Clause 57 - Meaning of “occupier” in relation to land occupied by an operator

Product Security and Telecommunications Infrastructure Bill – in a Public Bill Committee at 12:00 pm on 17 March 2022.

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Question proposed, That the clause stand part of the Bill.

Photo of Julia Lopez Julia Lopez Parliamentary Secretary (Cabinet Office), Minister of State

It is crucial that, where telecoms operators have apparatus installed on land, they can request new or additional code rights, allowing them to maintain, expand and improve their existing networks, improving service and connectivity, to the direct benefit of consumers. I hope we all wish to see that. At present, this is not always possible. There are some specific scenarios in which operators with apparatus already installed on land, such that they occupy the land, are unable to obtain new code rights or follow an existing statutory process to have an agreement that has run its course replaced by a new agreement, which I will refer to today as a renewal agreement.

For example, in some cases the parties might have an existing agreement that, for whatever reason, proceeds on a more informal basis and is not set out in writing, or otherwise does not meet the necessary criteria for it to be renewed under an existing statutory process. The operator is therefore still authorised under the existing agreement to keep their apparatus on the land, but under the current legislative framework cannot pursue a renewal agreement through an existing statutory process.

At the same time, the operator cannot seek a completely new code agreement because only an occupier of land can grant code rights. Some operators with apparatus installed on land could be, in legal terms, occupying that land. Where that is the case, clearly the operator cannot enter into a legal agreement with themselves. In theory, an operator could dismantle and remove their apparatus from the land so that it is no longer in occupation, and then negotiate new rights with the landowner, but that would mean service disruptions for consumers, as well as unnecessary costs and delays. We need to address that and ensure that operators with apparatus installed on land who do not currently have code rights for that apparatus can request them without having to take unnecessary and impractical steps, such as vacating the land.

A different scenario arises where an operator has an existing agreement to which the code applies, but needs to do something that falls outside the scope of that agreement. For example, the operator might need to upgrade their apparatus to improve capacity or deliver 5G services, but their rights under the existing agreement may not cover that. Under the code, there is no ability to apply to the court for modified terms to be imposed until the agreement has run its initially agreed course, or until the point at which the site provider could normally have sought to bring the agreement to an end. We think it right that terms, once agreed, be settled for the duration of an agreement.

However, the situation is different where an operator who already occupies the land needs a new code right to enable them to undertake additional activities, such as upgrading apparatus, as I mentioned. The length of agreements to which the code applies can be in the region of 10 years, or potentially much longer. It is therefore feasible that, with continued advances in technology, an operator may want to carry out activities that were not envisaged when they entered into the agreement. The restriction on their ability to seek new code rights for those activities prevents operators from taking advantage of the latest tech and improving digital services and coverage quickly to meet customer demand.

The policy intention behind clause 57 is to resolve the situations that I have outlined by giving operators who are in occupation of land an alternative party from whom they can obtain new and additional rights. Primarily, that will be any other person who for the time being exercises powers of management or control over the land. If no such person can be identified, the operator can seek code rights from every person who has an interest in the land that would be prejudicially affected by the exercise of the code right sought.

The clause deals with very complex and technical issues. Since the Bill was introduced, my Department has been testing the provisions to ensure that they meet the policy objectives and that they have no adverse impacts on other parts of the code, or on how the code operates in practice. Should we consider it appropriate to make further changes to the clause, in line with our policy intentions, we will table an appropriate amendment.

Photo of Kevin Brennan Kevin Brennan Labour, Cardiff West 12:15, 17 March 2022

The Minister says that the Government might revisit the clause, perhaps in the other place. If somebody who is operating equipment on the land is potentially deemed legally to be the occupier, under the provisions in the clause would the person who would then be asked to consult about further extending any arrangements be the landowner? Is that the assumption in the clause, in most instances?

Photo of Julia Lopez Julia Lopez Parliamentary Secretary (Cabinet Office), Minister of State

As I said, this is a very complex and technical area. I do not want to provide the hon. Member with an incorrect answer, because this is one of the issues on which we are still in discussions with industry to ensure that we get it right. I believe that is the intention, but I will have to get back to him.

Photo of Kevin Brennan Kevin Brennan Labour, Cardiff West

Some inspiration might come to the Minister during the course of the debate. It seems to me quite an important question. I thought that what she meant was that, in an instance where somebody is deemed to be the operator on the land, because they have the equipment there, they obviously cannot grant themselves an extension of permission, and so it would be sensible for there to be a way to go to the landowner in order to achieve that further agreement. If that is not the case, that is quite important, because who will they go to in that instance? She said that if the landowner or interested party could not be identified, it would be people with a principal interest. What sorts of people would that be? Would it be the local community, or neighbours of the land involved? Even if she cannot offer an explanation now, it is quite important that the Committee at least has a grasp of what is intended by the clause.

Photo of Julia Lopez Julia Lopez Parliamentary Secretary (Cabinet Office), Minister of State

This is tricky, because I wish I could provide greater clarity, but I cannot, which is obviously an unsatisfactory position to be in. In this case, I think the court would be approached to make a decision if the landowner was not in a position to grant those rights and they could not get a position out of the landowner. The intention, I think, would be for it to be decided at a legal level. I apologise that I cannot provide clarity.

Without the clause, there is a gap in the legislation that prevents operators who need code rights from being able to obtain them. This has potentially adverse consequences for consumers and businesses, with the risk of service disruptions and unnecessary delays in the delivery of improved capacity and enhanced services. As we all increasingly rely on digital services, it is important to address this situation. This is an area of active discussion, because we want to make sure we get it right. I believe it would be the case that, if the landowner were not in a position to offer the rights, the operator would go to the court to seek redress.

Photo of Kevin Brennan Kevin Brennan Labour, Cardiff West

I understand the difficulty the Minister faces, but it would be helpful if there was official support for her at times when technical questions are asked. It is important that the Committee gets a full explanation before agreeing to a clause. The sensible thing to do in this instance would be for the Government to revisit the clause—possibly on Report. It would certainly be of help if, by then, a clearer view as to the intention could be given to Members of the Committee and people interested in the Bill. I am sure there is a fairly straightforward answer to the question, so we should make note of the fact that it needs to be dealt with at some point.

Photo of Julia Lopez Julia Lopez Parliamentary Secretary (Cabinet Office), Minister of State

I acknowledge that this is legally a very complex area. It is something that we have not entirely settled on, and it is under active consideration. We will come back to the Committee if we believe we have not got the policy intention correct. I am sorry that I was unable to address the hon. Member’s point in greater detail, but I am reluctant to provide information that might not be correct.

Question put and agreed to.

Clause 57 accordingly ordered to stand part of the Bill.