Telecommunications Infrastructure (Leasehold Property) Bill

Lord Fox Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 29th June 2020 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, it is a mixed pleasure to be back in the Chamber. In her speech in Committee on 19 May, the Minister said in response to my amendment:

“I believe that the noble Lords who have tabled the amendment are seeking to ensure that tenants are covered by the Bill. If noble Lords are indeed seeking clarification on that point, I am able to confirm that as currently drafted, the provisions in this Bill can be used by people who rent their homes.”


She went on to say:

“This includes people with assured shorthold tenancy or assured tenancy agreements which, as many noble Lords will be aware, are the most common forms of tenancy agreement.”—[Official Report, 19/5/20; col. 1030.]


In her subsequent letter, the Minister said:

“As drafted, this Bill allows a lessee in occupation—i.e. someone who has a leasehold agreement with a person able to confer on an operator or otherwise be bound by a code right—to request that an operator provide an electronic communications service to the premises so occupied. It is that which is the trigger for the whole process set out in the Bill. It is for that reason that the Bill does not use the language of landlord and tenant law, which was one of the—entirely understandable—points made during the first Committee session.”


The Minister then referred to the definition of lease set out in Street v Mountford cited at [1985] UKHL 4:

“An agreement is a lease if it provides for (i) exclusive possession, (ii) of defined premises, (iii) for a fixed or periodic term and (iv) at a rent.”


She said:

“The distinguishing feature of a lease, as opposed to a licence, is that the tenant has exclusive possession of the let property.”


The letter continued:

“My understanding is that a tenant at will could be a person able to make a request that would trigger the Part 4A process… If an agreement for occupation constitutes a lease, then the fact that it is renewable does not change the Government’s intended approach. As I mentioned at the first Committee session ... My understanding is that the impact of that would therefore be that so long as a renewable tenancy has the hallmarks of a lease then it would not fall outside the scope of this Bill. I must stress again, though, that this will be both a matter of substance that will turn on the facts of each case and ultimately, the interpretation of the law will be a matter for the courts.”


All this added some clarity but, in the view of my noble friends and I, not enough. The noble Baroness, Lady McIntosh of Pickering, said quite rightly in Committee:

“Leasehold properties are a very grey and disaffected area of property rights.”—[Official Report, 19/5/20; col. 1025.]


I agree with the noble Baroness. The noble Lord, Lord Liddle, referred to his concern for

“young people, including students, living in short-term lets in multi-occupier buildings—for instance, in old council blocks where someone has bought a flat to rent it out and their main occupiers are students on short-term tenancies.”—[Official Report, 19/5/20; col. 1032.]

This amendment is designed, as crisply as possible, to dispel any lack of clarity or misapprehension to ensure that we have as inclusive as possible a definition of those who could be regarded as tenants, without straying into the territory of licensees or licences, which do not grant exclusive possession. If there is exclusive possession, even if the language of “a licence” is used, the occupier will be covered by the code. I am concerned to ensure that all tenancies are included, even if not, strictly speaking, leases.

Tenancies in the public sector are of a particular nature, and we need to make sure that they are clearly covered. For instance, the amendment would make sure that introductory or probationary tenancies in local authority housing, flexible or joint tenancies, and what are called demoted tenancies are all covered, as well as tenancies by succession and starter tenancies from housing associations. It would include written or verbal agreements. The position of a tenant at will or renewable tenancy, if there is such a residential status, may also demonstrate the need for this clarification. All these tenancies will have exclusive possession and it needs to be made clear that they qualify, for the purposes of the code.

What could an objection to any of these examples be? If the amendment is unnecessary or tautologous, it is innocuous. If I am right, however, and clarification is needed for a number of ordinary tenancies to be covered, the case is made for its inclusion. I beg to move.

[Lord Fox (LD)]

There is nothing I can add to the comprehensive speech of my noble friend Lord Clement-Jones, so I shall sit on my hands.

[The Deputy Speaker]

I understand that the noble Lord, Lord Stevenson of Balmacara, does not wish to speak, so I call the noble Baroness, Lady Meacher.

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[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I appreciate the way that the House authorities and all Benches have worked to enable us to challenge the Government safely, and am glad to conduct our business from the safety of isolation.

I support this amendment introduced by the powerful speeches of those sponsoring it and that of my noble friend Lady O’Loan. She described the horrors, yet many more as yet undescribed are happening. We are horrified at home by even small acts of violence towards people whose characteristics are protected in our laws, so how can we ignore gross violations elsewhere, turn a blind eye and pretend all is well out of convenience to ourselves?

History repeats itself. In the Second World War, in the early 1940s, concentration camp victims were used as workers by Siemens and many others. Now, we have ever-growing evidence of gross abuses of human rights in China. The chilling evidence from the independent tribunal of Geoffrey Nice QC found overwhelming evidence of forced organ harvesting. Yet we fail to act on its findings. We need legislative teeth, not sympathetic noises and wringing of hands. Professor Zenz’s report, published today, reveals the forced sterilisation of Uighur women in Xinjiang and the high internment rate of women in retraining camps. His supplementary paper on the relationship with Huawei, also published today, finishes:

“We must conclude that Huawei is directly implicated in Beijing police state and related human rights violations in Xinjiang, and that it has lied to the public about this fact on at least two different occasions.”


We must not be actors in history repeating itself because anything looks convenient or a bargain. We must not become complicit in human rights abuses on a massive scale. I will borrow the words of Andrew Griffiths, the then honourable Member for Burton, in a debate last March on forced organ harvesting:

“we have seen this before ... If we look at history, we see that there were opportunities for Governments to intervene and act, but they did not”.—[Official Report, Commons, 21/3/19; col. 46WH.]

Now is the time to say “This must stop” and to uphold our values in all our commercial dealings. We must develop other supply chains. We must produce our own consumables, PPE and hospital equipment, not only telecoms equipment. However, as the noble Lord, Lord Balfe, said, we must start somewhere. If my noble friends, led by the noble Lord, Lord Alton, test the opinion of the House, I will vote “Content” with them. If not, we must hold the Government to account to bring forward proper protection of human rights, and it will be to our shame if we do not act.

[Lord Fox (LD)]

My Lords, I was going to promise to be brief but, after the attempt of the noble Lord, Lord Holmes of Richmond, I am not quite going to match his brevity. We have heard some very powerful speeches and some very broad speeches today, and noble Lords are to be commended for that. However, there is one group of people who have not yet been mentioned, and that is the management and the directors of the companies potentially sourcing equipment to deliver the infrastructure in this country. Every company, in any business sector, has the potential to impact a range of human rights issues, and it is up to the board of that company to understand the impact it is having and to deal with it. This amendment, powerfully spoken to by the noble Lord, Lord Alton, and others, sends an important signal to businesses in this sector.

In her speech, I think I heard the Minister say that the impact was transferred from the equipment suppliers to the operators. Well, the operators are the people who source this equipment. Their boards have a responsibility to their shareholders and wider society to make sure that they do the right thing. It is clear that more boards are taking these issues more seriously, and this debate and subsequent changes should provide more emphasis for future boards and those future discussions. It has also permeated into the fund management world. Increasingly, investors look to invest in companies that act ethically and do the right thing.

This has been a huge debate but, narrowly speaking, we should expect our companies in this country to act ethically, and we should, as legislators, give companies as much guidance as we can regarding what that means in principle. That has been the nature of this debate.

Therefore, if the noble Lord, Lord Alton, decides to press this vote, we will support this amendment from these Benches, as we have said. If, however, he chooses to discuss with the Minister bringing something back on Third Reading, we would also support that—but what is brought back has to be substantive; it has to be real. I do not think the mood of the House can be satisfied by something that seems to push this into the long grass.

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[Lord Fox]

My Lords, this amendment addresses a real issue. We have seen in the past that control of the final few yards into a house or the ownership of a switch in a box on a street has prevented the smooth changing of vendors and complicated the lives of consumers. We should not be replicating this control as we go forward, so the amendment deserves a positive response from Her Majesty’s Government. I am sure that in future there will be examples where the cost of initial installation causes operators to want contracts in excess of 18 months, but that should always be covered by commercial concerns, not locked in by technology. So we on these Benches are interested to hear whether the Government have sympathy with the amendment and, if they do, how that sympathy will be manifested.

[Lord Clement-Jones]

As ever, my noble friend Lord Fox and the noble Lords, Lord Holmes and Lord Stevenson, have put their finger on the issues. I was going to ask the Minister how she thought the question of open radio access networks fitted into this picture, but I will not.

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[Lord Fox]

My Lords, I am glad to follow my colleague, my noble friend Lord Clement-Jones. This amendment is largely built on Amendment 21 from Committee. During the response to that amendment, the noble Lord, Lord Parkinson, described the Bill as

“one discrete instrument in the Government’s overall strategy for speeding up the deployment of gigabit broadband.”—[Official Report, 2/6/20; col. 1331.]

What are the other discrete elements of this strategy? What other legislative elements are there? My understanding is that this is the only legislative element currently available—leaving aside the security Bill, which is entirely different and not focused on the delivery of gigabit speeds—which is why I, the noble Lord, Lord Stevenson, and others seek to use this as an opportunity for the Government to reaffirm their commitment to one gigabit by 2025. As my noble friend Lord Clement-Jones asked, is 2025 still serious, when the Minister is now using the language of “as soon as possible”, which of course means many things to many people?

This amendment calls for a review of the impact of this Act on the Electronic Communications Code, focusing in particular on progress towards that one-gigabit target by 2025 and looking at whether we should grant rights of access to telecom operators akin to those enjoyed by other utilities. The review would also make recommendations for future amendments and legislation.

As I said in Committee, there is an urgent need to inject some adrenaline into the Bill, as we have seen in other areas, in delivering the 2025 target. Proposed new subsection (1) of the new clause envisioned by this amendment causes Her Majesty’s Government to review the impact of this Bill on the delivery of one-gigabit broadband to every home and business by 2025. As my noble friend pointed out, this is not an unreasonable target, given that it is the Prime Minister’s stated aim and therefore the stated aim of Her Majesty’s Government. We feel that this will be helpful to the department and the Government.

The second proposed new subsection backs this up by requiring the Government to look at what is needed to deliver sufficient support. As my noble friend Lord Clement-Jones just pointed out, there has been significant dialogue around the meaning of “utility”. I too appreciate the response from the Minister and the department. The gist of that response is that there is no single definition of what a utility has or is. I am sure that they are right, because the needs of electricity are different from the needs of water. The industries and their histories are different. Therefore, one would not expect a consistent picture, given how British law is constructed.

However, there is one overriding similarity: the complete assumption that every dwelling and business should have access to electricity, water and so on. These utilities come with a sense of assurance, a halo of necessity, and the legislation around them delivers on that. For all the assurances we have had from the Minister and the Government, this and previous Bills do not give that similar assurance for telecoms infra- structure enjoyed by those other things we call utilities. That is why this amendment is important; it promotes the cause of telecoms infrastructure as a modern-day necessity. If we ever needed evidence of that, this crisis has delivered it. Every day we see in the House of Lords the huge variation and poverty of connection that even your Lordships enjoy, never mind people across the rest of this country. That is why it is important and why the spirit of treating it like a utility is central to this amendment.

Subsection (3) calls for widespread consultation and sensible measures to ensure that both tenants and landowners are listened to. The Minister talked about maintaining the balance between landowners, tenants and property owners; subsection (3) allows that balance to be continued. Subsections (4), (5) and (6) ensure that the review is laid before Parliament within a year and looks at the scope of the code.

At its core, I really do not see why this is objectionable to the Minister or the Government. Indeed, as I have said, it is helpful in that it codifies the Prime Minister’s words into something tangible. That is why we on these Benches and Liberal Democrat Peers attending virtually will support the amendment if it goes to a vote.

[Baroness Barran]

My Lords, I thank the noble Lords for tabling this amendment, which I note is a revised version of the amendment tabled in Committee. I very much appreciate the spirit of this amendment, as set out by the noble Lord, Lord Stevenson. It is designed to be supportive of gigabit broadband deployment and to ensure that the legislative and regulatory environments support that deployment.

As we have discussed on several occasions this afternoon, this Bill has been introduced to address a specific issue. It is not, and has never been intended as, a panacea for the rollout of gigabit connectivity; it is one element of a multifaceted approach to improving the nation’s connectivity. In a moment I will try to set out some more elements of that approach.

I remind noble Lords that we are also bringing forward legislation to ensure that gigabit connectivity is provided to all new-build developments; working to improve the street works regime so that it works better for broadband deployment; and investing £5 billion in areas the market alone is unlikely to reach—which the noble Baroness, Lady Wilcox of Newport, quite rightly highlighted.

This measure was designed from the outset to be a precision instrument that supports the 10 million people living in apartment blocks in the UK to access better broadband. It is on this point—the idea of better broadband—that I feel I should begin. We are confident that Part 4A orders will be used by operators predominantly to deliver gigabit-capable connections, as we discussed in Committee, but the Bill does not mention gigabit-capable networks. For that matter, it does not mention broadband, 5G or any type of connection. As noble Lords know, 1 gigabit connectivity is not tech-neutral; not all forms of broadband can deliver 1 gigabit per second of connectivity. For example, copper-based superfast connections would not be able to do that.

The Electronic Communications Code, of which the Bill will form a constituent part, does not mention broadband; nor does it mention any connection speed or anything about the technology installed. The Bill and the code are technology-neutral; I believe there was some confusion on this in Committee. To put that another way: the code deals with the how, where and when of deployment, not about what is installed. I am making this point again because technological neutrality is important, as it allows a consumer to get the connectivity they need from the operator they want at the best price.

None of this is to detract from noble Lords’ appetite to ensure that the Government are on track to deliver gigabit-capable connections, which is entirely understandable and reasonable. Many noble Lords will know that there are already ways in which some or all of the amendment’s effects can be achieved without the need for the amendment. I will give three examples.

First, Ofcom publishes its annual Connected Nations report, which it updates two further times each year. It provides a clear assessment of the progress that the country is making in providing connectivity, both fixed and mobile. I hope your Lordships would agree that the regulator, which is independent of government, is well placed to provide information on the progress of gigabit-capable broadband.

Secondly, the Government continue to answer questions and provide clarity on any aspects of its work in this area, in both this House and the other place. Noble Lords are familiar with asking questions and I endeavour, as always, to answer them.

Thirdly, in this House and in the other place there are established means of scrutiny through Select Committees. Indeed, the DCMS Select Committee in the other place has already launched an inquiry into the Government’s gigabit broadband ambitions. That committee has made it clear that it will

“focus on how realistic the ambition is, what is needed to achieve it, and what the Government’s target will mean for businesses and consumers.”

I hope that that goes to the heart of the spirit of the amendment.

The amendment also asks us to reconsider giving telecoms operators similar rights to access land as those enjoyed by gas, water and electricity operators. This is entirely understandable: the coronavirus pandemic has thrown into sharp relief the increased need for fast, reliable and resilient networks. Indeed, the argument was well made in Committee and I have had further conversations on the issue since then.

It is important to be specific when talking about operators’ access to land. The Electronic Communications Code provides a degree of operational flexibility to telecoms operators. The amendment talks of rights of access “akin” to those of gas, water and electricity. I would be interested to understand precisely where noble Lords think telecoms operators might be disadvantaged. Indeed, the Bill gives them a simple way to apply for rights to gain access to land where there is an unresponsive landlord. It is already giving them more.

That said, I will concede that the rights of telecoms operators are not identical to those of gas, water or electricity operators, but nor do they need to be; they are comparable in many important ways. The code gives operators a framework that incentivises them and landowners to reach a duly negotiated agreement. If, for whatever reason, an agreement is unable to be reached, it allows an application to be made with the court to have rights imposed. Also, Schedule 4 to the Communications Act 2003 makes provision for them to compulsorily purchase land. I hope noble Lords agree that these are quite significant powers. To be clear, there are differences, but I think we would all recognise that certain rights of entry and access are to be expected due to the nature of the gas, water and electricity networks, not least given the potential threat to life that even a minor fault could cause.

In Committee, the noble Lord, Lord Stevenson, asked why we had gone back on our assertion in the future telecoms infrastructure review about giving operators similar powers to utilities. I wonder whether some of the issues around that come from that statement in the infrastructure review.

As I tried to point out in Committee, the consultation for the Bill explored the possibility of giving telecoms operators a warrant of entry through the magistrates’ court, similar to the process for operators of other utilities. However, the responses to the consultation made it clear that warrants of entry were not suited to the problem faced by telecoms operators here; they are used largely for single access, for example to remove existing equipment. That is why we consulted on this and the judiciary agreed that it should instead be either the Upper Tribunal Lands Chamber or First-tier Tribunal granting interim rights codes to operators. I hope that I have alighted on the right issue that has given rise to this element of the debate.

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[The Deputy Speaker (Baroness Henig) (Lab)]

I have received a request from the noble Lord, Lord Fox, to ask a short question for elucidation.

[Lord Fox]

The issue of 2025 was raised by both of us, so could the Minister clarify that?

[Baroness Barran]

It is still the Government’s intention to deliver gigabit-capable connections to every home and business in the UK as soon as possible. We seek to do that by 2025. The noble Lord will remember that we talked in Committee about the impact of Covid on the rollout; I think that I clarified that we know that there is a short-term impact and we are doing everything we can to try to work through it—but, obviously, none of us can predict the future.