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Lord Peston: My Lords, perhaps I may interrupt the Minister before he sits down, because I am not sure that I followed his logic. He seemed to be immensely encouraging to the noble Lord, Lord Lucas, but only up to the point of saying that nothing could be done. Did I understand the Minister correctly that ISCTS could do things, but it is not doing them, and that the moment that he writes to ICSTIS it will take action? Is he saying that ICSTIS could institute the criminal law among its possible actions? I regard myself as streetwise and am used to going down Petticoat Lane and seeing the hucksters there. Unlike the example given by the noble Lord, Lord Lucas, there one ends up paying more or less the right price for the product. The whole point is to make one buy it. The point of the remarks made by the noble Lord, Lord Lucas, is that you really are being ripped off to an enormous degree. Those of us who are sitting and watching that happen are asking the usual question: "How can it be going on?" I also follow the noble Baroness, Lady Howe, in saying that people who would otherwise regard themselves as reputable are doing this. Is my noble friend the Minister confident that, without anything else happening, the relevant bodies can do something about that—or will it just go on?
Lord McIntosh of Haringey: My Lords, these things are going on, they are undesirable and ways must be found of stopping them. However, ICSTIS is developing a code that Oftel and, in future, Ofcom, will have to approve. We look to that code for protection for consumers. Although the code will not be long delayed, it is not available yet. However, there is the backstop of the criminal law, which is available to everybody.
On Question, amendment agreed to.
Lord McIntosh of Haringey moved Amendments Nos. 68 and 69:
- Page 111, line 28, at end insert—
On Question, amendments agreed to.
[Amendments Nos. 69A and 70 not moved.]
Lord McIntosh of Haringey moved Amendments No. 71:
On Question, amendment agreed to.
Clause 119 [Orders by OFCOM in the absence of a code under s.118]:
Lord McIntosh of Haringey moved Amendment No. 72:
On Question, amendment agreed to.
Baroness Buscombe moved Amendment No. 73:
The noble Baroness said: My Lords, in speaking to the amendment, I shall also speak to Amendment No. 243.
The new clause was debated in Committee and rejected by the Government. The Minister made a number of points at that time that merit further discussion at this stage. As I explained in Committee, the issue in general concerns many occupiers of leased and rented properties as well as many freehold property owners who are prevented from obtaining television and telephony services from the provider of their choice because of restrictions in their leases or tenancy agreements or, in the case of freehold property owners, a restricted covenant.
The Government have to an extent recognised the problem. Clause 131 provides that a lessee's request for the lifting of any relevant restriction can be refused by the lessor only on reasonable grounds. That would seem to be an appropriate balance between the rights of lessors and lessees. As I said in Committee, however, Clause 131 does not go far enough. In particular, it does not address the issue of restricted covenants in freehold property. That is the purpose of my amendment.
In Committee, the Minister indicated that the Government are not opposed in principle to taking an approach on freehold covenants comparable to that for leasehold agreements in Clause 131. That is a welcome statement. However, he went on to explain that the new clause and amendment could not be accepted because the Government were not convinced that any problems were being experienced, as they had not heard any evidence to that effect. In any case, he suggested, it would be improper to issue new legislative requirements on such a matter, affecting the law on property, without full consultation. I wish to press him further on those two arguments.
First, it is my understanding from discussions with industry that a problem exists and that it can affect the installations of terrestrial aerials as well as satellite dishes. That is why the industry has asked me to press the issue. If there were no problem, I doubt that they would expend resources in trying to get it addressed. Therefore, will the Minister explain the basis on which he has become unconvinced? It does not mean that a problem does not exist simply because he is unaware of any evidence. Is that lack of awareness the only basis for the Government's position? Surely, it would be better to say simply that the Government do not know.
That brings me on to the second issue—that of a wider consultation. Amendment No. 243 would require the Secretary of State to consult Ofcom and such other persons as appear appropriate before bringing the clause into force. The Government have argued in Committee that the need for full consultation on the substance of the issue might not fit easily with the provision. I agree that consultation on the substance is required—and the intention of the amendment is to make that possible.
If the Government persist with their view, perhaps the Minister could provide clarification of the Government's plans to consult further on the issue, in order that they understand the extent of the problem and necessary actions as well as the views of those affected prior to any action being taken. I presume that the Minister is not going to wait until analogue switch-off to discover that freehold covenants represent a barrier to access to digital television, when it is too late to do anything about it. I beg to move.
Lord McIntosh of Haringey: My Lords, we had this amendment in Committee, and the noble Baroness, Lady Buscombe has adequately represented my response to it. I am a little surprised, because the noble Baroness has not really raised any new issues about the two difficulties that I had with the amendment.
I said that I would need evidence that there is actually a problem. After all, a very small minority of freehold properties have covenants on them. I have explained to the House before now that I have a freehold property with a covenant on it from the early 1920s, which prohibits not only the selling but also the consumption of alcohol on the premises. Needless to say, we assured ourselves that the covenant was not enforceable before we bought the house.
It is not up to the Government to go out searching for evidence. If Sky, or anyone else interested in dishes or aerials, has examples of difficulties that have arisen, it is up to them to come to us and we will consider what should be done.
My second problem, which I had thought that the noble Baroness recognised, is that property law is always complicated. She, as a lawyer, should recognise that. The precise form of any change should be considered in consultation with the relevant interest groups and professional interest in property law. As I understand it, and as I remember from the Commonhold and Leasehold Reform Bill, it is a principle that normally covenants are not enforceable over freehold property. There are wider issues here, and we should not be dabbling in property law in a communications Bill any more than we should dabble in communications law in a property Bill.
Our principle objection to the amendment is that no evidence has been produced that there is a problem, and without such evidence we find it very difficult to understand how we should embark on a piecemeal reform of property law. Those are the same points as I made in Committee, and I am unable to indicate any change in the Government's position on them.
"(11A) A person falls within this subsection if—
(a) he is the provider of an electronic communications network used for the provision of the relevant service; and
(b) the use of that network for the provision of premium rate services, or of services that include or may include premium rate services, is authorised by an agreement subsisting between that person and either an intermediary service provider or a person who is a provider of the relevant service by virtue of subsection (10) or (11)."
Page 111, line 41, at end insert "and
"intermediary service provider" means a person who—
(a) provides an electronic communications service used for the provision of the relevant service or an electronic communications network so used; and
(b) is a party to an agreement with—
(i) a provider of the relevant service falling within subsection (9)(a) to (d), or
(ii) another intermediary service provider,
which relates to the use of that electronic communications service or network for the provision of premium rate services, or of services that include or may include premium rate services."
Page 112, line 22, at end insert—
"( ) OFCOM are not for those purposes to approve so much of a code as imposes an obligation as respects a premium rate service on a person who is a provider of the service by virtue only of section 117(11A) ("the relevant provider") unless they are satisfied that the obligation—
(a) arises only if there is no one who is a provider of the service otherwise than by virtue of section 117(11A) against whom it is practicable to take action;
(b) arises only after a notice identifying the service and setting out respects in which requirements of the code have been contravened in relation to it has been given to the relevant provider by the person responsible for enforcing the code; and
(c) is confined to an obligation to secure that electronic communications networks provided by the relevant provider are not used for making the service available to persons who are in the United Kingdom."
Page 113, line 41, at end insert—
"( ) An order under this section is not to impose an obligation as respects a premium rate service on a person who is a provider of the service by virtue only of section 117(11A) ("the relevant provider") unless the obligation—
(a) arises only if there is no one who is a provider of the service otherwise than by virtue of section 117(11A) against whom it is practicable to take action;
(b) arises only after a notice identifying the service and setting out respects in which requirements of the order have been contravened in relation to it has been given to the relevant provider by OFCOM; and
(c) is confined to an obligation to secure that electronic communications networks provided by the relevant provider are not used for making the service available to persons who are in the United Kingdom."
After Clause 131, insert the following new clause—
"RESTRICTIVE COVENANTS AFFECTING FREEHOLD PROPERTY
(1) This section applies where by virtue of a restrictive covenant, the owner of any premises is restricted, either absolutely or to any extent—
(a) in choosing electronic communications services,
(b) in choosing a supplier of such services, or
(c) with respect to any other electronic communications matter.
(2) Where this section applies, the covenant, to the extent that it restricts the owner of premises as mentioned in subsection (1)—
(a) if it requires (expressly or otherwise) the consent of any person to be obtained before anything to which the restriction relates is done, shall have effect as if it required that consent not to be unreasonably withheld; and
(b) in any other case, shall have effect as if it required the consent of the person entitled to the benefit of the restrictive covenant to the doing of anything to which the restriction relates not to be unreasonably withheld.
(3) Subsections (5) to (7) of section 131 shall apply in relation to a restriction falling within subsection (2) above as those subsections apply in relation to a prohibition or restriction falling within subsection (1) or (2) of section 131.
(4) Section 396 applies to the powers of OFCOM to make orders under this section."
5.15 p.m.
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