Baroness Jolly
Main Page: Baroness Jolly (Liberal Democrat - Life peer)Consumer Rights Bill
Baroness Jolly Excerpts
Lord Stevenson of Balmacara (Lab)
My Lords, like the noble Lord, Lord Clement-Jones, we support an open internet, and it is in that spirit that we have signed up to the amendment. There is a case here for the Government to decide where they think the legislation currently lies, and if it is not clear that Ofcom has the powers that the noble Lord spelt out in some detail, it is important that this is resolved.
I think that it would surprise many people to learn that internet service providers have no obligation to allow their customers to access all the legal internet, despite selling “internet access” to all their customers. If DCMS believes that both existing legislation and new additions within the Bill resolve the issue of mis-selling, it is important that the Government agree with us that clarity should be made beyond peradventure. We need to know whether Ofcom is right that it does not have the powers, in which case the amendment will resolve that. If DCMS and Ofcom agree that the necessary powers do exist, DCMS should say so publicly and make it clear beyond any doubt that Ofcom has the necessary powers to act on any relevant open internet infringements. I look forward to hearing what the Minister has to say.
Baroness Jolly (LD)
My Lords, the debate on this important issue in Committee was a very good one, as my noble friend said. The discussion focused more on the protections for net neutrality than on the specifics of this amendment. I sympathised with the points made and committed to a meeting to discuss them. I thought it important that the relevant interested parties were present, especially Ed Vaizey, the Minister for Culture and the Digital Economy. His diary proved to be completely immovable. The meeting is now in the diary for this Thursday and I am looking forward to it.
It is clear from the discussions so far that this is a really complex area, and one which is causing a great deal of debate both in Europe and across the Atlantic. We believe that we are global leaders in delivering open internet services. In the UK, a competitive market, effective self-regulation and consumer expectation have delivered a much more open internet than perhaps elsewhere.
As noble Lords may be aware, industry has developed two self-regulatory codes of practice—both now with full sign-up from major ISPs, with Vodafone, EE and Virgin Media signing up to the open internet code in recent weeks. This is the code that governs their behaviour and ensures that they do not block services that compete with their own. Mobile operators that restricted some services such as Skype no longer offer new packages that do so. Ofcom, the regulator, has been in dialogue with the provider whose behaviour this clause attempts to address and there is a commitment to review the wording in its terms and conditions to ensure that these are not misinterpreted in any way.
Critics of this self-regulatory regime will say that there is no penalty for falling foul of the open internet code and that ISPs can change their mind about being signatories at any time. While this is true, it is also the case for many other areas that are self-regulated, for example in online advertising, where great strides have been made to ensure a transparent sector. However, it is also true that in the two and a half years since the open internet code was agreed, no breaches have been reported. If there is a significant change in the number of signatories or we see common breaches reported, the Government will look at this again. Consumer expectations are such that we do not envisage this happening again.
In answer to my noble friend’s comments, we have discussed these issues with Ofcom. We agree with Ofcom that there may be some room for interpretation regarding its powers in this area. However, we do not believe that the amendment would deliver the intended restrictions on internet access providers. Furthermore, Ofcom’s analysis of the market for internet access services suggests that there is not an urgent need for intervention. The market is continuing to move towards the comprehensive provision of neutral open internet access services, and there is no evidence of present consumer harm. Therefore, for the time being, and because of the recent developments in this area, we see no evidence of the need for legislation.
However, by way of reassurance, as noble Lords will know, Clause 64(2) in Part 2 of the Bill means that providers will be unable to hide definitions of the service provided—such as broadband access—in the small print, and will have to give them due prominence. The Bill also retains the protections currently in force through the Unfair Terms in Consumer Contract Regulations 1999, which give regulators the powers to tackle such abusive behaviours, if proven. We are also taking a power in the Bill to allow us, after parliamentary scrutiny, to update the grey list. This means that were consumer or trader behaviour to change, or evidence of particular consumer detriment to emerge, we could add terms to the grey list to accommodate that. That could apply in this case should changes by providers not take place or we see a shift in provider behaviour across the board that is not currently evidenced. That means that ISPs will not be able to hide any clauses and that there is a route for action for regulators, should this prove still to be an issue. I believe that that is a more appropriate way to deal with this than legislating at this point, especially given that this is being addressed by the regulator.
We should also be aware of the ongoing process in Europe regarding net neutrality as part of the telecoms single market package. The Government have always championed the self-regulatory approach, but we recognise that not all markets are the same as the UK’s and that there is growing demand for further protections for net neutrality from other member states. It is clear from the European Council that there is the will to include text on net neutrality. We will continue to engage proactively with the European Council on that, and believe that an appropriate solution can be found. The latest text from the Italian presidency shows movement towards a more principles-based and outcome-focused approach, which we believe would be more appropriate.
To conclude, while I am sympathetic to the intentions of the amendment, the Bill is not the right place to do this. Telecoms regulation needs to be handled through telecoms legislation. We do not believe that the amendment will change the regulator’s power in this area; nor do we believe it be necessary at this time, given the market developments. We will continue to engage with the EU in a constructive manner.
I commend my noble friend’s persistence on the issue. The Government are unable to accept his amendment, but I hope that I have offered sufficient assurance to persuade him to withdraw it.
Lord Clement-Jones
My Lords, I thank my noble friend for that reasonably comprehensive response. Although I do not agree with large parts of it, it was comprehensive. It is interesting that the Minister, along with others, seems to have confused the issue of the open internet with net neutrality. They are rather different issues. It will be useful to have that discussion on Thursday. This is not a net neutrality amendment. It is about the enforcement of the open internet principles. I shall not take up the House’s time by explaining the difference, but it is considerable. The Minister’s meeting with me and the industry on Thursday will be helpful.
The Minister’s reply was a mixture of, “The problem has gone away”, “Voluntary agreements will do the business” and “We don’t need the back-up”, but the bottom line, which I find quite baffling, is, “We don’t agree with Ofcom”. The CEO—albeit the outgoing CEO, who may be more frank than an incoming one —was very clear about the powers that Ofcom did and did not have and what he thought was appropriate.
I do not know what discussions there have been between DCMS and Ofcom, but a dialogue of the deaf seems to be going on. I understand what my noble friend said about this not being an urgent need, but I do not believe that the CEO of Ofcom would have gone on the record twice—first on 4 November with the CMS Select Committee and then a fortnight later with the Communications Committee of the House of Lords—unless he thought that this was a live topic.
I note the slightly comforting words of my noble friend that under Clause 64 no small print will henceforth be allowed and that there will be no hiding place. I cannot remember the exact words that she used, but they were ringing phrases. I hope that they will have some substance. There is scepticism whether they will bite in the way my noble friend outlined. We shall see.
As the discussion with the Minister has not yet taken place, I reserve the right to bring this matter back at Third Reading if absolutely necessary but, in the mean time, I beg leave to withdraw the amendment.
Lord Deben (Con)
My Lords, in Suffolk it took us a very long time to get used to getting rid of the word “coomb”, which used to be how we would weigh corn. The problem was that other counties had a different coomb so it was quite difficult to compare one with another. Gradually, we came to terms with the idea that you might have tonnes—which we have now more or less accepted. However, this House should be very careful about this amendment because we are less well qualified to talk about this matter than most. Young people do not have a problem: they have only one system of measurement. My young are in their 20s and 30s. If I say, “Oh, it’s about 22 yards away”, they have no idea what I am talking about. One reason why the Daily Telegraph has been losing readers is that it still uses only imperial measures, which limits one’s audience to a particular age. Given its views, that is probably quite suitable for that newspaper.
There is a simple way around this, and I want to ask the Minister to help me. It is perfectly reasonable for an aged gentleman doing his shopping to be able to ask for a pound of apples. I can see that if you have never asked for half a kilo, it is somewhat difficult. Equally, it is perfectly reasonable for shops at a local level to make that kind of arrangement. But we have had from my noble friend Lord Taverne an example of something quite different, and that is the railway industry. If that industry cannot use one system, and if we cannot organise people to use one system for measurements, what then? Of course we could go back to using imperial measurements, but it is more difficult to add up, multiply and divide using that system. I remember that there are 1,760 yards in a mile, but most people who are aged under 40 do not.
This seems to me to be one of the most footling battles I have ever heard of. It really is not sensible to say that our sovereignty is being impinged by a system that is easier for us all and which means that we can communicate with people. We would still have to talk to them even if we were not in the European Union—it would be very silly indeed to suggest that—so would it not be a good idea to use the same language? The people who want to carry on with imperial measures grow fewer and fewer as the days go by.
I would like us to take one tiny step—I hope that the Minister will be able to say something by way of encouragement—which is that in all areas that are not about the immediate local connection between a shopkeeper and a shopper, only one measurement shall be used. That should not be too difficult to achieve. The shoppers and shopkeepers will change as they die off. Indeed, I notice that in my local village shop there are people who ask for their goods in either one measurement or the other. That will change and it can happen as slowly as we want, but surely any normal business-to-business activity—all of us now know what the term B2B means—ought always to be carried out using metric measurements.
I end by saying that I am experienced in this because a friend of mine was the chairman of the Anti-Metrication Board, an organisation set up by those who felt that something deeply awful was happening to Britain. I know that my noble friend takes that view on most things. The board had a mystical view about the fact that you could not measure ley lines using the metric system. There are few in this House who wish to measure ley lines. I am happy if the Government decide that in future ley lines may be measured only using the imperial system, but could they please ensure that all normal, reasonable activities other than the very smallest ones can be done using one of the most remarkable inventions of all? It took the great step from Roman numerals to Arabic numerals one stage further and gave us a system that even I can use simply and surely. Please let us not go on fighting a battle against Napoleon.
Baroness Jolly
My Lords, I start by thanking my noble friend Lord Taverne for his well considered speech and the thorough explanation of his amendments. UK weights and measures legislation works by focusing regulation on measurements and equipment that are in “use for trade”. This ensures that the primary focus is on those transactions where consumers need to know the quantity they are purchasing, how it compares to alternatives, and that they can rely on the quantity being accurate. The fundamental principle behind weights and measures policy is that every measurement used for the purpose of “use for trade” should be subject to the minimum level of regulation to ensure that businesses and consumers are protected against short measure and can have confidence in measurements.
Any transactions being made by reference to quantity or any statement of quantity made or implied in relation to a transaction is caught by the term “use for trade”. It applies widely and is intended to apply not just to the transaction itself but to any use,
“in connection with or with a view to”,
a use for trade—perhaps that is B2B. That would already cover most advertisements or product descriptions for goods. However, there are some cases, of which my noble friend highlighted several examples, where a product is not being sold on the basis of quantity and so the unit itself is not being used “in use for trade”. In these cases the usage would fall within the more general rules on what constitutes a legal unit as set out in the Units of Measurement Regulations.
This additional legislation, outside the Weights and Measures Act, makes it clear that metric units are the legal unit for any purposes beyond “use for trade”. Therefore, the use of a non-metric unit in the examples given by my noble friend are already not legal uses under the existing legislation. The Government are not aware of any significant demand from business or consumers to extend the scope of offences under the Weights and Measures Act to cover uses of units of measurement beyond “use for trade” or to extend what is caught by “use for trade”.
However, this morning I was glad to meet my noble friend and officials in order to talk through the issue. He raised an important point about how product descriptions and advertisements are being used in the marketplace, and the potential impact on consumer protection. We have tried to clarify the issue. The Government will commit to taking this forward with the relevant industry bodies to remind them of the current legal position and the importance of providing clarity for consumers. I hope that in due course we will not have a mixture of square metres and square feet when describing rooms so that we can purchase carpets more easily. As my noble friend stated, the Government do not believe that it is in the national interest for further metrication to take place against the wishes of the UK public. I fear that my noble friend’s bid for total metrification will have to wait a while—but I sincerely hope not 800 years.
While my noble friend has clearly targeted his amendments at units of measurement, I would be concerned at the risk of unintended consequences from making any extension to the scope of weights and measures law and the risk of causing confusion by duplicating existing legislation. The UK is already a metric nation, along with most of the rest of the world, as my noble friend said. The majority of UK businesses and the public sector switched to metric units almost 20 years ago. The vast majority of trade is now undertaken using metric units, and metric has been taught as the primary unit of measurement in UK schools ever since 1974. Over time, public support for metric units is increasing, and as we have heard, especially among young people. Businesses that are not providing metric units risk losing business as more and more people are using metric in everyday life. My noble friend Lord Deben asked why single units could not be required for other purposes. These uses are already regulated, and metric units are the legal measurements required under the Units of Measurement Regulations. However, imperial units can always be permitted as a supplementary indicator.
I hope that noble Lords are reassured that “use for trade” already applies widely and catches all transactions which are based on quantity. Even in those cases where “use for trade” does not apply, the legal units are already defined in law. Therefore, I ask my noble friend to withdraw the amendment.
Lord Taverne
My Lords, my Amendment 40B might possibly have unintended consequences and I was not going to move it. If the Government do in fact live up to their promise and ensure that the professions and those responsible for enforcement tell people exactly what the law is, which is that it requires that metric units should take priority even in advertisements and descriptions, that will meet my objections. I am very happy to withdraw the amendment.
Baroness Jolly
“Contravention of code regulating premium rate services
(1) In section 120(3) of the Communications Act 2003 (conditions under section 120 must require compliance with directions given in accordance with an approved code or with an order under section 122) before paragraph (a) insert—
“(za) the provisions of an approved code;”.(2) In section 121(5) of that Act (provision about enforcement that may be made by approved code) after paragraph (a) insert—
“(aa) provision that applies where there is or has been more than one contravention of the code or directions given in accordance with it by a person and which enables—according to whether the person imposing the penalty determines that a single penalty or separate penalties are appropriate and proportionate to those contraventions;”.(i) a single penalty (which does not exceed that maximum penalty) to be imposed on the person in respect of all of those contraventions, or(ii) separate penalties (each of which does not exceed that maximum penalty) to be imposed on the person in respect of each of those contraventions,according to whether the person imposing the penalty determines that a single penalty or separate penalties are appropriate and proportionate to those contraventions;”.(3) Section 123 of that Act (enforcement by OFCOM of conditions under section 120) is amended as follows.
(4) After subsection (1) insert—
“(1A) Subsection (1B) applies where a notification under section 94 as applied by this section relates to more than one contravention of—
(a) a code approved under section 121,(b) directions given in accordance with such a code, or (c) an order under section 122.(1B) Section 96(3) as applied by this section enables OFCOM to impose—
(a) a single penalty in respect of all of those contraventions, or(b) separate penalties in respect of each of those contraventions,according to whether OFCOM determine that a single penalty or separate penalties are appropriate and proportionate to those contraventions.”(5) In subsection (2) (maximum amount of penalty) for “the penalty” substitute “each penalty”.”
Baroness Jolly
My Lords, when you donate to a charity using a five or six digit short text code, or call directory enquiries for a number you need or have forgotten, you are more than likely to be using premium rate services. These are added-value services, products or content that consumers can purchase by charging the cost to their phone bill or mobile pre-pay account. While these services can, and do, offer enjoyment, convenience and speed of access to users, they also demonstrate certain characteristics which have the potential to give rise to harm, in the absence of effective regulation. For this reason, it is equally important that companies comply with the rules set out by the regulator’s code of practice, which serves to ensure consumers are treated fairly and not misled or taken advantage of.
PhonepayPlus regulates the market for premium rate services, and its code of practice, having been approved by Ofcom, sets out the regulatory framework for the industry, outlining the rules and required standards for every company involved in providing premium rate services to UK consumers. For example, a person or company providing premium rate services must be up front about the services they offer, and how much they cost, before users make any purchases. They must also treat consumers fairly and resolve complaints quickly.
Under the Communications Act 2003, PhonepayPlus can impose a penalty in respect of breaches of the code. The regulator has interpreted this to mean that it can impose £250,000 in respect of each provision of the code that is breached. The proposed amendment is intended to make it absolutely clear that where it is appropriate and proportionate, the maximum fine available to the regulator is indeed for each provision of the code that has been breached. Therefore, in the event of a company making two serious contraventions of the code, the regulator could impose a fine of up to £500,000, if that is deemed appropriate and proportionate.
This clarification will impact only on the premium rate service companies whose contravention of the rules is serious. It will not impact on the majority of businesses, which are compliant. The clarification is important to the regulator so that effective sanctions continue to be available for the most serious breaches of the code, which is there to ensure that consumers are not harmed by premium rate services and can use them safely and confidently. By clarifying the regulator’s fining powers, the amendment is an important tool in ensuring the continued existence of a sufficient deterrent to non-compliant behaviour by companies or people providing premium rate services. I beg to move.