Product Security and Telecommunications Infrastructure Bill (First sitting) Debate
Full Debate: Read Full DebateDepartment: Department for Digital, Culture, Media & Sport
Chris Elmore
Main Page: Chris Elmore (Labour - Ogmore)Department Debates - View all Chris Elmore's debates with the Department for Digital, Culture, Media & Sport
Product Security and Telecommunications Infrastructure Bill (First sitting)
Chris Elmore ExcerptsTuesday 15th March 2022
(2 years, 1 month ago)
Public Bill CommitteesRead Full debate Product Security and Telecommunications Infrastructure Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 15 March 2022 - (15 Mar 2022)
Julia Lopez
Q
Anna Turley: I would say that we are dealing with in the region of a few thousand. I have a number of case studies from Members’ constituencies around the country. I am afraid that I do not have a total overall figure, but there are 33,000 site owners around the country who are affected by this. Thousands of affected people have come forward to us via social media and lobbied their MPs. I would be happy to write to the Committee with a full number, but as I said, it is in the thousands. This is not a small number of unique people; this is par for the course. Colleagues here will represent their members in such cases, too. They are not a small minority that we have cherry-picked; this is happening across the board.
The campaign was set up because there was no way for, say, a church in Scotland, a rugby club in Wales and a farmer in Surrey to come together to stand up for their rights as landlords, to talk about how this was affecting them, and to have their voice heard by Government. Legislation was continuing to be developed, through pressure from mobile operators, which have long-standing and strong connections with Government through their large lobbying organisations. The views of ordinary people about the impact of the legislation on them were not being heard.
Chris Elmore (Ogmore) (Lab)
Q
Anna Turley: Absolutely. Someone in Cambridgeshire wrote to us who has two masts on their farm:
“I have recently gained Planning Approval for 5 Houses on my land Immediately next to the mast positions. Not only do I appear unable to refuse to renew the Lease…their current offer is derisory at £750 per annum which is less than 10% of the current rent.”
Another, in Peterborough, said:
“It’s been two and a half years out of lease, they had agreed all the new terms of the lease, just about to sign off. Then all change and they pulled out, and offered £500 per year and not heard anything since. These tower operators make dodgy used car salesman seem like Saints.”
We have hundreds and hundreds of those. Churches, for example, are saying that they can no longer keep to their plans for the upkeep of their buildings. Sports clubs say that they will have to ask parents for more, so that their kids can play on the team. The impact of a rent cut from £4,000 to just £350 is devastating for small community groups and small businesses. They feel that nobody is standing up for them or listening. The impact of the new legislation will make that even worse.
Chris Elmore
Q
Anna Turley: The first recommendation would be to go back to the Law Commission proposals of 2013. The Law Commission suggested a market-based valuation approach that was closer to the previous approach but still delivered savings to the operators. That was widely accepted as a very positive way forward. If that were taken as the approach to valuation, it would deal with the root causes of the issues and the imbalance brought by the 2017 changes, which essentially gave all the power to the operators.
As for the Bill, a number of further changes will damage and affect smaller landlords. For example, the Bill brings in backdated payments. Again, that could have a devastating impact on a small community group that is being asked not only to accept huge cuts in their rent, but to backdate their bills. There are issues on the definition of “occupier”, which others will talk about. That could give operators the opportunity to change or modify agreements that were entered into in good faith and still have time to run. We would like more protections for landlords, to protect them against poor behaviour by operators. For example, alternative dispute resolution should be mandatory. There should be the power to impose fines on operators for bad behaviour. We would like a statutory code of practice for them as well.
We are also very concerned about changes to the Landlord and Tenant Act 1985. We do not believe the reforms to valuation should be extended to the new legislation. That could set a huge precedent for all kinds of things such as wind turbines, and could bring the 2017 changes into effect for thousands of people who previously were not covered.
We would also like to see an evidence base; that is one of the most important things. Five years after the changes were brought in, there has been no full impact assessment of the 2017 changes. There is no evidence base, but it was promised, during the passage of the Bill in 2017, that there would be a full assessment by 2022. We have not got a clear enough sense of the impact of those changes. Here we are again, bringing forward new legislation without having a proper evidence base for those 2017 changes.
Finally, we would also like more reporting requirements on the operators. We have no evidence that the money they have saved since 2017 has gone back into building new infrastructure. Everybody wants connectivity. All our members want better connectivity and wi-fi, but the reality is that money is not being invested back into the infrastructure. It is disappearing into the profits, and there is no onus on operators to show where that money is being saved and how it is being used. We would like there to be more reporting requirements on them.
The Chair
Before Chris Elmore asks another question, let me say to the other two witnesses, who are appearing virtually, that if at any stage they wish to add anything to what has been said, please indicate that to me, and I will call you.
Chris Elmore
Q
Dr Trotman: No, it does not. The Minister hit the nail on the head: you need balance in the market. What the 2017 changes did and what the part 2 changes will do in this Bill is further skew the marketplace. As Anna said, if the Government had taken forward the Law Commission’s recommendations back in 2013, we would not be in this situation. We would be moving far faster towards universal coverage, which we all want, and which, as the covid-19 pandemic proved beyond all reasonable doubt, we all need. The problem we have is that this element of distrust between site providers and operators has shifted clearly in favour of the operators. The market is not working as it needs to.
As far as the CLA and I am concerned, it is incumbent on the industry, rural organisations, telecom companies and trade associations to come together and work out the differences. It is the role of the Government to assist in that process. If we cannot get the balance right, effective deployments will be delayed. That delay will severely limit the ability of rural communities to increase social inclusion, and reduce the ability of rural businesses to pick up and recover from the pandemic, and from the cost of living crisis that we are likely to face in the next six to 12 months. We need to get the balance right, and we still have not got it right.
Chris Elmore
Q
Dr Trotman: No, it makes it worse. That is our concern. We have an opportunity here to bring the industry together. Unfortunately, what part 2 of the Bill does is pull the industry further apart. The sector and the market was beginning to settle down after the 2017 changes. The Government then decided that the changes were necessary. We do not know why—as Anna said, there has been no real assessment of the impact of the changes on the market place.
On the case numbers that the Minister was talking about, you have to bear in mind that a lot of these agreements are placed under non-disclosure agreements, so we do not have the information we need to assess how wide the problem is. Given all the cases we have, it is clearly a very serious problem. The key is for the industry to get the balance right and for the Government to assist.
Chris Elmore
Q
Dr Trotman: If the Government could give us the assurances and safeguards that we need that a voluntary system would work, I think that would be satisfactory. However, we have not seen that so far in our discussions with Government officials. If it is going to work as effectively as we want it to, it will have to be a mandatory mechanism.
If the ADR system works, it will reduce tensions in the market, because it means that site providers, for example, who are in dispute with the operators, would not be threatened with going before the courts. There would be an opportunity to negotiate under the premise of an arbitration process. However, we must ensure that that is available. That is where we need the safeguards. If we have those safeguards, and they are clear and consistent, then a voluntary system may be appropriate. However, from what we have seen so far, that will not be the case. We are not certain that the Government’s guarantees will work—that is the key point—so it has to be a mandatory system.
Chris Elmore
Q
Eleanor Griggs: My opinion is very similar to Charles’s, really. As it stands, I cannot see any option other than to make it mandatory to protect our members, who do not necessarily have that negotiating power, given the statutory powers that operators have, which could potentially be increased should the Bill, as introduced, go through.
Chris Elmore
Q
Eleanor Griggs: Yes, a lot of members have contacted us over the past few years, including quite a few recent cases. Obviously, those are under the 2017 changes. Many do focus on the rent, because that seems to be the trigger point, but then, when you look at the 90% decrease in rent, and then at the further terms that operators are trying to claim on renewals, those too are very unfavourable. They are not included within the code—they are not code powers—and have the impact of limiting what members can do across not just a small area contained within the deeds, but sometimes much larger areas, and sometimes an entire farm.
On the valuation itself—the reduction in rents—at a time when agriculture is seeing the loss of its EU subsidy payments under the common agricultural policy, it needs to be looking at alternative income streams. That, in itself, means that they will not be looking at mobile phone masts, as they did pre-2017, to get those income streams, but—this is leading on to the second part of the question—farmers will be looking to try to get income streams from every little piece of their land now. That will mean that there will not be any scope for something that does not pay very much money, but also does, or potentially could, include quite a lot of hassle through behaviours of operators and contractors when they are on land. It is not a very attractive prospect to have an operator on land now.
The Chair
Thank you. Will any Members wishing to ask questions please indicate that? Ruth Edwards.
Chris Elmore
Q
Dan Patefield: There are two points on the timescales. There is the point at which the grace period will begin. For industry, we strongly think that that should be when the regulatory framework is confirmed and we know who the regulator is. That is the point at which that countdown should start. There are different views in industry on how long an appropriate grace period would be. Obviously, DCMS has confirmed that it will be no less than 12 months. Once we see that technical specification, a lot of parts of industry will have interpreted the code of practice in such a way that complies, so that will not be a problem for them, but some might have an interpretation that the compliance framework rules out—for example, around passwords. They might have to go back, certainly for security requirement 1, and make a hardware change. For a lot of these products, the supply chains are enormously long. Take a projector coming over from Malaysia. That will be 15 weeks in transit, and eight weeks getting through the broader supply chain in the UK through distributors and re-sellers. That already reduces the 12 months to seven months for manufacture and design. That is the difficulty that some manufacturers might face.
To the obsolescence point, there are two points again. In terms of when this comes in, we have to communicate it to consumers in such a way that it does not cause them to think that any devices that they currently have are obsolete in any way. That is a communication piece. It is about DCMS and the Government broadening that out, and helping consumers to understand what the legislation is for. More broadly, I am sure that we will come to the timescales for security updates but we do not want that to turn into some kind of perceived sell-by date. That is the minimum we will give you security requirements for, but the device is not useless after two or three years. Both those elements might lead to an increase in electronic waste and the kind of things that we want to avoid in a practical framework.
Chris Elmore
Q
Dan Patefield: I will lead on that question. techUK would be happy to give more thoughts on that in a written submission, but it is not an area I focus on. Internally, we split the Bill; I lead on the cyber-security element and another colleague leads on telecoms infrastructure. I am happy to get that question answered in a written submission.
The Chair
If there are no other questions from Committee members, I thank our witnesses for their time and contributions. I am sure that when Committee members come to consider the Bill in detail they will find those comments very helpful. Thank you.
Ordered, That further consideration be now adjourned. —(Steve Double.)
Product Security and Telecommunications Infrastructure Bill (Second sitting) Debate
Full Debate: Read Full DebateDepartment: Department for Digital, Culture, Media & Sport
Chris Elmore
Main Page: Chris Elmore (Labour - Ogmore)Department Debates - View all Chris Elmore's debates with the Department for Digital, Culture, Media & Sport
Product Security and Telecommunications Infrastructure Bill (Second sitting)
Chris Elmore ExcerptsTuesday 15th March 2022
(2 years, 1 month ago)
Public Bill CommitteesRead Full debate Product Security and Telecommunications Infrastructure Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 15 March 2022 - (15 Mar 2022)
Julia Lopez
Q
Professor Carr: I think the element that will impact consumer decision making the most will be the length of time for which the product will be supported. I remember having the conversation in a room in DCMS all those years ago about how we could possibly be expected to spend £1,000 on a phone that will not work in 18 months, that the company knows will not work in 18 months—it will not be supported—and to not have access to that knowledge. This is not just about putting labels on things; it is about the fact that we could not find out even as an informed consumer. I think the length of time for which the device is supported will have a major impact on consumer decision making and probably more than the other two things, because a lot of people do not care about passwords and a lot of people do not know what a vulnerability disclosure agreement is or what that means. Knowing for how long the device will be secure is like having an expiry date put on it.
That is an example of where a kind of market driver can impact consumer decision making, but one of the things that we know about cyber-security more generally is that, very often, market drivers do not work in this space. There is not really, to be honest, all that much of a market for cyber-security, as people do not really care about that. That is why we need to think about moving beyond the dominant narrative over the last 50 years that Governments stifle innovation. Even if we go right back to the beginning of digital technologies and the ARPANET and DARPANET, those things were wholly supported by the US Government. They were funded by the US Government; they were invested in by the US Government for decades before the private sector came on board. So there are these points where it is absolutely necessary for Governments to be involved and for governance to happen, because we cannot see the future. If people begin to lose confidence in these devices and they begin to fear—“I don’t want my child to have something like that. I don’t want Alexa in my house. I don’t want people listening to my conversations etc.”—all the incredible benefits that we can extract from those technologies will go by the wayside.
I will give just one very clear example of this. If you think about the huge effort that the banking sector put into making sure that people felt confident about banking online, spending money online and tapping their card—“When something goes wrong, the bank will take care of you”—the reason, the logic, behind that was that if people began to think, “It’s not safe to bank online; it’s not safe to use my card in these little shops,” they would stop doing it. It was that investment in regulating it, locking it down and making sure it was safe that has allowed us to get to this extraordinary situation where you can walk around with no wallet and just a phone. It is that thinking that is important now.
David Rogers: I think the transparency point is fantastic. This work is not done in isolation. There is lots of work going on about lengthening software updates for lots of types of products, and there are different regulations happening in Europe and so on. Consumers should not have to know about the details. Madeline has said this. They have an expectation, a very reasonable expectation, that they will not be arbitrarily hacked into. We have all read the stories about things like baby cams being hacked into. That is totally unacceptable, because at the end of the day the company that created and sold that product that was insecure at the time it was created is responsible for it. Of course, they did not hack into it, but they left all the doors open, and they sold that product and made money and profit from it.
Yes, I believe that consumers should know that they are being looked after, and the length of time that that is provided for helps them to make an informed decision—it is a free market. Also, security should not be a luxury for the rich. You should not be required to replace your iPhone, for example, just because the support ends. At the end of the day, we are all impacted by security issues. The Mirai attack, for example, was an extremely large distributed denial of service attack, which basically took down large parts of the internet. It was all those small IoT devices, routers and things that had been taken over. The attack did not discriminate between who had those devices, those older devices or whatever, but the impact and scale of that attack was the problem.
That is why we need to ensure on an ongoing basis that, as the technology develops, we can put new requirements through the standards bodies and endorse them. This is the start of that lifecycle, to ensure that those products do not enter markets like the UK.
Chris Elmore (Ogmore) (Lab)
Q
In that vein, is there something in the idea of a reporting mechanism—either by the Department or some sort of regulator, annually or however long is appropriate—for whether these organisations and manufacturers are working to the standards that you so strongly set out? They have had years to deal with the standards, but many are still not doing it. I am suggesting naming and shaming, if you will, to give consumers better informed decisions.
A lot of people borrow money to buy these devices. On Second Reading, I expressed a concern that many people will look in a retailer or online, and go, “If that doesn’t exist for this much time—if it only has two years on it and the loan is three years—why am I bothering to purchase it if it is obsolete in that time?” That is a concern that many people have. Consumers potentially do not know what this or that means, but they know what “security” means, and if they think something is not secure, then, as Professor Carr mentioned, they think, “Well, I won’t bother having that product, because it isn’t safe”, because that is how they view the word “security”, which is logical, but not necessarily the best option given what they are looking for. There are several questions in there, forgive me, but they are interconnected with what the Minister was saying.
Professor Carr: I will try to answer as many as I can, as well as I can. I am sure that David has comments as well.
On educating consumers, that question of “Will the loan outlast my device?” is a very astute one, because consumers do not need to understand—they never will—all the ins and outs of phone or device security, but that is a very pragmatic response: “What actually am I buying? I am spending for three years to buy two years of a phone.” That type of consumer education will snowball when people are presented with information on how long the device will last and asked, “Is that what you want?”
I guess online markets are already regulated. There are things that we cannot buy in the UK and that cannot be shipped here. It would certainly have to be a consideration that, ideally, devices that did not meet UK standards were not able to be shipped to the UK, but I guess that is the case with many consumer goods that we cannot buy online. There is a tendency to blame business in this scenario and to see manufacturers as careless or irresponsible, which surely some of them are. However, it is also the reality that businesses have to make a careful calculation on how they invest. If it costs more to produce a product and they are answerable to shareholders, they have to have a conversation about why they are spending more on a device that is already selling well and returning a profit. I am not saying that that is the way it should be, but that is the way the free market works.
Look at what happened with GDPR. In my work, we work a lot with senior business leaders and talk to them about how they respond to cyber-security regulations. They did not push back against GDPR or see it as terribly negative; they saw that it unlocked budget for them to use, because they could quantify what percentage of their global turnover a data breach would cost or what the fine could amount to. They can take that calculation to the board, and say, “Right—we mustn’t have a breach or it would cost this much. How secure do we feel we are?” That is where such regulations can have a very positive effect on industries that would like to comply but cannot just invest in all the different aspects of a device without some justification. This gives that justification. It unlocks that funding in those board conversations about where investment in products should go.
David Rogers: Just to address the Amazon/eBay question, I have seen all this stuff. I have bought some of it to have a look at. A lot of counterfeit and substandard—the Chinese call them Shanzhai—products are available. I have conversations in which people say, “This is about buyer beware. You’d never buy a £9.99 smart watch. You should know that that’s going to be dodgy,” but as you said, people cannot necessarily afford it. There is a peer pressure element to it, and there is a sort of endorsement by the brand. If you go to Amazon, you expect it to be a quality product, so people are lulled into that sense of security that what they are getting is quality. In some cases, that is not the case. I fully agree that the companies that are retailing this stuff cannot just lay the blame at the door of the companies that are stocking and selling it. If it is on Amazon Prime, surely Amazon has a responsibility over that.
Earlier, Dave mentioned different regulatory regimes and that there may be some fragmentation around the world. I actually think that there is probably a lot of alignment and harmony. There has been a lot of work between DCMS and the National Institute of Standards and Technology in the US, so there is a broad understanding of what good looks like. If, either through some self-declaratory measure or by some endorsed mechanism of compliance, those companies are told to come up with a compliance statement, that helps the likes of Amazon and eBay to select their suppliers appropriately and then to remove them from their stores more easily. At the moment, it is kind of a wild west. They do not have any questions or answers.
Ruth Edwards (Rushcliffe) (Con)
Q
Professor Carr: I think the Bill would be a hugely positive step. There is a lot more to be done in terms of regulating emerging technologies. As I said earlier, the UK is a country at the forefront of thinking about these issues and taking action. It is new territory, because we are not used to legislating about these things; it seems somehow interventionist, or that it stifles innovation. Actually, digital technologies have become so integrated into every aspect of our lives, from the most personal level to infrastructure, and we have not caught up with that in what we see as the acceptable responsibility of the Government, of individuals and of industry.
There has very much been a narrative that Governments need to stay out of this area. I think that is very dangerous and wrong, because that is how we have ended up in the situation we have been in. It is certainly a balance between those parties—Government, civil society and industry—but we are a long way from having that balance right. Governments are beginning to see that there is a mandate and that they have a responsibility. We see that not just in the UK, but certainly in the US, Australia, the EU. But there is a long way to go.
The Chair
Can I ask witnesses to please keep their answers shorter? I have had a number of Back-Bench Members already indicate that they want to come in.
Catherine Colloms: Sorry. I think it just changes the mix, effectively.
Simon Holden: I might just add that if Openreach is the Goliath and CityFibre is the David—certainly in rural—we would like to go into rural. This would be really helpful for us in order to make sure we can move at speed and at a sensible cost, and take advantage of the opportunities the Government are providing to accelerate growth there, so we would be in favour of that.
Juliette Wallace: On the mobile side, you asked about rural connectivity. Predominantly, that is going to come from new sites, and the code is actually working quite well with new sites—new land build-out. Our biggest challenges come from renewing the agreements that have expired on existing sites. That is where we need the changes in the code that this Bill addresses, and also the amendments to how the Bill is drafted so that it actually addresses the Government’s ambitions that came out as a response to the consultation.
Chris Elmore
Q
This is for Mr Bartlett. Forgive me if I am misquoting you, but I think you said 1,000 contracts have been negotiated since 2017. I am assuming those are all new sites, or are some of them renewals as well?
Mark Bartlett indicated assent.
Chris Elmore
Q
Simon Holden: We, CityFibre, are in cities. Probably 10% to 15% of our build is in multi-dwelling units. We are typically in underserved areas around the UK, and I would say that we have a disproportionate share of things like social housing that sit under our built portfolio. No. 1, we think that it is really important to be able to access those properties. I would say that big social housing landlords are embracing that, but it is patchy and we would value having the ability to accelerate negotiations as we are having them and have a really clear process where we can make sure that we get everyone to the table, with a fair resolution at the end of it.
Once you get access to the building, I think it is up to the building landlord and the tenants, obviously, as to how you are going to do the in-building wiring. As I said before, we found that once you have got hold of the landlord and you have agreed it, that does not tend to be a particular problem. What we are concerned about is that if you extend this back to historic wayleaves, all you are doing is effectively entrenching the people who have already got those, which most of the time is Openreach. We would think that that is not helpful for competition. That would be our observation, but in terms of accessing those properties, it is super key to us for our business model to be successful and, of course, for society to benefit from getting the best digital infrastructure to as many households as possible.
Catherine Colloms: As Simon says, most multi-dwelling units tend to be in towns and cities, so looking at the constituencies represented around this table, I can tell you, Chris, that you only have 3%. Hornchurch, in the Minister’s constituency, has 13%, and I think Hastings has 24%. They are very concentrated, classically, in urban areas, as Simon says, and often in potential areas of deprivation or areas which are less socially inclusive.
In terms of the access point, you are right. The idea of automatic upgrade would give us the right to do that. You still have to have a relationship with the landlord. That is still always the intent, but it comes down to the obligation. At the moment, there is no obligation for the landlord to do anything. New build legislation obligates them to put in a full-fibre connection, and there is a slightly different conversation you can then have that allows you to proceed with the wayleaves.
Mark Bartlett: To answer your question, first of all the current legislation is not working. At least over a half of all sites are stuck, so the landlord says that they are not renewing or getting new ones. Of those that are under renewal, there are absolute rights in the current legislation for landlords, if they wish to do so, to redevelop at the end of the lease and we have to leave. My estate would be measured in tens a year where it is their right and we move on.
In the current legislation there are also absolute rights for the operators to maintain that equipment if there is no redevelopment need. That is, obviously, very positive, because when we lose a site or a rooftop, whatever the infrastructure might be, that is serving hundreds of people in the community. Therefore, quite naturally, both the investment that we have made and the utility to the public need to be maintained, unless, as I said, the landowner has a genuine need to make that redevelopment, and that is enshrined in legislation, both today and in that passed pre-2017.
Shailesh Vara (North West Cambridgeshire) (Con)
Q
Mark Bartlett: I think that would be human. I have never met anybody who wants to take a reduction in the amount of money that they are paid by anyone—that is not something that people work on. However, the policy was put in place to reduce the costs to the industry to allow investment in 5G, which is happening right now for the good of the country.
On the valuation point, it is a fact and a process that if we do not behave properly and that ends up in a tribunal, we would be penalised by the tribunal for the amount of money we have paid, and the judgment would fundamentally go against us, so there is a protection for the landlord there. Secondly, normally—in almost 100% of cases, in fact—we always offer more than the valuation criteria say we should. That results, normally, in a payment of several thousands of pounds, not several tens or several hundreds of pounds.
It is my experience that the majority of people understand that the law has changed and that, like when things change in how you pay your bills, things have fundamentally moved on. So long as we, as an industry, are fair and do not attempt to be over-enthusiastic, as Juliette put it, 85% of people do sign up and say, “Okay, I get it. I am still happy with those several thousands of pounds, and I am willing to make an agreement of that sort.” That is not everyone; 15% of people do not feel that, and we have a further conversation with them, and we come to an agreement with the vast majority of them as well.
I would also point out that this is often characterised as an individual change of an agreement—x to y. We often pay incentive payments to achieve an agreement as well. I would like to put that on the record. It is not just about a reduction in rents. I would also point out that, on average, it is a 63% reduction in rent, not the high 90%-type reduction, that has perhaps been characterised, by the industry.
Julia Lopez
Q
Till Sommer: We do. Basically, a key bit that our members provide to your constituents—their customers—is a router, plus other equipment, that is classed as an internet-connected device under part 1 of the Bill. We are in regular contact with your civil servants on that, to clarify timelines and how the Bill might bite. We do not have any concerns about the idea. We support the idea of the Bill; it is more about the implementation, and ensuring that the supply chain is aware of the new provisions that are coming in.
I have heard from a lot of our members that they have started to talk to their supply chain to say, “By the way, in a year, or in one and a half years, depending on when the Bill will be done, we need to ensure that your products comply with these rules.” Because a lot of the manufacturers are overseas, they are not yet aware of them. Anything that can be done to raise awareness among consumer product providers would be welcome. There are a couple of other bits that go very much into the detail around associated software, when it comes to parental controls, which could be affected. I am happy to write to you on that if you want, but we will talk with the Department about it anyway. It is very much nitty-gritty stuff.
Chris Elmore
The Minister took my last question on part 1, so I am happy to give my time to Back Benchers.
The Chair
Do any Back Benchers have further questions for Mr Sommer? In that case, I thank you very much on behalf of the Committee, Mr Sommer, for the evidence that you have given, and we will move on to the next panel, somewhat ahead of time.
Examination of Witnesses
Rocio Concha and Jessica Eagleton gave evidence.
Julia Lopez
Q
Rocio Concha: On enforceability, if you do not include online marketplaces, you are leaving a big gap, because these products can come from any country in the world when they are being sold in these online marketplaces.
Another area that is not clear in the Bill is how consumers can get redress. As part of the transparency requirement, suppose that you buy a product that says that it will be supported with security updates for four years, but two years down the line, the manufacturer decides to change its mind and to support the product for only two years. Where would the consumer go in that instance? They bought the product on the basis that it would be supported for a set amount of years.
The other thing that is not clear is who the regulator enforcing this will be. Obviously, we need to make sure that the regulator has the skills, powers and resources to enforce it.
Chris Elmore
Q
Jessica Eagleton: Perhaps I can take your second question first. You are right that we are seeing concerns about these types of products being used to stalk and to monitor. In terms of concrete measures and what the Bill can do in this respect, we welcome some of the security requirements, particularly around the vulnerability disclosure scheme, as a step forward. For example, in the work that we do to support survivors, having that public point of contact and an easily contactable place for a company to go, when we are reviewing these products and putting forward recommendations to companies, is definitely a step forward.
We would have some concerns about situations where companies might publicly disclose security flaws and perhaps not take steps first to address them. We have that concern because that could, in essence, alert an abuser to a new way to abuse a victim. It could alert them to a device that they could purchase or that is already in their home that would provide a new way of compromising, so we would like to see companies taking all reasonable steps to address and action some of these security flaws before there is that public disclosure.
On your second point about services, our tech abuse team is a unique service in the country in providing specialist frontline support to tech abuse survivors, but it is a chronically under-resourced service. Perhaps in the context of this Bill, we would really like to see thought given to a percentage of the fines that the regulators collect for non-compliance by companies going, for example, to fund some specialist support services. I think that would fit within the wider ecosystem of enforcement as well. If we have specialist services that survivors can go to and ensure that they are sustainably funded and able to support survivors, that would contribute to the wider enforcement regime and awareness.
Chris Elmore
Q
Jessica Eagleton: It is not always thought about that the devices can be used in this way. A lot of the focus of companies in this space has been on how to prevent devices from being compromised by unknown third parties—hackers from overseas, for instance—rather than in the context of domestic abuse. Thinking about things like passwords and default passwords is a welcome step, but in the kind of relationships that we are talking about and dealing with on a daily basis, the perpetrator will force the survivor to divulge the passwords to their devices and all their online accounts. That is not necessarily always thought about by these companies.
However, we are engaging with the companies as much as we can on what we are doing as a smallish team. Thinking through what can be done in future, it is about continuing to place emphasis on and put work into safety by design, which means ensuring that, from the get-go, product manufacturers and designers are thinking about how these products could be misused by domestic abusers. It also means working in collaboration with specialist violence against women and girls services to ensure that those features are designed out as far as possible.
Chris Elmore
Q
Rocio Concha: In terms of the Bill, an example could be to change or tighten the definition that you have of distributors. In terms of implementation, online marketplaces are the gateway between the consumers and the manufacturers of these products. They are the ones that have the power to make sure that these products comply with the law. Let me give you an example. We routinely do product tests to identify security vulnerabilities with these products. Often when we go to the online marketplaces, we get the answer that, because there is no regulation, they cannot take these products out.
We need the regulation to be clear that any smart product needs to comply with these baseline security requirements. Also, we need regulation to put responsibility on the online platforms to make sure that they are monitoring proactively which products are being sold on their platforms. That is key, and I feel that it is not optional. It is quite clear what is going to happen. There are bad actors out there, manufacturing products that are not going to comply with the baseline requirements. They know that there are not going to be the necessary checks in there by the online marketplaces, but the consumer does not know. It is impossible for the consumer to make an assessment of whether the product will be secure or not. Unless we put in regulation, you can see where all these bad actors are going to go.
Sally-Ann Hart (Hastings and Rye) (Con)
Q
Rocio Concha: I personally think that yes, the Government should provide information to consumers so that they are aware of this. Organisations such as ours also play a role, and we play it. We continuously publish our findings on security vulnerabilities and the sorts of things that consumers can do to protect themselves. There is a need for more information for consumers in general so that they can be aware that when they put these products in their homes, unless they take certain steps and buy products that meet the regulations that we hope will soon be introduced, they are putting themselves at risk.
Jessica Eagleton: I would agree with what my fellow panellist has said. When we think about tech abuse, we see that awareness of it is quite low among the general public. In fact, in a survey we ran last year the results were that two thirds of women did not know where to go for information if they thought that a device in their home was compromised. There is a role there for that awareness piece. At Refuge, the approach we tend to take is to empower survivors to use technology safely and to take back control of their products and technology. We have developed a range of resources to do that, but we would welcome more work and more efforts on this more widely.
Product Security and Telecommunications Infrastructure Bill (Third sitting) Debate
Full Debate: Read Full DebateDepartment: Department for Digital, Culture, Media & Sport
Chris Elmore
Main Page: Chris Elmore (Labour - Ogmore)Department Debates - View all Chris Elmore's debates with the Department for Digital, Culture, Media & Sport
Product Security and Telecommunications Infrastructure Bill (Third sitting)
Chris Elmore ExcerptsThursday 17th March 2022
(2 years, 1 month ago)
Public Bill CommitteesRead Full debate Product Security and Telecommunications Infrastructure Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 17 March 2022 - (17 Mar 2022)
The Chair
We are now sitting in public and the proceedings are being broadcast. Before we begin, I have a few preliminary announcements. Hansard colleagues would be grateful if Members could email their speaking notes to hansardnotes@parliament.uk. Please switch electronic devices to silent. Tea and coffee are not allowed during sittings, but I have no guidance on jelly babies.
We now begin the line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room. It shows how the selected amendments have been grouped together for debate. Amendments grouped together are generally on the same or a similar issue. Please note that decisions on amendments do not take place in the order in which they are debated, but in the order in which they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment are taken when we come to the clause to which the amendment relates.
The Member who has put their name to the leading amendment in a group is called first. Other Members are then free to catch my eye to speak on all or any of the amendments in that group. A Member may speak more than once in a single debate. At the end of debate on a group of amendments, I shall call the Member who moved the leading amendment again. Before they sit down, they will need to indicate if they wish to withdraw the amendment or seek a decision. If any Member wishes to press any other amendment in a group to a vote, they need to let me know.
Clause 1
Power to specify security requirements
Chris Elmore (Ogmore) (Lab)
I beg to move amendment 6, in clause 1, page 1, line 17, at end insert—
‘(2A) The Secretary of State must exercise the power in subsection (1) so as to specify security requirements which make mandatory each of the first three guidelines in the Code of Practice for consumer IoT security published by the Department for Digital, Culture, Media and Sport on 14 October 2018 (“no default passwords”, “implement a vulnerability disclosure policy” and “keep software updated”).”
This amendment would set out the three security requirements expressly in Part 1 of the Bill rather than it being defined in future regulations.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clauses 2 and 3 stand part.
New clause 3—Report on security risks to UK consumer connectable products—
‘(1) The Secretary of State must prepare a report on the security risks to UK consumer connectable products—
(a) within the period 3 months beginning with the day on which this Act receives Royal Assent, and
(b) every 12 months thereafter.
(2) Any report prepared under subsection (1) must be laid before Parliament.’
This new clause would require the Secretary of State to lay before Parliament a report on the security risks to UK consumer connectable products.
Chris Elmore
It is a pleasure to serve under your chairmanship, Mr Stringer.
This important legislation establishes, through regulations, three core security requirements for “connectable products”. The requirements derive from the voluntary 2018 “Secure by Design” code introduced by the Department for Digital, Culture, Media and Sport. The inclusion of these three requirements is, without doubt, a step that the Opposition welcome. However, we believe that the legislation can be improved, and that the three security requirements, rather than being defined in future regulations at the discretion of the Secretary of State, should be expressly set out in the Bill. That would be beneficial for two reasons. First, it would give manufacturers and distributors a greater understanding of the legal obligations that they face, thus speeding up the entire process. Secondly, it would ensure that the consumer was better protected, which I am sure we all agree would be a good thing. The consumer rights group Which? emphasised that when it gave oral evidence on Tuesday.
New clause 3 would require the Secretary of State to publish a report on the security risks to UK connectable products. On Tuesday, Madeline Carr, professor of global politics and cyber-security at University College London, said that she does not have an Alexa in her house because of the security risks that those devices, and others like them, pose. Tellingly, she also said that the Bill as constituted would not give her sufficient confidence to purchase one. Given that, and given the tragic scenes unfolding following Russia’s invasion of Ukraine, and the willingness of that rogue regime to engage in state-sponsored cyber-warfare, the Opposition believe it is in the public and national interest to understand how secure our connected products really are. We are becoming more reliant on smart devices in our daily life, both professionally and personally. It is imperative that the security of these devices is routinely monitored and reported on.
As I stated on Second Reading, the Opposition support the Bill, but believe it can be strengthened. Amendment 6 and new clause 3 would ensure that consumers were better protected and more aware of the threats facing their connected devices. As such, I believe that all Committee colleagues should support amendment 6 and new clause 3.
The Minister for Media, Data and Digital Infrastructure (Julia Lopez)
It is a pleasure to serve under your chairmanship, Mr Stringer. I apologise for giving you a dilemma about the advice on jelly babies. I will start with a few words about the importance of the Bill. As we heard from our panels of witnesses this week, and as we know from our increasing dependence on technology, improving protection for consumers and networks from a range of harms associated with cyber-attacks is incredibly important. In the first half of last year, there were 1.5 billion attempted compromises of internet of things devices—double the 2020 figure for the same period. Voluntary standards, such as the 2018 code of practice for consumer IOT security, are not being adopted quickly or consistently enough. That is why we need legislation to progress security in the design of consumer connectable products.
Before turning to amendment 6, I thank the hon. Member for Ogmore for the constructive and helpful way that he has approached the legislation and for the Opposition’s broad support of it. As this is the first Bill that I am taking through the House in its entirety, I am particularly grateful for that constructive approach. It may reassure him that the Government are committed to introducing security requirements based on the first three guidelines through regulations at the earliest appropriate opportunity. We have consulted on those security requirements and have communicated them extensively.
We have not been vague on the matter. In April 2021, we published our response to the call for views on consumer connectable product security legislation. We stated in detail how the three security requirements would work. When the Bill was announced by Her Majesty at the start of the Session, we repeated that commitment. Indeed, as hon. Members will see in the Bill’s explanatory notes, we have again committed to those three requirements. We made that clear from the start for an important reason: we need industry to act and prepare for implementation. We do not want surprises for manufacturers, importers or distributors. They know what they have to do.
Amendment 6 is unnecessary, but might also be dangerous. We are keen to ensure that the legislation retains flexibility, so that it can adapt to and reflect the changing threat landscape, and the security requirements needed to address it. What might seem like a no-brainer security requirement today might become a security threat or barrier to security innovation in years to come.
Amendment 6 reaches back to 2018, when our code of practice was first published. Security requirements have developed since then. When the Bill is implemented, we do not think it should be constrained by what was appropriate five years ago. The requirements we will introduce are based on the first three guidelines in the code of practice, but they also contain necessary improvements. They are up to date, more detailed and have been translated into practical requirements that businesses can implement to get the right security outcomes without unnecessary burden. Stakeholder engagement and impact assessment work conducted since 2018 ensures that the guidelines are nuanced, and are in a robust and enforceable statutory framework that delivers optimal security outcomes.
Finally, hon. Members may not be aware that because this new legislation will impact on manufacturers globally, we have given notice of the Bill to the World Trade Organisation. We invited comments on our proposals two years ago, and when the Bill was introduced to Parliament, we gave notice again. We have worked to ensure that all manufacturers understand our intentions. Amendment 6, if accepted, would cause confusion by taking us back to 2018, and away from the more developed position we have reached on the three principles. That would cause market confusion, require new notification to the WTO, and potentially delay this vital regime from coming into force. With those reassurances, I hope the hon. Member will feel able to withdraw his amendment.
Clause 1 is needed to provide the Government with the necessary powers to specify and mandate security requirements, through secondary legislation, that businesses must comply with. There is a common notion that Governments are behind the curve when it comes to regulating technology. not in this case. By establishing a flexible and futureproof regulatory framework in this way, the Government can be agile and proactive in amending and introducing security requirements through regulations, in lockstep with tech innovation. Parliament will be able to scrutinise any future security requirements designated through the secondary legislation process and, as new threats emerge and international standards develop, we can act and set new security requirements, keeping consumer connectable product security up to date and fit for the future.
The purpose of clause 2 is to provide further detail about how the Secretary of State’s power to specify security requirements can be used. Clause 3 is essential because it provides the Secretary of State with powers to specify circumstances in which a person is deemed to have complied with the security requirements. The clause, when exercised, would provide more than one route to compliance and would provide the necessary flexibility to accommodate and recognise international standards and mutual recognition agreements where appropriate.
I turn to new clause 3. In practice, it would commit the Government to reporting on a fixed basis on the security risks posed by products affected by the Bill. Those reports would be laid before Parliament. Cyber-security is definitely not an area where the Government hold back on publishing information. If we are to raise the cyber-resilience of the nation, we need to ensure that everyone is clear about the threat. In December, we published our national cyber strategy. The Government will continue to publish regular reports on our progress on that strategy, as we did with regard to the previous strategy. The Government also publish an annual report that surveys cyber-breaches across the economy. This report, together with others, forms a key part of the evidence base used to inform organisations about action to take to raise security standards. Indeed, the breaches survey meets the quality threshold to be managed as a set of official statistics.
Our National Cyber Security Centre is also a model of transparency. It is there to advise businesses, and guide them towards better managing cyber-threats. It publishes an annual report, and for those who want to focus on consumer connectable products, it provides specific advice on those, too. Parliament is already regularly kept informed of cyber-security matters; our regular publications are placed in the Library. Our national strategy, implemented with £2.6 billion of investment, is overseen by the Public Accounts Committee. The Intelligence and Security Committee and the Joint Committee on the National Security Strategy provide further oversight. Also, there are mechanisms for holding the Government to account in the manner intended by the provision, such as regular parliamentary debates and questions.
Cyber-security is a fast-moving and sensitive topic. A fixed-period reporting clause that imposes an obligation to report on security risks may duplicate existing activity. Such a system would also lack the agility necessary to enable us to report quickly when threats are identified. It may reassure the hon. Gentleman to know that the Secretary of State will be required to review the effectiveness of the Bill’s enforcement regime; they, or the designated enforcing authority, will be required to report on that to the relevant departmental Select Committee after Royal Assent. The enforcement authority will also report its activity and findings, where appropriate. The measures already in place will likely meet the intention behind new clause 3. For the reasons that I have set out, I do not accept the need for the new clause.
I turn to the points that the hon. Gentleman raised about Dr Carr’s concerns about Alexa, which I also found eye-catching. A lot of secondary legislation comes with this Bill, and that will hopefully reassure Dr Carr. I also note the comment made by a lot of our witnesses: we can never have 100% security with those devices. I therefore commend clauses 1 to 3 to the Committee.
Julia Lopez
I thank the hon. Member for Cardiff West for his contribution and his kind comments. I will have to get back to him on the precise figures that he identified in the impact assessment. However, in relation to the breadth of the impact assessment, he will know from this legislation that we are taking a broad range of powers. As we debated earlier, that is very deliberate because this is a fast-moving area. Technology is developing faster than Parliament can regulate it, which is a major challenge for Governments around the world. The Bill will help us to be nimble and agile in how regulate that technology.
A lot of the issues that the hon. Gentleman has concerns about will be something for secondary legislation, which we will be developing hand in glove with businesses so that we understand what is changing in the technological world and what impact that will have on matters such as the disposal of devices. I share his concerns about the environmental impacts if we get the regulations on that wrong—none of us wants to see a lot of technology become redundant.
We are trying to help consumers have more information so that if someone buys a device, they do not necessarily have to dispose of it simply because the period for which the manufacturer says it is covered has expired. It will be up to the consumer to decide whether to keep that device if they think it is less secure than it otherwise might be. It has been controversial to take these broad powers. We understand the concerns that any Parliament would have about the level of scrutiny it will have. However, the Government think that this is right because, as I say, we have to maintain that agility.
The hon. Member for Cardiff West referenced the points raised by Dr Carr. As I said earlier, I share those concerns. What we are trying to do is raise the level of security overall; we want to help consumers and manufacturers to understand this as an issue. This was initially a voluntary code, which did not do enough to make manufacturers take the cyber obligations seriously. There was an interesting discussion on the panels earlier this week when one contributor—I cannot remember who it was exactly—said that the legislation will give boards the spark or impetus to discuss and get funding for these kinds of cyber-security requirements for their products. If it is voluntary, it is very hard for anybody to make the case within their company that they need to take cyber-security seriously.
We hope that the secondary legislation will allay some of Dr Carr’s concerns. We will never have 100% security, but we hope that these provisions will raise the bar overall and help to raise consumer and manufacturer awareness of cyber as a whole. I hope that those comments will reassure the hon. Gentleman. I also assure him that we will look at how to get the balance right in the secondary legislation, and we will be in close contact with businesses as we do so.
Chris Elmore
I listened to what the Minister had to say, in particular in relation to amendment 6. I take her at her word; it is a probing amendment, so I will withdraw it on the basis that she will bring forward secondary legislation in relatively short order. As she mentioned, cyber-security is a fast-paced and changing environment, so it is important that we do not wait a number of years for additional improvements to legislative competence.
On the basis of what the Minister said, I am also happy not to move new clause 3. However, I wonder whether she could write to me setting out the reporting periods that she mentioned, particularly in terms of the DCMS Committee, following Royal Assent—assuming that the Bill gets Royal Assent, which I am sure it will—as well as the other reporting obligations that she says the Secretary of State or reporting officer will have. The new clause seeks to place a requirement on the Secretary of State specifically in this new legislation. If the Minister feels that those things are already in train or are part of the reporting process, that is fine, and I am happy not to move the new clause. However, it would be good to have that list for future understanding—particularly if reporting does not take place, in which case the Opposition will hold the Government to account.
Julia Lopez
I am happy to write to the hon. Gentleman and offer those assurances. A new body will also be set up, which will probably have its own reporting requirements in relation to this legislation. These things will be developing, but I am happy to offer him the assurances he requested.
Chris Elmore
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 1 to 3 ordered to stand part of the Bill.
Clause 4
Relevant connectable products
Question proposed, That the clause stand part of the Bill.
Julia Lopez
Clauses 4 to 6 define the products to which the new regulatory regime will apply. Clause 4 introduces the terms “internet-connectable product”, “network-connectable product” and “excepted product”. Clause 5 defines the terms “internet-connectable” and “network-connectable”. It is a pivotal clause in capturing the necessary products that make up a huge part of the internet of things threat landscape. Any network is only as secure as its weakest link, and that could be a single consumer connectable product.
Focusing on a product’s capabilities—instead of attempting to exhaustively list all consumer connectable products—is part of our agile, future-proof approach. We are ensuring that the Bill will remain relevant and effective by capturing new consumer technologies that come to market, based on their capabilities and the risks they present.
Many products captured by the Bill are capable of connecting to the internet, exposing them to remote access and attack. Those are “internet-connectable products”, such as routers, smartphones and certain smart appliances. Some products captured by the Bill are not able to connect to the internet directly, but can connect to other products. In doing so, they can form, and contribute to the formation of, networks, meaning that vulnerabilities in those products can open the door to cyber-attack. Those are “network-connectable products”, such as certain smart lightbulbs, smart home products, and headphones.
Clause 6 defines the term “excepted product”. It allows the Secretary of State to except products from the scope of the Bill via regulations. The Government intend to except products from the scope of the Bill where inclusion would subject them to double regulation or be disproportionate to their risk profile. The Government have consulted on that approach. Products such as electric vehicles, medical devices and smart meters will be excepted from scope because they are already, or soon will be, covered by alternative regulation. I therefore commend clauses 4 through 6 to the Committee.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clauses 5 and 6 ordered to stand part of the Bill.
Clause 7
Relevant persons
Chris Elmore
I beg to move amendment 7, in clause 7, page 5, line 24, at end insert—
“(5A) A person who provides an online facility through which a distributor makes a product available in the United Kingdom is also a distributor.”
This amendment would ensure that online marketplaces are considered to be distributors and are thus subject to the security requirements of the Bill.
Chris Elmore
The amendment itself is fairly self-explanatory. However, I will take the opportunity to speak briefly on it in the hope of persuading Conservative Members—and indeed the Minister—to support it.
Clause 7 defines the relevant persons subject to the security requirements as being manufacturers, importers and distributors. Crucially, however, online platforms such as eBay and Amazon are not defined as falling under any of those categories. To my mind, that is both deeply concerning and preposterous, given that, under any definition, online platforms such as the two I have just mentioned are without doubt distributors themselves.
I am sure everyone in this Committee has either sold or bought something through eBay or Amazon. The oversight in the Bill has real-world consequences, as products sold on those online platforms will not be policed in the same way. That is problematic, as research by groups such as Which?—which we heard evidence from earlier this week—has consistently shown that online marketplaces are flooded with insecure products, while the Bill would do nothing to increase the legal responsibility online marketplaces have for the safety and security of products sold through them.
In tabling the amendment, we are merely expanding the number of organisations that the security requirements would apply to, in order to better protect all our constituents, which is the expressed aim of the Bill according to the Minister’s opening remarks and indeed those of the Secretary of State at Second Reading. I therefore urge the Minister and all Committee members to support the amendment.
Kevin Brennan
I support my hon. Friend in pressing the amendment to a vote. As we heard from the Minister, the Bill covers quite a lot of different devices. The examples given by the Government in their impact assessment include the following:
“Smartphones; connectable cameras, TVs and speakers; connectable children’s toys and baby monitors; connectable safety-relevant products such as smoke detectors and door locks; Internet of Things base stations and hubs to which multiple devices connect; wearable connectable fitness trackers; outdoor leisure products, such as handheld connectable GPS devices that are not wearables; connectable home automation and alarm systems; connectable appliances, such as washing machines and fridges”
and, as we have heard, “smart home assistants”, including things such as Alexa-type smart speaker products.
Julia Lopez
As I say, we are putting requirements on not just manufacturers, but the importer. The importer would be under an obligation to check whether the product fulfilled some of the requirements we would have for it, as would the distributor. I would hope that, along the chain, that product would have been checked several times to make sure it complies.
We have done a lot of work on general cyber-resilience. I will take this opportunity to add that it is also important that we as Members of Parliament try to make our constituents aware of the increasing challenges we face with cyber-resilience, and that we all need to have our own cyber-hygiene in that regard.
The amendment is well intentioned—we understand where the hon. Member for Ogmore is coming from—but it is drafted in a way that would have a much broader reach than just online marketplaces. It would impose security requirements on businesses that cannot comply with them, such as advertising platforms and website hosting services. Distributors use many online facilities offering a vast array of cloud services to support e-commerce to make their products available. As drafted, the amendment would extend duties beyond what is intended.
The Government have carefully considered the amendment. It is clear that our intention is to secure consumer connectable products in the most effective and proportionate manner, without hindering business growth and the online retail facilities enjoyed by consumers. For the reasons I have set out, I am not able to accept the amendment. I hope the hon. Gentleman will consider withdrawing it.
I turn now to chapter 2 of the Bill and clauses 8 to 25. These clauses place duties on businesses in the supply chain of a consumer connectable product to comply with security requirements. Compliance is fundamental to the operation of the regulatory regime. Under these clauses, manufacturers, distributors and importers must prepare, or ensure the presence of, a document to accompany the product that states that, in the opinion of the manufacturer, it has complied with the security requirements, before that product is made available in the UK. I note the point that was made about baby monitors. I hope that, in that process, there would be clear information and a record provided with the product that stated compliance.
The clauses in chapter 2 also require that businesses take all reasonable steps to investigate a compliance failure or potential compliance failure. That is vital to hold businesses accountable for complying with their security requirements and to mandate investigation of potential compliance failures. If compliance failure has occurred, businesses in the supply chain must take all reasonable steps to prevent the product from reaching UK customers and remedy the compliance failure. The measure is needed to ensure that insecure products do not remain on the market and that those that have not yet reached UK customers are prevented from doing so.
Finally, the clauses in chapter 2 require manufacturers and importers to retain records of compliance failures and investigations for at least 10 years. The Secretary of State is able to request this information to investigate and to enforce the legislation. These duties encourage ongoing compliance and accountability. The records will allow a clear audit of the importer’s and manufacturer’s activities, so that we can have effective enforcement.
Chris Elmore
I have listened to the Minister. The Opposition are not in any way suggesting that the Government do not do an awful lot on cyber awareness-raising. All Governments could do more—that is the nature of teaching and learning and of being able to get our constituents to understand the cyber-security space and the impact that it can have on their homes.
In response to my hon. Friend the Member for Cardiff West, the Minister mentioned the belt-and-braces approach. However, organisations such as Which? say that there is an exemption for online marketplaces such as Amazon and eBay. The Online Safety Bill has of course been published today, and there are economic crime impacts linked to this. If this is a belt-and-braces approach, as the Minister says, surely another level of protection would be to include the online marketplaces. She says there are three stages that could be protected—importer, product design and distribution—but there is this gap through which some products could come. Therefore, I am not minded to withdraw the amendment and would ask the Committee for a decision.
Question put, That the amendment be made.
Julia Lopez
Clause 58 deals with the sharing of telecommunications apparatus between operators within the electronic communications code. It inserts a right to share apparatus into paragraph 3 of the code, which sets out a list of rights that are statutory “code rights.” The code rights in paragraph 3 must be conferred on an operator by an occupier or imposed by a tribunal. The 2017 code reforms introduced paragraph 17 automatic rights, allowing operators to upgrade or share their apparatus without the need for an agreement. Those automatic rights are separate from the paragraph 3 code rights and are subject to strict limitations.
Since their introduction, there has been confusion about the interaction between the paragraph 17 automatic rights and the paragraph 3 code rights. In particular, while “upgrading” is a paragraph 3 code right, sharing is not. Clause 58 addresses this by making apparatus sharing a paragraph 3 code right that an operator—the “first operator”—can request to be included in an agreement to which the code applies. Clause 58 also amends the statutory purposes in paragraph 4 of the code to include sharing activities.
Apparatus sharing is a cost-effective way for operators to extend their networks without having to build extensive infrastructure themselves, helping to deliver greater coverage, capacity and consumer choice, while reducing impacts on the environment and disruption caused by installation works. As with the other code rights, if agreement on rights to share cannot be reached consensually, an operator may ask a tribunal to impose the requested rights. In those circumstances, the tribunal will apply the public benefit test and the statutory valuation regime, as it already does for other code rights.
If the right to share is a statutory code right, the factors that a tribunal will consider in deciding whether such a right should be imposed—and if so, on what terms—will be the same as those for all other code rights. Including a right to share apparatus in the paragraph 3 code rights will therefore provide greater certainty for all parties and support smoother negotiations.
Code rights can only be obtained in relation to land. Consequently, the new right to share apparatus can be requested only by the first operator that is keeping apparatus installed on, under or over land. A second operator that wishes to share the use of that apparatus will not be able to request from an occupier a paragraph 3 right permitting them to do so. Instead, once the occupier has conferred such a sharing right on the first operator, the second operator will need to negotiate the sharing of the apparatus with the first operator.
The first operator’s right to share their apparatus will, like other code rights, be exercisable only in accordance with the wider terms of the agreement. It will therefore be important for the first operator to consider carefully any terms that it may need included in its agreement with an occupier, such as additional access rights, to enable any subsequent sharing of the apparatus with other operators. To that end, clause 58 inserts corresponding code rights for the first operator to enter and carry out works on the land for the purpose of such apparatus sharing.
Finally, it should be emphasised that the new right to share introduced by clause 58 is entirely separate from the automatic rights to share that are currently available under paragraph 17 of the code, and to the rights introduced by clauses 59 and 60. Those are automatic rights—subject to specific conditions—that do not need to be agreed with a landowner or imposed by the courts. The rights in clause 58 cover situations where the operator wants rights to share over and above those automatic rights.
Government amendment 1 is a consequential amendment that reflects the restructuring of paragraph 3 provided for by clause 58(2)(a) of the Bill. It replaces cross-references to paragraph 3 of the code with cross-references to sub-paragraph 3(1).
Clause 58 introduces rights to share apparatus to the menu of code rights that is currently set out in paragraph 3 of the code. In doing so, new sub-paragraph 3(2) will be inserted into the code, setting out who can obtain a right to share apparatus. The current paragraph 3 will therefore become sub-paragraph 3(1) of the code. As there are references to paragraph 3 in other parts of the code, consequential amendments are necessary so that anyone reading the code is referred instead to the new sub-paragraph 3(1).
Amendment 1 agreed to.
Clause 58, as amended, ordered to stand part of the Bill.
Clause 59
Upgrading and sharing of apparatus: subsisting agreements
Chris Elmore
I beg to move amendment 9, in clause 59, page 41, line 42, after “agreement” insert
“other than with a private landlord”.
This amendment, together with Amendments 10, 11 and 12, would apply a different regime under the Electronic Communications Code to private landlords, giving automatic upgrade rights for operators to properties owned by private landlords subject to the condition that the upgrading imposes no additional burden on the other party to the agreement.
The Chair
With this it will be convenient to discuss the following:
Amendment 10, in clause 59, page 43, line 26, at end insert—
“5B (1) This paragraph applies where—
(a) an operator (‘the main operator’) keeps electronic communications apparatus installed on, under or over land, and
(b) the main operator is a party to a subsisting agreement in relation to the electronic communications apparatus.
(2) If the conditions in sub-paragraphs (3), (4) and (6) are met, the main operator may—
(a) upgrade the electronic communications apparatus, or
(b) share the use of the electronic communications apparatus with another operator.
(3) The first condition is that any changes as a result of the upgrading or sharing to the electronic communications apparatus to which the agreement relates have no adverse impact, or no more than a minimal adverse impact, on its appearance.
(4) The second condition is that the upgrading or sharing imposes no additional burden on the other party to the agreement.
(5) For the purposes of sub-paragraph (4) a burden includes anything that—
(a) has an adverse effect on the person’s enjoyment of the land, or
(b) causes loss, damage or expense to the person.
(6) The third condition is that, before the beginning of the period of 21 days ending with the day on which the main operator begins to upgrade the electronic communications apparatus or (as the case may be) share its use, the main operator attaches a notice, in a secure and durable manner, to a conspicuous object on the relevant land.
(7) A notice attached for the purposes of sub-paragraph (6) must—be attached in a position where it is reasonably legible,
(a) be attached in a position where it is reasonably legible,
(b) state that the main operator intends to upgrade the electronic communications apparatus or (as the case may be) share its use with another operator,
(c) state the date on which the main operator intends to begin to upgrade the electronic communications apparatus or (as the case may be) share its use with another operator,
(d) state, in a case where the main operator intends to share the use of the electronic communications apparatus with another operator, the name of the other operator, and
(e) give the name of the main operator and an address in the United Kingdom at which the main operator may be contacted about the upgrading or sharing.
(8) Any person giving a notice at that address in respect of that electronic communications apparatus is to be treated as having been given that address for the purposes of paragraph 91(2).
(9) Any agreement under Part 2 of this code is void to the extent that—
(a) it prevents or limits the upgrading or sharing, in a case where the conditions mentioned in sub-paragraphs (3), (4) and (6) are met, of any electronic communications apparatus to which the agreement relates that is installed on, over or under land, or
(b) it makes upgrading or sharing of such electronic communications apparatus subject to conditions to be met by the operator (including a condition requiring the payment of money).
(10) Nothing in this paragraph is to be read as conferring a right on the main operator to enter the land which the main operator would not otherwise have, when upgrading or sharing the use of the electronic communications apparatus.
(11) References in this paragraph to sharing electronic communications apparatus include carrying out works to the electronic communications apparatus to enable such sharing to take place.
(12) In this paragraph—
‘the relevant land’ means—
(a) in a case where the main operator has a right to enter the land, that land;
(b) in any other case, the land on which works will be carried out to enable the upgrading or sharing to take place or, where there is more than one set of works, the land on which each set of works will be carried out;
‘subsisting agreement’ has the meaning given by paragraph 1(4) of Schedule 2 to the Digital Economy Act 2017.”
This amendment, together with Amendments 9, 11 and 12, would apply a different regime under the Electronic Communications Code to private landlords, giving automatic upgrade rights for operators to properties owned by private landlords subject to the condition that the upgrading imposes no additional burden on the other party to the agreement.
Clause stand part.
Amendment 11, in clause 60, page 43, line 38, after “land” insert
“not owned by a private landlord”
This amendment, together with Amendments 9, 10 and 12, would apply a different regime under the Electronic Communications Code to private landlords, giving automatic upgrade rights for operators to properties owned by private landlords subject to the condition that the upgrading imposes no additional burden on the other party to the agreement.
Amendment 12, in clause 60, page 44, line 47, at end insert—
“17B (1) This paragraph applies where—
(a) an operator (‘the main operator’) keeps electronic communications apparatus installed on, under or over land owned by a private landlord,
(b) the main operator is not a party to an agreement under Part 2 of this code in relation to the electronic communications apparatus, and
(c) the electronic communications apparatus was installed before 29 December 2003.
(2) If the conditions in sub-paragraphs (3), (4) and (6) are met, the main operator may—
(a) upgrade the electronic communications apparatus, or
(b) share the use of the electronic communications apparatus with another operator.
(3) The first condition is that any changes as a result of the upgrading or sharing to the electronic communications apparatus to which any existing agreement between the operator and the landlord relates have no adverse impact, or no more than a minimal adverse impact, on its appearance.
(4) The second condition is that the upgrading or sharing imposes no additional burden on the landlord.
(5) For the purposes of sub-paragraph (4) a burden includes anything that—
(a) has an adverse effect on the person’s enjoyment of the land, or
(b) causes loss, damage or expense to the person.
(6) The third condition is that, before the beginning of the period of 21 days ending with the day on which the main operator begins to upgrade the electronic communications apparatus or (as the case may be) share its use, the main operator attaches a notice, in a secure and durable manner, to a conspicuous object on the relevant land.
(7) A notice attached for the purposes of sub-paragraph (6) must—
(a) be attached in a position where it is reasonably legible,
(b) state that the main operator intends to upgrade the electronic communications apparatus or (as the case may be) share its use with another operator,
(c) state the date on which the main operator intends to begin to upgrade the electronic communications apparatus or (as the case may be) share its use with another operator,
(d) state, in a case where the main operator intends to share the use of the electronic communications apparatus with another operator, the name of the other operator, and
(e) give the name of the main operator and an address in the United Kingdom at which the main operator may be contacted about the upgrading or sharing.
(8) Any person giving a notice at that address in respect of that electronic communications apparatus is to be treated as having been given that address for the purposes of paragraph 91(2).
(9) Nothing in this paragraph is to be read as conferring a right on the main operator to enter the land which the main operator would not otherwise have, when upgrading or sharing the use of the electronic communications apparatus.
(10) References in this paragraph to sharing electronic communications apparatus include carrying out works to the electronic communications apparatus to enable such sharing to take place.
(11) In this paragraph ‘the relevant land’ means—
(a) in a case where the main operator has a right to enter the land, that land;
(b) in any other case, the land on which works will be carried out to enable the upgrading or sharing to take place or, where there is more than one set of works, the land on which each set of works will be carried out.”
This amendment, together with Amendments 9, 10 and 11, would apply a different regime under the Electronic Communications Code to private landlords, giving automatic upgrade rights for operators to properties owned by private landlords subject to the condition that the upgrading imposes no additional burden on the other party to the agreement.
Clause 60 stand part.
Chris Elmore
These amendments would apply a different regime to private landlords under the 2017 electronic communications code, giving operators automatic upgrade rights for properties owned by private landlords, subject to the condition that the upgrading imposes no additional burden on the other party to the agreement.
When we talk of the digital divide in our telecommunications infrastructure, we often speak of it in terms of a divide between rural and urban areas. Indeed, it is true that a divide exists between rural and urban areas in levels of connectivity, and the Bill has been designed to help reduce the rural-urban connectivity gap, which the Labour party wholeheartedly supports.
However, a division also exists within urban areas themselves. Catherine Colloms, the managing director of Openreach, said in evidence that it is particularly difficult for Openreach and similar organisations to upgrade properties that are owned by private landlords to full fibre. Openreach alone currently has 55,802 multi-dwelling unit premises on hold. Based on this, it is forecast that 1.5 million MDU premises could be unserved by the end of the commercial roll-out.
Chris Elmore
I have listened to the Minister and the debate that followed her speech. The argument is slightly confused, because in the oral evidence sessions, CityFibre and Openreach were in agreement on the need to address the issue. They were also in agreement on the huge deficit in meeting the Government’s targets because of issues in gaining access to flats and properties through leaseholders and site owners.
In answer to the question about the response of tenants or property owners inside the flats, the providers said that it was overwhelmingly positive; they wanted to gain fibre roll-out. As I mentioned in my opening remarks, nearly 56,000 MDU premises are on hold through the roll-out, so what is the plan? What is the solution to deal with the digital divide that is forming in cities and towns across the UK? It was mentioned in evidence that my Ogmore constituency has only 3% MDUs. If I recall correctly, the hon. Member for Hastings and Rye’s constituency was above 13% or 14%—higher again, she is indicating. The numbers increase depending on the area. How will we solve that problem?
Equally, I agree with my hon. Friend the Member for Cardiff West. We cannot simply say that, as we move to more online learning, and more remote working or working from home—business is supportive of that following the pandemic, even if the Government are asking everyone to come back to the office—people now have far greater understanding of their broadband, including its bandwidth, who installed it, who runs it and the costs, than they ever did before the pandemic because everyone needed to use Zoom and Teams; although, personally, there are days when I would rather not use them ever again.
I am minded to press the amendment to a Division, for the reasons that I and my hon. Friend set out. I am not hearing from the Minister what the plan is to rectify the problem. According to Openreach and other providers, the figure for premises on hold is going up year after year, and therefore the target will be missed, despite the Government reducing it at least twice since 2019.
Question put, That the amendment be made.
Product Security and Telecommunications Infrastructure Bill (Fourth sitting) Debate
Full Debate: Read Full DebateDepartment: Department for Digital, Culture, Media & Sport
Chris Elmore
Main Page: Chris Elmore (Labour - Ogmore)Department Debates - View all Chris Elmore's debates with the Department for Digital, Culture, Media & Sport
Product Security and Telecommunications Infrastructure Bill (Fourth sitting)
Chris Elmore ExcerptsThursday 17th March 2022
(2 years, 1 month ago)
Public Bill CommitteesRead Full debate Product Security and Telecommunications Infrastructure Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 17 March 2022 - (17 Mar 2022)
Chris Elmore (Ogmore) (Lab)
I beg to move amendment 8, in clause 61, page 45, line 37, at end insert—
“(4A) Where the assumptions in subsection (4) cause the market value of a landlord’s agreement to decline, the rent payable under a new tenancy granted by order of the court under this Part of this Act shall not decline by more than 40%.”
This amendment would provide a legal guarantee that site providers’ rents fall by no more than 40% under any new agreement.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clauses 62 to 65 stand part.
Chris Elmore
The Government introduced the electronic communications code in 2017 and promised at the time that reductions in rent would, in reality, be no more than 40%. However, as we heard from Protect and Connect during Tuesday’s evidence session, there have been thousands of cases in which small tenant farmers, sports clubs and community organisations that host masts have seen their rents fall by vastly more than that, with many facing reductions of more than 90%. That was confirmed during the evidence session, when a question was asked about the average, followed by questions from other Members, including me. That clearly showed that there had been far higher reductions for some organisations and owners. One such case is James, a 71-year-old sheep farmer who has maintained a mast on his farm for 15 years, normally receiving £2,900 a year in rent. In 2020, James received a letter informing him that he was now being offered £200 a year under a new agreement. That was a reduction of 93% and a huge overnight shock to his personal and professional finances.
The average reduction for contracts negotiated by Cellnex UK, as Mark Bartlett informed us on Tuesday, has been 63%—a decrease that would cause a huge dent in the finances of all the kinds of organisation I have referred to and a figure well above what the Government promised in 2017. I am sure that members of this Committee would not be best pleased if a significant stream of their income fell by 63%.
I know that the Minister said at Second Reading that valuations pre 2017 were much too high, but surely she must recognise, after the oral evidence we heard on Tuesday, that the race to the bottom that we are seeing is not sustainable and that the level of reduction in rent that is occurring will deter other landowners from agreeing to host infrastructure in the first place, thus slowing the roll-out that this very legislation is designed to speed up.
Rather than leaving reductions to chance, the Opposition have tabled amendment 8, which would enshrine in law that rents under any new agreement fall by no more than 40%. That would strike a much fairer balance between operators and site providers by ensuring that what is a significant income stream for many individuals and community groups is not wiped out overnight. It would also contribute significantly to a faster roll-out of telecommunications infrastructure, as site owners would be more willing to engage. Speeding up the roll-out of new telecommunications infrastructure is the express desire of the Bill. I hope that Members from across the Committee will stand squarely behind their constituents by supporting this amendment.
Kevin Brennan (Cardiff West) (Lab)
I rise briefly to support my hon. Friend in pushing the amendment, in order to hear what the Minister has to say in response. The amendment goes to the heart of what a lot of the Bill is about: balancing the rights of private property owners and the policy requirement to speed up the roll-out of digital infrastructure.
This morning we debated an instance in which there would be no real financial cost to the private property owners from doing the right thing. In that instance, the state was ensuring that their properties could be accessed to put in the necessary infrastructure to roll out digital infrastructure in an urban setting—big blocks of flats, where lots of people might not have very good access to the internet and so on. In that instance, the Government were not prepared to accept our amendment, even though it would not have had any significant detrimental impact on the private property owners. In other words, they took the view that in that instance the private property owners, even if they would be only marginally inconvenienced, had to have their property rights protected, because this was a retrospective imposition and they would not have given permission.
In this instance—in fairness, I think this was not intended in 2017—private property owners have suffered, or might suffer, significant detriment to the income they can acquire through somebody else’s use of their land with the state’s assistance. In those circumstances, it is not unreasonable to say that the balance should be to ensure that they are not affected in a way that causes a massive reduction in the income they can earn from the use of their land.
If that was not a strong enough argument in itself, which perhaps it is not, the way the market has reacted to what happened after 2017 and the problems that there have undoubtedly been, with people reluctant to get involved with rolling out the infrastructure we need for the future, which we all want to achieve through the Bill and by other means, is further evidence that an adjustment perhaps needs to be made. The Minister could discuss with the Committee whether that adjustment is exactly what is contained in the amendment, but whether something should be done to address the arguments and concerns that have been expressed to us by those who own land on which such infrastructure is sited is certainly worth further consideration.
The Minister for Media, Data and Digital Infrastructure (Julia Lopez)
I thank the hon. Members for Ogmore and for Cardiff West for their contributions and for the amendment. I acknowledge that this is a tricky issue. There have been problems between both parties since the 2017 reforms, but we maintain that the 2017 valuation provisions created the right balance between the public need for digital communications and landowner rights. I think there is agreement that the prices being paid for rights to install communications apparatus before that date were simply too high. With digital communications becoming an increasingly critical part of our daily lives, that needed to be addressed.
The new pricing regime is more closely aligned to those for utilities such as water, electricity and gas. We think that that is the correct position. As I said earlier today, we are not seeking to take sides. We are on the side of good digital connectivity for our constituents, and we firmly believe that landowners should still receive fair payments that, among other things, take into account any alternative uses that the land may have and any losses or damages that may be incurred. I was alive to the concerns expressed to me by the Protect and Connect campaign, but also to those raised by individual Members about tricky constituency cases. When I came into my role in September, I met individual Members to discuss those cases. I also met Protect and Connect.
I tested the cases that were brought to my attention and asked for further details, which often were not forthcoming. There was a catch-all excuse that a lot of them were under non-disclosure agreements and the precise amount of rents settled at could not be disclosed. My broad view is that there were initial concerns and difficult cases where the mobile network operators were too aggressive in their negotiations—I think that was effectively acknowledged in the panel discussions earlier in the week—but we seem to have found an equilibrium now, helped partly by some of the cases that have gone through the courts.
We now have a body of case law that can be referred to in some of these tricky negotiations. We are also trying to deter people from going to the courts in the first place, by introducing more alternative dispute resolution mechanisms. I say that to reassure Members. There were problems initially. As far as I can tell from my case load, the correspondence coming in, the discussions that I have had with Members and the lack of additional noise on the subject in the Chamber, a better equilibrium has now been found between the mobile network operators and the landowners. If that is not the case, I am happy to look at those cases again, and we are introducing mechanisms to provide better negotiations between parties via the legislation.
Turning to the amendment, I am not sure why the hon. Member for Ogmore thinks that a specific limit should be imposed on the percentage by which rent can be reduced when the rental payment is determined by a court. Further, it is unclear why he has chosen arbitrarily to apply a figure of 40%. We have strongly resisted specifically regulating the amount of rent payable under a code agreement. Our preference has been to allow the parties to freely negotiate the amount payable under an agreement, based on a statutory framework either in the code, the Landlord and Tenant Act 1954 or the Business Tenancies (Northern Ireland) Order 1996. Even where the parties cannot reach an agreement and the court has to impose its terms, including the rent to be paid, the court has the freedom to reach its own conclusions using that framework, rather than having its discretion restricted by statutory rent controls. As I said, my understanding is that we now have a much better equilibrium, in that we have amounts of rent that both parties are much more content with.
I understand the concerns about whether this has stymied roll-out. If operators cannot get their infrastructure on to land, I imagine that they would start paying more to try to incentivise landowners to take it on. I think we have also seen cases where it has been in the landowner’s interests to try to drag the process out so that they are on the old rents, rather than the reduced, new rents. I think that has also contributed to some of the delays.
If the amount of rent is controlled in the way suggested in this amendment, we will be heading closer to a regime that will apply reductions on a blanket basis, rather than take into account the broader range of relevant circumstances, as permitted by the legal framework. I suspect that that is something that both site providers and operators would be keen to avoid.
I am aware that it has been alleged that the Government expected rents to fall by in the region of 40% following the 2017 reforms. It is unclear whether it is on that basis that the hon. Member for Ogmore chose the statutory cap of 40% in his amendment. At the time of the 2017 reforms, which I confess predate me, the fact is that the Government were unsure what the level of rent reductions would be. We were clear that that was the case. Independent analysis contained in the impact assessment that accompanied those reforms predicted that reductions could be 40%, but that was never a Government prediction nor a target.
Chris Elmore
I did say in my opening remarks where the 40% comes from. Just to help the Minister, it does relate to the 2017 change, but also the Government’s own analysis from the time. I do of course accept that she was not the Minister, but her party was in government, and those are her own Government’s figures.
Julia Lopez
That certainly is a fair point to make, and I apologise for not picking that up in the hon. Member’s comments.
A cap is likely to be even more detrimental to constituents in rural communities, who will benefit from the increased connectivity and reliability that we hope the Bill will bring.
As I have explained, agreements to which the code applies can currently be renewed in various ways, depending on the type of agreement and where in the UK it was entered into. The intention of clause 61, along with clause 62, is to create a clearer and more consistent legislative framework under which agreements are renewed. Central to that is ensuring that, no matter where in the UK an agreement is renewed, the financial terms are calculated in the same way. That will help to ensure that there is not a digital divide across the UK, with one country receiving additional investment at the expense of others because operating costs are cheaper.
The amendment suggests limiting any reduction in rent that may be imposed by the court when agreements are renewed under the 1954 Act. While that proposal is well intentioned, we do not believe that it should be allowed to proceed. It is vital that there is fairness throughout the UK. The Bill as drafted provides a clear framework, which will not only result in all payments being calculated in the same way, but in the ability to renew agreements quickly and cost-effectively. We think that will expand the digital network.
Chris Elmore
I listened to the Minister’s remarks, and she acknowledges some of the historical cases, but I refer her to this Committee’s first sitting, where I asked Eleanor Griggs of the National Farmers Union about reductions in recent cases. Ms Griggs said that in in recent times, the NFU had made representations in cases in which farmers had received 90% decreases. Later, she referred to a farm in the constituency of the hon. Member for St Austell and Newquay where there was a significant reduction, from £3,500 to £17.50 a year.
We have to acknowledge the impact on many organisations, including farmers, churches, and particularly community groups. I have examples in my constituency of community groups that run scout halls or guide huts losing 60%, 70%, 80% or 90% of the income they use to balance their budgets and ensure that they can run services for children and young people throughout the year. The Minister has committed to review even more of the cases that come through for her personal intervention, but I think there should be a minimum threshold of 40%, which the Government committed to previously in their impact assessment, as my hon. Friend the Member for Cardiff West pointed out. I am therefore not minded to withdraw the amendment. I also hope that their lordships will consider it as part of any future scrutiny in the other place.
Question put, That the amendment be made.
Julia Lopez
I am afraid I have to tell the Committee that this does not get any more inspiring.
The clause creates a bespoke process for telecoms operators to seek access to certain types of land where a person repeatedly fails to respond to requests for access to install apparatus under or over land for the purposes of providing an electronic communications service. The clause sets out that process by inserting into the electronic communications code new part 4ZA, which makes provision for a court to impose an agreement where the operator needs that person, “the landowner”, to confer or be bound by code rights. Part 4ZA will apply in situations where an operator intends to provide an electronic communications service and to achieve that must install electronic communications apparatus under or over, but not on, relevant land. “Relevant land” is defined as land that is not covered by buildings, and that is neither a garden, a park nor a recreational area. The provision also takes a power for the Secretary of State to specify through regulations further types of land that may be “relevant land”, but may only do so following consultation.
The provisions will require an operator to have given two warning notices, followed by a final notice. Those three notices all follow an initial request notice, giving a total of four. The Bill sets out that there must be a period of 14 days between the giving of each notice. For the landowner to fall out of scope of proposed new part 4ZA, all that is required of them is to respond to any of these notices in writing, before the operator applies to the court under part 4ZA. If any response is received, the operator will no longer be able to apply for a part 4ZA order and must either negotiate for a code agreement or apply for rights to be imposed by the courts in the normal way.
If granted, a part 4ZA order will impose an agreement between a landowner and an operator, conferring the rights requested in the initial notice. The terms of that agreement are to be specified in regulations. It may reassure the Committee that those regulations will be subject to the affirmative procedure. Furthermore, before the regulations are made, the Bill expressly obliges the Secretary of State to consult with a range of parties.
Importantly, the provisions impose a six-year maximum time limit on the period for which rights conferred under a part 4ZA order may last. I emphasise that detail, because it forms an important part of the Bill’s safeguards for landowners’ property rights. This clause provides a much needed process that will play a large part in ensuring that homes and businesses benefit from the national gigabit broadband upgrade and are not left behind.
I will now turn to the amendments tabled in relation to clause 66, all of which are technical amendments. Amendments 2 and 3 have been tabled in order to make a minor clarification to the text of the electronic communications code, to avoid any possible unintended interpretation of the legislation. Amendments 2 and 3 clarify that the right mentioned in paragraph 26(8) and paragraph 27G(4) of the electronic communications code to require the removal of apparatus applies in relation to apparatus placed under or over land. By inserting the words “under or over” into paragraph 26(8) and paragraph 27G(4) of the code, these amendments clarify that part 6 of the code may be used by a landowner to require the operator to remove apparatus installed “under or over”, as well as on, the land.
Without amendments 2 and 3, paragraph 26(8) and 27G(4) as currently worded may be interpreted to mean that while equipment installed on land under the “interim rights” or “unresponsive occupier” process could be removed via the part 6 process, equipment installed under or over land under these processes might not. That is not the policy intention, and as such this amendment is being introduced to clarify the policy position.
Amendment 4 makes a minor amendment to remove a provision which has been found to have no effect. The provision in question—paragraph 3(9) of the schedule to clause 66 in the Bill—was intended to ensure that part 5 of the code does not apply to the process created by clause 66 in the Bill. Part 5 of the code sets out that code rights may persist even after the agreement which underpins them expires. It was never intended that part 5 should apply to rights gained through part 4ZA, due to the importance of the time limits I have mentioned. The Bill provision that this amendment removes was intended to ensure that part 5 did not apply to rights gained through part 4ZA. However, we are satisfied a different part in the code already ensures this. As such, paragraph 3(9) in the schedule of the Bill has no real effect and ought to be removed.
In practical terms, there is no legal or policy change effected through this amendment, beyond increasing the clarity of legislation. This amendment simply removes a provision which had no effect in the first place, and thus tidies the legislation. I hope that everyone will accept that that is beneficial.
Chris Elmore
I want to make clear the Opposition’s support for clause 66. From all my conversations with industry, it is quite clear that where there is an unresponsive landowner, it is extremely complicated to then meet the public’s demands. If the Bill is about improving digital activity for all our constituents, particularly in some of the most rural and hard to reach communities—I find it hard to believe that includes my own constituency, but it does—then this is an important and welcome change.
Kevin Brennan
Despite the very thorough explanation that the Minister gave of what is a technical clause, I understand what the difference is between something being placed over or under land, but I am not sure what the difference is between something placed over or on land. There must be a technical reason why it is there; does she know the answer to that?
Julia Lopez
It is clearly desirable that legal disputes relating to code rights be dealt with as quickly as possible; that will minimise delays to network deployment and expansion in a number of ways.
Fast dispute resolution will make sure that, where the public interest test is satisfied, operators can get the rights they need for network deployment and expansion as soon as possible. It also means that where that test is not satisfied, that is identified promptly, so that operators know they have to explore different options. Finally, fast dispute resolution is in the best interests of all parties. Protracted legal proceedings take time, cost money and harm ongoing stakeholder relationships.
However, while we recognise that fast dispute resolution has a lot of benefit, it is important that there be no undue interference with the judicial process and the ability of courts to deal with cases justly. Time limits should not, for example, interfere with a court’s ability to provide the parties with sufficient opportunities to identify, locate or produce evidence. Any statutory provisions relating to the time within which disputes must be determined therefore require careful consideration and close scrutiny.
Legislation already makes limited provision for certain applications relating to new code rights to be heard within six months, but this provision sits outside the code; it is in the Electronic Communications and Wireless Telegraphy Regulations 2011. It was introduced in the course of our transposing European legislation, rather than as a specific element of the domestic code framework.
The new power in clause 70 will enable the Secretary of State to make regulations that are broader in scope, and can specify a period within which a full range of code-related disputes must be determined. As the clause makes clear, regulations made under it may amend or revoke provisions made under the 2011 regulations. That gives the Secretary of State flexibility to consider a full range of approaches, including having no time-limited period at all, if appropriate.
Other, wider measures that we are introducing in the Bill, and potentially in subsequent secondary legislation, will affect court resources. In many cases, the changes will ensure that caseloads are more evenly distributed, particularly between the first-tier and upper-tier tribunals. Rather than seeking to make changes relating to dispute time limits now, we are therefore putting in clause 70 a power permitting the Secretary of State to make regulations on this issue in future. That will enable the Government to revisit the measures as a whole, once the other measures in the Bill come into force, so that their overall impact can be assessed when considering whether changes are appropriate. We will, of course, work closely with the Ministry of Justice and the Northern Ireland and Scotland Governments before making any further proposals on this issue.
Amendment 5 provides a very limited power for the Secretary of State to amend a specified list of provisions in primary legislation. The provisions signpost to regulations about time limits for disputes on code rights. It is clearly desirable that legal disputes relating to code rights be dealt with very quickly. Any statutory provision relating to the time within which disputes must be determined requires careful consideration. The amendment ensures that, if changes are made to the existing regulations, corresponding amendments can be made to legislation that signposts those regulations.
Chris Elmore
This point also relates to previous clauses, but I think links best to clause 70. The Minister mentioned that the Secretary of State would review dispute resolution at a later date. Throughout the oral evidence sessions, there were calls from the NFU, Protect and Connect and other organisations for the dispute resolution to become compulsory. If resolutions were slowing down, and decisions were not being reached, would the Minister consider introducing, through secondary legislation, a compulsory element, so that we can avoid some of the concerns raised by the witnesses, particularly those representing landowner and club groups and so on?
Julia Lopez
I think it is implicit in what I said that we will keep all of this under close review, because we do not want any of the changes we make to slow the roll-out. We hope that the changes have their intended effect, which is ultimately not about any particular group’s interests, beyond their getting better digital connectivity. We are always happy to keep this under close review. We do not think a mandatory ADR would serve our overall goal. If problems come up over the next few years, these powers will enable us to make changes.
Amendment 5 agreed to.
Clause 70, as amended, ordered to stand part of the Bill.
Clause 71
Rights of network providers in relation to infrastructure
Question proposed, That the clause stand part of the Bill.
Product Security and Telecommunications Infrastructure Bill (Fifth sitting) Debate
Full Debate: Read Full DebateDepartment: Department for Digital, Culture, Media & Sport
Chris Elmore
Main Page: Chris Elmore (Labour - Ogmore)Department Debates - View all Chris Elmore's debates with the Department for Digital, Culture, Media & Sport
Product Security and Telecommunications Infrastructure Bill (Fifth sitting)
Chris Elmore ExcerptsTuesday 22nd March 2022
(2 years ago)
Public Bill CommitteesRead Full debate Product Security and Telecommunications Infrastructure Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 22 March 2022 - (22 Mar 2022)
The Chair
We are now sitting in public and proceedings are being broadcast. Before we begin, I have a few preliminary announcements. Hansard colleagues would be grateful if Members could email their speaking notes to hansardnotes@parliament.uk. Please switch electronic devices to silent. As you all know, teas and coffees are not allowed during sittings.
New Clause 1
Power for operator to upgrade or share apparatus
“(1) The electronic communications code is amended as follows.
(2) In paragraph 17, in sub-paragraph (1), for the words ‘sub-paragraphs (2) and (3)’ substitute ‘sub-paragraphs (2), (3) and (4A)’.
(3) After sub-paragraph (4) insert—
‘(4A) The third condition is that, where a site is provided by an emergency service, before the beginning of the period of 21 days, ending with the day on which the main operator begins to upgrade the electronic communications apparatus or (as the case may be) share its use, the main operator provides written notice to the site provider.’”—(Chris Elmore.)
This new clause would require operators with agreements under the code that are not subsisting agreements to provide written notice to site providers that are an emergency service before the beginning of the period of 21 days (with the 21 days ending the day the operator begins upgrading the apparatus).
Brought up, and read the First time.
Chris Elmore (Ogmore) (Lab)
I beg to move, That the clause be read a Second time.
Good morning to you, Ms Nokes, and to all members of the Committee.
The new clause is self-explanatory, but I will speak to it in the hope of persuading colleagues of its considerable merits. It would require operators with agreements under the code that are not subsisting agreements—agreements that came into force before the code was agreed—to provide written notice to site providers that are an emergency service before the beginning of the period of 21 days, ending on the day that the operator begins upgrading the apparatus.
This uncontroversial new clause would simply mandate operators to give advance notice to sites that provide and deliver emergency services, such as hospitals, for example. Due to the sensitive and life-saving nature of the work that is carried out daily in those buildings, it would make sense for providers of emergency services to be given advance notice of when work is going to be undertaken, in the hope that work will then be able to go ahead as smoothly as possible. The new clause would reduce the delay and interference for both the site owner and the operator.
Under this Government, broadband roll-out targets have been reduced time and again—from full fibre to full gigabit, and now down to 85% gigabit. The new clause would speed up the roll-out of telecommunications infrastructure, which the country needs. We hope that this constructive new clause will have cross-party support, and I urge Members on both sides of the Committee, including the Minister, to support it.
The Minister for Media, Data and Digital Infrastructure (Julia Lopez)
I thank the hon. Gentleman for tabling the new clause, which relates to the automatic rights for operators to upgrade and share existing apparatus. To be clear, those rights are already contained in the code, and apply only to agreements completed after the 2017 reforms to the code came into force. The new clause suggests the introduction of a 21-day notice requirement for operators that want to exercise these rights where apparatus is situated on land owned by an emergency service provider.
I very much appreciate the intention behind the new clause, and am grateful to the hon. Gentleman for briefly sharing with me last week some of the instances that he has in mind. Of course, it is important that emergency service providers are aware of work on their sites that may have an impact on their daily activities; I am sympathetic and alive to that. I have tested the issue with officials in the last week, and they suggest that in that context, it is crucial to look at the scope of the paragraph 17 rights, which authorise only activity that will have no more than a minimal adverse impact on the appearance of the apparatus and will impose no additional burden on the other party to the agreement. Clearly, the rights are therefore available only in very limited circumstances.
Of course, operators may need to upgrade and share apparatus that will have a greater impact on a site provider than paragraph 17 permits, and they should be able to do so, but in those circumstances they must obtain the site provider’s agreement or seek to have the required rights imposed by the courts. In contrast, the automatic rights in paragraph 17 are available only in very limited circumstances. The conditions in paragraph 17 specifically exclude activities that would impose an additional burden on a site provider. Activities that disrupted a site provider’s daily business, or created new health and safety risks, would be very unlikely to satisfy that requirement.
Operators that upgrade or share their apparatus in ways that go beyond the paragraph 17 rights, and which do not have a site provider’s permission or court authorisation, will be acting outside the parameters of the code. As such, they may be liable to any legal remedies or sanctions that are applicable to their actions. If an operator is in doubt as to whether the paragraph 17 conditions are satisfied, it would be sensible for it to discuss the planned works with the site provider. I am not aware of any instances in which an operator has relied on its paragraph 17 rights to carry out upgrading and sharing activities that have gone beyond the scope of what that paragraph allows, but if the hon. Gentleman is aware of occasions when that has happened, I would welcome further details and information about them.
At present, we think that the scope of activities permitted by paragraph 17 is so narrow that a specific notice regime is not required. Putting one in place would undermine the policy intention of the rights, which is to enable limited upgrading and sharing works to be carried out as quickly and efficiently as possible. I therefore hope that the hon. Gentleman will withdraw the new clause.
Chris Elmore
In the light of what the Minister has said and, crucially, her offer to hear the examples that I will provide her with, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 2
Review of the changes to the Electronic Communications code
“(1) The Secretary of State must conduct a full economic review of the effect of Schedule 1 of the Digital Economy Act 2017 (The Electronic Communications Code).
(2) The Secretary of State must prepare and publish a report on this review within two months of the passage of this Act and must lay a copy of the report before Parliament.”—(Chris Elmore.)
This new clause would require the Secretary of State to outline the economic impact of the 2017 introduction of the Electronic Communications Code.
Brought up, and read the First time.
Chris Elmore
I beg to move, That the clause be read a Second time.
This new clause would require the Secretary of State to conduct a full economic review of the effect of the electronic communications code since 2017, and to publish a report on that review’s findings. When the code was introduced in 2017, the Government promised that they would publish a review of its impact by 2022, but I am afraid to say that we are still waiting. The Committee should note that this is not a new request; we are merely holding the Government to account on promises that were made in 2017.
The review should look into issues including, but not limited to, the impact of the legislation on investment into mobile networks, the number of new sites provided, the speed of infrastructure deployment, changes in rent to site providers, and the total legal costs that have been borne by the judiciary as a result of litigation. The Department’s vague responses to parliamentary questions show that it is unsure of how much money has been saved by rent reductions since 2017. That suggests, in turn, that the Department is also unaware of how much of that money has been reinvested back into the development of telecommunications infrastructure, which was the express purpose of the legislation.
The impact assessment for the previous legislation is clearly overdue, and the testimonies that we heard on Tuesday last week suggested that a review needs to take place sooner rather than later. The Minister was keen to suggest that only a small number of rent reductions were of more than 90%, but testimonies from witnesses last Tuesday suggested otherwise. The Minister also said that the number of legal cases was decreasing, but there have been over 300 since the introduction of the code, compared with just a handful prior to its introduction. Once again, we are hearing mixed messages from the Government while the message from those on the ground who have been adversely affected by the rent reductions is crystal clear.
The simple truth is that we are currently unable to make a clear and objective assessment of the effectiveness of the electronic communications code because its impact has not been reviewed. A review was promised, as I will continue to reiterate, when the legislation was first introduced; I accept that it was not this Minister who made that commitment, but it was this Government. Such a review would give us a better understanding of where we were in 2017, of where we are now in 2022, and of what we need to do to improve the situation in the future, as we increase our reliance on digital connectivity.
Technological progress and innovation will define the success of the United Kingdom in the 21st century, and any progress will be underpinned by how quickly and effectively we are able to roll out digital infrastructure projects such as 5G and gigabit-capable broadband. It is firmly in the national interest to get a better understanding of whether the changes we have made so far have been effective, and what lessons can be learned to ensure that our country thrives in the technological and digital spheres in the years ahead.
For the reasons that I have outlined, I hope that colleagues on both sides of the Committee will support the new clause and ensure simply that the Government are held to account on commitments made when the 2017 code was published.
Julia Lopez
I thank the hon. Gentleman for tabling the new clause and, again, I appreciate the intention behind it. It would require the Government to carry out a review of the 2017 legislation that updated the electronic communications code, which is the overarching legislation that the Bill amends and that we have been discussing in Committee.
I appreciate that the intention behind the new clause is to better understand the impact of the 2017 changes to the code but, unfortunately, such a review clause would have unintended consequences. We are particularly concerned that there might be a chilling effect on the market while the review is carried out, which would lead to delays not just in implementing the measures in the Bill, but in wider deployment. When the 2017 code came into force with reduced rents, a lot of cases went through the courts because operators were still on higher rents as long as negotiations were ongoing. We do not want to see a similar challenge in this case.
If a review takes place, stakeholders will likely delay entering into agreements to enable the deployment of infrastructure. Only when the review has concluded and it is clear whether further changes are to be made to the code will parties be prepared to make investment or financial commitments. That will have a profound effect on our connectivity ambitions, despite our desire to move as quickly as possible to level up the country with world-leading connectivity. It will also have an adverse impact on consumers and businesses, many of whom want to access higher speeds and the latest technologies such as 5G.
The Bill focuses on a few issues that prevented the 2017 changes from having their full impact, such as speeding up deployment while protecting the rights of landowners and site providers. Wider changes to the code will halt all progress made and will risk bringing deployment to a standstill. That would leave many homes and communities without the upgrades to connectivity that they badly need, which I am sure the hon. Member will agree would not be the desired outcome.
Let me clarify what was said in 2017 about reviewing the changes to the code. In the impact assessment that accompanied the reforms, the Government said that they would review the policy by June 2022. They did not say that they would carry out a full economic review of the impact of the reforms on the rental agreements. We have reviewed the policy. Officials have held regular meetings with stakeholders since the 2017 reforms came into force, including facilitating workshops between stakeholders to encourage more collaborative working. My predecessor, my right hon. Friend the Member for Maldon (Mr Whittingdale), held a series of roundtable meetings with stakeholders from both the operator and the site provider communities so that he could understand the situation better.
Since I have been in post, I have been testing some of the concerns of the hon. Member for Ogmore in Parliament to ensure that we are beyond some of the initial challenges that we all accept existed when the code changes were made. Regular engagement and the issues highlighted directly informed last year’s consultation, which preceded this Bill, and led to the provisions in the Bill that are needed to realise the benefits of the 2017 reforms. I hope that this gives the hon. Member reassurance that we have reviewed the policy as a whole, and I ask that he withdraw his amendment.
Chris Elmore
I have listened to the Minister and I accept that there are challenges with any review, but the only way in which we learn is by reviewing what we have done previously. There are some nicks in the system that are still not rectified. There is no reason why a Government review would mean that the industry would need to stop rolling out fibre broadband, improving broadband more generally, 5G roll-out or anything else. The process could be done with industry to ensure there is an efficient and effective way of reviewing, so that we can learn from what has happened and improve moving forward. I am keen to push the new clause to a vote.
Question put, That the clause be read a Second time.
Chris Elmore
I beg to move, That the clause be read a Second time.
During the oral evidence session last Tuesday, we heard a number of concerns about part 1 of the Bill, which were outlined particularly eloquently by Madeline Carr, professor of global politics and cyber-security at University College London, who tellingly stated that she does not currently own an Alexa due to a lack of trust, and that the Bill as it currently stands would not give her sufficient confidence to go out and purchase one. Her Majesty’s Opposition value the contribution and knowledge of experts such as Professor Carr, and we have tabled new clause 4 on that basis.
The clause would require the Secretary of State to undertake a consultation on the imposition of a minimum period during which relevant connectable products would need to receive security updates. That would allow the Secretary of State to consult with academics such as Professor Carr, among others in the field, to establish the best way of making those connectable products, which have the potential to bring huge benefits to our lives, as safe as possible for as long as possible.
I presume the Minister might retort by saying that increased regulation of this sphere might stifle innovation, but that is exactly the opposite of what we heard last Tuesday. What we heard was that without strong, strategic Government intervention, there is not much desire for, or a market for, cyber-security. That is why introducing a minimum period for which connectable products would be subject to security requirements is so important: without Government intervention, increased security for British consumers will not come about.
Another reason that implementation of the new clause is so vital is that it relates to the digital divide and the ability of those who are the most financially vulnerable to have access to secure products. We do not want the less well off to be purchasing items that are subject to security updates for a much shorter period, thus making them more vulnerable to cyber-attacks than those who are more financially secure. I raised that issue on Second Reading and, dare I say it, there was some pushback from Members in the Chamber, but the issue was highlighted by Professor Carr and David Rogers, who was the lead editor during the process that is the basis for the Bill.
The party that I am deeply proud to represent was founded to represent the interests of working people, and it is ultimately my responsibility to ensure that working people across the country do not lose out with respect to the pace of technological change and as the threats facing that technology continue to increase. We acknowledge that no Bill can anticipate all threats that we will face in the future and the varying types of product that will come to the market, but we do have control over ensuring that we do our utmost in legislation to best protect the citizens of the United Kingdom. As we heard from a number of industry experts, one of the best ways to do that is to introduce a minimum period for which these products should be subject to security updates. For that reason, I hope the Committee will support the new clause.
Julia Lopez
Again, I thank the hon. Member for his suggestions, and I always appreciate the intention behind what he is trying to do. On this matter, we have been consulting with experts throughout the development of the legislation. As he will be aware, a lot of the details about how we shall regulate these products will come in secondary legislation. Here, we are taking broad powers so that, as the technology develops, we can tweak them as things change. We are also considering a wide number of products that will be in scope.
We do not want to take specific powers at this stage, and, as I mentioned in relation to the hon. Gentleman’s amendment 6, which we debated last week, it is important that the legislation retain the flexibility to adapt to and reflect the changing threat and technological landscapes. We have consulted widely on the legislation, and will continue to do so where new requirements are appropriate, but committing the Government to working on requirements framed using terminology that may seem appropriate today could limit the security benefits of such a requirement in the future.
As I reassured the hon. Member last Thursday, we are committed to introducing security requirements based on the first three guidelines of the internationally recognised code of practice for consumer internet of things security. Those will include a requirement for manufacturers to be transparent about the time for which products will be supported with security updates. At its core, that approach demonstrates a shift towards clear transparency that can inform the consumer when purchasing a relevant device. We know that many consumers are security conscious, but, as things stand, not enough manufacturers make that information readily available to them.
Data from Which?, which the Committee heard from last week, highlights that less than 2% of assessed products had clear information on the length of time for which they would receive security updates. We are using legislation to increase the availability of information to UK consumers, so that they can make their own purchasing choices with a clear understanding of security. As consumers learn more, they will expect more, and we hope that that will drive the market approach to embedding minimum periods for security updates. Last week, the Committee heard from Which? that some consumers might be continuing to pay for their devices even after security updates are available to them. That is exactly the kind of thing we want to avoid, and we think that transparency is the key to raising consumer awareness.
As manufacturers raise the bar to the appropriate level, we anticipate that more and more will do the same as a result of that shift to transparency. Should manufacturers fail to respond in that way, the Government may, in the future, consider that there is a case for setting out a requirement for certain products to be covered by minimum security periods. That is all part of the flexible approach we are keen to take to legislation to ensure that our requirements reflect the realities of technologies and the wider market.
Additionally, I have concerns that the new clause would commit the Government to unnecessary work that would only need to be repeated following the implementation of the initial requirements, before a substantiated case for this additional requirement could be made.
For those reasons, I am not able to accept the new clause. We are taking broad powers and a lot of details will be looked at when we consider secondary legislation. We will be looking at this issue as these products develop. If we think that a requirement for the hon. Member’s minimum period comes about, we will look at the issue again. At this stage, though, I hope he will consider withdrawing his new clause.
Chris Elmore
I have listened carefully to what the Minister has said. For the record, I agree with her about increasing the availability of security information for consumers. I am concerned that the figures are so low regarding the public’s understanding of the cyber-security arrangements when buying goods, whether that be a smart toothbrush—that was an education to me a few months ago when I was being lobbied on the Bill—or what data our smart fridges hold on us. Such information is a revelation, although I should probably know better as the shadow Minister.
The new clause is about a consultation for minimum periods and I accept that there is secondary legislation linked to that. However, as the Opposition, we have an obligation, particularly following the evidence from Professor Carr, to make clear what we think should happen regarding a simple consultation by the Secretary of State on the imposition of minimum periods for purchasing; and the Committee can make that clear in a separate decision.
Question put, That the clause be read a Second time.
Chris Elmore
On a point of order, Ms Nokes. I thank all Committee members for a constructive and cordial debate throughout, including in the evidence sessions. I thank the Clerks, particularly for answering my team’s never-ending questions. As new members of staff for me who have been flown into a new Bill, James Small-Edwards and Alex Williams have been superb. I thank you, Ms Nokes and Mr Stringer, for your chairpersonship across the sessions—and, of course, the Doorkeepers, who have spent all their time running through the room as I am calling for Divisions.
Question put and agreed to.
Bill, as amended, to be reported.
Product Security and Telecommunications Infrastructure Bill Debate
Full Debate: Read Full DebateDepartment: Department for Digital, Culture, Media & Sport
Chris Elmore
Main Page: Chris Elmore (Labour - Ogmore)Department Debates - View all Chris Elmore's debates with the Department for Digital, Culture, Media & Sport
Product Security and Telecommunications Infrastructure Bill
Chris Elmore ExcerptsWednesday 25th May 2022
(1 year, 10 months ago)
Commons ChamberRead Full debate Product Security and Telecommunications Infrastructure Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 25 May 2022 - (25 May 2022)
Julia Lopez
Most of the people I have spoken to are already in the market and believe that the change will make a big difference to how they roll out. It is a very competitive market with many new entrants. I am not aware of anybody who is just dipping their toe in the water; because it is so competitive, people are already aggressively in the market. We think that the change will really help to accelerate the roll-out to our constituents of fantastic digital infrastructure of the kind that we all understand is fundamental to driving productivity gains, and to reducing the divide between areas that do and do not have that connectivity.
From the contribution of my right hon. Friend the Member for New Forest West on Second Reading, I understand that his concern relates to the effect of clauses 61 and 62 on landowners who already host telecoms apparatus on their land. I recognise that, ultimately, these changes are likely to lead to reductions in the rent received by landowners with a tenancy protected by the Landlord and Tenant Act 1954 or the Business Tenancies (Northern Ireland) Order 1996. I appreciate that that might not have been expected by those entering into such tenancies at the time they were created, but it is also fair to say that market values change over time, and there is never any guarantee that rents received by a landlord will remain constant or increase.
We have also given careful consideration to the effect of clauses 61 and 62, and have balanced the impact that they might have on landowners with the wider, substantial public benefits that we are pursuing. It is also important to recognise that the changes will not happen until any ongoing agreement expires and comes to be renewed. Furthermore, clauses 63 and 64 introduce separate provisions allowing the landowner to recover compensation for any damage to their land, reduction in its value or reasonable expenses resulting from an operator exercising their code rights.
Clauses 61 to 64 ensure that the 2017 framework will apply to all future agreements. It must be remembered that the code has an underlying purpose, which is to support the delivery of robust digital networks. Our constituents increasingly rely on those networks for critical digital services. Only recently, the National Farmers Union’s digital technology survey found that poor mobile signal and unreliable internet access are hampering farming businesses. We know that rural connectivity is a problem for many organisations, and addressing it is one of our priorities as a Government. The Bill, including clauses 61 and 62, aims to address those issues.
I am sure that my right hon. Friend had only noble intentions when tabling his amendments, but although they may benefit some landowners, they have the potential to penalise entire communities by keeping network costs unacceptably high. Clauses 61 and 62 will help to reduce the digital divide between different parts of the country, as they will help to prevent deployment being cheaper in one area than another.
Finally, I turn to amendments 9 to 11 tabled by my right hon. Friend, which would require a party to use alternative dispute resolution processes before making certain applications to a court under the electronic communications code, including where an agreement granting rights under the code is being sought. The provisions on ADR processes in the Bill aim to create more collaborative discussions between landowners and telecoms operators to ensure that litigation is used only as a last resort. I suspect that that is what the amendments seek to ensure as well. Although I sympathise with the intention behind these amendments, the Government oppose them—first, because they are unnecessary; secondly, because ADR is not appropriate in every situation; and thirdly, because they would be counterproductive to the amendments’ overall intentions.
The Bill requires operators, when requesting rights under the code, to inform the landowners of the availability of ADR. Crucially, it also creates a requirement that if an application is made to a court, the court will be required to take into account any unreasonable refusal to engage in ADR when awarding costs. Those requirements strongly incentivise the use of ADR without the need to make it mandatory. The Government therefore believe the amendments to be unnecessary.
It is also important to note that ADR may not be suitable in certain cases, such as where a disagreement is based on differing interpretations of the law. Such points of law must be resolved in the courts, and mandatory ADR would add cost and time to that process without offering any benefit.
The Government also believe that the amendments would be counterproductive to their own goals. If ADR were compulsory, some parties would be compelled to participate in an ADR process they do not want to be involved in, and so would be less inclined to actively engage in the process. That would increase the risk that ADR would fail, which would mean that parties would have to go to court anyway. If that were the case, all that compulsory ADR would have achieved is to add an additional layer of time and costs for landowners, such as charities, sports clubs and farmers. It should also be noted that, when consulted, a clear majority of stakeholders were not in favour of compulsory ADR. I hope that I have given my right hon. Friend assurance that the provisions regarding ADR in the Bill already represent the most effective way of encouraging its use, and I hope that he will not press his amendments to a Division.
Chris Elmore (Ogmore) (Lab)
You will be aware, Madam Deputy Speaker, that I have spent at least the last five and a half years as an Opposition Whip encouraging brevity, so I do not intend to keep the House too long. I will keep my remarks short and hopefully to the point. As I said on Second Reading and in Committee, I will not pretend that the Opposition do not support the wider principles of the Bill. I thank the Minister for the constructive way in which she has engaged on it with me from the outset.
I turn to the new clauses and amendments. New clause 1 is an improvement on the Government’s first attempt to change the definition of “occupier”, but the changes put forward are still not watertight when it comes to preventing unintended consequences. The new clause does not address the underlying issue that operators could theoretically use it in situations other than when existing agreements have expired, which could lead to financial consequences for small site providers who have been hard done by since the electronic communications code review in 2017. More work is needed when the Bill moves to the other place to ensure it does not unintentionally punish site providers further. We have no issue with the proposal in new clause 2 that grants the Secretary of State power to make regulations that provide for a function conferred by the code on the court to be exercisable in relation to Wales by the first-tier tribunal.
I will speak to amendment 14 on behalf of my hon. Friend the Member for Hackney South and Shoreditch (Dame Meg Hillier). She sends her apologies to the House; she is chairing the Public Accounts Committee. We have checked with the Clerks and the Speaker’s Office to check that that is appropriate. That amendment, and the consequential amendments 15, 16 and 17, seek to apply a different regime under the electronic communications code to private landlords. They would give operators automatic upgrade rights in respect of properties owned by private landlords, subject to the strict condition that the upgrading imposes no additional burden on the other party to the agreement.
The growing digital divide in our towns and cities has only been exacerbated by the pandemic. The Government’s broadband target has been downgraded twice, and the Digital, Culture, Media and Sport Committee doubts that the current 85% gigabit target will be met. The backlog is due to the difficulty in accessing a high number of properties, a disproportionate number of which are flats, whose absentee landlords have little to no incentive to respond to requests to upgrade and improve connectivity.
Ruth Edwards (Rushcliffe) (Con)
I have complete sympathy with the intention behind the amendments and with what the hon. Gentleman is trying to do, but many providers whom we have spoken to throughout the Bill’s passage oppose them on the grounds that they will give the incumbent provider an advantage. Is he concerned that an unintended consequence of his amendments might be to make it more difficult for new competitors to enter the market and provide our constituents with the services that they need?
Chris Elmore
I welcome competition in the market, but I would say to the hon. Lady that we now have broadband blackspots in parts of central London, and 15% of the constituency of the hon. Member for Hastings and Rye (Sally-Ann Hart) has these MDU blackspots. This is affecting constituents up and down the land, and the demand from all our constituencies, particularly because of the pandemic, is that we require the very best sector-leading broadband. It cannot simply be the case that some operators say this must happen and some say it should not happen, therefore nothing is resolved.
Sir Desmond Swayne
May I take it therefore that, if Madam Deputy Speaker is minded to allow separate decisions on my amendments, the hon. Gentleman will support them?
Chris Elmore
I can tell the right hon. Gentleman that we supported this in Committee. Sadly, the Members on his own side did not. I would be very glad if he pushed the amendments, through your good offices, Madam Deputy Speaker, and if he did so, I am sure we would all row in behind him. What the Minister and the Government Whips do could be a different conversation altogether, but I do not think that worries him anymore.
I now turn to Government amendments 4 to 7 and the right hon. Gentleman’s own amendments 10 and 11. We welcome amendments 4 to 7 to ensure that a person with whom an operator is seeking a code agreement may at any time give the operator notice that they wish to engage in alternative dispute resolution in relation to a prospective site-sharing agreement. While the pace of new agreements between landowners and operators has slowed down in recent years, small landowners have been unable to afford the cost of going to a tribunal to try to defend their property rights. When the Bill moves to the other place, we hope that a debate can continue on the possibility of making ADR mandatory, as suggested by amendments 10 and 11, for telecoms operators before threatening to take landowners to court for an agreement to be imposed.
As I have said from the start and certainly many times in Committee, we are not against this Bill, which is a welcome step in the right direction. However, there are certain areas that need to be tightened and improved, and I hope their lordships will have a full debate and bring forward much-needed amendments to ensure that we deliver the very best broadband roll-out right across the United Kingdom.
Chris Elmore
I do not intend to detain the House for long. Her Majesty’s Opposition recognise that the first duty of any Government is to keep their citizens safe. That is why we are supporting the security elements of the Bill, which were developed by the Department in conjunction with the National Cyber Security Centre. As the digital sphere becomes ever more integral to our lives and livelihoods, it is of the utmost importance that citizens across the United Kingdom are protected from malign actors. We believe that the Bill will make some significant progress in that regard.
Although we think that measures in part 1, such as the ban on default passwords, are of paramount importance and will no doubt bring benefits, we have concerns about a number of other areas. The legislation establishes, through regulations, three core security requirements for “connectable products”. Rather than those three security requirements being left to be defined in future, we believe that they should be expressly set out in the Bill. That would speed up the entire process and ensure that consumers are protected sooner rather than later.
Similarly, we would like the Secretary of State for Digital, Culture, Media and Sport—it is a pleasure to see her in her place—if she is not too busy trashing another one of our great British institutions, to prepare and publish a report on the security risks to UK connected products. During an oral evidence session on the Bill, Professor Madeline Carr, a cyber-security expert, told us that she would not have an Alexa in her house due to the security risks and that there is nothing in the Bill that would change her mind. Due to that statement by an industry expert, and the prominent role that cyber-warfare is playing throughout the conflict zones of the world, we think that it is very much in the national interest to know how secure our connected products are, and we call on the Government to go much, much further.
The Prime Minister came into office promising “full-fibre” broadband by 2025. Due to a lack of application and grip from the Prime Minister and the Government that he leads, that target was quickly downgraded to full gigabit broadband by 2025. In what was a surprise to absolutely no one who follows this Administration closely, the target was downgraded again to 85% gigabit-capable broadband by 2025. There are still huge doubts—voiced by the Digital, Culture, Media and Sport Committee, the Public Accounts Committee and industry—that even that twice-reduced target will yet be achieved, selling Britain short at every opportunity.
I take no pleasure whatever in pointing out those failures. Indeed, I believe that they are hugely damaging to the future economic potential of our country and to the UK’s social fabric. That is because a digital divide exists in our country and it is only getting worse. One such divide is the fact that, when it comes to digital connectivity, many communities in rural and semi-rural areas, including my Ogmore constituency, are being left behind completely. With the increase in working from home and schoolwork being done over the internet since the pandemic, the Government urgently need to get a grip on this critical issue.
In detailing the Government’s failings when it comes to our telecommunications infrastructure, I think of our own Sir Tim Berners-Lee, who had a vision of the internet being “for everyone”. However, the Government’s inaction is ensuring that that is currently not the case. In 2010, the Labour party left behind a world-leading sector for communication and mobile phone roll-out. The Government have stagnated and stalled over the past 12 years and have failed to build on Labour’s success.
I repeat what I have said throughout the passage of the Bill: I support the Bill’s aim of both increasing the security of our connected devices and speeding up the roll-out of our telecommunications infrastructure. Our point of contention is that the Bill, as currently constituted, does not do either as well as it could. It does not deliver what people in this country desperately need: improved broadband.
As the Bill makes its passage to the other place, we hope that the issues raised about it can be taken up by their lordships to ensure that the improvements can be made and, hopefully, some amendments won. I echo what the Minister said about the constructive nature of our debates—I am not sure that we will be able to continue that with other Bills that she and I may spar over in the months ahead, but I am sure we will try.
I thank the Clerks and all House staff who worked so diligently during the Bill Committee, including the evidence sessions. I thank the witnesses for their expert advice, which was truly valuable. I thank my staff, including Alex Williams and James Small-Edwards, who did an enormous amount of work—I do not have the luxury of civil servants, but perhaps one day soon—[Interruption.] The Secretary of State says “Dream on”. She has certainly been having a few dreams of her own of late that are not working very well, particularly for the Prime Minister. I pay tribute to my staff, who have worked diligently during this process, and I thank all the Members who have played such an integral part in ensuring that the Bill passes through the House with civility and good humour throughout.
Madam Deputy Speaker (Dame Rosie Winterton)
I call the Scottish National party spokesperson, Owen Thompson.