Product Security and Telecommunications Infrastructure Bill

Lord Harlech Excerpts

Report stage
Wednesday 12th October 2022 Lords Chamber

Moved by

[Lord Harlech]

18: After Clause 60, insert the following new Clause—
“Power to fly lines from apparatus kept by another operator
(1) Paragraph 74 of the electronic communications code (power to fly lines) is amended as follows.(2) For sub-paragraph (1) substitute—“(1) This paragraph applies where an operator (“the main operator”) keeps electronic communications apparatus on or over any land for the purposes of the main operator’s network.”(3) In sub-paragraph (2)—(a) before “operator” insert “main”, and(b) in paragraph (a), after “apparatus” insert “mentioned in sub- paragraph (1)”.(4) After sub-paragraph (2) insert—“(2A) With the agreement of the main operator, another operator has the right, for the statutory purposes, to install and keep lines which—(a) pass over other land adjacent to, or in the vicinity of, the land on or over which the apparatus mentioned in sub- paragraph (1) is kept,(b) are connected to that apparatus, and(c) are not, at any point where they pass over the other land, less than three metres above the ground or within two metres of any building over which they pass.”(5) In sub-paragraph (3)—(a) for “Sub-paragraph (2) does” substitute “Sub-paragraphs (2) and (2A) do”, and(b) in paragraph (a), for “sub-paragraph (2)” substitute “either of those sub-paragraphs”.(6) After sub-paragraph (3) insert—“(3A) The main operator has the right to upgrade, or carry out works to, the apparatus mentioned in sub-paragraph (1) for the purposes of, or in connection with—(a) the exercise by the main operator of the right conferred by sub-paragraph (2), or(b) the exercise by another operator of the right conferred by sub-paragraph (2A).(3B) With the agreement of the main operator, another operator has the right to upgrade, or carry out works to, the apparatus mentioned in sub-paragraph (1) for the purposes of, or in connection with, the exercise by the other operator of the right conferred by sub-paragraph (2A).(3C) Sub-paragraphs (3A) and (3B) do not authorise an operator to upgrade, or carry out works to, the apparatus mentioned in sub- paragraph (1) if the upgrade or works would—(a) have more than a minimal adverse impact on the appearance of the apparatus,(b) have more than a minimal adverse impact on the land on or over which the apparatus is kept, or(c) cause loss, damage or expense to any person with an interest in the land on or over which the apparatus is kept. (3D) An operator may not enter the land on or over which the apparatus mentioned in sub-paragraph (1) is kept for the purpose of exercising a right conferred by this paragraph without the agreement of the occupier of the land.”(7) In paragraph 77 (when and by whom a right to object under Part 12 of the code can be exercised), in sub-paragraph (3), for “paragraph 74” substitute “paragraph 74(2) or (2A)”.”Member’s explanatory statement
This amendment confers rights on an operator to fly lines over a person’s land from another operator’s apparatus, and enables either operator to upgrade or carry out works to such apparatus for the purpose of exercising a right under paragraph 74 of the code.

[Lord Harlech (Con)]

My Lords, before I begin to speak to this group, I declare my interest as a land and business owner in Wales with various wayleaves.

In Committee, several of your Lordships expressed support for an amendment to facilitate the more effective use of telegraph poles situated on private land. My noble friend Lord Parkinson of Whitley Bay explained that the Government were looking into this. Subsequent discussions with stakeholders clarified the significant benefits to which changes in this area can lead and the barriers that currently prevent apparatus such as telegraph poles being used to their best effect.

I also thank my noble friend Lady Harding, whose insightful contributions have been of great assistance. Based on these discussions, I am pleased to bring forward Amendment 18 to improve the existing regime which regulates overhead networks contained in Part 11 of the code.

Before turning to the amendment itself, I will explain how Part 11 operates. Part 11 confers rights on operators to keep apparatus on or over land. I will refer to them as main operators. The apparatus with which this part is concerned is typically telegraph poles.

The rights conferred by Part 11 permit these main operators to install and keep lines connected to their poles, which may also pass over neighbouring land. These rights are automatic but subject to specific height restrictions, a notice requirement and a right to object in certain circumstances. However, while the Part 11 regime allows a main operator to fly lines from these poles, it does not permit them to upgrade or carry out works to the poles that may be needed to deliver gigabit-capable connections—for example, running cable wire from the base of the pole to the top. Similarly, the regime does not permit operators other than the main operator to fly their own lines from the poles, creating an obstacle to apparatus sharing.

Amendment 18 is designed to address both gaps. It extends the right in paragraph 74 of the Electronic Communications Code to install and keep lines to operators other than the main operator, provided that the main operator consents to this, subject to the same height restrictions, notice requirement and right to object already in place for the main operator. Sharing the use of these poles will not only speed up the pace of deployment but reduce the need for additional installations and their associated impacts. In addition, the amendment will confer new rights on either operator to upgrade or carry out any other works to the pole so that the lines flown from them can deliver gigabit-capable connections.

Among other things, this change will ensure that, as my noble friend Lady Harding raised at Second Reading, the benefits of other rights that we are introducing to permit greater sharing of underground ducts will extend to overhead networks, by allowing upgraded fibre from such ducts to be rolled up the pole and subsequently strung between the poles to deliver gigabit connections.

The new rights will be subject to specific conditions, intended to protect the interests of individuals affected by them. First, exercise of these rights cannot have more than a minimal adverse impact on the appearance of the pole. Secondly, exercise of these rights cannot have more than a minimal adverse impact on the land on which the pole is kept. Thirdly, these rights cannot be used to carry out works that will cause loss, damage or expense to any person with an interest in the land on which the pole is kept.

In addition to the above, operators entering land on which a pole is kept, to exercise any Part 11 right, must have the occupier’s permission. This does not need to be a written agreement, but it is important that operators obtain consent before entering private land, a point raised by my noble friend Lady Harding in Committee. For main operators, access rights may already be in place but, where they are not and where other operators wish to exercise their new rights, permission to enter the land must be obtained. I beg to move.

[Baroness Harding of Winscombe (Con)]

My Lords, I declare a new interest as an adviser on the telecoms market to Octopus Ventures. I congratulate my noble friend Lord Harlech on his new role and welcome my noble friend Lord Kamall to a small, select club of people with a shared passion for healthcare and telegraph poles. One can find a number of us in the Chamber today. I thank both my noble friends, and the staff in DCMS, for the extremely constructive way that they have approached this Bill and thank my noble friend Lord Parkinson of Whitley Bay, the predecessor of my noble friend Lord Kamall, for his excellent work on this Bill and more broadly on the DCMS brief.

I am encouraged by this amendment and very grateful for it. It addresses the specific issue that I and others raised in Committee. With that, I also thank my noble friends Lord Vaizey and Lady Stowell, the noble Lords, Lord Fox and Lord Clement-Jones, and the noble Baroness, Lady Merron, for their work. This might be a small and technical amendment, but it has been a real team effort.

I have two clarifying questions. As we discussed in Committee, the devil is in the detail of this, and we share the same goal of being able to lay the fibre cable up the telegraph pole and from one pole to another. Perhaps your Lordships will humour my two very specific questions. First, the amendment gives operators the right to share the existing pole infrastructure

“with the agreement of the main operator.”

Can the Minister explain what proof of permission from a main operator an operator wishing to avail themselves of these provisions will be required to secure? Also, how easy will it be for them to do so? For example, will the normal provisions of PIA be an acceptable route to do that?

--- Later in debate ---

[Baroness Merron (Lab)]

My Lords, first I also welcome the Minister to his place—long may he continue to be as helpful to your Lordships’ House as he is being today. We welcome this government amendment, in the name of the noble Lord, Lord Kamall, whom again I would like to welcome to his new place on the Front Bench. Again, let us look forward to many other sensible government amendments in response to the points that have been raised. I also thank and pay tribute to the efforts of the noble Lord, Lord Parkinson, who helped get us to this stage.

This is very much an issue, as noble Lords will be aware, that attracted cross-industry support, as well as support from all across the House. I pay tribute to the noble Baroness, Lady Harding, for leading the team. In view of her comments about the select group of us who have an interest in health and telegraph poles, perhaps that is an opportunity for an All-Party Parliamentary Group of some select membership.

This amendment does strike the right balance between speeding up fibre rollout and protecting the rights of landowners when upgrading and sharing pre-2017 poles on private land. It is consistent with the amendment that the noble Baroness, Lady Harding, put forward earlier, which we were very pleased to sign up to when it was tabled at Committee stage. So I do welcome this very much from the Government. I do wonder why, given the considerable cross-party consensus in both Houses, it took so long to bring it before us, but we are here today. I too would welcome the clarity about whether verbal agreement from a landowner is indeed sufficient for operators to then undertake necessary works, but with that, this government amendment is one that finds great favour on these Benches.

[Lord Harlech (Con)]

I thank noble Lords for the opportunity to clarify these points and for their welcome to the Front Bench. If the House could indulge me a little, I have spoken several times in previous debates about the need for better rural connectivity and better broadband, so it is a great pleasure to actually take part in this debate.

In response to my noble friend Lady Harding’s question about proof of permission from a main operator to an additional operator, these new provisions are intended to optimise the use of existing telegraph poles. They explicitly recognise the value for UK connectivity in different operators being able to upgrade and fly wires from each other’s poles as quickly and efficiently as possible. The provision does not require a second operator to secure the main operator’s permission in any particular form. In other words, formality requirements that apply to an agreement under Part 2 of the code do not apply here. We expect the sector to make sensible, efficient administrative arrangements to make clear that the required permission is held. For example, Ofcom’s duct and pole access remedy, which Openreach fulfils through its physical infrastructure access products, requires Openreach to grant other operators access to its ducts and poles. Operators may consider that they can satisfy the condition for the permission of the main operator for paragraph 74 purposes through their usual procedures for securing access through PIA.

I welcome the opportunity to point out that we expect a similarly pragmatic approach to be adopted in relation to new rights relating to underground networks, introduced through Clauses 59 and 60, which are also intended to facilitate faster and more efficient upgrading and sharing. For example, it may be sensible when granting permission for a second operator to share the use of ducts and poles for the main operator to authorise the second operator to carry out the appropriate fixing of notices on its behalf.

Turning to proof of consent, the provision makes clear that the formalities needed for a Part 2 code agreement will not be needed for an operator to secure permission to access land in order to exercise its paragraph 74 rights. A verbal agreement can therefore satisfy the condition, but of course individual operators may wish to have proof of that permission in writing.

Finally, on the occupier giving their consent to a contractor, the occupier of land on which a pole is situated will need to give the operator permission to access the land before the operator exercises its new rights. Industry stakeholders report that obtaining consent to access land to carry out one-off activities can be achieved in significantly less time and at much lower cost than it would take for a formal code agreement to be concluded. Limiting the activities that can be carried out using these rights means there is not the same need for a formal agreement between the operator and the occupier of the land since the terms upon which the rights may be exercised are effectively prescribed by the conditions attached to them. The conditions therefore achieve the dual purpose of protecting the occupier’s interests while removing the need for a formal agreement.

Amendment 18 agreed.