Telecommunications Infrastructure (Leasehold Property) Bill

When it comes to infrastructure spending, we also need a target of GDP percentage spending. What actual investment are the Government making in 1G rollout? What do they expect the private sector to make? The Commons briefing paper on the Bill highlighted the fact that the May Government’s future telecoms infrastructure review estimated that the national rollout of full-fibre broadband would require a total investment in the region of £30 billion. This Government have allocated £5 billion to tackle the hardest-to-reach 20% of UK premises, but there are no details yet of how that funding will be used.

There are several existing funding programmes for full fibre, launched under the May Government, including two voucher schemes to subsidise full-fibre connections to rural premises and small and medium-sized businesses. What is the status of these? How are the Government avoiding unnecessary duplication in the rollout of full fibre to the home? How will Ofcom’s determination that there will be market competition in some areas, prospective competition in others and non-competition in yet others work? Is the division into three types of area now agreed as the settled way of doing this?

Private sector plans are extensive. Openreach has committed to deliver full fibre to 4 million premises by March 2021 for its Fibre First programme; Virgin Media plans to reach 4 million premises by the end of 2019-20 as part of its Project Lightning network expansion, which includes a mix of full-fibre and cable broadband; Hyperoptic plans to expand its network to cover 2 million homes by 2021; and CityFibre, in partnership with Vodafone, has plans to roll out full fibre to 1 million UK homes and businesses by 2021.

However, the Government clearly need to will the means by breaking down the barriers to installing these networks. Generally, let us not forget that the PM described Theresa May’s Government’s target to build a UK-wide full-fibre network by 2033 as “laughably unambitious” and we must hold him to that statement. Indeed, many would give that description to this Bill. The future telecoms infrastructure review made it clear that a wide package of legislative and regulatory reform is needed to support the industry to deliver full fibre at scale across the UK. The industry says that it can meet the Government’s 2025 target only if public policy and regulatory decisions are made quickly to support rapid investment and rollout.

The Bill will go some way to address the challenges currently faced by network builders in connecting people living in flats and apartment blocks if they cannot identify, or do not receive a response to requests for access from, the building owner. According to Openreach, 76% of these MDUs—multi-dwelling units—miss out on initial efforts to deploy fibre because of challenges in gaining access. Up to 10 million people live in these properties across the UK. Even in this respect, the Bill should go further to provide greater flexibility for network operators. It should allow operators—not just tenants—to trigger the provisions. The time limit of 18 months within which the new rights would apply should not be on the face of the Bill. There should be a more specific requirement on landlords to engage with operators under the new process which the Bill establishes.

Ultimately, however, even if we made these amendments, should not broadband operators be treated as a utility and the operators given the same rights of entry that others—such as electricity companies—have under the Electricity Act 1989? The deployment of new 5G networks as well as fixed fibre should also be a focus. Surely, the 1 gigabit per second commitment is technology-neutral, but in other respects the Bill is deficient. What about other forms of wayleave, in particular in rural areas and commercial property such as business parks?

Why do we not see legislation for a complete rollout strategy? For instance, legislation on gigabit broadband infrastructure for new-build properties was promised in the December 2019 Queen’s Speech. Broadband operators also cite skilled labour shortages. What is the plan to overcome these? Is Ofcom now satisfied that adequate protection is in place for consumers, particularly as to the cost of services during the transition from copper networks to VoIP services?

Despite criticism of the wayleave situation, are the Government simply going to rely on their street works toolkit—which provides practical guidance for managing street and road works—for the deployment of broadband infrastructure, rather than the digital champions in local authorities that the National Infrastructure Commission recommended? Are the Government and Ofcom generally satisfied that their reforms to allow Openreach’s ducts and poles have been effective? Why does the business rates exemption apply only to laying new fibre and not to upgrading—in other words, substituting full fibre for copper?

The Minister outlined the Government’s intentions regarding the timing and content of a telecoms security Bill. On these Benches, we agree that that will be the appropriate time and occasion to discuss amendments relating to high-risk vendors. This is a very modest Bill, which raises so many questions about the Government’s strategy and their ability to deliver it. These cannot be addressed by responses alone to the detailed amendments which have been laid. I hope that the Minister will attempt to respond.

On the substance of the amendments, I hope that they are to some extent self-explanatory, so I will be brief. Surely the current wording of the Bill with regard to lessees creates considerable uncertainty as to whether tenants who do not hold a lease are covered. Conventionally, lawyers describe the areas of law covering contracts for the occupation of land as landlord and tenant law. So it would have been entirely understandable if the reference had been to tenants throughout, but this way around, where “lessees” are intended to encompass tenants, does create uncertainty.

What is the position of a tenancy at will or a renewable tenancy, which are not covered by the documentation of a lease as such? There are considerable distinctions between a tenancy and a lease in general parlance. A lease will normally have some kind of capital value attached to it on assignment. A tenancy, under a rental agreement, will be very unlikely to have that. I hope that the Minister can give a full answer on the legal point, including any legal authority. This will be important for any future interpretation purposes if a Pepper v Hart situation arises, as I suspect it may.

The words I have just spoken apply to Amendments 1, 3 and 4. Amendment 5 is seemingly small, but it is important. Why does a lessee have to be in occupation? What if it is a second home or a sublet? Does that disqualify a lessee from being able to invoke the Electronic Communications Code? This gives rise to many questions. Why should a lessee have to be in occupation? I very much hope the Minister will be able to answer that question. I beg to move.

Can I ask my noble friend the Minister what lessons have been learnt from the original Openreach contracting process and rollout, and how those lessons have been integrated into the current plans? I am quite happy for her to write to me on that issue—disgracefully, I did not give her prior notice of the question. There are a number of key points coming out of that process which can be beneficial moving forward.

The value of this Bill is demonstrated in the cross-party support it has received; I wish it swift passage. Regarding the amendments in this group, I can do little, as is often the case, other than echo the fine, eloquent words of the noble Lord, Lord Clement-Jones. Could my noble friend the Minister explain the thinking behind the Bill’s wording, which seems somewhat at odds with current landlord and tenant legislation? I will limit my remarks to that at this stage, and I look forward to hearing my noble friend the Minister’s response.

It is also important that we get equal treatment in major housing developments. I came across an astonishing situation in such a development in my former constituency where different builders did different sides. There could be a situation where people living on one side of a road had the apparatus for broadband connections while their neighbours on the other side of the road did not. That must be crazy. Is there anything we can do to overcome that kind of difference?

My second point is: where are the other pieces of legislation that will back this up? Where are the points that address bringing forward access to all properties on the same terms as other utilities? Where are the measures that will help with works that have to be done on a village-wide or town-wide basis in order to get access to cables? When will we get some sense of the overarching position and the legislation for that?

We support the amendments of the noble Lord, Lord Clement-Jones, and the one raised by my noble friend Lord Adonis. There needs to be broader support for legal occupiers to be able to initiate and unblock the process. I particularly liked a comment made in the middle of the debate about the future ownership of Openreach, and I look forward to the Minister’s response.

Throughout all this we are not in any sense saying that the owner of the property is diminished by any proposals to improve the quality of what is available in the premises. However, we clearly need it to be possible for all properties to be supplied with public utilities, and I think the internet has to be regarded as one. If this is not the case, it is up to the Minister to make very clear today why not. Can she address that point? Will she take back, perhaps for further consideration on Report, the wider concern—it was expressed by the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady McIntosh, in particular, but I think was raised by just about everybody—that the Bill actually has not tackled the essential question of who it is talking about when it deals with property rights?

Turning to the specific amendments, I note that Amendment 6 is similar to an amendment tabled in the other place during the passage of the Bill there. I believe that the noble Lords who have tabled the amendment are seeking to ensure that tenants are covered by the Bill. If noble Lords are indeed seeking clarification on that point, I am able to confirm that as currently drafted, the provisions in this Bill can be used by people who rent their homes. This includes people with assured shorthold tenancy or assured tenancy agreements which, as many noble Lords will be aware, are the most common forms of tenancy agreement. These will include second homes and sublets as long as they meet the requirements in the Bill. I will confirm this in writing, but my understanding is that in relation to renewable tenancies—a point raised by the noble Lord, Lord Clement-Jones—if they have the characteristics of a lease, they would not be affected by this Bill. [Inaudible.] They would not be covered by this Bill. I can cover the impact of that in a letter to noble Lords.

Our concern is that the amendments as tabled would have a significant effect on the Bill. They would significantly expand the scope of who is able to make a service request to include anyone who is the legal occupant of a property, tenancy, or a freeholder. For example, the amendment could bring into scope a tenant who rents their property from an individual who is illegally subletting the property or a short-term lodger in a single room in someone else’s home. I am sure noble Lords will agree that, while the Government are committed to providing widespread access to fast, reliable and resilient broadband, it is important to ensure that the ability to make fundamental changes regarding the rights over property begins with an individual who has a legitimate interest in the property. Furthermore, Amendment 6 would considerably increase the ambit of the Bill and make it very different from the model which was consulted on. The Bill as drafted already works in respect of tenants, so noble Lords will appreciate the unintended consequences of extending the definition to those who may begin a Part 4A process.