Telecommunications Infrastructure (Leasehold Property) Bill

Lord Fox Excerpts

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

[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.

[Lord Haselhurst]

I should say—by the way, my internet connection is unstable—that I did not mean to make a speech on this amendment nor indeed on the other one that bears my name. I was able to cover the issue in my earlier speech, which was more broad-ranging than on just that particular amendment. All I will add now that you have been good enough to call me, Deputy Chairman, is that the Secretary of State has been left with very wide regulatory powers. This was considered by the Delegated Powers Committee and quite deliberately left in a wide form. I therefore hope that this addition can be made in the fairly near future.

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[Lord Parkinson of Whitley Bay]

I thank noble Lords for their brevity in outlining the purpose of this probing amendment. I shall try to be similarly brief in response.

I certainly welcome the intention behind this amendment—namely, to clarify which premises other than multiple-dwelling buildings such as blocks of flats might be in scope of the Bill and why. The decision initially to include only multiple-dwelling buildings is deliberate. It was informed by careful consideration of the evidence that was made available to us, not least through the consultation that was held before the Bill was drawn up and introduced. That evidence indicated that specifically this type of premises—multiple-dwelling buildings—most needed the sort of targeted intervention that is proposed in the Bill. We were not, by contrast, presented with compelling evidence for other types of property at this stage and certainly not enough to justify legislating at this point. However, we recognise that such evidence might emerge in time and we are mindful that office blocks or business parks, which the noble Lord, Lord Clement Jones, mentioned, could face similar issues. We continue to engage with providers and others about this.

The noble Lord, Lord Clement-Jones, asked how far our ambition stretches: as far as the evidence suggests. This is why we have included a clear power in the Bill for the Secretary of State to make regulations, should they be needed, to widen the scope of the Bill and make it apply to other premises of a specified description. That will allow the Secretary of State to legislate in a flexible and proportionate way, led by the evidence. This approach will allow the Government to continue to engage with interested parties, as well as to consider and balance the evidence that becomes available to us. Crucially, it will also help to guard against any unintended consequences that could arise from widening the scope of the Bill too quickly, before there is sufficient evidence to support doing so.

The noble Lord raised a point about new-build developments. The Government have set out plans to ensure that new-build homes in England are built with gigabit broadband by amending the 2010 building regulations to require developers of new-builds to install the infrastructure necessary to make them gigabit-capable. As we set out in our consultation response published on 17 March this year, the Building Act 1984 contains the necessary primary powers that would mandate the installation of gigabit broadband in new build developments. To include the new-build developments in the Bill in the way proposed by this amendment is therefore unnecessary, and could hamper the simple and proportionate approach we have set out in the consultation response.

I should add that, as housing is a devolved matter, the Government are also working closely with the devolved Administrations on this. I hope that I have been able to demonstrate that we have firm proposals in place to address the issues raised, and that the noble Lord will feel able to withdraw his amendment.

[Lord Fox]

I thank the Minister for his response. I shall be brief. The Minister talked about the absence of overwhelming evidence and said that, if this evidence were to come to light, we would be treated to a statutory instrument in order to implement or extend this Bill. What in the Government’s view is overwhelming evidence? What actually constitutes evidence that people require this? It is quite clear that people living in the wider group of residences as set out by my noble friend Lord Clement-Jones want access, so what do they have to do to overwhelm the Government in order to bring forth one of their statutory instruments?

[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.

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[The Deputy Chairman of Committees]

I understand that the noble Lord, Lord Fox, has indicated that he wishes to speak after the Minister.

[Lord Fox]

I thank the Minister for her anatomical explanation of the situation. Large lumps of Victorian and Georgian cityscapes have been converted into a multiplicity of dwellings and flats, many of which are going to find themselves unable, within the definitions of limbs (a) and (b) and the rules set out in the Bill, to request access. Is that correct? There is obviously complicated ownership in all such places: perhaps the need to go through one flat to get to another; there may be leaseholds and freeholds muddled up. However, the point of the Bill should be to get gigabit broadband capacity to as many people as possible, rather than rule out everybody except a very pure clay of candidates. Perhaps the Minister is grasping—albeit eloquently—at the wrong end of this stick.

[Baroness Barran]

I thank the noble Lord for pressing this point. I cannot comment on the specifics of different layouts. As he noted, this is a very complicated area. We have tried to listen to operators on the issue of unresponsive landowners more widely and they have highlighted difficulties where there are owners of third-party land which the operator needs to cross in order to deploy their equipment.

As I said, we are very concerned that the risk of a non-responsive landlord and the operator then getting code rights would be disproportionate and would unbalance the Bill. However, the noble Lord makes a fair point about the spirit of the Bill being to open up access. We certainly share that goal and I will take his points back and consider them further.

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[Lord Fox]

I agree with the two previous speakers. The Bill would mean that a landlord could be considered responsive simply by acknowledging the request notice in writing without taking the engagement further. In fact, it is pure territory for what I would call passive-aggressive obfuscation—a serious of meaningless letters going back and forth but leading, in the end, to absolutely nothing. It would mean, in the end, the operator being unable to meet the needs of the potential customer. Frankly, the operators have so many other options at the moment that they would simply walk away and go where it is easier to install, leaving yet another person disfranchised from the digital economy. We have heard from operators that they are identifying landlords who will potentially act in this way.

Again, this is a proving amendment; I thank the noble Lord for moving it. What constitutes a meaningful response that moves this forward? Put simply, a passive-aggressive, obfuscatory approach will mean that, in the end, a bad landlord or a landlord who really does not want to enfranchise their tenants will win.

[Baroness Barran]

My Lords, I thank noble Lords for tabling the amendments, which would require a landlord to respond to the substantive point of the notice—that is, providing access. The amendments seek to examine our thinking on allowing a landlord to remove themselves from the scope of Part 4A simply by responding to the operator’s notice. The Government understand and appreciate the intention behind the amendments, but there is the potential for unintended consequences, if the noble Lord, Lord Clement-Jones, will forgive me for saying so.

The Bill was created to address the specific problem of the repeatedly unresponsive landlord. That is what telecoms operators have told us is one of the biggest issues they face when it comes to rolling out networks. The Bill was not intended to offer a solution to instances where a landlord may take longer than the operator would like to agree to the terms proposed in their request notices. The noble Lord, Lord Fox, gave the example of the passive-aggressive landlord, but there could be absolutely fair instances where a landlord sends a holding response because they are seeking legal advice. The Bill gives flexibility for that, but its real focus is on incentivising landlords and operators to engage with each other in the first place. We believe that the Bill, as drafted, reflects that crucial distinction.

As was discussed in the debate on previous amendments, we are aware of the challenges that some operators face in reaching agreements with landlords. We have held numerous discussions with a wide range of stakeholders since the implementation of the reforms to the Electronic Communications Code in December 2017, and we continue to do so, but we do not think that this Bill is the appropriate vehicle for addressing the wider range of ongoing access issues. Any broader changes to the code would need to be carefully considered and consulted on, but if we saw sufficient evidence that there is a problem, we would of course consider what intervention to take.

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[The Deputy Chairman of Committees]

Apologies for skipping over you, Lord Stevenson. We will try the noble Lord, Lord Haselhurst, again. He is not there. Lord Liddle? We go then to the noble Lord, Lord Fox.

[Lord Fox]

I am grateful to the noble Lord, Lord Adonis, for introducing this, because it throws up a sort of paradox—although the noble Lord did not mention it—and I am interested to know the Government’s view on it. In certain categories of installation government money is going across either directly or through local authorities into investment in installation and hardware. Are the Government suggesting that state-subsidised and state-supported hardware would not be mandatorily interchangeable?

[Baroness Barran]

My Lords, I thank the noble Lords, Lord Adonis, Lord Griffiths and Lord Stevenson of Balmacara, for tabling Amendments 15 and 16. As I have said several times in Committee, the aim of the Bill is to support lessees in occupation to access the services they request from the providers they want. As drafted, we believe the Bill already ensures that they are not locked into services provided by a single provider. Nothing in this Bill prevents a person with an existing gigabit-capable—or indeed any—connection from requesting another service from another network provider. Nothing in the Bill prevents such a provider from requesting code rights from a landlord. If the landlord repeatedly refuses to engage with that provider, then, as we discussed earlier, that provider could apply for a Part 4A order of their own to deliver the service.

I understand that operators may be concerned that certain of their competitors may install their digital infrastructure in such a way as to physically prevent others installing their own. However, we consider that this issue could be better dealt with through the terms of an agreement imposed by a Part 4A order. Those terms are to be specified in regulations made subject to the affirmative resolution procedure. Noble Lords will be aware that the Delegated Powers and Regulatory Reform Committee recently considered the Bill and concluded that there was nothing in it to which it wished to draw the House’s attention. Noble Lords may also be aware that that particular regulation-making power is subject to a consultation requirement that is expressly set out in the Bill. This reflects our concern and commitment to get this crucial aspect of the Bill’s practical operation right. The Bill therefore already envisages that the views of interested parties will be invited before the regulations are made.

With each operator undertaking works in a slightly different manner and there being a number of differences between network infrastructures, it is exceptionally difficult to place into primary legislation a requirement for operators to undertake works in a specific way or in a way that cannot easily be circumvented, for example by an operator stating that it was not “reasonably practicable” to select and install apparatus. Furthermore, far from improving competition and access to gigabit services, the amendment may have the unintended consequence of doing the opposite.

The noble Lord, Lord Adonis, referred to the words of my honourable friend the Minister for Digital Infrastructure in the other place, when he said that much of the cost to operators of connecting premises is in the initial installation. The noble Lord challenged whether this was an anti-competitive statement, if I followed his comments accurately.

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[The Deputy Chairman of Committees]

In that case, we will move on to the noble Lord, Lord Fox.

[Lord Fox]

Amendment 17 seeks to remove the 18-month time limit, while Amendment 19 seeks a mechanism that would extend it. Both amendments are guided by the same curiosity. In a sense, what was driving the Government’s objective in including the limit of 18 months? As the noble Lord, Lord Stevenson, asked, why was the period of 18 months chosen? Why not 20, 16 or 28? What was the economic analysis that arrived at 18 months? In consulting with operators, what was it that any operator said that encouraged the Government to put this clause in? I cannot imagine it was anything, so I can conclude only that it was about what grant is set. We are back on the same balance of the equation in terms of where the Bill balances itself between the granters and the operators, who are essentially the champions of the consumer in this process.

Can the Minister explain what it was that the granters, landlords and owners put to the Government that pushed them into putting in this 18-month time limit? As the noble Lord, Lord Stevenson, said, it will seriously compromise the investment prospects for operators, particularly in difficult or harder-to-reach areas––possibly places like where I come from in Herefordshire. Why would an operator invest huge sums of money without any security, knowing that in 18 months’ time that investment could be written down to zero? These amendments together are all part of the same spirit of inquiry. What was the Government’s thinking when this was included in the Bill?

[Baroness Barran]

I thank noble Lords for tabling Amendments 17 and 18. I will do my best to address the very valid points raised.

I will clarify the intention of the amendments. Amendment 17 seeks to examine the rationale for placing a maximum time period of 18 months for the interim code rights granted under a Part 4A order in the Bill. Amendment 18 would require the Government to consult on the maximum time period for which the interim code rights should last. I want to highlight, in response particularly to the point made by the noble Lord, Lord Stevenson of Balmacara, that the Government have already consulted on the principle that there should be a period during which code rights arising from this Bill should last.

In the original consultation for this policy in October 2018, we proposed that these rights should be enjoyed until an agreement was reached with a landowner. A number of responses to that consultation made compelling arguments that we should consider imposing a maximum time limit. This was to ensure that operators continued to engage with landowners to try to reach a permanent agreement, and to ensure that the important balance of rights was maintained. I hope noble Lords agree that an indefinite time period could risk being open to abuse, deliberate or otherwise, and importantly potentially leave both landowners and operators with great uncertainty.

It was never the intention that this process should replace the existing process under the code, by which an operator can apply to the court to have permanent code rights imposed. That process requires the judiciary to carefully consider the merits of the case before it, and to make a judgment on which rights should be imposed, and potentially any compensation or consideration to be paid. The process envisaged under a Part 4A order requires the judiciary––in this case, the First-tier Tribunal––to be satisfied that the evidential requirements laid out in the Bill have been met.

This leads us to the maximum 18-month time limit that we have settled on. Following consultation and subsequent stakeholder engagement with representatives of operators and landowners, they informed us that, in practice, when a landowner does not respond to requests for access, if an operator continues to make attempts to engage, the majority of landowners will eventually respond within approximately 12 months. Setting a slightly longer time period gives the operator a degree of flexibility. Another reason for the decision to set the time limit for the Part 4A interim code rights at 18 months was to provide certainty to consumers. Most consumer broadband contracts last for either 12, 18 or 24 months. Placing the time limit at 18 months, depending on the speed with which the operator can enter the property after a successful application, will allow consumers to enter into a standard contract for either 12 or 18 months, enjoy the special discounts offered by retail broadband providers for those taking out such fixed-term deals, and be confident that their service will be uninterrupted for its full duration.

I ask your Lordships to note that the Bill contains a clear power to make regulations to specify the period for which code rights arising from the making of a Part 4A order are to last. New paragraph 27G(3) of the code, as inserted by Clause 1 of this Bill, makes clear that the specified period is to be no more than 18 months, and it will be for the regulations made under that power to specify the period itself.

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I hope this demonstrates that we have thought carefully and listened hard to all stakeholders about how long interim code rights should be imposed for, and that it was our consultation in the first place that informed our current position. With that reassurance, I hope that the noble Lord will agree to withdraw the amendment.

[Lord Fox]

I thank the Minister for her answer; I felt the language was revealing. Perhaps I am confused and the legislation has confused me, but the way in which she described the process was as if she was trying to calm down someone who did not want this to happen, rather than encourage someone who did. “No more than”, “a maximum of”—this is language that I would use if I were trying to pacify someone who did not want this to happen, which perhaps is what is happening. She mentioned that there had been a number of responses that led to the 18-month period being adopted. Perhaps she could indicate, without revealing exactly who those responses were from, which sector they came from—was it the operators, or was it landowners and potential granters of this technology?

I think that to use legislative nit-picking, if the Minister will excuse the phrase, to unseat probing amendments such as Amendment 19 is a little below the belt. The idea is not to complete a work of drafting genius; it is to get the Government to commit time to produce something that instils some flexibility into the Bill and provides an opportunity to extend things when they need to be extended and puts the courts and due process, if noble Lords will excuse the phrase, in place in order for that to happen.

[Baroness Barran]

I thank the noble Lord for his remarks. Just to clarify, I am sorry if the language sounded pacifying. The noble Lord will remember that in an earlier amendment I talked about the spirit of the Bill being about incentivising communication between landowners and operators. The aim of this is to bring clarity and certainty to all involved, including consumers.

In the consultation we had responses from landowners and local authorities. The noble Lord will not be surprised to know that some who responded thought this was too short a period and some that it was too long, so this feels like a bit of a Goldilocks moment. There is a balance to be struck between the flexibility that the noble Lord rightly points to and clarity and certainty. Based on the consultation responses that we received, we hope that we have achieved that balance.

Telecommunications Infrastructure (Leasehold Property) Bill

Lord Fox Excerpts

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

[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?

[Lord Adonis (Lab)]

Am I coming through loud and clear? I suddenly have the Throne as my picture on the screen. Should I be worried?

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Moved by

[Lord Fox]

21: After Clause 2, insert the following new Clause—
“Review of this Act's impact on 1 gigabit broadband accessibility
(1) Within six months of the passing of this Act, the Secretary of State must lay before Parliament a review of the impact of this Act on the Government’s progress towards achieving access to 1 gigabit per second broadband in every premises in the United Kingdom by 2025.(2) The review must make a recommendation as to whether the Government should bring forward further legislation to achieve access to 1 gigabit per second broadband in every premises in the United Kingdom by 2025 in light of the findings of the review.(3) The Secretary of State must lay before Parliament a further review in the same terms as subsection (1) every 12 months after the initial review has been laid.”Member’s explanatory statement
This amendment would require the Government to review the impact of this Bill in achieving access to 1 gigabit per second broadband in every premises in the UK by 2025.

[Lord Fox]

My Lords, given the peculiar nature of this debate, I have not made a Second Reading speech. Much of what I wanted to say at Second Reading coincides with what I wish to say on Amendment 21, so I decided to save your Lordships from a double helping. I propose to make a couple of short Second Reading-type comments, and then I will turn to Amendment 21 and refer to Amendment 22.

Before ever the Bill reached our end, like other noble Lords I received a letter from the Minister. It spelled out that the Bill has a specific and relatively narrow purpose and we should not be tempted to open it out. The noble Baroness, Lady Falkner of Margravine, and the noble Lord, Lord Alton, introduced amendments that sought to open things out. I do not propose to repeat their arguments here although, looking at the speakers’ list, there may be some who do. However, since that first day in Committee, the Government seem to have changed their position on technology. Can the Minister update us on what security reviews are now under way within Her Majesty’s Government? When will your Lordships’ House be presented with the result of those security reviews? To that end, when will the telecoms security Bill be introduced?

On the first day in Committee there were a number of speeches from all sides of the House about the need for an industrial strategy, and I associate myself with them. Her Majesty’s Government have considerable leverage, given their huge investment in this endeavour, and they should use that leverage to help develop indigenous capability and capacity in a similar way to how my right honourable friend Sir Edward Davey, when he was Energy Secretary, leveraged the development of offshore wind technology to create an industry, particularly in the north of England. We should ensure that operators and tier-one suppliers develop significant UK-based technology and manufacturing. It seems that there are talks along these lines going on within government, so can the Minister clarify who the Government are speaking with about telecoms technology and industrial strategy and how this will be presented to Parliament?

In short, we need a Bill that brings back all these issues—security, human rights, which were raised by the noble Lord, Lord Alton, and industrial strategy—because for the UK to get the connectivity it deserves and needs, the decision must be made now and quickly. This is not a matter of mild curiosity for Members; it is vital information for security providers. They need to know where they are before they can get on with connecting the United Kingdom.

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[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

As no further Members have indicated that they wish to speak, I call the noble Lord, Lord Fox.

[Lord Fox]

I thank the Minister for his comprehensive response, which I will come to in a minute. I also thank all noble Lords for their response to the debate; it has been an interesting one, which has very much given evidence of the fact that we need a much wider Bill and a much wider level of discussion across the piece, whether we agree or otherwise.

I thank the noble Lord, Lord Blencathra, for introducing at the beginning the lies and sleights of advertising. To be clear, if someone is offering 1 gigabit and you are getting only 750 megabits down the line, that is a lot better than what I am getting now. To some extent, the bigger the target, the closer we get to what we need.

There is another issue, to do with empowerment, which none of us talked about: upload speeds. Noble Lords did talk about issues in rural areas, however. We heard voices from west Cumbria, Wales and Northern Ireland—and here I will of course play my Herefordshire card. For businesses to be empowered, and to plug into the recovery of our economy, they need to be able to upload, because that is how they sell things to other people and make money.

As the noble Lords, Lord Blunkett, Lord Bhatia and Lord Liddle, said, this is about equality and fairness. As a Parliament, we must stand up for the people who have the very worst delivery. The noble Lord, Lord Adonis, introduced the idea of the USO, and the Minister responded. We have a USO of 10 megabits, but compare that to the postal service. We have only a first and second-class postal system, but a fifth-class stamp would be needed to reproduce the levels of service in some parts of the areas I have just described. So I say yes to a USO, but it has to be a USO that really delivers.

The noble Lord, Lord Empey, also introduced some industrial nostalgia, which I sign up to. But in this context, I add Plessey, GEC and Marconi. Where are they when we need them? The answer is that we did not have an industrial strategy when we needed it. We have to recover ground on some of those issues.

The noble Baroness, Lady Falkner of Margravine, seemed to sign up to the Government’s target of 2025 but then pushed out for six months, on the basis that it was too soon. The longer she leaves it, the more it becomes a self-defeating exercise, because 2025 is coming over the hill. We talked about rural, but it is not just rural. The noble Lord, Lord Kennedy, and others raised the issue of multioccupancy and the large proportion of the urban poor who need access to get the equality referred to by the noble Lords, Lord Blunkett and Lord Bhatia.

I have one response to the Minister’s overall Second Reading comments. I am pleased that he reaffirmed 2025 and talked about the £5 billion investment programme. That underlines the Government’s leverage in this area, which should be used to the overall advantage of the United Kingdom and not sold off to the cheapest bidders. We have to look at that.

In his response to Amendment 21, the Minister said that it addressed a specific issue. It is so narrow in its ambition that it actually addresses a specific issue within a specific issue. The point made forcefully and helpfully by the noble Lord, Lord Stevenson—for which I thank him—is that the operators are not dancing down the street in response to this measure. They are all saying that it misses a trick; it misses an opportunity. Between now and Report, if the Government have a chance to go back and talk to those operators and listen, as they say they are doing, they will hear that there is a lot more to do. The Minister seems to be hiding behind Ofcom. It is the Government’s job to lead—to direct and point the direction of this policy. This point was made forcefully and ably by the noble Lord, Lord Liddle. My argument is not with Ofcom: it is with the Government’s lack of leadership. To push Ofcom in front of the Government is to use it as something of a human shield, whereas it is the Government who have to push this and deliver it. I am sure Ofcom would be fully able to support that.

My final point is about inconsistencies. This seems incredibly well confected. Well done to the Government, because my amendment says “access”. It does not say that there has to be a pipe and it does not say that there cannot be 5G. “Access” is a technology-neutral word. If the Minister has a problem with that and wants to use a word that the department feels is more consistent with existing legislation, I am sure we are all big enough to take that on. On Amendment 22, does it seem so scary for the Government to switch to the affirmative approach? I shall leave that where it lies.

In conclusion, I am grateful to the noble Lord, Lord Liddle, for introducing the idea of the Government’s planned “raft” of legislation. At best, this is a plank, and these amendments seek to varnish it a bit. We need a lot more evidence of the Government’s legislative determination to deliver on their goal. We will look closely at the Government’s response on Report. Listening to other Members and the outside world, I think it is clear that the Government have got the tone of the Bill wrong. That said, I beg leave to withdraw the amendment.

Amendment 21 withdrawn.

Telecommunications Infrastructure (Leasehold Property) Bill

Lord Fox Excerpts

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

[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.

[The Deputy Speaker]

I understand that the noble Lord, Lord Stevenson of Balmacara, does not wish to speak, so I call the noble Baroness, Lady Meacher.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I appreciate the way that the House authorities and all Benches have worked to enable us to challenge the Government safely, and am glad to conduct our business from the safety of isolation.

I support this amendment introduced by the powerful speeches of those sponsoring it and that of my noble friend Lady O’Loan. She described the horrors, yet many more as yet undescribed are happening. We are horrified at home by even small acts of violence towards people whose characteristics are protected in our laws, so how can we ignore gross violations elsewhere, turn a blind eye and pretend all is well out of convenience to ourselves?

History repeats itself. In the Second World War, in the early 1940s, concentration camp victims were used as workers by Siemens and many others. Now, we have ever-growing evidence of gross abuses of human rights in China. The chilling evidence from the independent tribunal of Geoffrey Nice QC found overwhelming evidence of forced organ harvesting. Yet we fail to act on its findings. We need legislative teeth, not sympathetic noises and wringing of hands. Professor Zenz’s report, published today, reveals the forced sterilisation of Uighur women in Xinjiang and the high internment rate of women in retraining camps. His supplementary paper on the relationship with Huawei, also published today, finishes:

“We must conclude that Huawei is directly implicated in Beijing police state and related human rights violations in Xinjiang, and that it has lied to the public about this fact on at least two different occasions.”


We must not be actors in history repeating itself because anything looks convenient or a bargain. We must not become complicit in human rights abuses on a massive scale. I will borrow the words of Andrew Griffiths, the then honourable Member for Burton, in a debate last March on forced organ harvesting:

“we have seen this before ... If we look at history, we see that there were opportunities for Governments to intervene and act, but they did not”.—[Official Report, Commons, 21/3/19; col. 46WH.]

Now is the time to say “This must stop” and to uphold our values in all our commercial dealings. We must develop other supply chains. We must produce our own consumables, PPE and hospital equipment, not only telecoms equipment. However, as the noble Lord, Lord Balfe, said, we must start somewhere. If my noble friends, led by the noble Lord, Lord Alton, test the opinion of the House, I will vote “Content” with them. If not, we must hold the Government to account to bring forward proper protection of human rights, and it will be to our shame if we do not act.

[Lord Fox (LD)]

My Lords, I was going to promise to be brief but, after the attempt of the noble Lord, Lord Holmes of Richmond, I am not quite going to match his brevity. We have heard some very powerful speeches and some very broad speeches today, and noble Lords are to be commended for that. However, there is one group of people who have not yet been mentioned, and that is the management and the directors of the companies potentially sourcing equipment to deliver the infrastructure in this country. Every company, in any business sector, has the potential to impact a range of human rights issues, and it is up to the board of that company to understand the impact it is having and to deal with it. This amendment, powerfully spoken to by the noble Lord, Lord Alton, and others, sends an important signal to businesses in this sector.

In her speech, I think I heard the Minister say that the impact was transferred from the equipment suppliers to the operators. Well, the operators are the people who source this equipment. Their boards have a responsibility to their shareholders and wider society to make sure that they do the right thing. It is clear that more boards are taking these issues more seriously, and this debate and subsequent changes should provide more emphasis for future boards and those future discussions. It has also permeated into the fund management world. Increasingly, investors look to invest in companies that act ethically and do the right thing.

This has been a huge debate but, narrowly speaking, we should expect our companies in this country to act ethically, and we should, as legislators, give companies as much guidance as we can regarding what that means in principle. That has been the nature of this debate.

Therefore, if the noble Lord, Lord Alton, decides to press this vote, we will support this amendment from these Benches, as we have said. If, however, he chooses to discuss with the Minister bringing something back on Third Reading, we would also support that—but what is brought back has to be substantive; it has to be real. I do not think the mood of the House can be satisfied by something that seems to push this into the long grass.

--- 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.

--- Later in debate ---

[Lord Fox]

My Lords, I am glad to follow my colleague, my noble friend Lord Clement-Jones. This amendment is largely built on Amendment 21 from Committee. During the response to that amendment, the noble Lord, Lord Parkinson, described the Bill as

“one discrete instrument in the Government’s overall strategy for speeding up the deployment of gigabit broadband.”—[Official Report, 2/6/20; col. 1331.]

What are the other discrete elements of this strategy? What other legislative elements are there? My understanding is that this is the only legislative element currently available—leaving aside the security Bill, which is entirely different and not focused on the delivery of gigabit speeds—which is why I, the noble Lord, Lord Stevenson, and others seek to use this as an opportunity for the Government to reaffirm their commitment to one gigabit by 2025. As my noble friend Lord Clement-Jones asked, is 2025 still serious, when the Minister is now using the language of “as soon as possible”, which of course means many things to many people?

This amendment calls for a review of the impact of this Act on the Electronic Communications Code, focusing in particular on progress towards that one-gigabit target by 2025 and looking at whether we should grant rights of access to telecom operators akin to those enjoyed by other utilities. The review would also make recommendations for future amendments and legislation.

As I said in Committee, there is an urgent need to inject some adrenaline into the Bill, as we have seen in other areas, in delivering the 2025 target. Proposed new subsection (1) of the new clause envisioned by this amendment causes Her Majesty’s Government to review the impact of this Bill on the delivery of one-gigabit broadband to every home and business by 2025. As my noble friend pointed out, this is not an unreasonable target, given that it is the Prime Minister’s stated aim and therefore the stated aim of Her Majesty’s Government. We feel that this will be helpful to the department and the Government.

The second proposed new subsection backs this up by requiring the Government to look at what is needed to deliver sufficient support. As my noble friend Lord Clement-Jones just pointed out, there has been significant dialogue around the meaning of “utility”. I too appreciate the response from the Minister and the department. The gist of that response is that there is no single definition of what a utility has or is. I am sure that they are right, because the needs of electricity are different from the needs of water. The industries and their histories are different. Therefore, one would not expect a consistent picture, given how British law is constructed.

However, there is one overriding similarity: the complete assumption that every dwelling and business should have access to electricity, water and so on. These utilities come with a sense of assurance, a halo of necessity, and the legislation around them delivers on that. For all the assurances we have had from the Minister and the Government, this and previous Bills do not give that similar assurance for telecoms infra- structure enjoyed by those other things we call utilities. That is why this amendment is important; it promotes the cause of telecoms infrastructure as a modern-day necessity. If we ever needed evidence of that, this crisis has delivered it. Every day we see in the House of Lords the huge variation and poverty of connection that even your Lordships enjoy, never mind people across the rest of this country. That is why it is important and why the spirit of treating it like a utility is central to this amendment.

Subsection (3) calls for widespread consultation and sensible measures to ensure that both tenants and landowners are listened to. The Minister talked about maintaining the balance between landowners, tenants and property owners; subsection (3) allows that balance to be continued. Subsections (4), (5) and (6) ensure that the review is laid before Parliament within a year and looks at the scope of the code.

At its core, I really do not see why this is objectionable to the Minister or the Government. Indeed, as I have said, it is helpful in that it codifies the Prime Minister’s words into something tangible. That is why we on these Benches and Liberal Democrat Peers attending virtually will support the amendment if it goes to a vote.

[Baroness Barran]

My Lords, I thank the noble Lords for tabling this amendment, which I note is a revised version of the amendment tabled in Committee. I very much appreciate the spirit of this amendment, as set out by the noble Lord, Lord Stevenson. It is designed to be supportive of gigabit broadband deployment and to ensure that the legislative and regulatory environments support that deployment.

As we have discussed on several occasions this afternoon, this Bill has been introduced to address a specific issue. It is not, and has never been intended as, a panacea for the rollout of gigabit connectivity; it is one element of a multifaceted approach to improving the nation’s connectivity. In a moment I will try to set out some more elements of that approach.

I remind noble Lords that we are also bringing forward legislation to ensure that gigabit connectivity is provided to all new-build developments; working to improve the street works regime so that it works better for broadband deployment; and investing £5 billion in areas the market alone is unlikely to reach—which the noble Baroness, Lady Wilcox of Newport, quite rightly highlighted.

This measure was designed from the outset to be a precision instrument that supports the 10 million people living in apartment blocks in the UK to access better broadband. It is on this point—the idea of better broadband—that I feel I should begin. We are confident that Part 4A orders will be used by operators predominantly to deliver gigabit-capable connections, as we discussed in Committee, but the Bill does not mention gigabit-capable networks. For that matter, it does not mention broadband, 5G or any type of connection. As noble Lords know, 1 gigabit connectivity is not tech-neutral; not all forms of broadband can deliver 1 gigabit per second of connectivity. For example, copper-based superfast connections would not be able to do that.

The Electronic Communications Code, of which the Bill will form a constituent part, does not mention broadband; nor does it mention any connection speed or anything about the technology installed. The Bill and the code are technology-neutral; I believe there was some confusion on this in Committee. To put that another way: the code deals with the how, where and when of deployment, not about what is installed. I am making this point again because technological neutrality is important, as it allows a consumer to get the connectivity they need from the operator they want at the best price.

None of this is to detract from noble Lords’ appetite to ensure that the Government are on track to deliver gigabit-capable connections, which is entirely understandable and reasonable. Many noble Lords will know that there are already ways in which some or all of the amendment’s effects can be achieved without the need for the amendment. I will give three examples.

First, Ofcom publishes its annual Connected Nations report, which it updates two further times each year. It provides a clear assessment of the progress that the country is making in providing connectivity, both fixed and mobile. I hope your Lordships would agree that the regulator, which is independent of government, is well placed to provide information on the progress of gigabit-capable broadband.

Secondly, the Government continue to answer questions and provide clarity on any aspects of its work in this area, in both this House and the other place. Noble Lords are familiar with asking questions and I endeavour, as always, to answer them.

Thirdly, in this House and in the other place there are established means of scrutiny through Select Committees. Indeed, the DCMS Select Committee in the other place has already launched an inquiry into the Government’s gigabit broadband ambitions. That committee has made it clear that it will

“focus on how realistic the ambition is, what is needed to achieve it, and what the Government’s target will mean for businesses and consumers.”

I hope that that goes to the heart of the spirit of the amendment.

The amendment also asks us to reconsider giving telecoms operators similar rights to access land as those enjoyed by gas, water and electricity operators. This is entirely understandable: the coronavirus pandemic has thrown into sharp relief the increased need for fast, reliable and resilient networks. Indeed, the argument was well made in Committee and I have had further conversations on the issue since then.

It is important to be specific when talking about operators’ access to land. The Electronic Communications Code provides a degree of operational flexibility to telecoms operators. The amendment talks of rights of access “akin” to those of gas, water and electricity. I would be interested to understand precisely where noble Lords think telecoms operators might be disadvantaged. Indeed, the Bill gives them a simple way to apply for rights to gain access to land where there is an unresponsive landlord. It is already giving them more.

That said, I will concede that the rights of telecoms operators are not identical to those of gas, water or electricity operators, but nor do they need to be; they are comparable in many important ways. The code gives operators a framework that incentivises them and landowners to reach a duly negotiated agreement. If, for whatever reason, an agreement is unable to be reached, it allows an application to be made with the court to have rights imposed. Also, Schedule 4 to the Communications Act 2003 makes provision for them to compulsorily purchase land. I hope noble Lords agree that these are quite significant powers. To be clear, there are differences, but I think we would all recognise that certain rights of entry and access are to be expected due to the nature of the gas, water and electricity networks, not least given the potential threat to life that even a minor fault could cause.

In Committee, the noble Lord, Lord Stevenson, asked why we had gone back on our assertion in the future telecoms infrastructure review about giving operators similar powers to utilities. I wonder whether some of the issues around that come from that statement in the infrastructure review.

As I tried to point out in Committee, the consultation for the Bill explored the possibility of giving telecoms operators a warrant of entry through the magistrates’ court, similar to the process for operators of other utilities. However, the responses to the consultation made it clear that warrants of entry were not suited to the problem faced by telecoms operators here; they are used largely for single access, for example to remove existing equipment. That is why we consulted on this and the judiciary agreed that it should instead be either the Upper Tribunal Lands Chamber or First-tier Tribunal granting interim rights codes to operators. I hope that I have alighted on the right issue that has given rise to this element of the debate.

--- Later in debate ---

[The Deputy Speaker (Baroness Henig) (Lab)]

I have received a request from the noble Lord, Lord Fox, to ask a short question for elucidation.

[Lord Fox]

The issue of 2025 was raised by both of us, so could the Minister clarify that?

[Baroness Barran]

It is still the Government’s intention to deliver gigabit-capable connections to every home and business in the UK as soon as possible. We seek to do that by 2025. The noble Lord will remember that we talked in Committee about the impact of Covid on the rollout; I think that I clarified that we know that there is a short-term impact and we are doing everything we can to try to work through it—but, obviously, none of us can predict the future.

Telecommunications Infrastructure (Leasehold Property) Bill

Lord Fox Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Thursday 28th January 2021 Lords Chamber

[Lord Fox (LD)]

My Lords, on Report, the noble Lord, Lord Alton, said that this amendment would empower the Government to deny infrastructure access to operators whom, they believed, were abusing human rights. This is part of an important conversation about how modern slavery legislation might apply to the digital economy and especially its supply chain.

Since Report, this argument has been rehearsed on a number of occasions in other places. That reflects the tenacity of the noble Lord, Lord Alton, and his colleagues. Each time the argument is repeated, it is no less powerful, horrifying or revolting to hear what is happening.

As we heard from the noble Lord, the Trade Bill has been one focus for this discussion. The Government spurned a real opportunity when they whipped Conservative MPs to vote against the so-called genocide amendment earlier this month. That amendment reflected the discussions during the passage of the Trade Bill in your Lordships’ House. It sought to introduce a mechanism to allow British courts to determine whether a foreign country had committed genocide. The amendment was introduced in your Lordships’ House to deal not just with the Uighurs but with other human rights issues as well. I hope that your Lordships will listen sympathetically next Tuesday when the amendment is reintroduced.

I, too, thank the Minister both for her comments and for her detailed letter, which showed empathy on this issue and explained why her department had been unable to bring forward the amendment previously promised. My admiration for the ingenuity of the noble Lord, Lord Alton, and others has increased. They have managed to table this amendment to a Bill that, as the noble Baroness, Lady Morgan, correctly characterised it, is intended to help tenants obtain broadband.

The noble Baroness, Lady Morgan, also implied that the issue had, as a result of these discussions, somehow been dealt with. Although there has been welcome movement on the Government’s part over Huawei, it would be wrong to say that the issue has been dealt with. I asked the House of Lords Library whether a law exists that prevents telecommunications operators from using their infrastructure to breach human rights. I thank the Library for its thorough work, but it was unable to find evidence of legislation preventing telecoms operators from using tele- communications infrastructure to breach human rights. In other words, there is no such legislation. The Library asked Ofcom whether it was aware of any such requirement in legislation; Ofcom said that it was not. Legal experts were also unaware of anything in telecoms legislation. In other words, the noble Lord, Lord Alton, and the signatories to this amendment have identified a gap in the legislation.

The Human Rights Act applies only to public authorities and other bodies—public or private—that perform public functions. There is no general requirement on companies to comply with human rights obligations, although that has sometimes been applied to the relationship between companies and private individuals. As others have said, there are UN guiding principles on human rights and business. The Companies Act 2006, the EU non-financial reporting directive 2014 and the Modern Slavery Act all contain commentary on human rights but none deals with this particular issue.

It is a shame that we have had to have this debate almost by proxy. Even the noble Lord, Lord Alton, would admit that this Bill was not designed to address this issue. Such a Bill is needed so that we can have this discussion in a discrete environment. I understand that my noble friend Lord Clement-Jones was promised that there would be a communications security Bill. I assume that the National Security and Investment Bill is what that has metamorphosised into—perhaps the Minister could confirm that. As my noble friend Lady Northover suggested, this issue could be discussed in that context. I am working on that Bill, but it seems to me to have to been drawn very narrowly. Given this legislative absence, it is appropriate that the noble Lord, Lord Alton, and others have brought forward this amendment now. If the noble Lord, Lord Alton, decides to push it to a vote, we on the Liberal Democrat Benches will support it. If he does not, we shall support an amendment to the Trade Bill. Even if the noble Lord decides not to push for a vote today, the Government can be sure that this issue is not done with and will not go away.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I am glad that the noble Lord, Lord Alton, has rehearsed the background to his Report stage amendment and explained the reasons for bringing it back to your Lordships’ House today. We simply cannot turn a blind eye. Standing aside or ignoring what is happening in China is tantamount to condoning the appalling actions described by the noble Lord in his powerful and moving speech.

A lot has changed since June. I am sure that the Minister will update us on subsequent government action, particularly in relation to Huawei equipment. As a number of noble Lords have said, other legislation—including the Trade Bill, before your Lordships’ House again next Tuesday—has amendments bearing on this issue. The case made by the noble Lord, Lord Alton, is unanswerable, as I have made clear. However, tabling this amendment to this Bill is perhaps not the best way of achieving his wider objectives. It might, I suppose, adversely affect the chances of the big win that we hope to achieve on Tuesday with his amendment to the Trade Bill.

Everyone who has spoken today has supported the noble Lord, Lord Alton, and paid tribute to his campaigning and his ceaseless tenacity on this cause. If he chooses to divide the House, we will support him, but I hope that he will feel able to accept the Government’s position on this narrowly focused Bill and that it would be better to defer the decision to Tuesday’s debate on the Trade Bill.

--- Later in debate ---

[Lord Fox (LD)]

My Lords, the amendment, which we welcome, brings us into the territory of the Bill. The noble Baroness, Lady Morgan of Cotes, if she is still in her virtual seat, will be sitting more easily in this part of the discussion.

When speaking previously to an amendment brought by the noble Lord, Lord Stevenson, supported by myself and others, the Minister agreed that we should aim to simplify the lives of consumers. To that end, she said that the Government would be willing to table an amendment at Third Reading. My understanding is that this amendment honours that statement. The Minister said that Her Majesty’s Government consider it fair to amend the Bill in this way and that the aim is to include measures to ensure that an operator must not install their equipment in any such anti-competitive way. Therefore, the test of the amendment is whether it reaches that objective.

I shall discuss two aspects of the amendment’s wording. First, the words,

“nothing done by the operator”,

seem to imply more than just technology, because there are other things that an operator could do. Perhaps the Minister can explain “nothing”. It could refer to a contractual matter or all sorts of other areas, including service as well as the purely technological. Secondly, there is the phrase, “unnecessarily prevents”. What is a necessary prevention? In other words, how will the regulations deal with those two areas—“nothing” and “unnecessary”?

I had the opportunity to virtually bump into the Minister this morning—obviously with at least two metres between us—and give her some warning of my concerns. Regarding the practical way this matter will work, let us imagine that I am a tenant in a new property. I move in, wish to switch my operator and start to encounter technological problems with the process. What do I do next? How does the amendment help me to deliver on that?

Quickly in conclusion, none of this means anything if we do not have great connectivity. I could not, therefore, pass this opportunity by without asking the Minister where we are on that. The delivery of ultrafast broadband was a subject for discussion in Committee and on Report, as was the creation of an open source network. It is safe to say that some time has passed since we last discussed that issue. As the Minister stated, some technological developments have included, not least, the gradual removal of Huawei from the supply chain. Meanwhile, the Prime Minister has made several statements about the bandwidth that will be provided and its extent—statements at odds with what network providers have said is possible. Where are we on the Prime Minister’s gigabit connectivity being available to everyone? Where are we on the development of open source networks? If the Minister can answer those questions, I am sure that we will support the amendment.

[Lord Vaizey of Didcot (Con) [V]]

My Lords, I refer to my entry in the register of Members’ interests. I was not a Member of this House when the Bill was debated at Second Reading or on Report. Therefore, I begin by saying how much I welcome it. In my experience as the Minister responsible for rural broadband rollout between 2010 and 2016, I soon came to realise that planning is the biggest obstacle that prevents the rapid deployment of the broadband that this country desperately needs. The planning system is hopelessly complex and time-consuming, and imposes enormous costs on operators. Anything that can make their lives easier has to be welcomed. Multi-dwelling units contain dozens of potential recipients of ultrafast broadband. If we can make it easier and simpler for operators to deploy their technology, that is to be welcomed.

I was also delighted that the Government yesterday published a consultation on reforming the Electronic Communications Code. Again, I was the Minister who had a first stab at that, which was obviously not good enough, and that is why we need a second bite at the cherry. I should point out to the noble Lord, Lord Fox, that the foreword to that consultation document contains some heartening statistics on the deployment of gigabit broadband. From memory—I read it only this morning, but I am getting older—some 30% of homes can now potentially receive gigabit broadband. It is good to see the Government pressing ahead on another front.

I should say on operators entering multi-dwelling units that one of the Government’s commitments during the passage of the Bill was to publish a consultation on the code of practice and then a code following Royal Assent. Given that the Bill imposes obligations on landlords and effectively interferes with their property rights, it is vital that landlords are reassured that the operators will adhere to the highest possible standards. The code of practice is also important for some of the smaller operators. There is some nervousness among them. If landlords are worried about operators’ standards when deploying the technology, they will simply take refuge by dealing only with the biggest operators and not allow insurgents, as it were, or start-ups to fibre-up their buildings. I hope that when she responds the Minister can give some reassurance that the code of practice consultation will be issued imminently.

I should also point out that the Bill does not yet cover the issue of shared freeholds, and I hope that the consultation on the Electronic Communications Code, which I am not covers this issue, could be used as a vehicle for looking at how operators can enter buildings where there is a shared freehold—the typical building being a Victorian house that has been split into flats. Some 5 million premises fall within that category and there needs to be some way forward to allow operators to access shared freehold premises.

I am not sure whether the amendment is necessary in practice, but I understand the Government’s motivation to reassure Members of both Houses that the Bill will not inadvertently create monopolies in multi-dwelling units. I should also ask the Minister to respond, either now or in writing, to the concern of some operators about the Government and Ofcom’s ongoing intentions to impose wholesale access on operators. It is one thing to say that an operator should not do anything, intentionally or inadvertently, to prevent a competitor supplying technology to multi-dwelling units, but it is quite another to impose on a company the obligation to allow others to use the infrastructure it has invested in and paid for. What is the direction of travel of the Government and Ofcom, because I know that they have previously thought about imposing wholesale obligations on operators in multi-dwelling units?

However, as I say, I welcome the amendment. My understanding is that any attempt to physically impede competitors from entering a multi-dwelling unit would fall foul of the ATI regulations and, indeed, the EU’s Electronic Communications Code, so I am not entirely certain that the amendment is necessary. However, in the sense of providing statutory reassurance that a much- needed piece of legislation will open up access to ultrafast broadband to many millions of people living in multi-dwelling units the amendment has to be welcomed.

Telecommunications Infrastructure (Leasehold Property) Bill

Lord Fox Excerpts

Consideration of Commons amendments & Lords Hansard
Thursday 4th March 2021 Lords Chamber

I hope that your Lordships will be reassured by the recent publication of the consultation considering potential reforms to the Electronic Communications Code. We remain very much open to ideas from the industry and landowners on how the Government can better support rollout, and we will take legislative action if the evidence demonstrates a need to do so. I therefore beg to move that this House disagrees with Amendment 3.

[Lord Fox (LD)]

My Lords, I thank the Minister for her thorough review of both the amendments, and of the scene.

The Bill seems to have been around almost as long as the Covid pandemic. I am almost minded to call it the “lockdown Bill”, because it surfaced from time to time and then disappeared from time to time. Looking forward, I hope that future Bills which may or may not emerge from consultations will perhaps have a rather more impelling momentum than this one, which seems to have been rather caught in the backwash of legislation.

It has been a Bill of essentially two debates. One was the huge concern that your Lordships demonstrated about the nature of the digital communications supply chain; the Minister may be pleased to know that I will not go back into that. The other debate—the Minister may not agree—has exposed the paucity of ambition in the Bill and, therefore, by extension, in Her Majesty’s Government. On the Minister’s own admission, it is a narrow Bill; I would say it is just about as narrow as the Government’s USO, which I remind your Lordships is just 10 megabits a second. Both the Government and the industry should be seeking to increase that.

When it comes to the digital communications supply chain, there is one thing that I should like to talk about. Much work is to be done in the sector as it comes to terms with the future absence of Huawei. Since we last considered the Bill, some of us have received letters from the Minister setting out plans for supply chain diversity. I hope that that letter is in the Library; if not, it would be appreciated if the Minister made sure that it was. Government support for the NEC open RAN trial is good and we welcome that. I remind the Minister that the Government’s stated aim is to have 5G open RAN up and running this year. It would therefore be helpful if the Minister were able in her closing words to let us know whether that is on track. I should point out in referring to the technical consultation being due in the spring that the first day of spring was Monday, so we are, as it were, already sprung.

I turn to the items on the Marshalled List. When addressing the amendment on leasehold status in the Commons, the Minister of State Matt Warman MP recognised the plight of people living in flats and apartments, which was welcome. He and the Minister enumerated about 10 million people as potentially benefiting from being able to seek better broadband in their homes. That point was thoroughly made by my noble friend Lord Clement-Jones. The purpose of his amendment on Report was to clarify, as the Minister said, that people who rent their flat can make use of the changes in the Bill. It is gratifying that the Government have retained the spirit of that Amendment 1 in offering Amendments 1A and 1B instead. I am sure that my noble friend will have more to say on that.

Turning to Lords Amendment 3, the Government’s response is not supportive and that is disappointing. That amendment would have added a new clause requiring the Secretary of State to commission a review of the impact of the Bill on the Electronic Communications Code. It seems to me that in her rebuttal of that amendment the Minister enumerated the considerable weaknesses of the code and set out some areas of concern. Amendment 3 would have included an assessment of whether the code was sufficient to support 1 gigabit broadband rollout in every premises by 2025. In her rebuttal, she said that the code was not competent to do that. Given that so much weight has been put, not least by the Government, on that target, that would seem to be a serious issue. As the Minister set out, it would have required separate assessments to be made, as well as addressing the issue around utilities—that was well rehearsed on Report and I do not propose to do so again.

However, I am tempted to ask what the Government are scared of in terms of allowing that review to happen. They seem to be nervous about their ability to deliver on that 1 gigabit target. It was therefore not surprising that Matt Warman MP would politely denounce that amendment, as the Minister has done today. Both focused on the assertion that elements of the amendment fall outside the scope of the Bill. It is not beyond understanding that if that were the case the Government could have come back with an amendment that retained or created a review but also satisfied the need for the amendment to sit inside the Bill. Once again, we have fallen foul of the narrowness of the Bill.

It is partly surprising and perhaps gratifying that the Government have realised how narrow the Bill is, and it was almost remarkable that before the ink was dry on it, the next consultation came fluttering through the letterbox. Perhaps the Minister has, in a sense, already confirmed the recognition that the Bill was insufficient in the first place. It has taken us a long time for us to get not very far and now we have to start again.

On many occasions, the Minister has reminded us that the code is technology-neutral. I think we know and understand that. Therefore, the review has to grasp that within the context of how the code in future deals with the key issue: are people getting the connectivity they need, can we measure it, and can we make it quicker and better as well as cheaper? I hope that that goes beyond simply talking about access to land and that kind of issue. Let us get through this consultation as quickly and thoroughly as we can. Let us get another Bill so that we can create a code that does what it needs to do and is fit for purpose because, let us face it, the Government have an interest in delivering the gigabit target from their manifesto but the country has much higher stakes in this. We need it as soon as possible.