UK government criticised for trying to rush new Electronic Communications Code into law

Some MPs in the UK parliament relayed the concerns of operators, land owners and other stakeholders that will be impacted by the planned changes to the Code during debates in the House of Commons on Thursday last week. The Code, if introduced, would revise existing rules that govern the installation and maintenance of electronic communications equipment from property as well as their removal.

The concerns centre on the fact the government has proposed to introduce the new Code into law through the Infrastructure Bill at a late stage of that Bill's passing through parliament. Telecoms and property law expert Alicia Foo of Pinsent Masons, the law firm behind Out-Law.com, said the proposals need to be amended to address concerns from telecoms operators and land owners alike. Dev Desai of Pinsent Masons said the revised Code must provide "a clear, coherent and fair regulatory framework" for all stakeholders.

The Infrastructure Bill was first introduced before parliament last summer. Plans to include the Code in the new Bill have been outlined after the Bill has already been scrutinised by the House of Lords and read twice in the Commons.

However, despite concerns about lack of scrutiny of the new Code's wording, the Public Bill Committee voted to support its inclusion in the Infrastructure Bill. The Bill is scheduled to move into the report stage in the Commons later this month after which it will be read for a third time in the Commons.

The government has moved to introduce the new Electronic Communications Code following recommendations made by the Law Commission in February 2013. However, shadow transport minister Richard Burden said the government had failed to set out its response to the Law Commission's recommendations, consult on its policy plans, detail the likely impact of the proposals or give parliament enough time to scrutinise them.

"With nearly two years to consider this, the government could, if they had wanted to, have introduced these provisions to the [Infrastructure] Bill when it was first published in July of last year," Burden said. "If changes had been proposed in the initial draft of the Bill, people would have had adequate time to give them proper scrutiny."

The Labour MP said he had been inundated with emails from "affected parties", such as telecoms operators, infrastructure providers, land owners and land valuers, each "angered" by the government's approach to implementing the new Code.

He said the Country Land and Business Association (CLBA) had accused the government of abusing parliamentary process. In a statement, the CLBA said the "eleventh hour" plans had been introduced "without discussion" and would "cause concern and confusion".

"It cannot be right that the government introduces around 60 pages of new legislation less than a week before it is to be debated in parliament," the CLBA said. "It is scandalous that MPs will have only two limited chances to debate the implications of this before it is to become law."

Telecoms infrastructure provider Arqiva has warned that the "ambiguity of the drafting” would cause "unintended consequences that will have a detrimental effect on the communications services to consumers", Burden said.

Burden described the proposed new Electronic Communications Code as "not fit for purpose".

"The government are now in the absurd position of proposing amendments that aim to clarify the code but could result in confusing it further," Burden said. "Although only one week has been allowed for scrutiny, all parties affected by the legislation to whom [Labour] have spoken state that it is poorly drafted."

Burden said the wording of the Code, as drafted, is unclear whether "third-party infrastructure providers", the companies that operate supporting apparatus such as masts, will be subject to the new Code, and whether commercial agreements between mobile operators would be governed by the new framework.

Burden said the wording of the Code should make it clearer whether or not it will apply to existing agreements or just to agreements made after the Code comes into force, and said changes to rules relating to the upgrading of electronic communications equipment already on a site and the sharing of infrastructure by operators would not clarify existing issues that arise. Burden said that Labour will vote against the proposed new Code in its current form.

However, the government said stakeholder concerns about clarity and wording of the Code had been addressed, but that steps will be taken to further "explain" the measures.

Transport minster John Haynes said: "Officials from the Department for Culture, Media and Sport have considered the concerns raised by stakeholders and are satisfied that the new code is correctly drafted and are engaging with stakeholders to explain the effects of the revised code. Some of those concerns arise from not having enough time to explain, a point that has been made. Some of the queries about drafting may be based on misunderstandings about drafting. I do not think that is exclusively true; as I said, let us get this right. The meeting we are having next week and the further note that I produce will help to address some of those specific matters."

Alicia Foo said: "It looks like the government may take on board the storm of criticism from all parties with an interest in the debate about the 'patchwork quilt' approach of the proposed Code reforms. Let’s hope the promised explanation from the minister will allay concerns and we can look forward to a revised Code which is a step towards future-proofing an essential public utility."