the guidance or as an independent action? Does any site operate a voluntary age-verification process? If so, are such processes now exclusively third party, which was the essence of our original amendment and why we felt that that was an important privacy aspect? Explicitly, what will be the procedure for the re-approval of the guidance? Will it be by the negative or the affirmative procedure?

My noble friend Lord Paddick argued last year for a much greater commitment to compulsory age-appropriate sex and relationship education for all children, including telling children what they should do if they encounter online pornography. That is an important other side of the coin. What resource is devoted to this increasingly important aspect of sex education? What difference will the new DNS over HTTPS protocol make to the eventual ability of the BBFC to enforce these requirements or to force internet service providers to comply?

The Secretary of State refers in the Statement to the implementation of the online harms White Paper, which is strongly related to the age-verification agenda. The Minister knows that we have reservations about over-hasty legislation; we believe that pre-legislative scrutiny would be wise and would iron out some of the scope and definitional problems. There are conflicting views about the width of the duty of care and, on the other hand, the dangers of being over-prescriptive. There are many voices still to be heard before we can be sure that the legislation will be sound. Is not a draft Bill the way forward?

There is no reason, however, why Ofcom should not be designated early after the end of the consultation—after all, it has the clout, the technological understanding, and experience in regulating content where it converges with technology, in using enforcement and information-gathering powers and in co-operating with other regulators. It could draw up the first code of practice on online safety, mentioned in the Statement.

There is some concern that current policies are driving us into a world where age verification will be required for all kinds of access other than to pornography. That seems to be the implication of the Secretary of State’s remarks about technical challenges associated with identifying the specific age of companies’ users. Is that the intention? We need to be extremely wary of the consequences of that. That must be fully debated before we go further on age-verification requirements.

[Lord Ashton of Hyde]

My Lords, I thank both noble Lords for their sensible comments and repeat our apology. The noble Lord, Lord Stevenson, commented on the memorial service for Lord Heywood and the quality of the Civil Service, so I agree that it is unfortunate that we are today bringing forward this Statement. I want to make it clear that Ministers, not civil servants, are responsible for the department. Both the Secretary of State and I take our responsibilities seriously. I take this opportunity to pay tribute to the civil servants—nearly all the time, though not in this case—and to say that they work extremely hard to protect children. They are absolutely committed and work flat out—I shall come to the online harms White Paper—so the responsibility lies fairly and squarely with Ministers.

The noble Lord, Lord Stevenson, asked how we learned and when. We were informed early last week—on 11 June, I think. A letter from the BBFC was written on 11 June; the Secretary of State was informed on Friday 14 June. Earlier this week he asked civil servants to tell him what the implications were and whether we could do anything to get age verification in place earlier. He then came before the other House today, as soon as possible, to apologise and explain what had happened.

The noble Lord rightly said that we have had experience of the technical standards and regulations directive. The department notified the Act but not the regulations that fell under it. Again, it was a mistake and we are making sure that it will not happen again.

In connection with making sure that it does not happen again, the noble Lord asked about “external elements”. By that, we mean that the review will include people from outside the department to make sure that there is an independent view. I cannot confirm whether it will be published—I will have to go back to the department to ask that.

As for technology, there have been delays. We need to make sure that the technology is effective and that privacy is taken into account. Obviously, the third-party age verifiers are subject to the new privacy law under the GDPR. One reason for the delay was to make sure that the additional voluntary certification scheme is up and running. I say in answer to the noble Lord, Lord Clement-Jones, that sites were expecting to have to be ready to comply with the requirement on 15 July. There has been no voluntary compliance before that; I am not surprised by that. With sites having been prepared to do it on 15 July, we would expect them to bring it in within the timescale of roughly six months—to which I shall come in a minute. We do not anticipate any compensation being paid, because sites were expected to do it on 15 July. They may have a little more time, but our intention is that they should do it as soon as possible. We will bring back the same regulations, because we have to bear in mind that this is about protecting children who accidentally stumble on pornography that they would not be able to stumble on in the offline world. We are concerned to get this in place as soon as possible, which is why we are very disappointed with our mistake.

The broader point made by both noble Lords was that this is a limited measure. We have always acknowledged that; it is for commercial sites. There are other areas in which children can come across pornography, such as social media sites, even though that is not their primary business. That is where online harms will come in. The noble Lord, Lord Clement-Jones, asked about pre-legislative scrutiny. We are very much in a cleft stick here. We of course understand the benefits of pre-legislative scrutiny, but we have to move as quickly as we can to correct some of the problems, particularly in respect of things that are already illegal such as child sexual exploitation and terrorism. However, the noble Lord would not expect me to make a commitment on that when the consultation has not even finished; no doubt, he will respond to the consultation to make his point.

The noble Lord, Lord Clement-Jones, mentioned the Video Recordings Act, where it is true that notification did not place under the old technical services directive. That was 25 years ago, in 1984, and it was corrected in 2010. So the noble Lord is right that there was a similar mistake 25 years ago. We will take measures to ensure that, whether in 25 years, two years, or one year, it will not happen again. I acknowledge that this has happened before, albeit some time ago.

The procedure on the guidance now is that it has to be laid before the EU for three months in draft form. If the EU makes some comments on it, it may have to stay for another month. After that period, it will have to be laid before the House, under the negative procedure, as the House has already agreed. That means we have to allow 40 days for any noble Lord to pray against it. It will take roughly six months to get through both Houses at the end of the up-to-four-month period.

There are several technical issues about the enforceability of the policy—not the policy itself. We also have to take this into account for the online harms White Paper. A suite of enforcement options is available. For example, the regulator can use payment providers and ancillary service providers to enforce the regulations, but these have to come in first and that is what we have had to delay.

Brexit: Movement of People in the Cultural Sector (European Union Committee Report)

Lord Clement-Jones Excerpts

Wednesday 15th May 2019 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I add to the thanks to the noble Lord, Lord Jay of Ewelme, and his committee for an excellent report, which has prompted an equally excellent debate, with some very big cultural guns being trained at the Government’s policy. Despite intervening events, such as the publication of the Migration Advisory Committee’s report and The UK’s Future Skills-Based Immigration System White Paper, it still makes complete sense.

Noble Lords have been eloquent about the damage that has already been caused in the cultural sector, particularly through the uncertainty caused by, in a sense, the lack of government policy and the delay over Brexit. Throughout the debate they unpacked a very inspiring and interesting range of organisations that they were connected with. My noble friend Lady Pinnock talked about Huddersfield Contemporary Music Festival. The noble Lord, Lord Black, talked about the RCM. The noble Lord, Lord Lipsey, talked about Trinity Laban. The noble Lord, Lord Russell, talked about The Place. The noble Lord, Lord Aberdare, talked about the Llandeilo festival. So we have heard about a huge range of organisations, which demonstrates how close noble Lords are to the cultural sector. That is very impressive. When noble Lords say that we share our culture with Europe, they really understand that. I thought that the discussion about students and soft power was of particular interest.

This March, I supported an amendment to the Trade Bill, tabled by my noble friend Lord Fox, to ensure that any trade agreement with the European Union would include a mobility framework that enables all UK and EU citizens to exercise the same reciprocal rights to work, live and study. I did this in particular because, without the right deal on movement of talent and skills, our cultural and creative industries will face the challenges emphasised by the EU Committee and all speakers today. The committee stressed the importance of the cultural sector to the UK’s economy, and a number of noble Lords talked about the wider creative industries sector. That is where I tend to focus and the message is exactly the same: the impact of a lack of mobility will be as great on those wider industries as on the creative industries. As the noble Lord, Lord Russell, the noble Earl, Lord Clancarty, and others emphasised, those industries are worth £101 billion to our GDP. Since 2010, the GVA of the creative industries has increased by a massive 53.1%. Encompassing the cultural sector, as those industries do, they now generate 5.5% of the UK economy.

One could mention many other statistics. One of the most interesting was raised by the noble Earl, Lord Kinnoull, about the workforce producing visual effects in films and our dependence in that sector on EU workers, with 25% of those in the visual effects industry coming from the EU—and 30% in gaming. Both are extremely important components of our creative industries. In a survey by the Creative Industries Federation last year, 74% of those in the UK’s creative industries said that they believed restricting immigration would severely limit their capacity to do business, while in its 2017 Global Talent Report the federation stressed the need for the Government to allow businesses to bring in EEA workers who do not meet the salary threshold of £30,000, which has of course been mentioned. Almost every noble Lord emphasised that this is an industry where “highly skilled” often does not equate to “highly paid”.

No wonder the Creative Industries Federation reacted so strongly against the Migration Advisory Committee report EEA Migration in the UK, published at the end of last year, and the White Paper on future skills-based immigration, which came after it. The report argued that EEA citizens should have no preferential access post Brexit and should fall under the current non-EU immigration system, including the £30,000 Tier 2 salary threshold. Many noble Lords mentioned that, including the noble Lord, Lord Bilimoria, and, at Question Time today, my noble friend Lady Bonham-Carter. Alan Bishop, the CEO of the CIF, said in response to the Migration Advisory Committee’s report:

“The Federation has made clear that using the UK’s current visa system for both EEA and non-EEA citizens would strangle access to vital international talent”.


The analysis by the noble Earl, Lord Kinnoull, was particularly convincing: it showed that 45% of the workforce in that sector are self-employed and therefore that the proposal will not be of any use even if they could meet the £30,000 threshold. In response to the White Paper, the CIF made it clear that the current salary threshold of £30,000 is too blunt an instrument and not fit for purpose if applied to EU permanent workers.

Let us look at the impact on our artists going to Europe. As many noble Lords said, so much of the committee’s report is focused on the touring aspects. The music industry, as everybody has described, is of huge importance: in 2017, £2.6 billion of export revenue was generated by music. Germany, France and Sweden are in our top export markets, and are major destinations for our musicians. I am going to make an exception and not repeat all the ISM survey points; I thought that they were all relevant and made a great impact. The ISM deserves our thanks for having taken the trouble to put together such a cogent survey. Its previous survey last July demonstrated that more than a third of musicians said that they received at least half their income from working in the EU 27. That is a pretty stunning figure.

The impact of an impending Brexit on musicians has increased since the previous survey. There is a clear rise in concern by musicians; if they were not concerned at the outset of these surveys in 2016, they certainly are now. More than 50% of musicians said that they had noticed an impact on their work as a result of Brexit. The noble Earl, Lord Clancarty, made particular reference to that.

All this demonstrates that musicians, in particular, rely on being able to work and tour in Europe freely, easily and often with very little notice. It is equally important that other people vital to touring, such as roadies and technical staff, are able to travel on the same basis. It is also vital that instruments and equipment can be moved around easily when touring, as a number of noble Lords said. There is a real concern about the future in that respect—musicians very much want to avoid the reintroduction of anything like a carnet. There are several “old rockers” who remember the bad old days in the 1960s when they had to get carnets to lug their equipment around Europe. Experience in third countries such as the US is very frustrating for artists.

The leaving the EU White Paper said that the UK would look to reach an agreement allowing musicians and museums to tour major events with their equipment and goods. What is considered a major event? It is not clarified in any government communication and there are few details of what an agreement would look like. As many noble Lords have said, there will need to be considerable changes to these proposals if the Government are to ensure that sectors such as the creative industries continue to thrive post Brexit. There is still a huge lack of clarity, with a chorus of criticism from UK Music, the MU and the ISM, among others. UK Music expressed its strong concerns in a letter directly to the Prime Minister last December, but the response was thin gruel compared to the size of the issue. A number of noble Lords have mentioned the Minister’s response to the Select Committee report—I think that was pretty thin gruel as well. I say to the noble Lord, Lord Russell, “Not many oysters there”.

Top UK musicians wrote an open letter, as mentioned by the noble Lord, Lord Bilimoria; Organised by Bob Geldof and backed by dozens of pop, rock and classical heavyweights, including Ed Sheeran, Rita Ora and Damon Albarn, it called for a rethink on Brexit and explained why Europe is so important to the music industry. I shall not repeat the quotes, but they expressed very great concern, and that is why the recommendations in the Select Committee report are so important. Its recommendation in paragraph 59 is particularly important, asking the Government to seek a commitment to an EU-wide, multicountry, multi-entry short-term touring visa for UK citizens. Many noble Lords re-emphasised that today.

As the committee says, these must be reciprocal arrangements. Otherwise, as the MU says:

“Our reputation as a country that embraces all arts and culture will be severely damaged”.


That is why the final recommendation in paragraph 60 is so important. As the noble Lord, Lord Inglewood, pointed out, we already have reciprocity, and it is a fine thing to have that existing arrangement within the EU.

Of course, many other issues need to be tackled to ensure continuing mobility for our artists. There are social security issues, which are dealt with in the committee’s report; there are issues relating to the movement of instruments which are covered by CITES, as mentioned by the noble Lord, Lord Lipsey; and there are health insurance issues. The MU calls for consideration of a permitted paid engagement scheme and permit-free festival arrangements—we have heard already about some of the problems with Edinburgh, WOMAD and Llangollen. We need those arrangements in place.

I hope that we will get satisfactory answers from the Minister—or more satisfactory answers than we have had from the Government to date—but in the face of the serious consequences of a lack of mobility for the sector after Brexit, it is appropriate in this debate to say it in music. On these Benches, as Fred Astaire and Ginger Rogers sang in the film “Shall We Dance”, we say: “Let’s call the whole thing off”.