My Lords, I turn now to Amendments 2, 4 and 5, which seek to implement recommendations set out in the Delegated Powers and
Regulatory Reform Committee’s report. I once again thank the committee for its efforts in scrutinising the Bill.
Amendment 2 will ensure that regulations exercising the power in Clause 3 to deem compliance with security requirements will be subject to the affirmative resolution procedure. Amendments 4 and 5 focus on the power in Clause 9 to exempt manufacturers from needing to draw up a statement of compliance. This will also now be subject to the affirmative resolution procedure.
The powers in these clauses are vital to enabling the Government to take swift action to minimise unnecessary industry burdens, including for small and micro businesses, as the technological and regulatory landscapes change. However, I agree that, considering the necessary breadth of these powers, the affirmative resolution procedure provides a more appropriate degree of parliamentary consideration. The Government accept the recommendations in paragraphs 7 and 11 of the committee’s report.
I turn now to Amendments 6 to 12 and Amendment 14, on the enforcing functions. Once again, the Government agree with the recommendations of the committee that Parliament should have the opportunity to scrutinise any decision by the Secretary of State to authorise a person to exercise an enforcement function. These amendments implement that recommendation and will ensure that the Secretary of State is able to authorise another person to exercise an enforcement function only by making regulations subject to the affirmative resolution procedure.
On enforcement, I shall update the House on the progress of appointing an enforcement authority for Part 1 of the Bill. After extensive engagement with suitable bodies and consideration of the existing regulatory landscape, I can confirm our intention to appoint the Office for Product Safety and Standards, or OPSS, as the regime’s regulator. The OPSS oversees product safety legislation and will enforce cybersecurity requirements for electric vehicle smart charge points. We are confident that it has the expertise and capacity needed to effectively enforce this regime. The OPSS is part of the Department for Business, Energy and Industrial Strategy, so it will not be necessary to exercise the power in Clause 27, given the Carltona doctrine. However, should the threat landscape require other persons to exercise enforcement functions in the future, we will exercise this power as necessary.
I turn now to Amendment 15, which removes Clause 57 from the Bill. Clause 57 was intended to address difficulties that had arisen following Upper Tribunal and Court of Appeal decisions on the meaning of “occupier” in paragraph 9 of the Electronic Communications Code. Paragraph 9 provides that only an occupier of the land can confer code rights. The courts’ interpretation of this meant that an operator already in occupation of the land was treated as the occupier for the purposes of paragraph 9.
However, an operator in this situation clearly could not enter into an agreement with itself. The interpretation resulted in some operators with apparatus on land who were unable to renew their agreement using an existing statutory process being stuck, without a process through which they could acquire new rights under the code. In addition, it meant that any operator in
occupation of land was unable to seek additional code rights not referred to in their existing agreement in a new, separate agreement while the existing agreement was running its course.
The aim of Clause 57 was to provide a solution to these issues. It was drafted to ensure that all operators in exclusive occupation of the land, who could not make use of a statutory renewal route, could still obtain code rights. It would also assist operators in occupation of land with an existing, ongoing agreement. Where such operators needed additional code rights not already referred to in their current agreement, Clause 57 provided a mechanism to obtain such rights.
As I am sure many noble Lords will be aware, since your Lordships last considered this Bill, the Supreme Court ruled on this issue and overturned the relevant decisions of the Upper Tribunal and Court of Appeal. The Supreme Court held that, for the purposes of paragraph 9 of the code, an operator’s occupation of land is to be disregarded where that operator is seeking code rights in relation to that land.
In practice, this means that where an operator is not able to make use of a statutory route to renew any type of expired or existing agreement, it will be able to seek new code rights. It also means that, where an operator requires additional code rights during the existing term of its agreement, it will be able to seek them. The effect of the judgment is therefore broad and comprehensive; the Government consider that it will ensure that any operator, whatever the nature of its agreement, will have a means through which it can seek new or additional code rights, as the case may be. As a result, the Government no longer consider it necessary to retain Clause 57 in the Bill. Its removal will, in light of the Supreme Court judgment, ensure clarity and certainty for all users of the code. I beg to move Amendment 2.
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