Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Evans of Temple Guiting moved Amendment No. 314:

The noble Lord said: In moving Amendment No. 314, I shall also speak to the other amendments in the group. They correct minor drafting errors, or make small technical amendments to the Bill. Amendment No. 314 makes clear that the words in Clause 386 should be read in accordance with the definitions in Clause 398. Amendment No. 322AZA simply

5 Jun 2003 : Column 1551

translates a number of terms in the Broadcasting Act 1990 that relate to existing telecoms legislation into the language used in Part 2 of the Bill.

Amendment No. 323 is a consequential amendment missed from an earlier amendment made in another place to Schedule 17 (160). Amendment No. 324 brings the language used in the European Parliament (Representation) Act into line with the Bill. Amendment No. 328A is a drafting correction that removes an erroneous "or". Given the lateness of the hour I have been brief, but if any noble Lords would like more details, I would be happy to write to them. I beg to move.

On Question, amendment agreed to.

Clause 386, as amended, agreed to.

Clauses 387 to 397 agreed to.

Clause 398 [General interpretation]:

[Amendments Nos. 315 and 316 not moved.]

Viscount Falkland moved Amendment No. 316A:

    Page 348, line 8, after "of" insert ", or in connection with,"

The noble Viscount said: I speak behalf of my noble friend Lord Razzall who is not in the Chamber. This is a minor, drafting amendment to amplify the existing definition of consumers in a market for a service. I have some optimism that the Government will be sympathetic to the amendment. I beg to move.

Lord Evans of Temple Guiting The Government are sympathetic to the amendment and are most grateful to the noble Viscount.

On Question, amendment agreed to.

Clause 398, as amended, agreed to.

Clause 399 agreed to.

Schedule 17 [Minor and Consequential Amendments]:

[Amendment No. 317 not moved.]

Schedule 17 agreed to.

Schedule 18 [Transitional Provisions]:

Lord Crickhowell moved Amendment No. 317A:

    Page 529, line 32, at end insert "or

(c) for any right or obligation to arise,"

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 317B and 317C. These have been prompted by the advice of a very distinguished group of lawyers. Many thousands of commercial agreements have been entered into where there is the provision that in the event of a party losing its telecoms licence, that agreement may be terminated or may even come to an end automatically. Obviously, when they entered into the agreement, the parties did not have in mind the circumstances of licence loss now being created by the Bill, which is abolishing the licence regime and replacing it with something else.

To avoid problems arising and many agreements being unintentionally terminated or revoked, the Government have inserted a provision to the effect

5 Jun 2003 : Column 1552

that the loss of licence created by the implementation of the directives by the Bill shall not be effective to trigger such clauses in commercial agreements—

Lord Davies of Oldham: In the interests of time, we see merit in these amendments and will consider them. Perhaps that may help the noble Lord.

Lord Crickhowell: I wondered whether the Minister might rise to curtail this debate. These are important amendments with a very good pedigree behind them. I am grateful to the Minster and look forward to seeing the emergence of what he referred to. I beg to move.

Lord Avebury: As the Minister is in such a good mood, I hope that he will say something nice about my amendment, which follows on from an earlier debate. The Minister is nodding his head so I know he is aware of what I am about to say. The noble Lord, Lord McIntosh of Haringey, had written to me saying that he hoped to have some good news for me. Therefore I will not make the speech that I had prepared. I shall listen to the noble Lord instead.

Lord Davies of Oldham: The noble Lord will not have to listen to me for very long. I was merely going to say that my noble friend Lord McIntosh of Haringey had indeed written. We did not think we had given the appropriate reply to the earlier debate on this issue and the amendments of the noble Lord. I would like to assure him that we will consider his amendment in the same vein as those of the noble Lord, Lord Crickhowell. I hope both noble Lords will not press their amendments.

Lord Crickhowell: I beg leave to withdraw my amendment

Amendment, by leave, withdrawn.

[Amendments Nos. 317B to 318 not moved]

Lord Davies of Oldham moved Amendment No. 318A.

    Page 531, line 39, leave out from "applies" to end of line 40 and insert "where OFCOM give a continuation notice to the holder of a licence granted under section 7 of the 1984 Act."

The noble Lord said: I beg to move Amendment No. 318A and to speak to Amendments Nos. 318B to 318F, 319A to 319E and also to comment on Amendment No. 319.

As far as Amendment No. 319 is concerned, the Government agree in principle with the intention behind that amendment. These are government amendments meant to address this issue, we hope satisfactorily as far as Amendment No. 319 is concerned. This aims to secure that where the conclusion of the relevant market review is that it would not be appropriate to impose an SMP condition on the relevant person, Ofcom should then terminate the continued obligation. We agree that this is appropriate. I confirm that this will be one of the effects of the government amendments which I now move on behalf of the Government.

5 Jun 2003 : Column 1553

This has arisen because we have some difficulties with regard to time in relation to European directives and our compliance with them. If we are not to have an unacceptable lacuna in important existing regulatory requirements—including the BT price cap—it becomes necessary to provide for the transitional continuation of a wider class of existing licence conditions. This does however have the advantage that it eases the timetable constraints for the market review process, thus meeting a significant concern on the part of the industry.

Amendments Nos. 319D and 319E are merely consequential on the amendments which I sought to move. We think that these are appropriate and necessary modifications to meet the new timing constraints impacting particularly on the process of market review which is required by the EC directives. I beg to move this amendment and hope that the noble Lord, Lord Avebury, will not press Amendment No. 319.

Lord Avebury: I am grateful to the Minister for what he said about Amendment No. 319. However, do I gather that the Government do not contemplate adding any particular words into the Bill such as those we propose in this amendment? If that is the case, we are not clear that the clause is to be construed as if the words in the amendment were added. Would it be able to take account of a case where Ofcom has decided not to apply SMP conditions? In such a case, if Ofcom, having made that decision, does not serve a notice, then can the Minister confirm that the failure to do so would be subject to appeal, and where is that to be found in the Bill?

Such an appeal would be bound to succeed, thus effectively placing Ofcom under an obligation to issue the notice. It would surely be more straightforward and kinder to those who have to understand what is already a horrendously complicated piece of legislation to spell that out in plain English.

7.30 p.m.

Lord Davies of Oldham: I understand the noble Lord's point. He will recognise that we are seeking to address that issue by way of amendment. However, we have a little time left to us as far as concerns the passage of the Bill. I shall happily write to the noble Lord with such reassurance, and shall fill in the details as regards the matter he raised.

Baroness Buscombe: I rise to seek some reassurances from the Government on the issue. I make it quite clear at the outset that I find the whole area reasonably technical and quite difficult. However, we are discussing important amendments. There is no question of our being unhappy with the amendments. In the same sense expressed by the noble Lord, Lord Avebury, we, too, have concerns about interpretation. Therefore, we are looking to the Government for assurances.

As we understand it, the Government's amendments to Schedule 18 seek to provide the Director General of Telecommunications with the

5 Jun 2003 : Column 1554

power to issue notices to continue certain licence conditions beyond 25th July 2003, once the Telecommunications Act licences have been abolished, as is required by the EC electronic communications directives. The four GSM mobile operators—O2, Orange, T-Mobile, and Vodafone—are looking to us for assistance to obtain confirmation from the Government that there will be circumstances where Amendments Nos. 318A to 318F will not allow continuation notices to be issued for licence conditions that are in place on 24th July 2003.

Article 7(1) of the access directive is clear that national regulatory authorities are obliged to maintain obligations that,

    "were in force prior to the date of entry of this Directive".

The directive came into force on 24th April 2002. The corollary of that obligation is that national regulatory authorities should not issue continuation notices for any conditions that have been imposed after that date. A particular example that concerns the four mobile operators is,

    "the control of interconnection charges"—

a condition introduced by Oftel on 4th April 2003, after a review by the Competition Commission—nearly a full year after the access directive came into force.

Amendments Nos. 318A to 318F should not alter Oftel's position, as described in its submission to the Competition Commission in June 2002. Oftel stated then that a,

    "licence condition proposed by the Competition Commission and imposed by the Director General, will fall away on 25th July 2003".

Oftel also said that it,

    "can impose a 'replacement' condition to take effect from 25th July 2003, following a market review".

Oftel has commenced such a review, and the initial consultation period will end on 24th July 2003. If appropriate, any replacement condition should flow from the review within the next few months.

In addition, the four mobile operators to which I referred seek further clarification that this is what the Government believe should happen, and that no continuation notice for this condition will be issued on the basis of Article 7(6) of the framework directive—that is, where it is an exceptional and urgent case. We believe that that would not be appropriate or proportionate, bearing in mind that the due process is already in train.

Next Section Back to Table of Contents Lords Hansard Home Page