Lord Clement-Jones (LD):

Moved by Lord Clement-Jones (LD)

1: Clause 1, page 1, line 11, after “premises” insert “(which include premises where a tenant is in exclusive possession)”Member’s explanatory statementThis amendment would clarify that tenanted premises are included under the provisions of this bill.

My Lords, it is a mixed pleasure to be back in the Chamber. In her speech in Committee on 19 May, the Minister said in response to my amendment:

“I believe that the noble Lords who have tabled the amendment are seeking to ensure that tenants are covered by the Bill. If noble Lords are indeed seeking clarification on that point, I am able to confirm that as currently drafted, the provisions in this Bill can be used by people who rent their homes.”

She went on to say:

“This includes people with assured shorthold tenancy or assured tenancy agreements which, as many noble Lords will be aware, are the most common forms of tenancy agreement.”—[Official Report, 19/5/20; col. 1030.]

In her subsequent letter, the Minister said:

“As drafted, this Bill allows a lessee in occupation—i.e. someone who has a leasehold agreement with a person able to confer on an operator or otherwise be bound by a code right—to request that an operator provide an electronic communications service to the premises so occupied. It is that which is the trigger for the whole process set out in the Bill. It is for that reason that the Bill does not use the language of landlord and tenant law, which was one of the—entirely understandable—points made during the first Committee session.”

The Minister then referred to the definition of lease set out in Street v Mountford cited at [1985] UKHL 4:

“An agreement is a lease if it provides for (i) exclusive possession, (ii) of defined premises, (iii) for a fixed or periodic term and (iv) at a rent.”

She said:

“The distinguishing feature of a lease, as opposed to a licence, is that the tenant has exclusive possession of the let property.”

The letter continued:

“My understanding is that a tenant at will could be a person able to make a request that would trigger the Part 4A process… If an agreement for occupation constitutes a lease, then the fact that it is renewable does not change the Government’s intended approach. As I mentioned at the first Committee session ... My understanding is that the impact of that would therefore be that so long as a renewable tenancy has the hallmarks of a lease then it would not fall outside the scope of this Bill. I must stress again, though, that this will be both a matter of substance that will turn on the facts of each case and ultimately, the interpretation of the law will be a matter for the courts.”

All this added some clarity but, in the view of my noble friends and I, not enough. The noble Baroness, Lady McIntosh of Pickering, said quite rightly in Committee:

“Leasehold properties are a very grey and disaffected area of property rights.”—[Official Report, 19/5/20; col. 1025.]

I agree with the noble Baroness. The noble Lord, Lord Liddle, referred to his concern for

“young people, including students, living in short-term lets in multi-occupier buildings—for instance, in old council blocks where someone has bought a flat to rent it out and their main occupiers are students on short-term tenancies.”—[Official Report, 19/5/20; col. 1032.]

This amendment is designed, as crisply as possible, to dispel any lack of clarity or misapprehension to ensure that we have as inclusive as possible a definition of those who could be regarded as tenants, without straying into the territory of licensees or licences, which do not grant exclusive possession. If there is exclusive possession, even if the language of “a licence” is used, the occupier will be covered by the code. I am concerned to ensure that all tenancies are included, even if not, strictly speaking, leases.

Tenancies in the public sector are of a particular nature, and we need to make sure that they are clearly covered. For instance, the amendment would make sure that introductory or probationary tenancies in local authority housing, flexible or joint tenancies, and what are called demoted tenancies are all covered, as well as tenancies by succession and starter tenancies from housing associations. It would include written or verbal agreements. The position of a tenant at will or renewable tenancy, if there is such a residential status, may also demonstrate the need for this clarification. All these tenancies will have exclusive possession and it needs to be made clear that they qualify, for the purposes of the code.

What could an objection to any of these examples be? If the amendment is unnecessary or tautologous, it is innocuous. If I am right, however, and clarification is needed for a number of ordinary tenancies to be covered, the case is made for its inclusion. I beg to move.

There is nothing I can add to the comprehensive speech of my noble friend Lord Clement-Jones, so I shall sit on my hands.

I understand that the noble Lord, Lord Stevenson of Balmacara, does not wish to speak, so I call the noble Baroness, Lady Meacher.

My Lords, I support the Bill because it provides an opportunity for some residents to obtain telecommunications infrastructure for their properties, even when their landlord cannot be contacted to give permission for such installations. The problem is I do not think that many tenants would be included. I added my name to Amendments 2 and 3 tabled by the noble Lord, Lord Stevenson, because they would enable further, badly needed, additions to our telecommunications infrastructure.

The essential issue here is the need to extend the availability of telecoms infrastructure as widely as possible, while providing sufficient protection for landlords to avoid unnecessary damage to, or interference with, their property. The protections for landlords in the Bill are more than adequate, albeit that some of the detail of those protections will be specified in regulations and be up to Ministers.

The most important protection for the landlord is that the operator must convince the First-tier Tribunal (Property Chamber) of the justification for the installation of telecommunications infrastructure. Only then will permission be given for the installation to go ahead. The Bill makes it clear that the tribunal will require an enormous amount of information before making its decision, and at the start of the process the operator must make multiple attempts to contact the landlord and gain their approval if they possibly can. The amendment provides for Ministers to extend the scope of the Bill.

The Government’s justification to the Delegated Powers Committee—I declare my interest as a member of that committee—for restricting the scope of the Bill at the outset is simply that multi-occupied blocks of flats are the most common source of demand for the provisions of the Bill. However, I agree with the noble Lord, Lord Stevenson, that it would be sensible to extend the scope of the Bill to tenants with a rental contract, for example, even if it turns out that the demand from those tenants is not all that great.

The Government refer to business parks and office blocks as potential candidates for the powers under the Bill to obtain telecommunications infrastructure. Perhaps the Minister could explain if there is any reason not to include such premises within the scope of the Bill now, and by that I mean rental situations as well as lessee situations.

Amendment 3, in the name of the noble Lord, Lord Stevenson, affords an operator the right to initiate proceedings to provide infrastructure on a site where they see a public interest in doing so. Again, I welcome the proposal; the safeguards for the landlord are so extensive, including the need to convince the tribunal of the merits of the case, that this extension of the scope of the Bill could only be beneficial.

I hope very much that the Minister will consider these amendments sympathetically. They are not party-political issues at all but rather a genuine concern for the general improvement of the country’s infrastructure.

My Lords, I entirely agree with all the arguments that have been made by the noble Lord, Lord Clement-Jones, and have nothing to add. I hope the Government will accept this amendment.

My Lords, I would like to clarify some of the arguments that have arisen on the sidelines since Committee regarding how Amendments 1 and 2, which I am inclined to support, would function.

It is probably fair to say that in rural areas the connections are slower and less secure, as we have seen in a number of our own parliamentary proceedings. Amendment 2 refers to who can request an operator to provide an electronic telecommunications service; that would include rural tenants. I am concerned that many tenants are trying to conduct a business from home in the current circumstances surrounding Covid-19; I have found myself in such circumstances.

Can we have an assurance today from the Minister that, given what other noble Lords have said about the assurances and powers that landlords have in this regard, consent being sought from a landlord could not possibly delay connections to a fibre network? Fibre is very slow to be delivered, particularly in upland areas, and it would be regrettable if there were any further delay due to consent being sought from a landlord who may not be immediately available in that regard. I would be grateful to learn what my noble friend’s thinking is in that regard.

My Lords, I was once chairman of a housing committee in the London borough of Islington. I remember that in those days I thought that tenancies were quite complicated, but they were are absolutely nothing to what we have today. The degree of complication that has been highlighted by the noble Lord, Lord Clement-Jones, makes me wonder a bit. Not only are tenancies incredibly complicated now but the code that we are looking at, which is being amended in the Bill, is pretty old and the nature of the business that we are talking about is changing incredibly. As my noble friend Lady McIntosh has just said, who would have envisaged even six months ago the sheer volume of people who are now working from home, many of whom have very different requirements?

The more that I think about it—and I know quite a lot about the housing association movement—the more problems I foresee. With starter tenancies, I can see someone being difficult about the fact that people are not going to be there very long—“Are you married or not married,” and so on?

I say to my noble friend on the Front Bench that I hope we as a Government are in a position to reconfirm that this huge variety of tenancies and this huge variety of new electronic services can be married up within the confines of the Bill; otherwise, we will be in deep trouble, with people not being able to operate from home because of some vagary in the legislation. I feel that this issue needs clarification, and I will listen carefully to what my noble friend on the Front Bench says.

My Lords, I am grateful to the noble Lords, Lord Clement-Jones and Lord Fox, for tabling Amendment 1, which would have a very similar practical effect to Labour’s Amendment 2. My noble friend Lord Stevenson and I also tabled Amendment 3, which would enable operators themselves to initiate their Part 4A process. While we feel very strongly about this, it is one of the many issues that could be addressed as part of the review envisaged by Amendment 7, so I will not detain the House by repeating past arguments.

Returning to Amendments 1 and 2, this is an area that has been probed extensively during the Bill’s Commons stages and in Committee here, and where fundamental differences remain. Despite what I feel are very clear arguments in favour of amendments giving certainty to those who rent, the Government have resisted changing the Bill at all stages. When responding to a similar group of amendments in Committee, the Minister said:

“Our concern is that the amendments as tabled would have a significant effect on the Bill. They would significantly expand the scope of who is able to make a service request”.—[Official Report, 19/5/20; col. 1031.]

That is, after all, what we are trying to achieve, and I therefore find it puzzling that we find ourselves in this position.

The Minister went on to suggest that broadening the Bill’s scope could, for example, enable a tenant renting from an individual who is illegally subletting a property to request a broadband connection. While we do not condone such practices, there are, in my view, several issues with this argument. First, I do not believe that the number of such cases would be particularly high, whereas the number of renters who would benefit from the right to request a service is likely to be significant. The risk is very definitely outweighed by the reward. Secondly, the existence of such issues should not preclude people who are renting a property in good faith from being able to access quality telecommunications services. If there are issues with particular landlords, that is for local authorities to resolve. If the problem is bigger than that, Whitehall has responsibilities too. Thirdly, if the department felt that there were legitimate deficiencies in the drafting of earlier amendments, it would have been possible for the Government to table their own text for consideration today. No amendment was offered because renters do not seem to figure in the department’s so-called balanced and proportionate approach.

I do not think any of those arguments from the Government are particularly convincing, and the strength of the Government’s opposition to straightforward, well-intentioned amendments casts doubt on Ministers’ insistence that they will take any and all available opportunities to widen access to high-quality broadband and mobile connections. I hope the Minister feels able to accept either Amendment 1 or 2 today. She could do so and, if necessary, table tidying-up amendments at Third Reading. If that is not the case, I urge your Lordships to back the noble Lord, Lord Clement-Jones, should he choose to test the opinion of the House.

My Lords, I shall speak first to Amendments 1 and 2. I thank noble Lords for again bringing forward these amendments, one of which is identical to an amendment tabled in Committee. I note that amendments to this effect were also tabled in Committee and on Report in the other place. At the fourth go around, I will do my best to clarify our arguments more effectively.

As I said earlier, I believe that the intention in tabling this amendment is to ensure that this Bill benefits those who rent their homes. The noble Lord, Lord Clement-Jones, quoted from my letter on this, and I agree entirely. However, as I stated in Committee and then in the correspondence with which I followed up, the Bill already has within its scope many of those who rent by virtue of the term “lessee in occupation”. The Bill makes it clear, in paragraph 27B(1)(a) of the code it inserts, that

“premises within the scope of this Part are occupied under a lease”.

A tenancy agreement, which also provides for exclusive possession, is a form of lease. Any tenant with exclusive possession is therefore in scope of this Bill, and no further provision needs to be made in this Bill for such a person.

The noble Lord, Lord Livermore, and my noble friend Lord Naseby both questioned the Government’s commitment to expanding access to broadband, and my noble friend Lord Naseby and the noble Lord, Lord Clement-Jones, quoted multiple examples of complexities in tenancies, but this Bill is about simplicity. There is one principle on which the ability to use a Part 4A order stands or falls: exclusive possession.

Conversely, a tenant who holds a licence—a lodger, for example—is not within the scope of the Bill, because a licence does not give exclusive possession. To be clear: that does not preclude them from contacting their licensor to request a service. I do not think it is possible to be much clearer than this. I realise that the noble Lords may be seeking to ensure that there is no ambiguity and that the legislation provides judges with all the information they might need to enable a swift and easy decision; I understand that motivation. However, I believe we need to trust the specialist judges in the First-tier Tribunal in England and Wales and those sitting in equivalent courts elsewhere in Scotland and Northern Ireland, who deal regularly with such matters.

To be as clear as possible, I will cover some of the points that I alluded to in my letter and that the noble Lord, Lord Clement-Jones, raised. For the avoidance of doubt, not all tenancies need to be in writing or formed by deed, and the case law is relatively settled in relation to this. As the noble Lord, Lord Clement-Jones, mentioned, the Appellate Committee of the House of Lords, in its judgment in Street v Mountford in 1985, found that an agreement is a lease if it provides for the following four things: first, exclusive possession; secondly, of a defined premises; thirdly, for a fixed or periodic term; and fourthly, at a rent. This is a matter of substance rather than form; it does not become a lease simply if the parties describe it as a lease. In a later case, the Court of Appeal held in Ashburn Anstalt v Walter John Arnold and WJ Arnold & Company Limited in 1989 that there is no requirement that a lease reserve a rent. As I said earlier, the distinguishing feature of a lease is that the tenant has exclusive possession of a property.

Pegging the Bill to the concept of a lessee in occupation therefore ensures that the Bill includes tenants who rent under assured shorthold tenancy or assured tenancy agreements—which, as many noble Lords will be aware, are the most common forms of tenancy agreements. It also includes tenants at will and renewable tenancies, in so far as the tenancies that are renewable had provided for exclusive possession in the first place.

To be clear: we believe Amendment 2 would expand the scope—that is clearly its intention. It would be extended to include those who occupy a property without exclusive possession and therefore under a licence, which would include lodgers, people staying in holiday cottages and those staying in hostels. That is to say, the amendment would provide someone who may be a temporary guest in someone else’s home with powers over that property. I am sure your Lordships would agree that this is neither fair nor appropriate. The “lessee in occupation” allows this Bill to fit within the Electronic Communications Code while also describing that limited but nevertheless still important role for the person living in the property.

Amendment 2 would considerably increase the ambit of the Bill and make it very different from the model consulted on. This is something one should be mindful of when dealing with matters that consider property rights. It should also be noted that, for the reasons I have previously set out, Amendment 1 is not necessary because if the target premises are already “occupied under a lease”, it follows that the person so occupying will have exclusive possession. That is because the existence of exclusive possession is one of the key elements of a tenancy agreement constituting a lease rather than a licence. In a letter dated 9 June 2020, we sought to explain this to all noble Lords who had expressed an interest in this Bill in Committee. To be clear once again: the Government’s intention in bringing forward this legislation is that those who occupy a flat or apartment under a tenancy agreement are in scope of this policy.

The noble Baroness, Lady Meacher, asked about the criteria for including things such as business parks. I think I said at an earlier stage of our debates that we would wait for evidence that there is a genuine demand and need to do that. The spirit of this Bill remains: we want to expand access to broadband while maintaining the balance in the relationship between landowner, operator and tenant.

My noble friend Lady McIntosh asked whether this would create further delay from the landlord. The whole point of this Bill is to try to make sure that people living in blocks of flats can access broadband in the timeliest way possible. I hope noble Lords are now assured by the fact that the Bill as drafted already works in respect of tenants and understand the reason behind “lessee in occupation” and why it may be a mistake to seek to extend the scope in the manner proposed.

I now move on to Amendment 3, which would allow telecommunications operators to apply to the courts for a Part 4A order without requiring a lessee in occupation in the property to request the provision of a service from an operator. It would therefore allow the operators themselves to determine whether the connection of the property to their network is in the public interest, in order to commence the Part 4A process. I note again that this amendment is identical to one tabled in Committee and similar in concept to others tabled throughout this Bill’s passage in both this House and another place.

I appreciate the intention behind the amendment, which is to remove what noble Lords see as an unnecessary step in the process, and I am well aware that this is a point on which telecoms operators have been particularly active. However, I cannot support the amendment.

In Committee, it was intimated that the Government should listen more to the operators and less to landowners, and that we should abandon our pursuit of balance with regard to telecommunications installations or else be accused of not fully supporting our own commitment to bring gigabit-capable networks to every home and business in the country as soon as possible. However, it is entirely possible to go further without upsetting that balance. Providing balance is the way in which we will end up achieving our goals, and we ignore the landowner community at our peril. We need to create a legislative environment that encourages co-operation and understanding, rather than any sense of coercion or unfairness.

The amendment has the potential to undermine the balance in the Electronic Communications Code between the rights of the landowner, the rights of the operator and the broader public interest. Unbalancing the code would erode the landowner’s ability to enjoy their property and would require careful consideration, evidence and justification. The service request is an unequivocal demonstration that the interests of parties other than those of the operator alone are reflected. Again, that goes to the heart of the Bill’s policy, taking into account and balancing as carefully as possible the respective interests of tenants, landowners and operators. As drafted, the Bill continues that balance. When a landowner is, for whatever reason, unresponsive, it asks for some form of evidence that an interest other than that of the operator is being served.

The Government believe that access to fast, reliable and resilient connectivity is crucial for business and society. In our opinion, it is in the public interest. However, giving operators carte blanche in every situation, regardless of context and without any oversight or proof, is disproportionate. Even the police need to demonstrate grounds to enter someone’s property.

I am sure that noble Lords will agree that asking operators simply to prove, by way of someone asking for a service, that their entry into a property is to fulfil a demand is an exceptionally small burden. I am confident that any operator worth their salt would have the ingenuity to find people to take up the offer of faster, more reliable and more resilient broadband. In short, the amendment tips the balance too far in the favour of operators. It could even be so tempting as to become potentially open to abuse.

Alongside those significant concerns, I am also mindful that the amendment would mark a significant shift from the policy that was consulted on. This is something to be particularly cautious of when dealing with issues around property rights. Finally, but very importantly, it is important to note that the Bill already contains provisions that are supportive of operators while maintaining the balance that I have described.

I draw your Lordships’ attention to new paragraph 27F(1)(b) of the code inserted by the Bill. It permits an operator who has successfully applied for a Part 4A order to connect not only the property of the individual who made the initial service request but, provided that there is no additional burden on the landowner, all the other premises. In the context of a multiple-dwelling building, that could therefore mean the rest of that block of flats. Therefore, I hope that it is clear that the Bill already makes significant provision for the interests of operators. With that, I ask the noble Lord to withdraw his amendment.

My Lords, I thank the Minister for her response. I particularly thank the noble Baroness, Lady McIntosh of Pickering, and the noble Lord, Lord Adonis, and the noble Lord, Lord Naseby, for his reflections on tenancies and the complexities of that subject.

I agree with Amendments 2 and 3 in terms of the desirability of expanding the definition of those who have access to fibre broadband. However, I also agree with the noble Lord, Lord Livermore, that perhaps the most convenient point for the examination of expansion of rights under the Electronic Communications Code is at a point of review, such as proposed in our Amendment 7, which we will discuss later.

Probably my first comment in response to the Minister is that I would not really have started from here regarding the way in which the definitions are provided under the Electronic Communications Code. That is borne out by the very fact that on many occasions in the Commons and in Committee here we have debated the width or not of the definition of “lessee” and “lease”. We have tried to refine that and make sure that what it covers is utterly clear beyond peradventure. I believe that it is important to send a very clear signal to tenants who rent that they are covered by the Bill.

The noble Lord, Lord Livermore, was also correct to say that, if the Government felt so strongly about it, they should have offered an amendment of their own. We need to be absolutely clear about who has access to the rights under the Bill. We need to make that simple and put it on the face of the Bill. As I said earlier, if, according to the Government, our proposal is belt and braces and is not necessary, there is no harm in that, because it would give a clear signal and the interpretation of the Electronic Communications Code would be that much clearer. Therefore, I wish to test the opinion of the House.

Ayes 294, Noes 234.

Division conducted remotely on Amendment 1

Amendment 1 agreed.

Amendments 2 and 3 not moved.

We now come to the group consisting of Amendment 4. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to a Division should make that clear in debate.