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Digital Economy Bill [HL]

My Lords, I thank the noble Lord, Lord Lucas, for drawing our attention, as usual, to some key issues. I believe that the first amendment tabled by the noble Lord, Lord Lucas, is an attempt to clarify what is meant by resilience in terms of communication infrastructures, and what the principal objective of maintaining resilience should be. I understand his intention in proposing that such detail be drafted into the clause, but in my view this will narrow its meaning and limit its applicability and therefore its value. We set out the requirement to report on resilience issues in new Section 134B(1)(h) and (2)(f). Subsection (3) goes on to specify important elements of the preparedness that we are looking for. The effect of the first part of the amendment would be to narrow the field of risk on which Ofcom would be required to report. Physical damage to networks, as we saw in Cumbria last year, has a significant impact, and the impact of a loss of power is well understood. However, the effect of this amendment would be to rule out or demote the risk to resilience posed by other important issues, such as industrial action, staff shortages through pandemic flu, or cyber or other types of attack. The second part of the amendment attempts to define the point of resilience. In new Section 134B(1)(h) we require Ofcom to report on the preparedness for an emergency and the ability to respond to and recover from one. I well understand the point that the noble Lord, Lord Lucas, was making in relation to the terrorist attack of 7/7 when he said that mobile phones were cut off. I am not sure whether they were cut off, or it was just that the load on the network meant that it could not cope with the volume of calls. In relation to that, the noble Lord, Lord Howard, asked whether you could differentiate between the two. Although my knowledge is not as extensive or up to date as it should be in view of my telecom background, I doubt that you could. I shall write to him on that because obviously it is an important point. In planning any network there is a limit to what you can do economically. Costs would spiral out of proportion if you tried to meet the maximum load that could occur in any eventuality. That would mean that, for much of the time, a lot of equipment would be doing nothing. The point I am trying to make is that there is a balance to be struck. The second part of the amendment attempts to define the point of resilience. We require Ofcom to report on the preparedness for an emergency and the ability to respond to and recover from one. Requiring Ofcom to comment on citizens’ ability to communicate with each other during an emergency would therefore not add anything of significance to the existing text. We accept the principle of what is being said about the importance of a resilient network and its ability to recover but we do not think that this is the right wording. In any event, I can assure the noble Lord that the issue is covered in the current wording. As for communication with the authorities, there is already an obligation on companies which provide links to the 999 service to prioritise those services above all others. Ofcom is already involved in these arrangements through its implementation of the universal service obligation which is laid down by European law. We see no need to include a report on such arrangements in the requirements which we seek to impose as the companies already have that duty. As for the broader question of how authorities communicate with citizens during an emergency through techniques such as cell broadcasting, the policy is still under consideration and any legislation that is required to achieve better communication would need to be considered separately. It would therefore not be appropriate to require Ofcom to report on such developments. However, this important issue is being considered, and I am prepared to give further details on it if necessary. I thank the noble Earl, Lord Attlee, for his erudite explanation of Amendment 30. I learned quite a bit about GPS from his contribution. I am sorry, I have skipped ahead. I want to deal first with Amendment 26. Amendment 26 seeks to expand the definition of "emergency" in relation to the requirement on Ofcom to report on network and service matters. I am sympathetic to the intention of the amendment insofar as the possibility of networks failing through being overloaded has to be taken seriously, but the term "disruption" already includes the possibility of exceptional loads being placed on networks and thereby causing disruption. I understand that the objective of most attacks on on-line services now is to swamp the underlying technology and thereby cause it to stop working. This is called a denial-of-service attack. This risk is now so well known that it serves no purpose to add it into the definition of emergency. Disruption as a concept must be understood to include the stress on networks arising from overloading and it would be unhelpful to give such emphasis to one of many ways in which networks can be disrupted. We understand the importance of what the noble Lord, Lord Lucas, is saying but we believe that the issue is better addressed in the legislation currently proposed. I turn to Amendment 30. The noble Earl, Lord Attlee, is right to draw our attention to the increasing use and importance of satellite navigation systems to support a wide range of important activities in providing both accurate positioning and precise timing. I cannot give the noble Earl the assurance he seeks that either the GPS or the forthcoming Galileo system cannot be jammed. The same is true for all other GNSS services provided by the Russians and the Chinese, among others. Unlike GPS, which was built for the US military, Galileo will be a civilian enterprise. Apart from the free service which will be available to all, and which will be complementary to the GPS service, there will be four other signals for commercial and public use. One of these will be encrypted and will provide protection from spoofing signals that can be the basis of a denial-of-service attack. These channels will be used in many applications, including those that are safety critical. The protection of the critical national infrastructure is a key aspect of our national security policy. The Government have tasked the Centre for the Protection of National Infrastructure to engage with the management of such infrastructure to improve its security and resilience. This activity is not defined in statute and it would be wrong for the discretion of the authorities to define what is critical to be unduly fettered in that way. Nevertheless, I can assure the noble Earl that the use of global navigation systems in the critical infrastructure is a matter of interest to CPNI and the relevant government departments. CPNI working with industry is the right way to manage any risk in this area. I note that the noble Earl believes that a combination of GPS and the Loran land-based system would give us diversity and resilience. It is now a matter of public knowledge that the US authorities intend to remove funding from a large part of the Loran network that they support. The implications of such a decision for the future of the Loran network or future enhancements have yet to be assessed. We should not rely solely on the Loran system to provide diversity. The Galileo system is on track. The Government believe that it will provide value for money and diversity of supply and will benefit those who increasingly use location and timing services. Against that background, I believe that it is unhelpful to give Ofcom a separate and narrowly focused duty to report on a service that does not fall within its existing remit. In the light of the points I have made, I hope that the noble Lord and the noble Earl will consider not pressing this group of amendments.