Communications Act 2003 and the Digital Economy Act 2017 (Consequential Amendments to Primary Legislation) Regulations 2017

Lord Ashton of Hyde Excerpts

Wednesday 6th December 2017 Grand Committee

Moved by

[Lord Ashton of Hyde]

That the Grand Committee do consider the Communications Act 2003 and the Digital Economy Act 2017 (Consequential Amendments to Primary Legislation) Regulations 2017.

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

My Lords, I intend to be brief. Noble Lords will recall that the Digital Economy Act 2017 received Royal Assent in April this year. That Act included reforms to the Electronic Communications Code, which provides the statutory framework for agreements between site providers and digital communications network operators.

The purpose of the reforms is to make it easier and cheaper for digital communications infrastructure to be installed and maintained, ensuring that this statutory framework supports the wider benefits of the UK’s world-leading digital communications services. The reformed code is subject to commencement by a separate statutory instrument, which will not require parliamentary scrutiny. We expect to bring the code into force by the end of December. However, before taking this step, we need to ensure that a number of sets of supporting regulations are in place.

In addition to the regulations before the Committee today, the supporting measures include two sets of regulations that were laid on 19 October 2017 under the negative procedure, which amend secondary legislation and make specific transitional provisions. Together, the purpose of all these regulations is to ensure a smooth transition from the existing legislation to the new code. They will therefore take effect only when the new code commences, which, as I mentioned, we expect to be by the end of December.

The draft Communications Act 2003 and the Digital Economy Act 2017 (Consequential Amendments to Primary Legislation) Regulations 2017 amend references in other primary legislation to the existing code and to provisions in the existing code, replacing them with terminology and cross-referencing aligned to the new code.

The draft Electronic Communications Code (Jurisdiction) Regulations 2017 bring into effect one of the code’s key reforms: transferring the jurisdiction for code disputes from the county courts to the Lands Tribunal in England and Wales, and from the sheriff court to the Lands Tribunal in Scotland. This reform was strongly recommended by the Law Commission following its consultation on the code, and is expected to ensure that code disputes can be dealt with more quickly and efficiently. The DCMS has worked closely with colleagues in the Ministry of Justice, and their counterparts in Scotland, to prepare for this change. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, the Minister has reminded us of our happy days during the passage of the Digital Economy Bill—now the Digital Economy Act. Of course, we all like to be reminded of our days in the salt mines. These regulations are straightforward and we welcome them. I certainly do not intend to raise again any issues relating to the Electronic Communications Code. Certainly, I would not want to provoke another speech from the noble Lord, Lord Grantchester; that would be very unwise.

However, I will make a couple of comments relating to the implementation of the code. As I understand it, Ofcom is issuing a code of practice on top of that. There is some concern that although the direction of travel of the ECC was very clear, the code of practice is in a sense bringing back a slight bias in favour of the landowners. That is a concern of some commentators. One says:

“While the consultation around the code of practice is to be welcomed, if implemented in its current form, the code of practice is in danger of swinging the pendulum back too far in favour of landowners who will be able to challenge operators at every stage”.


I know that the Government were very keen to get the balance right. It will be interesting to hear what the Minister has to say about that.

The Minister may want to write to me about this, but this is a useful opportunity to ask about the direction of government policy in terms of EU regulatory reforms—if we can bear it. It looks like there are plans from Brussels for a new Electronic Communications Code which includes e-privacy regulation. Obviously, before we exit—if we exit—it will continue to be important to keep the digital single market and the single telecoms market in place. The question arises: will there be time? Will the new Electronic Communications Code, however it is brought in—whether by directive or regulation, I am not quite sure—happen? Will it fall outside? Will it be after 29 March? Will it fall during a transition period? I suspect there are many in the telecoms field and the general area of technology infrastructure who will be extremely interested in the answer to that.

Those are the two areas on which I would very much like to have an answer from the Minister, either now or at some stage in the future.

--- Later in debate ---

[Lord Griffiths of Burry Port]

From the noble Lord’s tone of voice, I honestly thought that it was a sunnier experience than that. Between that and a hypothetical happy future, when other things may or may not happen, I will stick to what is in front of us.

It all seems logical to me. I guess the simplicity of the proposals led to this being referred to me, with my simple mind. I understand perfectly that with the developments in electronic communications we have to have methods appropriate for handling the expansions of systems across the land. I note that the speed and effectiveness of dispute resolution becomes a possible consequence of decisions taken. The balance to which the noble Lord, Lord Clement-Jones, referred is indeed mentioned in these documents and is being sought. I am in no position to judge whether the view expressed that suggested movement back towards landowners is true, but I am sure the Minister will answer that question.

There is a consultation. I note that there is to be no impact assessment because there is no impact, it seems. It is nice to have read that at least six times in these papers. I commend all those who have gone through all the legislation, both past legislation in general and localised legislation from across the land. It is a job for somebody and I pay tribute to the nameless people who have done this trawl. It even goes into the county of my birth—Dyfed in south Wales—where I was rather disturbed to find that “statutory undertakers” are now to be called “operators”. In my life’s work as a Methodist minister, I had rather a lot to do with statutory undertakers and I am sorry that they have been defined out of existence.

There is a logic running through this. It is simplicity itself. It tidies up what is in front of us. I have no hesitation in supporting these measures.

[Lord Ashton of Hyde]

My Lords, I am grateful for both noble Lords’ comments. On the question from the noble Lord, Lord Clement-Jones, on the code of practice, it is not yet published. Extensive consultation was carried out. It is a bit difficult to speculate on its content, but it is important to remember that the code of practice is not binding and cannot change the balance that the law delivers. We spent some time considering that balance. It is certainly true that one of the points of the code was that it should enable operators to do things that were taking too long. There is certainly no intention to change that balance. We absolutely understand the need for operators to access land more easily and more speedily, but preferably on a consensual basis. That was the whole object. These regulations are to do with the occasions, which we hope will not be very often, where agreement cannot be reached, so we can go to a tribunal that has expert surveyors and people like that on it, rather than the county court, which is not expert. I say to the noble Lord that we have no intention and there was no desire to change the balance between landowners and operators. We will have to see what the code of practice says. It is not binding, but if need be we can talk to him when it comes out. We expect to commence the code in December. Ofcom has assured us that the code will come out before it comes into force.

We do not know the timings for the European ECC. If it is acceptable to the Committee I will look at some of the questions the noble Lord asked and do some research into them. We might not know the answers. I do not have them to hand, but if we do know I will come back to the noble Lord.

I am pleased that the noble Lord, Lord Griffiths, was able to come in at the end of this long process. He had one of the more happy experiences. I am very grateful to him. With that, I beg to move.

Motion agreed.