Telecommunications Infrastructure (Leasehold Property) Bill

Baroness Barran Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 22nd April 2020 Lords Chamber

Moved by

[Baroness Barran]

That the Bill be now read a second time.

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

My Lords, I do not need to say how vital to the continuation of everyday life and to broad swathes of the economy our broadband connectivity has been in recent weeks. The Covid-19 pandemic has brought into very sharp relief the importance of robust and rapid broadband connectivity. The telecommunications network has never been more important. Right now, it is permitting millions to work at home, providing information and entertainment to those isolating themselves and allowing children to continue their education while their schools are closed. It is at times like this that we must turn our attention to the children, older people and workers who live in areas with limited or no access to the internet. How they are coping in these unprecedented times, and what can we do to ensure that this country’s communications infrastructure is able to meet these and future challenges?

In the other place, my honourable friend the Minister for Digital Infrastructure spoke about how gigabit-capable connectivity can grow businesses internationally and into areas such as big data, artificial intelligence and blockchain technologies. He explained how it more easily allows us to have smart meters and other forms of connected homes, and how faster, more reliable broadband makes accessing media content and finding the best deals online even quicker and easier. Gigabit-capable connections certainly do all these things. It has become increasingly apparent that access to the internet is now an ever more important aspect of daily life, especially at times of national crisis.

It is a credit to our telecommunications operators that the UK networks have responded so quickly to provide the capacity that this country needs during the Covid-19 outbreak. I have no doubt that operators will continue to work tirelessly to optimise their networks and ensure that all of us can access the services we need.

These uncertain times show clearly the need to ensure that everyone in this country has access to fast, reliable, resilient connectivity. Currently only about 12% of the country can access the latest generation of broadband that this Government are determined to roll out nationwide. Gigabit-capable connections are those that offer download speeds of 1,000 megabits per second and above. By way of comparison, the average download speed in the UK is about 54 megabits per second. The Bill before the House today ensures that those living in blocks of flats and apartments—known by the telecommunications industry as multi or multiple-dwelling units, or MDUs—are supported in receiving new connections. We know that such MDUs are often especially difficult to connect. As your Lordships will know, a building’s owner must give their permission before a telecoms operator is permitted to install its equipment in the common parts of the building. When a person requesting a connection lives in a flat, whether they are renting or they own the leasehold, the permission of the landowner is required for the common areas, such as basements and stairwells, so that a telecoms operator can then install its infrastructure.

In practice, an operator will attempt to contact a landowner to request permission to install its equipment and cabling and will offer to negotiate a long-term agreement on access. I am sure many noble Lords will be familiar with the process. These access agreements—or wayleaves, as they are often known—set out the responsibilities of both the landowner and operator with regard to installation, maintenance and future access. It is these agreements that allow residents to be connected.

We understand from the likes of Openreach, Virgin Media, CityFibre, Gigaclear and other major telecoms providers that around 40% of their requests for access in such situations receive no response. I want to make it clear: we are not talking about instances where a landowner refuses to allow telecoms operators access, which they are well within their rights to do. Neither are we talking about landowners who respond to an operator’s notice requesting time to consider the offer, which is also a reasonable course of action. The policy aim of this Bill focuses only on circumstances where a lessee in the property is seeking a service and where a landowner repeatedly fails to respond to a telecoms operator’s request for access.

Currently, when an operator finds itself in the situation I have just outlined, our understanding is that it opts to bypass the property in order to maintain momentum of its wider deployment. The result of that operator’s commercial decision is that the residents within the property concerned are left with little choice but to accept that they will miss out on connections or upgrades to their existing connections. The Government consider this to be unacceptable.

The Bill before the House today seeks to provide operators with an alternative course of action by creating a new streamlined process in the courts to gain rights to install their infrastructure. Clearly, there must be conditions to be satisfied by the operator, and I will come to those shortly. This application process is intended to be a last resort for operators. We hope that through the passing and implementation of this legislation, landowner response rates will increase and this new court process will, over time, not even need to be used.

As I am sure noble Lords will agree, the best way for operators to install equipment in a property is as a result of an agreement negotiated by the operator and landowner. Noble Lords will recall that, in 2017, this House passed the Digital Economy Act. Among other things, that Act updated the Electronic Communications Code, which I shall call “the code”. The code provides a regulatory framework for the relationship between landowners and telecommunications operators. The code does not prevent operators from making use of the courts to have rights imposed in circumstances where a landlord is unresponsive. However, we are not aware of any operators having sought to use the code as it presently stands in order to gain access rights in such a situation. We understand from operators that this is due to the cost and time of doing so. There are varying estimations of the cost of using the current court system, but a conservative estimate is around £14,000 per application, including legal fees and administrative costs. It can take six to seven months from the commencement of proceedings until their conclusion.

There are around 450,000 multiple-dwelling units in the UK, housing approximately 10 million people. If we consider that 40% of the people who own those buildings do not respond to operators’ requests for access, then some 4 million people are losing out. It is avoidable.

The process proposed by the Bill is proportionate and balanced. It places a low burden on the landowner and proportionate evidential and procedural requirements on the operator. First, a tenant in the property must have requested a service. Then, the operator must have issued three notices to the landowner requesting access over 28 days, plus a final notice explicitly referencing the fact that the court may be used to gain access. Only once that period has ended will an operator be able to apply to a court for rights under the code, which will allow it to enter the common areas of the landowner’s property to install its infrastructure, allowing the operator to provide the connection requested by the tenant. On application to the court, the operator must be able to provide evidence of all this. Should the landowner in question wish to stop this process at any point, they need only respond to one of the operator’s multiple notices. The expectation is that applications made to the court will allow judges to make decisions based on operators meeting clear evidential requirements. This will allow decisions to be reached quickly and efficiently.

Indeed, during Committee in the other place, the Government tabled amendments to make the adjudication of applications under the court process set out in the Bill more efficient by ensuring that those applications would be heard by courts and tribunals even better placed to do so. Those amendments make provision for the First-tier Tribunal to hear applications made under this legislation, instead of the Upper Tribunal. This will apply to cases in England and Wales. In Scotland, applications will be heard by the sheriff court. In Northern Ireland, applications will be heard by the county court. This way, the applications will be heard by judges at an appropriate level. The amendments were tabled as a result of engagement with the devolved Administrations and senior members of the affected judiciary themselves, as well as in response to valuable points about the judiciary’s capacity identified in the other place during the Second Reading debate there.

If an application is successful, the operator will obtain interim rights under the Electronic Communications Code, allowing it to install, maintain and upgrade its infrastructure in the property for a period no longer than 18 months. The interim rights will have terms attached; we will consult on those terms before they are set out in regulations. They will include such things as requirements on the standard to which works must be completed and that care is taken to minimise the impact on other residents.

If an operator wishes to continue providing a service to the building after the interim code rights have expired and the landlord continues to be disengaged, it may use existing provisions with the code to apply for full access rights. However, we hope that time-limiting the rights to a maximum of 18 months will incentivise operators to continue to try to negotiate an agreement with the landowner so as to avoid the cost, time and uncertainty of making an application to the tribunal for full access rights.

I look forward to noble Lords’ contributions, and to seeing this short and technical—but significant—Bill pass through this House. I beg to move.

--- Later in debate ---

[Baroness Barran]

My Lords, I thank both the noble Baroness, Lady Northover, and the noble Lord, Lord Collins of Highbury, for their contributions. I will start with the noble Baroness’s comments on behalf of her noble friends. We all hear the concerns that she shared with the House but I think we are also aware that the House authorities have been working absolutely tirelessly to change how we work as a Chamber—in ways that perhaps none of us could have imagined would be possible. The Government will make sure that time is given to her noble friends and all Members of this House to contribute fully and perhaps slightly more conventionally as we progress with the Bill.

More broadly, I would also like to put on the record that the Government recognise the sacrifices that are being made all around the country by people whose lives have been turned upside down by what has happened over the last few weeks. We are enormously grateful to them.

The noble Lord, Lord Collins, finished by suggesting that the Government could do more to combat some of the misinformation about 5G and coronavirus. I stress that the Government’s view is that 5G conspiracy theories in this area are baseless, exactly as the noble Lord said. There is absolutely no evidence of any link between 5G and coronavirus. The Government have been very active both in working with the industry to address this matter and in taking extremely seriously any threats of violence or actual violence towards workers or damage to mobile phone masts.

The noble Lord also raised the question of high-risk vendors. As he will know, the Government have thought very carefully about this matter. As my honourable friend said in the other place, the security and resilience of our telecom networks is of paramount importance. The decision by the Government on high-risk vendors was made after considering all the necessary information and analysis from the National Cyber Security Centre and from the industry, and in conversation with international partners. As the noble Lord noted, legislation is being brought forward. He asked about the timing. It will be brought forward before the summer. We believe that that will be the right opportunity for amendments in this area to be introduced, and we look forward to engaging with colleagues ahead of that time.

As both noble Lords noted, in the past few months, and undoubtedly in the weeks and months ahead, the country’s telecoms infrastructure has proven and will continue to prove that it is a key pillar of our society, allowing families who are separated to be together and workers to continue to do their jobs, and providing the essential communications that our blue light services need to do the work that we all value so enormously. We are proud of our nation’s telecommunications infrastructure. I am sure noble Lords will agree that our network operators have more than risen to the challenge posed by the coronavirus pandemic and should be commended for the service they are providing to the country. The ability of our network to cope in the past few months is thanks in part to the investment that this Government have made in the past decade.

The noble Lord, Lord Collins, challenged us on why we have not gone further on speeds and been more ambitious in the Bill, suggesting that we have chosen the least ambitious route. I hope I will be able to convince him otherwise. Superfast broadband is available to 96% of the country, up from 58% in 2011, as a result of the interventions made by the Government over the past 10 years, including the hugely successful BDUK programme. This ranks the UK seventh across the EU.

For those who cannot access decent connectivity, the universal service obligation, which went live last month, ensures that everyone across the UK has a clear, enforceable right to request high-speed broadband of at least 10 Mbps, which acts as an important safety net. But I assure the noble Lord that the Government are intent on delivering nationwide gigabit-capable services as soon as possible. It is through interventions such as the Bill that we are creating a regulatory and legislative environment that will promote the nationwide deployment of these gigabit-capable connections. These are bearing fruit, with more than 13% of premises now able to access full-fibre networks and 18% with access to gigabit-capable services. Operators are connecting increasing numbers of premises every month. Last year we saw 1.5 million homes connected, and this year we are beginning to see connections rising to around 200,000 a month.

More broadly, on the noble Lord’s questions about why the Bill is so narrow in focus and what else we could be doing, there is a balance to be struck between how we can implement our ambitious plans as practically and as quickly as possible, and our judgment was that to combine the measures into a single Bill would be less practical and slower. I think we share the noble Lord’s aspirations, but perhaps have chosen a different route to get there.

To reiterate, the Government announced £5 billion of funding in the Budget to support the rollout of gigabit-capable networks, which I hope goes some way to addressing the noble Lord’s point about how people can have confidence, and there is a particular focus within that in reaching the hardest-to-reach areas of the country. We are also legislating to make sure that new-build homes come with gigabit-capable broadband fit for the future. We are working with the Department for Transport to reform the street works regime to help operators roll out more quickly and easily, so there is a very comprehensive programme of work that seeks to address these issues.

The Government really do not accept that we are not being ambitious enough. The league tables that the noble Lord refers to often lag behind the latest data and do not reflect the significant uptick in UK rollout over the last year. They also do not take into account the full range of gigabit services available, since they are focused on full-fibre build only.

We continue to work closely with operators and landowners to identify and address the barriers to deployment. If appropriate, we will bring forward further reforms to ensure that fast, resilient and reliable broadband reaches every home and business.

This Bill marks an important step forward. It will bring gigabit-capable connections to tens of thousands of households that may otherwise be left behind and ensures that our telecommunications network operators remain ready to meet the challenges of the future, whatever it may be.

I have tried to address the points raised by noble Lords as fully as I can and thank them for sharing their reflections ahead of this debate given the unusual circumstances. I invite any noble Lords who wish to talk about any issue related to the Bill to contact me and my officials. We would be very happy to discuss by various virtual means their thoughts, reflections and concerns. I look forward to a fuller debate in Committee in due course.

Bill read a second time.