Digital Economy Bill — House of Lords, 2017-01-31
Topic: Mixed Topics
Donald Foster (Liberal Democrats, Centre to centre-left): My Lords, the Minister will be aware that at Second Reading I argued that there should be a public record kept of when rights over land are granted under the Electronic Communications Code. The Minister said that he was not minded to do that. He told me that, "prospective buyers will be able to ascertain what code rights might apply to land by inspecting the land" If I went to see a field or a piece of land that I owned and saw nothing on it, it would not mean that there were no fibre-optic cables underneath it, and I am not sure how I would find that out by inspection. He gave me another option of, "making appropriate inquiries before the contract" If I have a piece of land with nothing apparently on it, I have absolutely no idea of to whom I would start making those inquiries. Perhaps the Minister can assist me. He also said—presumably it was the basis of his reply—that the Law Commission had considered this issue, and as a result the Government were going to stay where they were, maintaining, "the position under the existing code".—[Official Report, 13/12/16; col. 1226.] I therefore thought it would be a good idea if I looked at what the Law Commission said about this matter and the existing code. It said in its report: "Paragraph 2(7) of the 2003 Code states: ‘It is hereby declared that a right falling within sub-paragraph (1) above is not subject to the provisions of any enactment requirement the registration of interests in, charges on or other obligations affecting land’" That is what is to be continued, according to the Minister, in the new arrangements. Yet the Law Commission said of this: "It is not clear what this means", and that: "RICS noted that: ‘the current situation, whereby Code Operators are unsure as to the correct interpretation of paragraph 2(7) of the Code, has led to some Code Operators registering their legal agreements and others deciding not to do so’" Following that, the Law Commission proposed a significant change to the arrangements. That appears in paragraph 2.116 of its report. In coming to that conclusion, it noted that some organisations proposed that we change the situation. For instance, Mobile Phone Masts Development Ltd said: "There is no reason why rights created or granted should be exempt from the LRA 2002"— the Land Registration Act 2002—and that: "It is in the public interest for the rights/obligations to be recorded on the register" Some, including the Agricultural Law Association, took the view that it should go even further and that some things that currently would not be covered under the code should also be covered by land registration. Others, as the Law Commission pointed out, had a completely opposite view. The Country Land and Business Association, to which I referred earlier, and BT, "suggested that a requirement to register would place an unwelcome administrative burden on Code Operators" I can see that the Minister was in a difficult position because some people wanted one thing and some wanted the other, but his solution has landed us back at the very thing that currently exists, of which the Law Commission says: "It is not clear what this means", and which others say is a confused situation. In that difficult position, the Minister would no doubt look to the Law Commission’s final conclusions. I shall read two of them out and ask the Minister to tell me which of them will be registered in the Land Registry and which will not, and why he will not support my simple amendment, which would require that all rights conferred through the ECC be registered in the relevant Land Registry, depending on the system the devolved Administrations have The two recommendations from the Law Commission are, first: "We recommend that where Code Rights are conferred by a lease, the revised Code should make no special provision as to who should be bound by the lease and its provisions, and should not amend or disapply the normal rules of land registration"; and, secondly: "We recommend that where Code Rights are conferred otherwise than in a lease, the revised Code should provide for them to bind successors in title to the Site Provider who granted them, and those with an interest subsequently derived from the title of the Site Provider, as if they were property rights" Can the Minister tell me which of those two should be registered and why we should not just register all of them for simplicity?