Product Security and Telecommunications Infrastructure Act 2022

But if the Secretary of State decides before the end of the period mentioned in paragraph (a) that there is to be no appeal, the products must be returned as soon as possible after that decision is made.

• (10) For the purposes of this section, property is not readily separable from any forfeitable products if, in all the circumstances, it is not reasonably practicable to separate the property from the forfeitable products.

Those circumstances include the time and costs involved in separating the property.

• (11) For the purposes of this section—

• (a) “the appropriate court” means—

• (i) in England and Wales, a magistrates’ court;

• (ii) in Scotland, a sheriff;

• (iii) in Northern Ireland, a court of summary jurisdiction;

• (b) “compliance failure”, in relation to a product, means a failure by a relevant person to comply with a relevant security requirement in relation to the product;

• (c) the reference to delivery up of products is, in Scotland, a reference to delivery;

• (d) the persons “entitled” to any products are—

• (i) any person to whom they belong, and

• (ii) in the case of products detained under paragraph 28 of Schedule 5 to the Consumer Rights Act 2015, the person from whom they were seized.

Further provision about forfeiture

43

• (1) An application under section 42 to a magistrates’ court in England and Wales is to be made by way of complaint.

• (2) An application under section 42 to a court of summary jurisdiction in Northern Ireland is to be made by way of complaint under Part 8 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)).

• (3) In a case where proceedings have been brought in England and Wales or Northern Ireland for—

• (a) an offence under section 32 relating to a compliance failure, or

• (b) an offence under paragraph 36(1) or (2) of Schedule 5 to the Consumer Rights Act 2015 arising out of any investigation into a compliance failure,

an application under section 42 relating to the compliance failure may be made in those proceedings.

• (4) A court may not order the forfeiture of any products under section 42 unless—

• (a) the Secretary of State has given notice of—

• (i) the application, and

• (ii) the date and location of the proceedings for forfeiture,

to every identifiable person having an interest in the products, or

• (b) where the notice required by paragraph (a)(i) or (ii) has not been given to such a person, the court is satisfied that it was reasonable in the circumstances not to give notice to that person.

• (5) Any person having an interest in any forfeitable products is entitled to appear in proceedings under section 42 relating to the products.

• (6) No order for forfeiture under section 42 may take effect until—

• (a) the end of the period within which an appeal under section 44 may be made against the order, or

• (b) if such an appeal is made, the time when it is determined or withdrawn.

• (7) In this section “compliance failure” and “forfeitable products” have the same meaning as in section 42.

Appeals against decisions under section 42

44

• (1) Where an order for the forfeiture of any products has been made under section 42, each of the following persons may appeal against the order—

• (a) any party to the proceedings in which the order was made;

• (b) any other person entitled to the products.

• (2) The Secretary of State may appeal against—

• (a) a decision not to make an order for forfeiture under section 42;

• (b) an order under subsection (8) of that section for the return of any products.

• (3) Where—

• (a) the Secretary of State brings an appeal under this section, and

• (b) no person entitled to the products in question was a party to the original proceedings,

the Secretary of State must make reasonable efforts to give notice of the appeal to every person who the Secretary of State thinks is or may be entitled to the products.

• (4) An appeal under this section is to—

• (a) the Crown Court, in England and Wales;

• (b) the Sheriff Appeal Court, in Scotland;

• (c) a county court, in Northern Ireland.

• (5) An appeal under this section is to be brought before the end of the period of 28 days beginning with the date of the order or other decision appealed against.

• (6) Subject to subsections (7) and (8), the court hearing the appeal may make any order the court considers appropriate.

• (7) If an appeal brought by virtue of subsection (2) is allowed—

• (a) the court must order the products to be forfeited, and

• (b) sections 42(6) and 43(6) apply with the necessary adaptations.

• (8) If an appeal against an order forfeiting any products is allowed—

• (a) the court must order the products to be returned to a person entitled to them, and

• (b) section 42(9) applies with the necessary adaptations.

• (9) The persons “entitled” to any products for the purposes of this section are—

• (a) any person to whom they belong, and

• (b) in the case of products detained under paragraph 28 of Schedule 5 to the Consumer Rights Act 2015, the person from whom they were seized.

Other enforcement powers

Power to inform public about compliance failures

45

• (1) This section applies where the Secretary of State has reasonable grounds to believe that there is a compliance failure in relation to a relevant connectable product.

• (2) The Secretary of State may publish whatever information the Secretary of State considers appropriate for the purpose of informing members of the public about the following matters—

• (a) the nature of the compliance failure;

• (b) any risks posed by using the product;

• (c) any steps that may be taken to mitigate the effect of any such risks.

• (3) Information may be published under subsection (2) in whatever way the Secretary of State considers appropriate.

• (4) In this section “compliance failure”, in relation to a product, means a failure by a relevant person to comply with a relevant security requirement in relation to the product.

Power to publish details of enforcement action taken against relevant persons

46

• (1) The Secretary of State may publish details of a failure by a relevant person to comply with a relevant security requirement in relation to a product.

• (2) The Secretary of State may publish details of any of the following—

• (a) an enforcement notice given to a person;

• (b) a penalty notice given to a person;

• (c) an order made under section 42 for the forfeiture of any products.

Power to recall products

47

• (1) This section applies where conditions A and B are met.

• (2) Condition A is that the Secretary of State has reasonable grounds to believe that there is a compliance failure in relation to any UK consumer connectable products that have been supplied to customers.

• (3) Condition B is that—

• (a) a person to whom a recall notice was given in relation to the compliance failure has failed to comply with it, or

• (b) it is not possible to give a recall notice in relation to the compliance failure to one or more of the persons mentioned in section 30(2).

• (4) The Secretary of State may—

• (a) make arrangements for the delivery of the products to the Secretary of State or another person;

• (b) destroy or otherwise dispose of the products in whatever way the Secretary of State considers appropriate;

• (c) permit any person to whom the products are delivered under the arrangements mentioned in paragraph (a) to destroy or otherwise dispose of them—

• (i) in accordance with a direction of the Secretary of State, or

• (ii) in whatever way the person considers appropriate.

• (5) The Secretary of State may pay such amounts as the Secretary of State considers appropriate to any customer who returns a product in accordance with arrangements made under this section

• (6) Where an amount is paid to a customer under subsection (5) in respect of a product, a relevant person may deduct that amount from any amount which the relevant person is required to pay to the customer (whether as a result of the exercise of the customer’s statutory rights or otherwise) in respect of the product.

• (7) In a case where a person to whom a recall notice was given in relation to a compliance failure failed to comply with it, the Secretary of State may recover from the person any costs or expenses reasonably incurred by the Secretary of State or another person in taking any action under this section in relation to the compliance failure.

• (8) In this section “compliance failure”, in relation to a product, means a failure by a relevant person to comply with a relevant security requirement in relation to the product.

Disclosure of information

Disclosure of information

48

• (1) The Secretary of State may disclose to a person any information obtained by the Secretary of State in connection with the Secretary of State’s enforcement functions if the disclosure is made for a purpose connected with an enforcement function of the Secretary of State.

• (2) A person may disclose any information to the Secretary of State if the disclosure is made for the purposes of enabling or assisting the Secretary of State to exercise any enforcement function.

• (3) A disclosure of information authorised by this Chapter does not breach—

• (a) any obligation of confidence owed by the person making the disclosure in relation to that information, or

• (b) any other restriction on the disclosure of information (however imposed).

• (4) But nothing in this Chapter authorises either of the following—

• (a) the making of a disclosure which would contravene the data protection legislation (but in determining whether a disclosure would do so, the powers conferred by this Chapter are to be taken into account);

• (b) the making of a disclosure which is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016.

• (5) In this section “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).

• (6) Subsections (1) and (2) do not affect any power to disclose that exists apart from this section.

• (7) In Schedule 14 to the Enterprise Act 2002 (restrictions on disclosure of information: list of enactments under or by virtue of which information is obtained), at the appropriate place insert—

• Part 1 of the Product Security and Telecommunications Infrastructure Act 2022.

Miscellaneous and supplementary

Offence of purporting to act as authorised to exercise enforcement function

49

• (1) A person who is not authorised to exercise a function of the Secretary of State under this Chapter commits an offence if the person purports to act as a person who is so authorised.

• (2) A person guilty of an offence under this section is liable—

• (a) on summary conviction in England and Wales, to a fine;

• (b) on summary conviction in Scotland, to a fine not exceeding level 5 on the standard scale;

• (c) on summary conviction in Northern Ireland, to a fine not exceeding level 5 on the standard scale.

Means of giving notices

50

• (1) A notice under this Chapter may be given to a person by—

• (a) handing it to the person,

• (b) leaving it at the person’s proper address,

• (c) sending it by post to the person at that address, or

• (d) subject to subsection (7), sending it to the person by electronic means.

• (2) A notice to a body corporate may be given to the secretary or clerk of that body.

• (3) A notice to a partnership may be given to a partner or a person who has the control or management of the partnership business.

• (4) For the purposes of this section and of section 7 of the Interpretation Act 1978 (service of documents by post) in its application to this section, the proper address of a person is—

• (a) in the case of a body corporate or its secretary or clerk, the address of the body’s registered or principal office;

• (b) in the case of a partnership, a partner or a person having the control or management of the partnership business, the address of the principal office of the partnership;

• (c) in any other case, the person’s last known address.

• (5) For the purposes of subsection (4) the principal office of a company registered outside the United Kingdom, or of a partnership carrying on business outside the United Kingdom, is its principal office within the United Kingdom.

• (6) If a person has specified an address in the United Kingdom, other than the person’s proper address within the meaning of subsection (4), as the one at which the person or someone on the person’s behalf will accept notices of the same description as a notice under this Chapter, that address is also treated for the purposes of this section and section 7 of the Interpretation Act 1978 as the person’s proper address.

• (7) A notice may be sent to a person by electronic means only if—

• (a) the person has indicated that notices of the same description as a notice under this Chapter may be given to the person by being sent to an electronic address and in an electronic form specified for that purpose, and

• (b) the notice is sent to that address in that form.

• (8) A notice sent to a person by electronic means is, unless the contrary is proved, to be treated as having been given at 9 am on the working day immediately following the day on which it was sent.

• (9) In this section—

• “electronic address” means any number or address used for the purposes of sending or receiving documents or information by electronic means;

• “working day” means a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom.

Liability of authorised representatives

51

• (1) This section applies where a manufacturer that is not established in the United Kingdom authorises a person in the United Kingdom, with the agreement of that person, to perform any of the duties listed in subsection (3) on behalf of the manufacturer.

• (2) In this Part “authorised representative”, in relation to a manufacturer, means a person authorised by the manufacturer as mentioned in subsection (1).

• (3) The duties referred to in subsection (1) are—

• (a) any duties under regulations made under section 9(6) (duties relating to statements of compliance);

• (b) the duties under section 11(2) and (3) (duties to take action in relation to compliance failures);

• (c) the duty under section 12(1) (duty to maintain records).

• (4) If the authorised representative fails to comply with the duty, the authorised representative may be proceeded against under this Part for failing to comply with the duty.

• (5) Subsection (4) does not affect the liability of the manufacturer under this Part for a failure to comply with the duty.

Offences by directors, partners etc

52

• (1) Where an offence under this Part has been committed by a body corporate and it is proved that the offence—

• (a) has been committed with the consent or connivance of a person listed in subsection (2), or

• (b) is attributable to any neglect on the part of such a person,

that person (as well as the body corporate) is guilty of that offence and liable to be proceeded against and punished accordingly.

• (2) The persons referred to in subsection (1)(a) are—

• (a) a director, manager, secretary or other similar officer of the body;

• (b) any person who was purporting to act in such a capacity.

• (3) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member, in connection with that management, as if the member were a director of the body corporate.

• (4) Where an offence under this Part has been committed by a Scottish partnership and it is proved that the offence—

• (a) has been committed with the consent or connivance of a partner in the partnership or a person purporting to act as such a partner, or

• (b) is attributable to any neglect on the part of such a person,

that person (as well as the partnership) is guilty of that offence and liable to be proceeded against and punished accordingly.

CHAPTER 4 — Supplementary provision

Guidance

Guidance

53

• (1) The Secretary of State may issue guidance about the effect of any provision made by or under this Part.

• (2) The enforcement authority may issue guidance about the exercise of any of its enforcement functions.

• (3) A person who issues guidance under this section may from time to time revise the guidance.

• (4) A person who issues guidance under this section must publish—

• (a) the guidance, and

• (b) any revisions of the guidance.

Interpretation

Meaning of “UK consumer connectable product”

54

• (1) In this Part “UK consumer connectable product” means a relevant connectable product that meets condition A or B.

• (2) Condition A is that the product—

• (a) is or has been made available to consumers in the United Kingdom, and

• (b) has not been supplied by a relevant person to any customer (whether or not in the United Kingdom) at any time before being so made available.

• (3) Condition B is that—

• (a) the product is or has been made available to customers in the United Kingdom who are not consumers,

• (b) the product has not been supplied by a relevant person to any customer (whether or not in the United Kingdom) at any time before being so made available, and

• (c) products identical to the product meet condition A.

• (4) Subsections (5) to (9) apply for the purposes of subsections (2)(b) and (3)(b).

• (5) Where—

• (a) a product that has been supplied to a customer (“the original customer”) is returned to a relevant person in the exercise of any right (whether statutory or otherwise) to return unwanted products, and

• (b) the product is subsequently made available to customers in the United Kingdom,

the product is not to be treated as having been supplied to the original customer.

• (6) Where—

• (a) a product that has been supplied to a customer (“the original customer”) is returned to a relevant person—

• (i) in accordance with arrangements made for the purposes of, or in connection with, this Part, or

• (ii) as a result of any other action taken under, or for the purposes of, this Part, and

• (b) the product is subsequently made available to customers in the United Kingdom,

the product is not to be treated as having been supplied to the original customer.

• (7) Where a product that has been supplied to a customer is reconditioned by or on behalf of a manufacturer of the product before being made available to customers in the United Kingdom, the product is not to be treated as having been supplied to that customer.

• (8) The reference in subsection (7) to reconditioning a product is a reference to doing anything to the product, or its packaging, in order to prepare the product to be made available to customers.

• (9) Where a product has been supplied to a customer (“C”) who would, in the absence of section 7(6), be a distributor of the product—

• (a) the product is not to be treated as having been supplied to C, and

• (b) where any of subsections (5) to (7) applies, the product is not to be treated as having been supplied to C or to any customer of C.

• (10) The Secretary of State may by regulations—

• (a) repeal subsection (2)(b) or (3)(b);

• (b) make any amendments of this Part that the Secretary of State considers necessary or appropriate in consequence of such repeal.

• (11) Regulations made under subsection (10) are subject to the affirmative resolution procedure.

Meaning of “supply”

55

• (1) This section has effect for the purposes of this Part.

• (2) Any reference to supplying a product is a reference to supplying the product in the course of business, and includes a reference to doing any of the following—

• (a) providing the product in exchange for any non-monetary consideration;

• (b) providing the product in, or in connection with, the performance of a statutory function;

• (c) giving the product as a prize or otherwise making a gift of the product.

• (3) Any reference to supplying a product does not include a reference to hiring out or lending the product, except where—

• (a) the hiring out or lending is by a manufacturer of the product, or

• (b) the product is supplied under a hire-purchase agreement.

• (4) Where a product has at any time been supplied by being hired out or lent to a person, neither of the following is to be treated as a further supply of the product to that person—

• (a) a continuation or renewal of the hire or loan (whether on the same or different terms);

• (b) any transaction for the transfer after that time of any interest in the product to the person.

• (5) The performance of a contract for the carrying out of works that consist of or include the installation of a product into a building or structure is to be treated as a supply of the product in so far as, but only in so far as, it involves the provision of the product to a person by means of its installation into the building or structure.

• (6) The performance of a contract by the construction of a building or structure on land is to be treated as a supply of a product in so far as, but only in so far as, it involves the provision of the product to a person by means of its incorporation into the building or structure.

• (7) Any reference to supplying a product does not include a reference to any supply of a product that is effected by the creation or disposal of an interest in land, or by the performance of an agreement for the creation or disposal of such an interest, except where—

• (a) the product is incorporated into or contained in a building (or part of a building) constructed on the land,

• (b) the building (or part) is to be used for a particular purpose, and

• (c) at the time of the supply, the building (or part) has not previously been used for that purpose.

• (8) Any reference to supplying a product does not include a reference to supplying the product by a sale of the product as scrap (that is to say, for the value of materials included in the product rather than for the value of the product itself).

• (9) Any reference to supplying a product does not include a reference to merely providing transport services for the purposes of enabling the product to be supplied to any person.

• (10) Where a product that has been supplied to a customer is temporarily returned for any reason to a relevant person by a person (“P”) who is—

• (a) the customer to whom the product was supplied, or

• (b) the customer’s successor in title,

the return of the product to P is not to be treated as a supply of the product to P.

• (11) Where a person (“the ostensible supplier”) supplies a product to another person (“the customer”) under a relevant agreement and the ostensible supplier—

• (a) carries on the business of financing the provision of products for others by means of relevant agreements, and

• (b) in the course of that business, acquired an interest in the product supplied to the customer as a means of financing the provision of the product for the customer by a further person (“the effective supplier”),

the effective supplier and not the ostensible supplier is to be regarded as supplying the product to the customer.

• (12) In this section—

• “non-monetary consideration” means consideration other than money;

• “relevant agreement” means— a conditional sale agreement (within the meaning of the Consumer Credit Act 1974); a credit-sale agreement (within the meaning of that Act); a hire-purchase agreement (within the meaning of that Act); an agreement for the hiring of a product (other than a hire-purchase agreement).

Meaning of other expressions used in Part 1

56

• (1) In this Part—

• “authorised representative” has the meaning given by section 51(2);

• “business” includes— any trade or profession; the activities of a local or public authority; the activities of a government department; the activities of a charity;

• “compliance notice” has the meaning given by section 28(2);

• “consumer” means an individual acting for purposes that are wholly or mainly outside the individual’s business;

• “customer”, in relation to a product, means any person to whom the product is supplied, other than— a relevant person acting in that capacity in relation to the product, or an authorised representative of a manufacturer of the product in its capacity of acting on behalf of the manufacturer in relation to the product;

• “distributor” has the meaning given by section 7(5);

• “the enforcement authority” means— the Secretary of State, or any person authorised to exercise a function of the Secretary of State by regulations under section 27;

• “enforcement function” has the meaning given by section 27(5);

• “enforcement notice” means— a compliance notice, a stop notice, or a recall notice;

• “excepted product” has the meaning given by section 6(1);

• “importer” has the meaning given by section 7(4);

• “internet-connectable product” has the meaning given by section 5(1);

• “manufacturer” has the meaning given by section 7(3);

• “network-connectable product” has the meaning given by section 5(3);

• “penalty notice” has the meaning given by section 36(2);

• “recall notice” has the meaning given by section 30(3);

• “relevant connectable product” has the meaning given by section 4;

• “relevant person” has the meaning given by section 7(2);

• “relevant security requirement”, in relation to a relevant person, means a security requirement applying to the relevant person;

• “security requirement” is to be read in accordance with section 1(1) and (2);

• “statement of compliance” has the meaning given by section 9(3);

• “stop notice” has the meaning given by section 29(2);

• “supply” is to be read in accordance with section 55;

• “UK consumer connectable product” has the meaning given by section 54.

• (2) In this Part any reference to making a product available in the United Kingdom is a reference to supplying, or offering to supply, the product to a person in the United Kingdom.

PART 2 — Telecommunications infrastructure

Rights to upgrade and share apparatus

Rights under the electronic communications code to share apparatus

57

• (1) The electronic communications code is amended as follows.

• (2) In paragraph 3 (meaning of “code right”)—

• (a) the existing wording becomes sub-paragraph (1);

• (b) in sub-paragraph (1)—

• (i) after paragraph (c) insert—

(ca) to share with another operator the use of electronic communications apparatus which the first operator keeps installed on, under or over the land,

;

• (ii) after paragraph (e) insert—

(ea) to carry out any works on the land for the purposes of, or in connection with, sharing with another operator the use of electronic communications apparatus which the first operator keeps installed on, under or over the land or elsewhere,

;

• (iii) after paragraph (f) insert—

(fa) to enter the land for the purposes of, or in connection with, sharing with another operator the use of electronic communications apparatus which the first operator keeps installed on, under or over the land or elsewhere,

;

• (c) after sub-paragraph (1) insert—

(2) In sub-paragraph (1), references to “the first operator” are to the operator mentioned in the opening words of that sub-paragraph.

• (3) For paragraph 4 (the statutory purposes) substitute—

(4) (1) In this code “the statutory purposes”, in relation to an operator, means— (a) in relation to sharing rights, the purposes of enabling the provision by other operators of their networks, and (b) in relation to rights other than sharing rights— (i) the purposes of providing the operator’s network, or (ii) the purposes of providing an infrastructure system. (2) In sub-paragraph (1), “sharing right” means a right within paragraph 3(1)(ca), (ea) or (fa).

• (4) In paragraph 9 (conferral of code rights)—

• (a) the existing wording becomes sub-paragraph (1), and

• (b) after that sub-paragraph insert—

(2) But in a case where an operator (“the first operator”) has the right to share the use of electronic communications apparatus with another operator (“the second operator”) under or by virtue of an agreement under this Part, sub-paragraph (1) does not prevent the agreement from providing for the first operator to permit the second operator to exercise, in connection with the sharing, a code right conferred on the first operator by the agreement.

• (5) In paragraph 13 (access to land)—

• (a) in sub-paragraph (1)(a), for “paragraph 3” substitute “paragraph 3(1)”;

• (b) in sub-paragraph (2), for “paragraph 3” substitute “paragraph 3(1)”.

• (6) In paragraph 38 (right of landowner or occupier of neighbouring land to require removal of electronic communications apparatus), in sub-paragraph (3), for “paragraph 3(h)” substitute “paragraph 3(1)(h)”.

• (7) The amendments made by this section do not affect any rights conferred before the coming into force of this section by an agreement under Part 2 of the electronic communications code.

Upgrading and sharing of apparatus: subsisting agreements

58

• (1) Schedule 2 to the Digital Economy Act 2017 (the electronic communications code: transitional provision) is amended as follows.

• (2) In the italic heading before paragraph 5, omit “, upgrading and sharing”.

• (3) In paragraph 5 (exclusion of assignment etc provisions)—

• (a) in sub-paragraph (1), for the words from the beginning to “apparatus)” substitute “Paragraph 16 of the new code (assignment of code rights)”, and

• (b) in sub-paragraph (2), for “Part 3” substitute “Paragraph 16”.

• (4) After paragraph 5 insert—

(5A) Paragraph 17 of the new code (power for operator to upgrade or share apparatus) applies in relation to an operator who is a party to a subsisting agreement, but as if for sub-paragraphs (1) to (6) there were substituted— (1) This paragraph applies where— (a) an operator (“the main operator”) keeps electronic communications apparatus installed under land, and (b) the main operator is a party to a subsisting agreement in relation to the electronic communications apparatus. (2) If the conditions in sub-paragraphs (3), (4) and (6) are met, the main operator may— (a) upgrade the electronic communications apparatus, or (b) share the use of the electronic communications apparatus with another operator. (3) The first condition is that the upgrading or sharing has no adverse impact on the land. (4) The second condition is that the upgrading or sharing imposes no burden on any person with an interest in the land. (5) For the purposes of sub-paragraph (4) a burden includes anything that— (a) has an adverse effect on the person’s enjoyment of the land, or (b) causes loss, damage or expense to the person. (6) The third condition is that, before the beginning of the period of 21 days ending with the day on which the main operator begins to upgrade the electronic communications apparatus or (as the case may be) share its use, the main operator attaches a notice, in a secure and durable manner, to a conspicuous object on the relevant land. (7) A notice attached for the purposes of sub-paragraph (6) must— (a) be attached in a position where it is reasonably legible, (b) state that the main operator intends to upgrade the electronic communications apparatus or (as the case may be) share its use with another operator, (c) state the date on which the main operator intends to begin to upgrade the electronic communications apparatus or (as the case may be) share its use with another operator, (d) state, in a case where the main operator intends to share the use of the electronic communications apparatus with another operator, the name of the other operator, and (e) give the name of the main operator and an address in the United Kingdom at which the main operator may be contacted about the upgrading or sharing. (8) Any person giving a notice at that address in respect of that electronic communications apparatus is to be treated as having been given that address for the purposes of paragraph 91(2). (9) Any agreement under Part 2 of this code is void to the extent that— (a) it prevents or limits the upgrading or sharing, in a case where the conditions mentioned in sub-paragraphs (3), (4) and (6) are met, of any electronic communications apparatus to which the agreement relates that is installed under land, or (b) it makes upgrading or sharing of such electronic communications apparatus subject to conditions to be met by the operator (including a condition requiring the payment of money). (10) Nothing in this paragraph is to be read as conferring a right on the main operator to enter the land for the purpose of upgrading or sharing the use of the electronic communications apparatus. (11) References in this paragraph to sharing electronic communications apparatus include carrying out works to the electronic communications apparatus to enable such sharing to take place. (12) In this paragraph— - “the relevant land” means— in a case where the main operator has a right to enter the land under which the electronic communications apparatus is installed, that land; in any other case, the land on which works will be carried out to enable the upgrading or sharing to take place or, where there is more than one set of works, the land on which each set of works will be carried out; - “subsisting agreement” has the meaning given by paragraph 1(4) of Schedule 2 to the Digital Economy Act 2017.

Upgrading and sharing of apparatus installed before 29 December 2003

59

• (1) The electronic communications code is amended as follows.

• (2) In paragraph 15 (introductory), in paragraph (b), for the words “to which such an agreement relates” substitute

which— (i) is electronic communications apparatus to which such an agreement relates, or (ii) is electronic communications apparatus installed before 29 December 2003

.

• (3) After paragraph 17 insert—

(17A) (1) This paragraph applies where— (a) an operator (“the main operator”) keeps electronic communications apparatus installed under land, (b) the main operator is not a party to an agreement under Part 2 of this code in relation to the electronic communications apparatus, and (c) the electronic communications apparatus was installed before 29 December 2003. (2) If the conditions in sub-paragraphs (3), (4) and (6) are met, the main operator may— (a) upgrade the electronic communications apparatus, or (b) share the use of the electronic communications apparatus with another operator. (3) The first condition is that the upgrading or sharing has no adverse impact on the land. (4) The second condition is that the upgrading or sharing imposes no burden on any person with an interest in the land. (5) For the purposes of sub-paragraph (4) a burden includes anything that— (a) has an adverse effect on the person’s enjoyment of the land, or (b) causes loss, damage or expense to the person. (6) The third condition is that, before the beginning of the period of 21 days ending with the day on which the main operator begins to upgrade the electronic communications apparatus or (as the case may be) share its use, the main operator attaches a notice, in a secure and durable manner, to a conspicuous object on the relevant land. (7) A notice attached for the purposes of sub-paragraph (6) must— (a) be attached in a position where it is reasonably legible, (b) state that the main operator intends to upgrade the electronic communications apparatus or (as the case may be) share its use with another operator, (c) state the date on which the main operator intends to begin to upgrade the electronic communications apparatus or (as the case may be) share its use with another operator, (d) state, in a case where the main operator intends to share the use of the electronic communications apparatus with another operator, the name of the other operator, and (e) give the name of the main operator and an address in the United Kingdom at which the main operator may be contacted about the upgrading or sharing. (8) Any person giving a notice at that address in respect of that electronic communications apparatus is to be treated as having been given that address for the purposes of paragraph 91(2). (9) Nothing in this paragraph is to be read as conferring a right on the main operator to enter the land for the purpose of upgrading or sharing the use of the electronic communications apparatus. (10) References in this paragraph to sharing electronic communications apparatus include carrying out works to the electronic communications apparatus to enable such sharing to take place. (11) In this paragraph “the relevant land” means— (a) in a case where the main operator has a right to enter the land under which the electronic communications apparatus is installed, that land; (b) in any other case, the land on which works will be carried out to enable the upgrading or sharing to take place or, where there is more than one set of works, the land on which each set of works will be carried out.

• (4) In paragraph 24 (determination of consideration for agreement), in sub-paragraph (3)(b), for “and 17” substitute “, 17 and 17A”.

Power to fly lines

Power to fly lines from apparatus kept by another operator

60

• (1) Paragraph 74 of the electronic communications code (power to fly lines) is amended as follows.

• (2) For sub-paragraph (1) substitute—

(1) This paragraph applies where an operator (“the main operator”) keeps electronic communications apparatus on or over any land for the purposes of the main operator’s network.

• (3) In sub-paragraph (2)—

• (a) before “operator” insert “main”, and

• (b) in paragraph (a), after “apparatus” insert “mentioned in sub-paragraph (1)”.

• (4) After sub-paragraph (2) insert—

(2A) With the agreement of the main operator, another operator has the right, for the statutory purposes, to install and keep lines which— (a) pass over other land adjacent to, or in the vicinity of, the land on or over which the apparatus mentioned in sub-paragraph (1) is kept, (b) are connected to that apparatus, and (c) are not, at any point where they pass over the other land, less than three metres above the ground or within two metres of any building over which they pass.

• (5) In sub-paragraph (3)—

• (a) for “Sub-paragraph (2) does” substitute “Sub-paragraphs (2) and (2A) do”, and

• (b) in paragraph (a), for “sub-paragraph (2)” substitute “either of those sub-paragraphs”.

• (6) After sub-paragraph (3) insert—

(3A) The main operator has the right to upgrade, or carry out works to, the apparatus mentioned in sub-paragraph (1) for the purposes of, or in connection with— (a) the exercise by the main operator of the right conferred by sub-paragraph (2), or (b) the exercise by another operator of the right conferred by sub-paragraph (2A). (3B) With the agreement of the main operator, another operator has the right to upgrade, or carry out works to, the apparatus mentioned in sub-paragraph (1) for the purposes of, or in connection with, the exercise by the other operator of the right conferred by sub-paragraph (2A). (3C) Sub-paragraphs (3A) and (3B) do not authorise an operator to upgrade, or carry out works to, the apparatus mentioned in sub-paragraph (1) if the upgrade or works would— (a) have more than a minimal adverse impact on the appearance of the apparatus, (b) have more than a minimal adverse impact on the land on or over which the apparatus is kept, or (c) cause loss, damage or expense to any person with an interest in the land on or over which the apparatus is kept. (3D) An operator may not enter the land on or over which the apparatus mentioned in sub-paragraph (1) is kept for the purpose of exercising a right conferred by this paragraph without the agreement of the occupier of the land.

• (7) In paragraph 77 (when and by whom a right to object under Part 12 of the code can be exercised), in sub-paragraph (3), for “paragraph 74” substitute “paragraph 74(2) or (2A)”.

Renewal of business tenancies conferring code rights

Rent under tenancies conferring code rights: England and Wales

61

• (1) The Landlord and Tenant Act 1954 is amended as follows.

• (2) After section 34 insert—

(34A) (1) This section applies where— (a) the current tenancy is a subsisting agreement within the meaning of Schedule 2 to the Digital Economy Act 2017, and (b) the primary purpose of the current tenancy is to confer code rights. (2) In default of agreement between the landlord and the tenant as mentioned in section 34(1), the rent payable under a new tenancy granted by order of the court under this Part of this Act shall be such amount or amounts determined by the court as represent the market value of the landlord’s agreement to confer the code rights conferred by the new tenancy. (3) For this purpose the market value of a landlord’s agreement to confer code rights is, subject to subsection (4), the amount that, at the date the market value is assessed, a willing buyer would pay a willing seller for the agreement— (a) in a transaction at arm’s length, (b) on the basis that the buyer and seller were acting prudently and with full knowledge of the transaction, and (c) on the basis that the transaction was subject to the other provisions of the tenancy granted by order of the court. (4) The market value must be assessed on these assumptions— (a) that the rights to which the transaction relates do not relate to the provision or use of an electronic communications network; (b) that paragraphs 16, 17 and 17A of the electronic communications code (assignment, and upgrading and sharing) do not apply to the rights or any apparatus to which those rights could apply; (c) that the rights in all other respects correspond to the code rights; (d) that there is more than one site which the buyer could use for the purpose for which the buyer seeks the rights. (5) In this section— - references to “code rights” are to be read— in relation to the current tenancy, in accordance with paragraph 3 of Schedule 2 to the Digital Economy Act 2017; in relation to a new tenancy granted by order of the court under this Part of this Act, in accordance with paragraph 3 of the electronic communications code; - “the electronic communications code” means the code set out in Schedule 3A to the Communications Act 2003; - “electronic communications network” has the meaning given by section 32(1) of that Act.

• (3) In section 24C (amount of interim rent where new tenancy of whole premises granted and landlord not opposed)—

• (a) in subsection (3), in paragraph (b)—

• (i) after “section 34” insert “or 34A”;

• (ii) after “of this Act” insert “(as the case may be)”;

• (b) in subsection (4)—

• (i) after “section 34” insert “or 34A”;

• (ii) after “of this Act” insert “(as the case may be)”;

• (c) in subsection (7), after “of this Act” insert “, or (as the case may be) subsections (2) to (4) of section 34A of this Act,”.

• (4) In section 24D (amount of interim rent in any other case), in subsection (2), after “of this Act” insert “, or (as the case may be) subsections (2) to (4) of section 34A of this Act,”.

• (5) In section 34 (rent under new tenancy), after subsection (4) insert—

(5) The court’s powers under this section to determine the rent payable under a tenancy granted by order of the court under this Part of this Act do not apply where— (a) the current tenancy is a subsisting agreement within the meaning of Schedule 2 to the Digital Economy Act 2017, and (b) the primary purpose of the current tenancy is to confer code rights (within the meaning of paragraph 3 of that Schedule). (See instead section 34A.)

Rent under tenancies conferring code rights: Northern Ireland

62

• (1) The Business Tenancies (Northern Ireland) Order 1996 (S.I. 1996/725 (N.I. 5)) is amended as follows.

• (2) In Article 18 (rent under new tenancy), after paragraph (5) insert—

(6) Paragraphs (2) to (5) do not apply to a new tenancy granted in pursuance of an order of the Lands Tribunal where— (a) the current tenancy is a subsisting agreement within the meaning of Schedule 2 to the Digital Economy Act 2017, and (b) the primary purpose of the current tenancy is to confer code rights (within the meaning of paragraph 3 of that Schedule). (See instead Article 18A.)

• (3) After Article 18 insert—

(18A) (1) This Article applies where— (a) the current tenancy is a subsisting agreement within the meaning of Schedule 2 to the Digital Economy Act 2017, and (b) the primary purpose of the current tenancy is to confer code rights. (2) In the absence of agreement between the landlord and the tenant as mentioned in Article 18(1), the rent payable under a new tenancy granted in pursuance of an order of the Lands Tribunal shall be such amount or amounts determined by the Lands Tribunal as represent the market value of the landlord’s agreement to confer the code rights conferred by the new tenancy. (3) For this purpose the market value of a landlord’s agreement to confer code rights is, subject to paragraph (4), the amount that, at the date the market value is assessed, a willing buyer would pay a willing seller for the agreement— (a) in a transaction at arm’s length, (b) on the basis that the buyer and seller were acting prudently and with full knowledge of the transaction, and (c) on the basis that the transaction was subject to the other provisions of the tenancy granted in pursuance of the order of the Lands Tribunal. (4) The market value must be assessed on these assumptions— (a) that the rights to which the transaction relates do not relate to the provision or use of an electronic communications network; (b) that paragraphs 16, 17 and 17A of the electronic communications code (assignment, and upgrading and sharing) do not apply to the rights or any apparatus to which those rights could apply; (c) that the rights in all other respects correspond to the code rights; (d) that there is more than one site which the buyer could use for the purpose for which the buyer seeks the rights. (5) In this Article— - references to “code rights” are to be read— in relation to the current tenancy, in accordance with paragraph 3 of Schedule 2 to the Digital Economy Act 2017; in relation to a new tenancy granted in pursuance of an order of the Lands Tribunal, in accordance with paragraph 3 of the electronic communications code; - “the electronic communications code” means the code set out in Schedule 3A to the Communications Act 2003; - “electronic communications network” has the meaning given by section 32(1) of that Act.

Compensation relating to code rights: England and Wales

63

After section 34A of the Landlord and Tenant Act 1954 (inserted by section 61) insert—

(34B) (1) This section applies where— (a) the court grants a new tenancy by an order under this Part of this Act, (b) the primary purpose of the new tenancy is to confer code rights, (c) the tenancy subsisting at the time the order is made is a subsisting agreement within the meaning of Schedule 2 to the Digital Economy Act 2017, and (d) the primary purpose of that tenancy was to confer code rights. (2) The court may order the tenant to pay compensation to the landlord for any damage or loss that has been sustained or will be sustained by the landlord as a result of the exercise of any of the code rights conferred by the new tenancy. (3) An order under subsection (2) may be made— (a) at the time the court makes the order granting the new tenancy under this Part of this Act, or (b) at any time afterwards, on the application of the landlord. (4) An order under subsection (2) may— (a) specify the amount of compensation to be paid by the tenant, or (b) give directions for the determination of any such amount. (5) Directions under subsection (4)(b) may provide— (a) for the amount of compensation to be agreed between the landlord and the tenant; (b) for any dispute about that amount to be determined by arbitration. (6) An order under subsection (2) may provide for the tenant— (a) to make a lump sum payment, (b) to make periodical payments, (c) to make a payment or payments on the occurrence of an event or events, or (d) to make a payment or payments in such form or at such other time or times as the court may direct. (7) Section 34C makes further provision about compensation in relation to the exercise of code rights conferred by a tenancy under this Part of this Act. (8) In this section, references to “code rights” are to be read— (a) in relation to the new tenancy, in accordance with paragraph 3 of the electronic communications code set out in Schedule 3A to the Communications Act 2003; (b) in relation to a subsisting agreement within the meaning of Schedule 2 to the Digital Economy Act 2017, in accordance with paragraph 3 of that Schedule. (34C) (1) This section applies to the court’s power to order a tenant to pay compensation to a landlord under section 34B (compensation for exercise of code rights). (2) Depending on the circumstances, the power of the court to order the payment of compensation for damage or loss includes power to order payment for— (a) expenses (including reasonable legal and valuation expenses, subject to the provisions of any enactment about the powers of the court to award costs), (b) diminution in the value of the land, and (c) costs of reinstatement. (3) For the purposes of assessing such compensation for diminution in the value of land, rules (2) to (4) set out in section 5 of the Land Compensation Act 1961 apply with any necessary modifications as they apply for the purposes of assessing compensation for the compulsory purchase of any interest in land. (4) Section 10(1) to (3) of the Land Compensation Act 1973 (compensation in respect of mortgages, trusts of land and settlements) applies in relation to such compensation for diminution in the value of land as it applies in relation to compensation under Part 1 of that Act. (5) Where a landlord has a claim for compensation to which this section applies and a claim for compensation under any other provision of this Act, or any provision of the electronic communications code, in respect of the same loss, the compensation payable to the landlord must not exceed the amount of the landlord’s loss. (6) In this section “the electronic communications code” means the code set out in Schedule 3A to the Communications Act 2003.

Compensation relating to code rights: Northern Ireland

64

• (1) The Business Tenancies (Northern Ireland) Order 1996 (S.I. 1996/725 (N.I. 5)) is amended as follows.

• (2) After Article 18A (inserted by section 62) insert—

(18B) (1) This Article applies where— (a) the Lands Tribunal makes an order for the grant of a new tenancy, (b) the primary purpose of the new tenancy is to confer code rights, (c) the tenancy subsisting at the time the order is made is a subsisting agreement within the meaning of Schedule 2 to the Digital Economy Act 2017, and (d) the primary purpose of that tenancy was to confer code rights. (2) The Lands Tribunal may order the tenant to pay compensation to the landlord for any damage or loss that has been sustained or will be sustained by the landlord as a result of the exercise of the code rights conferred by the new tenancy. (3) An order under paragraph (2) may be made— (a) at the time the Lands Tribunal makes the order for the grant of the new tenancy, or (b) at any time afterwards, on the application of the landlord. (4) An order under paragraph (2) may— (a) specify the amount of compensation to be paid by the tenant, or (b) give directions for the determination of any such amount. (5) Directions under paragraph (4)(b) may provide— (a) for the amount of compensation to be agreed between the landlord and the tenant; (b) for any dispute about that amount to be determined by arbitration. (6) An order under paragraph (2) may provide for the tenant— (a) to make a lump sum payment, (b) to make periodical payments, (c) to make a payment or payments on the occurrence of an event or events, or (d) to make a payment or payments in such form or at such other time or times as the Lands Tribunal may direct. (7) Article 18C makes further provision about compensation in relation to the exercise of code rights conferred by a tenancy granted in pursuance of an order of the Lands Tribunal. (8) In this Article, references to “code rights” are to be read— (a) in relation to the new tenancy, in accordance with paragraph 3 of the electronic communications code set out in Schedule 3A to the Communications Act 2003; (b) in relation to a subsisting agreement within the meaning of Schedule 2 to the Digital Economy Act 2017, in accordance with paragraph 3 of that Schedule. (18C) (1) This Article applies to the Lands Tribunal’s power to order a tenant to pay compensation to a landlord under Article 18B (compensation for exercise of code rights). (2) Depending on the circumstances, the power of the Lands Tribunal to order the payment of compensation for damage or loss includes power to order payment for— (a) expenses (including reasonable legal and valuation expenses, subject to any statutory provision about the powers of the Lands Tribunal to award costs), (b) diminution in the value of the land, and (c) costs of reinstatement. (3) For the purposes of assessing such compensation for diminution in the value of land, rules (2) to (4) set out in Article 6(1) of the Land Compensation (Northern Ireland) Order 1982 (S.I. 1982/712 (N.I. 9)) apply with any necessary modifications as they apply for the purposes of assessing compensation for the compulsory acquisition of any interest in land. (4) Article 13(1) to (3) of the Land Acquisition and Compensation (Northern Ireland) Order 1973 (S.I. 1973/1896 (N.I. 21)) (compensation in respect of mortgages, trusts for sale and settlements) applies in relation to such compensation for diminution in the value of land as it applies in relation to compensation under Part 2 of that Order. (5) Where a landlord has a claim for compensation to which this Article applies and a claim for compensation under any other provision of this Order, or any provision of the electronic communications code, in respect of the same loss, the compensation payable to the landlord must not exceed the amount of the landlord’s loss. (6) In this Article “the electronic communications code” means the code set out in Schedule 3A to the Communications Act 2003.

• (3) In Article 42 (enforcement of orders of Lands Tribunal), in paragraph (1), after “18(5),” insert “18B(2),”.

Jurisdiction of court in relation to tenancies in England and Wales

65

In section 63 of the Landlord and Tenant Act 1954 (jurisdiction of court for purposes of Parts 1 and 2), after subsection (2) insert—

(2A) The Secretary of State may by regulations— (a) provide for the jurisdiction of the court under Part 2 to be exercised by the First-tier Tribunal or the Upper Tribunal in a case where— (i) the current tenancy is a subsisting agreement within the meaning of Schedule 2 to the Digital Economy Act 2017, and (ii) the primary purpose of the current tenancy is to confer code rights (within the meaning of paragraph 3 of that Schedule); (b) provide for the jurisdiction of the court under section 34B to be exercised by the First-tier Tribunal or the Upper Tribunal. (2B) Regulations under subsection (2A)— (a) are to be made by statutory instrument; (b) may make different provision for different purposes; (c) may include transitional or saving provision. (2C) A statutory instrument containing regulations under subsection (2A) is subject to annulment in pursuance of a resolution of either House of Parliament.

Refusal of code rights on grounds of national security etc

Refusal of application for code rights on grounds of national security etc

66

• (1) The electronic communications code is amended as follows.

• (2) After paragraph 27 insert—

(27ZA) (1) This paragraph applies where an operator applies to the court for an order under paragraph 20, 26 or 27 which would impose an agreement between the operator and another person. (2) The court must refuse the application if the Secretary of State gives a certificate to the court certifying that the condition in sub-paragraph (3) is met. (3) The condition is that the Secretary of State is satisfied that the order applied for by the operator would be likely to prejudice national security, defence or law enforcement. (4) If the Secretary of State gives a certificate to the court under sub-paragraph (2) the Secretary of State must give a copy of it to the operator and the other person. (5) In this paragraph, “law enforcement” means the prevention, investigation, detection or prosecution of criminal offences including the safeguarding against and the prevention of threats to public security.

• (3) In paragraph 21 (test to be applied by the court in determining whether to make an order under paragraph 20), in sub-paragraph (1), before “, the court may make an order” insert “and paragraph 27ZA”.

• (4) In paragraph 26 (power of court to make an order imposing interim code rights), in sub-paragraph (3), at the beginning insert “Subject to paragraph 27ZA,”.

• (5) In paragraph 27 (power of court to make an order imposing temporary code rights), in sub-paragraph (2), at the beginning insert “Subject to paragraph 27ZA,”.

Unresponsive occupiers

Unresponsive occupiers

67

• (1) In the electronic communications code, after Part 4 insert—