Moved by Baroness Barran
That this House do not insist on its Amendment 3 to which the Commons have disagreed for their Reason 3A.
3A: Because the Commons do not consider it necessary for the Secretary of State to be required to carry out a review as set out in Lords Amendment No. 3.
My Lords, I am moving Motions A and B en bloc. When the Bill was introduced in early 2020, we could not have predicted the situation that we find ourselves in now. Over the past year, our telecoms network has allowed businesses to continue to operate, children to continue to learn and those in isolation to continue to see and speak to families and friends. As the Minister for Digital Infrastructure has done in the other place, I give wholehearted thanks to the UK’s digital infrastructure providers, internet service providers and mobile network operators. They have stepped up and worked with us to bridge the gaps in provision, be that through whitelisting educational websites, providing free data and devices to struggling families or coming together to deliver connectivity to the Nightingale hospitals and vaccination sites. As with any industry, there is a tendency to pay attention only when something goes wrong and to ignore the huge amount of effort and hard work it takes to keep things working normally. The industry’s efforts during this extraordinary time cannot and must not be forgotten.
However, the coronavirus pandemic has put into sharp relief the divide between the digital haves and the digital have-nots. This Government’s ambition is to support the delivery of fast, reliable, resilient broadband to every home and business in this country. Noble Lords will be aware—not least from our discussions during the passage of the Bill—of the myriad, complex barriers that face infrastructure deployment. There is no panacea, but the Bill provides a modest yet vital development. Despite having once been described by the Guardian as “an obscure technical bill”, it has within its initial scope some 10 million people in the UK who live in flats and apartments. It also contains the flexibility to bring still more people into its scope in the future, such as those in office blocks and business parks, where the evidence points to it.
We expect these provisions, once commenced, to make a real difference to rollout, along with other measures we are taking forward such as mandating gigabit connectivity to new-build developments and reforms to the street-works regime so that it better supports deployment.
I trust that your Lordships will have seen that a consultation on further potential changes to the Electronic Communications Code has now been published. We will carefully consider whether further legislative changes beyond those made in the Digital Economy Act 2017 are necessary as a result of what we learn from that consultation. These are all steps that, combined, will help operators achieve their, and this Government’s, ambitious connectivity targets. Crucially, these measures will take into account the interests of those needing greater connectivity, balancing those interests alongside those of landowners. Just as with the Bill, that balance is crucial to ensure that we continue to bridge that digital divide.
The Motion asks that this House does not insist on its Amendment 1 and does agree with the Commons in its Amendments 1A and 1B in lieu. As noble Lords will recall, Amendment 1 was tabled by the noble Lord, Lord Clement-Jones, following similar amendments by the Opposition Front Bench, here and in the other place. Its purpose is to clarify that people who rent their flat can make use of the policy in the Bill. While we maintain that the Bill has always provided for that, the strength of feeling on the matter is undeniable. To make it clear that the Bill serves the interests of tenants as well as leaseholders, the Government have tabled two amendments in the spirit of that tabled by the noble Lord, Lord Clement-Jones. The amendments clarify the definition of “lease” in the Electronic Communications Code, to ensure that it includes, for example, any tenancy. I hope that your Lordships will support these amendments.
I hope that the House will not insist on Lords Amendment 3, to which the Commons has disagreed for Reason 3A. That amendment, tabled by the noble Lord, Lord Stevenson of Balmacara, adds a new clause requiring the Secretary of State to commission a review of the impact of the Bill on the Electronic Communications Code. The proposed new clause requires the commissioned review to include an assessment of whether the code is sufficient to support the delivery of one gigabit per second broadband to every premise in the country by 2025. The amendment also requires that further, separate assessments be made of whether the code should be amended to
“introduce rights of access to telecommunications operators akin to those available to suppliers of electricity, gas, and water”.
The amendment also provides for an assessment as to whether the code should be amended to provide additional development rights and encourage collaboration alongside other works being carried out in the locality.
I recognise and appreciate the intention with which this amendment was tabled. It is important that the Government are held to account over their rollout targets, and it is frustrating that many parts of the country still do not have access to the digital services they need. However, we continue to believe that the amendment is unnecessary and seeks to introduce provisions which fall outside the purpose of the Bill and, indeed, the code itself. As I have said, there are already mechanisms in place by which the department’s rollout targets are measured and scrutinised.
Ofcom, the independent regulator, publishes its annual Connected Nations report, which it updates a further two times a year. This provides a clear assessment of the progress that this country is making in providing connectivity, both fixed and mobile. These reports provide detailed analysis of the connectivity available in the UK as a whole, in each of the nations and in urban and rural areas. They show the progress that is being made in the deployment of gigabit-capable networks and 4G and 5G coverage. They show progress in relation to connections to superfast services, as well as the areas in this country which are not yet served—for example, those premises unable to access a broadband speed that meets the minimum under the universal service obligation. Should the Ofcom reports raise questions, the Government continue to provide answers and clarity on any aspects of their work in this area, both in this House and in the other place.
Furthermore, there are established means of scrutiny through Select Committees. To take some recent examples, in December 2020 the DCMS Select Committee published its report, Broadband and the road to 5G; in January this year, the Public Accounts Committee published its report, Improving Broadband; and in February, the Science and Technology Committee published UK telecommunications infrastructure and the UK’s domestic capability. Ministers and senior officials have given evidence to Parliament on a number of occasions and have been asked to account for their progress towards achieving greater connectivity as part of these sessions.
Moving on to the more technical reasons why we cannot accept this amendment, I remind your Lordships that the Electronic Communications Code is technology neutral. It is not about what is being installed; rather, it is about where, when and how equipment is installed. It is about the rights of operators to perform these activities and the rights of those whose land is used for this purpose. It is simply not possible to judge whether the Electronic Communications Code supports access to 1 gigabit per second broadband, because it is not designed to facilitate just gigabit-capable connections.
By contrast, the code is about access to land to facilitate the installation, maintenance and upgrade of electronic communications networks, including gigabit-capable broadband but also mobile telephony. The only way to judge the code is to examine the availability of all types of connections. As I have mentioned just now, the independent regulator does exactly that and regularly publishes those reports.
With regard to comparing the powers of telecom operators with gas, water and electricity suppliers, the Government recognise that further changes to the code may be required if it is to effectively support the achievement of our coverage and connectivity targets. Shortly before Third Reading, we published a consultation on further potential changes to the code. That consultation seeks responses from interested parties on a number of different issues relating to access to land. These issues have been raised by us with stakeholders and go beyond the specific matter of unresponsive landlords that the Bill addresses. The consultation is open until
The amendment in the name of the noble Lord, Lord Stevenson, goes further still and references permitted development rights and street works. DCMS does not have responsibility for these two policy areas, but I reassure your Lordships that DCMS officials work in close contact with the relevant parts of government to take a joined-up approach and to pursue the reforms that the industry is asking for.
Additional development rights are a planning matter which sits outside the Electronic Communications Code. However, many noble Lords will be aware that telecom operators are afforded significantly more flexibility in how they install their infrastructure. This includes, for example—under permitted development rights—exemptions from a number of requirements to request planning permission. My department continues to work closely with colleagues in the Ministry of Housing, Communities and Local Government in that regard, and in August 2019 we launched a joint consultation with MHCLG regarding potential reform of permitted development rights, particularly to support mobile network deployment. The Government published their response to that consultation in July 2020. The response announced that, subject to a technical consultation, we will take forward the proposed reforms. We expect to publish the technical consultation in the spring.
Finally, I reassure your Lordships of the work that the Government are already doing with regard to the co-ordination of street works and promoting greater collaboration between telecom providers with local authorities and the suppliers of gas, water and electricity. My department is working closely with the Department for Transport and last year released the new Street Manager digital service. This was the largest update to street works in a generation and has simplified and improved the planning and co-ordination of works throughout England. This service is used by utilities and highway authorities alike and is offering unprecedented opportunity for collaboration and joint works. The Government are continuing to assess what further reforms can be made to improve co-ordination and collaboration, including changes to both permitting and traffic management schemes. I also note that roads are an area of devolved competence, so they would not be an appropriate addition to this Bill, which applies throughout the UK.
I hope that the Government’s reasons for disagreeing with Amendment 3 are clear. We fully appreciate the intentions of this amendment, and the Government share your Lordships’ concerns that telecom operators must be given the best tools possible if they are to deliver world-class connectivity.
We are listening to the telecom industry very carefully, and I assure noble Lords that we are getting there and identifying and delivering the necessary reforms. However, this amendment is impractical. It aims to bring into the Bill issues that it has never been the role of the Electronic Communications Code to provide, such as gigabit-capable connections and improved planning and street works.
I hope that your Lordships will be reassured by the recent publication of the consultation considering potential reforms to the Electronic Communications Code. We remain very much open to ideas from the industry and landowners on how the Government can better support rollout, and we will take legislative action if the evidence demonstrates a need to do so. I therefore beg to move that this House disagrees with Amendment 3.
My Lords, I thank the Minister for her thorough review of both the amendments, and of the scene.
The Bill seems to have been around almost as long as the Covid pandemic. I am almost minded to call it the “lockdown Bill”, because it surfaced from time to time and then disappeared from time to time. Looking forward, I hope that future Bills which may or may not emerge from consultations will perhaps have a rather more impelling momentum than this one, which seems to have been rather caught in the backwash of legislation.
It has been a Bill of essentially two debates. One was the huge concern that your Lordships demonstrated about the nature of the digital communications supply chain; the Minister may be pleased to know that I will not go back into that. The other debate—the Minister may not agree—has exposed the paucity of ambition in the Bill and, therefore, by extension, in Her Majesty’s Government. On the Minister’s own admission, it is a narrow Bill; I would say it is just about as narrow as the Government’s USO, which I remind your Lordships is just 10 megabits a second. Both the Government and the industry should be seeking to increase that.
When it comes to the digital communications supply chain, there is one thing that I should like to talk about. Much work is to be done in the sector as it comes to terms with the future absence of Huawei. Since we last considered the Bill, some of us have received letters from the Minister setting out plans for supply chain diversity. I hope that that letter is in the Library; if not, it would be appreciated if the Minister made sure that it was. Government support for the NEC open RAN trial is good and we welcome that. I remind the Minister that the Government’s stated aim is to have 5G open RAN up and running this year. It would therefore be helpful if the Minister were able in her closing words to let us know whether that is on track. I should point out in referring to the technical consultation being due in the spring that the first day of spring was Monday, so we are, as it were, already sprung.
I turn to the items on the Marshalled List. When addressing the amendment on leasehold status in the Commons, the Minister of State Matt Warman MP recognised the plight of people living in flats and apartments, which was welcome. He and the Minister enumerated about 10 million people as potentially benefiting from being able to seek better broadband in their homes. That point was thoroughly made by my noble friend Lord Clement-Jones. The purpose of his amendment on Report was to clarify, as the Minister said, that people who rent their flat can make use of the changes in the Bill. It is gratifying that the Government have retained the spirit of that Amendment 1 in offering Amendments 1A and 1B instead. I am sure that my noble friend will have more to say on that.
Turning to Lords Amendment 3, the Government’s response is not supportive and that is disappointing. That amendment would have added a new clause requiring the Secretary of State to commission a review of the impact of the Bill on the Electronic Communications Code. It seems to me that in her rebuttal of that amendment the Minister enumerated the considerable weaknesses of the code and set out some areas of concern. Amendment 3 would have included an assessment of whether the code was sufficient to support 1 gigabit broadband rollout in every premises by 2025. In her rebuttal, she said that the code was not competent to do that. Given that so much weight has been put, not least by the Government, on that target, that would seem to be a serious issue. As the Minister set out, it would have required separate assessments to be made, as well as addressing the issue around utilities—that was well rehearsed on Report and I do not propose to do so again.
However, I am tempted to ask what the Government are scared of in terms of allowing that review to happen. They seem to be nervous about their ability to deliver on that 1 gigabit target. It was therefore not surprising that Matt Warman MP would politely denounce that amendment, as the Minister has done today. Both focused on the assertion that elements of the amendment fall outside the scope of the Bill. It is not beyond understanding that if that were the case the Government could have come back with an amendment that retained or created a review but also satisfied the need for the amendment to sit inside the Bill. Once again, we have fallen foul of the narrowness of the Bill.
It is partly surprising and perhaps gratifying that the Government have realised how narrow the Bill is, and it was almost remarkable that before the ink was dry on it, the next consultation came fluttering through the letterbox. Perhaps the Minister has, in a sense, already confirmed the recognition that the Bill was insufficient in the first place. It has taken us a long time for us to get not very far and now we have to start again.
On many occasions, the Minister has reminded us that the code is technology-neutral. I think we know and understand that. Therefore, the review has to grasp that within the context of how the code in future deals with the key issue: are people getting the connectivity they need, can we measure it, and can we make it quicker and better as well as cheaper? I hope that that goes beyond simply talking about access to land and that kind of issue. Let us get through this consultation as quickly and thoroughly as we can. Let us get another Bill so that we can create a code that does what it needs to do and is fit for purpose because, let us face it, the Government have an interest in delivering the gigabit target from their manifesto but the country has much higher stakes in this. We need it as soon as possible.
My Lords, I join the Minister in congratulating our telecoms providers on rising to the challenge of providing relatively comprehensive connectivity to the nation in response to Covid.
However, I am reluctant to speak to Amendment 3 in the name of the noble Lord, Lord Stevenson of Balmacara, other than to say that I do not support it, for the reason that it appears to place additional burdens and apportion impractical and potentially onerous rights. It would be injected into the Bill in its closing stages when we do not have the capacity as a House either to examine the issues or to reflect on the Electronic Telecommunications Code and the impact of the new rights being given to operators. My approach is that it is best not to introduce additional complexities to Bills during ping-pong.
However, I intervened on the Bill as far back as
My amendment was described as being anti-Huawei, although its wording was much broader. I owe a huge debt of gratitude to other noble Lords who joined me in that endeavour because I was constantly being told by the Government Benches that the amendment was inappropriate. However, the noble Lords, Lord Alton of Liverpool, Lord Forsyth of Drumlean, and Lord Adonis, stuck with me as we continued to argue that Huawei or, indeed, any other future telecoms provider that might jeopardise our national security should be removed from being able to operate with impunity in this country.
I truly regret that the Bill was delayed in our seeking those safeguards, but that is what we exist for here as a scrutinising Chamber. We give the Government an opportunity to think again and that is what has happened through those amendments. We currently have before us in the Telecommunications (Security) Bill the right place to discuss those matters as we go forward, and the Government have also seen the light of day on the use of Huawei.
I therefore thank the Minister for her openness throughout the year in having given us valuable time and discussing where we might go with our amendment. I thank all noble Lords who participated in the Bill for having put up with us and a slightly otiose amendment. Nevertheless, we got there in the end.
My Lords, I thank the Minister for her comprehensive introduction. I agree with her emphasis on the importance of internet services and the need to eliminate digital exclusion. It is hard to think what the consequences would have been if we had suffered this pandemic just 10 years ago, when our broadband services were less extensive and much slower than now.
In the name of inclusivity, I welcome the first part of today’s business, Motion A. Throughout the course of the Bill, my noble friend Lord Fox, the noble Lords, Lord Stevenson of Balmacara and Lord Liddle, the noble Baroness, Lady McIntosh of Pickering, and others have been arguing for as inclusive a definition as possible of those who could be regarded as tenants, without straying into the territory of licensees or licences. It includes those with assured shorthold tenancies or assured tenancy agreements, as well as students living in short-term lets, where a tenant has, or tenants have, exclusive possession of the let property.
We have been concerned throughout to ensure that all tenancies such as renewable tenancies are included, even if they are not, strictly speaking, leases and that there should not be any grey areas that need to be interpreted by the courts. I am pleased that the Government have now produced an even more inclusive definition than the one that I argued for on Report. My sincere thanks go to the Minister and the Bill team for their care and consideration on what we have always regarded as an important issue.
However, I do not welcome Motion B. The original purpose of the amendment in the name of the noble Lord, Lord Stevenson, which was strongly supported on these Benches—I remind the noble Baroness, Lady Falkner, that it was introduced not at ping-pong but on Report—was to ensure that the code is fit for the purpose of delivering the Government’s manifesto commitment of broadband capable of 1 gigabit per second to every home by 2025. The need for this has become even more important, particularly since the Covid-19 lockdown has demonstrated our increasing dependence on good broadband connectivity for remote working, education and many other aspects of life, as the Minister mentioned.
Sadly, it is clear that the Government are backtracking in their ambitions—the 2025 1 gigabit per second target has been watered down and the budget for rollout expenditure slashed by two-thirds. Even so, it is clear that the Electronic Communications Code needs regular review to ensure that the Government’s objective, however watered down, is met and that operators have all the rights under the code that they need.
My noble friend Lord Fox rightly commented on a universal service obligation of a miserable 10 megabits per second and I completely agree with him. However, looking to the future, I am glad that during the course of the Bill we have started a genuine debate around whether we can describe broadband as a utility and what the appropriate rights of entry are.
I am also grateful to the noble Baroness for answering what the noble Lord, Lord Stevenson, described as a blizzard of questions on telecoms supply chain diversification in her extremely informative letter last month. Some of the work being carried out on open RAN, mentioned by my noble friend Lord Fox, is ground- breaking for the interoperability and competitiveness of our 5G networks. It is good to see that international collaboration is regarded as essential and is ongoing.
However, at the end of the day I am left with a sense of bafflement. This has been a ridiculously modest Bill, given the challenges of the broadband and 5G rollout ahead. Of course, as the Minister has mentioned, we now have Access to Land: Consultation on Changes to the Electronic Communications Code, which was issued in January. Notwithstanding this Bill, it seems clear the Government think that further changes are needed to clarify the position on rights to upgrade and share. Why not an earlier consultation? Why were these issues not considered before this piece of legislation? Are these long-standing questions or are they thoughts that have arisen during the course of the Bill? Is there another Bill on the way? We know from the representations made that the operators are calling for other changes that are not included in the Bill or the consultation.
I have another quote from Matt Warman. In his introduction to the consultation he says:
“The government is committed to ensuring that the Code is fit for purpose in order to deliver our digital connectivity targets.”
That is excellent. A review of the kind envisaged in our amendment would have been perfect for that purpose. The Bill has taken an inordinate time to get through, but it is clear that more reforms are in the pipeline. The question remains: could we have been spending our time better and enacting a more comprehensive Bill with a wider range of revisions, instead of this piecemeal approach?
My Lords, like others, I start by joining the Minister in thanking all our digital providers for the work that they have been doing during the pandemic, which, of course, will continue for some time to come. I hope that it will provide the basis for a learning experience about what it means to live in the digital economy that we all share hopes for.
As the Minister said when she introduced the Motions, this Bill is a modest one. However, when she says that it affects some 10 million people, that means that it has important implications. We never objected to the ideas behind the Bill and, indeed, wanted to help as much as we could to make sure that it became law as quickly as possible and allowed access to the digital economy that is so necessary in the modern world to people who otherwise would not have had it because of problems with their freeholder. We must accept that broadband is a utility.
I welcome the Government’s amendment. I think that the right word has been used, in that it “improves” the amendment originally moved by the noble Lord, Lord Clement-Jones, on Report, which we also supported, to try to make sense of the definitions in terms of who was to be affected, whether it was leaseholders, renters or whatever. The language is much better as a result and that is good.
Unfortunately, the removal of the amendment just discussed by the noble Lord, Lord Clement-Jones, seems to have a bit of a downside. I talked with the Minister before we got to this stage in proceedings and made it clear that we would not insist on our amendment being retained within the Bill. I think that we did that more in sadness than in a spirit of support, because it relates to important issues that have been raised in today’s debate.
The Minister was kind enough to praise our aspirations for the Bill, but she was also rather devastating in demolishing all the points that I thought that we had broadly agreed were important. She pointed out how inept our drafting was and how problematic it would have been had the amendment stayed within the Bill. Such are the joys of opposition. We are never going to achieve the skills of the draftsmen available to the Government. I wish that sometimes more credit would be given to the ideas that we have put forward, rather than worrying about their expression.
At the end of the day, I suppose that the consultation on the Electronic Communications Code announced by the Government in January does the trick on some of the issues underlying our amendment. However, as the noble Lords, Lord Clement-Jones and Lord Fox, said, it also exposes that fact that a large number of wider issues, often led by other departments in government, still have not been resolved. I urge the Government to push forward on the permitted development issues and on the street works, including the need for the antennae and cabinets that will be required if the 5G support for the 1 gigabit-enabled economy is ever to see the light of day.
I could delay the House with a further discussion of the need for much more ambitious targets, a better USO and more investment, but these have been covered and this Bill is not really the right place for them. I leave my comments with a question for the Minister: does she have in her mind a route map for how we are to achieve the 1 gigabit per second-enabled infrastructure? I am confident that, since this issue will not go away, we will be resuming discussion of it in the not-too-distant future.
Finally, I share the Minister’s concern that the telecoms operators, which we have praised already for the work that they have done during this pandemic, should continue to get the best tools and the best access so that they can continue to innovate and provide superfast quality broadband to as many people as possible. Unfortunately, I harbour a niggling concern, rather like the noble Lords, Lord Fox and Lord Clement-Jones, that one problem that will get in the way of this delivery is the scope and scale of the current Electronic Communications Code. As the noble Lord, Lord Clement- Jones, said, is not the real question how we are to get beyond that to think again about how a utility as important as the internet can be allowed to be installed without the current plethora of planning and other restrictions, and control of the streetscape and the environment in which it has to be inserted, being in the hands of other departments? It seems to suggest that more work is required, but that is for another day.
My Lords, I thank all noble Lords for their helpful contributions to the debate and I will respond to some of the questions that have been raised. I start by sharing the aspiration of the noble Lord, Lord Fox, that future Bills should move more smoothly. I shall try not to take too much personal responsibility for the pace of this Bill, but I know he will accept that the breadth of Bills can slow them down. There is a tension between wishing that there could have been more in this legislation and the speed of its progress.
Along with the noble Lord, Lord Clement-Jones, the noble Lord, Lord Fox, raised questions about our diversification strategy and its progress, particularly in relation to open RAN. I want to reassure all noble Lords that we have made early progress in our work to accelerate the development of open interface solutions by committing to work with NEC to launch the NeutrORAN test bed as part of the wider 5G test beds and trials programme that will showcase 5G open RAN technology. As noble Lords are aware, our strategy in this area is backed by an initial investment of £250 million to kick off this work. We are trying to take a balanced approach to this diversification, which will see measures introduced across three separate strands of activity; that is, by supporting incumbent suppliers such as Ericsson and Nokia, as well as attracting new suppliers into the UK market and, as I said, accelerating open interface solutions and deployment.
The noble Lord, Lord Fox, asked why we are nervous about a review. I do not think we are nervous and I hope I have made it clear that we do not think that that kind of review is necessary given the level of scrutiny already given by Ofcom and Select Committees across both Houses.
The noble Baroness, Lady Falkner of Margravine, asked about the vital issue of network security. As she will know, the Telecommunications (Security) Bill being debated in the other place introduces a stronger security framework for all UK public telecom providers. It will ensure that providers design and manage their networks in a secure way. In response to her point about future-proofing the legislation, the Bill will introduce a new national security power to manage the risks posed by high-risk vendors in our telecom networks both now and into the future.
The noble Lord, Lord Clement-Jones, asked about the universal service obligation. We will keep the speed and quality parameters of the USO under review to make sure that it keeps pace with consumers’ evolving needs.
I must offer an apology to the noble Lord, Lord Stevenson of Balmacara, if I was critical of any of his drafting skills, which will certainly be vastly superior to anything I could manage. I am genuine in saying that the Government are very grateful to him for raising important issues, including how we should tackle the matters that cut across different government departments and their different legislative responsibilities, which are so crucial.
The noble Lord also challenged the Government’s ambition in this area. As he will know, by 2025, the Government are targeting a minimum of 85% of gigabit-capable coverage, but we will seek to accelerate rollout further to get as close to 100% as possible. That target is based on extensive engagement with the industry over the past year as well as the current industry rates of deployment and how those may be increased. We have also made a major investment of £5 billion in the UK gigabit programme, which has galvanised commercial build in the market.
In closing, I was reminded while listening to noble Lords of my low point on this Bill. It was when my own internet connection failed while we were all working remotely. I think it happened during the Committee stage and I was unable to use my video camera, so I have had a personal interest in this. I close by thanking again the Bill team, who have been enormously knowledgeable, professional and helpful in supporting me and, I know, a number of noble Lords through the passage of the Bill. I thank all noble Lords for their scrutiny, their challenge and the quality of the debate and I commend the Motions to the House.
Motions A and B agreed.
House adjourned at 4.36 pm.