Failing To Break The Code Enigma

Author:Mr Malcolm Dowden
Profession:Charles Russell Speechlys LLP

The government has abandoned its attempt to overhaul the law relating to mobile phone masts and broadband infrastructure.  Reform proposals were set out in 60 pages of amendments introduced as a last-minute amendment to the Infrastructure Bill.  The timing of the amendments meant that there was no meaningful opportunity for Parliament to scrutinize an extremely complex, economically significant and far-reaching new legal code.  Bowing to pressure, Transport Secretary Patrick McLoughlin stepped in to withdraw the new code, and to confirm that the existing law will remain in force, for the time being at least.

Any further attempt to overhaul the code governing telecommunications infrastructure will now have to wait until after the general election.  That, at least, allows time for the flaws in the proposals to be discussed and resolved.

So what issues did the reform proposals throw up? A major flaw related to the relationship between the new code and existing agreements.  During the cursory House of Commons committee debate on the proposals Minister of State John Hayes confirmed that the new code would have no retrospective effect, in that it would not apply to agreements in place before the new code was brought into force.  That statement was accurate if confined to the direct effect of the new code on existing agreements.  However, it missed the major indirect and retrospective loss of protection that would result from the repeal of the existing law relating to telecommunications infrastructure - Schedule 2 to the Telecommunications Act 1984 (known as "the Code").

The government's clauses directed that the Code "shall be omitted" from the 1984 Act and wholly replaced by a new code, to be inserted as Schedule 3A to Communications Act 2003.  Use of the words "shall be omitted" strongly suggested that the Code was to be repealed for all purposes and entirely deleted from the statute books.  That created a major question: if the new code was not to apply to existing agreements, and if the old Code was wholly repealed, what (if any) statutory protection would apply to those existing agreements?

The new code would clearly not apply to agreements made under the previous regime.  However, repeal of the old Code would remove extremely significant and valuable protection, such as the need for a landowner seeking to enforce a right to require removal of electronic communications apparatus to go through the "paragraph 21" procedure.  Under that...

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