My Lords, the Government believe that a change to the Electronic Communications Code—the code—is necessary to protect the autonomy and integrity of our national security, law enforcement and defence sites across the UK.
The code allows telecoms operators to ask landowners, government departments, agencies and other public sector bodies, including those with national security, law enforcement and defence equities, for code rights in relation to land and property. Such code rights include the right to carry out surveys as well as the right to install telecommunications equipment. If a consensual agreement cannot be reached, the telecoms operator can seek a court order to impose an agreement that confers the code rights being sought by the operator subject to whatever terms that the courts deem appropriate. This means that a telecoms provider can be granted access to sensitive national security sites without the landowner’s consent.
The code works in this way to ensure that operators can deliver coverage and connectivity across the UK at pace, and this is absolutely the right approach to delivering the Government’s rollout. However, an extra layer of protection is needed for situations where particularly sensitive sites, such as those with national security, law enforcement and defence equities, are
involved. This is needed to protect our national security capabilities and operations and our ability to keep people safe.
There are three types of risk arising from the present position, which our police forces and national security bodies are already grappling with. These are legal, physical security and technical security risks.
In respect of the physical security risk, surveys and the installation and ongoing maintenance of telecommunications equipment could mean access to sensitive sites by non-security cleared personnel, including engineers, site surveyors and others. This poses a risk of compromise to sensitive information and staff who work in these buildings. The police, in particular, often need exclusive rooftop access for operational reasons, especially in cities, and the presence of persons and telecoms equipment on these rooftops can pose a hindrance.
Regarding the technical security risk, the installation of 5G equipment on sensitive government sites would significantly raise communications and information security risks for such sites. Finally, on the legal risk, the current dispute resolutions and court procedures do not allow for closed material proceedings. This means that classified national security concerns cannot be evidenced and may lead to courts granting access to sensitive sites without a full awareness of the risks.
We also need to consider the significant administrative burden of managing those legal risks where national security concerns cannot properly be evidenced, drawing resources away from primary national security work. For example, we have seen a significant increase in survey requests since the 2017 amendment to the code. There have also been increasing threats of litigation when access has been denied for legitimate security reasons.
This amendment, which inserts new paragraph 27ZZA into the code, will confer powers on the Secretary of State to intervene and prevent a court from granting a telecoms operator’s request for code rights, including rights to access and install apparatus on site, where granting the request would
“prejudice national security, defence or law enforcement.”
This certification will be considered only when all other routes to a mutually consensual solution have been exhausted. This is right and proportionate. It is worth emphasising that it will not provide public sector landowners with national security law enforcement and defence equities with a blanket exemption. It is anticipated that it would be employed only rarely, on a case-by-case basis and in extremis, and that only a small number of sites would be eligible. Nevertheless, we will consider how Parliament can be updated on the use of this power so that it can carry out its scrutiny role effectively.
The Government remain committed to being the landlord of choice for telecoms operators, but we believe that the sensitivity of some of these sites will mean that they will simply not be suitable. The aim of this amendment is to address legitimate national security concerns without undermining the Government’s ambitious rollout of gigabit-capable broadband and 5G networks. I beg to move.