My Lords, in the imminent absence of my noble friend Lord Marlesford, I shall introduce Amendment 4. This amendment refers in large part to broadband, so I should declare an interest in that my family business is based in Cumbria and most certainly stands to gain from improved broadband provision.
The importance of broadband was extensively debated last week when the Communications Committee’s report Broadband for All—an Alternative Vision was so ably introduced by my neighbour and noble friend Lord Inglewood. He emphasised the special importance broadband in rural areas, and I agree. I have long argued that renewed growth in Britain will come—indeed, is already coming—from small and medium-sized businesses, many of them rural. That came home to me forcefully last week when I was returning from your Lordships’ House. The train to Cumbria came to a frozen halt at Lancaster. The train operator kindly provided taxis for six of us to go further up the branch lines. To my amazement, all six of us, who live dotted around in the villages and hamlets near me, were all on a day trip to London selling our goods and services. This is interesting because it was completely unheard of only a few years ago. I tell the story because there is a strong danger that the anticipated broadband take-up will be underestimated. In a sense, that is very good news, but there are implications.
I am grateful to the Government for amending Clause 9 on Report. It means that the primary legislation governing national parks and AONBs will remain unchanged, which is a welcome improvement. However, my noble friend tabled this amendment because he
remains concerned that Clause 9, even as amended, undermines the legal protection for national parks and areas of outstanding natural beauty, and I share his concern.
In amending Clause 9, the Government were reacting to concerns that the clause disapplied key duties on the Secretary of State to have regard to natural beauty in protected areas. The new approach, in the Minister’s own words:
“ensures that the duty that already exists under Section 109 of the Communications Act 2003 for the Secretary of State to have regard for the environment and beauty of the countryside will be deemed to meet the ‘have regard’ duties set out in protected areas legislation, when the Secretary of State comes to make regulations under Section 109”.
The aim of the changes the Government made to Clause 9 was, again in the words of my noble friend Lady Hanham, to reassure,
“the House that our intention was only to ensure that the right legal framework was put in place and that we had no wish to unpick the distinct and settled legislative framework that applies to the national parks”.—[Official Report, 12/3/13; col. 141.]
This change is welcome, as far as it goes, but it is important to note that many outside this place remain concerned about the precedent it sets for protections for our national parks and areas of outstanding natural beauty. The view of the Campaign to Protect Rural England’s legal advisers is that Clause 9 as amended by the Government replaces the special protection for national parks and AONBs with the general protection given to all countryside areas under Section 109(2)(b) of the Communications Act 2003. If the Secretary of State has had regard to the matters mentioned in that section, that will be sufficient for the purposes of Section 11A(2) of the National Parks and Access to the Countryside Act 1949. In other words, the special treatment and priority given to national parks would be lost; they would be treated in future like any other area of countryside.
At a practical level, this means that the clause, even as amended by the Government, continues to allow the introduction of proposed new regulations that will make it much easier for telecommunications companies to put up overhead wires and poles in protected areas without applying for planning permission. The CPRE continues to believe that Clause 9 is unnecessary and that new telegraph poles in national parks and AONBs should continue to require planning permission, which would not pose a barrier to broadband infrastructure rollout.
This amendment seeks to clarify that where any of the duties that the Secretary of State must have regard to under Section 109(2) of the Communications Act 2003 come into conflict when the Secretary of State is making regulations, he or she must give greater weight to the “have regard” duties for protected landscapes. The expression “greater weight” is used in Section 11A of the National Parks and Access to the Countryside Act 1949, and it is proposed to use it in this clause to underline the special status of our protected landscapes in the decision-making process for the Secretary of State.
This is an important point of principle. Our national parks and AONBs are designated as such for a reason: they are recognised as being special landscapes, and thus worthy of special protection. It has been said that
the ideal for the national parks set out by the Dower report and reiterated by the Hobhouse committee in the post-war years, and held steadily since then by politicians from all parties, “is none other than the protection of these finest landscapes of England and Wales in so effective a way that their local life shall vigorously continue, while the beauty of the countryside, untouched by any damaging influence or urban encroachment, shall be maintained as a thing splendid in itself, giving poise and strength to those who appreciate it and adjusting man’s overweening ideas of his own importance through the quiet influence of the unchanging hills”.
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I would be pleased if, in her response to me, the Minister could address the following questions. First, will the countryside in national parks and AONBs continue to be recognised as special—that is, as having a higher status than other countryside—for the purposes of installing communications infrastructure?
Secondly, how does Clause 9 affect the Sandford principle, which currently applies in national parks, that where there is a conflict between the two purposes of national parks—the first to have regard for conserving and enhancing the natural beauty, wildlife and cultural heritage of national parks, and the second to promote opportunities for the understanding and enjoyment of the special qualities of those areas for the public—the natural beauty purpose has the greater weight?
Thirdly, in practice, how will the Culture Secretary balance the duty to promote economic growth under the new Section 109(2) of the Communications Act 2003 with the need to protect the environment, and in particular to conserve the natural beauty and amenity of the countryside when drawing up regulations to govern broadband providers?
Fourthly, does it remain the Government’s intention through regulation to remove the need for communication infrastructure providers in protected areas to provide for planning permission, despite providing no evidence that the planning system presents a barrier to broadband rollout?
On Report, the Minister kindly confirmed in response to comments made by my noble friend Lord Marlesford that BT is under an obligation to share its infrastructure with other broadband providers if they are awarded contracts. However, I understand that BT charges other operators for infrastructure sharing. Under this clause, if another operator judged that the cost of sharing BT’s infrastructure was too high, it would be free to erect duplicate infrastructure. Will my noble friend the Minister confirm that my understanding is correct?
I have done my best to interpret my noble friend’s presentation, and I would be most grateful if the Minister, in her reply, could answer these questions and give reassurance on some of these anxieties. I beg to move.