Digital Markets, Competition and Consumers Bill

Baroness Kidron Excerpts

2nd reading
Tuesday 5th December 2023 Lords Chamber

[Baroness Kidron (CB)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Ritchie of Downpatrick. I declare my interest as set out in the register as adviser to the Institute for Ethics in AI at Oxford and the Digital Futures Commission at LSE, and chair of 5Rights Foundation.

Like other noble Lords, I welcome the Bill. I can claim to be an enthusiastic advocate for democratic oversight of the power of tech, corporations, their products and services and the externalities on society. While my primary focus is on the detail of the regulatory regime brought forward by the Online Safety Act and the opportunities and problems of the upcoming Data Protection and Digital Information Bill, this Bill represents an enormously important piece of the puzzle of digital regulation. I hope that the Minister has recognised the warm glow of agreement across the House, which we put to such good effect during the passage of the then Online Safety Bill, and that we will have a similar outcome during the passage of this Bill.

One aspect of working on digital regulation is that however fundamental it is to the lives and outcomes of UK citizens, its importance is often obscured by language and concepts that very few people engage with—holdover computer power, large or specialist datasets, automated decisions, synthetic information and so on. It means that debates like the one we are having today and the public discourse outside your Lordships’ House are confined to small interest groups. Yet I am often struck by the number of times somebody raises with me the feeling of being forced into using certain products; the fierce hold over small business by the app stores and search; the powerlessness of creators; or the ubiquity and damage that fake reviews do to both legitimate businesses and unsuspecting consumers. Or they simply express the idea that the deal they thought they had made is not the deal they got.

Any concentration of power is disfiguring of democratic societies and ultimately consumers come to feel that asymmetry of power, even if they cannot speak to it. The concentration of market power in the digital marketplace is no different. Here, I want to make it utterly clear that the tech lobby move to make consumer benefit the paramount criterion for exercising DMU judgment must be looked at in detail in Committee. Consumers often have long-term interests that are vastly different to the shiny, superficial, short-term consumer gains so often trumpeted by the sector.

Before the Government published their amendments on Report in the other place, I was asked what I thought of the Bill by someone rather senior. I replied, somewhat jokingly, that it depended almost entirely on how successful the tech sector lobbying over the summer had been. That is about the size of it. What the Government put forward was a thoughtful and robust legislative proposal which sought to deploy greater nuance than similar proposals in other jurisdictions. Happily, while the worst of the lobbying has not materialised in the Bill, I am afraid that it remains the case that, were the Government to hold firm and to set the final bar closer to where it was before Report, it would be rather better for it. I will quote the noble Baroness, Lady Stowell, who wrote in an article in the Times—rather brilliantly:

“This is a bill the government got right the first time, it must not now second-guess itself”.


Today, I want to briefly raise a number of points that I am sure we will look at in great detail in Committee. Many of them have been raised by others, so I will try to do so quickly. Over the last decade, I have repeatedly seen regulators going toe to toe with companies with seemingly unlimited resources and falling back on “advising”, “working with” and “taking on only the winnable action”. The Bill as it stands enforces many duties on the CMA to consult and consider representations during its work. In the context of litigious companies with limitless cash, this encourages regulators fearing judicial review to consult on what the rules should be, rather than publishing their regime and inviting the sector to raise reasonable concerns. It is the perfect route for regulatory capture, and I am afraid I have seen it elsewhere. We are making the law, and the regulator, not the industry, should interpret Parliament’s intent. I wholly support, and I practise, high engagement with the sector, but a regulator must not be strung up by requirements such as those in Clauses 6, 20, 114 and others.

For the same set of reasons, I trust that the counter- vailing benefits clause, Clause 29, will get the full power of scrutiny from your Lordships’ House. It must not become a corridor by which strategic market status firms can avoid requirements set out in the Bill. It is the statutory duty of the CMA and DMU to promote competition: surely, in the digital context it is those firms that hold the most power that we most want to regulate to allow a rich environment for challenger and growing businesses, as well as consumer benefit.

I strongly support the push from publishers, including small and independent publishers and groups such as the Public Interest News Foundation, for the Bill to be amended to include citizens’ interests to be considered for a competitive, pluralistic press in this country. Such an amendment would align with the advice from the Digital Markets Taskforce, which advised the Government on the regime as the Bill was being developed. I think it would also send a strong and unequivocal signal that your Lordships’ House backs strong, independent journalism.

Like the noble Lord, Lord Fox, I have concerns about the unmet need for collective action, which is a problem across all our digital regulation. Digital is a complex area of law, it is technical to prove wrongdoing and hard for a non-expert to know which law is being broken: data, consumer, harms, IP, privacy and so on. We did not get an adequate redress system in the Online Safety Act and we will undoubtedly discuss it again during the passage of the DPDI Bill, so I ask the Minister whether he is open to discussing this in the round so that we can consider the need for the consumer to be supported across all the regimes. I am glad not to disappoint the noble Baroness, Lady Stowell, because at the same time I would like to revisit the idea of a standing Joint Committee on digital regulation to provide the parliamentary oversight of independent regulation which the pre-legislative committee suggested during the passage of the Online Safety Act.

Finally, I was going to mention the full merits appeal, but I thought the noble Lord, Lord Vaizey, spoke so beautifully on that, as did the noble Lord, Lord Lansley, and the noble Baroness, Lady Stowell, that I shall just associate myself with their words and say that I very much look forward to working with noble Lords across the House on the Bill and that I have learned a great deal during this debate.