Consideration of Bill, as amended in the Public Bill Committee
New Clause 1
Persons able to confer code rights on operators in exclusive occupation
“(1) The electronic communications code is amended as follows.
(2) In paragraph 9 (persons who may confer code rights)—
(a) the existing wording becomes sub-paragraph (1);
(b) after that sub-paragraph insert—
‘(2) But where land is occupied exclusively by an operator, a code right in respect of the land may be conferred on the operator by an agreement between the operator and—
(a) any person other than the operator who for the time being exercises powers of management or control over the land, or
(b) if there is no person within paragraph (a), any person other than the operator whose interest in the land would be prejudicially affected by the exercise of the code right.’
(3) In paragraph 10 (persons bound by code rights), in sub-paragraph (1), omit the words from ‘who’ to the end.”—(Julia Lopez.)
This new clause ensures that an operator in exclusive occupation of land may apply to a person mentioned in new paragraph 9(2)(a) or (b) of the electronic communications code for code rights in respect of the land.
With this it will be convenient to discuss the following:
Government new clause 2—Jurisdiction of First-tier Tribunal in relation to code proceedings in Wales.
Government amendments 1 to 3.
Amendment 14, in clause 59, page 42, line 11, after “agreement”, insert
“other than with a private landlord”.
This amendment, together with Amendments 15, 16 and 17, would apply a different regime under the Electronic Communications Code to private landlords, giving automatic upgrade rights for operators to properties owned by private landlords subject to the condition that the upgrading imposes no additional burden on the other party to the agreement.
Amendment 15, page 43, line 39, at end insert—
“(5B) Paragraph 17 of the new code (power for operator to upgrade or share apparatus) applies in relation to an operator who is a party to a subsisting agreement with a private landlord, but as if for sub-paragraphs (1) to (6) there were substituted—
‘(1) This paragraph applies where—
(a) an operator (“the main operator”) keeps electronic communications apparatus installed on, under or over land, and
(b) the main operator is a party to a subsisting agreement in relation to the electronic communications apparatus.
(2) If the conditions in sub-paragraphs (3), (4) and (6) are met, the main operator may—
(a) upgrade the electronic communications apparatus, or
(b) share the use of the electronic communications apparatus with another operator.
It is a pleasure to be making such good progress on this Bill, which seeks to deliver world-class connectivity to our constituents and to improve the security of the devices that we all rely on. I will start by explaining the need for the Government amendments tabled in the name of the Secretary of State, as those amendments are relatively straightforward. I will then move on to the more substantial matter of the remaining amendments, which I suspect right hon. and hon. Members are keener to discuss.
Beginning with new clause 1, as I explained on Second Reading, some operators with apparatus on land are currently unable to follow an existing statutory process to renew their agreement once it comes to an end. These operators also cannot use the code to get an entirely new agreement, because only the occupier of land can grant code rights. An operator already occupying land clearly cannot enter into an agreement with itself. Clause 57 was intended to ensure that operators could obtain code rights from another party in these circumstances, but subsequent engagement with stakeholders has made it clear that the clause as drafted would not cover all scenarios and that a more focused approach is required. Some operators would still find themselves effectively stuck once their agreements ended, with no means of renewing their agreement and no reasonable or practical means of obtaining a new code agreement. This can have negative consequences for consumers, and as such it is unacceptable. New clause 1 therefore replaces clause 57.
The new clause will ensure that all operators in exclusive occupation of land who do not have a statutory renewal option can still seek a code agreement. The person who can grant those code rights will usually be the owner of the land, although the new drafting makes provision for less straightforward situations. As well as resolving the problem of “stuck” operators, new clause 1 also assists operators with an existing, ongoing agreement. Where such operators need additional code rights that are not already provided by their current agreement, the new clause ensures they can seek such rights. Currently, some such operators are unable to do so because they are in occupation of the land.
Will my hon. Friend confirm that operators still need to get the agreement of the landowner or someone else who is empowered to grant that right, so that there is no muddle or confusion?
Yes. They will be allowed to take out a new agreements, but they still have to be under the existing regime.
To be clear, this will not let an operator unilaterally change, or ask the court to impose a change to, the terms or duration of their current agreement. It allows an additional code right to be conferred on the operator via a new, separate code agreement.
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(3) The first condition is that any changes as a result of the upgrading or sharing to the electronic communications apparatus to which the agreement relates have no adverse impact, or no more than a minimal adverse impact, on its appearance.
(4) The second condition is that the upgrading or sharing imposes no additional burden on the other party to the agreement.
(5) For the purposes of sub-paragraph (4) a burden includes anything that—
(a) has an adverse effect on the person’s enjoyment of the land, or
(b) causes loss, damage or expense to the person.
(6) The third condition is that, before the beginning of the period of 21 days ending with the day on which the main operator begins to upgrade the electronic communications apparatus or (as the case may be) share its use, the main operator attaches a notice, in a secure and durable manner, to a conspicuous object on the relevant land.
(7) A notice attached for the purposes of sub-paragraph (6) must—
(a) be attached in a position where it is reasonably legible,
(b) state that the main operator intends to upgrade the electronic communications apparatus or (as the case may be) share its use with another operator,
(c) state the date on which the main operator intends to begin to upgrade the electronic communications apparatus or (as the case may be) share its use with another operator,
(d) state, in a case where the main operator intends to share the use of the electronic communications apparatus with another operator, the name of the other operator, and
(e) give the name of the main operator and an address in the United Kingdom at which the main operator may be contacted about the upgrading or sharing.
(8) Any person giving a notice at that address in respect of that electronic communications apparatus is to be treated as having been given that address for the purposes of paragraph 91(2).
(9) Any agreement under Part 2 of this code is void to the extent that—
(a) it prevents or limits the upgrading or sharing, in a case where the conditions mentioned in sub-paragraphs (3), (4) and (6) are met, of any electronic communications apparatus to which the agreement relates that is installed on, over or under land, or
(b) it makes upgrading or sharing of such electronic communications apparatus subject to conditions to be met by the operator (including a condition requiring the payment of money).
(10) Nothing in this paragraph is to be read as conferring a right on the main operator to enter the land which the main operator would not otherwise have, when upgrading or sharing the use of the electronic communications apparatus.
(11) References in this paragraph to sharing electronic communications apparatus include carrying out works to the electronic communications apparatus to enable such sharing to take place.
(12) In this paragraph—
“the relevant land” means—
(a) in a case where the main operator has a right to enter the land, that land;
(b) in any other case, the land on which works will be carried out to enable the upgrading or sharing to take place or, where there is more than one set of works, the land on which each set of works will be carried out;
“subsisting agreement” has the meaning given by paragraph 1(4) of Schedule 2 to the Digital Economy Act 2017.’”
This amendment, together with Amendments 14, 16 and 17, would apply a different regime under the Electronic Communications Code to private landlords, giving automatic upgrade rights for operators to properties owned by private landlords subject to the condition that the upgrading imposes no additional burden on the other party to the agreement.
Amendment 16, in clause 60, page 44, line 4, after “land”, insert
“not owned by a private landlord”.
This amendment, together with Amendments 14, 15 and 17, would apply a different regime under the Electronic Communications Code to private landlords, giving automatic upgrade rights for operators to properties owned by private landlords subject to the condition that the upgrading imposes no additional burden on the other party to the agreement.
Amendment 17, page 45, line 14, at end insert—
“17B (1) This paragraph applies where—
(a) an operator (‘the main operator’) keeps electronic communications apparatus installed on, under or over land owned by a private landlord,
(b) the main operator is not a party to an agreement under Part 2 of this code in relation to the electronic communications apparatus, and
(c) the electronic communications apparatus was installed before 29 December 2003.
(2) If the conditions in sub-paragraphs (3), (4) and (6) are met, the main operator may—
(a) upgrade the electronic communications apparatus, or
(b) share the use of the electronic communications apparatus with another operator.
(3) The first condition is that any changes as a result of the upgrading or sharing to the electronic communications apparatus to which any existing agreement between the operator and the landlord relates have no adverse impact, or no more than a minimal adverse impact, on its appearance.
(4) The second condition is that the upgrading or sharing imposes no additional burden on the landlord.
(5) For the purposes of sub-paragraph (4) a burden includes anything that—
(a) has an adverse effect on the person’s enjoyment of the land, or
(b) causes loss, damage or expense to the person.
(6) The third condition is that, before the beginning of the period of 21 days ending with the day on which the main operator begins to upgrade the electronic communications apparatus or (as the case may be) share its use, the main operator attaches a notice, in a secure and durable manner, to a conspicuous object on the relevant land.
(7) A notice attached for the purposes of sub-paragraph (6) must—
(a) be attached in a position where it is reasonably legible,
(b) state that the main operator intends to upgrade the electronic communications apparatus or (as the case may be) share its use with another operator,
(c) state the date on which the main operator intends to begin to upgrade the electronic communications apparatus or (as the case may be) share its use with another operator,
(d) state, in a case where the main operator intends to share the use of the electronic communications apparatus with another operator, the name of the other operator, and
(e) give the name of the main operator and an address in the United Kingdom at which the main operator may be contacted about the upgrading or sharing.
(8) Any person giving a notice at that address in respect of that electronic communications apparatus is to be treated as having been given that address for the purposes of paragraph 91(2).
(9) Nothing in this paragraph is to be read as conferring a right on the main operator to enter the land which the main operator would not otherwise have, when upgrading or sharing the use of the electronic communications apparatus.
(10) References in this paragraph to sharing electronic communications apparatus include carrying out works to the electronic communications apparatus to enable such sharing to take place.
(11) In this paragraph ‘the relevant land’ means—
(a) in a case where the main operator has a right to enter the land, that land;
(b) in any other case, the land on which works will be carried out to enable the upgrading or sharing to take place or, where there is more than one set of works, the land on which each set of works will be carried out.”
This amendment, together with Amendments 14, 15 and 16, would apply a different regime under the Electronic Communications Code to private landlords, giving automatic upgrade rights for operators to properties owned by private landlords subject to the condition that the upgrading imposes no additional burden on the other party to the agreement.
Amendment 12, page 45, line 18, leave out clause 61.
This amendment removes clause 61 of the Bill, which gives operators the ability to calculate rent based on ‘land value’ rather than ‘market value’ when renewing tenancies to host digital infrastructure on private land.
Amendment 13, page 46, line 42, leave out clause 62.
This amendment removes clause 62 of the Bill, which gives operators the ability to calculate rent based on ‘land value’ rather than ‘market value’ when renewing tenancies to host digital infrastructure on private land in Northern Ireland.
Amendment 9, in clause 68, page 58, line 38, leave out from “must” to “one” in line 39 and insert “use”.
This amendment, along with Amendments 10 and 11, seeks to ensure that operators engage in the alternative dispute resolution process by making it mandatory.
Government amendments 4 to 7.
Amendment 10, in clause 68, page 59, line 12, leave out from “must” to “one” in line 13 and insert “use”.
This amendment, along with Amendments 9 and 11, seeks to ensure that operators engage in the alternative dispute resolution process by making it mandatory.
Amendment 11, page 59, line 34, leave out from “must” to “one” in line 35 and insert “use”.
This amendment, along with Amendments 9 and 10, seeks to ensure that operators engage in the alternative dispute resolution process by making it mandatory.