Telecommunications Infrastructure (Leasehold Property) Act 2021

Background

The new Conservative Government had a target to deliver nationwide gigabit-capable broadband by 2025. In November 2020 the Government reduced its target. It now aims to achieve with industry a “minimum of 85%” gigabit-capable coverage by 2025 “but will seek to accelerate roll-out further to get as close to 100% as possible”.

As of September 2020, 27% of UK premises had a gigabit-capable broadband connection available. That’s a connection that can deliver 1 gigabit per second download speed. It could be a full-fibre broadband or a high-speed cable broadband connection.

Meeting this target is a large national infrastructure project. The Government’s approach is that private companies will provide investment for most of this infrastructure UK-wide in exchange for future revenue. The telecoms industry argue that “urgent” policy reform is required to address barriers that are delaying roll-out in order to meet the Government’s target. Further background is in our briefing, Gigabit-broadband in the UK: Government targets and policy.

This Bill aims to address one stated policy barrier: making it easier for telecoms companies to access multi-dwelling buildings (such as blocks of flats) where a tenant has requested a new connection, but the landlord has not responded to requests for access rights.

The Bill

The Telecommunications Infrastructure (Leasehold Property) Bill 2019-21 was introduced to the House of Commons on 8 January 2020.

The Bill would amend the Electronic Communications Code (the Code), contained in Schedule 3A to the Communications Act 2003 (as amended).

The Bill would insert a new Part 4A. The new Part 4A would provide a process that telecommunications operators could use to gain access rights (called “code rights”) to multi-dwelling premises for a defined period. The process would only apply where:

• a lessee in occupation in multi-dwelling building has requested a telecommunications service from an operator;
• to connect the property the telecoms operator requires an access agreement with another person such as the landlord; and
• the landlord has not responded to the telecoms operator’s request for access.

The Bill sets out steps that telecoms operators must take before applying to the court, such as the number of warning notices that must be given. Code rights, if granted, would only be for an interim period to be set by the Secretary of State by regulations and would be no more than 18 months.

The new process would come into force on a day appointed by the Secretary of State in regulations. There are delegated powers in the Bill for which statutory instruments are required before the Bill comes into effect. For example, regulations will set out the terms of an agreement that can be imposed by the court under the new procedure. These regulations would require consultation with stakeholders and be made by the affirmative procedure. Other regulation making powers in the Bill use the negative procedure.

The Bill would apply to the whole of the UK because telecommunications is a reserved power.

Second reading and committee stage

The second reading of the Bill took place on 22 January 2020. The Bill passed second reading without a division and received cross-party support. The Labour Party, although welcoming the aim of the Bill, did not think it would go far enough to address the Government’s aims on broadband.

The committee stage of the Bill took place on 11 February 2020. There were three Government amendments made that related to changing the Court in which Part 4A proceedings would be heard, from the Lands Tribunal, to the First-Tier Tribunal (in England and Wales) and the sheriff court (in Scotland). This was due to resource capacity issues raised in relation to the Lands Tribunal.

The Opposition tabled six amendments that sought to add additional conditions for when the Part 4A process could be initiated. Two amendments were pushed to a division but did not pass.

Report stage and third reading

The Commons report stage and third reading were held on 10 March 2020. The debate focused on amendments relating to the use of “high risk vendors” in UK telecoms networks. No changes were made to the Bill during report stage or third reading

Lords stages

Many peers highlighted the impact of the coronavirus pandemic, which emerged since the Bill passed its Commons stages, as demonstrating the importance of widely available digital connectivity and the need to roll-out gigabit-capable infrastructure at pace.

Two Opposition amendments were made to the Bill during the Lords report stage:

• Amendment 1 aims to clarify that premises occupied by rental tenants and other legal occupants in exclusive possession are within scope of the Bill.
• Amendment 3 added a new clause 3 that would require the Government to review the impact of the Act on the Code within 6 months of coming into force.

Government Amendment 2, made on third reading, aims to ensure that operators would not install equipment in an anti-competitive manner and that consumers would not be “locked in” to a single provider.

Ping pong

The Lords Amendments were considered on 24 February 2021. The Government brought two amendments in lieu of Lords Amendment 1, adding a new clarified definition of “lease” to the Bill. Lords Amendment 2 was agreed to, Lords Amendment 3 was disagreed. The Lords agreed to the Commons amendments in lieu on 4 March 2021.

When will the Act come into force?

The Act received Royal Assent on 15 March 2021 but will not come into force until a date specified in legislation. A further technical consultation will be held on the substance of those regulations. In March 2021 the Government stated it expected to make the secondary legislation in Autumn 2021.