Product Security and Telecommunications Infrastructure Bill Debate

Full Debate: Read Full Debate
Department: Department for Digital, Culture, Media & Sport
Julia Lopez Portrait Julia Lopez
- Hansard - - - Excerpts

I thank the hon. Gentleman for raising the case of his constituent. I would be grateful if he took it up with my officials, as I am keen to look into it. Throughout the passage of the Bill, individuals have raised cases with me. It is fair to say that the number of cases has declined substantially as the Bill has progressed through the House, so I am content that the position is getting much better, but if there are outstanding cases of situations that any MP feels is unfair, I will be grateful if they are brought to my attention.

To return to the case I was making for new clause 1, as with an initial agreement, if a consensual agreement cannot be reached about the additional right needed, operators will be able to ask the court to impose an additional agreement conferring the additional right. Of course, in those circumstances an operator would still have to satisfy the court that its application meets the requirements of part 4 of the code, including the public interest test.

Let me give an example of how the Government intend this to work. An operator may have an existing agreement which contains a code right to install a 3 metre high mast. Subsequently, the operator realises that it needs to install a 5-metre high mast on the same piece of land. That could enable the operator to install 5G technology or to improve or expand its network. The original agreement allowing the 3-metre mast will continue to run for its remaining term, and the operator will ask the site provider to enter into a second agreement, which contains a code right allowing it to install the 5-metre high mast.

Advances in technology occur at pace, whereas a code agreement can last for a number of years. If an operator has to wait until the term of its code agreement is about to expire before being able to obtain additional code rights, it will be unable to install the latest technology on its apparatus, meaning our constituents will be deprived of faster, more reliable services such as 5G and, in time, 6G. We think that the new clause is also vital to give UK businesses access to the technology they need, enabling our economy to thrive. I hope Members will therefore agree that it must be made.

Turning to new clause 2, we want to ensure that disputes relating to the electronic communications code can be dealt with as quickly and efficiently as possible. Currently, paragraph 95 of the code allows the Secretary of State to make regulations that confer jurisdiction on either the first-tier tribunal or upper tribunal in relation to England, but only the upper tribunal in relation to Wales. The current regulations made under paragraph 95 state that all code disputes must commence in the upper tribunal, although in England, appropriate cases may then be handed down to the first-tier tribunal. The first-tier tribunal has greater administrative resources and more judges than the upper tribunal, meaning that code disputes can be processed and heard more quickly.

Moving forward, the Government are therefore considering a greater role for the first-tier tribunal in hearing code disputes, including making further regulations using the power in paragraph 95 of the code where appropriate. The new clause provides the necessary powers so that we can do just that. In future, the Secretary of State will be able to make regulations conferring jurisdiction on both the upper tribunal and the first-tier tribunal in Wales.

The final set of Government amendments is amendments 4 to 7. They have been tabled to make a minor clarification to the text of clause 68 to avoid any unintended interpretation of the legislation. Clause 68 currently makes it clear that an operator can, at any time, give notice in writing to a person from whom they are seeking code rights, stating that the operator wishes to engage in alternative dispute resolution, often known as ADR. However, nowhere is it set out that such a notice can be sent from that person to the operator. The amendments clarify that when an operator seeks code rights from a person, either the operator or that person may give notice to the other expressing a wish to engage in ADR at any time.

Desmond Swayne Portrait Sir Desmond Swayne (New Forest West) (Con)
- Parliament Live - Hansard - -

I certainly welcome the movement that the Minister has made. I went to table exactly those amendments and was pleased to find that she had beaten me to it. Can I tempt her to go further with respect to my amendment and amendment 4 and require the operator, which has such disproportionate power against the landowner, to engage as a requirement in the alternative dispute procedure from the outset?

Julia Lopez Portrait Julia Lopez
- Hansard - - - Excerpts

I am afraid that my right hon. Friend cannot tempt me, and I will say why shortly.

I thank the hon. Member for Hackney South and Shoreditch (Dame Meg Hillier) for bringing forward amendments 14 to 17 to clauses 59 and 60. They would expand retrospective rights to upgrade and share apparatus in buildings owned by private landlords, such as blocks of flats, also known as multiple dwelling units or MDUs. I begin by saying that I have considered this issue carefully. I have been lobbied extremely heavily on it by one operator in particular, and I have tested the proposition with my officials, legal advisers and other operators.

I would not like to pre-empt what the hon. Lady might say as to why she tabled the amendments and their perceived need. However, I reassure her, and any others considering supporting them, that as a fellow London MP with many MDUs in my seat I am concerned about the dangers of a digital divide emerging, and I am doing what I can to avoid that circumstance. If I thought that the amendments genuinely helped on that front, I would do all I could to incorporate them, but there is a glaring lack of consensus among the telecoms industry about their need. Indeed, only one operator has contacted me in support of them, while four separate operators and representative bodies have strongly opposed the amendments, arguing that they are anti-competitive. I will talk a little more about that in a minute.

--- Later in debate ---
The Law Commission voiced clear concerns at the time, arguing that it would lead to a fall in rent for landowners, and therefore a slowdown in the number of agreements being reached. As we heard in oral evidence, some landowners have seen their rents dwindle by as much as 90% in some cases, and as a consequence livelihoods have been turned upside down. These are welcome amendments, as they would mean that small tenant farmers, sports clubs and community organisations get a fairer deal for the land they are renting out.
Desmond Swayne Portrait Sir Desmond Swayne
- Hansard - -

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 Portrait Chris Elmore
- Hansard - - - Excerpts

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.

--- Later in debate ---
Desmond Swayne Portrait Sir Desmond Swayne
- Hansard - -

My amendments 9 to 11 are designed to address what was made clear in the House on Second Reading, which is that there are examples of egregious bullying by the operators and that there is a complete disproportion of power between those operators and the landowners. The Minister has spoken of her demand for more collaborative working and collaborative negotiation, but we are asking for the process of alternative dispute resolution to be a requirement from the outset precisely because the operators know that they have the power to overawe and frighten landowners with the threat of legal action.

The purpose of my amendments 11 and 12, which was spelt out very well by the Minister, is to return to the status quo ante 2017. Until 2017, compensation was based on market value, and in 2017 the new code changed it to land value, notwithstanding the explicit advice of the Law Commission not to do so. As was entirely predictable and as was predicted, the market dried up as a consequence and there were far fewer agreements. One of the purposes of this Bill is of course to address that problem of the reduction in agreements. Therefore, the obvious remedy is to restore the position as it was and return to market value, but far from doing that—far from seizing this opportunity to remedy the situation—the Government are compounding their error by wanting to make agreements previously made under the old regime renewable under land value, actually making the problem significantly worse as a consequence.

I do not know why the Government appear to have adopted the anarchist principle that property is theft. On the contrary, these measures, by denying landowners proper compensation on the basis of market value—compensation arrived at by a free and open market—and coercing them accordingly to give up their property rights, strike me as theft. These provisions in the Bill are in effect a conspiracy to promote theft: it is stealing. I just cannot understand how a Conservative Government have brought themselves to bring this measure before the House, changing the law retrospectively and so damaging property rights. I just assume that Ministers simply have not realised the enormity of the change they are making. Accordingly, I believe these amendments are vitally necessary for the Bill.

--- Later in debate ---
Julia Lopez Portrait Julia Lopez
- Parliament Live - Hansard - - - Excerpts

I am grateful to all Members who have spoken in this debate, to the Opposition for their support for the Bill, and to the hon. Member for Ogmore (Chris Elmore) in particular for the very collaborative approach he has taken throughout and his acknowledgement of the improvements we have made. I shall test officials on the further points he makes. I am also grateful to the hon. Member for Midlothian (Owen Thompson) for highlighting the product security parts of the Bill. Some of the detail he seeks will be in secondary legislation. Goods sold in online marketplaces, for instance, are not out of scope, because manufacturers, importers and distributors are covered. I would be happy to come back to him on some of the other points he raised.

On criticism of our roll-out, we are making substantial progress on our gigabit roll-out. We are now up to 68% coverage, up from 9% in 2019. I am open to any proposal to make roll-out go even faster. I have set out why competition is so important to that dynamic and why I think the amendments on MDUs are not the right way to go and could even slow the roll-out. I note the comments on BT Openreach. Other providers tell me that they have great teams negotiating wayleaves, that this is a straightforward process and that extra help on MDUs of the kind envisaged is simply not needed. I am grateful to my hon. Friend the Member for Brigg and Goole (Andrew Percy) for using KCOM as a great example of that, and for highlighting not only some of the good work that Openreach does, but the interesting example of his town deal, which I shall take away with me.

My right hon. Friend the Member for New Forest West (Sir Desmond Swayne) made a typically fruity and passionate speech. We believe our legislation incentivises greater collaboration. I set out in detail earlier why that is the case. We believe that rents were too high. As the need for digital infrastructure increases, we think rents need to become more akin to those for utilities. I should never wish to be accused of seeing property as theft. Indeed, I confess to taking umbrage at my right hon. Friend’s assertion on Second Reading. That is why I have tested his proposition—

Desmond Swayne Portrait Sir Desmond Swayne
- Hansard - -

I withdraw.

Julia Lopez Portrait Julia Lopez
- Parliament Live - Hansard - - - Excerpts

I thank my right hon. Friend. I am glad that I have convinced him of the case. [Laughter.] As I say, I tested his proposition to death and concluded that there may be a case of creative hyperbole. I am glad he has also acknowledged that.

Question put and agreed to.

New clause 1 accordingly read a Second time, and added to the Bill.

New Clause 2

Jurisdiction of First-tier Tribunal in relation to code proceedings in Wales

In paragraph 95(1) of the electronic communications code (power to confer jurisdiction on other tribunals)—

(a) in paragraph (a), at the end insert “or the Upper Tribunal”;

(b) in paragraph (aa), for the words from “, but only” to the end substitute “or the Upper Tribunal”;

(c) omit paragraph (b).”—(Julia Lopez.)

This new clause gives the Secretary of State power to make regulations providing for a function conferred by the code on the court to be exercisable in relation to Wales by the First-tier Tribunal.

Brought up, read the First and Second time, and added to the Bill.

Clause 57

Meaning of “occupier” in relation to land occupied by an operator

Amendment made: 1, page 40, line 11, leave out Clause 57.—(Julia Lopez.)

This amendment is consequential on NC1.

Clause 58

Rights under the electronic communications code to share apparatus

Amendments made: 2, page 41, leave out lines 23 to 25 and insert—

‘(4) In paragraph 9 (conferral of code rights), after sub-paragraph (2) (as inserted by section (Persons able to confer code rights on operators in exclusive occupation)) insert—”

This amendment is consequential on NC1.

Amendment 3, page 41, line 26, leave out “But”—(Julia Lopez.)

This amendment is consequential on NC1.

Clause 59

Upgrading and sharing of apparatus: subsisting agreements

Amendment proposed: 14, page 42, line 11, after “agreement”, insert

“other than with a private landlord”.—(Chris Elmore.)

This amendment, together with amendments 15, 16 and 17, 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.

Question put, That the amendment be made.