Telecommunications Bill

HL Deb 20 February 1984 vol 448 cc525-617

House again in Committee on Clause 8.

Lord Somers moved Amendment No. 76:

Page 10, line 47, at end insert— ("( ) The Secretary of State or the Director may also require any person applying for a licence under this section to publish his application in such manner as is appropriate for bringing it to the attention of the persons for whom the system will be provided in the area in which the service will he provided.").

The noble Lord said: This is a very simple amendment and is entirely non-controversial. It is simply to do with publicising the fact that services have become available. This is the age of advertising and so I do not think that this amendment will make any great change. The only point is that people who live in remote districts probably may not know of the fact that they are perfectly able to have a telephone. The publicity could be carried out in various ways. It could he done in a local newspaper, or by circulars sent to each house. However, the amendment does not lay down how it is to be done, but simply that it shall be done. I am sure that nobody could grumble with that in the slightest. I beg to move.

Lord Mottistone

I should like to support the amendment. In amplification of what the noble Lord, Lord Somers, has said, I would say that as I see the amendment it is concerned with a need for local consumers and perhaps consumer bodies to know in advance where an applicant is seeking to operate, so that they can take a view and make the necessary representations if they so wish.

Lord Mackay of Clashfern

The Government sympathise with what I believe to be the main purpose of the amendment; namely, to ensure that all those with an interest including consumers, and possibly competitors, are fully consulted and their comments taken into account before a licence which could affect their interests is granted. Indeed, that is also the Government's intention. Where we differ is just on the detail of how it should be achieved. The amendment seeks to enable the Secretary of State or the director to require applications for licences to be published. I presume that the intention is that the Secretary of State and the director should receive from interested parties comments and representations on such applications, though the amendment does not say so.

However, for the following reasons I do not think that publication of applications, as the amendment proposes, is the best way to proceed. First, the amendment relates only to applications for a licence under this clause. This is not in fact how applications for licences will work. A person will not apply for a particular licence or for one containing particular conditions. What he will do, instead, is to apply for a licence to run his system. It is then up to the Secretary of State to decide what kind of conditions he will impose, including conditions of the type described in Clause 8(1).

In short, the proposal to require publication of applications for licences containing Clause 8(1) conditions would not work because at the time of application it would not be known whether or not the licence, if granted, will contain such conditions. It therefore seems to me much better to have consultation after the Secretary of State or the director has considered an application and intends to include Clause 8(1) conditions, but before the licence is issued. This is what the Bill as drafted provides for in Clause 8(3). The subsection requires the Secretary of State to give notice of his intention to issue a licence and the reasons for this, and to allow at least 28 days for representations to be made, which he must consider.

I should also like to draw the attention of your Lordships in this connection to Amendment No. 75A, which we have already dealt with, and Amendment No. 78A, to which I have spoken. These strengthen the consultation procedure by requiring the notice to be published in a manner appropriate for bringing the matters to which the notice relates to the attention of persons likely to be affected by them. This will ensure that organisations such as consumer bodies, appropriate local authorities, manufacturers and other operators will be aware of a potential licence that could affect their interests and offers them a chance to make representations and objections. I believe that this is the best way to ensure that consultation takes place. I believe that, amended by the amendments to which I have referred, subsection (3) ensures that all those with an interest will he afforded an opportunity to make comments that must be considered by the Secretary of State or the director. Accordingly, the purpose that the noble Lords who support the amendment have sought to achieve is, I think substantially achieved at a slightly different time but again before the licence is granted, by virtue of the provisions of the Bill as strengthened by the amendments that I have described. I hope that, in the light of that, the noble Lord will feel able to withdraw the amendment.

Lord Taylor of Gryfe

I am thankful for the description of the protection in the Bill given by the noble and learned Lord, Lord Mackay of Clashfern. In view of all that he has said, I would counsel my colleagues to withdraw this amendment. I am delighted to have the assurances that have just been given.

Lord Somers

That is exactly what I was intending to do. I should like to thank the noble and learned Lord very much for the points he has put forward, which I found most convincing. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Spens had given notice of his intention to move Amendment No. 77:

Page 10, line 47, at end insert— ("(3A) Without prejudice to any of the provisions of section 7 or of subsections (1), (2) and (3) above, any prospective licence containing conditions applying to commercial activities connected with telecommunications the provision of all of which when taken together would satisfy 25 per cent. or more of the demand in the United Kingdom for such commercial activities shall only be granted in pursuance of a resolution of both Houses of Parliament specifically relating to each such licence.").

Lord Mottistone

This amendment is another way of attacking the problem that my Amendment No. 71 attacked earlier. I rise to my feet only to say that consequential upon it are Amendments Nos. 97 and 99. It is not proposed to move Amendment No. 77.

[Amendment No. 77 not moved.]

[Amendment No. 78 not moved.]

Lord Mackay of Clashfern moved Amendment No. 78A:

[Printed earlier: col. 514.]

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 8, as amended, agreed to.

Clause 9 agreed to.

7.55 p.m.

Lord Mottistone moved Amendment No. 79: After Clause 9 insert the following new clause:

("Limitations on the manufacturing business of public telecommunications operators

.—(1) Any public telecommunications operator whose commercial activities connected with telecommunications the provision of all of which when taken together would satisfy 25 per cent. or more of the demand in the United Kingdom for such commercial activities and who has a manufacturing capacity for telecommunication apparatus used by or in connection with the public telecommunication system operated by it shall not until such time as it has established a separately managed and accounting subsidiary for the manufacture of such telecommunication apparatus increase the scale of the manufacturing capacity it has at the date of the grant of its licence nor shall it produce in more than prototype quantities such telecommunication apparatus which it does not make at that date nor shall it at any time make such telecommunication apparatus or cause such subsidiary to make such telecommunication apparatus except to the extent and until—

1. (a) it has issued an open invitation to tender for the manufacture and supply of such telecommunications apparatus specified in the invitation and has allowed a fair and reasonable period within which bids can be submitted, and
2. (b) no offer to supply such telecommunications apparatus has been received which in the opinion of the Director would be acceptable, and
3. (c) it has satisfied the Director that manufacture of such telecommunication apparatus by it or its subsidiary will be on a fair and reasonable basis and will satisfy the requirements of section 3(2).

(2) A public telecommunications operator shall not acquire after the date of the grant of its licence, either directly or through any other company, more than 15 per cent. of the shares in a company engaged in the business of production of telecommunication apparatus for use by or in connection with the public telecommunication system operated by it.")

The noble Lord said: With the leave of the Committee, I should like to associate with this Amendments Nos. 80, 80A and 80B. Amendment No. 80: After Clause 9, insert the following new clause—

("Limitations on the supply business of public telecommunications operators.

.—(1) Any public telecommunications operator whose commercial activities connected with telecommunications the provision of all of which when taken together would satisfy 25 per cent. or more of the demand in the United Kingdom for such commercial activities and who carries out the supply of apparatus which is to be connected to a telecommunication system and activities related thereto including export, installation, maintenance, adjustments, repair, alteration, moving, removal or replacement or any of such activities shall establish a separately managed and accounting subsidiary within twelve months of the date of the grant of its licence.

(2) The public telecommunications operator shall, prior to the establishment of such subsidiary, satisfy the Director that such activities will be conducted on a fair and reasonable basis and will satisfy the requirements of section 3(2).

(3) After the establishment of such a subsidiary the public telecommunications operator shall only conduct such activities through such subsidiary and shall satisfy the Director that such activites will be conducted on a fair and reasonable basis and will satisfy the requirements of section 3(2).")

Amendment No. 80.4: After clause 9, insert the following new clause:

("Meaning of "accounting".

.—For the purposes of sections (Limitations on the manufacturing business of public telecommunications operators) and (Limitations on the supply business of public telecommunications operators) the meaning of "accounting" shall include the demonstration to the satisfaction of the Director that each subsidiary shall be responsible for all expenses directly incurred by it together with a fair proportion of those expenses incurred by the public telecommunications operator in respect of work done or services performed wholly or partly for the benefit of its subsidiaries.").

Amendment No. 80B: After clause 9, insert the following new clause:

("Expenses of subsidiaries.

.—Without prejudice to the provisions of section (Limitations on the supply business of public telecommunications operators (6) each subsidiary' shall satisfy' the Director that it has ensured that the proportion of expenses incurred by others on its behalf to those directly incurred by the subsidiary is as small as is reasonably' practicable and in any event shall not exceed five per cent. by and after twelve months from the establishment of the subsidiary for each financial year of each such subsidiary.").

These amendments come about because of the proposal in Condition 21 of the draft licence to allow British Telecom to manufacture. The terms of the amendment do not seek protection from competition in product manufacture or in supply but seek to obtain safeguards that are essential to prevent unfair competition in these areas from competitors who have been granted privileges as licensed public telecommunications operators. It is pertinent to note that no network operator in the European Economic Community currently engages in manufacture and that the United States Government have, in recent years, gone to considerable lengths to separate network operations from telecommunication equipment manufacture. While the draft British Telecom licence includes conditions requiring separation of the systems business from that of supply and manufacture, total separation will be difficult to achieve and the date proposed in the draft licence for separation is several years ahead. This leads us to propose the amendment. It is perhaps also worth noting that Section 7 of the 1981 Act currently provides some protection of the sort that this amendment seeks to give, but the Bill proposes to repeal that section in Part II of Schedule 7.The proposed new clauses are to redress this repeal and to strengthen the current Condition 21. I beg to move.

Lord Mackay of Clashfern

The Government agree with the general aims underlying this amendment but we disagree with the attempt to achieve these aims through the Bill itself. Our view, first, is that if the Bill were to contain any special rules intended for British Telecom, these rules should apply also and fairly to all public telecommunications operators. The Government endorse the first specific proposal in the amendment, which is to require certain operators to set up separately managed and separately accounting subsidiaries for any telecommunications apparatus manufacture that they undertake. The Government think that limitations of this general kind should apply to all public telecommunications operators regardless of their market share. Some discussion of the difficulties of the market share concept has taken place already.

It seems to us that public telecommunications operator status involves such privileges, particularly at a time when economic and environmental considerations cause us to limit the number of licences that may be granted, that it would be right to draw a clear line between the running of public telecommunications systems and the manufacture of telecommunications apparatus. The Government therefore believe that apparatus manufacture by any public telecommunications operator should be in a different company from that which runs the network with a different management and different accounts. The Government intend to put this policy into practice through Condition 21 of the draft British Telecom licence.

The Government believe that separation alone is not enough. Your Lordships know how funds can be transferred from one subsidiary to another through mechanisms like favourable transfer pricing. The Government believe that there should be a clear prohibition on cross subsidies between the two activities. The amendment makes no particular provision for this. Nor do the later amendments 80A and 80B deal with this matter. The Government believe that assistance can take forms other than money. There are various forms of preferential treatment, and we believe that these should also be prohibited. The Government intend to put this policy into effect through Condition 18 of the draft BT licence read in conjunction with Condition 21.

The second aim of the amendment is to limit the scale of a public telecommunications operator's manufacturing activities to the capacity at the date of the licence until it has established a separate subsidiary company. This idea may reflect the fact that in the draft licence British Telecom was given a two-year period of grace before it is required to have completed setting up its apparatus manufacturing company. We are well aware of the universal criticism of the two-year period of grace and we understand the concern about what could happen during this interim period. My right honourable friends in the Department of Trade and Industry are considering this aspect of the matter. The proposal that there should be some limitation on the scale of British Telecom's apparatus manufacturing activities during the period of grace is an idea that has not been suggested in any of the other representations that we have received on the licence. We are grateful to my noble friend for pointing out the problem.

Thirdly, the amendment deals with the production of prototype apparatus. As drafted, the amendment would stop British Telecom producing any new apparatus in prototype quantities after the appointed day. I am not sure that that is the effect that the noble Lord intended, but I should explain our view.

We wish to encourage British Telecom to engage in research and development work in telecommunications. I emphasised that earlier when dealing with an amendment from the noble Lord, Lord Lloyd of Kilgerran. British Telecom has aready achieved significant results, particularly in fibre optic cables and view data. We want British Telecom to do even better in future. But research and development necessarily involve the production of small quantities of prototype apparatus. British Telecom must be allowed to do this if it is to continue its research. However, as soon as production rises above prototype quantities, it should be transferred to the manufacturing subsidiary. Moreover, the subsidiary should pay the market price for the intellectual property—know-how, et cetera—involved in the apparatus. The amendment does not seem to deal with that aspect of the necessary arrangements.

Fourthly, the amendment states that British Telecom or the manufacturing subsidiary should not manufacture at all unless there has been an open tender arrangement and the director is satisfied that the arrangements are fair and reasonable. This arrangement, as drafted, appears to us to be impracticable. At present British Telecom is marketing to consumers a new telephone handset which it has manufactured itself, and the marketing is on the usual commercial terms. If the amendment were adopted, British Telecom's apparatus subsidiary would have to go through open tender arrangements before it even made, let alone sold, a single telephone to a consumer. This, as I have said, seems to us to be impracticable.

What the Government intend instead is that when British Telecom itself purchases 25 per cent. or more of any description of telecommunications apparatus, it will not be allowed to purchase such apparatus from its manufacturing subsidiary, whether for sale to members of the public or for use within its network, unless it has gone through an open tender procedure agreed with the director. I believe that this arrangement is practicable and will deal with a mischief which causes my noble friend, and those who support this amendment, concern.

Finally, the amendment seeks to prevent any public telecommunications operator—not just British Telecom—from acquiring more than 15 per cent. of any company producing apparatus used by that operator or for connection to its network. This is the only aim of those who have put forward this amendment with which the Government essentially disagree. One of the aims of liberalisation and privatisation is to ensure that the British information technology industry is able to respond to the rapid technological developments which are now occurring, and to convert these into British technology, British manufacturing, British jobs and British exports.

Recent and current developments in technology have broken down old distinctions between telecommunications, data processing and even entertainment. There is a convergence of technologies and regrettably many of the prizes are being carried off by others. It is increasingly apparent that firms do better in the market place if they combine expertise gathered from the different branches of the converging technologies. We welcome the participation of manufacturing firms like GEC, Thorn, EMI and local cable systems, some of which will we hope become public telecommunication operators. We would not want to stop them.

Overall, we wish British companies to play a full role in the development of information technology and we would not want to see a situation in which an innovative British firm, which needed to develop an idea in association with a large information technology company, could not enter into a joint venture with British Telecom because of a general prohibition like the one in the amendment. We think that joint ventures must be allowed, but I agree with my noble friend that this aspect has to be kept under careful review. That we intend to do. I hope that, in the light of this explanation, my noble friend may feel able to withdraw the amendment.

The Countess of Mar

I wonder whether the noble and learned Lord could possibly clear up one small point? At present, British Telecom manufactures small quantities of aids for the disabled. Obviously if these were put out to tender, they would just fall flat because nobody would want to know about them. Will British Telecom still be allowed to go on manufacturing these aids?

Lord Mackay of Clashfern

With respect, I think that that question is answered by what I said earlier; namely, that the Government intend that when British Telecom itself purchases 25 per cent. or more of any description of telecommunications apparatus, it would have to go through the open tender procedure. I would foresee no difficulty from the point of view of the apparatus that the noble Countess, Lady Mar, mentioned.

Lord Bruce of Donington

We on this side of the Committee would sustain the noble and learned Lord in his opposition to the amendment moved by his noble friend; but we find the noble and learned Lord's remarks far more menacing than the amendment itself. So far as we can see at the moment—and we shall have to study what he said in Hansard tomorrow—it would seem that, even assuming that manufactures are made on almost identical terms and on a fair competitive basis, British Telecom will be denied the economies of scale which of course have a very great impact upon price.

British Telecom over many years, first of all at Dollis Hill and later on at Martlesham, have developed a very formidable R and D department, and have been responsible, as has already been pointed out, for many discoveries in which private enterprise is only too happy to back them. Indeed, one of the purposes of the Bill is that the supporters of the party opposite shall be able to batten like leeches on the achievements of this public utility. I repeat: is it to be the case that, owing to the machinations of the noble Lord's mind—in so far as these are discernible from the draft licence which we are considering—every time British Telecom brings things to a new point of production (after the employment of the appropriate production engineers in drawing up the schedules, and so on) that, if they do it better than anybody else as soon as their demand for certain assemblies or subassemblies reaches a certain point, they are to be denied it? That does not seem to me to be very consistent with the maintenance of a public service, to which the party opposite seems to be formally committed.

Lord Taylor of Gryfe

I should like to make some comments before the noble Lord, Lord Mottistone, withdraws his amendment—and I should imagine, in the light of the statement made by the Minister, that withdrawal is inevitable because the Minister has conceded the case for the amendment and has even been more generous than is provided for in the amendment. I said on an earlier amendment that we on these Benches would do nothing to impede or frustrate British Telecom. I must say that the fewer constraints that are put on this company, the better for the efficient operation of the company. But from the statement just made by the Minister, there are a whole series of constraints that he wishes to build around British Telecom, and they are very serious.

I was for some years a member of the Board of British Rail. We had British Rail workshops manufacturing engines and rolling stock, and so on, in order to run the railway system. If the same constraints were to he put on British Rail, they would be prevented from manufacturing the apparatus which carries railway passengers. What noble Lords are saying is that British Telecom should simply run the system and should not be permitted to manufacture the apparatus. By the same token, we could apply the same provisions to British Rail, and say that they would not be permitted to have their own workshops manufacturing their own equipment; that their purpose is simply to carry passengers.

An interesting point—and I see that the noble Lord, Lord Howard, is in his seat—is that as a spin-off, the British Broadcasting Corporation has developed a highly efficient computer. If we were to apply the same constraints to the BBC and say that its job is to run the television programmes, it would not have been possible for it to manufacture the computer and to put it on the market. I believe that it is for the board of the new company to decide whether or not a vertical operation would be in the best interests of the shareholders and the company. They will look at the market for apparatus; they will look at their research capability; and in their wisdom they will decide whether it is better for them to manufacture on their own behalf or whether it is wise to buy-in the equipment.

From time to time they may even test the market. But it is surely not in the interests of British Telecom to manufacture something they that they could buy outside. They are entitled to test the market, but they are also entitled to the freedom to test the market, and in the statement that the Minister has made that freedom is being denied. They will he prevented from manufacturing apparatus on their own behalf; therefore, they must go to the market. They will not be able to test their own capacity against that of outside manufacturers. I am sure that the amendment is about to he withdrawn, but at the same time I am somewhat alarmed at the constraints which the Minister has mentioned will be placed on this company.

Lord Mottistone

I thank my noble and learned friend very much for his remarks. In any case I did not think that the wording of the amendment would be perfect. I was amused at the number of things which we had not thought of and which my noble and learned friend had thought of in order to strengthen the amendment, which were very good to hear.

To deal with the remarks of the noble Lord, Lord Taylor of Gryfe, the whole thing would be easy if the company did not have a monster monopoly. That is the problem. Otherwise, one would go right down the road with all that he said. If it only had half the monopoly it has now, it would be manageable; but to go into the market place with 90 per cent. of the market means that it needs some restraint. I particularly liked the remarks of my noble and learned friend about the prevention of cross-subsidisation. However, as was foreseen, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 80, 80A and 80B not moved.]

Clause 10 [The telecommunications code]

8.13 p.m.

Lord McIntosh of Haringey moved Amendment No. 81: Page 12, line 2, after ("be") insert ("especially").

The noble Lord said: It may be for the convenience of the Committee if I say that this is the first of a long series of amendments concerned with the protection of the physical environment, and that I propose to speak on this relatively unimportant and formal amendment by referring to most, if not all, of the subsequent amendments. It will not shorten the debate on this amendment, but it may make it easier to shorten the debates on the subsequent amendments.

It is only in this subsection that there is reference to the physical environment. It is left to the telecommunications code, which comprises Schedule 2 to the Bill, to go into detail about the protection which is to be afforded to the physical environment and to individuals who are affected by telecommunications operators' systems and apparatus.

It is necessary to write in extra protection for the physical environment where no extra protection has existed in the past because of the legal and practical changes which will take place as a result of this Bill. For example, it is proposed that British Telecom will lose the planning exemptions which it has had up until now under general development orders and special development orders. That is an example of a legal obstacle which has now changed. An example of a practical change is that if we take the object of the legislation seriously and we have a large number of telecommunications operators, we are faced with the possibility of many cables, including the possibility of many overhead cables, affecting our streets, our cities, our farmland and our areas of natural beauty.

The object of the amendments which are proposed here is that the responsibility for the protection of the physical environment should be taken out of individual licences and put explicitly into the telecommunications code, which comprises Schedule 2 to the Bill. This is not merely a matter of convenience; it is certainly not particularly a matter of profound political principle or political decision; but it is a matter which is important to those who wish to understand their rights and the rights of those who wish to protect the physical environment.

Imagine the position of someone who learns of the threat of overhead wires in an area of outstanding natural beauty. In order to understand the nature of the threat which he apprehends, he has to look in the licences of all the potential operators who might be posing the threat to the area of outstanding natural beauty. He has to look in all the different codes of practices which might be relevant to the operations of these telecommunications operators. Practically, it would be impossible for any individual objector—and the objectors to the despoliation of the physical environment tend to he scattered, weak, ill-informed and ill-served by bodies of lawyers and civil servants—to mount an effective opposition to threats to the physical environment. Therefore, the intention of these amendments is that the telecommunications code should he as explicit as possible so that no special protection is needed in the individual licences.

Perhaps I may refer briefly to the individual amendments so that your Lordships can gain an idea of the kind of protection which we believe should be incorporated in the telecommunications code. I come first to Amendment No. 83:

Amendment No. 83: Page 89, line 4, at end insert— (" "the physical environment" includes—

1. (a) the architectural, archaeological or historic character of any building, structure, feature or area,
2. (b) the natural beauty and amenity of the countryside or an open space or garden, and
3. (c) the conservation of wildlife or any physiographic feature").

Amendment No. 83 defines the physical environment. There is no definition elsewhere in the legislation. If we are to talk about its protection, it is desirable that it should he defined, and defined as explicitly as possible, as including, for example, archaeological sites as well as areas of natural beauty.

Then we come to Amendment No. 85, followed by Amendments Nos. 90 and 91: Amendment No 85: Page 89, line 38, at end insert—

("Protection of the physical environment

1A. All telecommuncation apparatus under this code shall be planned, installed, maintained or altered having regard to the need for protecting the physical environment and this shall not be avoided solely by the payment of compensation to any person claiming to be affected."). Amendment No. 90: Page 97, line 33, leave out ("paragraph") and insert ("paragraphs 1A (Protection of the physical environment) and"). Amendment No. 91: Page 98, line 18, leave out ("paragraph") and insert ("paragraphs 1A (Protection of the physical environment) and"). Amendment No. 85 refers to the need for actual protection which cannot be bought off by compensation. Compensation is short-lasting. It benefits those who have some claim to compensation; it does not benefit those who come afterwards and who are the users and enjoyers of the physical environment. Compensation is no substitute for prevention of despoliation of the physical environment, and the intention of these amendments is to ensure that we have prevention, not compensation.

Then there is Amendment No. 87: Amendment No. 87: Page 96, line 23, at end insert ("or on the ground that the works necessary to afford the potential subscriber access to the operator's system would cause undue damage to the physical environment."). This amendment refers to the possibility that a telecommunications operator may, by virtue of his obligations to a subscriber or potential subscriber, be obliged to seek powers to damage the physical environment. The intention of this amendment is to say that damage to the physical environment is a valid reason for objection to the proposed despoliation.

The next amendment is Amendment No. 88:

Amendment No. 88: Page 97, line 13, at end insert— ("( ) Sub-paragraph (1) of this paragraph shall not apply to an agreement or covenant imposed by or for the benefit of the National Trust, the National Trust for Scotland, a local authority or any other body for the protection of the physical environment."). This amendment is a very important amendment indeed, and refers to the status of covenants with the National Trust, the National Trust for Scotland, local authorities and all other bodies concerned with the protection of the physical environment which at the moment have covenants with landowners, tenants and others to ensure the continued use and protection of the physical environment. As the legislation stands at the moment, the telecommunications code allows for the possibility that these covenants could be overridden by agreement between a telecommunications operator and subscribers, and that such an overriding of covenants could be permitted by the Office of Telecommunications and the director general. Our amendment is designed to close that loophole.

I come now to Amendment No. 89:

Amendment No. 89: page 97, line 31, at end insert— ("( ) The operator shall be responsible for restoring as far as practicable the surface of the street, highway or land to its condition before any of the things referred to in this paragraph had been done.") Amendment No. 89 refers to a matter which, again, is of very great importance indeed; namely, the restoration to its original condition of land which could be farmland, common land or whatever kind of land, and also streets and highways, after the completion of the work of making a telecommunications installation. This is a matter which has been threshed out over many years in environmental circles. For example, the protection of farmland in which gravel working has taken place has largely been in the form of the requirement that the land should be restored to its original beauty, to its original condition, or to its original agricultural value after the work has been completed. That is the intention of this amendment—to ensure that those rights and those powers to ensure adequate restoration are included in the legislation.

I now come to Amendments Nos. 92 and 93: Amendment No. 92: page 104, line 11, at end insert ("or altered") Amendment No. 93: page 104, line 16, after ("completion") insert ("or alteration")

Amendments Nos. 92 and 93 refer to the conditions in the telecommunications code about the completion of works, and the amendments seek to ensure that there is no weakness in the definition of "completion", that works of alteration to telecommunications apparatus, alterations to overhead lines, for example, also fall within the restrictions of the code. Amendment No. 94: page 104, line 17. at end insert ("or has a legal right of access to")

Amendment no. 94 refers to the legal right of access. At the moment, the legislation in the code would provide that there has to be consultation and agreement with the owner or occupier. We are proposing to add that there should be agreement with those who have legal right of access, who may well be the general public, or the general public as represented by different environmental bodies.

Amendment No. 95: page 110, line 48, at end insert— ("(2) A local authority shall have the power—

1. (a) to require the removal of any telecommunication apparatus that appears to be abandoned.
2. (b) to remove abandoned telecommunication apparatus where the operator has failed so to remove after reasonable notice, and
3. (c) to recover from the operator all expenses incurred under paragraph 22(10)(b) above.")

Amendment No. 95 deals with the problem of the removal of disused apparatus. I am sure your Lordships will have seen around the streets of our cities the large number of dead cars which have to be removed by local authorities from the highway, and the powers to remove them have been achieved with some difficulty by local authorities over the years. This is an essential part of the protection of our urban environment, and I wish it were so for our rural environment as well: there should be powers to remove disused cars. The same should apply to disused telecommunications apparatus, and the amendment seeks to provide that local authorities have the same powers as they have for the removal of cars.

I come now to Amendment No. 96. Amendment No. 96: page 115, line 9, at end insert—

("Development Orders under Town and Country Planning Acts

27A.—(1) A development order made under section 24 of the Town and Country Planning Act 1971 granting permission for the installation of telecommunication apparatus under this code shall not have effect unless approved by a resolution of each House of Parliament.

(2) A development order made in accordance with subparagraph (1) above shall contain provisions enabling the local planning authority to require to be consulted on proposals for telecommunication apparatus in national parks, areas of outstanding natural beauty, conservation areas and other areas of high amenity or historic value or special scientific interest and to have the right to require the operator to apply to the court under any of the provisions of this code where objection could be raised by an occupier or owner affected by the apparatus".)

This amendment refers to general development orders involving telecommunication apparatus, and requires that orders of this kind should be submitted to Parliament for approval before they are finally confirmed.

I apologise for having spoken for 10 minutes on what may seem a trivial amendment, but I think your Lordships will agree that it is necessary to make a general introduction to all these amendments so that the discussion on those amendments will be better directed if the purpose behind them—which is a single purpose—is adequately understood from the outset, rather than being pieced together bit by bit as we proceed through the amendments. They are easily recognisable. They have straightforward numbers without the accretions of ZAs, ZBs, QSs and whatever else there may be. That simply means that I got in first before anyone else!

I do believe that we have here a series of noncontroversial amendments. I shall listen with attention and sympathy if the Government find there are defects in the wording of the amendments and suggest ways of putting those defects right. But I do believe the object behind the amendments is one which will be agreed by the whole Committee and I feel sure that at the end of the debate, given goodwill by the Government, we shall see significant improvements in the quality of the legislation as well as the quality of the physical environment. I beg to move.

Lord Mottistone

Strangely though it comes from me to say so, I have great sympathy with the general theme of what the noble Lord, Lord McIntosh of Haringey, has just put across, and I shall be most interested to hear what my noble friend has to say from the Front Bench.

The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Glenarthur)

I am most grateful to the noble Lord, Lord McIntosh of Haringey, for his explanation of how his various amendments link up and their importance. However, I am bound to say that, while he mentioned a great many other amendments, he did not express in detail the intention behind Amendment No. 81. As I see it—and I strictly limit myself to Amendment No. 81 because the others are of considerable importance and I will mention them at the end—Amendment No. 81 is intended to provide for the Secretary of State to include exceptions and conditions in the licence of an operator to whom code powers are applied which appear to him to be especially "requisite or expedient" for the purpose of securing that the physical environment is protected and that the other matters in Clause 10(4) are dealt with. I have to tell the noble Lord that, so far as drafting is concerned, this amendment is quite superfluous. The phrase "requisite and expedient" covers all eventualities and allows the Secretary of State to include any conditions and exceptions necessary to secure the particular objectives mentioned.

The phrase "requisite and expedient" is a well tested legal formula and I see no reason to qualify it as this amendment suggests. What is more, the addition of the word "especially" before the words "requisite or expedient" would have the opposite effect to what I imagine the noble Lord is seeking to achieve, for it would enable the Secretary of State to include in licences only those exceptions and conditions which were especially requisite or expedient for the purpose of securing that the physical environment is protected.

Nonetheless, as I think I indicated earlier, we realise that there are important issues to be debated on Schedule 2 and I think that it would be best if we dealt with the substantive matters of concern in that context—for example, in relation to the protection of the physical environment to which the noble Lord has referred. So I hope that, with that explanation of this particular amendment, he will not press the amendment.

Lord McIntosh of Haringey

With the slight qualification that I find it difficult to understand how the addition of a word can be both superfluous and damaging, I can see the thrust of the arguments of the noble Lord, Lord Glenarthur, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cockfield moved Amendment No. 81A:

[Printed earlier: col. 514.]

The noble Lord said: This is purely a drafting amendment. My noble friend the Lord Advocate, Lord Mackay of Clashfern, in fact spoke to this on Amendment No. 75A. I beg to move.

On Question, amendment agreed to.

Clause 10, as amended, agreed to.

8.29 p.m.

Baroness Lane-Fox moved Amendment No. 82: After Clause 10, insert the following new clause:

("Compatibility with hearing aids.

. All telephones fitted to public telecommunications systems shall be compatible by internal means with hearing aids designed for use with the telephone by 1st January 1990.").

The noble Baroness said: I know from reading Hansard that my noble friend the Minister mentions very sympathetically the subject of my amendment in Amendment No. 37, and I am hoping to keep up that spirit to further this cause.

To lay people like myself, it appears that relatively slow progress has been made through medicine to ease the problems of those whose hearing is impaired. This emphasises the need for technology in electronics to come to their rescue, and telephones which can be used by people wearing hearing aids are obviously very important. It is ironic that the new electronic telephones can threaten the facility enjoyed through inductive couplers which work within the fast-disappearing Type 700 telephone. This is a blow technology can strike against the attempt made by those who are deaf to be useful, integrated people. To be unable to use the telephone seriously disrupts their social and business lives, their enjoyment and promotional prospects.

Do not let me suggest for one moment that someone is purposely slapping down the chance of deaf people to use the telephone. The fact is that the shapes of electronic telephones are not immediately suitable to house inductive couplers, but they are cheaper to manufacture and to purchase, and they have other advantages to offer over the Type 700. One bit of good news is that British Telecom has already put out on trial some models of their electronic telephone named the Statesman, and that model has already been adapted for use with inductive couplers. Reports are encouraging and British Telecom is being helpful over this trial. However, the shape of their Viceroy telephone and others made elsewhere but of similar oblong design makes the question of adaptation of these a difficult manufacturing problem.

Nevertheless, I hear from a spokesman of the British Association of the Hard of Hearing, Mr. Hart, who is expert in these matters, that there really is no technical reason why these models cannot be made compatible. The actual cost of an inductive coupler, I understand, is about 30p. It is estimated that approximately 6 million people would benefit if all telephones were made compatible with hearing aids. In my family I happen to have three members who use hearing aids, so I can vouch that the question affects the whole household.

In the past four years things have improved. During that time BT agreed to make the necessary adaptations to 77,000 public telephones, and they now say that this work will be completed by April. The fears of people with their hearing impaired now lie not only in what I have already described but also with electronic telephones waiting to enter the market and which use, I am told, piezoelectric crystals. The tiny amount of current having to be used within them makes it hard for the telephones to operate properly with inductive couplers, or for amplifying handsets to be fitted to them.

To look at the economic aspect, it is important to remember that 6 million people can benefit from having all telephones compatible with hearing aids. As it is now many already have telephones in their homes which are mainly used by other people. It is estimated that those people whose hearing is impaired, with telephones that they cannot now easily use, number about 2 million, and that armed with compatible telephones they will make at least two additional telephone calls per week and will receive per week at least two additional incoming local calls. That amounts to £18,304,000 a year extra revenue for BT even at that low estimate.

It would be wrong to miss this opportunity to try to improve the technological potential of help for hearing-impaired people; help to prevent their position from falling back—that is what it would do—if their need is forgotten at this important time in the present effort for general progress. Sir Francis Bacon, I believe, spoke of the importance of science as, "the endowment of human life with new inventions and riches". Would not your Lordships agree that this is a time when we should at least stifle any threat of man's inhumanity to man being exercised against a group of people growing, alas, particularly among the young? The amendment modestly requests that by 1st January 1990 all telephones fitted to public telecommunication systems shall be compatible by internal means with hearing aids for use with the telephone. It is my pleasure to move this amendment.

Lord Lyell

The whole Committee will have been fascinated and thrilled to hear the main purpose of this amendment so admirably moved by my noble friend Lady Lane-Fox. She mentioned quite correctly that I had touched on this problem and this particular amendment when I was speaking on Amendment No. 37 last week, when we covered the problems of new technology and the blind or those whose sight is impaired. I recall the noble Lord, Lord Stoddart of Swindon, mentioning his interest. He went so far as to use the term that he awaited with bated breath. I hope he has not been holding his breath all weekend, and I hope that when he comes to hear what I am afraid is a rather lengthy explanation of this complicated subject, that he may be interested, as I was when I studied the entire background not just to inductive couplers, but to the new frontiers of technology.

I am sure from the explanation given by my noble friend that your Lordships will appreciate that this amendment reflects the great concern about the future availability and supply of telephones which are adapted for use by the hard of hearing. I should like to consider this as two separate problems. First, we want to ensure that the hard of hearing and the hearing impaired can continue to obtain telephones which are adapted to their needs; and, secondly, to ensure that the new telephones, with the new technology which is with us now and certainly will be improving before 1990—and not just this admirable Statesman model described so well by my noble friend Lady LaneFox—and coming onto the market in the future will also be adaptable for use by the hard of hearing.

I hope that my noble friend and those of your Lordships who are interested in this problem will not take me to task too much if I say that we believe that this amendment does not quite separate out the two problems which have different though related solutions. I stress at the outset that the Government are taking action to resolve both these problems.

May I explain as briefly as possible—and I shall keep an eye on the Clock—what we are doing and why we are doing it. On the first question of ensuring the continued availability of telephones which are adapted for the hard of hearing, the Bill and the British Telecom licence together contain a firm guarantee that such telephones will continue to be available. I spent some time on the Bill in our earlier discussions on Clause, 3, and that would have covered Amendment No. 37, so may I concentrate now on the draft BT licence.

Conditions 32 and 33 in that licence are specially concerned with the hearing impaired and the hard of hearing. Condition 32 obliges BT to continue to make available telephones which incorporate the inductive coupler. I understand that this enables people with hearing aids under present technology to use the telephone—again I stress under present technology—and Condition 32 also obliges BT to continue to make available telephones with amplifiers—and this is a separate part of this problem—enabling people with impaired hearing to use the telephone without hearing aids.

What this will mean is that the familiar Type 700 series telephone, which can be fitted with the inductive coupler, will continue to be available. I believe that licence conditions, as I have tried to set them out, are a stronger safeguard than the position at present.

Baroness Lane-Fox

May I ask my noble friend the minister whether he feels happy about the Type 700 telephones? I am told that they are becoming more and more difficult to obtain. This is what I hear from the British Association of the Hard of Hearing.

Lord Lyell

I am familiar with the telephone that we use at the moment, but I was not aware that it was called the 700. The noble Baroness referred to the percentage of telephones in callboxes which were fitted with inductive couplers. Perhaps I mght ask my noble friend to come with me to some of the telephone boxes in my rural area. If they are fitted with the familiar 700 series, I would not know whether the telephones were fitted with inductive couplers. They did not seem to me to have them, but they have the technology of the 700 series telephone. I am afraid I cannot answer my noble friend's question at this point. If I have not answered it satisfactorily by the time I come to my conclusion perhaps she will take it up with me. If I receive any information I shall give it to her, otherwise, I shall be in touch very swiftly.

I stress to your Lordships that the licence conditions will be enforced by the director. I give one brief example. If the director finds out, through a complaint or otherwise, that BT is not complying with the licence conditions—I take the example further—and is not supplying a telephone fitted with an inductive coupler to someone who wishes to use it, the director will be obliged (I stress that to my noble friends) to take enforcement action, and he can order BT to supply such a telephone.

I will not definitely say that it is the type 700, for reasons that I shall enlarge on briefly. My noble friend has enabled me to expand briefly on Condition 32. I understand that Condition 32 will ensure that the 700 telephone model continues to be available. If anyone has difficulty in obtaining a telephone with an inductive coupler, under Condition 32 the director will be able to issue the order forcing BT to provide it.

I shall now consider public callboxes. Your Lordships will see that Condition 33 of the draft licence requires BT to work towards installing apparatus in all public callboxes. For example, if we take the inductive coupler, that apparatus will enable the hearing-impaired to use that telephone. I know that there is concern that this is being done too slowly. My noble friend mentioned the gap. I believe she mentioned April this year as the target date by which BT hope to have all telephones in public callboxes fitted with inductive couplers. I am pleased to be able to say that BT have already fitted 97 per cent. of all telephones in public call offices with inductive couplers, and it hopes to have all public telephones in callboxes fitted with inductive couplers before the licence enters into force. Whether those last remarks tie up with the month of April, I do not know. Indeed, my noble friend may be ahead of me, both in technology and information, but this is the information that I have.

We are considering the possibility of strengthening Condition 33 to reflect this last point. Before I leave the matter of the licence the Department of Trade and Industry has received detailed comments from the British Association of the Hard of Hearing, and the department is considering these comments actively and very carefully. I hope that the Committee has been reassured so far on what I have said about ensuring that the needs of the hearing impaired continue to be met.

At the outset of my remarks I mentioned the second half of the problem, which is considering the future. As I am sure your Lordships are aware, I mentioned the coming technology. I am sure Your Lordships are also aware that coming onto the market are telephones which, because of their design, cannot be fitted with the inductive coupler, which is the device we have at the moment. I very much hope that a way will be found to overcome this problem, and I know that British Telecom has a study group which is at present working on this.

However, the main problem will come further on in the future with the new generation telephones, which, not because of their design but, far worse, because of their advanced technology, will not be able to be fitted with the present type of inductive coupler. It is to this problem, which is one of technology and not necessarily privatisation, that the amendment is primarily addressed. What we understand and believe that the amendment seeks to do is to ensure that by 1st January 1990 all telephones attached to public telecommunications systems shall be "compatible by internal means" with hearing aids. We sympathise with the intention, but I fear that this amendment does not achieve what it sets out to do, simply because it will be unworkable. I shall explain this and then go on to explain the steps we are taking to ensure that a solution is found.

The main reason why the amendment would not work is that nobody yet knows how to make the new generation of telephones compatible with hearing aids. It is not just the Statesman, which my noble friend mentioned, because by 1990, the target date mentioned in my noble friend's amendment, there could easily be new technology which would make the current type of inductive coupler, if not obsolete then certainly obsolescent. At present we think that inductive coupling may be the answer, but we do not know. We may take another alternative in this field. The answer may lie in adapting not the telephone but the hearing aid. I stress that we are taking steps to find out, but I do not think that we should legislate for something that we do not know how to implement.

Secondly, we want to consider the other side of the coin—the manufacturers of inductive couplers, hearing aids and telephones. This amendment would mean that the manufacturers could not bring onto the market telephones which would not be internally compatible with hearing aids. This would certainly constrain technology, and we think it would prevent developments which would not only be of benefit to a large number of consumers but would also provide export opportunities for United Kingdom manufacturers. In short, we think that the amendment will inhibit technological progress.

This is not desirable, but once more I want to repeat and stress to your Lordships that the hearing impaired will still be able to have telephones fitted with inductive couplers, regardless of technological advances, since this is assured by Condition 32 of the draft licence.

The Earl of Cork and Orrery

I wonder whether my noble friend would be kind enough to explain what an inductive coupler is.

Lord Lyell

I regret to say that I have not used one, nor seen one, but if I am able I shall try to find a brief explanation. I know exactly where I shall go to obtain a brief explanation. If I cannot obtain something in printed form from my regular advisers, I know precisely where I shall go. It is to a Member of your Lordships' House, but I had better not call him my noble friend. I shall inquire for my noble friend where I can find a diagram of an inductive coupler. I stress that I have not yet used one: I am able only to explain what the inductive coupler does at present, and what we hope it will continue to do, as far as is possible. I take my noble friend's point, and if I can help him I shall.

Baroness Lane-Fox

May I interrupt my noble friend for one moment to say that it was described to me by somebody fairly expert as being little more than two bent pieces of wire which happen to alert the particular point at the right time.

Lord Lyell

My noble friend is absolutely correct. I have a fascinating heading, which I am sure my noble friend will appreciate. Perhaps even your Lordships will appreciate it. The heading is, "Unfair". But we are used to unfairness and unfair questions being thrown at us with such charm by my noble friend—indeed, by both my noble friends. An inductive coupler is, in general, a small coil which amplifies the stray magnetism in the telephone; that is, in the hearing piece. With enough stray comment, perhaps I may continue to try to satisfy your Lordships' curiosity in the hard-of-hearing and the hearing-impaired about what we want to do and how we hope that new technology may bring differing solutions. All the time, we continue to bear in mind the problems of the hearing-impaired and the hard-of-hearing and of how we hope that this will be achieved through the conditions of the licence and in the Bill.

If I may conclude the discussion of the amendment, we believe that it is impracticable because, as we understand it, it is addressed to all telephones—that is, the 700 and any older models, and not just new ones. I understand that at present there are nearly 29 million telephones attached to BT's network alone. Very many of these telephones will not be replaced before 1990. Thus, the amendment is going to mean that, on 1st January 1990, someone, somewhere, is going to have to fit inductive couplers to all these telephones and, indeed, to all those attached to other public telephone communication systems—which I think my noble friend and your Lordships will admit would be an enormously expensive task.

I hope that I have explained why we believe the amendment to be impracticable. I stress that the Government recognise that there is a problem with the hearing-impaired and hard-of-hearing and are already taking steps to find a solution. The DTI has set up a working group of experts. This group includes representatives of the hard-of-hearing, of the British Association of the Hard of Hearing and the Royal National Institution for the Deaf. It includes the manufacturers, British Telecom and the Department of Health and Social Security. I stress to my noble friend and to the Committee that there is no question of the hard-of-hearing or the hearing-impaired, as my noble friend said, falling back.

May I conclude by stressing what this working group is doing? They have clear terms of reference. They are looking at the problems: both at the present problems which have been so admirably set out by my noble friend and at the future of adaptations of telephones of all types for the hard-of-hearing. In particular, this group is going to be looking at the new technology. No doubt one of the things that they will be looking at is the possibility of a requirement that all telephones must be adaptable. I do not want to prejudge their findings, especially in view of my own knowledge of technology, which has been shown to be somewhat lacking this evening.

As I stressed earlier, it may be that adaptations to hearing aids also offer a way forward. It is a complex area but I hope that the working group in due course will advise the Government on the next steps. I stress that this is a longer-term problem. The old familiar telephone, be it the Series 700 or the even older ones, will not disappear overnight. The future availability of the Type 700 and the current telephone is assured by Condition 32; but there is no doubt of the Government's determination to find a solution to the long-term problem. I have spent a long time, and I apologise for this; hut, judging by the fan mail and the encouragement that I got on Amendment No. 37, I hope your Lordships will forgive me for spending time on this subject. I hope that I have reassured the Committee and I would ask my noble friend whether she is able to accept my comments and possibly to withdraw her amendment.

Baroness Lane-Fox

I am grateful to my noble friend the Minister for a very full reply. I feel very responsible in speaking for so many who are waiting on the answer to this question. I feel that the answers that my noble friend has given are quite enough for us to wait and be vigilant and to make sure that we keep everybody up to the mark on this. I am sure that the last thing that hearing-impaired people would want would be to hold back technology. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.55 p.m.

Lord McIntosh of Haringey moved Amendment No. 83:

[Printed earlier: col. 534.]

The noble Lord said: This is where I hope the benefits of my encroaching on your Lordships' time on the preceding amendment will become apparent. The intention of this amendment seems to me so self-evident that I cannot think that there will be difficulty on it other than with its wording. Clause 10 refers to the protection of the physical environment and the preservation of the natural beauty and amenity of the countryside, both of which are admirable objectives. The intention here is to spell it out and to be more precise about what is meant by the physical environment, to ensure that we are talking about architectural, archeological and historical characteristics and that we are talking about the conservation of wildlife as well as the physiographical features. I shall await the friendly comments of the Minister.

I would say only that it would be helpful if the Government could indicate in their reply on this amendment whether the basic objective behind the series of amendments—which is to make the telecommunications code as explicit as possible and to avoid further definitions and conditions in individual licences—is acceptable to the Government; and whether the Government are in sympathy with that objective. It would help in understanding the Government's reactions to later amendments. I beg to move.

Lord Howard of Henderskelfe

I rise for one minute to say that my definitions in the amendment to which we are coming shortly are much more specific and specialised than are the definitions of the noble Lord, Lord McIntosh of Haringey. This does not mean that we are not in many respects trying to cover the same ground: it merely means, I think, that he is a generalist and, in this. I am a specialist. I think that we are both trying to achieve the same kind of object and therefore I would commend his amendment to the Government in saying that it may be that the one or the other, the more specialised or the more generalised description, may be appropriate in this case. I do not presume at this stage to judge.

Lord Glenarthur

The noble Lord explained at some length the purpose that lay behind his series of amendments when he spoke to an earlier amendment. Does the noble Lord wish to intervene?

Lord Bruce of Donington

I query the phrase "at some length".

Lord Glenarthur

Not at greater length than has been the case with other amendments, no; but it is a question of comparison. What I want to put across, without wishing in any way to pre-empt the amendments which are going to come in later on, is that this amendment rather than the earlier ones to which he spoke is probably in a way setting the tone for the others.

I begin by assuring the Committee that the Government regard the matter of the physical environment as of importance and that we have already taken steps to guard against the possibility that the powers in the telecommunications code could be used in a way which could have unfortunate consequences for the environment. At present, the basic legislative safeguards for the environment are to be found in the Town and Country Planning Acts, which establish controls designed to ensure that a whole range of activities can be controlled in such a way as to protect the physical environment.

In the context of this amendment, your Lordships may be aware that the Department of the Environment has recently issued a consultative document on the revision of the general development order under the Town and Country Planning legislation. The consultative document deals, among other things, with the planning aspects of telecommunications. It makes the point that the planning system will have to reflect the changes that this Bill will bring about and also accommodate the growth of telecommunications without either imposing unnecessary restrictions or allowing what is described as serious damage to physical amenities and telecommunications development. It proposes therefore that all telecommunications operators to whom the powers of a telecommunications code are granted should be given permission under a revised general development order to install minor telecommunictions apparatus such as wires, poles, small antennas and similar things, without the need to seek specific planning permission in each case.

Some arrangement of this kind is essential in order to avoid overburdening the planning system. However, the proposals put forward in the consultative document envisage that they would be put into effect against the background of firm licence conditions framed under the powers of Clause 10(3) and (4) of the Bill, qualifying the use that a particular operator may make of code powers.

Part 5 of the draft licence indicates what kind of conditions we envisage imposing. I think that they go a very long way towards meeting the concerns expressed by the noble Lord in his amendment. For example, there are specific conditions which require all new telecommunication lines to be placed underground in conservation areas, subject to very minor exceptions. In saying that these concerns have been met, I do not at all wish to appear too categorical. We have deliberately made available the licence in draft form, as the Committee knows, so that we might benefit from informed public comment upon it. Regarding Part 5, we have so far had very little reaction, and this and related amendments have given us the first real opportunity to consider whether what we are proposing is adequate.

Turning to this particular amendment, it would be unfortunate, given the framework of the general development order and the licence conditions which I have just outlined, to embark on a third avenue, what amounts to a planning control for the telecommunications code itself. We already have a provision in Clause 10 which deals with the protection of the physical environment through licence conditions; and it may be that before concluding that the code should be modified, your Lordships would wish to consider whether the description in subsection (4) should he further particularised in order to cover some of the categories of the environment covered in this amendment. I have to say that the Government's initial reaction is that that would not be a particularly satisfactory course to adopt since the more detailed the definition, the more likely it is to appear to exclude those areas not specifically mentioned.

May I also add in this context that the movers of this series of amendments are not perhaps fully aware of' the way in which the licence conditions will be formulated in order to protect the environment. The BT licence is in a special category because it needs to be in effect on the appointed day when the Act comes into force. Other licences which grant code powers, for example to the new cable system, will be the subject of public consultation with those who will be affected by the exercise of code powers. Thus the relevant local planning authority will be consulted in each case before code powers are applied and it will have the opportunity to suggest what particular restrictions or requirements should be introduced into its own area to meet the particular needs of the locality. I firmly believe that this offers a far more flexible and acceptable approach to dealing with these sensitive matters than laying down rigid general rules in either the code or the general development order.

In summary, I hope that what I have said has been sufficient to indicate the Government's receptiveness to suggestions for improvements of the licence conditions related to the telecommunications code. I hope it has given the noble Lord the flavour of the comments that apply to the amendments which follow. I hope that he will find the explanation reassuring and that he will see fit not to press his amendment.

Lord McIntosh of Haringey

I fear that I find that reply deeply disappointing. Of course, I was well aware of the amendments proposed by the Department of the Environment concerning the general development order, just as I referred in my speech on Amendment No. 81 to the prospect that BT itself, when privatised, will lose certain planning exemptions. But the noble Lord has shown no understanding of the necessity to have conditions under which the physical environment is to be protected in one single place which can easily be found—which I suggest must be in the telecommunications code. If we follow the Government's proposals we shall find that there are individual elements in each licence which will be concerned with the protection of the environment, as the noble Lord, Lord Glenarthur, has said, with reference to the only licence of which we know anything, which is the draft BT licence.

I suggest that it is not satisfactory' to have it in the licence: it is not satisfactory for those of us who are concerned with the physical environment to have to look at the licence, to look at the general development orders or special development orders to see whether Article 4 directions have been given which remove concessions in the development order. It is not satisfactory to require those who seek to protect our physical environment to embark on "a treasure hunt" in order to find the legal obstacles which they are seeking to overcome. They should he in one place, and that place should be here in this legislation.

I accept that there is more than one possible way of wording this amendment and I shall listen with interest to the noble Lord, Lord Howard, with his specialist knowledge. Only because of the possibility of improved wording at a later stage do I now seek leave to withdraw this amendment.

Amendment, by leave, withdrawn.

9.7 p.m.

Lord Glanusk moved Amendment No. 84: Page 89, line 14, after ("running") insert ("or testing").

The noble Lord said: I expressed an interest on Second Reading which I do not intend to repeat now, unless your Lordships wish me to do so. This amendment is by way of being a probing amendment. Throughout the Bill there appears to be no mention of test equipment. which is essential to the maintenance of telecommunication systems. In Clause 4 there is a definition for telecommunications apparatus, which is designed to cover such items as are connected to the line and involved with transmission of signals, such as modems and switches. It does not appear to include test equipment which does not transmit signals.

In Schedule 2 there is an expanded definition of telecommunications apparatus; but, as drafted, this appears only to refer to such items as wires, cables, tubes, pipes and poles from which apparatus can be slung, hung or submerged. The amendment that I suggest would include the word "testing", and would therefore include test equipment. If I am right in saying that nowhere else is test equipment covered, it means that this class of equipment need not be approved by any central authority before being introduced into the system.

Most modern test systems are tested in a monitoring mode; that is to say, the equipment is permanently attached to the line and it measures and records the live traffic going over the system. But if that test equipment is of a poor quality or poor manufacture, or develops faults within itself, it can introduce serious errors into the system and even cause a complete breakdown. If these two words in the amendment are inserted, I hope that that will cure that problem and will require that all test equipment must be approved before being introduced into a system.

While I believe that this amendment is important to the safety of telecommunications systems, I should mention that there are some 300 or 400 types of test equipment produced by four or five manufacturers and, therefore, the job of inspecting and testing these is by no means inconsiderable. Clause 24 mentions meters, but from my reading of it this appears to cover only customer-charging meters or—the noble Countess, Lady Mar, will correct me if I am wrong—what are called "tollmeters" by the Post Office, and I do not think that the question of test equipment will fit into this clause. I therefore recommend this amendment to your Lordships. I beg to move.

Lord Bruce of Donington

It occurs to us that this may be a matter of interpretation of the word "running", and I think that the word "running" is nowhere defined in the Bill. But I do not see how you could run a telecommunications system without at some point making use of test equipment, and therefore I think that the existing wording covers the point. That is the only observation that we have to offer.

Lord Lyell

We are very grateful to my noble friend Lord Glanusk for filling us in on some very interesting technical problems and details, and he moved his amendment succinctly and with great clarity. My noble friend mentioed the term "telecommunications apparatus." I assure him and your Lordships that telecommunications apparatus is covered by the definition in paragraph 1 not only when a system is being run to provide a service to customers but also when it is undergoing testing and when the apparatus is being installed and the system itself cannot be either run or tested.

Under Clause 10 of the Bill the provisions of the telecommunications code contained in Schedule 2 to the Bill have effect when they are applied to a particular person by a licence authorising that person to run a telecommunications system. When a person, like the prospective operator of a local cable telecommunications system, is granted a licence he will not actually be running any system: he can do this only after he gets his licence and he will have to do several things before he can actually run a system. For example, he will have to install apparatus in his studio and in the streets: then he will have to connect it to individual customers' premises, and then he will have to test it satisfactorily before he provides a service.

The code is drafted to assist all these processes of installation, testing and running. Paragraph 9, for example, authorises a person to whom the code is applied to execute street works so that he can install telecommunications apparatus like ducts and cables under the highway, which he will have to do well before he actually provides a service. Because the code is applied to a person, the definition of "telecommunications apparatus" in paragraph 1 applies to such ducts and cables during the installation phase when the system is not being run at all.

The actual process of testing is embraced within the words "running of a telecommunications system". Testing involves the sending of sounds, visual images or signals over the system to check that they are received correctly and that the apparatus functions correctly. This sending and receiving must involve the conveyance of messages, and hence the operation or running of the system. I stress to my noble friend that the system cannot be tested without, under the definition that is provided in paragraph 1, being actually run.

I would go a little further and stress that apparatus which is specially designed for test purposes is covered by the definition of "telecommunications apparatus", which was referred to by my noble friend, in clause 4(2) of the Bill. It is also included in the definitions to be found in paragraph 1 which we are discussing now, since it is apparatus constructed or adapted for use in transmitting or receiving signals sent by means of this telecommunications system. I hope that explanation has been sufficient to set my noble friend's fears at rest.

Lord Glanusk

I am not convinced by what my noble friend has said, but in view of the fact that it is in the interests of my company that test equipment should not have to obtain approval I shall gladly withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 85: Page 89, line 38, at end insert—

("Protection of the physical environment

1A. All telecommunication apparatus under this code shall be planned, installed, maintained or altered having regard to the need for protecting the physical environment and this shall not be avoided solely by the payment of compensation to any person claiming to be affected.").

The noble Lord said: There are two elements in this amendment. The first part attempts to write into the telecommunications code the need to protect the physical environment which I tried, by means of an earlier amendment, to define more precisely—and to define not in totally new words but in words which, as in Clause 10(4)(a), come from the Countryside Act 1968. The second part of the amendment is designed to ensure that it is not possible for a deal to be done between an operator and an owner or occupier under which the owner or occupier, or both, are bought out, leaving the damage to the environment for successive generations. It would he a valuable addition to the protection of the physical environment if that kind of buy-out of what, over the years and centuries, have been public rights were to be prohibited. I beg to move.

Lord Glenarthur

Certainly there must be clear and adequate safeguards to protect the environment in the context of telecommunications development; but we believe that those safeguards are best provided by means of licence conditions constructed under the general powers of Clause 10 rather than by limitations in the code itself. The code is designed to replace the Telegraph Acts. We do not think that the case has been made for a change of approach of the kind which the amendment proposes.

What the amendment tries to do is to introduce a statutory duty which would require all telecommunication apparatus installed under the code to be installed having regard to the need for protecting the physical environment. This is certainly not a precisely worded duty. Even as it is worded, it would open up the possibility of a considerable amount of vexatious litigation by those with, perhaps, questionable motives who might wish to frustrate the activities of telecommunications operators. It also introduces the possibility of a clash of objectives when, for example, the court, under paragraph 5 of the code, has to consider whether, at the operator's request, the agreement of a particular person to the installation of apparatus should be dispensed with. The amendment makes no attempt, as far as I can see, to reconcile the proposed new statutory duty with the principle upon which the code is based and to which the court is required to have regard; namely, that no person should unreasonaby be denied access to a telecommunications system.

Our view is that while this amendment is undoubtedly well intentioned, its consequences perhaps have not been fully thought through. I hope that the noble Lord will therefore agree to withdraw it. Having said that, I can give an undertaking that we are receptive to proposals for safeguarding the environment through the mechanisms which I previously described.

Lord McIntosh of Haringey

It would be helpful if the Government were to go slightly further and say that they are sympathetic towards the objective of securing that damage to the environment is not occasioned by a deal between an operator and an owner or occupier to buy out the rights. That is the second part of the amendment. It would be helpful if the Government were to say that they would look at whether this could be incorporated in licences, as appropriate—if that is the way the Government wish to deal with the matter.

Lord Glenarthur

I think that this point is already met. I should like to study what the noble Lord has said and to comment upon it at a later date, perhaps in writing. As far as I am aware, the point is covered. If it is not, I shall come back to the noble Lord.

Lord McIntosh of Haringey

I am grateful to the noble Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.20 p.m.

Lord Howard of Henderskelfe moved Amendment No. 85A: Page 90, line 14, leave out ("sub-paragraph (4)") and insert ("sub-paragraphs (4), (4A) and (4B) ").

The noble Lord said: I beg to move Amendment No. 85A, and, at the same time, Amendment No. 85B. Amendment No. 85A is purely a paving amendment for No. 85B.

Amendment No. 85B: Page 90, line 40, at end insert— ("(4A) A right falling within sub-paragraph (1) above shall not have effect so as to authorise an telecommunications apparatus to be installed, or kept installed, in, on or over any land in one or more of the under-mentioned classes unless the owner of the freehold estate in that land and every person who is (otherwise than as mortgagee) a lessee of the land is bound by his agreement that his interest in the land should be bound by the right except where the right is required to provide a telecommunications service to and only to the occupier of that land—

1. (a) agricultural land;
2. (b) land which is part of the countryside within the meaning of the Countryside Act 1968 and the Wildlife and Countryside Act 1981;
3. (c) land in a National Park as defined in section 114 of the National Parks and Access to the Countryside Act 1949;
4. (d) land in an area of outstanding natural beauty designated under section 87 of the National Parks and Access to the Countryside Act 1949;
5. (e) land which is the subject of a management agreement under sections 4(5), 7(3) and 45 of the Countryside Act 1968;
6. (f) land which is the subject of a mangement agreement under section 39 of the Wildlife and Countryside Act 1981;
7. (g) land held by the National Trust inalienably under section 21 of the National Trust Act 1907 or section 8 of the National Trust Act 1939;
8. (h) land the subject of agreements or covenants with the National Trust enforceable under section 8 of the National Trust Act 1937;
9. (i) green belt land as defined in section 2 of the Green Belt (London and Home Counties) Act 1938.

(4B) The agreement of the occupier of any land not falling within one or more of the classes specified in sub-paragraph (4A) above shall not have effect under sub-paragraph (2) above unless the operator has not less than four weeks prior to the entering into of such agreement given notice in writing to the owner of the freehold estate in, and to every person who is (other than as mortgagee) a lessee of, that land of what is proposed, has afforded such owner and every such other person not less than three weeks from receipt of such notice to make representations to the operator and has taken such representations into consideration or unless the right is required to provide a telecommunication service to and only to the occupier of that land.").

In moving these amendments I make no apology for the fact that I suspect it may take a little time. This is such a departure from the practice which has grown up over the years in relation to wayleaves and the compulsory acquisition of wayleaves of all kinds that I would be absolutely staggered at its introduction by a Conservative Government had I not long since ceased to be astonished at any action of any Government.

The main amendment which I am putting forward for your Lordships' attention is in two parts; I will come to the reason for that later. Noble Lords will also notice that it is written in extremely obscure language. There is a perfectly good reason for that. It follows the amendment which was introduced by the Government themselves in another place to Schedule 2, paragraph 2(4). It tries to follow exactly the same wording. If in endeavouring to follow this somewhat obscure wording we have somehow not quite got it right, I shall be only too delighted, with Government help, to get it exactly right.

There are many lawyers in your Lordships' Committee, and I would not presume to try to teach them the law about wayleaves, but I do not think it is possible to understand the background to my amendment and the indignation that I and many others feel at what this Bill is attempting to do unless I say something about that background. I tend normally to live in the present and the future rather than the past, and I do not therefore intend to go as far back as Magna Carta or the Bill of Rights. Suffice it to say that the true needs for compulsory purchase tended to start in the middle of the 19th century, with the growth of public utilities generally, and they culminated, I think, in the Compulsory Purchase Act 1965. This was made to apply in most cases of compulsory acquisition of land or rights over land, and these included wayleaves, the laying of cables, the putting up of poles and all the rest of it. The procedures involved service of a compulsory purchase order on every owner and occupier, the advertisement of it, the right to object, the hearing of objections, the hearing or public inquiry, and the confirmation or otherwise of that order by the Minister, with or without conditions. This applied to new roads, sewage works, power stations and a thousand and one other public works.

If I may be more specific as to the various kinds of public utilities which can avail themselves of compulsory powers, there are electricity wayleaves, for example—and electricity is essential to all of us nowadays. The landowners' consent must be sought, and if it is refused the board must apply to the Minister for a compulsory wayleave. Again, it involves the usual service of notices, the right of objection and so on, and the right to be granted the wayleave conditionally or unconditionally, or indeed, on occasion, refused. Exploring for oil, gas, et cetera, is not, generally speaking, a public utility but a private utility. There, entry had to be negotiated and compulsory rights could be obtained only by application to the High Court under the Mines (Working Facilities and Support) Act, which was indeed a formidable obstacle to those seeking such entry.

Water mains and sewers, on the other hand, had a somewhat easier path which they could follow. When they wanted to enter to construct a water main or sewer, they had to give reasonable notice to every owner and occupier of the land. Even this procedure, which is extremely favourable to those particular undertakers, requires notice to the landlord. In reality of course the various terms have been negotiated with the water authorities who are responsible for sewerage services as well, so that trunk wayleaves are obtained by agreement and not under the powers which they have under the Public Health Act. British Gas has to go through the ordinary procedures that I have already described under the compulsory purchase orders if they cannot obtain their wayleaves by agreement. If the Government wish to do oil pipeline work under the Land Powers (Defence) Act 1958 they are required to serve a draft order on every landowner and occupier, giving them an opportunity for objection and a hearing by the inspector, and so on, before making the order. Under the pipelines Act negotiations, again, have to proceed before the undertakers can apply to the Minister for these acts.

Your Lordships will see that in every case, except water and sewerage, the consent of the owner has to be obtained. In many cases this leads to a long drawn-out procedure. Therefore, just as with water mains and sewers, there is an agreed procedure which, I make no apology for saying, was negotiated by the CLA, of which I was at that time chairman of the legal and planning committee. Negotiations were undertaken with all these authorities and undertakers so that they all agreed standard practices and standard payments whereby they could go onto the land. They could get quick possession and do the work quickly without going through any of the rigmarole which had hitherto possibly obstructed them.

What is happening now? What is to happen under this Bill? Those procedures are to be entirely forgotten. The consent of the landowner is no longer necessary, with the usual safeguards which I have already described. The Bill allows private operators, not public undertakers, to by-pass landowners entirely if they do not happen to be in occupation of the land in question and obtain the necessary rights from the occupier, for the time being, without even consultation or any notice to the landowner. In fact, it is putting telecommunication operators and cable operators in a unique position which is more favourable and which seems to say that telephones and cables of whatever kind, whether for inter-active use, entertainment, or whatever, are more important than electricity, gas, water or sewerage services. Can this really be so? Can the Government truly say that they believe in the interests of those who own property and then proceed in this way?

I turn to the amendment itself. I have tried to deal with the different difficulties which occur in the countryside and in towns by separating rural land and urban land. This I have done with sub-paragraph (4A) dealing with rural land, while sub-paragraph (4B) deals, generally speaking, with urban land. There is no evidence of any kind that rural landowners have been obstructive or oppressive or prevented the undertaker, the cable operator—the Post Office as it used to be known, but now British Telecom—from obtaining lines over or under their land. There is some evidence —largely hearsay—in relation to so-called harassment of tenants in towns, in blocks of flats, by Rachman-like landlords who have prevented the tenants from getting the telephones which they wanted. Therefore, I have endeavoured to deal with this in a slightly different manner, whereby I provide for an accelerated process under sub-paragraph (4B). The essential difference between the safeguards which I provide and those which are referred to in other areas of the Bill are that I talk about "his agreement" rather than "an agreement". It is a very important difference in words.

If I seem to be darting slightly from one point to another that is because this is a very complicated matter. When I was speaking to an earlier amendment rather briefly, I said that I had tried to define rural land in a particular kind of way. We have talked first of all about agricultural land; but not all land in the countryside is agricultural land. There are other uses for land in the countryside. There are various kinds of ownership of land and of covenants over it. There are various categories of land—land in national parks, areas of outstanding natural beauty, and so on; land which is the subject of the management agreements which I think have been endorsed by all sides of this and the other House as being the best way to cope with some of the worst problems that arise in the countryside and in the protection of the environment.

May I say here that the noble Lord, Lord Gibson, has authorised me to say that my amendment has the full support of the National Trust. Unfortunately, he is not able to be here this evening. He was here last Thursday but of course we spent rather a long time on some of the earlier amendments and did not reach this one.

In this case the wording of the amendment means—although noble Lords may have some difficulty in finding that out—that the laying of lines or the erecting of poles have to he agreed by the owner. The only exception to this is where the line is for the benefit of the occupier alone and is not to serve others. Noble Lords will see that exception provided for: unless the right is required to provide a telecommunication service to and only to the occupier of that land".

I think that this is exactly in accordance with the present provisions of all the other forms of wayleave. I see no reason whatsoever why private undertakers should be able to possess draconian powers which far exceed those of the public undertakers. It will not delay the undertakers because, as I have said already, codes of practice have been agreed which will enable speedy resolution of all difficulties.

The greater difficulties which are said to have arisen in towns and which arise from the maze of sub- and head-lessees and other people who operate with town property are dealt with under sub-paragraph (4B). This provides that notice in writing be given to the owners. That ties in with paragraph 24(4) of Schedule 2, where it is not practicable to trace the owner of the land. You therefore, as it were, hammer up a notice and say, "Look, we are going to come in unless you tell us who you are". Of course, this is paraphrasing slightly what it actually says in the Bill. However, I think that it conveys my meaning.

I consider that it is of immense importance that a matter which was not discussed at all in the House of Commons and which was subjected to the fall of the guillotine—I do not know at what hour of the night that happened—should now be put right in your Lordships' Committee. Perhaps I shall be given some reason—though I cannot think that there can be any—why this extra power should be introduced at this time. The noble and learned Lord the Lord Chancellor, who sits with such distinction on the Woolsack, not so long ago gave on television a lecture which was addressed to the whole nation, in which he talked about an elective dictatorship. If we go on in this kind of way, whichever side of the Chamber this kind of draconian power comes from, we shall be well on our way to an elective dictatorship and to proving once more that we have very nearly reached it.

I beseech the Government to think again and to come back with some better protection, some better code which incorporates also all the thoughts about the environment which have been put before us by the noble Lord, Lord McIntosh of Haringey, and which I have tried to cover in my particularised definition of land of this character. If I have spoken passionately, it has been because I do not feel that there can be many people on either side of the Committee who really believe that this is a good new provision, a good way to start off what could be one of the most exciting technological developments of what remains of my lifetime. I beg to move.

9.36 p.m.

The Deputy Chairman of Committees (Earl Carthcart)

It is not permissible for the noble Lord to move Amendments Nos. 85A and 85B en bloc, as there is an amendment, in the name of the noble Lord, Lord Airedale, to Amendment No. 85B, but of course the noble Lord can speak to both Amendments Nos. 85A and 85B. I must therefore say that the amendment proposed is Amendment No. 85A.

Lord Middleton

The reason which until now the Government have given for presenting to private operators new, and as the noble Lord, Lord Howard, has said, quite exceptional rights over land is that they want to simplify and speed up the procedures for obtaining telecommunications services. That is an intention that we would all applaud, but—and I agree with the noble Lord, Lord Howard—the method proposed in the Bill is heavy-handed and I am rather surprised that the present Government should be advocating it. I therefore support the noble Lord, Lord Howard, in what he is seeking to achieve by his amendment.

Like the noble Lord, I am not aware of any evidence that the normal procedures for utility undertakings in the countryside lead to either obstruction or delay. These procedures are well understood by both public undertakers and private companies, and wayleaves and other agreements are arrived at in reasonable time. So far as rural land is concerned, where, as a rule, ownership is easily determined, I see no reason why there should not be adopted by private telecommunications operators procedures similar to those laid down under the Telegraph Acts. As the noble Lord has reminded us, they would be similar to those now used by public bodies and private companies, virtually all of which must obtain the owner's consent in order to do works.

In regard to urban land, it seems to me perfectly reasonable, and only right, that owners should he given the chance to make representations, and then all the operator need do, under the proposed new subparagraph (4B), would be to take such representations into consideration.

If an owner could not be traced either out in the country or in the town, the answer is already provided by paragraph 24(4) of Schedule 2 to the Bill as it now stands. That procedure would be applied and no undue delay need take place. The Government want (who would disagree with them?) to cut out the delays experienced by individual occupiers when they wish to be connected. Such applicants are catered for by these amendments. In their case, as I read it, consultation or consent by an owner would not be required.

The noble Lord, Lord Howard, has raised an important point of principle. As he said, it is a point that could not be argued in another place. I hope very much that the Government will give further thought to it in the same spirit with which they have already improved the compensation provisions.

Lady Saltoun

While accepting that difficulties have sometimes arisen in urban areas as regards obtaining permission from absentee owners, this is rarely a problem in the country. Merely notifying the owner or the proprietor so that he has a chance to object or possibly make constructive representations is quite another matter. Indeed, in the country, telecommunications operators have often something to gain from consulting the proprietor, who can often draw their attention to facts unknown to many town dwellers—for example, that small trees grow into big trees and that fields contain drains that you cannot see.

But this is by the way. The real point is that it is horrifying—at least it is to me—to find a Government, who, with one hand, are committed to supporting and encouraging private ownership of property (urban property, too), with the other hand writing into the Bill a provision that cuts at the heart of the law protecting the rights of the owners of property. It is totally contrary to the established law of the land. I shall go further. To try to sneak such a revoluntary alteration in the law into a schedule to the Telecommunications Bill is nothing less than a constitutional outrage. I hope that your Lordships will not tolerate it.

I hope that the noble Lord, Lord Glenarthur, will say that at least the Government will reconsider the question and will amend the schedule at Report stage. If he does not do so and if my noble colleague Lord Howard of Henderskelfe decides to press his amendment, I shall most certainly support him.

Viscount Massereene and Ferrard

I should like to strongly support the amendment. There is a difference, as all of us know, between the occupier and the landowner. There might be an occupier—say, a sheep farmer—in a beautiful part of the country, who might not have the same appreciation of the beauty of the countryside as the landowner. The occupier is the only one to be consulted. He would presumably give his consent perfectly easily, whereas the landowner might not. I am surprised that, as the noble Lord, Lord Howard, has said, a Conservative Government have brought in a measure in this Bill to deprive the landowner of an almost sacred right that he has always had.

The procedure that exists at the moment has always been fair. I have dealt with only one or two cases involving public bodies and public utilities. I have always found them extremely fair. I remember one case quite a long time ago when the electricity board was bringing electricity to the Isle of Mull. Its civil engineer was going to bring the pylons up a very beautiful loch to a very beautiful glen. I told him that I thought that this was a great pity, quite apart from the fact that, if he took the pylons up to the top of the glen, half of them would be blown down. The board was very reasonable and did not do that. It took the pylons by quite a different route where, as it turned out, there were more consumers. But if that had happened today I would not have had any say at all because some of the land is let and presumably the occupier would not have taken my point of view in the matter.

It is very odd for a Conservative Government not to have the private undertaker (and I do not mean the man who buries people) consult the landowner. After all, the landowners, especially the landowners whose families have owned land for a long time, are extremely concerned about preserving the beauty and wildlife of the countryside.

As the noble Lord, Lord Howard, has given such an excellent explanation of his amendment, I shall not waste your Lordships' time any more. However, I reiterate that I hope that the Government will bring the matter back at Report. In fact, it is not for me to say, but for the noble Lord who moved the amendment. But if the matter does not go to a Division, I hope the Government will take it away and alter it at the Report stage.

Lord Grimond

As this is a matter of some complexity—in fact, complexity worthy of the parliamentary draftsmen—I am not certain that I understand it all even after the lucid explanation from the noble Lord, Lord Howard. But in so far as I do understand it, I strongly recommend that part of it which emphasises that in rural areas landlords still have some rights. They have a long-term interest in the land, and it is only right that they should be consulted. So I merely adopt what has been said by several noble Lords already and support that part of the amendment.

I then pass on with some diffidence to ask one or two rather esoteric questions which I suspect are actually answered in the Bill, but the answers to which I cannot find. I am emboldened to do this by the return of the noble and learned Lord the Lord Advocate to the Government Front Bench. He will be aware that in Shetland and Orkney there is a form of tenure known as "udal", and that an important right of udallers is their ownership of the bottom of the sea between the high and low water marks. Under Schedule 2, paragraph 11, the tide lands are dealt with, but I am not certain that their position is safeguarded, and at some point I should like reassurance from the noble and learned Lord the Lord Advocate.

Secondly, what is the position of feus and feuars? Are those who grant feus to have any rights under the Bill? Thirdly, what about crofters? I imagine that crofters simply count as tenants. But does a crofting landlord have any rights? Has he any right to be consulted, or at least to be notified? I also ask what is the position about the common grazings or the "scattald", as they are known in Shetland, as the noble and learned Lord will be well aware. Is there an obligation to notify either the grazing constable or the grazing committee before there is any interference with the land? That is an important matter. There is also the question of peat roads, and so forth, which are of considerable importance in many parts of Scotland.

Finally, if there are disputes under this Act, why do they go to the sheriff court? There may be a good reason, but I should have thought that in many cases they would more appropriately go to the land court. I follow that not all these questions arise directly out of the amendment, but I understand that your Lordships' rules of order are pretty wide and I have no doubt that the noble and learned Lord the Lord Advocate will he able to deal with these questions extremely quickly. I hope he will give me some answers to them.

9.50 p.m.

Lord Home of the Hirsel

I probably should declare an interest. For countless years I was either a landowner or the chairman of a private land-owning company. In those years I have seen all sorts of dealings with all sorts of public corporations—electricity, gas, coal, oil, trunk roads—many of them seeking wayleaves or facilities for development. As the noble Lord, Lord Howard, has said, until now in every case the landowner was notified and the landowner had the rights which the noble Lord described. Quite often, as was natural, the original proposals made by one of these corporations cut across the development plans for the estate. However, as a matter of practice, over all those years I cannot recall a single case out of dozens in which a settlement was not reached to the satisfaction of the corporation, the landowner and the tenant.

That was a perfectly sensible procedure. Unless the Government can give some very good reasons, I do not see why it should be changed, particularly as it is proposed that a private operator should now he able to by-pass the landowner. The civilized, sensible way in which we proceed in the countryside is really for the corporation—or in this case Telecom—to consult the landowner, for the landowner to consult the tenant, and then for the three to consult together and arrive at a sensible solution. I am bound to say that I shall need a good deal of convincing that the Government's plan is better than what we have already. On the whole, I prefer solid experience to an uncertain future.

Lord Campbell of Alloway

Perhaps I may detain your Lordships for a few brief moments. I rise to support this amendment which enables the occupier to grant rights which bind those with a legal interest in land. It is a novel, substantial departure from existing law and it envisages that an occupier who puts his signature on a printed form presented by the operator will give a right to enter land and execute works.

An occupier may be a mere squatter: he could even be a bare licensee at the will of a lessee, a sub-lessee or a freeholder. One only has to start contemplating the actual circumstances on the ground of what quality an occupier may be to consider how unacceptable it would be for someone in that position to be able to bind anyone with a legal interest. It is wholly essential that before entry those with a legal interest in the land—whether leasehold or freehold—should have some opportunity to make representations. An attempt should be made—and this is all that I submit should happen—to serve those with the legal interest. Some suitable machinery should be devised; and only if such an attempt fails should there be resort to this peremptory procedure. Those with a legal interest must he given notice and an opportunity to make representations. I agree with the noble Lord who has already said that an important legal interest is at stake. Is this not another aspect of the Bill where the Executive presumes overmuch?

Baroness Elliot of Harwood

I should like to support this amendment very strongly indeed. I agree with everything that has been said by the noble Lord, Lord Howard, and by the noble Lady, Lady Saltoun. I have had the same kind of experience as my noble friend Lord Home, only on a much smaller scale. I have lived in an area which is very large and wild and in which from time to time electricity, drainage and other services have been proposed. Unless one has had the opportunity of giving advice (let alone anything else) as to the best way in which to do something, it will all have been done extremely badly.

I think that is the safeguard this Bill will have if you put in these amendments. I hope that the Government will realise we are not speaking in any sense of selfishness or of wanting to lord it over anyone. We are speaking in the sense that this is the best way to do it This will be the best way to do it; it will bring the best advice, and the best results. It is nothing short of madness not to incorporate these amendments in the Bill. To me, what is there now is extremely unfortunate, and I never dreamt that a Conservative Government would put forward something so dictatorial and something so out of tune with what we normally feel in the countryside and elsewhere. I support this amendment very strongly indeed.

Lord Northfield

We are all indebted to the noble Lord, Lord Howard of Henderskelfe, for spotting this point in the Bill. I must confess that anyone who follows these matters must be very puzzled by the present drafting of sub-paragraphs (3) and (4) on page 90 of the Bill. I hope that the noble Lord will address himself to this point when he replies, because what the sub-paragraphs seem to say is that the occupier whose consent is needed for these works will not have sufficient authority to give his consent unless he has had an agreement in writing from the landowner that he shall have this authority to give such consents. I have rather convoluted it, but what it seems to say—

Lord Howard of Henderskelfe

With all respect, this is telecommunications apparatus exceeding 15 metres in height—and if I am right, that is about 45 feet. That is a great pylon, in other words. That is what that refers to. There are the words "an agreement" which can be an agreement of the occupier; it is not necessarily an agreement of the owner.

Lord Northfield

I am much obliged. I am with the noble Lord, Lord Howard of Henderskelfe, all the way. All I want to say is that the right of the occupier to give these consents seems to be limited to cases where he has an authorisation of some kind from the landlord to possess these powers. What I do not understand is what happens if landlords in general begin to say, "We will now include a clause in all the leases specifically withdrawing such powers from the occupier". In that case the utility concerned, I presume, will have to go to the landowner for his consent if the occupier by his lease is deliberately not allowed to have such powers.

If I am right in my interpretation, this leaves a great hole in this part of the Bill, because it means in cases where landlords begin to safeguard their position—as I very much hope, with the noble Lord, Lord Howard, that they will—the Government will have to do something about the position of the landlord. I find the whole matter extremely confusing, so I think that the amendment of the noble Lord in some form, whether as presently drafted but certainly the spirit of his amendment, must be included in the Bill to get the position as complete as possible right from the beginning.

10 p.m.

Lord Glenarthur

We have certainly heard a powerful defence of the rights of property owners from the noble Lord who moved this amendment, and those who supported him, but no government could be more concerned than this one to defend these rights. But before your Lordships leap to the conclusion that the telecommunications code overlooks or ignores the rights of landowners I ought to explain the background to our proposals. The code is intended to replace and update the Telegraph Acts. I think that it is generally agreed that these are archaic and highly unsatisfactory as the statutory framework for modern telecommunications development, dating as they do hack to 1863. In updating them, the Government had to decide what general principles should govern the installation of telecommunication apparatus at a time when telecommunication services are of increasing importance to all aspects of life.

The conclusion that we reached was that there were two important general principles. One of them was that no person should unreasonably he denied access to a telecommunication system. This is explicitly referred to in the code. The other was that operators should be enabled to provide telecommunication services on request with the minimum of delay. This is implicit in the code and in particular in paragraph 2, which sets out the agreements which are required before an operator can install wire, poles, et cetera, on private land.

Paragraph 2 requires what has become known as occupier only consent. Under its provision the agreement of the occupier is sufficient to give the operator the necessary permission to install his apparatus unless the occupier is merely a short-term tenant with a lease of less than a year. This contrasts with the range of consents required under the Telegraph Acts which extended to the landlord, any superior lessee of the occupier, as well as the occupier himself. Over the years these arrangements have been shown to have a number of serious drawbacks. They failed to recognise the impracticability in many cases of obtaining such a wide range of consents. Perhaps the landlord is abroad, for example. This has served to bring the law into disrepute.

They also failed to recognise that landlords might use the withholding of their consent as a means of harassing their tenants. They might. But, above all, they have led to unnecessary delay in the provision of services: and with the growing significance of telecommunications in everyday life that has become less and less acceptable. The noble Lord's amendment more than acknowledges the validity of these arguments, for it is only in relation, broadly speaking, to agricultural and rural land that it proposes that the operator should have to seek a wider range of agreement. Even here it acknowledges that where apparatus is placed on land to provide a service only to the occupier of that land, the occupier's consent should be sufficient to confer a right on the operator to install his apparatus.

The telecommunications code itself deals, as the noble Lord made clear in moving his amendment, with the granting of wayleaves. In this context it is true that the principle of occupier-only consent is new; but I suggest that it must be looked at in the context of the telecommunication works which are likely to be carried out using its powers. Comparisons with other legislation can be rather misleading. As far as electricity is concerned this is partly because the relevant legislation dates back almost as far as the Telegraph Acts; but it is also because the physical consequences of installing much electricity transmission equipment—and, for example, pipelines, to which the noble Lord, Lord Howard of Henderskelfe, refers—are far more substantial than in the case of telecommunication equipment. That is why more extensive arrangements are needed to protect those with interests in land. Very little telecommunication apparatus, unlike the gas and electricity apparatus that I mentioned, is longer than a telegraph pole.

Against that background, we have to ask why special arrangements are necessary for the categories of land covered by this amendment. Despite what has been said in support of the amendment, to some extent the noble Lord's case is not that the code fails to safeguard property rights of landlords whose consent is not sought, at least in so far as such rights have a financial aspect. The Government have already admitted that this aspect of the code was not fully worked out in the beginning; but thanks to the assistance in particular of the Royal Institution of Chartered Surveyors, we think that the compensation provisions are now satisfactory.

They will ensure that the landowner whose consent is not sought because he is not in occupation of his land will, when he reoccupies it, be able to require the operator to remove his apparatus, if necessary by going to the court. and be able to have the land restored to its former condition. This means that if, for some reason, the land cannot he restored, the operator will be bound to pay compensation for any loss or damage suffered. If the market value of the landlord's interest diminishes because of the uncertain outcome of and the troubled association with the court procedure to get the apparatus removed, the operator will be required to pay compensation to the amount of the depreciation in value.

Against this background, it seems that perhaps the real concern behind the amendment—emphasising as it does parts of the country which are national parks or designated as areas of outstanding natural beauty—is the need to ensure that landlords can play their part in protecting the rural environment, both in relation to its visual amenity and in connection with other aspects of the physical environment, by giving operators the benefit of the their long-term knowledge of a particular locality in the way that my noble friend Lord Massereene and Ferrard said.

As I said, the protection of the environment is a matter which we regard as of the highest importance. Indeed, it was one of the considerations that we had in mind when we amended the code so that the full range of consents would be required in relation to large apparatus. But in the light of the noble Lord's remarks and the concern which has been expressed by other members of the Committee, it seems to me that this is something to which we need to give further consideration. I should like briefly to give the Committee some idea of the direction that further consideration might take.

It will be clear from what I have already said that we attach considerable importance to the principle of "occupier only" consent. We are not attracted by the amendment which would substantially undermine one of the foundations upon which the code is based. However, as the noble Lord may be aware, we have begun to explore, with one of the organisations which has made representations on this subject, whether conditions could be devised for inclusion in the licence of code operators which would achieve the key objectives of the amendment. Perhaps I should emphasise that there can be no question of licence conditions introducing additional consent procedures, as it were by the back door. That is a matter for the code itself, but it seems possible that some kind of prior notification procedure could be devised, perhaps along the lines of the prior notification procedure for planning authorities in Part 5 of the draft BT licence. That would enable landlords in certain defined areas to make representations to operators about how apparatus should be installed.

I should emphasise that such a prior notification procedure would not extend to all categories of land as the second part of the amendment proposes. We believe that the objection procedures in paragraph 17 of the code, which provides complainants with recourse to the courts if they wish to have apparatus removed or relocated, already provides a better safeguard for the majority of installations. But as I have indicated in areas where special environmental considerations apply, we think that additional safeguards could be introduced by way of licence conditions. In this connection, I should like to make particular mention of the National Trust and the National Trust for Scotland in connection with whom we now recognise that special safeguards are needed. I shall be returning to this subject again in connection with Amendments Nos. 88 and 88B. But I say now that we think that a combination of licence conditions of the kind I described, coupled with an amended paragraph 8 of the code, will meet the very justifiable concerns.

I am the first to understand and accept the force of the arguments which have been put to me this evening. But I would not wish to give any more precise undertakings at this stage other than the way I have described, since the whole matter would need to be discussed further with interested parties. But on the basis that the Government were willing to adopt an approach of the kind that I have described, and with the explanations that I have given in describing the way the system will work under Schedule 2, I hope that the noble Lord will see tit not to press his amendment.

Lord Northfield

Before the noble Lord sits down, can he answer my question about what happens under sub-paragraph (3) if landlords begin to say in leases that they specifically withdraw from the occupier the right to give these consents?

Lord Glenarthur

I am afraid that I cannot answer that particular point at the moment. I shall certainly find out and let the noble Lord know.

Lord Howard of Henderskelfe

May I be of some assistance to the noble Lord? I think that he will find that the majority of leases already include a prohibition against the occupier granting a wayleave without the landlord's consent. Often it says after that, "which shall not be unreasonably withheld". It is very nearly standard in most leases. I see a lot of noble Lords nodding at what I have said. I hope that that in some measure answers the question. I have to try to deal with it when we come to a later amendment.

Meanwhile, the Minister has held out hope of some amendment. His speech was certainly very much more conciliatory in its tone than the speech that was made in another place on Second Reading. I should like to read very carefully indeed what he has said before I decide to return to this matter later. I cannot accept that we can move on to a new era of occupiers-only consent. If that is to be the new role, then I feel that at a later stage we still must march into the Lobbies. But, because I do not feel that I would wish to do so tonight until I have first had an opportunity of reading what the noble Lord has said tonight and, secondly, of seeing what the Government propose in the future,. I would wish to seek leave to withdraw the amendment.

Lord Airedale

Before the noble Lord withdraws his amendment, although we have been discussing Amendments Nos. 85A and 85B together, we are technically still only on No. 85A. When Amendment No. 85B is called, if the noble Lord, Lord Howard, will be so kind as to move it formally, that will let in my following amendment. Otherwise, I shall be frustrated.

Amendment No. 85A, by leave, withdrawn.

Lord Howard of Henderskelfe moved Amendment No. 85B:

[Printed earlier: col. 553.]

The noble Lord said: I beg formally to move Amendment No. 85B, which stands in my name. I do not propose to speak to it.

10.13 p.m.

Lord Airedale moved, as an amendment to Amendment No. 85B, Amendment No. 85BA:

At end insert— (" (4C The agreement of the occupier of any land falling within headings (b),(c),(d),(e)and (f) of sub-paragraph (4A) above shall not have effect under sub-paragraph (2) above unless the operator has not less than four weeks prior to the entering into of such agreement given notice in writing to the Countryside Commission or the Countryside Commission for Scotland, as the case may be, of what is proposed, has afforded such Commission not less than three weeks from receipt of such notice to make representations to the operator and has taken such representations into consideration or unless the right is required to provide a telecommunication service to and only to the occupier of that land.")

The noble Lord said: I am happy to say that my amendment does not in any way interfere with the previous amendment. It raises a different point. It is only associated with the previous amendment because I have taken the opportunity to adopt some of the happy wording of the previous amendment. The Countryside Commission is charged with looking after the physical environment of the land under its control. That land is the land comprised in paragraphs (b) to (f) of the previous amendment.

I should have thought that it almost went without saying that if something is going to be erected affecting the physical environment of Countryside Commission land, the Countryside Commission should at least be told what it is proposed to do. I listened with great interest to the Minister's reply to the first amendment to Schedule 2, in which he said, for instance, that there would be permission for the erection of certain poles and wires so as not to overload the planning controls system.

There is a great difference between putting a line of poles and wires upon the horizon and siting them out of sight below the skyline. I should have thought the Countryside Commission would be more sensitive to and aware of a problem of this kind than would British Telecom. Then the Minister said that in most cases, of course, it is compulsory to put telephone cables underground; but there are exceptions, and I suppose that one would he open moorland, where it would probably be far too expensive to put the cables underground.

Then the Minister relied very much upon the planning control legislation. My observation on that is that planning control is local, and inevitably one will get situations where the same problem is dealt with in one way by one local authority and in another way by another local authority. But if you have the Countryside Commission having their say in the matter, you will tend to get uniformity in dealing with similar problems nationwide.

My only fear is that I have perhaps not drafted this amendment strongly enough. It says only that the Countryside Commission must be given notice, and it enables them to make representations; and it says that the representations must he taken into consideration. But that is all. It may well be that your Lordships will think that something stronger is required and that the Countryside Commission's permission ought to be required, with possibly an appeal to the Secretary of State in the event of a deadlock between British Telecom and the Countryside Commission. However, I should have thought that this amendment, so far as it goes, was desirable. I would most gladly support a stronger amendment at the next stage of the Bill, but in the meantime I would hope that your Lordships might think that this amendment is at least desirable, and I beg to move.

Lord Glenarthur

The Government have made it clear that the conditions in the BT licence represent a minimum standard to which other licences applying powers under the telecommunications code will conform. There has to be full public consultation before other licences are granted, and it will be possible to deal with matters of the kind covered by this amendment in that context.

Turning to the BT draft licence, the Government do not think it is necessary to extend the notification procedure in Condition 2 of Part 5 so widely as to cover all the areas dealt with in this amendment, or that the Countryside Commission itself should be notified as well as the local planning authority in the case of countryside consisting of a national park or an area of outstanding natural beauty. Furthermore, the Countryside Commission have indicated that in any case they would not have the resources to vet proposals for the installation of apparatus.

I therefore hope that the noble Lord will accept that BT's draft licence and, by extension, all licences in future providing for consultation with local planning authorities on the installation of overhead apparatus in national parks and areas of outstanding natural beauty go as far as it is practicable to go in requiring operators to consult the relevant authority before installing apparatus in the countryside in general. I hope that the noble Lord will see fit to withdraw his amendment.

Lord Airedale

I am sorry to hear that the Countryside Commission do not have the financial resources. That seems to be a sad state of affairs. In that event, I suppose it is not much good pressing this amendment, and I have not had what one might call overwhelming support for it. So I beg leave to withdraw the amendment.

Amendment to the amendment, by leave, withdrawn.

The Deputy Chairman of Committees

May I have the wishes of the noble Lord, Lord Howard, on Amendment No. 85B?

Lord Howard of Henderskelfe

Having withdrawn my paving Amendment No. 85A, I think it would be impossible for me to divide on No. 85B. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lyell moved Amendment No. 85C: Page 92, line 47, leave out ("paragraph 8(b)") and insert ("subparagraph (8A)")

The noble Lord said: With the permission of the Committee, I should like to speak also to Amendments Nos. 85D, 85E. 85F, 85G, 85H, 85J, 85K and 85L, which are all in the name of my noble friend Lord Cockfield. They are all interconnected and are all concerned with paragraph 4 of Schedule 2.

Amendment No. 85D: Page 93, line 16, at end insert (": and sections 2 and 4 of the Land Compensation Act 1961 (procedure and costs before Lands Tribunal) shall apply, with the necessary modifications, in relation to any such determination.")

Amendment No. 85E: Page 93, line 18, leave out from ("be") to ("becomes") in line 19 and insert ("made by giving the operator notice of the claim and specifying in that notice particulars of—

1. (a) the land in respect of which the claim is made:
2. (b) the claimant's interest in the land and, so far as known to the claimant, any other interests in the land:
3. (c) the right or variation in respect of which the claim is made: and
4. (d) the amount of the compensation claimed:

and such a claim shall be capable of being made at any time before the claimant")

Amendment No. 85F:

Page 93, line 26, at end insert— ("( ) Without prejudice to the powers of the Lands Tribunal in respect of the costs of any proceedings before the Tribunal by virtue of this paragraph, where compensation is payable under subparagraph (4) above there shall also be payable, by the operator to the claimant, any reasonable valuation or legal expenses incurred by the claimant for the purposes of the preparation and prosecution of his claim for that compensation.")

Amendment No. 85G:

Page 93, line 31, at end insert— ("( ) In the application of this paragraph to Scotland—

1. (a) for any reference to the Lands Tribunal there is substituted a reference to the Lands Tribunal for Scotland and for any reference to costs there is substituted a reference to expenses:
2. (b) for the reference in sub-paragraph (6) above to sections 2 and 4 of the Land Compensation Act 1961 there is substituted a reference to sections 9 and 11 of the Land Compensation (Scotland) Act 1963:
3. (c) for the reference in sub-paragraph (8) above to section 5 of the Land Compensation Act 1961 there is substituted a reference to section 12 of the Land Compensation (Scotland) Act 1963;
4. (d) for the reference in sub-paragraph (9) above to sub-sections (1) to (3) of section 10 of the Land Compensation Act 1973 there is substituted a reference to subsections (1) and (2) of section 10 of the Land Compensation (Scotland) Act 1973")

Amendment No. 85H: Page 93, line 33, leave out from ("for") to ("to") and insert ("any reference")

Amendment No. 85J: Page 93, line 36, leave out from ("the") to ("5") and insert ("references in sub-paragraphs (6) and (8) above to sections2, 4 and")

Amendment No. 85K: Page 93, line 37, leave out from ("there") to ("6") in line 38 and insert ("are substituted references to Articles 4, 5 and")

Amendment No. 85L: Page 93, line 39, after ("1982") insert (". respectively") All these amendments arise from paragraph 4(4), which was one of the improvements in the compensation provisions of the code which were made at Report stage in another place. The basic objective of paragraph 4(4) is to enable landlords whose agreement is not sought to the installation of apparatus to telecommunications obtain compensation for any diminution in the value of their interest in the land which may occur because, in order to get such apparatus removed when they come back into occupation, they may have to take the telecommunications operator to court.

Three of the amendments to which I am speaking—Nos. 85C, 85D and 85E—are designed to introduce the necessary procedures for making claims under paragraph 4(4), and to ensure that the existing arrangements by which the Lands Tribunal hears cases are carried over into the telecommunications code. These amendments are based on the corresponding provisions in the Land Compensation Acts of 1961 and 1973, which present the same situation.

Amendment No. 85F is related to the other three to which I have spoken. It ensures that, when the Lands Tribunal is assessing compensation in relation to paragraph 4(4), account is taken of any valuation or legal expenses which are paid by the operator to the claimant. The rest of the amendments—Nos. 85G, 85H, 85K, 85J and 85L—are consequential and are to achieve the same objectives. They are amendments to Scottish and Northern Irish enactments. These amendments involve no real issue of policy. I hope that, with that brief explanation, the Committee may see fit to accept them. I beg to move.

On Question, amendment agreed to.

10.23 p.m.

The Earl of Kinnoull moved Amendment No. 85CA:

Page 93, line 12, at end insert— ("(5A) Where—

1. (a) a person would as the owner of a relevant interest in land subject to which a right is conferred or varied be entitled under sub-paragraph (4) above to compensation for depreciation in the value of that relevant interest if there were any such depreciation,
2. (b) that person is the owner of any interest in other land, and
3. (c) the value of his interest in that other land is depreciated by reason of the conferment or variation of the right or of anything otherwise injuriously affecting that other land by the exercise of the right.

then, whether or not any compensation is payable under subparagraph (4), the operator shall pay to that person compensation equal to the amount of the depreciation in the value of his interest in the other land.")

The noble Earl said: I beg to move this amendment, and with it I should like to speak to Amendments Nos. 85CB, 85EA, 85FA and 86CB, all of which are consequential. Amendment No. 85CB: Page 93, line 14, leave out ("subparagraph (4)") and insert ("sub-paragraphs (4) and (5A)") Amenthnent No. 85EA: Page 93, line 22, leave out ("subparagraph (4)") and insert ("sub-paragraphs (4) and (5A)") Amendment No. 85FA: Page 93, line 29, leave out ("subparagraph (4)") and insert ("sub-paragraphs (4) and (5A)")

Amendment No. 86CB: Page 95, line 31, at end insert— ("( ) In determining what amount shall be specified in a term of an order under paragraph 5 above the court shall take into account any compensation paid under paragraph 4(5A) above.") My noble friend praised the Royal Institution of Chartered Surveyors earlier, when he said that helpful discussions and consultations over this complicated code are taking place between the Government and the institution. But I should say at once to my noble friend that I do not think the institution is completely happy with the code as it at present stands. Indeed, this complicated little amendment has been drafted by the institution.

It is a complicated subject which we are taking at a late hour, and the position is made more complicated because I have lost the brief. But, as I understand it, the amendment seeks to provide compensation for injurious affection. This is a case where land has been affected but not actually acquired by the body which has built apparatus on the land. A typical example is a house with a meadow in one ownership, and along comes this body and builds a large apparatus on the meadow in front of the house. The question is whether there should be a claim for injurious affection or depreciation of the value of the house which has not been acquired. This is a common claim under the rules of compensation. It is a common claim under the other statutory bodies which the noble Lord, Lord Howard of Henderskelfe, listed some time ago, and I hope that it will be included, if it is not already included, in this code. I beg to move.

Lord Lyell

In reply to my noble friend's excellent and succinct summing up of the purpose of his amendments, the Government see the purpose of the amendments as being to confer on the owner of an interest in land—perhaps the meadow to which my noble friend referred—upon which telecommunication apparatus is installed under the code a right to compensation which will extend any injurious affection to any interest which he happens to have in any neighbouring land. If your Lordships were to look at the code they would find "injurious affection" mentioned. I am told that in legal terms it means loss or damage suffered by the owner of an interest in land as a direct consequence of the exercise of powers of compulsory acquisition for the execution and use of duly authorised works.

The amendment would give to the owner of an interest in the land on which the apparatus is installed an extended right to compensation—a right extended in this way: to cover the damage to his interest in the neighbouring land. This would be a right closely akin to that which is conferred by Section 7 of the Compulsory Purchase Act 1965 upon owners whose land or interest is taken away from them. By these provisions they can claim under that section for injurious affection to their interest in the neighbouring land as well as for the loss of the land which is taken away.

I have to say to my noble friend and to the Committee that the Government have given careful and, I stress, sympathetic consideration to the suggestion that a principle similar to that in Section 7 should be applied in the circumstances of the code, but we are convinced that it would not be right to do so for these reasons. Primarily, the circumstances in the code which we have before us differ from those in Section 7 of the 1965 Act, in that nothing is taken away from the owner of any interest in the land on which the apparatus is installed who is not in occupation. He is entitled to have the land restored to the condition it was in before the installation was made, once he resumes occupation. We find that in paragraph 4(2) (ii). We believe that there is no justification for seeking to give compensation along the lines of that afforded by Section 7 where there has been expropriation.

As regards his interest in the neighbouring land which is injuriously affected, the owner is in the same position under the code as the holder of an interest in that land and he is entitled to compensation under Clause 16(2) which Amendment No. 91KA seeks to restrict. I hope I have not pre-empted my noble friend, who mentioned a list of amendments. We believe that Amendment No. 91KA comes into the list which was introduced by my noble friend, so perhaps he will permit me to refer to it.

Clause 16(2), which Amendment No. 91KA seeks to restrict, expressly provides for the compensation under that paragraph to be determined irrespective of his ownership or interest in the land on which the apparatus is installed. This puts him in just as good a position as would be any neighbouring landowner under the 1965 Act whose interest in that land was not held with the land taken.

I am afraid this has been somewhat convoluted. I hope it has gone some way to assuage the worries expressed by my noble friend. I leave it to the Committee and say our case rests, and I hope my noble friend will not insist on his amendment.

The Earl of Kinnoull

I do not intend to insist on it, but I must pick up the points my noble friend makes. He said the case differs from that under Section 17 of the Land Compensation Act, which applies to the statutory authorities. He said it differs because the owner can remove the apparatus as and when he takes possession of the land. I think that could be misleading, for this reason. In practice what would happen is that if the tenant, having given permission for the apparatus, which would cost quite a considerable sum, to be put on that land, then retires and hands over to the owner two years later, say, I cannot believe that any court, when the company applies to it under this Bill, will say to the owner, "It is reasonable for you to take away that apparatus". I think it would say, "It is reasonable for that apparatus to stay".

So we have the strange situation, which in a funny way was covered by the noble Lord, Lord Howard, that the land is blighted and the owner may not receive compensation until he takes possession, which may be one year or may be fifty years. He may die after three years: and his executors will receive no compensation. I think it is a fundamental injustice in what is a very complicated code, particularly when one remembers that one is dealing with a private company and private interest. I do not see any case at all for giving a special advantage, a draconian power, to a private body over a statutory body. There is a sense of panic that this private body should be given these draconian powers where there is no necessity. I withdraw this amendment under protest because of the time of night and the complication of the matter.

Lord Lyell

Before my noble friend withdraws his amendment, could I stress to him and the Committee that, in the scenario he presented, if the court says that the apparatus must stay when the owner re-occupies his land, then compensation must be paid. My noble friend referred to Section 17 (in fact, it is Section 7) of the 1965 Act. I did not stress that if an owner reoccupies his land he is entitled to have the land restored to the condition it was in before the installation was made. My noble friend will find that in the code on page 92, about halfway down. It is in subparagraph (2) of paragraph 4. He will see the words: the operator shall restore the land to its condition before that thing was done. I think that goes, if not all the way then a good deal of the way to assuage the justified fears expressed by my noble friend. He sought to abbreviate the proceedings, and perhaps I may also.

The Earl of Kinnoull

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 85CB not moved.]

Lord Lyell moved Amendments Nos. 85D and 85E:

[Printed earlier: col. 568.]

On Question, amendments agreed to.

[Amendment No. 85EA not moved.]

Lord Lyell moved Amendment No. 85F:

[Printed earlier: col. 568.]

On Question, amendment agreed to.

[Amendment No. 85FA not moved.]

Lord Lyell moved Amendments Nos. 85G, 85H, 85J. 85K and 85L:

[Printed earlier: col. 568.]

The noble Lord said: I have already spoken to these amendments. They are all formal. I beg to move them en bloc.

On Question, amendments agreed to.

10.35 p.m.

Lord Spens moved Amendment No. 85LA: Page 94, line 17, after ("circumstances") insert ("(including, where the land concerned is operational land of statutory undertakers, as defined in section 222 of the Town and Country Planning Act 1971, the needs of those statutory undertakers for the purpose of carrying on their undertaking)")

The noble Lord said: I shall be brief. This amendment has been submitted to us by the water authorities. All water authorities are apparently worried about the Bill because they have their own private telecommunications systems and they are afraid that Schedule 2 may put them in a slightly difficult situation. Schedule 2 gives the operator powers to execute works in relation to the installation of telecommunication systems; and, generally speaking, when an operator wishes to execute works on land the agreement of the occupier for the time being of that land is required. However, paragraph 5 contains provisions whereby the need for obtaining such agreement of the occupiers of the land can be dispensed with.

Under the provisions of paragraph 5 the operator may apply to the county court for an order enabling him to execute works and carry out other operations on land without the usual agreements. Paragraph 5(3) provides that: The court shall make an order under this paragraph if, but only if, it is satisfied that any prejudice caused by the order—

1. (a) is capable of being adequately compensated for by money; or
2. (b) is outweighed by the benefit accruing from the order to the person whose access to a telecommunication system will he secured by the order."

It is that situation which the water authorities are worried about. They feel that the court should have regard to all the circumstances and to the principle that no person shall unreasonably be denied access to the telecommunication system. They feel that gives a little bias towards the telecommunications people and against the water authorities. Therefore they suggest that on page 94, at line 17, the following be inserted: (including, where the land concerned is operational land of statutory undertakers, as defined in section 222 of the Town and Country Planning Act 1971, the needs of those statutory undertakers liar the purpose of carrying on their undertaking) That is all that the water authorities require. I beg to move.

Lord Glenarthur

I hope that I can reassure the noble Lord that there is no danger of the powers of the telecommunications code being used in a way which would damage the interests of statutory undertakers such as water authorities by interfering with their activities on their operational land.

I think it will be unusual for telecommunications operators to want to install their apparatus on the operational land of statutory undertakers except in two sets of circumstances: first, where they are, by agreement, providing a service to that undertaking and, second, where they are acting under the power in paragraph 12 of the code to install apparatus across, and for a short distance along, linear obstacles of railways, tramways and canals. In the first case there is no difficulty because the installation takes place on agreed terms. In the second case paragraph 12, subsection (3), specifically provides that the installation must not interfere with the activity being carried out on the land.

The only other possibility, as this amendment recognises, is that an operator might seek to install apparatus across the operational land of a statutory undertaker under a court order, dispensing with the undertaker's agreement. But as the code is currently drafted, the court is required to take into account all of the circumstances of the case.The fact that the land in question is the operational land of a statutory undertaker is clearly one of the circumstances of the case and the court will he bound to consider it.

I suggest therefore that the amendment is unnecessary. But in addition to that, if we were to treat the operational land of statutory undertakers differently from land in general, for the purposes of paragraph 5 of the code, when there is already an adequate safeguard in paragraph 5 for statutory undertakers it would tend to devalue the safeguards that exist for land in general. I hope therefore that the noble Lord will withdraw his amendment.

Lord Spens

I thank the noble Lord the Minister for that reply. I think that I am satisfied by it. Anyway, I shall take it away, look at it and discuss it with the water authorities to see what they think about it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Kinnoull moved Amendment No. 85LB:

Page 94, line 30, at end insert— ("( ) Before making an order under this paragraph the court shall afford to any person whose agreement will be dispensed with by the order or whose interest will be bound by the provisions of the order an opportunity to apply to the court for the terms of the order which may be specified under paragraph 6 below to be determined by the Lands Tribunal and if any such person so applies—

1. (a) the order may be made by the court and shall take effect on such day as the court may appoint for the purpose of conferring the right or providing that it shall hind an interest in the land whether or not such terms under paragraph 6 have then been determined;
2. (b) the terms and conditions of the order which may be specified under paragraph 6 below shall be referred to and determined by the Lands Tribunal;
3. (c) the Lands Tribunal shall have all the powers and duties conferred on the court by paragraph 6 below: and
4. (d) the terms and conditions determined by the Lands Tribunal shall be deemed to form part of the order made by the court under this paragraph as if they had been determined by the court and shall be enforceable accordingly.")

The noble Earl said: This amendment is fundamentally very important to the Royal Institution of Chartered Surveyors. I know that the institution has had a good deal of correspondence with my noble friend and his department. Under the new code the Lands Tribunal will deal with compensation matters in the final appeal under paragraphs 4 and 16: and yet under paragraph 5, with which we are now dealing and which concerns the court fixing the financial terms where there have been disputes, the county court will in fact be the fixing body.

The institution is concerned because, first of all, the Lands Tribunal is an expert and recognised body in this field, and I do not think that anyone disagrees with that. Secondly, its decisions are given a good deal of publicity in the professional journals and the decisions are given in writing, which I understand would not necessarily be so in the county court. Thirdly, its rulings are made by a a single body. In the view of the professions, that gives a stable sense of judgment. There was a recent case of Clouds Estates v. Southern Electricity Board, where the Lands Tribunal had to fix an award in a case similar to one which might need to be dealt with under this code. If my noble friend does not accept the precise wording of the amendment, I hope that he will give consideration and sympathy to the purpose behind it. I beg to move.

Lord Lyell

My noble friend was correct to point out the relevance of paragraphs 4 and 16 of the code, as well as the relevance of paragraphs 5 and 6. As we are on paragraph 5 now, my noble friend was right in bringing us hack to that particular section of the code. It may appear to be odd in some ways that the Lands Tribunal is given a role in assessing compensation under paragraphs 4 and 16 but not under paragraphs 5 and 6.

I would stress to my noble friend that the relevant parts of paragraphs 4 and 16—and indeed it was paragraph 16 for which I was seeking in my earlier oration about injurious affection to land—are entirely concerned with the question of compensation. In the one case it is compensation that a telecommunications operator is under a duty to pay to a landlord whose agreement to the installation of apparatus has not been sought for any depreciation in the value of his interest—that is, the landlord's interest—in certain circumstances. In the other case—that will be paragraph 16—it is compensation for injurious affection to neighbouring land which once again the operator is under a duty to pay. The issue in these two particular cases is quite simply what is the appropriate level of compensation for the injury suffered.

Far wider issues arise in the context of paragraphs 5 and 6 in the code under which the primary decision is whether or not a right to install apparatus on private land should be conferred on the operator despite the opposition of the person with the relevant interest in the land. This must, in the Government's view, be a matter to be decided by a judge in court and not by a tribunal.

The second matter to be determined in such circumstances is the terms and conditions (including terms as to compensation) on which the right is to be exercised. We believe that it is difficult to separate out these issues, and in particular to divorce the question of compensation from the other terms and conditions that will have to be incorporated in a court order. We also believe that it makes for a much more efficient and economical legal process if these matters are dealt with together in one package. It seems to me that this amendment acknowledges the force of those arguments, for it does not seek to split the jurisdiction in all cases, but rather to leave open the option of a reference to the Lands Tribunal where the complainant asks for such a reference.

I think that the essence of my noble friend's argument is that if difficult cases arise, it may be desirable to draw on valuation expertise, and I would acknowledge that there is some force in that. Having considered the matter the Government have concluded that it would be appropriate for the court to have access to relevant valuation expertise so as to assist it (the court) in coming to a conclusion on the terms that are to be included in the order. Therefore I am happy to give my noble friend an undertaking that at Report stage we shall come forward with the necessary amendment to ensure that a county court judge will he able to summon an expert assessor and authorise him to inspect the relevant land and report hack to the court as to the terms that should be included in any order. I think that that would be a significant improvement in the jurisdiction under the code as it stands at present and, moreover, an improvement which would not involve any of the procedural inefficiency associated with a reference in any particular case to the Lands Tribunal. I hope that. in the light of the assurance that I have given my noble friend, he will feel able to withdraw the amendment which he has moved so succinctly.

The Earl of Kinnoull

I am most grateful to my noble friend for his courteous and uplifting reply. I noticed a glow going around the Committee and I saw, too, even a smile on the face of the Chief Whip. On the basis of the assurance that my noble friend has given, I am very happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Glenarthur moved Amendment No. 85M: Page 94, line 43, after ("on") insert (". under or over")

The noble Lord said: In moving Amendment No. 85M I wish at the same time to speak also to Amendments Nos. 86B, 91D, 91K, 94A and 95A. Amendment No. 86B: Page 95, line 18, leave out ("suffered") and insert ("sustained"). Amendment No. 91D: Page 101, line 40, leave out ("suffered") and insert ("sustained"). Amendownt No. 91K: Page 103, line 23, leave out ("a puhlic") and insert ("that"). Amendment No. 94A: Page 107, line 24, leave out ("suffered") and insert ("sustained"). Amendment No. 95A: Page 113, line 18, after second ("or) insert ("the application in relation to this code of").

These are all formal drafting amendments, and I need not detain the Committee with them. I beg to move.

On Question, amendment agreed to.

[Amendment No. 86 had been withdrawn frotn the Marshalled List.]

Lord Glenarthur moved Amendment No. 86A: Page 95, line 16, leave out ("persons from time to time bound by the order") and insert ("that person and persons from time to time bound by virtue of paragraph 3(2) above by the rights to which the agreement relates")

The noble Lord said: In moving this amendment I wish to speak also to Amendment No. 86C: Amendment No. 86C: Page 95, line 19, leave out ("the rights to which the agreement relates") and insert ("those rights")

These two amendments correct a drafting error in paragraph 6(1)(b) of the telecommunications code. I could explain them at length, but I think that at this time of night I shall merely move them formally. I beg to move.

On Question, amendment agreed to.

Lord Glenarthur moved Amendment No. 86B:

[Printed above.]

On Question, amendment agreed to.

Lord Glenarthur moved Amendment No. 86C:

[Printed above.]

On Question, amendment agreed to.

10.49 p.m.

The Earl of Kinnoull moved Amendment No. 86CA: Page 95, line 20, at end insert ("and persons to be so compensated shall include all persons from time to time being on or using the land with lawful authority.")

The noble Earl said: We are moving along at a good pace here. This is a simple amendment which I know my noble friend will grasp very quickly. As I understand it, basically there is a difference under the code involving on the one hand the rights of an occupier if, for example, he is injured or any of his stock on the land is injured, against the contractor or the company putting in the apparatus. There is a sharp difference between the occupier, who does not have to seek negligence and has an automatic claim, and anyone who might be invited onto his land. For instance, a farmer might invite a fellow farmer to place in a field for a week a valuable herd of Jerseys. During that time they might become entangled in the apparatus and the wires and two might be killed. There is no automatic claim to compensation for that person or his interests.

Equally, if someone invited on to the land by the owner while the work with the apparatus is being carried out is injured, he does not receive an automatic right of compensation. This is a simple point. I hope that my noble friend may be able to accept the principle of the amendment. I beg to move.

Lord Glenarthur

Paragraph 6(1) (b) of the code provides for the court to include, in an order dispensing with the agreement of someone to the installation of apparatus on private land, terms relating to compensation for any loss or damage. As I would have made clear if I had elaborated on Amendment No. 86A, which I have just moved, we intend that persons who are from time to time bound by such an order by virtue of paragraph 2(3) should also be within the scope of this provision. That includes anyone who is the successor in title to the interest of the person or persons whose agreement was dispensed with by the court.

The amendment seeks to go very wide indeed, and includes within the scope of a court order all persons from time to time being on or using the land in question with lawful authority in respect of any loss or damage suffered by them in consequence of the exercise of the rights of the operator. The Government's view is that it is wholly impracticable. How can the court possibly deal with a range of circumstances which might include, let alone Jersey hulls to which my noble friend referred, accidental damage to ramblers using a right of way across the land in question and people playing football on the land with the permission of the landowner?

We must hear in mind that the court may grant a right to an operator to install and maintain his apparatus on a particular piece of land for as long as 25 years or more. I suggest that it would be quite impracticable for a court order to be able to provide for compensation to be paid to all persons who may lawfully be on or use the land over this period of time for any loss or damage they may suffer as a result of the exercise of the right of the operator. The only damage such people will suffer will be as a result of negligence on the part of the operator—for example, failure to properly fill in a trench. If this happens, they can sue the operator, or the operator's contractor, for his negligence under common law. That seems to me to be the appropriate remedy.

I hope therefore that my noble friend will withdraw the amendment.

The Earl of Kinnoull

My noble friend says that the amendment is slightly impracticable and refers to ramblers going over the land being injured. That misses the point. If an owner invites someone on to his land and while that person is on the land he is injured, he would not be covered. Yet the owner would be covered if he suffered a similar accident. That is more restricting than the suggestion of my noble friend concerning ramblers. To be honest, I consider that it is very late to be discussing this matter. Perhaps we may look at it together. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 86CB not moved.]

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

I understand that Amendment No. 87 falls and is not moved.

Lord McIntosh of Haringey

No. I do not wish to detain the Committee. I did say at the time that I was speaking to this amendment but not necessarily that I should not be moving it.

Lord McIntosh of Haringey moved Amendment No. 87:

[Printed earlier: col. 535.]

The noble Lord said: The noble Lord, Lord Glenarthur, in response to a previous amendment of mine, talked about the potential conflict between the courts and the conditions that we propose should be put into the telecommunications code. I do not think that that objection can apply to this amendment. It simply adds to the conditions that can be taken into account by the court the condition that an operator can apply to the court for a notice to be set aside on the ground that he is put in an intolerable position: that to afford a potential subscriber access to an operator's system would cause undue damage to the physical environment. This is a just recognition of the kind of conflict of interest that will inevitably be encountered by an operator. It seems to us to be a reasonable addition to those matters that fall to be considered by the court under the conditions of the telecommunications code. I beg to move.

Lord Glenarthur

Paragraph 7 of the code enables a potential subscriber to give notice to an operator requiring him to take certain steps to afford the potential subscriber access to his system. The paragraph also enables the operator to apply to the court to have such a notice set aside on certain specified grounds. This amendment tries to add to those specified grounds that the works necessary to afford the potential subscriber access to the operator's system would cause undue damage to the physical environment.

I have already explained how we see licence conditions operating to protect the physical environment. I have no difficulty with the general proposition that undue damage to the physical environment should, if' possible, he avoided. The difficulty is in providing a meaningful description of what undue damage is. The Government's suggested approach overcomes this kind of problem to a very large extent because it begins by asking questions, such as: in what circumstances is damage likely to be done, or what specific aspects of the environment need special protection? Even that does not solve all the problems, but it avoids the difficulty of very vague statutory tests of the kind suggested here. And in view of the licence conditions we propose to include in the licences of BT and other operators, I would further argue that this amendment is unnecessary.

But I am also concerned about another aspect of this amendment, in that it would appear to provide a very wide subjective test on the basis of which an operator might try to escape obligations in his licence to provide particular services, for example, to rural areas, unless it is impracticable or not reasonably practicable. In view of the assurances the Government have given on this point, I hope that the noble Lord will see fit to withdraw this amendment, which could have potentially harmful effects.

Lord McIntosh of Haringey

I think that the Minister is greatly exaggerating the potentially harmful effects. This is only one possible way in which the operator may apply to the court to have a notice set aside. It is no more than that. It is simply widening the area of possible consideration by the court. But I do realise that the Government have rejected the basic argument, which is that the telecommunications code is the place for this type of environmental protection, and in the light of the necessity to come back to that at the Report stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lyell moved Amendments Nos. 87A and 87B: Page 96, line 46, after ("8") insert ("(1)"). Page 97, line 5, leave out paragraph (b).

The noble Lord said: I beg to move Amendments Nos. 87A and 87B, and I am sure it will be for the convenience of the Committee if I also speak to Amendment No. 88A.

Amendment No. 88.A: Page 97, line 13, at end insert— ("(2) Where any obligation is to any extent unenforceable by virtue of sub-paragraph (1) above, that obligation shall, to that extent, be disregarded for the purposes of assessing the amount of any compensation payable under any provision of this code.")

All three amendments are concerned with paragraph 8 of the code, which your Lordships will find is entitled rather grandly: Prohibition on restrictions on giving required agreement". I should add that Amendment Nos. 87A and 87B are paving amendments for Amendment No. 88A, which is the main amendment about which I should like to speak.

Amendment No. 88A replaces the old paragraph 8(b) with a new sub-paragraph (2) and is designed to remove an obscurity in the drafting. I could go on about the breaching of a covenant in a tenancy agreement, but possibly at this late hour your Lordships might allow me to beg to move Amendments Nos. 87A and 87B together. If any noble Lord wishes a more detailed explanation, I shall willingly give one.

On Question, amendments agreed to.

11 p.m.

Lord McIntosh of Haringey moved Amendment No. 88:

[Printed earlier: col. 535.]

The noble Lord said: In view of what I said on a previous amendment. I think that I can content myself by asking the Government to give me some indication of how covenants with the National Trust, the National Trust for Scotland, local authorities or other bodies for the protection of the physical environment are to be protected under the proposed legislation. I beg to move.

Lord Glenarthur

Amendment No. 88, which the noble Lord, Lord McIntosh, has proposed, is related to Amendment No. 88B in the name of the noble Lord, Lord Howard. Both are concerned with the same point; namely, the disapplication of paragraph 8 of the code in circumstances where it is thought that special environmental factors have to be taken into account in the context of the installation of telecommunications apparatus. With the Committee's permission, I should like to relate my remarks to both of those amendments. I do not know whether the noble Lord, Lord Howard, is happy with that, but they are substantially the same points.

Lord Howard of Henderskelfe

Yes.

Lord Glenarthur

I see that he is. In connection with an earlier amendment, I have explained why the Government believe that the principle of occupier-only consent is necessary in order to enable telecommunications' operators to provide services without delay when they are requested to do so. It is not possible to look at paragraph 8 of the telecommunications code, which both amendments seek to amend, without looking at paragraph 2 which establishes that principle.

There would be no point in enabling telecommunications' operators to install their wires and poles on the basis of the consent of occupiers alone if those occupiers thought that, by virtue of having given their agreement, they would be liable to their landlords for breaching a provision in their tenancy agreements. Clearly the principle of occupier-only consent would not be acceptable if it was possible for a landlord whose agreement was not sought to suffer loss or damage as a result of an operator installing his apparatus. But this will not be the case.

At the risk of repeating myself, the code provides a procedure whereby, if necessary, a landlord who reoccupies his land can seek the agreement of a court to the removal of the apparatus. Furthermore, the operator is under a statutory duty to restore the land to the condition it was in before.

Perhaps I can paraphrase the theme that runs behind the noble Lord's amendment. It is that financial compensation is not enough in relation to apparatus, the installation of which might damage the physical environment and in particular visual amenity. The ultimate removal of apparatus and compensation for the landlord at the end of the day if the land cannot be restored to its former condition cannot make up for the environmental loss in the interim. It is precisely because we recognise the strength of these arguments that we have included in the telecommunications code an objection procedure in relation to overhead apparatus so that those with an interest in land on which apparatus is installed, or neighbouring land, if their enjoyment of it is prejudiced, can seek to have offending apparatus removed immediately.

I regard it as inconceivable that operators would put their own interests at risk by ignoring the strong possibility that they could be required to remove their apparatus if they had ignored the environmental aspects of the installation. However, as I have already indicated, the Government are prepared to consider including conditions in the licences of operators to whom the powers of the telecommunications code are applied, conditions which would have the effect of introducing a prior notification procedure in relation to certain categories of land. The aim would be to enable landlords to influence the way in which apparatus was installed, using their knowledge of the locality to minimise any disruption to the environment.

In proposing this amendment, the noble Lord, Lord McIntosh, could argue that even this does not go far enough and that there are certain types of agreements or covenants—and he specifically referred to covenants—which are of such special significance in environmental terms as to merit special treatment in the telecommunications code. The Government accept this view and I hope that an offer to consider the issue further and to come back with proposals for amending paragraph 8 of the code in the direction of his concern will persuade him to withdraw his amendment.

However, in making that offer, I would emphasise that, apart from pure drafting points which make the amendments unacceptable and on which I shall not detain the Committee, we regard the scope of both this amendment and the amendment of the noble Lord, Lord Howard, as going too wide. Amendment No. 88 would enable a local authority or any body to impose agreement or covenants on the grounds—genuine or otherwise—that the physical environment required special protection. Such a formula could be widely abused in many different circumstances to frustrate perfectly acceptable activities of telecommunications operators.

As far as Amendment 88B in the name of the noble Lord, Lord Howard of Henderskelfe, is concerned, the Government's view is that disapplying the basic principles of the code in relation to the whole of the Green Belt also goes too far, but there is a common core in these amendments; namely, the National Trust, which has clearly distinguishable interests and objectives, which makes it a sensible starting point for the disapplication of paragraph 8. At this stage I would not rule out the possibility that our own proposals would also include the categories covered by the references to the Wildlife and Countryside Act. I hope however that your Lordships will accept that it is reasonable for us to want to give further consideration to all the details before making firm commitments. On that basis, I hope that the noble Lord will not press his amendment.

Lord McIntosh of Haringey

I must say that I am grateful to the noble Lord for these offers. I hasten to say I have no intention of intervening in the family quarrel as between landlords and occupiers. I do not think that in moving this amendment I was in any way putting myself at risk on that score. But certainly the offer of further consideration on Report of genuine convenants—and I accept they have to be genuine convenants and not covenants produced for the purposes of obstruction—is very valuable and if I and my advisers from the Civic Trust can play any part in that consideration, we will be happy to do so. On that basis, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lyell moved Amendment No. 88A:

[Printed earlier: col. 579.]

The Earl of Kinnoull

May I ask a question? Is the noble Lord suggesting in this amendment that the question of compensation payable refers to the occupier, or the owner, or both?

Lord Lyell

I am sorry, I took a risk and quite rightly my noble friend has asked me to elucidate. We are replacing the old sub-paragraph 8(b) with new subparagraph (2) designed to remove this obscurity in drafting. The intention of paragraph 8(b) in the Bill and above all of the new sub-paragraph (2) in the amendment—I hasten to assure the Committee and my noble friend that there is no policy change—is to ensure that compensation is not payable to a landlord simply in recognition of the fact that his tenant has breached a covenant in his tenancy agreement by allowing a telecommunications operator to install apparatus on the landlord's land.

As the Committee will be aware, the code permits the installation of telecommunication apparatus on private land on the basis of the agreement of only the occupier of the land, and of course, that is providing the occupier is not a short-term tenant: it is referred to as being a term of one year or more.

In support of the principle of occupier-only consent, paragraph 8 of the code is designed to ensure that a tenant who gives his agreement in breach of a clause in his tenancy agreement does not thereby become liable to his landlord. In this context it is also necessary to ensure that the tenant's liability is not transferred indirectly to the operator through the specific compensation provisions in the code. I stress that the code already provides adequate protection for landlords whose agreement is not sought by an operator before apparatus is placed on the land in which they have an interest. Your Lordships will see paragraph 4 sub-paragraph (2); indeed, I have referred those paragraphs to my noble friend in the course of my earlier remarks on earlier amendments. Against the background that I mentioned, Amendments Nos. 87A, 87B and 88A seek to make clear the Government's policy intention; namely, where a provision in a tenancy agreement is unenforceable by virtue of paragraph 8 that fact will be disregarded for the purpose of assessing the amount of any compensation payable under the code.

On Question, amendment agreed to.

11.10 p.m.

Lord Howard of Henderskelfe moved Amendment No. 88B:

Page 97, line 13, at end insert— ("( ) This paragraph shall not apply where the land to which the agreement given for the purpose of paragraphs 2 or 3 above falls within one or more of the under-mentioned classes:

1. (a) land which is the subject of a management agreement under sections 4(5), 7(3) and 45 of the Countryside Act 1968;
2. (b) land which is the subject of a management agreement under section 39 of the Wildlife and Countryside Act 1981;
3. (c) land the subject of agreements or covenants with the National Trust enforceable under section 8 of the National Trust Act 1937;
4. (d) green belt land as defined in section 2 of the Green Belt (London and Home Counties) Act 1938.".)

The noble Lord said: I beg to move Amendment No. 88B. The answer which was given before I moved this amendment had no relevance to the amendment. Noble Lords will no doubt remember that I reminded the noble Lord, Lord Northfield, that practically every tenancy agreement included a prohibition against occupiers granting wayleaves of this kind, and this schedule quite properly provides for the indemnification of the occupier against his landlord for the granting of such wayleaves.

What the Government do not seem to appreciate is that the sort of land which is the subject of a manpower agreement and the subject of a management agreement, and so on, is not land which has a separate landowner and tenant. These are agreements usually directly between the landowner and the various people responsible here. The indemnifications will not apply there because they are not made with the same people.

This is really the same kind of attempt that others have been making as well as myself to get certain protection for land on environmental grounds. I would be the first to admit that my amendment is defective in that it does not refer to the National Trust for Scotland; it refers only to the National Trust for England and Wales. I beg to move.

Lord Glenarthur

When I spoke to Lord McIntosh's amendment I gave a special commitment to consider (a), (b) and (c) of Amendment 88B. I hope that with that assurance, and after the noble Lord has studied in Hansard what I said specifically in relation to it, he will see fit not to press this amendment.

The Earl of Kinnoull

Besides the fact that the operators can go beyond an agreement between a landlord and tenant, as we now understand—they can just wipe out an agreement between landlord and tenant—may I ask whether they can also wipe out any normal restraints on planning other than this 50 ft. pylon?

Lord Howard of Henderskelfe

It would appear to me from what has been said so far that they are going to be able to wipe out practically everything—planning agreements, management agreements, planning consents, and all sorts of other things. I would not put it past them to obliterate all our beautiful landscape. I beg leave to withdraw the amendment in view of the assurances that have been given to me by the Minister.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 89:

[Printed earlier: col. 535.]

The noble Lord said: Again, this deals with the minimum demands. I do not expect this amendment to be accepted, or this condition to be included in the telecommunications code, but I should like some indication from the Government that the obligation for restoration of the land will be included in the licences. I beg to move.

Lord Lyell

The noble Lord wants an assurance or some explanation from the Government. The Government recognise that it is vitally important that telecommunications operators should be required to make good the streets which are disturbed by the work that they carry out. But I assure the noble Lord and the Committee that this is already provided for, and that the amendment is superfluous. All those operators who are authorised by the Secretary of State to use the powers in the code, and also to undertake works in the street, classified under paragraph 9, will automatically be subject to this splendid measure, the Public Utilities Street Works Act 1950, as the tailpiece to paragraph 9(1) of the code makes clear. Your Lordships will see that.

Section 7(2) of the 1950 Act places this fascinating breed called "statutory undertakers"—the operators under the code will fall into this classification—under an obligation to reinstate and to make good the street after they have completed their works. Failure to do this attracts criminal penalty. But the 1950 Act provides for some flexibility, so that the street authorities may elect to reinstate and to make good the street themselves after the execution of all but what I am informed are minor works. If the street authority chooses this course, the undertaker, by, the measures in paragraph 9(1), is required to make interim restoration. He has to reimburse the authority for the costs of any permanent reinstatement of the street which may be undertaken by that street authority.

Furthermore, the undertaker is required to reimburse the street authority for the costs of remedying any subsequent subsidence of his work. In other words, if he does not do it well, if it is carried out and the undertaker or the operator causes grave structural damage to the street and further repairs are necessary, the operator will be required to make good the street to the condition in which it was before he carried out his works.

I hope that against this background and at this late hour I have been able to give a satisfactory explanation to the noble Lord in his justified question.

Lord McIntosh of Haringey

Only up to a point. The amendment refers to "street, highway or land", and the noble Lord has referred only to legislation in 1950 which refers to streets. I wonder whether he can tell me what assurance there is for the restoration of land to its previous condition?

Lord Lyell

I can give a brief answer, but not tonight. I will study what the noble Lord has said and will write to him. If he wishes to raise this at a later stage I can answer him, but I understand that "street" and the provisions of paragraph 9 go very wide.

The Earl of Kinnoull

Before the noble Lord withdraws the amendment, my noble friend talks about the operator being forced to reinstate or, if there has been a depression in the land, to build it up again. Who will have the right to force the operator to do this? Will it he the tenant of the land or the court? Who will have the right to see that this work is done?

Lord Lyell

I can reply swiftly to my noble friend. I hope I have read out correctly at this late hour that the statutory undertaker—that is, the operator—is under an obligation to reinstate and to make good the street after the completion of his works. I imagine that it is the people we call "the street authority" who would be the relevant authority under the local council. I am pleased that the noble Lord, Lord McIntosh of Haringey, is able to nod assent, since he has served, and I have not, in local government. It would be the street authority who would enforce the obligation under Section 7(2) of this splendid PUSWA, the Public Utilities Street Works Act 1950.

I am able to give an answer this evening to the noble Lord, Lord McIntosh. I am advised that repairs to land and bringing land back into the state in which it was before the operator started work is covered under paragraph 4(2). He will find that in the code.

Lord McIntosh of Haringey

I am grateful to the noble Lord for those explanations and assurances. On that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 90 and 91 not moved]

Lord Lyell moved Amendment No. 91A:

Page 101, line 4, at end insert— (" ( ) If within the period of 28 days beginning with the giving of a notice under sub-paragraph (7) above the person to whom that notice was given gives a notice to the operator requiring him to pay compensation, the operator shall he liable to pay that person compensation in respect of loss or damage sustained in consequence of the carrying out of the emergency works in question; and any question as to the amount of that compensation shall, in default of agreement, be referred to arbitration under paragraph 13 below.")

The noble Lord said: I shall speak also to Amendments Nos. 91B, 91C, 91E, 91F, 91G, 91H and 91J, which stand in the name of my noble friend.

Amendment No. 91B: Page 101, line 16, leave out ("under paragraph 12 above which") and insert ("or question which, in accordance with paragraph 12 above.")

Amendment No. 91C: Page 101, line 21, leave out ("On a reference") and insert ("Where an objection under paragraph 12 above is referred")

Amendment No. 91E:

Page 101, line 43, at end insert— (" (2A) Where a question as to compensation in respect of emergency works is referred to arbitration under this paragraph the arbitrator—

1. (a) shall have the power to direct the operator or the person who requires the payment of compensation to furnish him with such information and to comply with such other requirements as the arbitrator may think requisite for the purposes of the arbitration; and
2. (b) shall award to the person requiring the payment of compensation such sum (if any) as the arbitrator may determine in respect of the loss or damage sustained by that person in consequence of the carrying out of the emergency works in question.")

Amendment No. 91F: Page 101, line 45, after ("(2)(a) to (c)") insert ("or (2A)(a)")

Amendment No. 91G: Page 102, line 3, leave out from ("or) to ("to") in line 4 and insert ("the making of an award under this paragraph— (a) the references in sub-paragraphs (2)(e) and (2A)(b) above")

Amendment No. 91H: Page 102, line 6, leave out ("a reference") and insert ("references")

Amendment No. 91J: Page 102, line 8, leave out ("that sub-paragraph") and insert ("sub-paragraph (2)(e) above")

All these amendments are contained in Schedule 2, but the code allows operators to whom it is applied to install any apparatus by agreement on private land. It also gives them certain powers to enable them to install that apparatus, for example, in the streets. Paragraph 12 enables the code operators to place telecommunications apparatus across railways, canals and tramways, provided that it does not interfere with traffic on the relevant railway, canal or tramway. This power is equivalent to similar powers in the Telegraph Acts, to which we were referring in an earlier amendment, which, of course, Schedule 2 replaces. Schedule 2 also provides that the controller of what is termed the linear obstacle can object to the operator's proposal and any objection which cannot be resolved between the parties is referred to an arbitrator.

Under paragraph 13 of the code (which your Lordships will find on page 101) the arbitrator has power to modify the operator's proposals and, quite properly, to award the controller compensation for any loss or damage that he may sustain in consequence of the carrying out of these works. But, as drafted, Paragraphs 12 and 13 do not provide a mechanism for the controller of the linear obstacle—and, for these purposes. I am given to understand that this is the relevant railway, canal or tramway—to obtain compensation for any loss or damage sustained as a consequence of any works which are carried out by the operator in an emergency.

This is the particularly relevant part. The amendments that I am speaking to seek to remedy that defect. The new sub-paragraph 7(a) of paragraph 12—and that is Amendment No. 91A—is the main amendment, and it sets out the procedure whereby the operator notifies the controller of any emergency work which he, the operator, has carried out. The controller will be able to claim compensation for loss or damge just as he would if the works had been carried out normally. The subsequent amendments to paragraph 13 are, essentially, a restructuring of the existing paragraphs consequential on the main amendment to paragraph 12, which is Amendment No. 91A. With that somewhat lengthy explanation, I beg to move.

On Question, amendment agreed to.

Lord Lyell moved Amendments Nos. 91B and 91C:

[Printed earlier: col. 585.]

On Question, amendments agreed to.

Lord Glenarthur moved Amendment No. 91D:

[Printed earlier: col. 576.]

On Question, amendment agreed to.

Lord Lyell moved Amendments Nos. 91E to 91J:

[Printed earlier: col. 586.]

On Question, amendments agreed to.

Lord Glenarthur moved Amendment No. 91K:

[Printed earlier: col. 576.]

On Question, amendment agreed to.

[Amendment No. 91KA not moved.]

11.24 p.m.

Lord Lyell moved Amendment No. 91KB:

Page 103, line 48, at end insert— ("( ) In the application of this paragraph to Scotland—

1. (a) for any reference in sub-paragraph (1) to section 10 of the Compulsory Purchase Act 1965 there is substituted a reference to section 6 of the Railway Clauses Consolidation (Scotland) Act 1845;
2. (b) for the reference in that sub-paragraph to land that has been compulsorily purchased there is substituted a reference to land that has been taken or used for the purpose of a railway;
3. (c) any question as to a person's entitlement to compensation by virute of that sub-paragraph, or as to the amount of that compensation, shall, in default of agreement, he determined by the Lands Tribunal for Scotland.")

The noble Lord said: Your Lordships will see that paragraph 16 of the code, which covers injurious affection, also provides for compensation which is caused by operators' works in certain circumstances. When these paragraphs were introduced in another place, we were not able to move the necessary adaptations so that the provisions might apply in Scotland. This amendment fills that gap. As paragraph 16 is drafted in relation to England and Wales it refers to the Compulsory Purchase Act 1965. I recall speaking to that on earlier amendments moved by my noble friend Lord Kinnoull. The Compulsory Purchase Act 1965 does not extend to Scotland so that the effect has to be reproduced by reference to equivalent Scottish legislation. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey had given notice of his intention to move Amendment No. 92:

[Printed earlier: col. 536.]

The noble Lord said: On the basis that I shall have a number of different and more extensive amendments to paragraph 17 of Schedule 2 at Report stage, I shall not move this amendment at this time.

[Amendment No. 92 not moved.]

[Amendments Nos. 93 and 94 not moved.]

Lord Glenarthur moved Amendment No. 94A:

[Printed earlier: col. 576.]

The noble Lord said: This amendment was spoken to earlier. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 95:

[Printed earlier: col. 536.]

The noble Lord said: I am not quite so co-operative on this amendment. As I indicated when speaking to Amendment No. 81, this is a matter of considerable practical importance even though it may seem minor to some people. There is, and is bound to be, an increasing problem of abandoned equipment of various kinds and it seems necessary for local authorities to have the power to remove abandoned telecommunications apparatus. I do not see how the power can be exercised in the context of a licence, since presumably the licensee is not capable either of being contacted or being held to the conditions of his licence. It therefore needs direct action to give local authorities the powers required, and I beg to move.

Lord Glenarthur

This amendment raises an important issue in relation to the responsibility of local authorities for ensuring in particular that the highways for which they are responsible are free from obstruction and abandoned apparatus that may be undesirable in environmental terms.

I think, however, that the code already goes a very long way towards meeting the noble Lord's concerns. Paragraph 22 of the code provides that an operator is not entitled to keep his apparatus installed on land if it is not used for the purposes of the operator's system and there is no reasonable likelihood that it will be so used. Paragraph 21 of the code lays down the procedure to be followed in order to enforce a right to have apparatus removed from land—for example, in a case where the apparatus ceases to be used for the statutory purposes of running the relevant telecommunication system.

Thus, there is no doubt that a local authority could, under these provisions, enforce a right to remove apparatus abandoned on land which it owns. If necessary, the authority could seek an order of the court, enabling it to remove the apparatus itself and seek reimbursement of the cost of doing so from the operator. A highway authority would, under these provisions, also be entitled to require the removal of any apparatus abandoned in any section of the highway for which it is responsible. The telecommunications code apart, highway authorities also have power to remove abandoned apparatus when it causes a nuisance, or otherwise interferes with the highway.

I hope the noble Lord will agree, therefore, that we have provided local authorities with very adequate powers to deal with the problem of abandoned apparatus. Highway authorities are already enabled to require the removal of abandoned apparatus in certain circumstances in the street. Although the noble Lord's amendment does not specifically provide such a power, it is clear that a local authority would need to he given a power to enter on to private land in order to remove abandoned apparatus. I do not think it would he proper to give local authorities power to enter on to land for this purpose, particularly when the occupier of that land is already enabled to require the removal of any apparatus abandoned on his land. I would therefore hope that the noble Lord will see fit to withdraw the amendment.

Lord McIntosh of Haringey

I am afraid that that answer is unsatisfactory in a number of ways. First, the noble Lord has referred almost entirely to highway authorities and to the removal of telecommunications apparatus from the highway, whereas, as he recognised in his closing remarks, the purport of the amendment goes much further than that. It includes land other than the highway, which may be private land and may be land owned by the authority or accessible in other ways. The noble Lord also appears to have failed to realise the importance of paragraph (b) of my amendment, which refers to the case of abandoned telecommunication apparatus which the operator has failed to remove after reasonable notice. The kind of occasion that I am thinking about, and which the Government must think about, is the occasion when an operator is unable to remove it, when an operator is no longer solvent or, for example, when an operator simply does not have the power or the finance to do what is environmentally necessary.

The Government will have to look at this again, extending the powers beyond those of highway authorities. The alternative which the Minister suggested, of going to the courts has been found, in the case of abandoned cars, to be quite excessively slow and expensive and led, until greater powers were given to highway authorities, to abandoned cars being very difficult to get rid of. I suggest that the changes in the law, which have enabled local authorities more efficiently to get rid of dead cars from the highway, ought to be applied to telecommunication apparatus, and that there should be no difficulty for the Government in finding ways of doing so. But on the basis that there is need for further thought about the right of access to private land, I am prepared to withdraw the amendment at this stage. I take enough comfort from what the Minister has said to think that he will be willing to answer the specific points which I have made in moving this amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Glenarthur moved Amendment No. 95A:

[Printed earlier: col. 576.]

On Question, amendment agreed to.

[Amendment No. 96 not moved.]

Schedule 2, as amended, agreed to.

Clause 11 [Provisions supplementary to section 10]:

Lord Lyell moved Amendment No. 96A: Page 13, line 24, leave out ("made by statutory instrument")

The noble Lord said: This is a drafting amendment. As a result of amendments made at an earlier stage, Clause 92 now draws together references in the Bill to the Secretary of State's power to make orders or schemes by statutory instrument. Thus the reference in Clause 11(1) to an order applying parts of the Electricity Supply (Northern Ireland) Order being "made by statutory instrument" is no longer necessary. This amendment seeks simply to remove the superfluous words. I beg to move.

On Question, amendment agreed to.

Lord Lyell moved Amendment No. 96B:

Page 13, line 34, at end insert— ("( ) The Secretary of State may from time to time by order provide that the telecommunications code shall have effect for all purposes as if an amount specified in the order were substituted for the amount specified, or for the time being having effect as if specified, in sub-paragraph (3) of paragraph 16 of the code as the minimum amount of compensation payable under that paragraph: and an order under this subsection may contain such transitional provisions as the Secretary of State considers appropriate.")

The noble Lord said: Paragraph 16 of the telecommunications code in Schedule 2 makes provision for compensation to be paid by an operator in respect of injurious affection to neighbouring land caused by the exercise of a right to install apparatus. This amendment to Clause 11 is related to the provision in paragraph 16(3) of the code that compensation for injurious affection should not be payable, unless the amount of compensation exceeds £50. This is designed to exclude nuisance and frivolous claims and follows the precedent in the existing land compensation legislation. It is thought however that there should be a power for the Secretary of State to amend by order this de minimis figure in the light of inflation. This amendment would give the Secretary of State such a power which he would be able to exercise, subject to parliamentary control, by the negative resolution procedure. I beg to move.

On Question, amendment agreed to.

Clause 11, as amended, agreed to.

Clause 12 [Modification of licence conditions by agreement]:

11.35 p.m.

Lord Mackay of Clashfern moved Amendment No. 96C:

[Printed earlier: col. 514.]

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 97 not moved.]

Clause 12, as amended, agreed to.

Clause 13 [Licence modification references to Commission]:

Lord Morris moved Amendment No. 98:

Page 15, line 32, at end insert— ("(1A) Subject to subsection (1B) and (1C) below where the Director makes a reference to the Commission under subsection (1) above, he may if he sees fit modify the conditions of any licence to which the reference relates. (1B) Any modification of a licence under subsection (1A) above shall cease to have effect upon the making of any modifications to the licence under section 15 below in consequence of the reference to the Commission or at such earlier time as the Director may declare. (1C) Subsections (3) to (6) of section 15 below shall apply to the making of modifications to any licence under this section.")

The noble Lord said: Despite the fact that I understand that the argument underlying this amendment is well-known to Her Majesty's Government, it is critically important that Parliament should consider the argument. Although it is known to the Government it is for Parliament to ratify, at least, the Government's view. The amendment is designed to assist the vital role of Her Majesty's Government and, indeed, the Director General of Telecommunications, and to provide industry with a means of avoiding the cost of having eternally to look to their backs.

At Second Reading I suggested that more emphasis should have been placed in the Bill upon deterring a wrong rather than upon emphasising remedies to a wrong already committed and that there should be more incentive for self-regulation rather than encouraging complainants to the department and to the Office of Telecommunications. The Director General of Telecommunications and the Department of Trade and Industry will be for ever reviewing the performance of individual licensees and considering the conditions of licensees' licences against the performance of those conditions—in other words, for ever being regulatory and administering rather than performing their more important role of concentrating their endeavours upon gearing the tempo of change and encouraging the commercial and industrial initiative best suited to the national interest.

As the Bill is drafted, the only expectations of dealing with new forms of anti-competitive behaviour lie in the provisions of Clause 3(2)(b) and (h), the provisions of Clause 13 and the duties of direction under Clause 49, whereby the director general can exercise the functions of the Director General of Fair Trading and the provisions of the Competition Act 1980.

The manner in which the Secretary of State's duties under Clause 3 are perceived in the exercise of the licensing-granting function under Clauses 7 and 8 may be anticipated in the form of a draft licence which has recently been published. This contains various restrictions upon what could be anti-competitive practices but at the same time does not plug every possible loophole, an ideal which I fully admit would be quite impossible to achieve. However, the problem that this amendment is intended to highlight is the inventiveness of the major suppliers of goods and services in thinking up new means of preventing effective competition.

The United States experience indicates that many methods could be used: for example, competing operators denied the same quality of connection: free telephones and other apparatus could be offered, the charge being included in line rentals; excessive charges for installing sockets for jacks for prime instruments; loyalty discounts; "bundling" of equipment and service prices; leasing arrangements to tie in customers; varieties of cross-subsidisation, predatory pricing and transfer pricing; and the use of "migration strategy"—in other words, raising the price of use of existing installed equipment to encourage the purchase of new offerings, particularly in advance of competitive offerings. Some of these practices could include artificial restriction in permitting interconnection of one licensee's system and another's, the showing of undue preference to itself, cross-subsidisation of services, and alteration—this is an important one—without adequate notice of licensees' systems, of their stored commands or protocols, in such a way as to cause confusion to their competitors. However, no claim could be made for the exhaustiveness of this list.

Against this background of opportunity for an ingenious and knowledgeable licensee, the lengthy procedures of Clause 13 onwards, whereby a licence condition may be amended against the wishes of the licensee, pursuant to a reference to the Monopolies and Mergers Commission, must be examined. They are indeed extremely lengthy. This amendment is designed to allow the director to take prompt action—by analogy it could be described as an injunction—to suppress anti-competitive practice in this way.

Since the suppression of anti-competitive behaviour is an acknowledged aim of the Bill, it would be unfortunate if the procedures laid down were too slow-footed to keep up with the tactics likely to be employed. By the proposed amendment, it is intended that the necessary licence amendments may be made promptly. While the amendment stands on its own, it would be immeasurably reinforced by other amendments put forward to secure a licensee's prompt compliance with the conditions of his licence. I beg to move.

Lord McIntosh of Haringey

I do not think any of us would wish to see delay for its own sake, or to weaken the powers of the director general, but what is proposed in this amendment does seem quite a remarkable instance of the latter being judge and jury in his own case. It is suggested that, when the Director General of Telecommunications makes a reference to the Monopolies and Mergers Commission, he shall, without waiting for any response from the commission and without hearing any of the evidence the commission will have to consider, at the same time modify, without consent, the conditions of the licence. If that is not prejudging the decision of the commission, I do not know what is.

Lord Morris

The noble Lord has totally missed the point. The director general must, before he makes a reference to the commission, come to the conclusion that there is a prima facie case. If there is, there is absolutely no reason why he should not make an injunction. This practice is not unknown to the courts in an analogous civil action, where speed is of the essence.

Lord McIntosh of Haringey

That is no analogy at all. A prima facie case is for reference to the commission. It goes no further than that. The noble Lord suggests the director should act on this prima facie case rather than wait for the judgment. I am very happy to leave it to the noble and learned Lord to explain to the noble Lord, Lord Morris.

Lord Morris

I am sure the noble Lord has some experience of how long it would take for the Monopolies and Mergers Commission to come to a conclusion. Has he any idea?

Lord Mackay of Clashfern

Perhaps I may be allowed to intervene. I am not in favour of delay for its own sake either. The concern that my noble friend has evinced I perfectly understand. The procedures for modifying licence conditions do envisage some delay in those circumstances where a licensee does not agree that an amendment should be made. However, that delay is for as short a period as possible consistent with a thorough investigation of the matters referred to the Monopolies and Mergers Commission. The requirement for the director to specify a period of up to six months within which the commission must report is the same as the period allowed for merger references under the Fair Trading Act. In framing this provision in the Bill, the Government saw the need to balance different considerations. On the one hand is the clear desire to minimise the period of uncertainty for the licensee concerned, and the need for speedy remedies to matters which affect the public interest. On the other is the need for the commission to have a sufficient period of time to investigate matters which may critically affect the licensee's business and also the wider interests of other operators, manufacturers of telecommunications equipment, consumers and users of services and apparatus, and so on.

Your Lordships will note that this amendment does not seek to challenge that balance of considerations. It accepts that the modification of licence conditions where there is no agreement between the director and the licensee should be a matter over which the commission acts as an independent arbiter. But I have to say that whilst apparently accepting the basis of our present policy, it would undermine it in a very significant way.

The regulatory arrangements set out in the Bill strike a fair balance between all the interested parties. That balance could be quite unfairly tilted in unpredictable directions if the director had power to modify licence conditions on an interim basis while waiting for the Monopolies and Mergers Commission to report, even allowing for the public notification procedures in Clause 15 which the amendment envisages would apply.

My noble friend referred to the court situation and an interim injunction—or, as I prefer to call it, an interim interdict. The situation very often is that these are granted to preserve the position at the time litigation starts; in other words, to prevent the position being innovated upon. In a sense that is the way in which this Bill proceeds; it is on the view that matters should not be altered until the Monopolies and Mergers Commission reports.

There is one other matter. A good number of the practices to which my noble friend referred are already prevented in the terms of the licence, and to a certain extent the imagination which goes into the preparation of the licence terms will play a significant part in reducing the problem to which my noble friend draws attention. I hope that against that background my noble friend will feel that, although I see the point that he makes, perhaps on balance the Bill is better as it stands.

Lord Morris

I am most grateful to my noble and learned friend the Lord Advocate for the carefully considered argument that he has given to this amendment. I will of course have the opportunity to consider what he said in greater detail at a more reasonable hour. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Clashfern

moved Amendment No. 98A:

[Printed earlier: col. 514.]

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 13, as amended, agreed to.

Clause 14 [Reports on licence modification references]:

Lord Morris moved Amendment No. 98B: Page 18, line 18, after second ("person ") insert ("and to the attention of persons likely to be affected by the report ")

The noble Lord said: On mature reflection this amendment has been tabled somewhat clumsily. The intention is very clear. It is to bring into another part of the Bill the very good intentions of Her Majesty's Government in drawing to the attention of persons likely to be affected by the report, in this instance in Clause 14; namely, in particular the complainant affected by that. I am as certain as I can be that I have tabled the amendment in the wrong part of the clause. Notwithstanding that technical point, I beg to move.

Lord Mackay of Clashfern

As I understand the amendment it is pretty much in line with the amendments that I have proposed to other clauses. On that assumption, if my noble friend is prepared to withdraw this amendment, I will undertake to bring forward an amendment on Report which I believe will be appropriate to deal with the point he makes.

Lord Morris

I am most grateful to my noble and learned friend. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 agreed to.

Clause 15 [Modification of licence conditions following report]:

[Amendment No. 99 not moved.]

Lord Mackay of Clashfern moved Amendment No. 99A:

[Printed earlier: col. 514.]

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 15, as amended, agreed to.

Clause 16 [Securing compliance with licence conditions]:

11.49 p.m.

Lord Glenarthur moved Amendment No. 99B: Page 19, line 31, leave out ("an operator") and insert ("a person who is authorised by a licence granted under section 7 above to run a telecommunication system (in this Act referred to as a "telecommunications operator")")

The noble Lord said: It might be for the convenience of the Committee if we considered with this amendment Amendments Nos. 99C, 99E, 99F, 99G, 99H, 99J, 99L, 99N, 99P, 99Q and 150A. Amendment No. 99C: Page 19, line 40, leave out ("an") and insert ("a telecommunications") Amendment No. 99E: Page 20, line 19, after second ("the") insert ("telecommunications") Amendment No. 99F: Page 20, line 21, after first ("the") insert ("telecommunications") Amendment No. 99G: Page 20, leave out lines 31 to 33. Amendment No. 99H: Clause 17, page 21, line 16, after first ("the") insert ("telecommunications") Amendment No. 99J: Clause 17, page 21, line 19, after ("the") insert ("telecommunications") Amendment No. 99L: Clause 17, page 21, line 40, after second ("the") insert ("telecommunications") Amendment No. 99N: Clause 17, page 22, line 8, after second ("the") insert ("telecommunications") Amendment No. 99P: Clause 18, page 22, line 9, after ("the") insert ("telecommunications") Amendment No. 99Q: Clause 18, page 22, line 18, after second ("the") insert ("telecommunications") Amendment No. 150A: Clause 94, page 82, line 30, at end insert—(""telecommunications operator" has the meaning given by section 16(1) above:")

These are technical amendments and I shall only take a moment of the Committee's time. Clauses 16, 17 and 18 as they stand refer to "an operator" which is defined at the end of Clause 16 as a person who is authorised by a licence granted under Clause 7 to run a telecommunications system. As your Lordships may have noticed, there are amendments on the Marshalled List to Clauses 31, 32 and 33. These result in a reference to "a telecommunications operator". However, this person so described is the same as the person described as "an operator" in Clauses 16 to 18. It is obviously sensible to have the two descriptions the same and these amendments are designed to change "an operator" to "a telecommunications operator". It is necessary to do it this way round rather than change Clauses 31, 32 and 33 because in those clauses the word "telecommunications" is necessary to make the provision readily understandable. Amendment No. 150A simply adds the definition of a telecommunications operator to the list of definitions in Clause 94. I beg to move.

On Question, amendment agreed to.

Lord Glenarthur moved Amendment No. 99C:

[Printed above.]

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 99CA: Page 20, line 5, leave out ("where he is satisfied that") and insert ("if")

The noble and learned Lord said: The amendment seeks simply to introduce consistency between final orders and orders confirming provisional orders by deleting the words in subsection (4), where he is satisfied that". so that the director will be obliged to confirm a provisional order if, at the time the order was made, its provisions were requisite. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 99D:

[Printed earlier: col. 514.]

The noble and learned Lord said: I have spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Glenarthur moved Amendments Nos. 99E, 99F and 99G:

[Printed above.]

On Question, amendments agreed to.

Clause 16, as amended, agreed to.

Clause 17 [Procedural requirements]:

Lord Glenarthur moved Amendments Nos. 99H and 99J:

[Printed above.]

On Question, amendments agreed to.

Lord Mackay of Clashfern moved Amendment No. 99K:

[Printed earlier: col. 514.]

The noble and learned Lord said: I have spoken to this amendment earlier. I beg to move.

On Question, amendment agreed to.

Lord Glenarthur moved Amendment No. 99L:

[Printed above.]

The noble Lord said: This amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 99M:

[Printed earlier: col. 514.]

The noble and learned Lord said: I have spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Glenarthur moved Amendment No. 99N:

[Printed above.]

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18 [Validity and effect of orders]:

Lord Glenarthur moved Amendments Nos. 99P and 99Q:

[Printed above.]

The noble Lord said: I have already spoken to these. I beg to move.

On Question, amendments agreed to.

The Deputy Chairman of Committees

If Amendment No. 99R is agreed to, it will not be possible to call Amendment No. 100.

Lord Mackay of Clashfern moved Amendment No. 99R: Page 22, line 33, leave out from ("it") to end of line 35 and insert ("; and the obligation to comply with a provisional order which is subsequently confirmed with modifications shall be regarded for the purposes of this subsection as an obligation to comply with the order with such of the modifications (if any) as relax the requirements of the order. (5A) Where a duty is owed by virtue of subsection (5) above to any person—

1. (a) any breach of the duty; and
2. (b) any act which induces a breach of the duty or interferes with its performance and which is done wholly or partly for the purpose of achieving that result,

shall be actionable at the suit or instance of that person. (5B) In any proceedings brought against any person in pursuance of subsection (5A)(a) above, it shall be a defence for him to prove that he took all such steps as were reasonably practicable to comply with the order.")

The noble and learned Lord said: This amendment is part of a fairly important package of amendments which has the effect, among other things, of getting rid of an important criminal provision in Clause 45. It is against that background that I present the matter.

The main effect of the amendments to Clause 18, which I move now, is to ensure that customers of public telecommunication operators who suffer loss or damage as a result of certain kinds of industrial action are able to sue those concerned. They may also obtain injunctions or interdicts against those responsible. This provides members of the public with a civil remedy against selective industrial action by trades unions and in the circumstances the Government were able to review the provisions of Clause 45 of the Bill which make it a criminal offence for employees of public telecommunications operators to take certain kinds of action there described.

I should explain that Clause 45 reproduces with modifications the provisions in the existing Telegraph Acts which make it a criminal offence for anyone engaged in the running of a public telecommunication system intentionally and contrary to his duty to prevent, delay or interrupt the transmission or reception of a message sent by means of the system. It is clear that some forms of industrial action, such as deliberate blacking of a particular customer's premises, so that he could not use the telephone to send messages, could constitute a criminal offence. Other forms of industrial action, such as an all-out withdrawal of labour which had only the incidental effect of preventing some customers using the telephone to send messages, might well be in a different position.

The Government have decided that, in view of the availability of civil remedies as a result of the amendments that I now propose to Clause 18, it would be right to delete Clause 45(1)(a). That means that, from the appointed day, no form of industrial action by employees of public telecommunications operators which prevented, delayed or interrupted the transmission or reception of messages will be a criminal offence. Any such action would, however, be a breach of the employee's contract of employment and would render him liable to disciplinary action by his employer, and any member of the public who suffered loss because an employee of a public telecommunications operator prevented the transmission or reception of a message would have a remedy against the operator under his contract for the supply of telecommunication services, assuming that the contract covered that situation.

The Government's ability to amend Clause 45 has arisen because these amendments to Clause 18 of the Bill clarify the right to claim damages or to seek injunctions or interdicts of those who suffer loss as a result of a deliberate action by an employee of a telecommunications operator to prevent them sending telephone messages. At present Clauses 7 and 8 of the Bill provide that a public telecommunications operator will have obligations under his licence to provide telecommunication services, for example to rural areas. If the operator fails to honour those obligations, he can be subject to orders made by the Director General of Telecommunications under Clause 16, requiring him to do specific things in order to fulfil his licence obligations. It is a statutory duty for the operator to obey such enforcement orders, and they are enforceable in the courts. Anyone who is adversely affected by a breach of the duty to obey an order made by the director can obtain damages from the operator.

It is probably the law that any action to induce a breach of a statutory duty constitutes a tort or a wrong, and the person committing the tort may be liable to actions for damages, or to injunctions, or to both. Therefore an employee of a public telecommunications operator who took action, (including industrial action) to prevent the operator complying with his statutory duty to obey the director's enforcement order would be liable to civil action for damages, or an injunction or interdict, or both. The legal position is not free of doubt, and it may be that inducement to breach a statutory duty is not in fact a wrong and that an employee or his trade union could not be sued for damages, or for an injunction or interdict, in the circumstances that I have described.

The Government have therefore decided to clarify the law but only so far as concerns acts which induce a breach of the statutory duty to obey enforcement orders under this Bill, or which interfere with the performance of such a duty. The amendments to Clause 18 of the Telecommunications Bill will make it clear that any act which induces a breach of the duty to obey a Clause 16 enforcement order, or which interferes with the performance of such a duty, shall be actionable by any person affected by the breach of the duty. The new provision will apply only to acts which are done wholly or partly for the purpose of achieving the result of inducing a breach of the duty or of interfering with the performance of the duty.

This limitation is particularly important for those concerned in industrial relations in, for example, British Telecom, and I should explain the effect of the words, wholly or partly for the purpose of achieving the result". of inducing a breach of the statutory duty. For example, an electricity undertaking might cut off the electricity supply to a public telecommunications operator who had not paid his electricity bill. That could cause the operator to breach his duty to obey an enforcement order, but the electricity undertaking would not be liable to action in the courts because its action was not taken with a view to the result, even in part, of causing the operator to breach the enforcement order.

Similarly, a trade union which called an all-out strike of employees of a public telecommunications operator over a pay dispute which resulted in a breach by the operator of his duty to comply with a Clause 16 enforcement order would not, in our view, be liable because the action was not taken with a view to achieving the result of causing the operator to breach his duty. The breach would be an incidental and an unintended result of the industrial action.

On the other hand, if a manufacturer deliberately withheld normal supplies of a special kind of apparatus which he knew the operator needed in order to provide a service which the operator was required to provide under an enforcement order, and if the manufacturer sought this result, he might well be liable. Similarly, if an employee or a group of employees of the operator deliberately blacked or continued to black a customer with a view to the result of causing the operator to breach his duty to obey an enforcement order, they might well be liable to pay the customer damages and would be liable to an action for an injunction or interdict.

Clause 18 is also being amended to ensure that an operator will not be liable for damages when he breaches an order if he can prove that he did all that was reasonably practicable to obey the order. This will provide the operator with a defence against claims for damages in circumstances where the breach of a duty was wholly beyond remedy by him. These amendments have been brought forward to deal with concern expressed in relation to the provisions of Clause 45. They deal with a complex area. The Government stand ready to consider any representation about the amendments and any matters of drafting that anyone seeks to raise. I beg to move.

Lord McIntosh of Haringey

This is a complex and dense amendment. It has been moved in an unavoidably complex and dense way, and also at breakneck speed, which makes it somewhat difficult for us. I think that it would be wise for us to concentrate on criticism of the right to strike section of the Bill to our own amendment on Clause 45. I appreciate the attempt in this amendment to modify the conditions continued from the Telegraph Acts, but I think that it would be necessary for us to consider them all together.

I simply ask for one concession from the Government. In view of the hour, we shall not have the opportunity to study the noble and learned Lord's speech in time for the debate on the amendment tomorrow. I wonder whether it would be possible to have a copy of the speech in time for us to consider it, as we normally would, on the later amendment.

Lord Mackay of Clashfern

I think that that should he possible. I would hope to facilitate it later tonight, or possibly tomorrow morning.

Lord Morris

I think that the noble Lord, Lord McIntosh of Haringey, will have no problem with regard to my noble and learned friend's speech. It will be available in the Library first thing tomorrow. The amendment places me in a difficult position. As your Lordships will be aware, the amendment is new despite the fact that there is no star to it. It was tabled on Friday, and was seen only today. It has the effect not only of shooting but also of hanging, drawing and quartering my fox with regard to Amendment No. 100. I am not suggesting in any way that this was done deliberately. I believe, however, that I am duty bound to speak to Amendment No. 100 at this stage. I understand that this is my right.

I support the amendment in its entirety. However, it does not go quite as far as I should like. Amendment No. 100 is significant in respect of the new text contained in paragraph (a). This has the effect of making actionable not just the breach of an order made by the director but also the breach of a licence condition about which the order is made. This is intended to give rise to a liability on the part of any licensee in breach to pay compensation with effect from the date the breach first caused loss.

The purpose of the amendment is to secure promptly a licensee's compliance with his licence conditions in circumstances where delay in compliance would cause other users of telecommunications services considerable personal loss. Where these users are also licensees in their own right and potential competitors with a public telecommunications operator, the requirement to secure the public telecommunications operator's compliance with his licence is even more desirable and urgent.

There is, indeed, scope and incentive for a licensee effectively to delay the enforcement of his licence against him and there is no adequate remedy available to others for losses suffered by them during the period when enforcement is delayed, even if the licensee is found by due process to have been acting entirely contrary to his licence terms.

The Government were aware that this amendment was tabled by me the day after the Second Reading. It was tabled a very long time ago. I am absolutely certain that argument was developed either to agree with or to counter this amendment. I believe that it would be only fair in the circumstances for me to have some sort of answer to the argument devolved upon this amendment.

12.6 a.m.

Lord Mackay of Clashfern

I think that it is possible to regard the amendment to which my noble friend has just spoken as a kind of criticism of the amendment which I have just moved. In that light may I say that the arrangements which we have proposed in the Bill, as amended by the amendments that I have just made, are designed to avoid the excessive litigation which has been a feature of regulatory activity in other parts of the world, and to give protection to individuals who cannot afford to go to law. Such an approach is however incompatible with a free-for-all where individuals can take licensees to court for breaches of licence conditions, as my noble friend is proposing. To allow that would ensure that the director's key role as the kind of policeman of the condition was undermined, and by allowing all aggrieved persons recourse to the courts, would create a certain recipe for a good deal of confusion and delay. It could also open the door to a flood of contentious litigation and take us some way down the road of experience in other parts of the world.

We do not believe that such a procedure would benefit complainants. Both they and licensees would be involved in time-consuming court actions which, for complainants, would also be unnecessary since there is a much shorter, cheaper and effective route through the director. In a sense the amendment itself acknowledges that because it indicates that the proceedings should only be brought with the prior written consent of the director. In that situation it appears to me to acknowledge the correctness of the principle that we have embodied in the arrangements that we have proposed.

Lord Morris

In the circumstances of the tabling of this particular amendment, I feel sure that my noble and learned friend will understand that I must of course reserve the right to return to this very important point at another stage. However, as a most eminent lawyer, he will understand that the multiplicity of litigation argument born of experience in other countries, really does not hold water in any way whatever. My noble and learned friend will know better than anybody the hideous cost of litigation in this country and anybody who goes to law in this country does so with the greatest care and at their greatest peril. As he knows, in the United States—which I believe is the experience which he is praying in aid—the costs procedures, which are geared to the amount of damages won in court, are an incentive to a multiplicity of litigation. There is no incentive whatever to a multiplicity of litigation in this country. I believe that for a Bill in any way to deprive the individual from recourse to the courts, is a very worrying precedent. However, I shall return to this point at a later stage.

Lord Stoddart of Swindon

This is a very complicated and a very important amendment. I must confess that I think that the Committee has not been done a service by having the amendment brought forward only this morning on today's Marshalled List. Nor is the Committee being done a service by discussing this very complicated and important amendment at this time of night. I believe that we should have a fuller Committee and a much refreshed Committee—refreshed after having had a good night's sleep—to contemplate and think about what the noble and learned Lord the Lord Advocate said.

This matter was raised on Standing Committee A in another place on 24th November, when there was quite a long debate about the position of workers and trade unions in the telecommunications industry. Quite frankly, I am still not clear as to just exactly what their position will be after this amendment and the amendment to Clause 45—Amendment No. 108F—have been agreed to, if they are agreed to, by this Committee. Will workers in the telecommunications industry have the same rights as those in other industries? Will they be protected from criminal liability under circumstances, or under certain circumstances? Will they be able to take selective action—for example, as selective action can be taken in the Civil Service, in the electricity industry and in the gas industry—without being liable to criminal prosecution and criminal penalties?

Those matters were not made clear by the noble and learned Lord the Lord Advocate when he spoke to this particular amendment, Amendment No. 99R. On Standing Committee A at col. 896 of Hansard the Solicitor-General said: It means"— and he was referring here to the question of the right to strike and the right to take action— no infringement and no derogation from the right to strike". That is fair enough and those are my own words. Then he went on: But in the case of industrial action falling short of a strike, a withdrawal of labour, the clause may, according to the circumstances, make such action a criminal act. The same answer has to he given with respect to the 1863 and 1953 Acts. We want further assurances and a further clarification of what the Government have in mind with regard to this amendment and the amendment to Clause 45. I hope that the noble and learned Lord the Lord Advocate can give those assurances tonight and, if he cannot, then I hope that the Committee can adjourn and that the noble and learned Lord can come forward tomorrow and give us the explanations then.

Lord Mackay of Clashfern

As I sought to explain, the amendment which I hope to move in just a little while will delete the provisions from Clause 45, which had the effect of making a criminal offence arise in relation to interfering with the sending on of a message, and I shall explain that a little more fully in relation to Amendment No. 108R.

On the other aspect of this matter, in effect we are deleting the portion of Clause 45 which was the subject of the debate to which the noble Lord, Lord Stoddart of Swindon, referred. Therefore, that as a basis for criminal liability disappears. That really is the point of this. As I have sought to explain, in order to try to meet the concerns expressed in that direction we have deleted that and taken the matter into the civil area.

On Question, amendment agreed to.

[Amendment No. 100 not moved.]

12.15 a.m.

Lord Mackay of Clashfern moved Amendment No. 100A: Page 22, line 37, leave out (" (5) ") and insert (5A)(a) ")

The noble and learned Lord said: This is part of the package of amendments to which I have just referred, and I beg to move.

On Question, amendment agreed to.

The Deputy Chairman of Committees

Amendment No. 101 should be in the name of the noble Lord, Lord Morris.

Lord Morris moved Amendment No. 101:

Page 22, line 41, at end insert— ("(6A) Subject to subsection (6B) below, any person who suffers damage by reason of the failure by a public telecommunications operator to comply with any condition to which section 8(1) above refers in that operator's licence shall be entitled to compensation for that damage from that operator. (6B) No proceedings shall he brought by virtue of subsection (6A) of this section without the prior consent in writing of the Director. (6C) In proceedings brought against a public telecommunications operator by virtue of subsection (6A) of this section it shall be a defence to prove that he had taken such care as in all the circumstances was reasonably required to ensure compliance with the condition of the licence in question.")

The noble Lord said: For one glorious moment I thought the Government had taken up this amendment, but I was quite wrong. I will not take long. This amendment does nothing other than place another arrow in the quiver of Her Majesty's Government and, indeed, the director general of Oftel. I spoke briefly on the effect of this amendment on the previous one, Amendment No. 99R, in that I believe it is very important that the director general of Oftel has the power to grant his fiat for a private prosecution to any person who suffers damage by reason of failure by a public telecommunications operator to comply with any condition in the operator's licence which is referred to in Clause 8(1). I believe that if there is any restriction on an individual's recourse to the courts, it is something which has to be looked at with the very greatest care. It would be quite wrong to argue this case in detail at this time of night, but I would be interested to hear what the Government have to say with regard to this amendment. I hope they do not repeat the multiplicity of litigation argument, because I never have enjoyed it.

Lord Mackay of Clashfern

When I explained the answer that we had to Amendment No. 100, as a criticism of the amendment which I had then moved, I of course took account of Amendment No. 101 at the same time. This makes it unnecessary for me to repeat the multiplicity of litigation argument. All I need to do is to refer to it.

Lord Morris

My noble and learned friend the Lord Advocate, who is a value-added network service in himself in that he can repeat an argument at the speed and clarity of the most modern telex machines, has done it yet again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Clashfern moved Amendment No. 101ZA:

Page 22, line 42, after ("section") insert— (" "act", in relation to any person, includes any failure to do an act which he is under a duty to do and "done" shall be construed accordingly; (" "contravention", in relation to a final or provisional order, includes any failure to comply with it;")

The noble and learned Lord said: This is the completion of the amendment to Clause 18 which I sought to explain earlier, making necessary definitions for the purpose of that provision. I beg to move.

On Question, amendment agreed to.

Clause 18, as amended, agreed to.

Clause 19 agreed to.

Clause 20 [Approval of contractors]:

Lord Cockfield moved Amendment No. 101A: Page 24, line 30, leave out subsection (9).

The noble Lord said: My noble friend spoke to this amendment during consideration of Amendment No. 70A. I beg to move.

On Question, amendment agreed to.

Clause 20, as amended, agreed to.

Clause 21 agreed to.

Clause 22 [Approval etc. of apparatus]:

Lord McIntosh of Haringey had given notice of his intention to move Amendments Nos. 102 and 103: Page 25, line 42, leave Out ("or") Page 26, line 18, at end insert— ("or. (c) the apparatus, if it has been imported or is assembled predominantly from imported components, has been (or the relevant components have been) imported from a country or countries which permit the import into them of apparatus made in the United Kingdom.")

The noble Lord said: These two amendments, Nos. 102 and 103, follow Amendments Nos. 36 and 50, which we moved earlier on in the Committee stage and neither of which found favour with your Lordships. I became convinced in the course of the discussion that other noble Lords—notably the noble Lord, Lord Weinstock—had better wording than we had in protecting the rights of British manufacturers, which certainly have to be protected in some way. On the basis that we shall have to take account of comments earlier on and come back to this matter on Report. I shall not seek to move these two amendments.

[Amendments Nos. 102 and 103 not moved.]

The Deputy Chairman of Committees

Perhaps I should inform the Committee that, if Amendment No. 104 is agreed to, I shall not be able to call Amendments Nos. 105 or 106.

Lord Mottistone moved Amendment No. 104: Page 26, line 17, leave out subparagraph (ii).

The noble Lord said: In view of the lateness of time I propose to speak to Amendments Nos. 105 and 106 at the same time, because they are alternates on the assumption that 104 might not be agreed to. Amendment No. 105: Page 26, line 17, after ("impair") insert ("significantly") Amendment No. 106: Page 26, line 18, at end insert ("other than the services provided by or through the connected apparatus.")

The point at issue is the question of standards of apparatus, and the particular sub-paragraph that I propose to strike out is (8)(b)(ii) on page 26, which talks about impairing the quality of any telecommunication service. The point at issue is not one of standards. They should certainly be maintained but they should be restricted to essentials, particularly in order to encourage innovation and, through innovation, to encourage exports.

What is suggested is that there is no reason for this to be in the Bill. British industry could with advantage be given the right to authorise self-certification on the home market, and then this particular sub-paragraph would not be necessary. If that sensible argument is not accepted, then it would still be necessary to qualify (8)(b)(ii) first in relation to Amendment No. 105 because one must have a practical limitation on the impairing of quality, and so I seek to add significantly to it. But, in addition, one needs to qualify it to make sure that the apparatus does not necessarily include the service provided through connected apparatus.

For example, the user might be satisfied with the transmission or reception at a different standard at his terminal from that which the operator would himself have applied. Therefore, it does not seem reasonable that the third party would control the quality referred to in the particular sub-paragraph. It is really a question of either having Amendment Nos. 104, or 105 and 106 together. At this stage, I beg to move.

Lord Cockfield

I appreciate the point that my noble friend Lord Mottistone is making. The Government's view is that the mandatory standards against which the terminal apparatus must be approved should be what is necessary, but no more than is necessary, to safeguard the staff and property of network operators and to protect the interests of the whole community of subscribers. The noble Lord's amendment rests on the view that in this respect subscribers can look after their own interests without the help of regulation. That is not a view that we could entirely accept.

As my noble friend will know, there has been complaint about the quality of telephone service. British Telecom, through improvements in its trunk networks and elsewhere, is making a major investment to improve its service. These improvements could be lost if the Government were to allow unsuitable terminal apparatus to gain approval and become widespread. Noisy lines and faint speech are important among the causes of unsatisfactory calls.

For good reasons, telephones designed for the United States' market, for example, transmit more faintly than telephones for use here, and if connected here would increase the number of occasions when a call cannot he heard. Problems would not arise on all the calls and users could be unaware of them at the time of purchase, but the effect would be a progressive worsening of service.

There is also a problem of what is technically known as "network pollution". I am sure that this term is familiar to all your Lordships. Market forces cannot control such network pollution any more than they can control environmental pollution. We believe that a measure of regulation is required. There are, however, defects in Clause 22(8) as drafted. We plan to move amendments on Report. In considering what needs to be done to Clause 22(8)—the defects in it are tenchnical—we shall, of course, give consideration to the points that my noble friend has made. On that basis, I hope he will not press his amendment.

Lord McIntosh of Haringey

I had not intended to intervene. It was only because the noble Lord, Lord Cockfield, referred to amendments which the Government propose to put to this clause and subsection on Report that I think it is necessary to say that, although we agree entirely with his answers to the noble Lord, Lord Mottistone, he has given only half the story. It is not just a matter of the voice lines, but the quality of transmission is particularly important for data transmission. It will be necessary to see in any amendments that are made that the quality of data transmission, on which many millions of pounds may depend, will be fully protected.

Lord Cockfield

I entirely appreciate the point that the noble Lord has raised. I was merely endeavouring to confine the examples I had given to the minimum necessary to make the argument that I was putting forward.

Lord Mottistone

I am grateful to my noble friend for giving consideration to one or more of these amendments in any amendment that he may be putting forward at Report. I beg leave to withdraw Amendment No. 104.

Amendment, by leave, withdrawn.

[Amendments Nos. 105 and 106 not moved.]

Lord Cockfield moved Amendment No. 106A: Page 27, line 11, leave out subsection (14).

The noble Lord said: My noble friend has already spoken to this amendment during consideration of Amendment No. 70A. I beg to move.

On Question, amendment agreed to.

Clause 22, as amended, agreed to.

Clause 23 agreed to.

Clause 24 [Approval etc. of meters]:

12.28 a.m.

Lord Stoddart of Swindon moved Amendment No. 107: Page 29, line 8, leave ("sufficiently")

The noble Lord said: I can move this amendment very briefly. I must confess that when I saw this wording, that the meter would be: "sufficiently accurate and reliable", I was concerned that if one has a meter it has to be accurate and reliable. I am concerned to know exactly what will be construed by the Secretary of State as "sufficiently accurate and reliable". If, for example, it is a meter measuring my bill, I would not mind it underscoring 10 per cent.; but if it overscored 10 per cent. I should be very annoyed indeed. We have to be absolutely clear that where meters are in operation, whatever those meters may be, "sufficiently accurate" or "sufficiently reliable" just is not good enough. The consumer, whoever he might be, is entitled to believe that if something is being metered and that he is to be charged on the basis of what that meter records, it has to be accurate and it has to be reliable. I shall look forward to hearing what the noble Lord, Lord Cockfield, has to say about "sufficiently".

Lord Glanusk

I tried to speak earlier on this clause in connection with meters. Can we possibly have the definition of this clause improved? "Meters" is a generic term for a large range of measuring equipment, including Avos, voltmeters, ammeters, selective-level meters, some of which cost tens of thousands of pounds. I do not think that this clause is meant to refer to them. If we mean customer-charging meters, can we please say so in the clause and call them toll meters or charging meters?

Lord Cockfield

I should be very happy to look at the question of whether or not further definition of the word "meter" is required. So far as the point raised by the noble Lord, Lord Stoddart of Swindon, is concerned, there is no such thing as absolute accuracy when you are measuring physical quantities. Those of your Lordships who are engineers will remember that variations are always quoted at the same time as a measurement is quoted; that is, the figure is given as "plus or minus" a certain accepted degree of variation about the absolute figure. So that the word "sufficiently" is really intended to reflect the practicalities of life.

There are difficult issues to be considered both in relation to the meters already in use and those which are being developed in connection with the digitalisation of the telecommunications network. Ministers have decided therefore that consultants should be appointed to advise the department on how an approvals regime could be established under Clause 24. The object will be to ensure that practical and cost-effective arrangements are made which will significantly improve consumer protection in this area. The consultants who have been appointed are the Metra Consulting Group. They have been asked to advise on the form an approvals scheme should take and the resources required to put it into effect. In that connection, it may be of interest to know that the department's initial thinking, subject to the consultancy report, is that the main approvals work should be added to the functions of the British Approvals Board for Telecommunications. This is an established and well-known body. Perhaps I might also add that although it was concern about telephone meters which led to the inclusion of Clause 24, one of the questions the consultants will be asked to advise on will be the practicability in due course of extending whatever arrangements they recommend to cover other telecommunication services.

I hope that your Lordships will understand that I cannot at this stage offer further comment on the detailed arrangements which will be made. But we are pursuing this point. We realise the importance of having the meters as accurate as it is possible to get them within reason. I think that the right thing to do, if I may say so, is to wait for the consultants' report and to take the decision in the light of that. On the point raised by my noble friend Lord Glanusk, I am now assured that a meter is, in fact, defined in Clause 24 (16) which reads: In this section "meter" means any system or apparatus constructed or adapted for use in ascertaining the extent of telecommunication services provided by means of a telecommunication system. But, as I have said, I will be only too happy to look at the specific comments that my noble friend has made.

Lord Glanusk

May I say that I think that that definition is a little bit woolly, to put it mildly?

Lord Stoddart of Swindon

I must confess that I am still not very satisfied with the reply which was given by the noble Lord, Lord Cockfield; because if I consume 10 units of telephonic time, then I expect to be charged for those 10 units and not 10.5 or 14 or what-have-you. I must say that the word "sufficiently" still worries me. It is a qualification which I think will probably worry many other people as well—particularly bearing in mind that many people have expressed doubts about the present metering policies of British Telecom. However, it is late and I may wish to come back to the matter on Report; but for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cockfield moved Amendment No. 107A: Page 30, line 1, leave out subsection (14).

The noble Lord said: Amendment No. 107A is a simple amendment to which my noble friend spoke again on Amendment 70A. I beg to move.

On Question, amendment agreed to.

Clause 24, as amended, agreed to.

Clauses 25 to 27 agreed to.

Clause 28 [Information etc. to be marked on or to accompany telecommunication apparatus]:

Lord Cockfield moved Amendments Nos. 107B to 107D: Page 31, line 21, after ("that") insert ("any description of") Page 31, line 24, leave out ("the apparatus") and insert ("apparatus of that description") Page 31, line 26, after ("of") insert ("any")

The noble Lord said: May I move these amendments together? The main amendment, No. 107B, reflects the drafting in earlier clauses where it is recognised that it is desirable to have flexibility when it comes to describing telecommunications apparatus for the purposes of a standard or approval or, in this case, in the context of an order requiring the marking of such apparatus with particular information. The amendment seeks to achieve that flexibility by introducing the words "any description of" before "telecommunication apparatus". Amendments Nos. 107C and 107D are consequential on that change. I beg to move.

On Question, amendments agreed to.

Clause 28, as amended, agreed to.

Clause 29 [Information etc. to he given in advertisements]:

Lord Cockfield moved Amendment No. 107E: Page 32, line 16, leave out from ("in") to end of line 17 and insert ("advertisements of that description")

The noble Lord said: This is a minor amendment designed to improve the drafting. It has no policy significance. I beg to move.

On Question, amendment agreed to.

Clause 29, as amended, agreed to.

Clause 30 agreed to.

Clause 31 [Rating in England and Wales]:

Lord Lyell moved Amendments Nos. 107F, 107G and 107H: Page 33, line 28, leave out ("public") Page 33, line 29, leave out ("Part II of") Page 33, line 36, leave out ("public")

The noble Lord said: I hope that the Committee will forgive me if I speak to Amendments Nos. 107J, 107K, 107L, 107M, 107N and 107P, as well as Nos. 153A, I 53B and 153C, which are right at the end of the Marshalled List.

Amendment No. 107J: Clause 32, page 34, line 7, leave out ("public")

Amendment No. 107K: page 34, line 8, leave out ("part II of")

Amendment No. 107L: Clause 33, page 34, line 19, leave out ("public")

Amendment No. 107M: page 34, line 23, leave out from ("with") to ("associations") in the line 24 and insert ("such telecommunications operators.")

Amendment No. 107N: page 34, line 25, leave out("such")

Amendment No. 107P: page 34, line 12, leave out("an") and insert ("the")

Amendment No. 153A: schedule 7, page 198, line 16 at end insert—

("1974 c. 7.

The Local Government Act 1974.

In Schedule 3, paragraph 9.";

Amendment No. 153B: Page 198, line 18, at end insert—

1975 c. 30.

The Local Government (Scotland) Act 1975.

In Schedule 1, paragraph 9."

Amendment No. 153C: Page 199, line 54, at end insert—

("S.I. 1977/2157 (N.I. 28).

The Rates (Northern Ireland) Order 1977.

In Schedule 12 Part XII.")

These amendments are all concerned with the same subject; namely, the assessment for rates of telecommunication systems.

This is a complicated matter so I will be very brief. The network of British Telecom consists of posts, wires, cables and ducts, call-boxes and other associated equipment which is at present assessed for rates by a method known as formula-rating. This is a method of last resort and is used only when more conventional methods of assessment are not appropriate. It is particularly used for national networks and, apart from BT's network, the gas and electricity national distribution networks are also assessed in this way. The essential feature of formula-rating is that a formula is used to arrive at an overall rateable value for the hereditament and this is apportioned between the different rating districts. Clauses 31, 32 and 33 of the Bill as it stands enable formula-rating in England and Wales, Scotland and Northern Ireland respectively, to be extended to the systems of public telecommunication operators. These are defined in Clause 9 which we have already discussed.

However, on reflection it has been decided that the power to formula rate should be widened to cover the systems of all telecommunication operators licensed under the Bill, not just those designated as public telecommunication operators. These amendments achieve this change and enable formula-rating to be extended, by order, to hereditaments of the description specified occupied by "a telecommunication operator". As your Lordships will recall, we have earlier agreed to amend Clauses 16, 17 and 18 to define a telecommunications operator as a person who is authorised by a licence granted under Section 7 to run a telecommunication system. These amendments do not mean that formula-rating will be used very widely; it is still intended to be a method of last resort where more conventional methods are not appropriate. At present, we intend that only Mercury's system should be rated by formula, but it may be that the conventional methods will not be appropriate for some of the systems that will be constructed in future but will not necessarily be designated as public telecommunication systems. Therefore, it is only prudent to take the power to be able to assess such systems by the formula method.

Amendments Nos. 153A, 153B and 153C are consequential on this change. I hope that that brief explanation has given some indication of our wishes in this matter of formula-rating. Unless any of your Lordships wishes me to go further, I beg to move.

On Question, amendments agreed to.

Clause 31, as amended, agreed to.

Clause 32 [Rating in Scotland]:

12.45 a.m.

Lord Lyell moved Amendments Nos. 107J and 107K:

[Printed above.]

The noble Lord said: I have already spoken to these amendments. I beg to move.

On Question, amendments agreed to.

Clause 32, as amended, agreed to.

Clause 33 [Rating in Northern Ireland]:

Lord Lyell moved Amendments Nos. 107L, 107M, 107N and 107P:

[Printed above.]

The noble Lord said: I beg to move formally Amendments Nos. 107L, 107M, 107N and 107P. I spoke to these amendments in connection with Amendment No. 107F.

On Question, amendments agreed to.

Clause 33, as amended, agreed to.

Clauses 34 to 41 agreed to.

Earl De La Warr moved Amendment No. 108: Before Clause 42, insert the following new clause:

("Prohibition on fixing of placards, etc. on public call boxes.

.—(1) A person who, without due authority, affixes or attempts to affix any placard, advertisement, notice, list, document, board or thing in or on any public call box shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(2) In this section "public call box" means any structure in a public place in or on which telecommunication apparatus is installed by a public telecommunications operator for the provision of public call box services to members of the public at that place.")

The noble Earl said: The object of this amendment is to put back into the Bill what is now in the 1981 Act as Section 46, but to put it back in slightly narrower terms so that it does not cover a wide range of BT property but only call boxes. It was included in the Bill which fell in the last Parliament for a reason which escapes me, because I have carefully read Hansard. My honourable friend Mr Kenneth Baker dropped it on the insistence of the redoubtable Member for Newcastle-under-Lyme, Mr Golding, perhaps lest he should speak for another 10 hours on the subject. It did not find its way back.

The reasons for this are that placards and advertisements in call boxes can be a nuisance to the public who use them. They can, and do, hide dialing instructions. More importantly, they can, and do, hide emergency instructions; and they can, and will, as they go up, hide the instructions for use by the deaf of the inductive couplers which are being put into call boxes by British Telecom.

I understand that the main users of these advertisements are taxis, but I have to add that there are one or two less seemly uses—for instance, telephone numbers which are to be found there, which no doubt cause offence to a number of worthy citizens. It has been said that this can be dealt with by regulations under the Town and Country Planning Act 1971, but my information is that it is difficult to do so. You have to prove that the object is an advertisement. You can prove that only if you can show that it can be seen from outside the box. In nine cases out of 10 it cannot. Furthermore, I believe that the police are reluctant to use the planning Acts but that they are prepared to co-operate much more under the existing offence as it stands in the 1981 Act. Therefore my suggestion is that it would be good procedure for the Government to consider reinstating this clause. I beg to move.

Lord Mackay of Clashfern

My noble friend has clearly and succinctly mentioned the history of this provision and explained the arguments in favour of the clause. What is not so clear to us is why call boxes of public telecommunications operators should be singled out for this special treatment over and above the provisions of the general law. I am sure all your Lordships recognise the desirability of adopting very strict criteria in deciding whether to have statutory criminal offences. I find it a little difficult to be convinced that this proposal satisfies these criteria. My noble friend has adverted to the proceedings in Standing Committee on the previous Bill and described his impression of them, and I would not wish to go into that. But the result of their deliberations was to drop a somewhat similar provision from that Bill, and the Government thought it best in this Bill to abide by the decision of that Standing Committee. It may be that the noble Lord will consider withdrawing his amendment in that situation.

Earl De La Warr

I would not want to press this. I think it was dropped because there was developing an ugly political argument with the Member for Newcastle-under-Lyme suggesting that telephone poles were being used for political purposes. The only other thing I would say is that one of the reasons for including this is that it is there now in the Bill which exists. But I do not want to press it. Having drawn it to the Government's attention, if they do not feel it worth putting in I am happy to withdraw it.

Amendment, by leave, withdrawn.

Clause 42 [Assaults etc. on persons engaged in the business of public telecommunications operator]:

Lord Mackay of Clashfern moved Amendment No. 108A: Transpose Clause 42 to after Clause 46.

The noble and learned Lord said: This amendment is designed to improve the presentation of the Bill by demoting Clause 42 to come after Clause 46. I beg to move.

On Question, amendment agreed to.

Clause 42, as amended, agreed to.

Clause 43 [Improper use of public telecommunication system]:

Earl De La Warr moved Amendment No. 108AA: Page 41, line 35, at end insert ("to imprisonment for a term not exceeding six months or")

The noble Earl said: This is an amendment about which I feel rather more strongly, as your Lordships may appreciate. It seeks to increase the maximum penalty in Clause 43, which now stands at £200. This deals with the extremely unpleasant offence of making calls that are offensive, indecent, obscene or menacing. I do not propose to harrow your Lordships by giving examples, but, believe me, in this dossier I have things which make one's hair stand on end. I think it will be sufficient to say this: there are—I find this an unbelievable figure, but I am assured it is true—no less than an average of 500 reported cases a day, and the number of cases is going up.

The people who do this horrible thing terrify, literally, a very large number of women, most of whom are alone; and it has to be said, too, that on occasions, arising from hanging around schools, they terrify and verbally debauch young children of a very tender age. I am sure your Lordships will agree this is a very horrible thing, unpleasant even to talk about. I gather that frequently when the offence is very bad a technique is adopted which is known as stretching, where you look for and use another offence which carries a greater penalty. I would only add that in the Post Office legislation of 1953 there is a provision which makes letters of the same kind subject to an even greater penalty.

I am very ill-acquainted with the law and I have never been a magistrate, but all my instincts tell me that there is a lot in this and that we should consider a maximum penalty which is much higher than the present one. I seek the advice of your Lordships on whether I am on firm ground and whether I have perhaps by chance struck the right level. I hope that the Government will take an interest. I beg to move.

Lord Donaldson of Kingsbridge

I should like to give the noble Earl the advice that he has asked for. There is absolutely no case for extending the causes on which people can be imprisoned. At the moment far too many people are in prison for far too little. Although the offence to which the noble Earl referred is particularly nasty and despicable imprisonment, which involves £7,000 or £8,000 a year expenditure, produces not good but total and absolute harm, as is agreed by everyone. It is ridiculous to bring in imprisonment at this stage for an offence of this nature. I hope that the noble Earl's suggestion will be rejected.

Lord Morris

I hold a totally opposite view. If the sanction is within the Bill it will have an effect on potential offenders. When my noble and learned friend the Lord Advocate answered a previous amendment of my noble friend Lord De La Warr I thought at the time that he had not been in a public telephone box for a very long time indeed. I doubt very much whether he has had any experience in this respect. But one must consider that there are 500 complaints each day, and one would take a multiple of at least 10 times that for the number of offences committed and not reported. As this is the only public general Bill that I have experienced where penalties are not considered by Parliament—remember, this clause was not considered by another place—I consider it important that the Government give this fact some thought. It is a point of considerable worry to British Telecom and I hope that my noble and learned friend will consider this—as I am sure he will—with great care.

Lord Donaldson of Kingsbridge

I do not understand the point which the noble Lord makes. My point is that one should not send people to prison when one knows that it will do no good. Generally speaking, it is agreed that that kind of offence is not influenced by the sanction of prison. I am not clear as to what the noble Lord said in opposition to that. He talked for a while-but I could not understand the direction of his argument.

Lord Morris

I am not in the least surprised that the noble Lord did not understand me because I am not very good at making myself absolutely clear. However, I draw immense comfort from the fact that my noble friends had no difficulty whatever in understanding me. I was particularly getting at the malicious telephone call rather than the obscene telephone call. I wanted to avoid that because it is generally considered rather jokey.

My other point is that the mere presence of the power to imprison undoubtedly will have a deterrent effect on certain people who are inclined to indulge in this particular proclivity. Even though my noble friend believes that it would not have any deterrent effect, I have my doubts.

Lord Donaldson of Kingsbridge

I think that that undoubtedly is quite a wrong description. There is every possible doubt that the kind of person who in a malicious way rings up to damage somebody because he has offended him is affected by the fact that he might be sent to prison. That proposition is extremely hard to justify and is almost certainly untrue.

1 a.m.

Lord Mackay of Clashfern

The Government of course very much appreciate the matter which my noble friend has raised. We entirely appreciate the reason why he has put this matter forward. However, we have a particular responsibility to ensure that before we increase penalties it is the appropriate action. I question whether the type of case that my noble friend has particularly referred to ought to be lumped along with the rather petty cases which can also come under this provision.

There is also the point that the noble Lord, Lord Donaldson of Kingsbridge, made, that my right honourable friend the Home Secretary has made clear his desire to reduce the number of petty offenders in custody. It would not be consistent with that approach to make this an offence which is subject to imprisonment in the petty case.

My noble friend is concerned with the more serious type of case. As he will be aware, the Law Commission is at present considering this whole area and has put forward a proposal to create a new offence which would extend to, any person who causes any other person to receive a communication, written or otherwise, which is grossly offensive, or of an indecent, shocking or menacing character, for the purpose of causing needless anxiety or distress to that other person Having sought comments from interested parties the Law Commission is now considering whether, and in what form, to make firm proposals. It seems to me that it is in that wider context that we should examine the problems raised by my noble friend, rather than by trying to deal with them in the context of Clause 43 of this Bill which is not really very well suited to the purpose.

I hope therefore that my noble friend will feel able to withdraw the amendment, not because the problem that it deals with is not an important and serious one but rather because the best manner of dealing with it is along the lines which the Law Commission has proposed, which makes a very important distinction between the petty kind of case which Clause 43 is designed to deal with and the much more serious type of case that he has in mind.

Earl De La Warr

I am extremely grateful to my noble and learned friend for the information that he has given mc. I said that I was no expert in the law, and I have to admit that I did not know that the Law Commission was going into this. Of course, he must be right. Although I would object mildly to the description of ridiculous by the noble Lord, Lord Donaldson of Kingsbridge, that is not the point that I want to make. I am most grateful to my noble and learned friend for giving the Committee this information. I have pleasure in withdrawing the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 108AB not moved.]

Lord Mackay of Clashfern moved Amendment No. 108B: Transpose Clause 43 to after Clause 44.

The noble and learned Lord said: Amendments Nos. 108C and 108E are the principal amendments. Amendment No. 108A, which I have mentioned already, and Amendments Nos. 108B, 108C and 108E all really go together. Amendment No. 108C: Clause 44, Page 41, line 40, leave out from ("dishonestly") to ("shall") in line 41 and insert ("obtains a service provided by means of a licensed telecommunication system with intent to avoid payment of any charge applicable to the provision of that service") Amendment No. 108E: Page 42, line 2, at end insert— ("(2) In this section "licensed telecommunication system" means a telecommunication system the running of which is authorised by a licence granted under section 7 above.") The principal amendments are Nos. 108C and 108E. The amendments seek to amend Clause 44 of the Bill so that the offence of dishonestly using a public telecommunication system with intent to avoid payment will have a somewhat wider implication.

The Deputy Chairman of Committees (Earl Cathcart)

We are considering Amendment No. 108B which is the proposal to transpose Clause 43 to after Clause 44.

Lord Mackay of Clashfern

The purpose of this is to facilitate the changes which I am proposing. Amendment No. 108B is the second of these. Amendment No. 108A is the first transposition and Amendment No. 108B is the second. I am saying that Amendments Nos. 108C and 108E are the main amendments. I think it is right to try to explain why we are doing all this, using Amendments Nos. 108C and 108E as the principal amendments, which I shall of course seek to explain. As I say, they are the main amendments and they seek to amend Clause 44 of the Bill, so that the offence of dishonestly using a public telecommunication system with intent to avoid payment will have a somewhat wider application. Amendments Nos. 108A and 108B are purely consequential and seek to transpose the order of the clauses dealing with the offences, so that, if the amendments to Clause 44 are accepted, the Bill will continue to group together the offences connected with public telecommunication systems. I beg to move.

On Question, amendment agreed to.

Clause 43, as amended, agreed to.

Clause 44 [Fraudulent use of public telecommunication system]:

The Deputy Chairman of Committees

In calling Amendment No. 108C, I should inform your Lordships' Committee that, if it is agreed to, I cannot call Amendment No. 108D.

Lord Mackay of Clashfern moved Amendment No 108C:

[Printed above.]

The noble and learned Lord said: I have already sought briefly to explain this amendment. I beg to move.

Earl De La Warr

Perhaps I may ask my noble friend whether, as I understand it to be, it is a fact that this amendment meets the point that he will probably have presumed I was trying to make, which was to get the offence extended so that dishonest use of systems applies to cable systems as well as to public telecommunication systems.

Lord Mackay of Clashfern

The answer is, yes. The first objective of the amendments to Clause 44 is to extend the ambit of the offence from public telecommunication systems to all telecommunication systems licensed under Clause 7 of the Bill.

On Question, amendment agreed to.

The Deputy Chairman of Committees

I cannot call Amendment No. 108D. Amendment No. 108E.

Lord Mackay of Clashfern moved Amendment No. 108E:

[Printed above.]

The noble and learned Lord said: This amendment is part of the same package. I beg to move.

On Question, amendment agreed to.

Clause 44, as amended, agreed to.

Clause 45 [Interruption or interference with public telecommunication system]:

Lord Mackay of Clashfern moved Amendment No. 108F: Page 42, leave out lines 6 to 10 and insert ("intentionally modifies or interferes with the contents of a message sent by means of that system")

The noble and learned Lord said: I sought to explain the amendment to Clause 45 when I dealt with the earlier amendments to Clause 18. Perhaps since we are now at this particular point, I should say that, as drafted, Clause 45(1)(a) relates to two criminal offences which were contained in Section 45 of the Telegraph Act 1863. Clause 45(1)(a) deals with the actions of an employee of a public telecommunication operator who intentionally prevents, delays or interferes with the transmission or reception of a message sent by means of his employer's system. That is what this amendment is deleting.

We leave in Clause 45(1)(b), which deals with the situation where such an employee intentionally modifies or interferes with the contents of a message sent by means of his employer's system. The amendment deletes the first offence but retains the second, contained in subsection (1)(b), and of course it has to make some minor adjustments to accommodate that. I beg to move.

Lord McIntosh of Haringey

Our response has to be the same as that on Amendment No. 99R. Although there seems to be considerable improvement in the drafting of Clause 45, the complex argument has only just been made available to us. I am grateful to the noble and learned Lord for allowing me to see his speech on Amendment No. 99R. It is safest if we reserve our position so that we can raise any points when we come to consider Amendment No. 109.

On Question, amendment agreed to.

Lord Denham

I think that we have probably reached a stage beyond which it would be counter-productive to go tonight. I should like to thank all noble Lords who have stayed this long. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.