New clause 1—Report on resources to deal with proceedings arising under Part 4A of the code—
“The Secretary of State must prepare and publish a report on the adequacy of the resources available to First-tier Tribunal to deal with proceedings arising under Part 4A of the electronic communications code and must lay a copy of the report before Parliament within six months of this Act receiving Royal Assent.”
At its heart, the Bill is about making it faster and cheaper for digital infrastructure providers to seek rights to install their services in leasehold properties. The Bill is also concerned with not permitting consistently unresponsive landlords to stand in the way of receiving the connectivity that households need. The Government have tabled three amendments that respond to helpful suggestions, first made by the senior judiciary of both the first-tier and upper tribunals. Our amendments also respond to the welcome interventions made by hon. Members on Second Reading—I am glad to see some of those Members here today.
Without these amendments, applications would commence in the upper tribunal in England and Wales and the Lands Tribunal for Scotland, and would be dealt with in the county court in Northern Ireland. Commencing cases in the upper tribunal is a reasonable route, because it aligns the new process with the electronic communications code. The process still works in principle, but we should also ensure that it works as well as possible in the real world to deliver the faster, cheaper outcomes that we seek. We continue to be mindful that, with up to an estimated 2,650 cases per year in England and Wales, we need to hear cases at the most appropriate level.
Presently, the upper tribunal hears cases and makes determinations in respect of disputes concerning the interpretation. As such, the Government need to continue to work with that tribunal and its equivalents elsewhere. The need to ensure that the upper tribunal has the capacity to deal with the part 4A applications was raised on Second Reading. The matter has also been the subject of discussion between my officials and their counterparts at the Ministry of Justice, as well as senior members of the judiciary from the relevant chambers of the first-tier and upper tribunals.
The number of part 4A cases is estimated to be significant. The upper tribunal, with just two judges, would not have the bandwidth to deal with that volume of cases, regardless of the fact that the applications are expected to be relatively straightforward. While the process as drafted continues to work in principle, therefore, in practice we agree with the representations that we have heard that placing an additional burden on the upper tribunal would not necessarily provide us with the resources that we need. We are grateful to senior members of the judiciary from the first-tier and upper tribunals with whom my officials met.
In the light of those considerations, the amendments provide for applications for part 4A orders to commence in the first-tier tribunal in England and Wales and the sheriff court in Scotland. I hope that Committee members agree with that important change. In comparison with the small number of judges that I mentioned, 15 salaried judges and an additional 125 fee-paid judges sit in five courts across England, and 142 sheriffs preside over 39 courts in Scotland, so the change significantly increases the resources available and addresses some of the concerns expressed, sensibly, by hon. Members from both sides of the House on Second Reading. I am glad that we have found a sensible way forward that increases the resources available. It is a sensible and pragmatic move that has a significant effect but does not alter the principle of the Bill.
New clause 1 proposes that a report be made to make it clear that we have the necessary resources. As I said, we are confident that applications for part 4A orders will, in due course, be heard on the papers—without the need for an oral hearing—and our intention is for the process to be as low in burden as possible. Of course, we will monitor the resourcing of the first-tier tribunal to ensure that it has the capacity to dispense with those cases. Ultimately, that information can be obtained in a number of ways, such as by tabling parliamentary questions or through the fact that the proceedings are public.
Again, we sympathise with the intentions of the hon. Member for Newcastle upon Tyne Central, but it is clear from the amendments tabled in my name that we are already addressing the substance of what she asks. Ultimately, the information that she seeks is already widely available in equivalent cases and will continue to be in future, so introducing an additional administrative burden would neither provide more information nor be a sensible use of resources. I hope that she will withdraw the new clause in that spirit.
It is a pleasure to respond positively, and not just in spirit but in practice, to the Minister’s amendments. They respond to concerns that we raised on Second Reading and those raised by others about increasing resources. The number of judges available to consider those requests and cases leaves much to be desired. Hopefully the Government’s amendments will make the limited scope of the Bill more effective, so we are happy to accept them.
New clause 1 responds to that by acknowledging that our judiciary is under severe strain at every stage. The new clause is designed with accountability and transparency in mind, so that we can see the impact of the new legislation on the resources available. The legislation sets out new legal functions. As with all good legislation, we must ensure that the new mechanisms are robust and well-resourced to ensure that the legislation does what it is meant to do, and does not fail when it makes contact with reality.
The new clause would require a report on resources to deal with proceedings arising under part 4A of the code be prepared and published within six months of the Act receiving Royal Assent. It aims to ensure that we see the impact on our judiciary. Although the information may be available, I am sure that the Minister is aware that nothing concentrates minds as much as laying a report before Parliament for scrutiny by right hon. and hon. Members. That gives an opportunity to see how the legislation works in practice. I am sure the Minister is proud of the legislation and the impact it will have, so he must welcome the opportunity to speak to that in the House.
We do not have an impact assessment for this legislation. It is a short Bill, but that does not mean that its impact may not be important. When I spoke to operators, they estimated that it might cost around £30,000 to take a request through the tribunal. That is their estimate—I have not seen any Government figures to confirm whether they consider that to be high or low, but that would have been a welcome part of an impact assessment. The sum of £30,000 for a tribunal to access an apartment block with 10 apartments means an additional cost to the operator of £3,000 per customer. That has an impact on the business case for that investment in the first place.
I am not seeking to incur the Minister’s displeasure by bringing in wider issues on leaseholding, but when landlords may be taken to court for any matter, they potentially charge their fees back to their leaseholders. Perhaps we should make sure that there is some protection.
My hon. Friend makes an excellent point. Without raising all the concerns surrounding leasehold, it is well known that freeholders may charge the leaseholders for the costs they incur when seeking legal judgments. In addition to the £30,000 that the operator would put on to the cost of the service deployment, therefore, the leaseholders and ultimately the tenants may also find themselves facing the costs incurred by the freeholder going to tribunal.
The Minister has said that he does not feel that the report is necessary, given that the information is already there, but I hope he will acknowledge that the impact of the cost of going to tribunal—something that the report could also reflect—is important. In his response, I hope that the Minister will address that issue, and that he will be convinced to accept that publishing a report will give him the opportunity to show that the legislation is working well and not causing tenants to incur the kinds of costs that we have just discussed.
I take the hint, Mr Davies. I will briefly address a couple of issues raised by the hon. Lady. The cost of an application by an operator will be determined by the court, but we anticipate that the application fee will be under £500. She might have been including the cost of investment, which by definition is an investment that the operator is seeking to make by applying through the code.
To clarify, I am not including the cost of investment. From talking to operators, on top of the cost of applying they will have lawyers’ fees and internal costs. Those are the costs that I have been told about—not the cost of the infrastructure, but the cost of going to tribunal for an organisation, as part of its daily operating costs.
None the less, the legislation cuts a tribunal process from several tens of thousands of pounds to a £500 fee, which is indisputably a significant reduction.
The hon. Lady talked about focusing the minds of Ministers. I would say gently that parliamentary questions, oral questions and indeed Westminster Hall debates also focus minds. I look forward to celebrating the success of the Bill through that means, rather than through the proposal set out in the new clause.
Amendment made: 3, in the schedule, page 9, line 22, leave out paragraphs 4 and 5 and insert—
“4 The Electronic Communications Code (Jurisdiction) Regulations 2017 are amended as follows.
4A In regulation 2(1) (interpretation), after the definition of “the code” insert—
‘“Part 4A proceedings” means proceedings under Part 4A of the code;’.
4B (1) Regulation 3 (conferral of jurisdiction on tribunals) is amended as follows.
(2) The existing text becomes paragraph (1).
(3) In that paragraph—
(a) in the words before sub-paragraph (a), after “Subject to” insert “paragraph (2) and”;
(b) for sub-paragraphs (a) and (b) (including the final “and”) substitute—
“(aa) in relation to England and Wales, the First-tier Tribunal and the Upper Tribunal, and”;
(c) omit the words after sub-paragraph (c).
(4) After that paragraph insert—
“(2) Functions are exercisable by the First-tier Tribunal under paragraph (1)(aa) only—
(a) in connection with relevant proceedings in relation to England that have been transferred to the First-tier Tribunal by the Upper Tribunal, and
(b) in connection with Part 4A proceedings (whether in relation to England or Wales).
(3) Any provision of the code which confers a function on the court is, to the extent that the function is exercisable by a tribunal under this regulation, to be read as if the reference to the court included reference to that tribunal.”
4C (1) Regulation 4 (jurisdiction for commencement of proceedings) is amended as follows.
(2) In the heading, for “relevant” substitute “certain”.
(3) The existing text becomes paragraph (1).
(4) After that paragraph insert—
“(2) Part 4A proceedings must be commenced—
(a) in relation to England and Wales, in the First-tier Tribunal, or
(b) in relation to Scotland, in the sheriff court.”
5 The amendments made by paragraphs 4 to 4C do not limit the provision that may be made by regulations under paragraph 95 of the code.” —(Matt Warman.)
This amendment provides that proceedings under new Part 4A of the Code must be commenced in the First-tier Tribunal (in relation to England and Wales) or in the sheriff court (in relation to Scotland), instead of in the Upper Tribunal or the Lands Tribunal for Scotland respectively.
I shall be brief. The schedule sets out related amendments to other legislation which were introduced by clause 2. It contains the amendments to section 402 of, and schedule 3A to, the Communications Act 2003, also amending the electronic communications code. We have already discussed the consequences of the schedule so, with that, I commend it to the Committee.