Seventeenth Report of Session 2022–23

Instruments reported

At its meeting on 16 November 2022 the Committee scrutinised a number of instruments in accordance with Standing Orders. It was agreed that the special attention of both Houses should be drawn to one of those considered. The instrument and the grounds for reporting are given below. The relevant departmental memorandum is published as an appendix to this report.

1S.I. 2022/1057: Reported for failure to comply with proper legislative practice

Telecommunications Infrastructure (Leasehold Property) (Conditions and Time Limits) Regulations 2022

1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they fail to comply with proper legislative practice in one respect.

1.2These Regulations, which are subject to the negative resolution procedure, allow a telecommunications operator to apply to a court for an order (a Part 4A order) granting rights to access a multiple dwelling unit to provide an electronic communications service where it has been requested by a lessee in occupation. Regulation 5 specifies the time limit for an application for a Part 4A order, but the preamble does not cite the power which enables that specification to be made (paragraph 27D(2) of Schedule 3A to the Communications Act 2003 which states that an application for a Part 4A order may not be made after the end of a “specified period”). The Committee asked the Department for Digital, Culture, Media and Sport to explain. In a memorandum printed at Appendix 1, the Department acknowledges the argument that the requisite vires is conferred by paragraph 27D(2) but argues that, in the alternative, paragraph 27D(1)(d) provides the requisite vires given that it provides that the operator may apply to the court for a Part 4A order if it has satisfied any other “specified conditions.” The Committee disagrees and considers the appropriate vires to be paragraph 27D(2); the Committee reads paragraph 27D(1)(d) as referring to eligibility conditions to apply for the Part 4A order rather than the time limit within which to apply. The Department undertakes to address this issue at an appropriate point in the future. The Committee accordingly reports the preamble for failure to comply with proper legislative practice, acknowledged in part by the Department.

Instruments not reported

At its meeting on 16 November 2022 the Committee considered the instruments set out in the Annex to this Report, none of which were required to be reported to both Houses.

Annex

Instruments requiring affirmative approval

Draft instruments requiring affirmative approval

Instruments subject to annulment

Draft instruments subject to annulment

Instruments not subject to Parliamentary proceedings not laid before Parliament

Appendix 1: Memorandum from the Department for Digital, Culture, Media and Sport

S.I. 2022/1057

Telecommunications Infrastructure (Leasehold Property) (Conditions and Time Limits) Regulations 2022

1. The Committee has asked for a memorandum on the following point:

Given the provision made by regulation 5, explain why paragraph 27D(2) of Schedule 3A to the Communications Act 2003 is not cited as an enabling power.

2. In drafting regulation 5, the Department sought to rely on paragraph 27D(1)(d) of Schedule 3A to the Communications Act 2003, which is cited and which provides that the operator may apply to the court for a Part 4A order if the operator has satisfied any other specified conditions. The Department respectfully suggests that the “specified period” referred to in paragraph 27D(2) is a specified condition with which the operator must comply and therefore is the relevant vires for this provision.

3. In light of the Committee’s question though, we have considered this further and can see the argument that, in the alternative, the requisite vires are conferred by paragraph 27D(2) and that this vires could also have been cited. The Department will look to address this at an appropriate point in the future.

Department for Digital, Culture, Media and Sport

8 November 2022

Formal Minutes

Wednesday 16 November 2022

Virtual meeting

Members present

Jessica Morden, in the Chair

Lord Beith

Lord Chartres

Baroness D’Souza

Baroness Gale

Lord Haskel

Paul Holmes

Lord Smith of Hindhead

Report consideration

Draft Report (Seventeenth Report), proposed by the Chair, brought up and read.

Ordered, That the draft Report be read a second time, paragraph by paragraph.

Paragraphs 1.1 to 1.2 read and agreed to.

Annex agreed to.

A Paper was appended to the Report as Appendix 1.

Resolved, That the Report be the Seventeenth Report of the Committee to both Houses.

Ordered, That the Chair make the Report to the House of Commons and that the Report

be made to the House of Lords.

Adjournment

Adjourned till Wednesday 23rd November at 3.40 p.m.