Product Security and Telecommunications Infrastructure Bill
Wednesday 12th October 2022
(1 year, 6 months ago)
Lords ChamberProduct Security and Telecommunications Infrastructure Act 2022 View all Product Security and Telecommunications Infrastructure Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-R-I Marshalled list for Report - (10 Oct 2022)
18:41 - Division on Amendment 28 - Ayes: 159 / Noes: 151 - Amendment 28 agreed.
Lord Clement-Jones
“(2A) Regulations under this section must, among other things, include security requirements that—(a) prohibit the setting of universal default passwords and the ability to set weak or easily guessable passwords;(b) require the production and maintenance by manufacturers of regular publicly-available reports of security vulnerabilities; (c) ensure the provision of information to the consumer, before the contract for the sale or supply of a relevant connectable product is made, detailing the minimum length of time for which the consumer will receive software or other relevant updates for that product;(d) introduce appropriate minimum periods for the provision of security updates and support, taking into account factors including the reasonable expectations of consumers, the type and purpose of the connectable products concerned and any other relevant considerations.(2B) Regulations under this section must include provision that all security requirements specified in accordance with this Act are included as essential requirements in statutory conformity assessments and marking procedures under the Radio Equipment Regulations 2017 (S.I. 2017/1206), and in any other such assessments and procedures applicable to relevant connectable products.”Member’s explanatory statement
This amendment expressly sets out on the face of the Bill security requirements, which this bill seeks to establish through future regulations, providing specific legal guidance regarding the individual security requirements and obligations on relevant parties.
Lord Clement-Jones (LD)
My Lords, in moving Amendment 1, I shall speak also to Amendment 13. My noble friend Lord Fox will speak to Amendment 3 in the same group. First, I warmly welcome the noble Lord, Lord Kamall, to his new role in DCMS and join others in that welcome. I am sure he has already found the company of those who speak on DCMS matters very congenial, but he will also note that there are a number of all-purpose vehicles here, so he has probably met quite a number of us already.
In Committee, we called for the three security requirements to be set out expressly in Part 1 of the Bill. At the moment they are promised in secondary legislation without any draft being available, as is, I am afraid, the Government’s consistently bad habit. Customers need absolute clarity on the support period that manufacturers will offer so that they are able to make more informed purchasing decisions. I cannot understand why the Minister’s predecessor insisted in Committee that the minimum security requirements should be stated in secondary, not primary, legislation. He said it was important that technology regulation enables the Government to respond to changes in threat and technology and to the regulatory landscape; surely, these are security principles which should endure.
As for mandating minimum security updates for periods for connectable products, the Minister said that there is no consensus among industry experts on how long security updates ought to last. This is foggy thinking—how can the Government not have taken a view? Contrast the approach of the European Union, which has recently published its own equivalent Cyber Resilience Act. Crucially, the EU has imposed a five-year mandatory minimum period in which products must receive security updates. A rigid five-year period is not necessarily desirable, but the commitment to set out in legislation a mandated period in which products receive security support is very welcome. Before Third Reading the Government really should undertake to look closely at the EU proposals and tighten up the Bill. Why should EU consumers get a better deal than UK ones?
As regards Amendment 13, on computer misuse, the noble Lord, Lord Arbuthnot, introduced this amendment in Committee and this one is exactly the same. Under regulations that will be introduced following the passage of the Bill, manufacturers will be required to provide a public point of contact to report vulnerabilities. However, without a statutory defence in the Computer Misuse Act, it is clear that cybersecurity researchers can still face spurious legal action for reporting a vulnerability to a company which can decide on a whim to ignore its vulnerability disclosure policy—a practice known as “liability dumping”. Amendment 13 seeks to ensure that cybersecurity professionals who act in the public interest in relation to testing relevant connectable products can defend themselves from prosecution by the state and from unjust civil litigation.
In Committee, the noble Lord, Lord Parkinson, seemed to say conflicting things. He said that the key thing is to set professional standards to measure the competence and capability of security testers, and that that is why the Government set up the UK Cyber Security Council last year. On the one hand, he said:
“We should be encouraging this rather than creating a route to allow people to sidestep these important issues.”
On the other, he said that the Government are listening to the concerns expressed by the CyberUp campaign and that the Home Secretary had announced a review of the Computer Misuse Act. The Minister said:
“The evidence which is being submitted to the review is being assessed and considered carefully by the Home Office.”—[Official Report, 21/6/22; col. 212.]
Are the Government positive or negative on this? What approach are they taking? We are past the summer now, in any event. Is there any prospect of change to the Act? I beg to move.
Lord Fox (LD)
My Lords, I too welcome the Minister to his new role. I think DCMS will be at least as busy as his previous engagements, so we look forward to seeing him on his feet at the Dispatch Box quite a lot.
The unifying feature of these three amendments, which in policy terms are different, is that we are seeking some clarity. So, I support my noble friend in Amendments 1 and 13, and I rise to speak to Amendment 3 in my name. Given that online marketplaces represent the single most popular point of sale for connected products, these platforms should have responsibilities for the security of the products they are selling. That is what we are seeking clarity on today. If online marketplaces are not held responsible under the Bill, these insecure products will continue to be sold and, in all likelihood, their sale would become more prolific.
One of the last things the noble Lord, Lord Parkinson, did as Minister was to dispatch a letter to me in response to queries such as this raised in Committee about the status of online marketplaces—the fear being that channels such as listings platforms and auction sites such as eBay, Amazon Marketplace and AliExpress might present a loophole. The problem is the lack of clear definition for the various players that are part of the internet value chain and the fact that these players have different degrees of insight or control over what is happening online.
As the Minister will see from his predecessor’s letter, dated 21 September 2022, the department’s stated position for online marketplaces is that,
“businesses need to comply with the security requirements of the product security regime in relation to all new consumer connectable products offered to customers in the UK, including those sold through online marketplaces”.
I would appreciate it if the Minister could confirm this from the Dispatch Box. It is paramount that online marketplaces are given this obligation in the Bill to ensure this security, regardless of whether the seller is a third party. It would help very much if the Minister set out what the Government’s definition of an online marketplace is.
How does the Minister’s department plan to deal with the retailers, which are far away, possibly with their real identity obscured on the online marketplaces? Will the department go to the online marketplace first and how will that process be marshalled? In other words, when a customer has a problem, who do they contact?
Lord Bassam of Brighton (Lab)
My Lords, before I make any comments on this group, I join noble Lords in welcoming the noble Lord to his new position on the Front Bench. I think this Bill is a gentle introduction, and this afternoon will probably give voice to that sentiment. I do welcome him. We have been delighted by the general response we have had from the department on the Bill and the open way in which the noble Lord’s predecessor approached things. I am sure the noble Lord will continue very much in that vein.
This amendment was resisted when we were discussing these matters in Committee, on the basis that minimum requirements will swiftly be set out in regulations. Regulations are not always swift in coming, so perhaps it would be useful for the Minister to remind us how quick that will be. Is he in a position today to commit to a timescale for the full details to be brought forward? This is, after all, an important piece of protective legislation, as noble Lords around the House today have made clear, and, given that it is about protecting customers and consumers, it is important that we have some assurance on that point.
The questions that our noble friends on the Lib Dem Benches have asked are very important ones and they require to be answered. Although the Minister will no doubt resist these amendments, it would help us if we had some further reassurance, perhaps before we get to Third Reading. However, we are grateful for the written assurances that the Minister’s predecessor offered in relation to online marketplaces, and we hope that the current provisions will prove effective. I ask the Minister to outline how the Government would amend those provisions should that need arise in future. The noble Lord, Lord Parkinson, was always willing to provide us with some written responses, and that would probably suffice for us for today’s debate and deliberations. I look forward to hearing what the Minister has to say on this.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Kamall) (Con)
My Lords, I thank those noble Lords who gave me a warm welcome—and indeed those who did not. Many noble Lords will know me from my work in the previous department. In the case of the noble Baroness, Lady Merron, who was one of the first to welcome me, it is just a continuation; we seem to be inextricably linked in some way.
I pay tribute to my predecessor, my noble friend Lord Parkinson, for his work as the DCMS Minister. He was widely praised and I think people appreciated his engagement. Those who have engaged with me on previous legislation know that I tend to have a very open policy as well. I am happy to have as many meetings as we need and to facilitate meetings with officials, so please have no fear about asking for those meetings; I will be happy to do that as much as possible.
I turn to Amendment 1, from the noble Lords, Lord Clement-Jones and Lord Fox. I thank them for retabling this amendment, which first appeared in Committee. I also thank them and other noble Lords for meeting me before today.
We think that the threat landscape is ever-changing. Security requirements that are appropriate today could change and differ in the future. Setting that out in primary legislation would limit our ability to respond to threats in the future, impose barriers to innovation and leave unnecessary regulation still on the statute book or unnecessarily complicate the regulatory framework. The vast complexity of the connectable technology landscape means that the definitions used in our security requirements need to be carefully nuanced and readily updatable to avoid imposing unnecessary or inappropriate burdens on industry as those technologies develop. For example, we set out in our 2020 call for reviews that we do not currently consider it appropriate for our intended passport requirements to apply to API queues. Connectable products may be able to access a large number of API interfaces, many of which do not have a material impact on the security of the product. Compelling the Government to extend this password requirement to all APIs key to the product, as this amendment would entail, is exactly the sort of unnecessary industry burden that we are trying to avoid while making sure that we stick to setting out the requirements in regulations.
The Government are unwavering in our commitment to bringing forward security requirements that ban universal default and easily-guessable passwords, mandate the publication of a vulnerability disclosure policy and mandate transparency concerning security update provision. My officials have been working diligently to develop regulations that realise that commitment, and we hope to engage on the regulations in draft by the end of the year. Something that I often to say to my officials, whichever department I have been in, is that there are two phrases that I do not like to see: “in due course” and “at pace”. I like to give an indicative timeframe, so I hope the timeframe of “by the end of the year” gives some assurance.
That is why we do not believe the amendment is necessary, and I hope the noble Lords will consider withdrawing it. On top of that, I am willing to have meetings in future to clarify anything that noble Lords feel has not been clarified.
I turn to Amendment 3, tabled by the same double act of the noble Lords, Lord Fox and Lord Clement-Jones; I think this is going to be a recurring theme in my time as the Minister here. The proposed amendment aims to define online marketplaces as “distributors” for the purposes of the Bill. I assure noble Lords that the Government are on the side of the consumer. That is why the Bill requires all—I repeat, all—UK consumer connectable products to be secure, including those sold via online marketplaces. The Bill will ensure that where online marketplaces manufacture, import or sell products, they bear responsibility for the security of those products. Where this does not happen, I assure noble Lords that they should make no mistake: the regulator will act promptly to address serious risk from insecure products, and work closely with online marketplaces to ensure effective remedy.
We recognise that as well as bringing benefits to consumers e-commerce brings challenges—the double-edged sword of technology. This is one of the reasons why the Government are reviewing the product safety framework. We will publish a consultation later this year—once again, not “in due course” but later this year —with detailed proposals on tackling the availability of unsafe and non-compliant products sold online. Consumers need clarity and better protection, and this will be a priority for our work in this space.
I hope that the ambition of this Bill, its enforcement plan and the outline of further policy engagement will provide some confidence for noble Lords not to press Amendment 3.
Lord Fox (LD)
In reference to the consultation, does the Minister include product safety and product security in the term “unsafe”?
Lord Kamall
We understand that they are two different things, but I am happy to clarify and come back to the noble Lord—I hope to do so before we come to future amendments.
Amendment 3 aims to define what a “distributor” is for the purposes of the PSTI Bill. The Bill requires all UK consumer connectable products to be secure. Where it does not happen, the regulator will act promptly. For e-commerce, given the double-edged sword of technology, reviewing that framework is important. I hope the ambition of the Bill encourages noble Lords to consider not pressing the amendment, but once again I am happy to engage further for clarification and to address any outstanding concerns.
Let me turn to Amendment 13. The Government are listening to and considering concerns that the Computer Misuse Act is constraining activity that would enhance the UK’s cybersecurity. We understand that if you want to test cybersecurity you have to be able to test its breaking point. We are trying to strike the right balance between providing suitable reassurances for well-meaning individuals who want to identify vulnerabilities and not allowing malicious actors to access devices without consent. There are risks here. It is very nuanced, and the Government do not want to rush into legislative change without clear evidence to justify any such change to existing law. As the noble Lord, Lord Clement-Jones, said, the Home Office has been conducting a review of the Act since 2021, and the proposals for statutory defences have been an integral part of this review. I can confirm that a response that sets out how the Government plan to proceed should be published in the coming weeks, and an update will be provided to this House.
I hope that this will provide sufficient assurances on these three amendments, and the noble Lords will consider withdrawing and not pressing their amendments. I repeat the offer of continued engagement and meetings for clarification and to reassure noble Lords.
Lord Clement-Jones (LD)
My Lords, I thank the Minister for those three sets of assurances. I should have thanked him too for meeting with us prior to today.
I am interested in the Minister’s change of language in the department: we have got “by the end of the year” and “in the coming weeks” rather than “in due course”. I think we are making some progress, which is very helpful.
I notice too his unwavering commitment—that was very firm—to publish the regulations by the end of the year. It is grossly unsatisfactory not to have the secondary legislation in draft when the primary legislation contains virtually nothing of the real meat. I am afraid that this Bill is not alone in that respect; it is one of the common complaints that we have whenever legislation comes forward.
As regards the online marketplaces, I am grateful for those assurances, which are accepted and are very much in line with the letter. The new consultation on a new set of regulations about unsafe products is interesting, and I hope the Minister will clarify and give us further and better particulars, and more specifics about what that actually involves.
As regards the Computer Misuse Act—I notice the noble Lord, Lord Arbuthnot, is in his place—it is satisfactory that the Home Office is going to divulge what it really thinks about this. We wait with trepidation for what it is going to say on the subject, given some of the negative responses that Ministers have given previously. We can wait and look forward to that. In the meantime, I beg leave to withdraw Amendment 1.
Lord Kamall
Member’s explanatory statement
This amendment applies the affirmative resolution procedure to regulations under Clause 3.
Lord Kamall (Con)
My Lords, I turn now to Amendments 2, 4 and 5, which seek to implement recommendations set out in the Delegated Powers and Regulatory Reform Committee’s report. I once again thank the committee for its efforts in scrutinising the Bill.
Amendment 2 will ensure that regulations exercising the power in Clause 3 to deem compliance with security requirements will be subject to the affirmative resolution procedure. Amendments 4 and 5 focus on the power in Clause 9 to exempt manufacturers from needing to draw up a statement of compliance. This will also now be subject to the affirmative resolution procedure.
The powers in these clauses are vital to enabling the Government to take swift action to minimise unnecessary industry burdens, including for small and micro businesses, as the technological and regulatory landscapes change. However, I agree that, considering the necessary breadth of these powers, the affirmative resolution procedure provides a more appropriate degree of parliamentary consideration. The Government accept the recommendations in paragraphs 7 and 11 of the committee’s report.
I turn now to Amendments 6 to 12 and Amendment 14, on the enforcing functions. Once again, the Government agree with the recommendations of the committee that Parliament should have the opportunity to scrutinise any decision by the Secretary of State to authorise a person to exercise an enforcement function. These amendments implement that recommendation and will ensure that the Secretary of State is able to authorise another person to exercise an enforcement function only by making regulations subject to the affirmative resolution procedure.
On enforcement, I shall update the House on the progress of appointing an enforcement authority for Part 1 of the Bill. After extensive engagement with suitable bodies and consideration of the existing regulatory landscape, I can confirm our intention to appoint the Office for Product Safety and Standards, or OPSS, as the regime’s regulator. The OPSS oversees product safety legislation and will enforce cybersecurity requirements for electric vehicle smart charge points. We are confident that it has the expertise and capacity needed to effectively enforce this regime. The OPSS is part of the Department for Business, Energy and Industrial Strategy, so it will not be necessary to exercise the power in Clause 27, given the Carltona doctrine. However, should the threat landscape require other persons to exercise enforcement functions in the future, we will exercise this power as necessary.
I turn now to Amendment 15, which removes Clause 57 from the Bill. Clause 57 was intended to address difficulties that had arisen following Upper Tribunal and Court of Appeal decisions on the meaning of “occupier” in paragraph 9 of the Electronic Communications Code. Paragraph 9 provides that only an occupier of the land can confer code rights. The courts’ interpretation of this meant that an operator already in occupation of the land was treated as the occupier for the purposes of paragraph 9.
However, an operator in this situation clearly could not enter into an agreement with itself. The interpretation resulted in some operators with apparatus on land who were unable to renew their agreement using an existing statutory process being stuck, without a process through which they could acquire new rights under the code. In addition, it meant that any operator in occupation of land was unable to seek additional code rights not referred to in their existing agreement in a new, separate agreement while the existing agreement was running its course.
The aim of Clause 57 was to provide a solution to these issues. It was drafted to ensure that all operators in exclusive occupation of the land, who could not make use of a statutory renewal route, could still obtain code rights. It would also assist operators in occupation of land with an existing, ongoing agreement. Where such operators needed additional code rights not already referred to in their current agreement, Clause 57 provided a mechanism to obtain such rights.
As I am sure many noble Lords will be aware, since your Lordships last considered this Bill, the Supreme Court ruled on this issue and overturned the relevant decisions of the Upper Tribunal and Court of Appeal. The Supreme Court held that, for the purposes of paragraph 9 of the code, an operator’s occupation of land is to be disregarded where that operator is seeking code rights in relation to that land.
In practice, this means that where an operator is not able to make use of a statutory route to renew any type of expired or existing agreement, it will be able to seek new code rights. It also means that, where an operator requires additional code rights during the existing term of its agreement, it will be able to seek them. The effect of the judgment is therefore broad and comprehensive; the Government consider that it will ensure that any operator, whatever the nature of its agreement, will have a means through which it can seek new or additional code rights, as the case may be. As a result, the Government no longer consider it necessary to retain Clause 57 in the Bill. Its removal will, in light of the Supreme Court judgment, ensure clarity and certainty for all users of the code. I beg to move Amendment 2.
Lord Fox (LD)
My Lords, Amendments 2, 4 to 12 and 14 very much reflect amendments that I tabled in Committee, and in that regard, I am very pleased to see them reappearing with the Minister’s name on them.
The Minister was mercifully spared one of my longer speeches in Committee where the full set of concerns raised by the Delegated Powers and Regulatory Reform Committee was discussed. For that, he may be truly grateful. We are pleased that these amendments have come back, but I am disappointed that the Minister feels that the Government still need the breadth of powers claimed in Clauses 11, 18, 19, 24 and 25. These are justified, as usual, by the need for flexibility. However, if our working during the Covid crisis showed nothing else, it demonstrated that Parliament could move swiftly and that we were not an impediment to flexible action. I am sure that in his former role the Minister saw us demonstrate that across the Floor many times in dealing with statutory instruments quickly and clearly. It seems that departments have grown very accustomed to using primary legislation to create generously for themselves the ability to act in wide-ranging ways without further or significant recourse to Parliament, and we have to spend an awful lot of time reining that back.
Without sounding too churlish given that the Minister has conceded on a number of things, I think this is a generally avoidable process. I feel sure that the people drafting legislation and the Ministers know what the DPRRC will say about this almost continuous stream of legislation that seems to take power from Parliament, yet each time we do the same dance between the department, the draft, the DPRRC and your Lordships. This is an avoidable process. That said, I thank the Minister for retabling the amendments.
The removal of Clause 57 via Amendment 15 is of course very sensible given the judgment of the Supreme Court, and we support that.
I am pleased that the Minister has clarified which body will be dealing with this in terms of empowerment. On the OPSS, the Minister talked about capacity. This is a big new job for that body, and it needs not just the capacity that it has but future resources. Can the Minister assure your Lordships’ House that that body will have the resources to be able to do what is a really big job? If you look at what is going out on the internet-enabled markets, this is a huge job. Can that body be assured that it will get the resources it needs to ensure that consumers’ security is not jeopardised?
Lord Bassam of Brighton (Lab)
My Lords, I am reflecting on the points that the noble Lord, Lord Fox, made about statutory instruments. I guess that I have heard those arguments over much of the 25 years that I have been here, and I have a lot of sympathy with them. I had less sympathy when we were in government, but I have more sympathy now.
I too am pleased to see these amendments, which in part reflect the debate we had in Committee and the amendments that were moved by our colleagues on the Liberal Democrat Benches. They in turn were of course a reflection of the comments made by the Delegated Powers and Regulatory Reform Committee, and for that reason we welcome their tabling. It ill behoves any Government to ignore the wise words of the DPRRC. Not all the amendments are in response to its report—Amendments 15 to 17 are not—but they are a sensible response and reaction. We would expect the Government to do no less.
As our colleagues on the Lib Dem Benches have said, the removal of Clause 57 comes as the result of the recent Supreme Court ruling on the same topic. We are aware that operators have very much welcomed the clarity offered by that ruling. We welcome the DCMS withdrawing the clause. If it had not, we would have been left in a very confused position.
We welcome these amendments. We are pleased to see the Government being responsive. We are grateful that they have reflected on our earlier debates. With that, we offer our support for these amendments.
Lord Kamall (Con)
I thank noble Lords who have spoken in this debate. The noble Lord, Lord Fox, asked about the OPSS. When we considered the options, we looked at who had the potential capacity and who could bridge the gap in knowledge as quickly as possible.
The vast majority of products in scope of the Bill, such as mobile smart lightbulbs, wearables, kitchen appliances—the internet of things—are also in scope of the product safety legislation. Given that the OPSS has already introduced the Electric Vehicles (Smart Charge Points) Regulations 2021, which impose some security requirements in relation to these products, based on the same international standard that we felt most appropriate, the OPSS’s published strategy aims to bring these product regulations together to protect people and to enable responsible business to thrive. We feel it is effective and we intend to give it the resources it needs.
The noble Lord, Lord Fox, said that he was disappointed. I heard this a number of times when I was Health Minister in your Lordships’ House. I completely understand. The noble Lord, Lord Bassam, said he was less sympathetic when he was in government. I am sympathetic being in government. I am happy to try to push as much as we can. The noble Baroness, Lady Merron, asks me to remember that point, so no doubt it will be used against me one day. This is the nature of parliamentary democracy. I beg to move.
Lord Kamall
“(8A) Regulations under subsection (7) are subject to the affirmative resolution procedure.”Member’s explanatory statement
This amendment applies the affirmative resolution procedure to regulations under subsection (7) of Clause 9.
Member’s explanatory statement
This amendment is consequential on the other Government amendment to Clause 9.
Lord Kamall
Member’s explanatory statement
This amendment has the effect that the power of the Secretary of State to delegate enforcement functions is to be exercised by regulations.
Member’s explanatory statement
This amendment is consequential on the first Government amendment to Clause 27.
Member’s explanatory statement
This amendment is consequential on the first Government amendment to Clause 27.
Member’s explanatory statement
This amendment is consequential on the first Government amendment to Clause 27.
Member’s explanatory statement
This amendment is consequential on the first Government amendment to Clause 27.
Member’s explanatory statement
This amendment is consequential on the first Government amendment to Clause 27.
“(7) Regulations under this section are subject to the affirmative resolution procedure.”Member’s explanatory statement
This amendment follows on from the first Government amendment to Clause 27 and applies the affirmative resolution procedure to regulations under that Clause.
Lord Kamall
Member’s explanatory statement
This amendment is consequential on the first Government amendment to Clause 27.
Lord Kamall
Member’s explanatory statement
This amendment removes Clause 57.
Lord Kamall
“(4) In paragraph 9 (conferral of code rights)—(a) the existing wording becomes sub-paragraph (1), and(b) after that sub-paragraph insert—”Member’s explanatory statement
This amendment is consequential on the Government amendment to leave out Clause 57.
Member’s explanatory statement
This amendment is consequential on the Government amendment to leave out Clause 57.
Lord Harlech
“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?
Lord Clement-Jones (LD)
My Lords, I too welcome the noble Lord, Lord Harlech, to the salt mines. He knows little yet of how much work is involved in being a Whip; that is all that I can say. I would also like to echo what the noble Baroness, Lady Harding, said about the noble Lord, Lord Parkinson, and his service as DCMS Minister. We all appreciated that very much.
I congratulate the noble Baroness, Lady Harding, who made a very powerful case for her amendment in Committee. I thank the Government for having agreed to that. CityFibre said, in its original briefing, before we had Committee, that this would make a huge impact, particularly in rural areas and in urban Scotland. I have just come back from the US and have seen, in some rural areas such as New Hampshire, the impact of being able to put these superfast fibre-optic cables on telegraph poles. It is really an effective way of delivering superfast broadband to those areas. CityFibre estimated that 1 million such poles exist across the UK, so we are not talking about a small issue.
Finally, the noble Baroness, Lady Harding, as ever, put her finger on the key issues in this particular new clause, about what constitutes agreement between operator and main operator, and operator and landowner. The more clarity that the noble Lord can give us, the better we will be.
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.
The Earl of Devon
“(4A) Where the assumptions in subsection (4) cause the market value of a landlord’s agreement to decline, the consideration payable under a new tenancy granted by order of the court under this Part may not decline by more than 50% relative to the previous consideration for the period of five years beginning with the day on which the new tenancy is agreed.(4B) Where subsection (4A) applies, the consideration must be reduced in even increments over the course of five years, from the level of the previous consideration to the level of the new court consideration.”
The Earl of Devon (CB)
My Lords, in the absence of my noble friend Lord Lytton, I rise to move Amendment 19, to which I added my name somewhat late. I shall speak also to Amendments 20, 21, 22 and 24 in this group to which I added my name too late to appear on the Marshalled List.
The valuation provisions of the Electronic Communications Code as extended in 2017 are not working well. I think we are all agreed on that. The number of disputes coming before the lands tribunal has increased from approximately 40 to more than 120 already this year, and we have no idea how many additional disputes are taking place in county courts. This is because we have no record. The Government have not consulted on this issue before proposing this far-reaching, retrospective legislation. Indeed, the Bill has been introduced based upon a cacophony of anecdote, conjecture and vested misinformation. It seeks to address the issue not by improving the damaging “no scheme” valuation provisions but by extending their application to approximately 15,000 long-established and well-settled 1954 Act leases. This is a mistake, and it will have a chilling effect on the rollout of digital infrastructure which we will regret.
My noble friend Lord Lytton is, as I said, unfortunately committed elsewhere today and we are therefore deprived of his wisdom and subject matter expertise. I am by no means an adequate substitute and refer your Lordships to his excellent contributions in Committee.
I also remind the House of my own interests, and particularly note that while formerly a property barrister I now work as a technology litigator for a firm that represents telecoms companies as well as site owners. As a Devon resident with poor mobile coverage, I am desperate to see an increase in rural connectivity, with the social and economic benefits that flow therefrom. As a farmer, I am also a site owner of a 1954 Act telecoms lease granted many years ago. This has been bogged down in renewal due entirely to the uncertainties of this legislation. I see this issue therefore from many sides, both personal and professional.
I too welcome the noble Lords, Lord Kamall and Lord Harlech, to their new roles and thank them and the whole Bill team for their time in discussing these issues. It is not ideal to change Ministers half way through the Bill’s progress, and I am disappointed that between Committee and Report we have not been provided with information that was requested. Despite no formal consultation, I understand the Government are confident that the valuation issue is now settling down and that the provisions in the Bill are largely welcomed by stakeholders. We have not seen the information relied on to reach these conclusions because it is cloaked in confidentiality.
From recent discussions, it appears that this evidence has largely been provided by the telecoms mast operators. It is no surprise that they approve of Clauses 61 and 62, as these will allow them to decrease rents payable on historic leases by over 90%, which is a huge cost saving; yet they provide no concurrent obligation on them to pass those savings on to phone companies and their consumers. The result will be that infrastructure companies benefit financially while owners see dramatic rent decreases and are discouraged from letting sites for telecoms masts, and consumers see no financial benefit and, more importantly, no increased coverage. There is a risk that only the corporate middlemen, who often take their profits overseas, will benefit. Surely this cannot be the Government’s intention.
There are other beneficiaries: the professionals, lawyers and surveyors advising those in dispute. Judges dealing with the Electronic Communications Code have criticised the intensity of these disputes and the Institute of Economic Affairs recently noted that since 2017
“there has been much litigation, apparent ill-will, and consequential delays”.
At the 2021 RICS Telecoms Conference it was shown that, while site payments have indeed reduced since 2017, the costs of transacting for sites have more than doubled in that time, meaning that the decrease in site rents has actually resulted in no savings at all for the market.
The 2017 amendments made parties increasingly antagonistic, and the provisions in this Bill will only add to that. The amendments in this group seek to address this. Amendments 20 and 21 from the noble Baroness, Lady McIntosh, seek to remove Clauses 61 and 62 entirely. Given what I have said, this is my preferred solution. Unless and until a proper consultation is undertaken and the impact of the “no scheme” valuation methodology is properly understood, we should not be extending it to 1954 Act leases and undermining long-established landlord and tenant relations. This is government by diktat, riding roughshod over private contractual interests at the behest of undisclosed and well-funded commercial enterprises. It is not in the public interest.
Amendments 19 and 22 propose alternative remedies to ameliorate the problem of dramatic and sudden decreases in rents payable under telecoms leases. As currently drafted, site owners, many of which are community centres, charities, sports clubs, farmers and small businesses, will see a collapse in rental income that could be very damaging. Amendment 19 proposes that this decrease be limited to 50% of the current rent within the first five years, while Amendment 22 requires that the rent is decreased in even increments during that same period. Neither amendment seeks to prevent the “no scheme” valuation methodology that the Government prefer, they simply soften the impacts to protect the interests of the individual landlord. These are modest and, I suggest, sensible proposals and they should be adopted if Clauses 61 and 62 are to remain.
Meanwhile, Amendment 24 seeks to avoid the invidious prospect of backdated rent decreases which may result in landlords having to pay substantial sums back to telecoms mast operators under interim orders applicable to 1954 Act tenancies. As currently drafted, rent decreases take effect from the date the notice is served, not from the date the new lower rent is determined. A contentious lease renewal can take many years to resolve and, as we have heard, the decreases in rent can be more than 90%. This means that a poor landlord may be obliged to pay back many thousands of pounds in rent previously received, which may not be possible if that money has been budgeted for and spent. This could drive small enterprises and individuals into bankruptcy. Is this what the Government intend? Amendment 24 would ensure that this will not happen, and that the newly decreased rent is not backdated but payable from the date of the court order. Backdating the rent only adds insult to injury.
I urge the House to consider and support these important amendments. If the Bill is unamended, no landowner will welcome telecoms infrastructure and our digital rollout will fail. I beg to move.
Baroness McIntosh of Pickering (Con)
My Lords, I thank the noble Earl, Lord Devon, for moving Amendment 19. I will speak to Amendment 20 in my name and that of the noble Earls, Lord Lytton and Lord Devon, and Amendment 21 in my name and that of the noble Earl, Lord Devon.
At the outset I welcome my noble friends Lord Kamall and Lord Harlech to their new positions. At the same time I thank my noble friend’s predecessor, my noble friend Lord Parkinson, for all his efforts and engagement with us at previous stages of the Bill. I wish him well as a Back-Bencher in this place; I think we probably have more fun.
I remind my noble friend Lord Kamall that in his previous life he was well aware of my interests in rural affairs, which colour my approach to the Bill. I would like to see improvements to broadband and mobile phone connectivity in rural areas, but I cannot take the fact that telephone poles and other infrastructure should be taken for granted, as appears to be the case in the Bill. That is my reason for presenting and speaking to Amendments 20 and 21, with the desired effect that they will remove provisions currently in the Bill that give operators the ability to calculate rent based on land value rather than market value when renewing tenancies to host digital infrastructure on private land. I believe that all interested parties, whether the operators, the landowners or those of us who use these infrastructure facilities, must be treated fairly, in the way that the landowners are currently compensated.
I assure my noble friend that good connectivity is key to increased productivity and growth for farms and the rural economy. I hope he will give a commitment today, just as the Prime Minister has said many times since she took her new position that we are signed up to productivity and growth, that this will apply as much to the rural economy, farms and others who have business in rural areas as it does to more industrial areas.
I confess that I am not a landowner or in receipt of a wayleave for a telegraph pole, although not so long ago I received a small payment, shared with my brother, who is now the sole recipient. I hope that these amendments can achieve a better balance between the rights of the operators, the landowners and those who use the infrastructure.
I regret that the 2017 Electronic Communications Code has changed the way in which the new sites are valued from market value to land value. I make a plea to my noble friend that we proceed under the Landlord and Tenant Act 1954 rather than the 2017 code, given that, as I mentioned earlier—and as the noble Earl, Lord Devon, so eloquently described—fewer new sites have been agreed over the last few years in which we have proceeded under the code.
I echo and strongly associate myself with the remarks of the noble Earl, Lord Devon, about this not being part of the original consultation under the Bill. I hope that my noble friend Lord Kamall will confirm that and say why it was not and yet we now have these two clauses in the Bill, because I have never quite understood why that was the case. If you are not going to give the landowners and other interested parties—or stakeholders, as we now call them—the right to comment, I do not see why they should be presented with a fait accompli. But, even more than that, the Law Commission strongly concluded that it was against the introduction of these provisions into the Bill because it thought that they would lead to fewer sites and fewer renewals of sites, which is precisely the position in which we find ourselves today.
Why is this going against the Government’s previous stated intention of allowing a transition for existing agreements into the ECC, or the code? It also means that the code valuation method will be applied retrospectively. I understood that we normally do not apply legislation retrospectively in this place, and I would like to understand the reasons for seeking to do so in relation to Clauses 61 and 62.
The Government’s own impact assessment of the 2017 reform concluded that rents would drop by 40% over a 20-year period. It was therefore not anticipated that levels would fall by so much and so quickly. However, the noble Earl, Lord Devon, clearly set out that, in some cases, rents have dropped by as much as 90%, which is inexplicable and unacceptable. Clauses 61 and 62 would simply exacerbate the situation and leave some businesses and individuals facing a cliff edge, without any time to adjust in what we understood would be a transition period. I repeat that this was not part of the 2021 consultation, and, in my view, it will no doubt be entirely counterproductive, with the effect of further disruption.
Given that we now know that the 2017 code has resulted in fewer new sites being agreed, due to the much lower rents being paid by operators, I urge the House to remove Clauses 61 and 62. I urge the Government to accept that they should proceed under the previous legislation, the Landlord and Tenant Act 1954. I hope that the House will look favourably on my Amendments 20 and 21.
Lord Cromwell (CB)
My Lords, in his opening remarks, the Minister, the noble Lord, Lord Kamall, said that some of us might not welcome him here. I am sure that that is not correct; I am sure that we all welcome him and his colleague, the noble Lord, Lord Harlech. I certainly do.
First, I apologise to the House for not participating in the earlier stages of the Bill due to circumstances elsewhere—but I have read and watched them. Secondly, I should declare that I am an unpaid director of a small farming company that has a single telecoms mast on its premises. Normally, I would not speak on a subject when I have an interest even as modest as this, and I know that a number of other noble Lords have not participated and remained silent for the same reason. However, having seen how one-sided and damaging this part of the Bill is in so many ways, including to the Government’s own objectives for rollout, and having seen how resistant the Government have apparently been to efforts to address its faults, I feel that I must speak out critically but constructively. I support all the amendments in this group but, to my mind, Amendments 20 and 21, which would leave out Clauses 61 and 62, are the starting point, with the other amendments seeking to achieve damage limitation.
There are two parties to any agreement on a site: the site owners and those who seek to occupy and operate them. Not only is this Bill crudely unjust in its valuation basis but it is already creating a breakdown of trust and co-operation between the parties. It will create and intensify conflict between them, leading to a delay in rollout—the direct opposite of what the Government intend. We, therefore, need to find a better middle ground between these two parties.
As has already been mentioned, Clauses 61and 62 would have land valued as if it were not to be used for a mast site. This is as bizarre as anything in a Gogol short story. Who would, for example, value a building plot, knowing that it is imminently going to be built on, on the basis that it would never be built on? I am sure that HMRC would never countenance that approach for tax purposes.
Amendments 20 and 21 reflect the need to remove these counterproductive and illogical clauses—but how did we get here? We need to be fair about this: previously, some owners, due to the rules of supply and demand, had a bargaining position that may have enabled rents that are higher than they would otherwise have accepted. In seeking to accelerate rollout, the Government have decided to rebalance things—so far so good. However, this Bill would swing the pendulum to completely the opposite extreme. It would strip the site owners of their legally long-established property rights—something I find astonishing from a Conservative Government—and deny small enterprises, sports clubs, hospitals and others of a vital source of income. This was raised by Labour at an earlier Bill stage, and I was astonished when the then Minister—so rightly admired in other respects, as many have said—pretty glibly told them in his reply that they should simply seek other sources of income.
These clauses will take a situation where sites were coming forward voluntarily and replace it with one of zero trust—in either the operating companies or the Government—whereby both potential and actual site owners will seek to avoid, and indeed resist, providing sites for this use. It will enable the operating and mast companies to pay peppercorn rents and thereby enrich themselves and their shareholders—with no evidence of trickle down, or even dribble down, to consumers.
When I see all this, combined with powers elsewhere in the Bill for operators to reclaim rents retrospectively from site owners—tearing up existing contracts freely agreed and entered into by professional commercial companies and site owners—I can only gasp in disbelief. So I have been asking myself how on earth we got into this situation and what could explain it. I have been urged by some of my colleagues to be temperate in my remarks, so I will not indulge in conspiracy theories, but we need to focus on encouraging sites to come forward to achieve faster rollout—something which I think we are all agreed on.
Let me therefore offer a valuation solution that is indeed in the middle ground between the past and the extortionate future foreseen in this Bill. There is a tried and tested middle ground that uses a practical and already widely accepted approach used to set rents and values for other commercial sites. I ask the House’s indulgence in describing this very briefly and simply with an illustration from another commercial activity: mineral quarrying. Where a quarry operator wants to lease land to set up a processing plant, there is a well-established valuation method whereby the database of local industrial rents is assessed and a percentage of that rent—say 70%—is paid to the site owner. There are clear advantages here. First, land agents and valuers on both sides are well accustomed to such discussions, which can therefore be swift. In the very unlikely event that they do not reach agreement, binding expert determination is available as standard. Secondly, it is based on a well-established dataset that reflects regional differences and will adjust over time to reflect the regional economic context. Thirdly, there are suitably qualified practitioners on hand across the country to carry it out.
Crucially, this would produce a balanced result and would get there using a transparent, objective and logical method. To be clear, the resulting rents would be set below what some site owners currently receive, but not as counterproductively or extortionately low as the unjust free hand that the Bill, as currently drafted, would give commercial operators. I therefore urge the Minister and the Government to think again.
Lord Northbrook (Con)
My Lords, I declare my interests as a site owner and NFU member. I agree with every word that the noble Lord, Lord Cromwell, has said. I am astonished by this piece of legislation from a Conservative Government.
Amendments 19 and 22 aim to address the issue of valuation, one of the most significant concerns with the code. As other noble Lords have said, the “no scheme” valuation methodology introduced into the code in 2017 prevents courts taking into account sites’ potential use as provision for an electronic communications network. This allows operators to drive down the rents they pay to site providers, often by over 90%.
I was involved in negotiations for one of the two masts on my land and was lucky that I had only a 70% reduction. It was not so important for me, but this forces small businesses, sports clubs, community groups and hospitals to accept derisory amounts for the use of their land. It also reduces the motivation for operators to pursue consensual deal-making, in turn slowing down rollout as they can get greater discounts through the courts. As noble Lords have said, it also reduces the incentives for landowners to offer sites for masts in the first place—not an advantageous outcome for the Government’s mobile connectivity.
Amendments 20 and 21 are rather more impactful than Amendments 19 and 22, in that they would stop the Government’s “no scheme” valuation regime being extended to cover the roughly 15,000 telecoms sites governed by the Landlord and Tenant Act 1954 and the Business Tenancies (Northern Ireland) Order 1996. This would have the effect of ensuring that the rent on these 15,000 sites would continue to be set at market value, as is the case today. Importantly, this would prevent them being subject to the issues that have plagued sites governed by the code ever since the 2017 reforms.
Although I suspect the Minister will be opposed to these amendments, they are fully aligned with the Government’s repeated claim that this Bill does not address issues of valuation. How can the Government possibly continue to make that claim if, by their own admission, 15,000 new sites will have their rental value slashed from the moment this legislation comes into force? We are simply trying to ensure that the legislation delivers the Government’s stated policy intent. Parties on all sides of the debate have acknowledged the significant challenges created by the 2017 reforms to the code. It is only right that these changes are not imported wholesale into the Landlord and Tenant Act 1954 and the Business Tenancies (Northern Ireland) Order 1996, when there is no evidence whatever that the 2017 reforms have delivered the Government’s intentions.
I was very grateful, together with the noble Earl, Lord Devon, to the Minister for the meeting yesterday, but one problem seems to be that information provided by the operators, for confidentiality reasons maybe, has not been disclosed to us even though we have asked for it; that is a very frustrating thing. I am also very sad that His Majesty’s Government have paid no attention to influential, independent reports from the IEA and the Centre for Economics and Business Research stating the problems with this legislation. The CEBR report says—
“The government’s ECC changes have not delivered a faster 5G rollout, and it is slower than the pre-2017 status quo. The new proposals do not remedy this. But for the 2017 reforms, 8.2m more people would have had 5G coverage by now than currently can access it. This will persist in the long-term: national 5G coverage by 2022 will be worse than if there had been no changes to the ECC at all. The government’s proposed changes to the ECC will cost UK GDP £3.5bn by 2022, and fail to bring 5G coverage to where it would have been pre-2017.”
The Government want more growth; this legislation does not seem a good way to provide it.
Lord Clement-Jones (LD)
My Lords, on these Benches we strongly support these amendments which support changes to the current valuation basis, the flaws in which were so expertly explained by the noble Earl, Lord Lytton, in Committee, and so clearly today by the noble Earl, Lord Devon, the noble Baroness, Lady McIntosh of Pickering, and the noble Lords, Lord Cromwell and Lord Northbrook. As the noble Earl, Lord Devon, has said, the current provisions are a mistake—astonishing from a Conservative Government, as the noble Lord, Lord Cromwell, said—and the motives of many of us were reflected by what the noble Lord, Lord Northbrook, said: that what we are trying to do is to ensure that the ECC delivers the stated policy of the Government. All of us are behind the 1 gigabit policy, as delayed and slow as it may be, but we want it to be delivered. It appears that the Government, as the noble Lord, Lord Northbrook, also said, are completely ignoring the reports of the IEA, the CEBR and others who have pointed out that precisely these changes in valuation in the 2017 changes to the code have not, and those proposed will not, ensured faster rollout than the original valuation methodology.
Under changes to the code made in 2017, a “no scheme” valuation methodology for valuing land was introduced, as we have heard, and this allowed site providers to recover only the raw value of their land, rather than receiving a market price. As the noble Baroness, Lady McIntosh, has highlighted, operators have been able to use the changes made to the ECC to drive down the rents they pay to site providers, often to peppercorn rents. She also highlighted the impact assessment made by the Government which said that rent reductions should be no more than an absolute maximum of 40%. But of course, we know from the data quoted by operators that reductions have at best averaged 63%, a huge sum for many of the people who rent their land for use for telecoms infrastructure, and in many cases as we have heard today, reductions have been much higher—in the region of 90%. As I mentioned in Committee, the Protect and Connect campaign produced some powerful case studies, such as the Fox Lane Sports & Social Club in Leyland, Lancashire, to support this; and we agree that the right solution to get this market moving again is to reinstate a fair valuation mechanism, such as the one envisaged by the Law Commission.
In addition, in principle we entirely support the amendment spoken to today by the noble Baroness, Lady McIntosh, and the noble Earl, Lord Devon, designed to cap cuts to site provider incomes and prevent retrospective lowering of rents. I really do hope that the Government will give these amendments careful consideration, supported as they are by a very strong cross-party coalition—and indeed a country-wide campaign.
Baroness Merron (Lab)
My Lords, the issues addressed in this group of amendments have certainly exercised your Lordships’ House throughout the course of the Bill and have drawn much attention outside this House as well. I am grateful to the noble Earl, Lord Devon, and the noble Baroness, Lady McIntosh, for introducing their amendments with such clarity. I believe that all the amendments in this group seek to bring fairness, balance and efficiency to the task before us. The noble Lords, Lord Cromwell and Lord Northbrook, also spoke to these points, again with great clarity, in illustrating the challenge before us.
As we have outlined at previous stages, we are sympathetic to the concerns around the changes to the valuation of sites that host telecoms infrastructure. A point I have always found somewhat perplexing—I hope the Minister can assist on this—is that industry itself admits that reductions to rents have on average been far above the 40% promised by government, yet the 40% figure continues to be put before us. I would welcome some insight into that from the Minister.
We understand the importance of getting infrastructure rolled out swiftly to improve the availability of 5G and high-speed broadband and, as I have said, we all understand that a balance has to be struck. The amendments in this group would make a number of changes to the current regime to try to redress the loss of landowner rights. I certainly understand the motivation for these changes but suggest to your Lordships’ House that an independent review of the whole system would perhaps offer a more useful way forward. That is something we will return to in a later group of amendments.
Delivery, balance and fairness are key here. I hope that the Minister will take these points on board and find us a way forward, because that is what we are seeking.
Lord Kamall (Con)
I start by thanking the noble Earl, Lord Devon, for introducing some of the amendments, as well as my noble friend Lady McIntosh —indeed, I thank all noble Lords who spoke in this debate. It is quite clear that very strong views are held on this subject, which I know was the subject of much debate when my predecessor was in this role. I will try to address the issues specifically. That may take a bit of time but I hope noble Lords will bear with me.
Amendments 20 and 21 would remove Clauses 61 and 62 from the Bill. These clauses will extend the “no network” valuation model contained in paragraph 24 of the code to the Landlord and Tenant Act 1954 and the Business Tenancies (Northern Ireland) Order 1996. My predecessor, my noble friend Lord Parkinson of Whitley Bay, explained in Committee that some agreements to which the code applies are required to be renewed under these pieces of legislation, rather than under Part 5 of the code. When this occurs, the rent is calculated on a market value basis, rather than using the code’s “no network” valuation. Clauses 61 and 62 will ensure that, where agreements conferring code rights regulated by either of those statutory frameworks come to an end, the rental terms of any renewal agreement will more closely reflect those that apply to new agreements and those agreements renewed using Part 5 of the code.
Whatever view noble Lords take of the valuation framework, it remains the case that the purpose of Clauses 61 and 62 is to ensure that the same approach applies to all agreements conferring code rights throughout the UK. This will reduce disparities in deployment costs in different jurisdictions which could otherwise contribute to a digital divide.
I am afraid the Government cannot accept the noble Baroness’s amendments as they would serve only to entrench the inconsistencies in the different renewal frameworks. In fact, removing Clauses 61 and 62 but leaving Clauses 63 and 64 in place would exacerbate the situation. Clauses 63 and 64 provide that the right to recover compensation contained in paragraph 25 of the code, which is a key element of the overall valuation framework, is also mirrored in the 1954 Act and the 1996 order. Neither the Act nor the order currently makes distinct provision to compensate landowners for loss and damage arising from the exercise of code rights. Compensation for potential loss and damage is normally rolled up in any calculation of market value.
Removing Clauses 61 and 62 while leaving Clauses 63 and 64 in place would enable those landowners to recover additional amounts in compensation, which may have already been accounted for in the amount of rent, as well as higher rents. The Government believe that leaving legislation in place that allows some landowners to receive higher rental payments for longer is fundamentally unfair. It would also mean that network costs remained unacceptably high, penalising swathes of consumers and businesses who may face price increases for digital services or wait longer for the higher-quality reliable connections they want to see, particularly in rural areas, where deployment is frequently simply not cost-effective.
Baroness McIntosh of Pickering (Con)
I am following very carefully what my noble friend has said. He just said that responses to the consultation were received. The offending articles were not part of that consultation, so the Government have not actually heard any responses from the interested parties on that point.
On his point about Clauses 63 and 64 remaining part of the Bill, which is why we cannot remove Clauses 61 and 62, my reading of Clause 63 in particular relates to new tenancies. My noble friend has not responded to the points raised by both the noble Earl, Lord Devon, and me about existing agreements that are going to be renewed, rather than new agreements.
There are two points to which I would like the Minister to respond: first, this issue was not part of the consultation so the Government have not received any responses on it. Secondly, what happens to existing agreements being renewed under Clause 63? Are they to be slashed by 90% without any recourse?
Lord Kamall (Con)
I thank my noble friend Lady McIntosh for those questions. I will come to them—I am sorry, maybe I am not going as fast as noble Lords would hope me to, but I wanted to consider carefully the various points made by noble Lords, and I still have specific responses to come to. If noble Lords will allow me to talk to Amendment 24, I will come back to the contributions made during the debate.
Amendment 24, tabled by the noble Earl, Lord Lytton, but spoken to by the noble Earl, Lord Devon, looks to prevent interim rent being backdated where an agreement is renewed under the 1954 Act, and is similar to the amendment tabled by the noble Earl in Committee. One of the fundamental aims of the Bill is to ensure that the approach to renewing agreements across part 5 of the code, the 1954 Act and the 1996 order is as consistent as possible. As my noble friend Lord Sharpe said in Committee, this form of amendment serves only to increase inconsistency. It would create inconsistency within the 1954 Act itself, preventing backdated payments of interim rent where a site provider gives notice under Section 25 of the Act, yet would allow interim rent to be backdated where an operator serves notice under Section 26 of the Act.
The ability to backdate rent is not a new concept. It is not being introduced into the 1954 Act by this Bill, nor was it introduced in the 2017 reforms. When parties entered into these agreements, there was always a risk that the market could change between the time it was entered into and the time of its renewal and that the amount of rent could decrease. However, the Government have listened to stakeholders representing the interests of site providers and understand the potential consequences of applying the code valuation framework to the 1954 Act and the 1996 order agreements in relation to backdated interim rent. This is something that is being carefully considered in developing an implementation strategy, including such transitional provisions as may be needed to bring the different provisions of the Bill into force in a timely and responsible manner.
Let me now talk to some of the points made by noble Lords. A number of noble Lords said that the evaluation regime is not fair. The Government see the pricing regime as being closely aligned to utilities such as water, electricity and gas. The Government maintain that this the correct position. Landowners should still receive fair payments that take into account, among other things, alternative uses that the land may have and any losses or damages that may be incurred.
It should be noted that, in many of the examples of unfair rent or large percentage reductions that have been raised by campaign groups, reference is made only to the rental payment itself. These examples fail to take into account any compensation payments which the landowner may have received under the agreement. They may also have failed to take into account any capital payment which the landowner may have received upfront as part of the terms of the agreement. There have been some paid studies of raised examples of poor negotiations or rent reductions. It would not be appropriate for me to comment on ongoing negotiations in specific terms, but the Government say generally that rent is often only one part of the overall financial terms agreed, as I said earlier. As regards behaviour during negotiations and the respective bargaining positions of the parties, the Government have recognised site provider concerns and are introducing measures to encourage greater collaboration.
The noble Earl, Lord Devon, and other noble Lords mentioned the reluctance to enter into new agreements. We have been told that the amounts offered by some operators are so drastically reduced that landowners are less willing to come forward and allow their land to be used. However, I have been advised that, so far in 2022, at least 107 agreements have been reached in relation to new sites, with heads of terms agreed on a further 66 sites. This is in addition to 533 renewal agreements which have been concluded this year, along with heads of terms agreed on a further 119 renewals. The Government maintain that the 2017 valuation provision created the right balance, and they are aware that the valuation framework would have resulted in some reductions, as I said earlier.
I think it was the noble Earl, Lord Devon, who talked about middlemen who take profits overseas. The benefits of independent infrastructure provision are globally acknowledged. An Ernst & Young report in February this year, produced by a European-wide infrastructure association, highlighted the many benefits which independent infrastructure providers bring to both the industry and consumers. It talked about sharing towers and costs and enabling cheaper rollout. The report concluded that the scope of independent infrastructure providers overcharging for the use of the infrastructure would be constrained by continued competition between tower companies.
Government policy introduced in the 2017 valuation framework to reflect the public interest in digital infrastructure and encourage investment while driving costs down remained unaltered. That is not to say that we approached our pre-consultation engagement with a closed mind, but that engagement with stakeholders did not indicate that the valuation framework is incapable of delivering both our policy objectives and fairer outcomes for landowners. It did highlight difficulties with communication and negotiations, hindering the framework from working as intended. We hope that the Bill and the non-legislative initiatives we are taking forward will tackle this.
There have been some claims that rents would reduce by more than 40%. In the impact assessments in 2016, the Government specifically said that they did not know what effect the reforms would have on rental payments. There is reference in the impact assessment to independent analysis which predicted a 40% decrease. Some lobby groups have asserted that this figure demonstrates that the Government committed that rent reductions would be no more than 40%. The Government maintain that this was not a government commitment, but it did appear in the impact assessment and we expected the market to adjust.
As I said, rent is only one element and other variations occur in practice. We understand the various things that have been said by various companies. A number of noble Lords reflected on the CEBR research. The Government have problems with the report from the CEBR. First, the picture the report paints of government policy is incomplete and partial. Secondly, the alternative changes the report proposes do not account for key challenges, which in our view means that they would not deliver the results the CEBR suggests. The report focuses excessively on the prospective interests of landowners and we are trying to get the right balance.
On the Institute of Economic Affairs, I should be very clear and have to declare my interests. I am the former academic and research director of the institute, so I would not wish to comment one way or the other on its report, but I know that it used as its source some of the work from the CEBR’s and other reports. My successor, Dr James Forder, is an excellent analyst and economist. Indeed, he is the economics tutor at Balliol College in Oxford—I digress.
I am afraid that, while I completely understand the arguments—I have had conversations with a number of noble Lords and am very grateful to those who have come to meetings and heard the Government’s perspective—we cannot accept these amendments. Perhaps in vain, or in aspiration, I ask noble Lords to consider not pressing them.
Lord Cromwell (CB)
Before the Minister sits down, I make the point that, in my experience, the rent is the key factor, certainly over a period of time. Frequently no or minor payments are made, and it is simply that an agreement is struck for the rent. Trying to diminish the importance of the rent in the way the Minister has is something I find hard to swallow.
The Minister prays in aid consistency. If the valuation method is unfair, what this Bill does is ensure that a consistent unfairness is imposed, so I find that slightly tautologous. Does the Minister accept, agree and support the idea that a valuation based on a site that is known to be imminently the site of a mast should be done as if there was no mast site?
Lord Kamall (Con)
I thank the noble Lord for his question. I am interested in the point he makes about the amount or proportion of rent in the overall agreement. Whatever happens in this debate, I would be very happy to continue that conversation with him and my officials to make sure that we can close any gap in understanding.
The noble Lord will recognise that I have to defend the Government’s position as the Minister, so I continue to say that the Government cannot accept these amendments, but we hope, perhaps vainly, that the noble Lords who tabled them will consider not pressing them.
The Earl of Devon (CB)
I thank noble Lords for the unified support from across the House. It came from all Benches, it seems, other than perhaps one—and even that Bench seemed to be wavering a little at the end there.
I am surprised that a Conservative Government extolling growth want to undermine property rights and cost the economy billions of dollars. There is no explanation given other than the whispers of these undisclosed stakeholders. The Minister kindly explained that he has been listening and that there have been discussions and workshops, but we simply have not seen what those were and what the stakeholders said. I have to ask where they are holding the stake to convince the Government to persevere despite your Lordships’ consistent opposition to these provisions.
I note the Minister’s desire for fairness. As the noble Lord, Lord Cromwell, has just noted, it seems that the Government want this provision to be equally unfair to every single site owner across the country.
The Minister also noted that the Government are trying to avoid costs going up. However, as we have seen, and as the RICS report stated, costs have risen exponentially as a result of the 2017 amendments, and here we are, doubling down on those, therefore only to increase costs further.
I think I heard the Minister accept that it will impact landowners’ desire to provide sites. I think he also noted that when you enter a lease you do so with the knowledge that the market might change and therefore the rent might change. I do not think that anyone entering a 1954 Act lease in 2015 would have expected that the rent would decrease by over 90% by 2022. I am sorry, but if the Minister suggests that that was a real expectation of the parties, it is simply not true.
Lord Sharpe of Epsom
“Refusal of application for code rights on grounds of national security etc
(1) The electronic communications code is amended as follows.(2) After paragraph 27 insert—“Refusal of application on grounds of national security etc27ZZA_(1) This paragraph applies where an operator applies to the court for an order under paragraph 20, 26 or 27 which would impose an agreement between the operator and another person.(2) The court must refuse the application if the Secretary of State gives a certificate to the court certifying that the condition in sub-paragraph (3) is met.(3) The condition is that the Secretary of State is satisfied that the order applied for by the operator would be likely to prejudice national security, defence or law enforcement.(4) If the Secretary of State gives a certificate to the court under sub-paragraph (2) the Secretary of State must give a copy of it to the operator and the other person.(5) In this paragraph, “law enforcement” means the prevention, investigation, detection or prosecution of criminal offences including the safeguarding against and the prevention of threats to public security.”(3) In paragraph 21 (test to be applied by the court in determining whether to make an order under paragraph 20), in sub-paragraph (1), before “, the court may make an order” insert “and paragraph 27ZZA”.(4) In paragraph 26 (power of court to make an order imposing interim code rights), in sub-paragraph (3), at the beginning insert “Subject to paragraph 27ZZA,”.(5) In paragraph 27 (power of court to make an order imposing temporary code rights), in sub-paragraph (2), at the beginning insert “Subject to paragraph 27ZZA,”.”Member’s explanatory statement
This amendment provides that a court must refuse an application by an operator for code rights under paragraph 20, 26 or 27 of the code if the Secretary of State gives a certificate that the order applied for would prejudice national security, defence or law enforcement.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, the Government believe that a change to the Electronic Communications Code—the code—is necessary to protect the autonomy and integrity of our national security, law enforcement and defence sites across the UK.
The code allows telecoms operators to ask landowners, government departments, agencies and other public sector bodies, including those with national security, law enforcement and defence equities, for code rights in relation to land and property. Such code rights include the right to carry out surveys as well as the right to install telecommunications equipment. If a consensual agreement cannot be reached, the telecoms operator can seek a court order to impose an agreement that confers the code rights being sought by the operator subject to whatever terms that the courts deem appropriate. This means that a telecoms provider can be granted access to sensitive national security sites without the landowner’s consent.
The code works in this way to ensure that operators can deliver coverage and connectivity across the UK at pace, and this is absolutely the right approach to delivering the Government’s rollout. However, an extra layer of protection is needed for situations where particularly sensitive sites, such as those with national security, law enforcement and defence equities, are involved. This is needed to protect our national security capabilities and operations and our ability to keep people safe.
There are three types of risk arising from the present position, which our police forces and national security bodies are already grappling with. These are legal, physical security and technical security risks.
In respect of the physical security risk, surveys and the installation and ongoing maintenance of telecommunications equipment could mean access to sensitive sites by non-security cleared personnel, including engineers, site surveyors and others. This poses a risk of compromise to sensitive information and staff who work in these buildings. The police, in particular, often need exclusive rooftop access for operational reasons, especially in cities, and the presence of persons and telecoms equipment on these rooftops can pose a hindrance.
Regarding the technical security risk, the installation of 5G equipment on sensitive government sites would significantly raise communications and information security risks for such sites. Finally, on the legal risk, the current dispute resolutions and court procedures do not allow for closed material proceedings. This means that classified national security concerns cannot be evidenced and may lead to courts granting access to sensitive sites without a full awareness of the risks.
We also need to consider the significant administrative burden of managing those legal risks where national security concerns cannot properly be evidenced, drawing resources away from primary national security work. For example, we have seen a significant increase in survey requests since the 2017 amendment to the code. There have also been increasing threats of litigation when access has been denied for legitimate security reasons.
This amendment, which inserts new paragraph 27ZZA into the code, will confer powers on the Secretary of State to intervene and prevent a court from granting a telecoms operator’s request for code rights, including rights to access and install apparatus on site, where granting the request would
“prejudice national security, defence or law enforcement.”
This certification will be considered only when all other routes to a mutually consensual solution have been exhausted. This is right and proportionate. It is worth emphasising that it will not provide public sector landowners with national security law enforcement and defence equities with a blanket exemption. It is anticipated that it would be employed only rarely, on a case-by-case basis and in extremis, and that only a small number of sites would be eligible. Nevertheless, we will consider how Parliament can be updated on the use of this power so that it can carry out its scrutiny role effectively.
The Government remain committed to being the landlord of choice for telecoms operators, but we believe that the sensitivity of some of these sites will mean that they will simply not be suitable. The aim of this amendment is to address legitimate national security concerns without undermining the Government’s ambitious rollout of gigabit-capable broadband and 5G networks. I beg to move.
The Earl of Devon (CB)
My Lords, I will speak briefly. It is wise for the Government to make this amendment, given the dangers that have been identified to national security infrastructure of unfettered telecoms operator access.
This necessary amendment highlights two key issues. First, it highlights the broad powers conferred by the ECC on mast operators to access to public and private property and undertake works on it. It is not just the national security infrastructure that is threatened by the code provisions but private and public interests of many types. Secondly, the fact that the Government have become aware of this important concern only now, in the final stages of the Bill’s passage, is a compelling illustration of how totally inadequate the consultation process has been and how essential it is to conduct a proper review, an issue that we will come back to.
Lord Fox (LD)
My Lords, the noble Lord, Lord Kamall, has demonstrated a prodigious ability to outsource the responsibility for presenting the government amendments. We welcome the noble Lord, Lord Sharpe, to this Bill.
As the noble Earl, Lord Devon, pointed out, this is late to the party. It is also the first time we have heard the explanation for this Bill, though others may have been lucky in having it. We had a meeting with the noble Lord, Lord Kamall. No one from the Home Office was there to give us the information we have just received, so I am absorbing it for the first time—a relatively unsatisfactory process. That said, this is an important area. I am surprised that the code has somehow been allowed to continue for as long as it has without this issue cropping up. Have there been specific issues which have caused this to happen, or is it still a hypothetical matter that the Government are seeking to deal with?
Everybody can appreciate the problems of sticking a 5G tower on top of GCHQ. No one wants to see it, but I can imagine that the reality is a more subtle set of problems. We on these Benches seek a better sense of the real-life cases which the new clause seeks to stop. The Minister singled out technical risks in particular. Those exist beyond the site itself, on the environs. I am interested to hear from the Minister how the clause deals with a 5G site put adjacent to a security site. What thresholds are the Government going to expect its security services to run when it comes to implementing the clause? It will not just be on the site itself.
I understand that quite a lot of this will be enshrined in a digital toolkit. It would help us all if the process of developing that digital toolkit was one with a collaborative approach. The noble Earl, Lord Devon, also highlighted that this problem of overriding access from the operators extends beyond the security environs. This is not just a security issue; it spreads into other places. Like many other Peers, I received a letter from the fire and rescue service. While this is not a security issue, it falls within the purview of the noble Lord, Lord Sharpe, and the Government should consider it, because it raises the problems of putting network equipment on fire and rescue service land and the fact that it would impede the training and preparation of that service.
This is even later than the Government’s amendment, and I recognise that it is not even part of this amendment, but it is a specific concern, and the Minister would do well to undertake to your Lordships’ House to talk to the fire and rescue service, to understand their problem and, if necessary, I am sure that we would all tolerate a late insertion at Third Reading. I say this without having spoken to the Opposition, but if it was an issue, I think that we would discuss it.
We understand that national security issues must be taken into consideration. We do not understand how this will work, what the thresholds will be, and what sort of cases it is seeking to avoid. More explanation is required.
Lord Bassam of Brighton (Lab)
My Lords, I welcome the noble Lord, Lord Sharpe, to the Dispatch Box on this Bill. We have had to deal with an increasingly large cast of Ministers, but he is a very astute and wise owl and I am sure that he will bring his insights to bear on this. I thank him for the meeting that we were facilitated to have on this issue and thank the officials for their close attention.
We on the Labour Benches entirely understand the need to protect national security and other key sites across the UK. We take the point that we should not allow equipment to be installed in places where it may interfere or enable the interception of sensitive data. However—and it is a big however—it is not desirable to introduce a power such as this at the last substantive stage of a Bill, when the elected House and our own scrutiny committees have already considered the legislation. It is not best practice. I have a bit of sympathy because I too have been a Home Office Minister. In my time I did something like 19 Bills in a two-year period. Home Office officials have a nasty habit of dreaming up late amendments which are absolutely essential for the safety and security of people at the last minute. However, it is not good practice and should not go unremarked on. We hope that the DCMS and the Home Office will acknowledge that and reflect on how this has been brought forward.
We are grateful to Ministers and officials for answering questions over recent days. That has, to a large extent, assured us that this power is not only necessary but is appropriate and will not be widely used. The Minister said “rarely” and “in extremis”, two very important guiding phrases to be used. Under this draft, the power is not subject to any formal checks. We hope that the Minister can make commitments again from the Dispatch Box. There are the possible reporting approaches to Parliament, perhaps to an appropriate Select Committee and maybe to the Intelligence and Security Committee, even if these reports are confidential. We would be grateful if the Minister could repeat, for the record, the various other steps to be exhausted before the Secretary of State would resort to this blunt instrument.
The Lib Dems made an interesting suggestion at the end of their contribution on this. I would be very interested to hear if this power will impact on adjacent sites, and whether those adjacent sites might in themselves be a security risk. It is right to draw attention to the needs of fire and rescue services, and the police service, where their services might be interfered with by adjacent-site issues.
It is not desirable, not good practice, and really not right to introduce something like this in your Lordships’ House, but we understand why and are happy to support this amendment because of its security implications.
Lord Sharpe of Epsom (Con)
I thank all noble Lords who have spoken in this brief debate, particularly the noble Lord, Lord Bassam; I do not think I have ever had the words “astute”, “wise” and “owl” used in the same sentence about me before, and I am very grateful.
I will get on to the specific points that were raised. The noble Earl, Lord Devon, effectively said, “Isn’t this unfair to private landowners?”, but generally speaking the Government are in the same position as any other landowner in relation to the code. Indeed, we intend to continue our proactive work with the telecommunications sector to ensure that the public sector property portfolio is utilised, wherever possible, to support our coverage and connectivity aims. I do not believe that this is a question about fairness; it is a question about national security, law enforcement and the defence sites that I referred to earlier.
All three noble Lords who spoke have queried why this is being introduced at such a late stage. As the noble Lord, Lord Bassam, knows, and for the record, I agree with him: it is certainly not ideal. But before seeking to introduce this exemption, we have rigorously pursued non-legislative solutions to the identified risks, given the Government’s commitment to roll out gigabit-capable broadband and the 5G networks at speed. However, we have concluded that there remain certain situations where non-legislative options cannot be relied on to address our fundamental security risk concerns. This amendment will address that: it provides a mechanism to preserve national security objectives where necessary. But I reiterate the point: I understand where he is coming from on that particular subject.
The noble Lord, Lord Fox, asked if I was able to give some indicative examples of where a Secretary of State may deem it appropriate to issue one of these certificates. I am happy to do so: the power is, as I said earlier, limited in scope, and will be applied on a case-by-case basis. Certification will be considered only when all other routes to a mutually consensual solution have been exhausted, and a telecoms operator applies to the court for the rights to be imposed. That is the last resort or, as I described it yesterday, a red card option. New Scotland Yard, for example, has received repeated requests from operators to access its main building, and operators have threatened litigation. This is an example where we would consider using this power, but other obvious examples include agency headquarters, if an operator were to approach them.
The required threshold will be considered only when all other routes to the mutually consensual solution have been exhausted, as I have just said. The newly restructured cross-government digital infrastructure toolkit will remain the primary route for determining the outcome of survey and installation requests from telecom operators. The working group supporting the implementation of the toolkit will provide a platform for regular engagement with operators. The group will also provide support to operators in assessing a site’s suitability, including a consideration of national security risks and any mitigations therein. I assure noble Lords that certification will be applied for by the Government only when it is considered necessary, and there are no other options or routes to a mutually agreed solution: for example, if the working group advises that a site is unsuitable for survey and installation based on national security grounds which cannot be mitigated, but the operator still commences court proceedings. Even then, certification will not be applied automatically. The Secretary of State will still need to make a final decision on whether a certificate of exemption is appropriate.
The noble Lord, Lord Fox, raised a very good point about digital proximity; I suppose that is the right way to put it. I am not going to get involved in that debate here. As I am sure he will appreciate, there are significant national security concerns about it, and it strays into a number of other areas. Perhaps that is a subject we can pick up in the future, because it will obviously have major implications. Finally, he also asked me about previous Home Office involvement—I remind him that I have been in post for only a week, so could not really help on that one—and the fire service. We have seen the representations of the fire service, but have carefully balanced the risk so as to not undermine legitimate national security risks. We will, of course, continue to engage.
Member’s explanatory statement
This amendment is to ensure that operators engage in the alternative dispute resolution process by making it mandatory.
Baroness McIntosh of Pickering (Con)
My Lords, I am grateful for the opportunity to raise what is quite a difficult situation in Amendments 25, 26, and 27. What I seek to address here is the fact that while it is welcome that there is an alternative dispute resolution process, it would be preferable that this was mandatory. I would also like to raise other issues, such as the imbalance between the funds available to operators bringing such a case and to landowners, who may be of quite modest means and modest size in being able to defend against such actions.
I welcome the inclusion in the Bill of an alternative dispute resolution mechanism. Could my noble friend the Minister take this opportunity to explain why it is merely optional for operators to use it, given—as I referred to a moment ago—the disparity in resources between operators and landowners in many cases? Is he not concerned that the incentive to use such an alternative dispute resolution mechanism for operators is low, given that they have the resources to take potentially multiple landowners to tribunal? Also, while the overall market for new sites for masts has slowed down, some small landowners have been unable to afford the cost of being taken to a tribunal to seek to defend their property rights. They have essentially been forced to agree to host mobile apparatus on unfavourable terms.
I propose Amendments 25, 26 and 27 to make it mandatory for telecoms operators to engage with an alternative dispute resolution mechanism before threatening to take a landowner to court for an agreement to be imposed. I beg to move.
The Earl of Devon (CB)
My Lords, I strongly support these amendments, to which I have added my name. As I have said, I am a litigator, and it is a tremendous help to get parties together in some form of alternative dispute resolution before a matter is litigated. Compelling ADR as step 1 in an escalating dispute is common, and indeed is often to be found within contractual obligations themselves, particularly between parties of disparate size and resource. Given all that has been said about the fractious and broken market, and the huge number of disputes that are occurring, the more that can be done to head these off before litigation costs escalate, the better.
I was referred to a decision this morning of the Lands Tribunal where a lease negotiation had been settled at the door of court: the decision focused only on the issue of costs. The tribunal awarded £5,000 in costs, but the total bill was over £100,000. Litigation costs can be huge and, as the noble Baroness, Lady McIntosh, has indicated, that can keep small site owners out of litigation: they have to just roll over. ADR can occur in the form of mediation, arbitration or simply expert determination on a specific technical or legal issue in contention. It is key to greasing the wheels of these challenging transactions and, given the difference in size and resource between site owners and telecoms operators, it would be most helpful.
Lord Cromwell (CB)
My Lords, I was in two minds about these amendments, but I will support them in the final analysis. ADR is of course a good thing if it avoids lengthy and costly court proceedings. My concern is that it can also become a token activity, backed by the threat of subsequent court action to intimidate site owners, reflected in the inequality of arms between the parties, which others have already referred to.
I would greatly prefer an outcome where disputes can be resolved between the parties, and perhaps their respective agents, where the balance of negotiation is fair. I made a proposal in my earlier remarks on this, to which I have received no response.
The Bill, as drafted, sets site owners and operators needlessly on a collision path. No disputes will be resolved; they will simply be won by brutal compulsion that will lead to delay and protracted proceedings. If the Bill goes ahead as is, ADR should be mandatory as a first step in at least seeking some resolution. I therefore support the amendments in this group.
Lord Clement-Jones (LD)
The view of these Benches is that throughout the passage of the Bill it has been clear that a strong case has been made for better protection for landowners against the power of telecoms operators. However, the ADR process that the Government are providing under Clause 68 is non-binding. Telecoms companies need to show only that they have considered it to avoid costs. This will not make them engage with the spirit of the process, and we expect telecoms companies to take matters to court as quickly as possible instead, with all the consequences that entails of costs on both sides.
As the noble Baroness, Lady McIntosh, stated, to address this the Government should make ADR compulsory for any dispute and issue guidance about reasonable terms. Properly enforced, we believe it would reduce operators’ reliance on litigation through the courts, which sometimes takes the rather oppressive form of threats, and encourage better behaviour by both parties. Given the potential benefits to both parties and the wider public interest, it is difficult to see the case for this process remaining advisory. In principle, we very much support Amendments 25, 26 and 27, so well advocated by the noble Baroness, Lady McIntosh, the noble Lord, Lord Cromwell, and the noble Earl, Lord Devon.
Lord Bassam of Brighton (Lab)
My Lords, this has been an interesting short debate. It was an interesting debate in Committee and I congratulate the noble Baroness on retabling her amendments. I do so because I am not completely convinced by the Government’s arguments here. There are real concerns from some that the tribunal system favours operators due to the experience and size of their legal teams. They are very powerful organisations and we should not overlook that. The legal system is there to protect all from overweening power. I understand that the ADR system is intended to prevent cases going to tribunal and court, with all the costs that come with that, and, given the timescales involved, there is clearly a benefit to reaching agreements under an alternative framework. However, if it is voluntary, where is the incentive for its use?
I shall ask one final question; I think this is the most important point. If ADR as a voluntary means of dispute resolution does not work, what will the Government do? Will they step in again and reconsider this issue? Will they give careful consideration to making it mandatory, because then it would have a more powerful effect?
I do not think this issue will go away. I do not find the Government’s arguments entirely compelling and the noble Baroness has made a very good case. I look forward to hearing what the Minister has to say.
Lord Kamall (Con)
I thank my noble friend Lady McIntosh for this amendment and for explaining making ADR—alternative dispute resolution—compulsory so eloquently. Where there is disagreement, it is always good if there can be a mechanism, but we have to remember that ADR is not one sort of ADR. There are many different types, which I shall go into.
I shall reiterate the Government’s position of not supporting the approach and supply more information that I hope will convince your Lordships that these amendments are not only unnecessary but could be actively counterproductive. As my noble friend Lord Parkinson mentioned in Committee, ADR not being mandatory is a deliberate policy choice, made for the following reasons. First, where ADR is appropriate, mandatory ADR would compel some parties to participate in a process in which they do not want to be involved, which would make them less inclined to engage actively. This would increase the risk of failure and the parties would then have to go to court anyway. It would serve only to add an additional layer of time and cost to landowners.
On this point, I return to my noble friend Lord Parkinson’s previous comments highlighting the counter- productive incentives that mandatory ADR risks creating. There are many types of ADR with different formats, timescales and costs. For example, mediation and arbitration are both types of ADR. In a situation where mandatory ADR has forced a party into ADR against its will, the party may seek an inappropriate form of ADR to frustrate the process and force the matter to proceed to court. This would result in the parties incurring additional time and costs for no practical benefit.
Baroness McIntosh of Pickering (Con)
My Lords, I thank the noble Earl, Lord Devon, and the Benches opposite for their support for these amendments. I have to confess that I am disappointed by both the tone and the content of my noble friend’s reply. I think it goes to the heart of earlier groups where we, I think successfully, set out across the House the fact that there is a serious imbalance in the relations between the parties concerned, which will only become worse, given that the operators are going to have even more means and resources at their disposal.
I hope my noble friend will accept that, even where there is permissive procedural provision to achieve a change in behaviour, it will probably be only through mandatory—or, in the word of the Liberal Democrats opposite, compulsory—arrangements that we shall see a change. I think I have made the point as forcefully as I possibly can. I do not see that my noble friend is going to agree to these amendments, but I hope that he and his department will consider this going forward. I beg to leave to withdraw the amendment.
Baroness Merron
“Independent review of the electronic communications code
(1) Within the period of three months beginning with the day on which this Act is passed, the Secretary of State must appoint an independent person to undertake a review of the effect of—(a) the electronic communications code, and (b) the Telecommunications Infrastructure (Leasehold Property) Act 2021,on the deployment of 1 gigabit per second broadband and other forms of telecommunications infrastructure.(2) The review under subsection (1) must, in addition to any other matters the Secretary of State deems appropriate, include consideration of—(a) the extent to which revisions to the electronic communications code have secured progress towards His Majesty's Government's targets relating to telecommunications infrastructure,(b) the balance of rights and responsibilities of land- owners and telecommunications operators, and(c) the impact of this Act on the level of competition in the telecommunications sector.(3) The independent person may make recommendations to the Secretary of State on matters including (but not limited to)—(a) potential further revisions to the electronic communications code,(b) potential amendments to—(i) legislation, or(ii) guidance,relating to the valuation of land used to host telecommunications infrastructure, and(c) the potential benefits of imposing a requirement for telecommunications operators to report annually to OFCOM on their investment in new infrastructure.(4) Upon receipt of the report from the independent person, the Secretary of State must—(a) publish the report,(b) prepare a response to the report, and(c) lay a copy of the report and response before Parliament.”Member’s explanatory statement
This amendment would require the Secretary of State to appoint an independent person to conduct a review of recent changes to telecommunications infrastructure legislation and policy. This review would consider what further changes may be required to ensure regulation in this field delivers new infrastructure in a way that also preserves competition in the sector.
Baroness Merron (Lab)
My Lords, I am pleased to speak to Amendment 28, which we have tabled in an attempt to find a constructive way forward to perhaps the greatest area of discussion throughout this Bill which has not yet been resolved—how we bring together the balance, the fairness and the efficiency that we all say we are looking for. This amendment is an attempt to amalgamate various others that were debated at Committee stage. I am very grateful to colleagues across your Lordships’ House who have worked with us on the draft or have indicated their support for this approach. In particular, I thank the noble Lord, Lord Fox, for adding his name, and, of course, my noble friend Lord Bassam.
Since taking office, the new Prime Minister has made a lot of her commitment to rolling out high-speed broadband and 5G. We welcome that commitment and would like to see it come into reality, particularly as, regrettably, the former Prime Minister repeatedly watered down the targets. We want to see modern infrastructure installed and want that to happen quickly, but we also want the system to be fair—to operators, yes, but also to the landowners who host equipment and consumers who are in the midst of a cost of living crisis.
The Government, we understand, will say—and I hope the Minister will not be going down this road—that a review as proposed in this amendment would only slow things down. Let me deal with that. This amendment does not prevent any of the Bill’s provisions coming into force. The Government, we understand, are also minded to say that they are confident in their approach in this area and therefore no review is necessary. If that is the case, I suggest that an independent review would give their policies a clean bill of health. However, I suspect an independent review would conclude that all is not as well as has been presented, and its recommendations could therefore be a very helpful resource for the new Secretary of State and the Government.
We see no reason why the Government could not simply accept this amendment and get on with appointing somebody independent to lead a review. If the Government are not willing to do that, we will be minded to test the opinion of the House. I beg to move.
The Earl of Devon (CB)
My Lords, I added my name to this amendment at the last minute and I am very pleased to support it. From my earlier contribution, the House will be aware of my concerns about the lack of consultation prior to the passage of this Bill. The contributions of many noble Lords and the Ministers’ responses have only increased those concerns. I did not push for a vote on the prior amendments regarding valuation and ADR because I believe those issues will properly be considered in the context of this independent review.
The Government have suggested in discussions that a review will unduly impact the market and slow the rollout of digital infrastructure. This is not possible. We have established that the market is already broken and the costs of transacting telecoms sites have more than doubled since 2017, as reported in the RICS conference, and the number of cases before the lands tribunal has more than tripled. The ECC is not working and expanding its broken application to historic 1954 Act leases will only increase the challenges. A review is urgently required, and I urge that this be voted on.
Lord Northbrook (Con)
My Lords, I speak in support of this amendment. The noble Baroness has rightly underlined the importance of ensuring that the code is actually having the impact the Government tell us it is having.
This legislation is controversial because it proposes to erode property rights in the public interest. For this to be a viable proposition for a Government who support individual rights and freedoms, it must be absolutely clear that the public benefits considerably outweigh the private cost and the resulting redistribution is as fair and equitable as it can be. Any such policy must therefore be based on robust evidence.
A recent contentious legal ruling in a case brought by Vodafone has underlined that the Electronic Communications Code does not reach this bar. As a brief summary, the legal judgment has created significant real-world issues for the ability of landowners to develop sites, damaging local economic growth but also disincentivising site owners from agreeing to host telecoms sites at all. This risks stalling the rollout of new telecoms sites, putting in jeopardy the Government’s ambitious 5G targets. The judge said that this ruling identified a “potentially important structural defect” in the code. I am aware that this case has been brought to the attention of the Government, but they have chosen not to act. Issues such as this illustrate precisely why the review proposed by this amendment is vital.
Lord Blunkett (Lab)
My Lords, I would have made a very similar speech to the noble Lord. As he has made my speech for me, I will not keep the House any longer, other than to say that when the big guy is versus the small guy it is beholden on us to support the small guy.
Baroness Stowell of Beeston (Con)
My Lords, just because it is my first opportunity to do so, I congratulate my noble friend on his new role and welcome the noble Lord, Lord Harlech, to his place on the Front Bench.
I do not contribute to this debate with any enthusiasm because, having made my points at all previous stages of this Bill through your Lordships’ House, it disappoints me that we are here where we are. I will repeat some of my points briefly. Like everybody else, I think it is important to emphasise that I, too, wholly endorse fast and full rollout of high-quality broadband to all parts of the UK.
As has been said already by others, my concern is really on behalf of the site owners. It is important for us to keep in mind, particularly if we have not been following this Bill closely, that when we talk about site owners this is not just about wealthy landowners but a whole range of different smallholdings and community property and that sort of thing. A whole manner of different people are involved. They were told that the reduction in rental income would be reinvested by the mobile network operators in delivering the rollout. It seems that there remains a lack of confidence on their part, because there is insufficient evidence to demonstrate how the new code is working. They are expected to engage in negotiations with commercial entities on trust while fearing their loss is at someone else’s gain. We have heard the extent of this in other groups earlier this evening.
As I have said before, the benefit of rollout relies on the willingness of site holders to participate; when we rely on people to succeed, they deserve to be heard and listened to. When their concerns are about fairness, they cannot be ignored. I am concerned about not causing any delay to rollout, but the arguments and evidence we have heard today is that ignoring the concerns of site owners is doing just that.
In Committee, I said I would support an amendment—it was Amendment 50 in Committee—that simply required the mobile network operators to report annually and transparently to Ofcom on a range of performance measures, including their overall investment into mobile networks alongside a range of other things. This amendment, ably moved by the noble Baroness, Lady Merron, goes much further and includes a review, as we have heard, and the potential for the type of reporting requirement I have just described to be an outcome of it.
In my view, the Government have to move from their current position if they are to bring all site owners on side—and we need them on side to get the rollout. In the absence of any willingness on the Government’s part while the Bill is in Parliament, the case for Parliament imposing this independent review is compelling. That said, I hope my noble friend will have given the points made in this debate full consideration, and I will listen carefully to what he has to say.
Lord Fox (LD)
My Lords, I congratulate the noble Baroness, Lady Merron, on her presentation of this amendment. It is an elegant composite of the discussions we had in Committee, and that is why I was very happy to put my name to it. We have heard some compelling speeches and I suggest to the Minister that they have come from 360 degrees in this Chamber, which generally indicates a klaxon for any government Minister. This really is an issue.
Lord Kamall (Con)
I thank noble Lords from all 360 degrees of the House for their contributions to this debate. Before I answer the specific points, I will address some of the points about relationships being broken, as it were, between landowners and operators.
A number of non-legislative steps are taking place to make sure this code works well in practice. For example, the department’s—wait for the name—Barrier Busting Task Force holds monthly workshops with a broad range of stakeholder groups with an interest in the code. These workshops are attended by network operators and landowner representative groups such as the NFU, the Central Association of Agricultural Valuers and the Country Land and Business Association, as well as local authority representatives, legal professionals and surveyors. The workshops aim to encourage greater co-operation and collaboration in relation to the code negotiations and agreements through identifying and implementing better ways of working. The workshops touch on key issues, many of which have been raised by noble Lords. For example, stakeholders are currently working to agree on a standard template wording for common clauses within code agreements and have agreed a pilot communications framework that sets out how both operators and landowners could approach negotiations.
Perhaps one of the most significant developments to come from these workshops—my officials call it exciting—is that a number of stakeholders, including representatives from the CLA, the CAAV and the NFU, alongside operators and infrastructure providers, have come together to form the national connectivity alliance. This alliance will bring together stakeholders from across the industry to discuss issues of mutual interest, improve co-operation and collaboration and, hopefully, share best practice. The Government welcome this development and wish it every success when it launches in November. I use that as an example to address some of the concerns and suggestions in this House that somehow relationships have broken down between landowners and operators.
While having 360-degree support, Amendment 28 would make the changes to the code in 2021 and 2017 subject to specific and independent review. As with similar amendments, I wholly appreciate the House’s determination to ensure that the Government are held accountable for this legislation and for providing updates on progress towards their coverage and connectivity targets, which are at the heart of the Bill, but the Government see three important difficulties with this amendment, which I hope noble Lords will consider.
First, and this is a key concern, having another review of the code on the immediate horizon will not help a market that is starting to settle. Officials have been gathering data throughout the passage of the Bill, and the number of code agreements already concluded this year is extremely positive. I know that noble Lords are keen to see that data—
Lord Fox (LD)
I realise that this is taking some time, but on a number of occasions the Minister has talked about the market “starting to settle”. Can he describe what settling a market is and what data he is using to make that assertion?
Lord Kamall (Con)
The noble Lord makes a reasonable point. I know that noble Lords are keen to see the data, but all that I can do at the moment is undertake to make it available as soon as possible—I did not say “in due course”, by the way. We believe that the prospect of another review will, quite simply, create chaos in the market—I know that noble Lords disagree with that. Site providers would inevitably, and not unreasonably, draw out negotiations as long as possible, in the hope that the “no scheme” valuation regime would be scrapped. It is important to consider that.
Secondly, the amendment seeks to impose a duty to assess, in isolation, the impact of this legislation and the previous reforms made to the code on digital connectivity and on stakeholder relationships. The Government question how feasible it is to quantify the extent to which such progress is attributable to a single piece of legislation, and we all know that the market to which these provisions apply is dynamic. By the time such a review has been commissioned, the research carried out and the findings reported on, the market is likely to have moved on significantly, rendering that report obsolete. In 1996, I wrote a bestseller on EU telecommunications policy—I am sure you have all heard of it—and, by the time it was published, it was already out of date. That shows how quickly this market develops. Funding such a report therefore cannot provide good value to the taxpayer, and the amount could be better spent helping the Government reach their ambitious connectivity targets, to which I will come in a moment. But remember: the report would probably be obsolete by the time it is published.
Finally, this amendment overlooks the substantial review and reporting mechanisms that are already in place. For example, in relation to progress on gigabit-capable broadband, my noble friend Lord Parkinson referred in Committee to Ofcom’s annual Connected Nations report, which is updated twice a year and provides a clear assessment of the progress in both fixed and mobile connectivity. The Government also monitor and report regularly on their connectivity commitments, with quarterly updates published by BDUK. The Government will of course carefully consider the implementation of this legislation to understand how it is working in practice. For these reasons, I believe that the proposals in this amendment, while well-intentioned, could be disproportionate and ultimately unhelpful. I have also written about unintended consequences, and we have to be very careful of these here.
I will respond directly to the question of the noble Lord, Lord Fox, about targets. The levelling-up White Paper set out our mission that, by 2030, the UK will have nationwide gigabit-capable broadband and 4G coverage, with 5G coverage for the majority of the population. The Government are developing a wireless infrastructure strategy to set out the strategic framework for that development, and this will be published later this year.
The existing 5G target, which is for the majority of the population to have access to 5G by 2027, has been met five years early, with basic non-standalone 5G. As part of the wireless infrastructure strategy, we are establishing a new ambition for 5G. The shared rural network will see the Government and industry jointly investing over £1 billion to increase 4G mobile coverage throughout the UK to 95% geographic coverage by the end of the programme, underpinned by licence obligations.
The UK Government’s other target for broadband remains to deliver gigabit-capable broadband to at least 85% of premises by 2025 and to reach over 99% by 2030. To achieve the minimum 85% objective, DCMS is stimulating the market to deliver as much as possible—at least 80% by 2025. It has also invested £5 billion as part of Project Gigabit to ensure that the remaining 5% in the UK receive coverage. If I have not answered the questions of the noble Lord, Lord Fox, I commit to write to him—perhaps he could let me know.
I understand that there was a lot of interest, and there have been very well-made points during the debate, but I am afraid that the Government cannot accept this amendment at this stage.
Baroness Merron (Lab)
My Lords, it is disappointing that the Minister has not found a way to respond to the very real, informed and evidenced points raised not just today but at previous stages. I am sure that the Minister knows full well that his response just will not do. This amendment seeks to find a constructive way forward—something that the Government have failed to do—and bring together people who previously were apart. It seeks to address the obstacles to the ambitions that the Government say they have, in a way that the Government have failed to do. It also seeks to bring transparency to assist a process. I have heard the Minister, but I am disappointed, and I therefore feel that I must test the opinion of the House.