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

Lord Stevenson of Balmacara Excerpts

Tuesday 10th November 2020 Grand Committee

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

My Lords, I thank the Minister for her very good introduction to this SI. It is a long and complicated one, but she came across the issues quickly and with great clarity. I also thank her for arranging a meeting where I was able to ask direct questions of the officials responsible for this work.

It is, on first glance, a rather strange document—almost hybrid, if that is not a pun too far. It introduces most elements of a European directive positively and helpfully, but it also uses the EU exit regulations to discount a few things that might have got in its way. I say that to position myself on my first point: rather like the noble Lord, Lord Clement-Jones, it seems to me that this is almost primary legislation being achieved through secondary legislation because of the changes that are being made that will have an impact not only for consumers and companies but, more responsibly, for the regulator. This document is so large that one would almost want to go through it line by line and ask questions by having a due process that allowed more than this important but rather short exchange as a result of it being a statutory instrument.

I asked that question of officials. In a slightly unguarded moment, perhaps, the impression I gained—I will not quote them—was that Ministers presumably could have chosen either to seek a legislative opportunity to put forward primary legislation that might not have been time-efficient, as it certainly would not get us past the deadline of 21 December 2020, which is not far away, or to take the slightly unusual step of doing it through secondary legislation. These are my words, not theirs. For good reason or bad, the decision was taken to do it this way. I am not going to carry on with this point, because it was not picked up by any of our standing committees that looked at the legislation or by the Commons. However, it is quite interesting, and there must be a break point.

I will make one other point about it. One of the things that is looked at in deciding whether something should be primary or secondary legislation is the impact it has on consumers: for example, in criminal penalties or taxes. I do not think there is any such provision in here, but I wonder about the approach to the special subsidy. There is a phrase in the notes which gives the sense that it is not just a question of whether those who are vulnerable or have low incomes can get treated under the special subsidy system; it is also possible for Ofcom to look at whether others should make a contribution.

That point about “others” comes on page 8 of the Explanatory Memorandum in point 7.24, which says:

“If the burden is unfair, Ofcom may determine that contributions should be made by other providers to help meet the burden”.


I wondered whether that was heading towards taxation. I will leave my point in that area.

I want to make only two other points, because the noble Lord, Lord Clement-Jones, has made a substantial contribution to this debate. One is that, as he said, one of the key guiding principles, which we went over at length in earlier legislation and presumably will meet again as we go forward on this journey, is the attempt to get the country to have a gigabit-capable infrastructure. I welcome a lot of the measures here which will point us in that way, but I want to ask about two of them.

First, there is the question of whether the ability to share equipment, which is one of the powers that Ofcom has taken or will be given under these regulations, will be sufficient to ensure that the number of not-spots is reduced across the country. As the noble Lord, Lord Clement-Jones, said in citing the noble Lord, Lord Vaizey, it seems that we still have patches of the country, sometimes in major conurbations and many times in London, where the quality of reception is so bad that it is unbelievable that we are even thinking about getting to a USO of 10 megabits per second, rather than to this nirvana that we hope to have of one gigabit.

There are two measures that I thought might help with that. One is the need for a power to make providers share equipment where it is important. In the regulations, that appears to be limited to whether there is unfair competition. Is that right or is it more focused, as the noble Lord, Lord Clement-Jones, was saying, on this question of getting the whole country to a higher level of capability?

The second is the way in which spectrum is allocated, because that has such a major burden on the 5G capability of the country, and who knows what 6G or other Gs would do when they came along? One complaint that we were aware of 18 months or so ago, when we were doing the primary legislation in this area, was that the regulations relating to spectrum sales did not give sufficient fine-tuning of the arrangements under which Ofcom offered it to ensure that the quality of the spectrum available to those bidding for it was being met satisfactorily, given the needs that they identified.

I am probably at the limit of my technical knowledge at this point and will therefore not continue this line. But I am sure that the Minister is fully briefed on it today, and if she is not, perhaps she could write to me. Do the measures in this statutory instrument unblock that problem? When allocating spectrum, it is important to recognise that the bandwidth within it is as important as the amount available under certain measures, particularly 5G, because of its capability in ensuring that local areas are properly linked up so that those who live in blocks of flats, for instance, are not blocked simply because the walls are too thick or the material used in the building is obstructive to travel.

These are the two things we were left with after we went through this the last time around when we were talking about telecommunications development, the partnership that is necessary with the internet service providers and the problems faced by those in rural areas and in the centres of towns. They need to be assured that these regulations will bring this forward.

Finally, like the noble Lord, Lord Clement-Jones, I welcome the new consumer rights that have been brought in. They will be helpful, and I am glad to see them in place at last.