Telecommunications Infrastructure (Leasehold Property) Bill

Lord Fox Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Thursday 28th January 2021 Lords Chamber

[Lord Fox (LD)]

My Lords, on Report, the noble Lord, Lord Alton, said that this amendment would empower the Government to deny infrastructure access to operators whom, they believed, were abusing human rights. This is part of an important conversation about how modern slavery legislation might apply to the digital economy and especially its supply chain.

Since Report, this argument has been rehearsed on a number of occasions in other places. That reflects the tenacity of the noble Lord, Lord Alton, and his colleagues. Each time the argument is repeated, it is no less powerful, horrifying or revolting to hear what is happening.

As we heard from the noble Lord, the Trade Bill has been one focus for this discussion. The Government spurned a real opportunity when they whipped Conservative MPs to vote against the so-called genocide amendment earlier this month. That amendment reflected the discussions during the passage of the Trade Bill in your Lordships’ House. It sought to introduce a mechanism to allow British courts to determine whether a foreign country had committed genocide. The amendment was introduced in your Lordships’ House to deal not just with the Uighurs but with other human rights issues as well. I hope that your Lordships will listen sympathetically next Tuesday when the amendment is reintroduced.

I, too, thank the Minister both for her comments and for her detailed letter, which showed empathy on this issue and explained why her department had been unable to bring forward the amendment previously promised. My admiration for the ingenuity of the noble Lord, Lord Alton, and others has increased. They have managed to table this amendment to a Bill that, as the noble Baroness, Lady Morgan, correctly characterised it, is intended to help tenants obtain broadband.

The noble Baroness, Lady Morgan, also implied that the issue had, as a result of these discussions, somehow been dealt with. Although there has been welcome movement on the Government’s part over Huawei, it would be wrong to say that the issue has been dealt with. I asked the House of Lords Library whether a law exists that prevents telecommunications operators from using their infrastructure to breach human rights. I thank the Library for its thorough work, but it was unable to find evidence of legislation preventing telecoms operators from using tele- communications infrastructure to breach human rights. In other words, there is no such legislation. The Library asked Ofcom whether it was aware of any such requirement in legislation; Ofcom said that it was not. Legal experts were also unaware of anything in telecoms legislation. In other words, the noble Lord, Lord Alton, and the signatories to this amendment have identified a gap in the legislation.

The Human Rights Act applies only to public authorities and other bodies—public or private—that perform public functions. There is no general requirement on companies to comply with human rights obligations, although that has sometimes been applied to the relationship between companies and private individuals. As others have said, there are UN guiding principles on human rights and business. The Companies Act 2006, the EU non-financial reporting directive 2014 and the Modern Slavery Act all contain commentary on human rights but none deals with this particular issue.

It is a shame that we have had to have this debate almost by proxy. Even the noble Lord, Lord Alton, would admit that this Bill was not designed to address this issue. Such a Bill is needed so that we can have this discussion in a discrete environment. I understand that my noble friend Lord Clement-Jones was promised that there would be a communications security Bill. I assume that the National Security and Investment Bill is what that has metamorphosised into—perhaps the Minister could confirm that. As my noble friend Lady Northover suggested, this issue could be discussed in that context. I am working on that Bill, but it seems to me to have to been drawn very narrowly. Given this legislative absence, it is appropriate that the noble Lord, Lord Alton, and others have brought forward this amendment now. If the noble Lord, Lord Alton, decides to push it to a vote, we on the Liberal Democrat Benches will support it. If he does not, we shall support an amendment to the Trade Bill. Even if the noble Lord decides not to push for a vote today, the Government can be sure that this issue is not done with and will not go away.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I am glad that the noble Lord, Lord Alton, has rehearsed the background to his Report stage amendment and explained the reasons for bringing it back to your Lordships’ House today. We simply cannot turn a blind eye. Standing aside or ignoring what is happening in China is tantamount to condoning the appalling actions described by the noble Lord in his powerful and moving speech.

A lot has changed since June. I am sure that the Minister will update us on subsequent government action, particularly in relation to Huawei equipment. As a number of noble Lords have said, other legislation—including the Trade Bill, before your Lordships’ House again next Tuesday—has amendments bearing on this issue. The case made by the noble Lord, Lord Alton, is unanswerable, as I have made clear. However, tabling this amendment to this Bill is perhaps not the best way of achieving his wider objectives. It might, I suppose, adversely affect the chances of the big win that we hope to achieve on Tuesday with his amendment to the Trade Bill.

Everyone who has spoken today has supported the noble Lord, Lord Alton, and paid tribute to his campaigning and his ceaseless tenacity on this cause. If he chooses to divide the House, we will support him, but I hope that he will feel able to accept the Government’s position on this narrowly focused Bill and that it would be better to defer the decision to Tuesday’s debate on the Trade Bill.

--- Later in debate ---

[Lord Fox (LD)]

My Lords, the amendment, which we welcome, brings us into the territory of the Bill. The noble Baroness, Lady Morgan of Cotes, if she is still in her virtual seat, will be sitting more easily in this part of the discussion.

When speaking previously to an amendment brought by the noble Lord, Lord Stevenson, supported by myself and others, the Minister agreed that we should aim to simplify the lives of consumers. To that end, she said that the Government would be willing to table an amendment at Third Reading. My understanding is that this amendment honours that statement. The Minister said that Her Majesty’s Government consider it fair to amend the Bill in this way and that the aim is to include measures to ensure that an operator must not install their equipment in any such anti-competitive way. Therefore, the test of the amendment is whether it reaches that objective.

I shall discuss two aspects of the amendment’s wording. First, the words,

“nothing done by the operator”,

seem to imply more than just technology, because there are other things that an operator could do. Perhaps the Minister can explain “nothing”. It could refer to a contractual matter or all sorts of other areas, including service as well as the purely technological. Secondly, there is the phrase, “unnecessarily prevents”. What is a necessary prevention? In other words, how will the regulations deal with those two areas—“nothing” and “unnecessary”?

I had the opportunity to virtually bump into the Minister this morning—obviously with at least two metres between us—and give her some warning of my concerns. Regarding the practical way this matter will work, let us imagine that I am a tenant in a new property. I move in, wish to switch my operator and start to encounter technological problems with the process. What do I do next? How does the amendment help me to deliver on that?

Quickly in conclusion, none of this means anything if we do not have great connectivity. I could not, therefore, pass this opportunity by without asking the Minister where we are on that. The delivery of ultrafast broadband was a subject for discussion in Committee and on Report, as was the creation of an open source network. It is safe to say that some time has passed since we last discussed that issue. As the Minister stated, some technological developments have included, not least, the gradual removal of Huawei from the supply chain. Meanwhile, the Prime Minister has made several statements about the bandwidth that will be provided and its extent—statements at odds with what network providers have said is possible. Where are we on the Prime Minister’s gigabit connectivity being available to everyone? Where are we on the development of open source networks? If the Minister can answer those questions, I am sure that we will support the amendment.

[Lord Vaizey of Didcot (Con) [V]]

My Lords, I refer to my entry in the register of Members’ interests. I was not a Member of this House when the Bill was debated at Second Reading or on Report. Therefore, I begin by saying how much I welcome it. In my experience as the Minister responsible for rural broadband rollout between 2010 and 2016, I soon came to realise that planning is the biggest obstacle that prevents the rapid deployment of the broadband that this country desperately needs. The planning system is hopelessly complex and time-consuming, and imposes enormous costs on operators. Anything that can make their lives easier has to be welcomed. Multi-dwelling units contain dozens of potential recipients of ultrafast broadband. If we can make it easier and simpler for operators to deploy their technology, that is to be welcomed.

I was also delighted that the Government yesterday published a consultation on reforming the Electronic Communications Code. Again, I was the Minister who had a first stab at that, which was obviously not good enough, and that is why we need a second bite at the cherry. I should point out to the noble Lord, Lord Fox, that the foreword to that consultation document contains some heartening statistics on the deployment of gigabit broadband. From memory—I read it only this morning, but I am getting older—some 30% of homes can now potentially receive gigabit broadband. It is good to see the Government pressing ahead on another front.

I should say on operators entering multi-dwelling units that one of the Government’s commitments during the passage of the Bill was to publish a consultation on the code of practice and then a code following Royal Assent. Given that the Bill imposes obligations on landlords and effectively interferes with their property rights, it is vital that landlords are reassured that the operators will adhere to the highest possible standards. The code of practice is also important for some of the smaller operators. There is some nervousness among them. If landlords are worried about operators’ standards when deploying the technology, they will simply take refuge by dealing only with the biggest operators and not allow insurgents, as it were, or start-ups to fibre-up their buildings. I hope that when she responds the Minister can give some reassurance that the code of practice consultation will be issued imminently.

I should also point out that the Bill does not yet cover the issue of shared freeholds, and I hope that the consultation on the Electronic Communications Code, which I am not covers this issue, could be used as a vehicle for looking at how operators can enter buildings where there is a shared freehold—the typical building being a Victorian house that has been split into flats. Some 5 million premises fall within that category and there needs to be some way forward to allow operators to access shared freehold premises.

I am not sure whether the amendment is necessary in practice, but I understand the Government’s motivation to reassure Members of both Houses that the Bill will not inadvertently create monopolies in multi-dwelling units. I should also ask the Minister to respond, either now or in writing, to the concern of some operators about the Government and Ofcom’s ongoing intentions to impose wholesale access on operators. It is one thing to say that an operator should not do anything, intentionally or inadvertently, to prevent a competitor supplying technology to multi-dwelling units, but it is quite another to impose on a company the obligation to allow others to use the infrastructure it has invested in and paid for. What is the direction of travel of the Government and Ofcom, because I know that they have previously thought about imposing wholesale obligations on operators in multi-dwelling units?

However, as I say, I welcome the amendment. My understanding is that any attempt to physically impede competitors from entering a multi-dwelling unit would fall foul of the ATI regulations and, indeed, the EU’s Electronic Communications Code, so I am not entirely certain that the amendment is necessary. However, in the sense of providing statutory reassurance that a much- needed piece of legislation will open up access to ultrafast broadband to many millions of people living in multi-dwelling units the amendment has to be welcomed.