Digital Markets, Competition and Consumers Bill

Debate between Lord Black of Brentwood and Lord Holmes of Richmond

Committee stage
Wednesday 24th January 2024 Grand Committee

[Lord Holmes of Richmond (Con)]

My Lords, it is a pleasure to take part in day two of Committee on the DMCC Bill. Again, I declare my interest as an adviser to Boston Limited.

It is a pleasure to follow the introduction from my noble friend Lord Faulks. I think is highly appropriate that we discuss proportionality. I have a number of amendments in my name in this group: Amendments 33, 52 and 220, and then the rather beautifully double Nelsonian, Amendment 222. Essentially, a considerable amount of work needs to be done before we can have proportionality going through the Bill in its current form. My amendments suggest not only addressing that but looking at counter- vailing benefits exemptions and financial penalties.

Agreeing with pretty much everything that has been said, and with the tone and spirit of all the amendments that have been introduced thus far, I will limit my remarks to Amendment 222. It suggests that regulations bringing into force Clauses 19, 21, 46 and 86

“may not be made until the Secretary of State has published guidance”

going into the detail of how all this will operate in reality.

Proportionality is obviously a key element, as has already been discussed, this is just as important, as we will come on to in the next group. My Amendment 222 straddles the groups a bit, under the vagaries of grouping amendments, but it is nevertheless all the better for it.

I look forward to hearing my noble friend the Minister’s response on proportionality, countervailing benefits exemptions and financial penalties, and on the need for clear, detailed guidance to come from the Secretary of State before any moves are made in any and all of these areas.

[Lord Black of Brentwood (Con)]

My Lords, I am afraid I am going to play the role of Little Sir Echo here. I hope that the unanimity expressed so far will send a strong message to my noble friend the Minister. I support Amendment 16 in the name of the noble Lord, Lord Faulks, to which I have added my name, and Amendments 17, 53 and 54. I note my interests as declared at the start of Committee.

As I made clear in my remarks on Second Reading, we must, throughout the consideration of the Bill, steadfastly avoid importing anything into the CMA and DMU procedures that would allow the platforms to deploy delaying tactics and tie up the regulators in endless legal knots. Long legal wrangling will destroy the very essence of the Bill, and it is not mere speculation to suggest that this might happen. As we have seen elsewhere in the world, and indeed in publishers’ own existing dealings with the platforms, we do not need to gaze into a crystal ball; we can, as the noble Lord, Lord Tyrie, put it the other day, read the book.

In that light, as we have heard consistently this afternoon, I fear that the government amendments made in the other place, requiring the conduct requirements and PCIs to be proportionate rather than appropriate, do just that. They impose significant restrictions on the work of the CMA and, as an extremely helpful briefing—which I think all Members have had—from Which? put it, produce “a legal quagmire” that would allow the unaccountable platforms

“with their vast legal budgets … to push back against each and every decision the regulator takes”.

It is simply counterintuitive to the design of the flexible and participatory framework the legislation portends. As my noble friend Lady Stowell said, it certainly makes me very nervous.

The key point is that introducing the concept of proportionality is, frankly, totally otiose, as the noble Lord, Lord Faulks, put it so well, as proportionality is already tested by judicial review—something the CMA itself has already reiterated. The courts, in this novel area of legislation, will rely on Parliament clearly to state its intentions. Introducing the concept of proportionality not only is unnecessary but in fact muddies the waters and creates confusion that will be mercilessly used by the platforms. It certainly does not produce clarity. The Government really must think again.

--- Later in debate ---

[Lord Holmes of Richmond (Con)]

May I build on that before my noble friend the Minister responds? What precisely was inappropriate about “appropriate”?

[Lord Black of Brentwood (Con)]

My Lords, this is not just to prevent the Minister getting up again; it is relevant to both points that have just been made. A number of noble Lords asked whether this huge volte-face by the Government between the publication of the Bill and the amendments made very late in the other place came about as a result of pressure from the platforms. Could he tell us whether the platforms lobbied for this change and whether he discussed it with them?

Deregulation Bill

Debate between Lord Black of Brentwood and Lord Holmes of Richmond

Tuesday 11th November 2014 Grand Committee

[Lord Holmes of Richmond]

Work with me. This amendment is incredibly straightforward. It goes to the heart of one question: why should terrestrial television in the United Kingdom subsidise Sky, Virgin and other providers? More significantly, why should we as taxpayers put money into the pockets of the owners of those companies? As a nation, our terrestrial television is some of the best in the world, of which we should be rightly proud. We have brilliant drama, fabulous sport and exceptional television across the piece. Just look at what Channel 4 did with the Paralympics in the summer of 2012. For me, it is no more complicated than that. It is an out-of-date clause. One can see why it existed way back when. Now the Deregulation Bill gives us the right opportunity to wipe it out. We should all accept this amendment.

[Lord Black of Brentwood (Con)]

My Lords, I very much support this important amendment. Although I have no direct involvement with the broadcasting sector, I should draw attention to my media interests in the register. This debate and this amendment impact on the creative economy and the wider media, particularly in relation to news provision. As we have heard, the pace of technological change across the whole of the media is breathtaking. It is relentless and punishing. It is difficult enough to plan for even one month ahead sometimes, let alone one year. As my noble friend Lord Grade said, we need to look very carefully and very warily at legislation binding the media that is 26 years old and is, to all intents and purposes, from a bygone age, especially where it has implications for jobs and investment.

Where legislation is out of date—Section 73 of the 1988 Act clearly is—it should go. If ever I saw a piece of law that should be put out of its misery, it is this one. That is why the debate on this amendment is so important. Central to it is the health of our public sector broadcasters, who are, in turn, crucial to the sustainability and vibrancy of the whole creative economy. These commercial PSBs have a number of important public service obligations, including obligations to broadcast high levels of original content; significant quotas for spending outside London, as the noble Lord, Lord Macdonald, made clear, and on independent production; and the provision of national and regional news services and current affairs.

We had glimpses earlier of the fact that the UK is fortunate in having such a PSB system that guarantees the provision of well resourced, independent and impartial news from the BBC and the commercial PSBs—ITV, Channel 4 and Channel 5. All the evidence shows that viewers expect and benefit from effective competition between providers of TV news at national and regional levels. In the regions, ITV is the only competitor to the BBC and provides services to 16 different regions, including the Scottish Borders, as we have heard, ensuring that viewers across the country receive a relevant and local news service. Regional news is important, not only because it helps to keep people informed about local events but because it is a hugely important part of the UK democratic process.

That is why the amendment is important, and why we need to do everything we can to defend the system. To do so, though, we need to be clear that PSB needs to be commercially successful. There are two keys to that. First, the PSB framework has offered the direct benefit of access to the digital terrestrial television spectrum and an appropriately prominent position on the EPG, as the noble Lord, Lord Grade, said. These benefits are crucial to the continued viability of regional news in particular, which is very expensive to make. Without that direct benefit, it is very doubtful that high-quality regional TV news would be viable commercially.

Secondly, the ability of the commercial PSBs to earn a return on investments in original UK TV content is massively important. It is the commercial PSBs that offer by far the most watched news services in the UK after the BBC, at no cost to the taxpayer, and those services depend on continued commercial success in a wide variety of genres of programming.

I support the amendment because I care about our PSB system and the role of news within it. It is more important than ever that the commercial PSBs can make a successful return on their investments and retain their ability to sustain this hugely important public service. Section 73 of the Copyright, Designs and Patents Act 1988, which was designed in a bygone analogue era, is undermining the PSB system and, in turn, damaging the wider creative economy. I hope that my noble friend will have listened to the arguments and that the Government will consider accepting the amendment.