Product Security and Telecommunications Infrastructure Bill (Third sitting)

Debate between Sally-Ann Hart and Julia Lopez

Committee stage
Thursday 17th March 2022 Public Bill Committees

[Julia Lopez]

I thank my hon. Friend for her intervention. I know that she has considerable expertise in this field. It is a difficult balance to strike, ensuring that we are protecting landowner rights while making sure we are giving telecoms operators the powers they need to make sure all of our constituents have the digital connectivity that they demand—and will increasingly need—going forward.

For the reasons I have set out and will be setting out in further detail, I do not think the amendments will have the desired effect. It was interesting to hear the oral evidence this week, because there was no consensus among the telecoms operators about what powers are required. We have to ensure that we do not give commercial advantage to one player or the other, as that would also trample over some landowner rights.

The changes made in the 2017 reforms permit upgrading and sharing to take place without a landowner’s specific consent only where any impacts on that individual will be limited. However, it was recognised that any use of those rights could have some impact—albeit a very limited one—on individual landowners. The new rights were not applied retrospectively and had no effect on landowners who had entered into agreements before the legislation was passed. The key difference is that agreements made after that date would be completed in the knowledge that the upgrading and sharing rights would apply. Since the 2017 reforms, however, the public need for robust and up-to-date digital services has continued to grow, and was thrown into sharp relief by the recent pandemic, when many of us were reliant on access to those services at unprecedented levels.

Upgrading and sharing apparatus has a more important role to play than ever before. In the light of this and other market developments, we have revisited the position on upgrading and sharing where the rights introduced by the 2017 reforms do not apply. Introducing specific upgrading and sharing rights for such equipment can play an important role in improving coverage and capacity, and amendment 9 appears to agree with that conclusion. However, we need to ensure that the rights of individual landowners are adequately protected. As I said, agreements after the 2017 reforms will have been concluded in the knowledge that they will give rise to automatic rights for apparatus to be upgraded or shared. That is not true of apparatus that is not covered by an agreement concluded after the 2017 reforms. As such, it is only right that any automatic rights to upgrade and share those types of apparatus should be subject to different conditions.

The amendments suggest introducing specific conditions for retrospective upgrading and sharing rights where private landlords are concerned, and those conditions partly reflect those contained in the rights established by the 2017 reforms and those set out in the Bill. However, the conditions in the new rights that we are proposing have been carefully developed to work as a whole; they are intentionally more restrictive and give rise to more limited rights than those available for agreements reached before the 2017 reforms. Taken together, the conditions mean that the operator will have automatic rights only to carry out upgrading and sharing activity that will have no adverse impact on the land or that will put no burden on a relevant individual, but this will still allow activities, such as crucial upgrading work, to be undertaken in relation to historical copper cables installed underneath land.

[Sally-Ann Hart (Hastings and Rye) (Con)]

I wonder if the Minister could provide some clarity. Underneath the ground, there are ducts that operators can run cables through. We heard in this week’s evidence session about telegraph poles. Operators can go to the bottom of the telegraph pole, but will the Minister provide some welcome clarity on whether they can go up to the top and across? It is really important that they can use existing infrastructure and not have to pay to go around because they cannot use the overhead.

[Julia Lopez]

We are looking at rights that will provide easier access to underground and over, but not on. These are very techy points. If my hon. Friend feels that that does not answer her question precisely enough, I would be happy to ask officials to get in touch with her.

The measures in the Bill as drafted ensure that apparatus installed under agreements concluded prior to 2017 can be upgraded and shared quickly and cost-effectively. At the same time, the specific conditions that we are introducing will ensure that the right balance is maintained between the interests of private individuals and the wider public benefit, which is a difficult balance to strike. We are concerned that the amendments would not maintain that balance. I hope that gives the hon. Member for Ogmore assurance that the provisions in the Bill regarding retrospective rights to upgrade and share represent a balanced approach, and I ask him to withdraw his amendment.

Clauses 59 and 60 are vital clauses that support and encourage greater upgrading and sharing of existing apparatus. The 2017 code reforms provided operators with limited automatic rights to upgrade and share their apparatus, subject to certain conditions. However, the 2017 changes did not introduce paragraph 17 upgrading and sharing rights for subsisting agreements, which are agreements completed before the 2017 reforms came into force. This means that a significant proportion of the UK’s existing networks cannot be upgraded or shared without specific permission, despite the fact that apparatus can be upgraded and shared in many situations with no adverse impacts on any individual or private land.

Clause 59 therefore inserts new paragraph 5A into schedule 2 to the Digital Economy Act 2017 in order to introduce rights for operators to upgrade and share apparatus installed under a subsisting agreement. These rights differ from those contained in paragraph 17. They are available in more limited circumstances and will be subject to stricter conditions and specific notice requirements. Taken together, the measures in the clause will ensure that apparatus installed under a subsisting agreement can be upgraded and shared quickly and cost-efficiently, and do so in a way that takes into account both the interests of individuals and the wider public benefit.

Clause 60 deals with the same issue of upgrading and sharing apparatus, but in this case in relation to apparatus installed before 29 December 2003 where there is neither a subsisting agreement nor an agreement concluded after the 2017 reforms. It is right that upgrading and sharing rights should be available for all apparatus installed before the 2017 reforms came into effect. Clause 60 therefore inserts proposed new paragraph 17A into the code, conferring rights to upgrade and share apparatus installed under land before 29 December 2003, where the operator who owns that apparatus is not a party to an agreement under part 2 of the code.