Product Security and Telecommunications Infrastructure Bill

Lord Sharpe of Epsom Excerpts

Report stage
Wednesday 12th October 2022 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

23: After Clause 65, insert the following new Clause—
“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.

--- Later in debate ---

[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.

Amendment 23 agreed.