Digital Markets, Competition and Consumers Bill

Debate between Grahame Morris and Robert Buckland

Report stage
Monday 20th November 2023 Commons Chamber

[Sir Robert Buckland]

What my hon. Friend outlines is precisely what we are seeking. In making these arguments, we are not in some way the friends of big tech; we are not here to represent a particular sectoral interest. My amendment was drafted by me and by senior counsel from Monckton Chambers, including Philip Moser KC, who regularly appears both for and against big tech in these matters. I thought it right to seek some independent pro bono advice on the operation of competition law to make sure that, in developing the law in this way, we do not create entirely untested mechanisms that would—guess what?—require litigation to clarify.

The point is that we should be seeking to minimise more interpretive language that will require to be tested in the courts. That is why I take slight issue with what was said by the hon. Member for Pontypridd (Alex Davies-Jones), whom I respect very much. In amendment 186, I seek to replace the word “indispensable” with “necessary”, because I think that is a much clearer term that everyone would understand and that would, in itself, be a high threshold for the affected company in demonstrating consumer benefit in the countervailing consumer benefit test.

I think that, rather than trying to use and develop new language, we should look back and learn from the experience of telecoms regulation. One of the problems in, in effect, handing considerable power to the new digital markets unit is that the legal landscape relating to this activity is unformed. Unlike the landscape that underpinned the Competition Act 1998, we do not have the advantage of years of EU and UK court interpretation that was then applied by guidelines issued by the CMA.

[Grahame Morris (Easington) (Lab)]

The right hon. and learned Gentleman is articulate in presenting the case and knowledgeable about the issue, but may I distil it down to an issue of fairness that everyone can understand? Before our very eyes, the landscape is changing. Long-established titles, newspapers and publications are disappearing and retrenching. Thousands of journalists are losing their jobs. Is it not a matter of basic fairness that people who create the content should be properly compensated?

[Sir Robert Buckland]

The hon. Gentleman is right to make that point. That is why in other jurisdictions we have seen agreement reached between big tech and newspaper titles to ensure that there is that element of fairness. I agree with him; I want to see similar fairness and equity applied across the market. What I and others who agree with me are trying to do is to ensure that, in creating this brave new world of energetic and efficient regulation, we do not as a Parliament upset the balance by giving too much power to a particular regulator. A lot of us in this place have watched with concern the failure of other types of regulation—in our water industry or our energy industry, for example. I do not think anybody would deny that, at times, we have got regulation wrong. That is why it is important that we have this debate.

There are people outside this place who have put pressure on us by saying, “The Bill is in perfect order. There is no need for you to look at it any more; great minds have thought about it.” I say to them that it is for this place to make those decisions. I do not look kindly on comments made by the chief executive of the CMA about the merits of what this place is considering while the Bill is in Parliament. I absolutely accept the independence of the CMA and the important role that it plays, but we should not confuse independence with lack of accountability. That is a point that I will warm to in a little while, when I address the relationship between regulators—in this case, the CMA—and Parliament. At the moment, that relationship is wholly inadequate.

I was making the point that, unlike the Competition Act 1998, there is a relative lack of worked-out court interpretation of this Bill’s subject matter. That has led to distinguished commentators—no less than Sir Jonathan Jones, former Treasury counsel—making the point in evidence to the Committee that, in effect, the DMU would be able to decide who was going to regulate, set the rules that apply and then enforce those rules. The phrase “legislator, investigator and executioner” was used. While that is colourful language—perhaps too colourful for a dry debate about competition law—it is important that we reflect on the view of that former Treasury solicitor and be very careful that in going down this road, we are not making false comparisons.

A lot has been said about Ofcom and its decisions, and comparisons have been made, but we must not forget that those Ofcom decisions were heavily governed by EU framework directive 2002/21. Article 4 of that directive says that on ex-ante telecom appeals,

“Member States shall ensure that the merits of the case are duly taken into account and that there is an effective appeal mechanism.”

That is a bit different from the provisions in the Bill. A simple JR-type review is precisely that, and no more.

I listened with interest to the intervention made by my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright), who made a really good point that needs answering. We need to understand where proportionality comes into this. If the principle of proportionality is being used in the first instance, that is all well and good, but we need to understand how that fits with the provisions of the Bill: whether it implies that the courts deem every decision made by the DMU to be proportionate, or whether there is a way to challenge a particular decision by saying that it was not made according to the DMU’s own principles, acting in a proportionate way.

Oral Answers to Questions

Debate between Grahame Morris and Robert Buckland

Tuesday 18th May 2021 Commons Chamber

[Robert Buckland]

My hon. Friend is absolutely right to raise an issue that affects many people. One issue is the embarrassment and shame of people who fall victim to such fraud that they could have been tricked in the first place. Not only is supporting victims to overcome that stigma very much part of the victims code that we introduced in the past month or so, working with the sector, but as we develop the consultation into our new law, there will be opportunities fully to reflect the pernicious nature of online criminality. By helping to design out fraud, the financial services sector can make its greatest contribution to the reduction of such heinous crime.

[Grahame Morris (Easington) (Lab)]

To return to the questions asked earlier by my hon. Friends the Members for St Helens South and Whiston (Ms Rimmer) and for West Ham (Ms Brown) about the loss of prison officer experience due to experienced prison officers leaving the service, will the Secretary of State confirm whether it was the Chancellor himself who vetoed the fair pay rise for frontline prison officers that was recommended by his own experts?

[Robert Buckland]

I remind the hon. Gentleman that in the context of those recommendations, prison officers received rises of between 2.5% and 7.5%. It is right to say that in one specific instance the recommendations of the body were not accepted—we are mindful of our overall duties with regard to the public purse—but I assure the hon. Gentleman that in terms of the recruitment, support and promotion of the vital role of prison officers, the Government will not stint in their unwavering support and encouragement.