‘(1) In the Telecommunications Act 1984 omit Schedule 2 (the telecommunications code).
(2) Before Schedule 4 to the Communications Act 2003 insert the Schedule 3A set out in Schedule (The electronic communications code) to this Act.
(3) Section 106 of the Communications Act 2003 (application of the electronic communications code) is amended as follows.
(4) In subsection (1) for “the code set out in Schedule 2 to the Telecommunications Act 1984 (c 12).” substitute “the code set out in Schedule 3A.”
(5) Omit subsection (2).
(6) In subsection (4)(b) for “conduits” substitute “infrastructure”
(7) In subsection (5)(c) for “conduit system” in each place substitute “system of infrastructure”.
(8) In subsection (6) for “16(3)” substitute “82(7)”.
(9) Omit subsection (7).
(10) Schedule (The electronic communications code: consequential amendments) has effect.
(11) The Secretary of State may by regulations make consequential provision in connection with any provision made by or under this section or Schedule (The electronic communications code) or (The electronic communications code: consequential amendments).
(12) Regulations under subsection (11) may amend, repeal, revoke or otherwise modify the application of any enactment (but, in the case of primary legislation, only if the primary legislation was passed or made before the end of the Session in which this Act is passed).
(13) The Secretary of State may by regulations amend the electronic communications code set out in Schedule 3A to the Communications Act 2003 for the purposes of ensuring that the provisions of the code are consistent with the law of Scotland or Northern Ireland.
(14) In this section—
(a) an enactment comprised in subordinate legislation within the meaning of the Interpretation Act 1978,
(b) an enactment comprised in, or in an instrument made under, a Measure or Act of the National Assembly for Wales,
(c) an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament, and
(d) an enactment comprised in, or in an instrument made under, Northern Ireland legislation;
“primary legislation” means—
(a) an Act of Parliament,
(b) a Measure or Act of the National Assembly for Wales,
(c) an Act of the Scottish Parliament, or
(d) Northern Ireland legislation.”—(Mr Hayes.)
I remind the Committee that with this we are considering:
Government new schedule 2—The electronic communications code.
Government new schedule 3—The electronic communications code: consequential amendments.
Government amendments 71 to 76.
I want to say a few words about this important new clause, which I strongly support. I was so moved by the comments of the hon. Member for Birmingham, Northfield on the drafting of what is before us that I felt I had to speak. We are extremely well represented by having such an articulate Minister as my right hon. Friend the Member for South Holland and The Deepings, who has shown not only that he is on top of his brief and understands the issues facing many of our constituents, but that he has been listening to Opposition Members in particular.
The bottom line is that there is a thorny issue of not-spots in all our constituencies, particularly in rural areas. In my constituency, which has more than 50 villages, that is a matter of considerable concern. If we are trying to encourage people and small businesses to do their business from home, and if we want to ensure that our villages are lively and vibrant, we need to ensure that the required technology and support is there through access to better mobile communications. That is how people communicate most nowadays.
Although, certainly in my area, many villages seem to have been dying over the past two decades or so, the opportunity for individuals to be at home and run their businesses makes the implementation of the new clause extremely important, at least for my constituents. It is important not only for businesses in rural areas but for individuals, particularly the elderly. The elderly—I think of my mother, who is 85 and very technologically savvy —want to be able to have access to mobile communications, which are important. I receive text messages often. A lot of elderly people rely on mobile phones as opposed to fixed-line communications.
I support new clause 19, but I am an active listener, and the point that some Opposition Members have made about greater granularity and greater understanding of where not-spots are is important. I encourage the Minister to ensure that not only Members but the public at large have a better understanding of where not-spots are with much more granularity than seems to be available at the moment, and to be clear about the Government’s implementation strategy to ensure that our constituents know when the problem of not-spots will be dealt with. I do not see the drafting flaws that the hon. Member for Birmingham, Northfield talked about. I certainly believe that the Minister has been actively listening, and I hope that he will address some of the issues that members of the Committee have raised.
I rise briefly to reinforce the powerful and wholly justified case made by my hon. Friend the Member for Birmingham, Northfield, and supported by my hon. Friend the Member for Ellesmere Port and Neston, for the withdrawal of the new clause, although not because we oppose it, because we do not. In principle, we want to see a modernisation of the code, but the way in which the process has been handled has not allowed for proper consideration or for all the issues that need to be considered to be teased out.
I will speak about one small provision and highlight some of the unanswered questions and issues that we simply do not have time to address given how these measures have been presented right at the end of the Bill’s passage through this House. That is the problem, not the modernisation of the code, which is broadly supported. I agree with the hon. Member for Braintree about the importance of that, but I hope he accepts that there are a lot of unanswered questions. The public need satisfaction, and they need to know that we are doing our job properly in scrutinising an important piece of legislation that will have a considerable impact on the lives of our fellow citizens for many years to come.
I intend to focus on part 13 of the code, which the Minister passed over rapidly. I do not hold that against him, for two reasons: this is a large code including a great deal of other material, and on the surface not much change is being introduced in part 13 compared with the original code of 1984. Part 13 deals with the lopping of trees. The provision in the 1984 code was to allow the lopping of trees that overhung streets and that therefore interfered, or might in future interfere, with electronic communications. That is repeated in part 13 of the new code, but with one addition: to “tree” is added “or other vegetation”.
The obvious question is, why has there been a need to add “or other vegetation”? Presumably the phrase refers to shrubs. Has there been a problem with shrubs or vegetation other than trees obstructing telecommunications and causing a problem? Why has the change been introduced? We have not had an explanation, although I do not hold that against the Minister, because we are not discussing his brief. He has been given the responsibility in Committee, but it is a highly complex and technical subject and I cannot expect him to be aware of any representations that have been made over the past 30 years about shrubs obstructing telecommunications operations and, consequently, the need to change the language. As a Committee scrutinising the Bill, however, we should be asking the questions. Why has the change been introduced? What is the evidence? What has been the problem? Why is there a need to extend the definition that previously applied only to trees?
The next question I have to ask is about the omissions. It occurs to me that it is surprising that there is simply a power for operators to serve an order by notice on the occupier of the land and require a tree to be lopped. That is a powerful power, so what are the safeguards to cover difficult circumstances? What if the tree is covered by a tree preservation order? Clearly, there is a potential conflict. How is that to be resolved? What if the shrub—we are now talking about shrubs and not only trees—has a particular value? I can think of many trees and shrubs in various areas that have landscape or horticultural value. It might cause concern were such a tree or shrub to be arbitrarily lopped for no good reason. What are the safeguards in such cases? What if it is in a site of special scientific interest? Do any special provisions apply in such cases?
Furthermore, why does Natural England have no role? I imagine that were there questions about whether trees of a special quality or value should be lopped, Natural England would be the right body to be consulted. That is not, however, referred to in any way in these provisions.
I declare a minor interest, because I have planted rather a lot of trees in my time. My right hon. Friend adds to the questions that I posed about Departments that ought to have been engaged in consultation. For example, I wonder whether the Department for Environment, Food and Rural Affairs was consulted.
My hon. Friend is prescient, because I will come on to make that very point.
The points that I have raised illustrate the problem of something being rushed through without adequate consultation, leaving questions unanswered. I do not expect the Minister to answer the questions that I have posed, because it would be unreasonable to expect him to be able to do so. He may be able to have a go, but if I were to ask him how many trees have been lopped in each of the past 30 years under the existing powers, I think it would probably be quite difficult for him and his officials to provide the information to the Committee immediately. That only reinforces the point that this subject ought to have been open to wider consultation and discussion so that the issues could have been teased out and answered in time for proper parliamentary scrutiny.
I do not object to the change; I am happy to see the new code being introduced. I can see its purpose and I want to see it in force, but I want it to be done properly. I do not want to go ahead with questions unanswered and members of the public criticising Parliament for not doing its job properly because it has not had the opportunity for proper scrutiny. I hope that the Minister will respond to the entirely justified call from my hon. Friend the Member for Birmingham, Northfield for the new clause to be withdrawn to allow a proper period of consultation involving all the relevant parties. As my hon. Friend the Member for Ellesmere Port and Neston pointed out, other Departments should be involved.
If that happens, when the new, revised code comes into force, we will have a clear conscience and be able to say that we scrutinised it properly and asked all the relevant questions, that we are satisfied that it really will bring the benefits that the Government claim it will, and that there are no unexpected or as yet uncovered downsides with which we have not an opportunity to deal. That is why the new clause should be withdrawn and the code made the subject of further consultation.
I welcome you back to the Chair for our final sitting, Sir Roger. We shall part in some sorrow after the deliberations that we have conducted in such a considered and measured way. So it is with this part of the Bill.
I accept at the outset that it would have been better had these measures been introduced earlier and there had been more time to consider them. I do not for a moment want to give the Committee the impression that I do not understand the weight of that argument. Indeed, if I was sitting on the Opposition Front Bench, as I have many times, I would make exactly that case to a Labour Government.
None the less, when I hear from the right hon. Member for Greenwich and Woolwich and the hon. Members for Birmingham, Northfield and for Ellesmere Port and Neston, combined, they remind me of St Augustine, of whom, Members will not be surprised to learn, I am an admirer. Of course, it was St Augustine who said: “Let me be chaste—but not yet.” In essence, that is the message that we have heard from the Labour party: let us take the opportunity to reform the code, but not here; let us serve the needs of our constituents, but not in a hurry. That is the message that has been broadcast by Opposition Members.
Mr Raynsford rose—
I am grateful to the Minister for giving way. I know that he has a great love of my constituency, so I simply put it to him that he will know that, as an eminent and serious theologian, St Augustine would not have subscribed to a doctrine unless he was aware of all its implications, and he would have wanted to be sure that there were no unanswered questions.
That is certainly true of that eminent gentleman, but on this subject and in this context, I draw also on another hero of mine: W. B. Yeats. There is a proper debate to be had—we may have time for it this afternoon—about who was the greatest poet of the 20th century. I would make a strong case for T. S. Eliot, but I think T. S. Eliot would cite Yeats as perhaps an even greater poet. Did Yeats not say: “Do not wait to strike until the iron is hot; but make it hot by striking”?
What the Government are doing with these proposals is indeed making the iron hot by striking. We are taking action, and not, by the way, precipitous action. The argument that the Labour party has made would have more weight and force if the proposals were not largely based on the Law Commission’s recommendations, which were themselves subject to a detailed consultation and have been considered and debated thoroughly since.
As I said, I am not a man who does not appreciate that there are strong arguments from Members in all parts of the House, and indeed in this Committee, and I think it would have been better if these matters had been brought to a head earlier. I pay tribute to the current Secretary of State for Culture, Media and Sport, because he has struck to make the iron hot; he has seized the initiative and been determined to use the first appropriate legislative vehicle to make the widening of access to mobile phones and improvements to coverage a priority.
I acknowledge that a longer view would have been helpful, but as I say, that would have had more force were it not for the fact that we have largely adopted—the hon. Gentleman knows that the are exceptions to this rule—the Law Commission’s report, which has been in the public domain for a long time. If Members are going to argue that delay has been unhelpful, they cannot simultaneously argue that there was not a long time to talk about the Law Commission’s recommendations. There has been a very long time to think about them and consider them, which I am sure the hon. Gentleman will have done. I would be surprised if he and other Opposition Members had not pored over those recommendations endlessly, night after night.
Strangely enough, the right hon. Gentleman is right. That is why I wrote the article that I referred to before Christmas. I have been working on this issue for some years. However, he is failing to answer the question why there has been this unholy delay on the part of DCMS. Not only has it failed to come forward with the code, but it has failed to update, for nearly three years, the database based on which people will understand where and why masts should be erected.
I can tell that I have inspired the hon. Gentleman to poetry because that was a couplet. On the second part of the couplet, I have committed to do all I can to update that database—he is right about that—just as I committed to try to break down the maps that show coverage into an order that allows individual Members of Parliament to consider the circumstances in their constituencies.
On the issue of delay, it is not for me to answer for the previous regime in the DCMS. The current Secretary of State there has clearly made this issue a priority. The hon. Gentleman asked in an earlier intervention whether there had been discussions with DEFRA and others. Yes, there have been extensive discussions. Have there been discussions with the Ministry of Transport? I am the Ministry of Transport, to all intents and purposes, so of course there have been discussions with the Ministry of Transport.
So when did the right hon. Gentleman know about the code? Why has he not made it available to the Mobile Operators Association?
I am not going to deceive the Committee. The hon. Member for Birmingham, Northfield has already it made clear that when we decided to add this provision to the Bill late last year, I speedily made contact with him to ensure that he was notified. I committed to do all I could to ensure that the Committee and the House more widely had access to officials to make any inquiries that they chose to. I repeat—I do not want to be repetitive, but repetition is not without its virtues—that, given that this is largely based on the Law Commission report, much of what is required to reform the code has been debated over some time, so there will be a broad consensus on it.
Mr Raynsford rose—
I shall come to trees in a second. Much—not all, but much—of the change that the Law Commission recommended was about matters that had been of concern for some time. There were therefore not many surprises in its recommendations in that sense, and there are not many surprises in what is before us today. This was not uncharted water. Indeed, if I were a more partisan politician than I am, or a more mischievous man by instinct or habit, I could say that not a lot was done between the years of 1997 and 2010, when many of the doubts and concerns about the prevailing code—a code that, of course, had its genesis in 1984—had already been expressed by mobile operators and others. As my knowledge of recent history is not as great as my familiarity with St Augustine, I cannot recall who was in government between 1997 and 2010.
I did wonder. Now that my hon. Friend has reminded me, I do recall which party was in power over that period. Now that he brings it fresh to the front of my mind, I recall how little was said and done then.
Mr Raynsford rose—
Mr Newmark rose—
As the Minister will know, I have been looking at the Telecommunications Act 1984 to see the textual differences. From studying that, I am reminded that amendments were made in the Communications Act 2003. His allegation of inactivity on the part of the previous Government therefore seems uncharacteristically inaccurate.
I was aware of the 2003 Act. I have both Acts at my disposal, because I always like to have to hand legislation affected by the proposed legislation before us. The right hon. Gentleman will know, having studied that set of amendments and the original code, that it is largely the original code that defines practice on the ground now. Those amendments were not comprehensive, as the provisions in the Bill and the new schedule embodying the code are. They were of a much less fundamental nature, and that is why the Law Commission recommended what it did. Had it been satisfied with the status quo resulting from the later changes to the ’84 provisions, its recommendations would have been nowhere near as comprehensive.
I do not seek to make any improper suggestions about the right hon. Gentleman’s comments, but if they are accurate, why on earth does he think that reputable businesses among the mobile operators—companies such as the Wireless Infrastructure Group and Arqiva—are expressing concerns? Surely the simple fact is that the redraft has got it wrong because it failed to engage them.
“We hope that the Government will see the Law Commission’s work through and introduce legislation before the 2015 Election.”
The right hon. and learned Member for Camberwell and Peckham (Ms Harman), a senior member of the Labour party, said:
“The Law Commission found the Electronic Communications Code to be complex and out-dated and took the view that it was making the rollout of electronic communications more difficult. As long ago as February 2013, it recommended amendments to the Code strike a better balance between code operators and landowners. This needs to be acted on.”
The Law Commission report stated:
“It was clear to us from the beginning of the project that the 2003 code is in need of reform. It is complex and extremely difficult to understand…It is also difficult to discern the relationship of the 2003 code with other elements of the law.”
The law firm Osborne Clarke, which covers some areas of digital business, stated:
“The Law Commission has recently reviewed the Code and has made some significant recommendations for reform which should provide greater clarity and strike a fairer balance between Landowners/Developers and Operators.”
That is the very point that I have made.
Andrew Miller rose—
Mr Newmark rose—
Before I give way to my hon. Friend and then the hon. Gentleman, let me deal again with the question of balance. It has been suggested that landowners and mobile operators are not happy. Frankly, were either of them entirely happy, I rather suspect that we would not have got the balance right. I am of the view that the provision strikes a fair deal between landowners and mobile operators. It does not do everything that landowners want, and it certainly does not do everything that mobile operators want, but it does enough to ensure our core objective of improving mobile coverage.
I do not want to be unnecessarily hostile, but the Opposition must be careful, because if they send a signal out from this Committee that they are in favour of code reform and wider mobile coverage and they do not take the opportunity to back it, some people—not me, I hasten to add, or other Government Members—will misinterpret that as meaning that they do not care about wider mobile coverage. I know that that is not true, and it would be a misinterpretation, but it would become widespread.
I want to reiterate the Minister’s history lesson. I have been listening carefully to the right hon. Member for Greenwich and Woolwich, who has said that the Opposition support the spirit of the legislation and the reforms, but they need more time. If my memory of history serves me correctly, I seem to remember that during the years when the Opposition were in power, they did not spend a huge amount of time scrutinising things. With their enormous majority, they tended to ram-roll things through Parliament. I believe that the Government have got the balance right in the Bill.
All I would say to my hon. Friend is that one of the most dispiriting aspects of democratic politics is the perceived need to demonise one’s opponents. I think that that is an unpleasant and unhappy thing, because in fact all Governments do some good things and some bad things. All Governments have some talented Ministers and some who are less so. All Governments have some successes and some failures. Although that may be regarded as a generalisation, as Hegel said:
“An idea is always a generalisation, and generalisation is a property of thinking. To generalise means to think.”
In general terms, I believe that most hon. Members would take that view.
All the Minister’s quotations predated the publication of the new clause. All the code operators that have engaged with members of the Committee have expressed concerns, and I have restated those concerns. In an article that I wrote before Christmas, I expressed the need for change. It is disingenuous for the Minister to suggest that the Opposition oppose reform. We do not, but the new clause will slow down reform. Believe me, Minister; I have been working on this for 20-odd years.
I would certainly want to pay tribute to the hon. Gentleman’s diligence and expertise in all such matters—he takes a keen interest in these affairs—but, like him, I am guided by what the industry says. Ericsson says:
“By the time we install small cells there will be a new set of issues that may not be considered and should be. Operators cannot plan service when open to rent uncertainty especially not charges that increase based on usage.”
“Sky considers that a number of steps may further encourage…investment, including: ensuring that the Electronic Communications Code…is fit for purpose and allows operators to deploy new infrastructure quickly and affordably.”
There is a clamour for change and reform. Of course it is right that we ensure that our measures are as watertight as legislation ever can be. That is one of the endeavours of contributors to this short debate, and I respect that.
Anyone listening to this debate or reading these proceedings will not have the misunderstanding that the Minister suggests. Opposition Members have made it very clear that we are in favour of reform. We want to get it right, but given what he says about the importance of enacting the reform, and given that the delay appears to be linked to the pattern of negotiations on the deal, is he not concerned that the mobile phone operators have said that
If that is the case, the reason he says that this must be enacted is actually the reason why it should not be enacted.
I think the hon. Gentleman, like the hon. Member for Rhondda (Chris Bryant), has become preoccupied and very excited. The hon. Member for Rhondda spends a great deal of his time in a state of excitement, which I do not necessarily criticise—I am a passionate man myself—but there is a difference between the passionate pursuit of virtue and a kind of heated excitement. The righteous zeal that I hope I personify stands in stark contrast to his rather excitable claim that, somehow, this code reform is intrinsic to the negotiations to which the hon. Member for Birmingham, Northfield referred. The truth is that code reform would have happened anyway, because code reform was absolutely necessary. It was called for by the industry, agreed by the Opposition and recommended by the Law Commission. My goodness, this was not plucked from the ether; this was a change whose time had come.
The right hon. Gentleman made the honest point, with which I would not disagree, that all Governments make mistakes. I want to press him to pursue the path he is traversing a little further by suggesting what mistakes he thinks this Government have made and how that reflects on the Bill. I would appreciate his honesty.
My second point, which is not even tangential to the first, has been raised by other members of the Committee. I have been elucidated by his fascinating quotes, and he has enlightened the Committee with some observational, referential points on our literary history, but he has failed to draw on the works of the bard in this passage of the Committee. In answering, or at some other point, will he reflect on our greatest writer?
Order. Let me inject a philistine note into this debate. I was denied the ecstasy of listening to the first hour and 40 minutes of the debate this morning, but I have enjoyed the past 40 minutes of it. I will gently point out, however, that although I have no desire or ability to curtail the debate, we are due to finish at five o’clock this evening and I notice that there are three sets of Opposition amendments still to be debated. A degree of expedition might be in order.
I was thinking just the same, Sir Roger. I am always guided by your greater authority, experience and expertise. I am going to deal with 10 points in five minutes. They are the 10 points raised in the debate that require further comment.
I will first deal with trees. The right hon. Member for Greenwich and Woolwich mentioned that the new proposals changed the ability of operators to deal with overhanging trees on roads in England and Wales and the streets in Scotland that might impede their progress in improving infrastructure or adding to the effectiveness of communication. He is right about that. Existing legislation does allow exceptions, even in the kind of areas that he described. Those exceptions will apply in respect of operators. To be honest, I am not absolutely happy about that. I have got the advice from officials, but I am not content about that. I care a lot about trees; after all, we plant trees for those born later. I want to reflect on the right hon. Gentleman’s remarks and take another look to see if we are right—I can tell the Committee that that will come as something of a surprise to the officials!
Let me go through the other nine point. I say this not in an unkindly way to the shadow Minister, but he made a fundamental error. There is indeed a 30-page impact assessment on this specific measure which has been in the public domain. I am more than happy to send another copy of that to all Committee members in the general note that I will be sending.
Let me turn to my third point—someone will need to keep check that I cover 10. The hon. Member for Ellesmere Port and Neston asked what powers the Government had to force coverage in uneconomic areas. The Government have no legal powers; we have, however, made a huge step forward in improving coverage. He will know this very well, but £150 million has been invested in the mobile infrastructure projects specifically designed to get mobile coverage to places lacking it at the moment. Broadband Delivery UK rural broadband infrastructure programmes are to deliver superfast broadband to those areas, too.
The fourth point is about the coverage map, which I have dealt with. As I said, Ofcom is responsible for that. We rely on the operators to provide detail, although we do not always get it. I do not think that is good enough. I think we want more and we want it broken down in the way I have described.
I think I have already dealt with the issue of wholesale infrastructure providers. They are defined for the purposes of the new code as operators. That is in line with the Law Commission recommendations. For further assurance, the revised code will allow all existing arrangements to continue. There is no change to those arrangements.
On clarity and poor drafting, officials from the Department for Culture, Media and Sport have considered the concerns raised by stakeholders and are satisfied that the new code is correctly drafted and are engaging with stakeholders to explain the effects of the revised code. Some of those concerns arise from not having enough time to explain, a point that has been made. Some of the queries about drafting may be based on misunderstandings about drafting. I do not think that is exclusively true; as I said, let us get this right. The meeting we are having next week and the further note that I produce will help to address some of those specific matters.
On dispute resolution—I am probably on item six now —there is a clear power to move cases to the jurisdiction of the upper tribunal. We have already written to the Mobile Operators Association and the Mobile Network Operator on that concern.
As for the apparent £1 billion black hole, Ofcom is simply considering whether the commitment by mobile operators to reach 90% coverage affects the process for assessing licence fees. The code makes no change and has no connection with licence fees in legislative terms; we should not give the impression, albeit inadvertently, that it does. That is a matter that sits outside of the consideration of this Committee, as you will understand, Sir Roger, and it would not be appropriate for me to comment on it further.
As for engagement with other Departments, DCMS has indeed been engaged with a range of Departments and other agencies on the code—that was probably the eighth point. On the issue of state aid, we are confident that the agreement reached with mobile operators has no state aid risk. That was the ninth point.
The final point I want to make on this matter is that the purpose of the code is primarily to regulate consensual relationships. The Government do not intend to interfere with existing arrangements. That point was made by a number of hon. Members, who felt that we might arrive in a less desirable place than the one we find ourselves in now. Where existing arrangements have been negotiated carefully and properly under the previous code, they will of course be honoured. The Government’s view is that it would be inappropriate to interfere with the rights of two or more parties to a contract in those terms.
This is to move forward, not to stand still or move backwards. So often through our history, it is the party on this side of the Committee—the party of Wilberforce, Shaftesbury and Disraeli—that has taken the nation forward, usually in the face of opposition from Liberals and others. I always say to my hon. Friend the Member for Bristol West that, until about the first couple of decades of the 20th century, there were still Liberals who wanted to put boys up chimneys. I am sure that is not true now. In that spirit, I urge Opposition Members to recognise that this is the future. This is about progress and expanding mobile coverage to people who do not have it. This is, as I said at the outset, about the national interest and the common good. The Opposition would do no favours to either of those, or to themselves, by burying their head in the sand.