Data (Use and Access) Bill [HL]

Lord Clement-Jones Excerpts

2nd reading
Tuesday 19th November 2024 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I draw attention to my AI interests in the register. I thank the Minister for her upbeat introduction to the Bill and all her engagement to date on its contents. It has been a real pleasure listening to so many expert speeches this afternoon. The noble Lord, Lord Bassam, did not quite use the phrase “practice makes perfect”, because, after all, this is the third shot at a data protection Bill over the past few years, but I was really taken by the vision and breadth of so many speeches today. I think we all agree that this Bill is definitely better than its two predecessors, but of course most noble Lords went on to say “but”, and that is exactly my position.

Throughout, we have been reminded of the growing importance of data in the context of AI adoption, particularly in the private and public sectors. I think many of us regret that “protection” is not included in the Bill title, but that should go hand in hand if not with actual AI regulation then at least with an understanding of where we are heading on AI regulation.

Like others, I welcome that the Bill omits many of the proposals from the unlamented Data Protection and Digital Information Bill, which in our view— I expect to see a vigorous shake of the head from the noble Viscount, Lord Camrose—watered down data subject rights. The noble Lord, Lord Bassam, did us a great favour by setting out the list of many of the items that were missing from that Bill.

I welcome the retention of some elements in this Bill, such as the digital registration of birth and deaths. As the noble Lord, Lord Knight, said, and as Marie Curie has asked, will the Government undertake a review of the Tell Us Once service to ensure that it covers all government departments across the UK and is extended to more service providers?

I also welcome some of the new elements, in particular amendments to the Online Safety Act—essentially unfinished business, as far back as our Joint Committee. It was notable that the noble Lord, Lord Bethell, welcomed the paving provisions regarding independent researchers’ access to social media and search services, but there are questions even around the width of that provision. Will this cover research regarding non-criminal misinformation on internet platforms? What protection will researchers conducting public interest research actually receive?

Then there is something that the noble Baroness, Lady Kidron, Ian Russell and many other campaigners have fought for: access for coroners to the data of young children who have passed away. I think that will be a milestone.

The Bill may need further amendment. On these Benches we may well put forward further changes for added child protection, given the current debate over the definition of category 1 services.

There are some regrettable omissions from the previous Bill, such as those extending the soft opt-in that has always existed for commercial organisations to non-commercial organisations, including charities. As we have heard, there are a considerable number of unwelcome retained provisions.

Many noble Lords referred to “recognised legitimate interests”. The Bill introduces to Article 6 of the GDPR a new ground of recognised legitimate interest, which counts as a lawful basis for processing if it meets any of the descriptions in the new Annex 1 to the GDPR in Schedule 4 of the Bill. The Bill essentially qualifies the public interest test under Article 6(1)(e) of the GDPR and, as the noble Lord, Lord Vaux, pointed out, gives the Secretary of State powers to define additional recognised legitimate interests beyond those in the annex. This was queried by the Constitution Committee, and we shall certainly be kicking the tyres on that during Committee. Crucially, there is no requirement for the controller to make any balancing test, as the noble Viscount, Lord Colville, mentioned, taking the data subject’s interests into account. It just needs to meet the grounds in the annex. These provisions diminish data protection and represent a threat to data adequacy, and should be dropped.

Almost every noble Lord raised the changes to Article 22 and automated decision-making. With the exception of sub-paragraph (d), to be inserted by Clause 80, the provisions are very similar to those of the old Clause 14 of the DPDI Bill in limiting the right not to be subject to automated decision-making processing or profiling to special category data. Where automated decision-making is currently broadly prohibited with specific exceptions, the Bill will permit it in all but a limited set of circumstances. The Secretary of State is given the power to redefine what ADM actually is. Again, the noble Viscount, Lord Colville, was right in how he described what the outcome of that will be. Given the Government’s digital transformation agenda in the public sector and the increasing use of AI in the private sector, this means increasing the risk of biased and discriminatory outcomes in ADM systems.

Systems such as HART, which predicted reoffending risk, PredPol, which was used to allocate policing resources based on postcodes, and the gangs matrix, which harvests intelligence, have all been shown to have had discriminatory effects. It was a pleasure to hear what the noble Lord, Lord Arbuthnot, had to say. Have the Government learned nothing from the Horizon scandal? As he said, we need to move urgently to change the burden of proof for computer evidence. What the noble Earl, Lord Errol, said, in reminding us of the childlike learning abilities of AI, was extremely important in that respect. We should not put our trust in that way in the evidence given by these models.

ADM safeguards are critical to public trust in AI, and our citizens need greater not less protection. As the Ada Lovelace Institute says, the safeguards around automated decision-making, which exist only in data protection law, are more critical than ever in ensuring that people understand when a significant decision about them is being automated, why that decision has been made, and the routes to challenge it or ask for it to be decided by a human. The noble Viscount, Lord Colville, and the noble Lord, Lord Holmes, set out that prescription, and I entirely agree with them.

This is a crucial element of the Bill but I will not spend too much time on it because, noble Lords will be very pleased to hear, I have a Private Member’s Bill on this subject, providing much-needed additional safe- guards for ADM in the public sector, coming up on 13 December. I hope noble Lords will be there and that the Government will see the sense of it in the meantime.

We have heard a great deal about research. Clause 68 widens research access to data. There is a legitimate government desire to ensure that valuable research does not have to be discarded because of a lack of clarity around reuse or because of very narrow distinctions between the original and new purpose. However, it is quite clear that the definition of scientific research introduced by the Bill is too broad and risks abuse by commercial interests. A number of noble Lords raised that, and I entirely agree with the noble Baroness, Lady Kidron, that the Bill opens the door to data reuse and mass data scraping by any data-driven product development under the auspices of scientific research. Subjects cannot make use of their data rights if they do not even know that their data is being processed.

On overseas transfers, I was very grateful to hear what the noble and learned Lord, Lord Thomas, had to say about data adequacy, and the noble Lords, Lord Bethell, Lord Vaux and Lord Russell, also raised this. All of us are concerned about the future of data adequacy, particularly the tensions that are going to be created with the new Administration in the US if there are very different bases for dealing with data transfer between countries.

We have concerns about the national security provisions. I will not go into those in great detail, but why do the Government believe that these clauses are necessary to safeguard national security?

Many noble Lords raised the question of digital verification services. It was very interesting to hear what the noble Earl, Lord Erroll, had to say, given his long-standing interest in this area. We broadly support the provisions, but the Constitution Committee followed the DPRRC in criticising the lack of parliamentary scrutiny of the framework to be set by the Secretary of State or managed by DSIT. How will they interoperate with the digital identity verification services being offered by DSIT within the Government’s One Login programme?

Will the new regulator be independent, ensure effective governance and accountability, monitor compliance, investigate malicious actors and take enforcement action regarding these services? For high levels of trust in digital ID services, we need high-quality governance. As the noble Lord, Lord Vaux, said, we need to be clear about the status of physical ID alongside that. Why is there still no digital identity offence? I entirely agreed with what the noble Lords, Lord Lucas and Lord Arbuthnot, said about the need for factual clarity underlying the documents that will be part of the wallet—so to speak—in terms of digital ID services. It is vital that we distinguish and make sure that both sex and gender are recorded in our key documents.

There are other areas about which we on these Benches have concerns, although I have no time to go through them in great detail. We support the provisions on open banking, which we want to see used and the opportunities properly exploited. However, as the noble Lord, Lord Holmes, said, we need a proper narrative that sells the virtues of open banking. We are concerned that the current design allows landlords to be given access to monitoring the bank accounts of tenants for as long as an open banking approval lasts. Smart data legislation should mandate that the maximum and default access duration be no longer than 24 hours.

A formidable number of noble Lords spoke about web trawling by AI developers to train their models. It is vital that copyright owners have meaningful control over their content, and that there is a duty of transparency and penalties for scraping news publisher and other copyrighted content.

The noble and learned Lord, Lord Thomas, very helpfully spoke about the Government’s ECHR memorandum. I do not need to repeat what he said, but clearly, this could lead to a significant gap, given that the Retained EU Law (Revocation and Reform) Act 2023 has not been altered and is not altered by this Bill.

There are many other aspects to this. The claims for this Bill and these provisions are as extravagant as for the old one; I think the noble Baroness mentioned the figure of £10 billion at the outset. We are in favour of growth and innovation, but how will this Bill also ensure that fundamental rights for the citizen will be enhanced in an increasingly AI-driven world?

We need to build public trust, as the noble Lord, Lord Holmes, and the noble Baroness, Lady Kidron, said, in data sharing and access. To achieve the ambitions of the Sudlow review, there are lessons that need to be learned by the Department of Health and the NHS. We need to deal with edtech, as has been described by a number of noble Lords. All in all, the Government are still not diverging enough from the approach of their predecessor in their enthusiasm for the sharing and use of data across the public and private sectors without the necessary safeguards. We still have major reservations, which I hope the Government will respond to. I look forward—I think—to Grand Committee.

Generative AI: Intellectual Property Rights

Lord Clement-Jones Excerpts

Monday 11th November 2024 Lords Chamber

Asked by

[Lord Clement-Jones]

To ask His Majesty’s Government, following the recommendation of the Vallance review of the regulation of emerging digital technologies, whether they plan to set out a policy position on the relationship between intellectual property rights and the training of generative AI models.

[The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)]

My Lords, the AI and creative sectors are both essential to our mission to grow the UK economy. Our goal is to find the right balance between fostering innovation in AI while ensuring protection for creators and our vibrant creative industries. This is an important but complex area and we are very aware of the need to resolve the issues. We are working with stakeholders to understand their views and will set out our next steps soon.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for that reply, but the Prime Minister, in a recent letter to the News Media Association, said:

“We recognise the basic principle that publishers should have control over and seek payment for their work, including when thinking about the role of AI”.


Will the Minister therefore agree with the House of Lords Communications and Digital Committee and affirm the rights of copyright owners in relation to their content used for training purposes on large language models? Will she rule out any widening of the text and data-mining exception and include in any future AI legislation a duty on developers to keep records of the material and data used to train their AI models?

[Baroness Jones of Whitchurch (Lab)]

My Lords, I pay tribute to the Lords committee that has considered this issue. We are keen to make progress in this area but it is important that we get it right. The previous Government had this on their table for a long time and were not able to resolve it. The Intellectual Property Office, DSIT and DCMS are working together to try to find a way forward that will provide a solution for creative media and the AI sectors. Ministers—my colleagues Chris Bryant and Feryal Clark—held round tables with representatives of the creative industries and the AI sector recently, and we are looking at how we can take this forward to resolve the many issues and questions that the noble Lord has quite rightly posed for me today.

Communications Act 2003 (Disclosure of Information) Order 2024

Lord Clement-Jones Excerpts

Monday 28th October 2024 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)]

My Lords, this order was laid before the House on 9 September this year. The Online Safety Act lays the foundations of strong protection for children and adults online. I am grateful to noble Lords for their continued interest in the Online Safety Act and its implementation. It is critical that the Act is made fully operational as soon as possible, and the Government are committed to ensuring that its protections are delivered as soon as possible. This statutory instrument will further support the implementation of the Act by Ofcom.

This statutory instrument concerns Ofcom’s ability to share business information with Ministers for the purpose of fulfilling functions under the Online Safety Act 2023, under Section 393 of the Communications Act 2003. This corrects an oversight in the original Online Safety Act that was identified following its passage.

Section 393 of the Communications Act 2003 contains a general restriction on Ofcom disclosing information about particular businesses without consent from the affected businesses, but with exemptions, including where this facilitates Ofcom in carrying out its regulatory functions and facilitates other specified persons in carrying out specific functions. However, this section does not currently enable Ofcom to share information with Ministers for the purpose of fulfilling functions under the Online Safety Act. This means that, were Ofcom to disclose information about businesses to the Secretary of State, it may be in breach of the law.

It is important that a gateway exists for sharing information for these purposes so that the Secretary of State can carry out functions under the Online Safety Act, such as setting the fee threshold for the online safety regime in 2025 or carrying out post-implementation reviews of the Act required under Section 178. This statutory instrument will therefore amend the Communications Act 2003 to allow Ofcom to share information with the Secretary of State and other Ministers, strictly for the purpose of fulfilling functions under the Online Safety Act 2023.

There are strong legislative safeguards and limitations on the disclosure of this information, and Ofcom is experienced in handling confidential and sensitive information obtained from the services it regulates. Ofcom must comply with UK data protection law and would need to show that the processing of any personal data was necessary for a lawful purpose. As a public body, Ofcom is also required to act compatibly with the Article 8 right of privacy under the European Convention on Human Rights.

We will therefore continue to review the Online Safety Act, so that Ofcom is able to support the delivery of functions under the Act where it is appropriate. That is a brief but detailed summary of why this instrument is necessary. I should stress that it contains a technical amendment to deal with a very small legal aspect. Nevertheless, I will be interested to hear noble Lords’ comments on the SI. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for her introduction and for explaining the essence of the SI. We all have a bit of pride of creation in the Online Safety Act; there are one or two of us around today who clearly have a continuing interest in it. This is one of the smaller outcomes of the Act and, as the Minister says, it is an essentially an oversight. I would say that a tidying-up operation is involved here. It is rather gratifying to see that the Communications Act still has such importance, 21 years after it was passed. It is somewhat extraordinary for legislation to be invoked after that period of time in an area such as communications, which is so fast-moving.

My question for the Minister is whether the examples that she gave or which were contained in the Explanatory Memorandum, regarding the need for information to be obtained by the Secretary of State in respect of Section 178, on reviewing the regulatory framework, and Section 86, on the threshold for payment of fees, are exclusive. Are there other aspects of the Online Safety Act where the Secretary of State requires that legislation?

We are always wary of the powers given to Secretaries of State, as the noble Viscount, Lord Camrose, will probably remember to his cost. But at every point, the tyres on legislation need to be kicked to make sure that the Secretary of State has just the powers that they need—and that we do not go further than we need to or have a skeleton Bill, et cetera—so the usual mantra will apply: we want to make sure that the Secretary of State’s powers are proportionate.

It would be very useful to hear from the Minister what other powers are involved. Is it quite a number, were these two just the most plausible or are there six other sets of powers which might not be so attractive? That is the only caveat I would make in this respect.

Online Safety Act 2023 (Priority Offences) (Amendment) Regulations 2024

Lord Clement-Jones Excerpts

Monday 28th October 2024 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)]

My Lords, these regulations were laid before the House on 12 September this year. The Government stated in their manifesto that they would

“use every government tool available to target perpetrators and address the root causes of abuse and violence”

in order to achieve their

“landmark mission to halve violence against women and girls in a decade”.

Through this statutory instrument, we are broadening online platforms’ and search engines’ responsibilities for tackling intimate image abuse under the Online Safety Act. More than one in three women have experienced abuse online. The rise in intimate image abuse is not only devastating for victims but also spreads misogyny on social media that can develop into potentially dangerous relationships offline. One in 14 adults in England and Wales has experienced threats to share intimate images, rising to one in seven young women aged 18 to 34.

It is crucial that we tackle these crimes from every angle, including online, and ensure that tech companies step up and play their part. That is why we are laying this statutory instrument. Through it, we will widen online platforms’ and search engines’ obligations to tackle intimate image abuse under the Online Safety Act. As noble Lords will know, the Act received Royal Assent on 26 October 2023. It places strong new duties on online user-to-user platforms and search services to protect their users from harm.

As part of this, the Act gives service providers new “illegal content duties”. Under these duties, online platforms need to assess the risk that their services will allow users to encounter illegal content or be

“used for the commission or facilitation of a priority offence”.

They then need to take steps to mitigate identified risks. These will include implementing safety-by-design measures to reduce risks and content moderation systems to remove illegal content where it appears.

The Online Safety Act sets out a list of priority offences for the purposes of providers’ illegal content duties. These offences reflect the most serious and prevalent online illegal content and activity. They are set out in schedules to the Act. Platforms will need to take additional steps to tackle these kinds of illegal activities under their illegal content duties.

The priority offences list currently includes certain intimate image abuse offences. Through this statutory instrument, we are adding new intimate image abuse offences to the priority list. This replaces an old intimate image abuse offence, which has now been repealed. These new offences are in the Sexual Offences Act 2003. They took effect earlier this year. The older offence was in the Criminal Justice and Courts Act 2015. The repealed offence covered sharing intimate images where the intent was to cause distress. The new offences are broader; they criminalise sharing intimate images without having a reasonable belief that the subject would consent to sharing the images. These offences include the sharing of manufactured or manipulated images, including so-called deepfakes.

Since these new offences are more expansive, adding them as priority offences means online platforms will be required to tackle more intimate image abuse on their services. This means that we are broadening the scope of what constitutes illegal intimate image content in the Online Safety Act. It also makes it clear that platforms’ priority illegal content duties extend to AI-generated deepfakes and other manufactured intimate images. This is because the new offences that we are adding explicitly cover this content.

As I have set out above, these changes affect the illegal content duties in the Online Safety Act. They will ensure that tech companies play their part in kicking this content off social media. These are just part of a range of wider protections coming into force next spring through the Online Safety Act that will mean that social media companies have to remove the most harmful illegal content, a lot of which disproportionately affects women and girls, such as through harassment and controlling or coercive behaviour.

Ofcom will set out the specific steps that providers can take to fulfil their illegal content duties for intimate image abuse and other illegal content in codes of practice and guidance documentation. It is currently producing this documentation. We anticipate that the new duties will start to be enforced from spring next year once Ofcom has issued these codes of practice and they have come into force. Providers will also need to have done their risk assessment for illegal content by then. We anticipate that Ofcom will recommend that providers should take action in a number of areas. These include content moderation, reporting and complaints procedures, and safety-by-design steps, such as testing their algorithm systems to see whether illegal content is being recommended to users. We are committed to working with Ofcom to get these protections in place as quickly as possible. We are focused on delivering.

Where companies are not removing and proactively stopping this vile material appearing on their platforms, Ofcom will have robust powers to take enforcement action against them. This includes imposing fines of up to £18 million or 10% of qualifying worldwide revenue, whichever is highest.

In conclusion, through this statutory instrument we are broadening providers’ duties for intimate image abuse content. Service providers will need to take proactive steps to search for, remove and limit people’s exposure to this harmful kind of illegal content, including where it has been manufactured or manipulated. I hope noble Lords will commend these further steps that we have taken that take the provisions in the Online Safety Act a useful further step forward. I commend these regulations to the Committee, and I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for her introduction. I endorse everything she said about intimate image abuse and the importance of legislation to make sure that the perpetrators are penalised and that social media outlets have additional duties under Schedule 7 for priority offences. I am absolutely on the same page as the Minister on this, and I very much welcome what she said. It is interesting that we are dealing with another 2003 Act that, again, is showing itself fit for purpose and able to be amended; perhaps there is some cause to take comfort from our legislative process.

I was interested to hear what the Minister said about the coverage of the offences introduced by the Online Safety Act. She considered that the sharing of sexually explicit material included deepfakes. There was a promise—the noble Viscount will remember it—that the Criminal Justice Bill, which was not passed in the end, would cover that element. It included intent, like the current offence—the one that has been incorporated into Schedule 7. The Private Member’s Bill of the noble Baroness, Lady Owen—I have it in my hand—explicitly introduces an offence that does not require intent, and I very much support that.

I do not believe that this is the last word to be said on the kinds of IIA offence that need to be incorporated as priority offences under Schedule 7. I would very much like to hear what the noble Baroness has to say about why we require intent when, quite frankly, the creation of these deepfakes requires activity that is clearly harmful. We clearly should make sure that the perpetrators are caught. Given the history of this, I am slightly surprised that the Government’s current interpretation of the new offence in the Online Safety Act includes deepfakes. It is gratifying, but the Government nevertheless need to go further.

[Baroness Owen of Alderley Edge (Con)]

My Lords, I welcome the Minister’s remarks and the Government’s step to introduce this SI. I have concerns that it misses the wider problems. The powers given to Ofcom in the Online Safety Act require a lengthy process to implement and are not able to respond quickly. They also do not provide individuals with any redress. Therefore, this SI adding to the list of priority offences, while necessary, does not give victims the recourse they need.

My concern is that Ofcom is approaching this digital problem in an analogue way. It has the power to fine and even disrupt business but, in a digital space—where, when one website is blocked, another can open immediately—Ofcom would, in this scenario, have to restart its process all over again. These powers are not nimble or rapid enough, and they do not reflect the nature of the online space. They leave victims open and exposed to continuing distress. I would be grateful if the Government offered some assurances in this area.

The changes miss the wider problem of non-compliance by host websites outside the UK. As I have previously discussed in your Lordships’ House, the Revenge Porn Helpline has a removal rate of 90% of reported non-consensual sexually explicit content, both real and deepfake. However, in 10% of cases, the host website will not comply with the removal of the content. These sites are often hosted in countries such as Russia or those in Latin America. In cases of non-compliance by host websites, the victims continue to suffer, even where there has been a successful conviction.

If we take the example of a man who was convicted in the UK of blackmailing 200 women, the Revenge Porn Helpline successfully removed 161,000 images but 4,000 still remain online three years later, with platforms continuing to ignore the take-down requests. I would be grateful if the Government could outline how they are seeking to tackle the removal of this content, featuring British citizens, hosted in jurisdictions where host sites are not complying with removal.

Independent Pornography Review

Lord Clement-Jones Excerpts

Monday 14th October 2024 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

The noble Lord is absolutely right. The scale of violent images featuring women and girls in our country is intolerable, and this Government will treat it as the national emergency it is. The noble Lord will be pleased to hear that the Government have set out an unprecedented mission to halve violence against women and girls within a decade. We are using every government tool we have to target the perpetrators and address the root cause of violence. That involves many legislative and non-legislative measures, as the noble Lord will appreciate, including tackling the education issue. However, ultimately, we have to make sure that the legislation is robust and that we take action, which we intend to do.

[Lord Clement-Jones (LD)]

My Lords, as the Minister and others have mentioned, there is considerable and increasing concern about deepfake pornographic material, particularly the so-called nudification apps, which can be easily accessed by users of any age. What action will the Government be taking against this unacceptable technology, and will an offence be included in the forthcoming crime and policing Bill?

[Baroness Jones of Whitchurch (Lab)]

The noble Lord raises an important point. Where nudification apps and other material do not come under the remit of the Online Safety Act, we will look at other legislative tools to make sure that all new forms of technology—including AI and its implications for online images —are included in robust legislation, in whatever form it takes. Our priority is to implement the Online Safety Act, but we are also looking at what other tools might be necessary going forward. As the Secretary of State has said, this is an iterative process; the Online Safety Act is not the end of the game. We are looking at what further steps we need to take, and I hope the noble Lord will bear with us.

Watchdogs (Industry and Regulators Committee Report)

Lord Clement-Jones Excerpts

Monday 9th September 2024 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Hunt, and a particular pleasure to follow so closely the comprehensive introduction by our excellent former chair, the noble Lord, Lord Hollick.

As the noble Lord alluded to, the Grenfell report and today’s Statement have been an extremely sobering reminder of the importance of effective regulation and the effective oversight of regulators. The principal job of regulation is to ensure societal safety and benefit—in essence, mitigating risk. In that context, the performance of the UK regulators, as well as the nature of regulation, is crucial.

In the early part of this year, the spotlight was on regulation and the effectiveness of our regulators. Our report was followed by a major contribution to the debate from the Institute for Government. We then had the Government’s own White Paper, Smarter Regulation, which seemed designed principally to take the growth duty established in 2015 even further with a more permissive approach to risk and a “service mindset”, and risked creating less clarity with yet another set of regulatory principles going beyond those in the Better Regulation Framework and the Regulators’ Code.

Our report was, however, described as excellent by the Minister for Investment and Regulatory Reform in the Department for Business and Trade under the previous Government, the noble Lord, Lord Johnson of Lainston, whom I am pleased to see taking part in the debate today. I hope that the new Government will agree with that assessment and take our recommendations further forward.

Both we and the Institute for Government identified a worrying lack of scrutiny of our regulators—indeed, a worrying lack of even identifying who our regulators are. The NAO puts the number of regulators at around 90 and the Institute for Government at 116, but some believe that there are as many as 200 that we need to take account of. So it is welcome that the previous Government’s response said that a register of regulators, detailing all UK regulators, their roles, duties and sponsor departments, was in the offing. Is this ready to be launched?

The crux of our report was to address performance, strategic independence and oversight of UK regulators. In exploring existing oversight, accountability measures and the effectiveness of parliamentary oversight, it was clear that we needed to improve self-reporting by regulators. However, a growth duty performance framework, as proposed in the White Paper, does not fit the bill.

Regulators should also be subject to regular performance evaluations, as we recommended; these reviews should be made public to ensure transparency and accountability. To ensure that these are effective, we recommended, as the noble Lord, Lord Hollick mentioned, establishing a new office for regulatory performance—an independent statutory body analogous to the National Audit Office—to undertake regular performance reviews of regulators and to report to Parliament. It was good to see that, similar to our proposal, the Institute for Government called for a regulatory oversight support unit in its subsequent report, Parliament and Regulators.

As regards independence, we had concerns about the potential politicisation of regulatory appointments. Appointment processes for regulators should be transparent and merit-based, with greater parliamentary scrutiny to avoid politicisation. Although strategic guidance from the Government is necessary, it should not compromise the operational independence of regulators.

What is the new Government’s approach to this? Labour’s general election manifesto emphasised fostering innovation and improving regulation to support economic growth, with a key proposal to establish a regulatory innovation office in order to streamline regulatory processes for new technologies and set targets for tech regulators. I hope that that does not take us down the same trajectory as the previous Government. Regulation is not the enemy of innovation, or indeed growth, but can in fact, by providing certainty of standards, be the platform for it.

At the time of our report, the IfG rightly said:

“It would be a mistake for the committee to consider its work complete … new members can build on its agenda in their future work, including by fleshing out its proposals for how ‘Ofreg’ would work in practice”.


We should take that to heart. There is still a great deal of work to do to make sure that our regulators are clearly independent of government, are able to work effectively, and are properly resourced and scrutinised. I hope that the new Government will engage closely with the committee in their work.

AI Technology Regulations

Lord Clement-Jones Excerpts

Tuesday 30th July 2024 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

I thank my noble friend for those good wishes. Of course, he is raising a really important issue of great concern to all of us. During the last election, we felt that the Government were well prepared to ensure the democratic integrity of our UK elections. We did have robust systems in place to protect against interference, through the Defending Democracy Taskforce and the Joint Election and Security Preparedness unit. We continue to work with the Home Office and the security services to assess the impact of that work. Going forward, the Online Safety Act goes further by putting new requirements on social media platforms to swiftly remove illegal misinformation and disinformation, including where it is AI-generated, as soon as it becomes available. We are still assessing the need for further legislation in the light of the latest intelligence, but I assure my noble friend that we take this issue extremely seriously. It affects the future of our democratic process, which I know is vital to all of us.

[Lord Clement-Jones (LD)]

My Lords, I welcome the creation of an AI opportunities plan, announced by the Government, but, as the noble Lord, Lord Knight, says, we must also tackle the risks. In other jurisdictions across the world, including the EU, AI-driven live facial recognition technology is considered to seriously infringe the right to privacy and have issues with accuracy and bias, and is being banned or restricted for both law enforcement and business use. Will the Government, in their planned AI legislation, provide equivalent safeguards for UK citizens and ensure their trust in new technology?

[Baroness Jones of Whitchurch (Lab)]

I thank the noble Lord for that question and for all the work he has done on the AI issue, including his new book, which I am sure is essential reading over the summer for everybody. I should say that several noble Lords in this Chamber have written books on AI, so noble Lords might want to consider that for their holiday reading.

The noble Lord will know that the use and regulation of live facial recognition is for each country to decide. We already have some regulations about it, but it is already governed by data protection, equality and human rights legislation, supplemented by specific police guidance. It is absolutely vital that its use is only when it is necessary, proportionate and fair. We will continue to look at the legislation and at whether privacy is being sufficiently protected. That is an issue that will come forward when the future legislation is being prepared.

Digital Markets, Competition and Consumers Bill

Lord Clement-Jones Excerpts

Consideration of Commons amendments
Thursday 23rd May 2024 Lords Chamber

[Lord Moynihan (Con)]

My Lords, I thank the Minister for his work on my amendments. As he rightly pointed out, they are the last amendments outstanding on this Bill. I thank the usual channels for their assiduous consideration of whether this should go further at this stage. We have seen some concessions from the Government, which are much appreciated. There is a huge amount of additional work still to be done, and obviously I am sorry that the amendments tabled originally were not accepted in full, but I am very grateful to the Minister for taking some action in the new clause which was agreed in another place the day before yesterday.

I conclude by saying that I will do everything in my power to return to this campaign on behalf of the true fans of sport, music festivals and music events in what I hope will be just a matter of months. In the meantime, I thank the Minister and his outstanding civil servants for all the hard work they have done, not least with the CMA in recent months, and express my gratitude to the whole House for its support.

[Lord Clement-Jones (LD)]

My Lords, I do not propose to go over old competition ground, but like the noble Lord, Lord Moynihan, our attitude to Motion A is not to oppose it but to be somewhat disappointed at the Government’s response; on the other hand, we welcome the fact that they have added new enforcement proposals and provisions and the promised review. I think it is quite unaccountable that they have resisted the almost irresistible force of the noble Lord, Lord Moynihan; it has been a sight to behold his persistence throughout not only this Bill but previous Bills. I am quite confident that eventually his campaigning will bear fruit because, when we look at the terms of the amendments that were not agreed to by the Commons on providing evidence of proof of purchase and of title to tickets, among other things they are only common sense and very good consumer protection.

I add my thank you valedictory to the Minister, his colleague the noble Viscount, Lord Camrose, who I see is riding shotgun today, and the noble Lord, Lord Parkinson, who made a cameo appearance on the Bill and was the Minister involved very heavily in the Online Safety Bill proceedings. Both Ministers have always been willing to engage. They have not always conceded, but they have always listened, so I thank them very much indeed for all their service. It has been a pretty long ride when one looks back to the beginning of the suite of digital Bills in the past two years, starting with the Online Safety Bill, then the digital markets Bill, and now the non-lamented data protection Bill, and I look forward to further digital legislation in the autumn or the beginning of next year.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I add my thanks, first, to the Ministers. As the noble Lord, Lord Clement-Jones, said, they have worked assiduously, and we have felt as if we were constantly in their company over the past six months or so. They have always been courteous and had a listening ear, and I thank them for that. I, too, add my thanks to the members of the Bill team for all their hard work in preparing the Bill and the quite substantial amendments on occasions that have been agreed on concession. I particularly thank the stakeholders in the wider scope of the Bill, the challenger firms and the consumers who have been so active in helping us shape what is becoming a good Bill.

I am sorry that the Government did not see the sense of what I thought was an extremely reasonable amendment from the noble Lord, Lord Moynihan. We remain hugely disappointed in Motion A for the reasons that we have ready rehearsed which I do not need to repeat. I particularly thank the noble Lord, Lord Moynihan, and Sharon Hodgson who have campaigned on this issue for many years. I hope that in due course they will get their reward.

I have to say that, if elected, a Labour Government would strengthen consumer rights legislation to protect fans from fraudulent ticket practices, to restrict the sale of more tickets than permissible and to ensure that anyone buying a ticket on the secondary market can see clearly the original price and where it comes from. We will put the interests of the fans and the public first on this. Nevertheless, we believe overall that this is a good Bill that takes the first steps to regulating the behaviour of the big tech companies, which is long overdue, giving a bit more security to challenger firms and adding protection to consumer rights. We are grateful for the concessions made along the way that have indeed improved the Bill. At this stage in the proceedings, we think it is right that the Bill do now pass and that we do not need to debate it any further.

Digital Markets, Competition and Consumers Bill

Lord Clement-Jones Excerpts

3rd reading
Tuesday 26th March 2024 Lords Chamber

[Lord Lansley (Con)]

My Lords, I intervene just briefly. I am very pleased to take the opportunity to follow what the noble Lord, Lord Faulks, was just saying because it touches directly on the points I was going to make.

First, I am very grateful for the conversations I have had with the noble Lord and Minister Lopez in his department. I look forward to further debate about the extension to online news services. It will certainly be my intention to table amendments to the Media Bill to enable us to consider how the media public interest test is to be applied in relation to this wider definition of news providers, since the definitions are clearly now out of date—I can say that, having been part of the Puttnam committee on the 2003 legislation.

My noble friend has done an amazing piece of legislative work. I just have to ask, as I did on Report, why it would not have sufficed to have added a new specified consideration to Section 58 of the Enterprise Act 2002, in effect on the need to prevent the acquisition, control of, or influence over newspapers or newspaper periodicals by any defined foreign power. As my noble friend says, we have 16 pages; frankly, we could have done it in about three lines, but clearly there are differences in terms of the bar that has to be crossed and the requirement on the Secretary of State. As the noble Lord, Lord Faulks, said, the Secretary of State must do these things, as opposed to the discretion under the current merger regime, but it seems to me that, with a new specified consideration, the current merger regime would provide the necessary powers. For example, it was sufficient for the purpose of meeting the capability to deal with a public health emergency in Section 58 as a specified consideration, or to maintain the stability of our financial system, as specified after the financial crisis, in Section 58. I am not at all clear why we have departed from the same approach in this case. There is a risk that we end up with overlapping and very complex provisions relating to one type of merger situation as opposed to other merger situations, but we will come on to discuss that.

On Report, I raised with my noble friend the question of broadcasting. We can return to that in the Media Bill, but, of course, where broadcasters are concerned, we have the benefit of the relationship to the Ofcom standards code, which does not apply in relation to newspapers. I hope we can revisit that when we come to the Media Bill.

[Lord Clement-Jones (LD)]

My Lords, I want to revert very briefly, and thank the noble Lord, Lord Offord, for his statement about the status of the Bill in Northern Ireland, before commenting on Amendment 1. I very much hope that those discussions go as quickly as possible in the circumstances. I also welcome the noble Lord, Lord Leong, back to the Opposition Front Benches, and hope that he is in much better form.

I start by congratulating the noble Baroness, Lady Stowell, and the noble Lords, Lord Forsyth, Lord Robertson, and Lord Anderson, on what is really a triumph. I thank the Minister, in particular, the noble Lord, Lord Parkinson, for producing something so comprehensive, and perhaps complicated. As someone who is rather used to replies such as “in due course” or “we’re going to produce guidance”, it just shows what government can do swiftly and decisively when it really gets the bit between its teeth. It means that we are not going to take many more excuses in future.

I very much hope that, as the noble Lords, Lord Faulks and Lord Lansley, said, we will not lose sight of the digital news media agenda as well, because it just demonstrates what is possible through this change to the Enterprise Act. There is a broader agenda, and that needs addressing. I very much hope that, as other noble Lords have said, the secondary legislation really is consistent with the intent demonstrated today, both in what the Minister had to say and in the intent of the proposers of the original amendment. It is very good that the Minister has, in a sense, confirmed that it will impact on the RedBird proposal, if that proposal is still current on the effective date, given the circumstances. I entirely agree with the noble Baroness, Lady Stowell, that this is a matter of principle; it is not about the particular country. However, I do feel strongly about the particular country, so in these circumstances, we are entitled to be pleased that this is going to be the case in terms of this particular transaction.

The noble Baroness raised questions about the threshold, and I very much hope that the Minister can answer them. I thank him, and I think there is general satisfaction across the House. This demonstrates what the Government can do when they get the bit between their teeth.

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[Lord Clement-Jones (LD)]

My Lords, I am delighted that the Minister has come back at Third Reading as he undertook to and that he has produced this amendment. I am only sorry that the noble Lord, Lord Lucas, is not present to be able to take the credit for it.

[Baroness Jones of Whitchurch (Lab)]

My Lords, we welcome the Government’s amendment on subscription reminder notices. As has been said, the noble Lord, Lord Lucas, made a very sensible intervention when we debated this in Committee and on Report, and it provides a helpful clarification to service providers. I hope that this amendment and the other changes that we made on Report have now struck a much better balance between businesses’ needs and consumer interests.

We look forward to hearing details of the department’s further work on implementing the gift aid protections and other work on cancellation methods, but, for now, we are pleased with the progress that has been made on the Bill and we wish it a speedy onward passage.

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[Baroness Stowell of Beeston (Con)]

I hesitate to rise, because I realise I am probably testing the patience of the House, having already spoken in Third Reading. I just wanted to say a couple of things.

I thank my noble friends Lord Camrose and Lord Offord on the Front Bench for their work on this Bill. As they will know, this is legislation for which the Communications and Digital Committee has been calling for several years—it started under the chairmanship of my predecessor, my noble friend Lord Gilbert. It is something that I have been pleased to take a very active involvement in, and I am very pleased to support it passing.

As we think about what this Bill is trying to achieve and why, it is worth also remembering why we in the UK are forging a different path from the ones that Europe and the US are on. In the last few days, we have seen the US DoJ launch a major anti-trust lawsuit against Apple. In the EU, the Commission is taking serious measures against some of the big tech firms to make them comply with the spirit and letter of its new Digital Markets Act. Both situations have an ominous sense of being exactly the kind of lengthy legal battles that favour big tech, which we are trying to avoid.

The House has rightly voted on a number of measures to try to ensure that our regulation can work as it is meant to, in a timely, proportionate and less confrontational manner. That is what the Government are seeking to do with this legislation.

As the Bill leaves here and enters its final stage, I emphasise two measures from among the amendments passed by this House. First, the deadline for the Secretary of State to approve CMA guidance is key in keeping things on track and avoiding concerning delays. Secondly, if the Government and the Commons cannot accept the amendments to revert the appeals process on fines back to JR standard, I hope that my noble friends within government will consider putting a clarification in the Bill that the appeals process on fines cannot be changed in ways that undermine the JR standard or open up avenues for more expansive and protracted legal challenge.

That aside, I am grateful to the Government for bringing forward this important legislation. It will mark out our regulatory regime as different from those in other parts of the world that are having such a big impact—and not necessarily in good ways.

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Stowell. I agree with a huge amount of what she said.

I reiterate the welcome that we on these Benches gave to the Bill at Second Reading. We believe it is vital to tackle the dominance of big tech and to enhance the powers of our competition regulators to tackle it, in particular through the new flexible pro-competition powers and the ability to act ex ante and on an interim basis.

We were of the view, and still are, that the Bill needs strengthening in a number of respects. We have been particularly concerned about the countervailing benefits exemption under Clause 29. This must not be used by big tech as a major loophole to avoid regulatory action. A number of other aspects were inserted into the Bill on Report in the Commons about appeals standards and proportionality. During the passage of the Bill, we added a fourth amendment to ensure that the Secretary of State’s power to approve CMA guidance will not unduly delay the regime coming into effect.

As the noble Baroness, Lady Stowell, said, we are already seeing big tech take an aggressive approach to the EU Digital Markets Act. We therefore believe the Bill needs to be more robust in this respect. In this light, it is essential to retain the four key amendments passed on Report and that they are not reversed through ping-pong when the Bill returns to the Commons.

I thank both Ministers and the Bill team. They have shown great flexibility in a number of other areas, such as online trading standards powers, fake reviews, drip pricing, litigation, funding, cooling-off periods, subscriptions and, above all, press ownership, as we have seen today. They have been assiduous in their correspondence throughout the passage of the Bill, and I thank them very much for that, but in the crucial area of digital markets we have seen no signs of movement. This is regrettable and gives the impression that the Government are unwilling to move because of pressure from big tech. If the Government want to dispel that impression, they should agree with these amendments, which passed with such strong cross-party support on Report.

In closing, I thank a number of outside organisations that have been so helpful during the passage of the Bill—in particular, the Coalition for App Fairness, the Public Interest News Foundation, Which?, Preiskel & Co, Foxglove, the Open Markets Institute and the News Media Association. I also thank Sarah Pughe and Mohamed-Ali Souidi in our own Whips’ Office. Last, but certainly not least, I thank my noble friend Lord Fox for his support and—how shall I put it?—his interoperability.

Given the coalition of interest that has been steadily building across the House during the debates on the Online Safety Bill and now this Bill, I thank all noble Lords on other Benches who have made common cause and, consequently, had such a positive impact on the passage of this Bill. As with the Online Safety Act, this has been a real collaborative effort in a very complex area.

[Baroness Jones of Whitchurch (Lab)]

My Lords, before the Bill passes, I put on record my thanks to the Ministers—the noble Viscount, Lord Camrose, and the noble Lord, Lord Offord—as well as the noble Lord, Lord Parkinson, who made a guest appearance. I also put on record my huge appreciation for the Bill team for their timely letters and briefings, and their immense good humour when we asked for even more information.

The whole experience has been a good illustration that, when we fully engage in discussion on a Bill, we can deliver genuine improvements that have broad support. I hope that our colleagues in the Commons appreciate the careful thought and hard work that is behind these changes. I hope that we do not have to be here again on this Bill, but I reiterate that our door is always open if further discussions would help. For now, I hope that the Bill will soon be on the statute book and I look forward to its progress.

Digital Markets, Competition and Consumers Bill

Lord Clement-Jones Excerpts

Report stage
Wednesday 13th March 2024 Lords Chamber

Moved by

[Lord Clement-Jones]

64: After Clause 141, insert the following new Clause—
“Amendment of section 58 of the Enterprise Act 2002After section 58(2A) of the Enterprise Act 2002 insert—“(2AA) The need for free expression of opinion and plurality of ownership of media enterprises in user-to -user and search services.(2AB) Media enterprises include—(a) newspapers,(b) broadcasters, and(c) providers of video on demand and audio on demand.(2AC) For the purposes of this section “user-to-user service” and “search service” are defined in Part 2 of the Online Safety Act 2023.””Member’s explanatory statement
This amendment updates the specified considerations that the Secretary of State can use to issue a public interest notice that reflect modern market conditions where new media may give rise to such concerns.

[Lord Clement-Jones (LD)]

My Lords, with only one amendment in this group, I have the mixed blessing of having the Minister’s undivided attention. I will be very brief as I want to give way to heavier oncoming traffic, in the form of Amendments 67 and 158. My intention in retabling this amendment on Report is to probe further the Government’s intentions as regards amending the Enterprise Act 2002, in respect of mergers of digital media.

In Committee, I pointed out that the Online Safety Bill—now Act—sets great store by the importance of freedom of expression on digital media and, in the context of competition in the media, we believe that the protection of the public interest needs bringing up to date, alongside the collective consumer interest. This was on the basis that digital media now play a significant role in the national discourse, and public interest considerations could emerge from permutations of takeovers or mergers.

In Committee, I described how Section 58 of the Enterprise Act is limited in scope, and that we should add the need for free expression of opinion and plurality of ownership of media enterprises in user-to-user and search services to the existing public interest considerations that the Secretary of State can take into account. The reply of the Minister—the noble Lord, Lord Offord—was sufficiently encouraging for me to bring the amendment back for further and better particulars. He said:

“The Government are currently reviewing the recommendations on changes to the media public interest test in Ofcom’s 2021 statement on media plurality. Ofcom did not recommend that online intermediaries or video and audio on-demand services should fall within the scope of the media mergers regime, which this amendment would provide for”.


There is always hope. The Minister went on:

“We are considering Ofcom’s recommendations carefully and, as we do that, we will look closely at the wider implications on the industry. The Government have not proposed pursuing substantive changes to the grounds for public interest interventions in mergers in this Bill. The changes recommended in Ofcom’s review can be addressed directly via secondary legislation under the made affirmative procedure, if appropriate”.—[Official Report, 29/1/24; col. GC 291.]


The Minister did not offer any detailed timetable, so this is a brazen attempt to push the Minister further in telling us what the Government really have in mind, even if it is going to be included in secondary legislation. It is quite clear, in general, that changes to the Enterprise Act are needed and should be in contemplation. I very much hope the Minister can go rather further than he did in Committee. Indeed, it may be that there is a vehicle available, in the form of the Media Bill, which could take the position further. I beg to move.

[Lord Lansley (Con)]

My Lords, I intervene very briefly to support the noble Lord, Lord Clement-Jones, in the intentions of his amendment. A number of noble Lords will recall that, about eight years ago, we sought that the Government would use secondary legislation to extend the definition of media enterprises under the Enterprise Act.

The point that the noble Lord, Lord Clement-Jones, is making is in this territory. Clearly, if media enterprises for these purposes were defined more widely, it would capture some of the providers that the noble Lord, Lord Clement-Jones, was talking about. At the moment, media enterprises basically consist of print newspapers or broadcasters—and broadcasters are only those that are licensed under the Broadcasting Acts.

I hope it will be evident to noble Lords that there are now many more news creators and aggregators, and sources of news, that make up the news landscape and are not comprised within the definition of print newspapers or of broadcasters under the Broadcasting Act. So we need to make sure that the specified considerations under Section 58, about free expression, accurate presentation and plurality, are applied in relation to this wider definition of media enterprises.

This was something that Ofcom said to Ministers in pursuance of the consultation about the media public interest test, I think as far back as 2021, or maybe at the end of 2022. So I suppose what I am asking is to share in the urging of the noble Lord, Lord Clement-Jones, that Ministers might take this on, and to give advance notice that—from my point of view—we should address this in the Media Bill quite soon, in order to give them further encouragement for this purpose.

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[Lord Clement-Jones (LD)]

My Lords, I can barely contain my excitement. It is very good to see the noble Lord, Lord Parkinson, in his place, and I very much look forward to hearing what he has to say in the debate on the next group. There is a difference in principle, though, between the amendments in the next group tabled by the noble Baroness, Lady Stowell, on ownership by foreign Governments and the future-proofing that my amendment seeks for digital media.

I very much appreciate what the noble Lords, Lord Lansley and Lord Bassam, said about the need to encompass this type of media. Whatever the content of the Minister’s response, I believe that if we do not deal with digital media in this Bill, we will need to deal with it in the Media Bill. It is a current issue; the Minister used the phrase “current market conditions”, which was a slightly odd way of describing the fact that we now have an incredibly lively digital media. After all, why do we have the final offer mechanism in the digital markets Bill? It recognises the issues related to news media and the need to make sure that there is a proper negotiation on the use of, and links to, news media. We need to make progress on this, but I will give way to the oncoming traffic of the next group. I beg leave to withdraw my amendment.

Amendment 64 withdrawn.

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[Lord Kamall (Con)]

My Lords, a number of principles have been spoken about. I believe firmly in the principle that no Government, British or foreign, should be allowed to own a UK media outlet. When my noble friend Lady Stowell asked me whether I would support her amendment I initially declined, because I told her it did not go far enough. I apologise for that, because, as my noble friend said, the UK Government do not own any media outlet; why, therefore, should any foreign Government be allowed to do so?

We should also be absolutely clear that this is not anti-foreigner sentiment. I and, I am sure, many other noble Lords have no objection to foreign private companies owning UK news media outlets. Indeed, in my years in the European Parliament we used to refer to the Financial Times as the in-house paper of the European Commission, only to find that it was owned by a Japanese company.

There are clearly some tricky issues here in drafting the relevant law that the clever lawyers will have to navigate. For example, it is well known that Chinese non-state-owned enterprises often have strong links to the leadership of the Chinese Communist Party. Indeed, some China analysts claim that there is little difference between the Chinese Government’s influence over state-owned and non-state-owned companies, so were a non-state-owned Chinese company to bid for a UK media outlet there would also be a number of questions. That is possibly a debate for another day.

In short, like many noble Lords, I am against any government ownership of UK media organisations, whether it be the UK Government or a foreign Government. For these reasons, I support Amendments 67 and 158 in the name of my noble friend Lady Stowell.

[Lord Clement-Jones (LD)]

My Lords, despite the shortness of this debate, we have had some very fine and inspiring speeches. We on these Benches wholly support the amendment moved by the noble Baroness, Lady Stowell. Indeed, like the noble Lord, Lord Robertson, I find it extraordinary that we do not have this already on the statute book. Given the importance of pluralism and freedom of speech in our media, the thought of foreign Governments impacting on our media in the way that is currently threatened seems quite extraordinary.

My main purpose is to associate myself with the remarks of the noble Lord, Lord Forsyth. When he moved his regret amendment, he talked about the ownership by the UAE of a UK quality newspaper. I have spent the last 10 years campaigning for the release of Ryan Cornelius from a Dubai jail. He was unjustly imprisoned on trumped-up fraud charges, and his sentence was arbitrarily extended by 20 years in 2018, just as he was due to be released. He now faces the prospect of many more years in jail. I am all too aware of the reality that lies behind the pleasant-looking tourist Dubai. Parliament should definitely have its say before a UK newspaper falls into the hands of such a Government. All this is a result of the activities of a member of the royal court of Dubai, so it very close to home in the UAE. Not only do we as a party on these Benches wholly support this amendment, but I personally feel very strongly about the need for it.

[Lord Bassam of Brighton (Lab)]

My Lords, I think the whole House is grateful to the noble Baroness, Lady Stowell, for the way in which she set out the arguments behind her amendment, and for the clarity, force and power of her voice in putting those arguments forward. We are also grateful to the noble Lord, Lord Forsyth, for the way in which he has argued his case—not once, but twice, and several other times too, when he has been given the opportunity; I always enjoy his interventions. I am enormously grateful to the noble Lord, Lord Robertson, for bringing breaking news to your Lordships’ House.

It might seem slightly ironic to some that we on the Labour Benches are trying to come to the rescue of the Daily Telegraph, but there is a much more important principle at stake here. It is an obvious place to start but let me begin with first principles: Labour believes in a free and fair press without state interference. We also believe in the accurate presentation of news and in freedom of expression, which is particularly important in the context of RedBird’s attempted takeover. Our view on this matter is not shaped just by the Telegraph Media Group takeover proposal currently being considered by the Secretary of State; we would have similar concerns if other titles were subject to bids from other states. When the Minister explains to the House the Government’s intention, can he clarify the position, too, of not just newspapers but other publications? That is not to say that we do not have real concerns about the proposed sale of the Telegraph Media Group. We very much welcomed the Secretary of State initiating the investigations by the regulators. Now that their reports have been submitted, we hope that a decision will be taken in a timely way and as soon as possible, and in a way that is consistent with the quasi-judicial nature of the process.

For the avoidance of doubt, this is not to say that we oppose foreign investment in this country; we believe that inward investment in our economy is vital. The noble Baroness, Lady Stowell, spoke eloquently on that point, as did the noble Lord, Lord Kamall. However, foreign ownership of UK media organisations raises broader questions around the accurate presentation of news and, in certain cases, the free expression of opinion. Both of these, as many noble Lords have said, are vital to the long-term health of the print media sector and, more importantly, to our democracy.

I listened very carefully to the noble Baroness’s introduction and the other speeches. We have to give them all credit for the way in which they addressed the issue. I listened particularly to the noble Lord, Lord Robertson, because of his expertise, and his former role and continuing interest in security matters. While I am giving out thanks, I also thank the Minister, who helpfully found the time to meet me and my noble friend Lady Jones of Whitchurch this afternoon to discuss this important issue.

As we have seen with other legislation, most progress is often made when groups from across your Lordships’ House have open, frank discussions and then work together to agree solutions. I understand that for various reasons the text of Amendment 67 is not necessarily what all its supporters would have wanted. For that reason, and for a number of others that I will set out, we are not convinced that it presents the right response to this serious matter. Our view is that a free and fair press should be without state interference, which means without undue influence from our own state as well as others.

It is correct that the Secretary of State should take an interest in cases which raise concern on competition and plurality grounds, but her responsibilities are rightly constrained by legislation, and her ability to comment is limited by the quasi-judicial role she is playing. Where security concerns may arise, the Secretary of State will no doubt receive confidential briefings on the potential implications of different outcomes. In our view, that process must be allowed to play out. That the CMA and Ofcom have reported to the Secretary of State this week points to the well-established merger regime that has been in place in this country for some time. As part of their investigations, those independent regulators draw on expert advice and are able to obtain appropriately handled confidential information, including material that may be highly commercially sensitive. On the basis of all that information, they may then come to a judgment regarding the suitability of a takeover proposal and advise the Secretary of State accordingly. Parliament has empowered the Secretary of State and those regulators. In our view, that is an appropriate level of state interest in sensitive matters.

Amendment 67 proposes that once the regulators have carried out their work and the Secretary of State has come to a decision, it should be for Parliament to approve that decision. While we generally support parliamentary scrutiny of the Executive and their decisions, we are not convinced that the mechanism envisaged by the amendment is suitable in the light of the sensitive security and commercial information that would have to be shared to inform debate and determine the outcome of votes in both Houses.

My impression from earlier discussions with the Minister and his colleagues in other departments is that a better approach would be for the Government to acknowledge the strength of feeling in this House and commit to bringing back their own text at Third Reading. If the Minister is able to make that commitment, I hope that colleagues on all Benches will be minded to accept that offer and work with Ministers, as we will offer to do, in the coming weeks to find a satisfactory outcome.

We have enormous sympathy with the noble Baroness, Lady Stowell, on this issue. We do not feel able to support her proposition in the form it is with us today. We know it has been brought forward with the very best of intentions, intentions we support, and because we share those, we urge the Minister to respond positively to finding a way forward over the next few weeks.

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[Lord Parkinson of Whitley Bay (Con)]

The provisions we will bring forward at Third Reading will relate to newspapers and periodical news magazines, as I have set out. It will not cover television and radio broadcasters at this time, but that is something we will continue to consider. We have already been considering it as part of our broader work on the media mergers regime. That work will continue. I am happy to speak with my noble friend Lord Lansley and others about it.

[Lord Clement-Jones (LD)]

Could the noble Lord go through again what will happen to an existing merger, which is subject to existing procedure? He seemed to be saying that, as soon the new provision comes in when the Bill passes, it will be subject to the new procedure as well as the old. Is that what he was saying, and how will that work?

[Lord Parkinson of Whitley Bay (Con)]

That is what I was saying, but it depends on when the Bill gets Royal Assent. That is in the hands of noble Lords and not just the Government. If any live case is still ongoing at the time of Royal Assent—we intend for the new provisions to come into effect at Royal Assent—then the Secretary of State will obviously follow the provisions as set out in other Acts of Parliament as decided by Parliament previously, and follow the law as enacted after Royal Assent.

[Lord Clement-Jones (LD)]

I have a second question. I am assuming that internet digital news media—not a newspaper—will not be covered by these provisions.

[Lord Parkinson of Whitley Bay (Con)]

No. I am grateful that we have separated the debate on the noble Lord’s previous amendment from this so that I can respond directly to the amendment brought by my noble friend Lady Stowell. I am grateful for his understanding of that.

The Government are focused on the reforms to media ownership rules, which were suggested in Ofcom’s 2021 review. It did not recommend that online inter- mediaries, including social media platforms, search and video/audio-on-demand services should fall in scope of that. I heard what the noble Lord said about having this debate in the Media Bill, and I look forward to doing so.

The secondary legislation provisions that I have outlined will be subject to the affirmative procedure in Parliament. Until such time as those regulations are laid and approved by Parliament, the whole regime applies to everybody caught by the general foreign state prohibition.

We have always believed that the trustworthiness of our news and the lack of government interference in it, whether domestic or foreign, is of paramount importance, which is why we are setting out today our plan to make that more explicit in the regulatory regime that exists. As my noble friend Lady Stowell is aware, work is already under way to update the media mergers regime more broadly, and I touched on that in my responses to noble Lords. We will continue to take that work forward. I hope that, on that basis, my noble friend is able to withdraw her amendment today. With renewed thanks to her and a renewed commitment to work with those who have supported her, I am grateful for the opportunity to speak today.

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[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I wish to speak briefly to support Amendments 99 to 101 in this group, to which I have added my name. The noble Earl, Lord Lindsay, and the noble Baroness, Lady Crawley, have very clearly set out the arguments and the rationale for our amendments, so I will not go into the same detail.

I thank the Minister for his time and that of his officials in meeting with those of us who have signed these amendments, and for his letters clarifying the position. We are grateful for the Government’s movement on several of the issues we raised in Committee. They were not actually raised by us—because of other circumstances, none of us was able to be here—but they were ably covered by the noble Lord, Lord Bassam, and my colleague, the noble Lord, Lord Clement-Jones.

Amendments 99 and 100 raise the issue of how trading standards operate across borders throughout the country. This is causing them considerable concern, and I will not repeat what has already been said, except to say that trading standards are a vital local authority service, but not one that attracts the same level of support as children’s services or disability services. I declare my interest as a vice-president of the LGA.

Local authority budgets are stretched beyond what is needed to make many vital services safe for the consumer. On Amendment 101, trading standards needs support in order to operate as effectively and efficiently as it can to protect the public. Requesting documents by post is more cost effective than going to the trouble of crossing the country to fetch documents. Trading standards needs to be able to operate effectively across the whole UK, and I support this amendment.

[Lord Clement-Jones (LD)]

My Lords, it is very good to see the full team back on the trading standards amendments. I congratulate all three noble Lords on their championing of trading standards. They need the powers that are being argued for in these amendments; they are the unsung champions of the consumer, and we should support them.

My main purpose in rising is to speak to Amendments 69, 91, 92 and 152. As regards Amendment 69, on misleadingly similar parasitic packaging, it was encouraging to hear the Minister confirm in Committee that the prohibition of misleading actions in Clause 224 and the banned practice in paragraph 14 of Schedule 19 will address the long-standing unaddressed practice of misleadingly similar packaging.

However, those provisions matter little if they are not enforced. During consultations and the debate on the Consumer Protection from Unfair Trading Regulations 2008, the then Government stressed that public enforcement would be effective and efficient. This has not proved to be the case, with just one enforcement action by trading standards in 2008—albeit a successful one. If shoppers are to be protected from this misleading practice, there must be a realistic expectation that the Bill’s provisions will be enforced.

Historically, the Government have placed the duty on public enforcers. That is unrealistic, as trading standards face diminishing resources. The CMA stated clearly that misleadingly similar packaging is a consumer protection, not an IP, issue, following its investigation of the groceries market in 2008. Yet is has undertaken no hard or soft enforcement and did not include it in its recent scrutiny of the grocery sector; there is no sign that it will take a different approach in the future. There are no other realistic public enforcement options available. For the Bill to make a difference, it is essential that affected branded companies are granted powers to bring civil cases using the Bill’s provisions on the specific practice of misleadingly similar packaging alone. It has been ignored by public enforcers for the last 15 years, despite the many examples that appear year on year. Granting affected brand owners such powers would mean that shoppers would have the protection envisaged by the Bill, and affected brand owners would have more effective redress at no cost to the taxpayer.

Amendments 91 and 92 concern an area of concern for the retail industry, expressed by its representative body, the British Retail Consortium, in which I was an active participant more years ago than I care to remember. The well-established and well-used primary authority system enables a business to request assured advice from a primary authority that it has appointed. Provided that the business follows the advice, it cannot be prosecuted by any local authority for its actions. Under the Bill, the CMA will receive additional powers on consumer protection, whereby it will move to administrative fines that are potentially very high. I am informed that the CMA currently refuses either to provide assured advice of its own or to accept primary authority advice. It says that it may not agree with the advice and that it would be too costly, ignoring the fact that it is at a cost to the business. That undermines the primary authority system and will do so even further when the CMA receives its new fining powers because businesses will feel unable to rely totally on primary authority advice for what they are doing in the overlapping areas.

The amendments attempt to deal with that, either by requiring the CMA to provide assured advice itself, as set out in Amendment 91, or, perhaps more practically, by accepting primary authority advice as binding up to the point that it may be repealed if it is shown to be inaccurate, as set out in Amendment 92. That would mean that a business could rely on it for anything it does up to any repeal. It should also be remembered that the CMA can, if it wishes, act as a supporting regulator, whereby it can be called on to provide its view to a primary authority when that authority is looking at providing advice in an area of relevance and overlap to the CMA.

Finally, it should be noted that the CMA has decided to provide what is, in effect, assured advice on competition matters in the sustainability area; namely, it has agreed not to prosecute a business that seeks its advice and follows it in a small area on the competition side. This means that, in principle, the CMA does not seem to be opposed to such an approach. Green claims on the consumer side are a key area of uncertainty for business, an area where assured advice would in fact be most useful.

I turn to my final amendment, Amendment 152. As I explained in Committee, standard essential patents are patents that are necessary to implement an industry standard, such as wifi or 5G. Because the market is locked into a standard, and to prevent abuse of the market power that this situation conveys, SEP owners are required to license their SEPs on fair terms. Unfortunately, there is widespread abuse of this monopoly power by SEP holders. The principal issue raised with me by the Fair Standards Alliance is the threat of injunctions; the costs to many businesses can be ruinous. This tactic not only threatens innovation by UK businesses but represents a strategic risk for UK priorities, such as 5G infrastructure diversification and smart energy network security, by limiting the competing players. The availability of injunctions for SEPs gives foreign SEP holders the ability to prevent others in the UK from entering, succeeding and innovating in those markets.

The Minister, the noble Lord, Lord Offord, gave a somewhat encouraging response in Committee—I keep using the word “encouraging” about his responses, although I keep hoping for better—to the effect that the Government would set out their thinking in the very near future, and that that would include the question of injunctions.

After many months of consultation, the IPO has published its 2024 forward look on this issue. It has reported its findings to Ministers and has agreed key objectives concerning SEPs. Those are

“helping implementers, especially SMEs, navigate and better understand the SEPs ecosystem and Fair Reasonable and Non-Discriminatory (FRAND) licensing … improving transparency in the ecosystem, both pricing and essentiality; and … achieving greater efficiency in respect of dispute resolution, including arbitration and mediation”.

Although the IPO has confirmed that SMEs are especially disadvantaged by the current SEP regulations, it states, disappointingly, on injunctions that

“we have concluded that we will not be consulting on making legislative changes to narrow the use of injunctions in SEPs disputes”,

with very limited justification for the decision, saying simply that it was taken after

“careful consideration of the evidence, operation of relevant legal frameworks and international obligations”.

The Coalition for App Fairness has pointed out to me that a day after the IPO announcement, the European Parliament voted by a large majority to approve its own SEP regulation. The EU framework will include the creation of an SEP register, database and essentiality checks; a defined maximum total royalty for an SEP; and an independent, expert-led conciliation process to establish the fair price for SEPs, which, crucially, will block the use of injunctions while the process is taking place. That seems entirely appropriate. The EU has proved that such a regulatory regime can be delivered; why cannot the UK Government, with all the freedom of Brexit? What is the basis for the IPO decision? What evidence, legal frameworks and international obligations prevent it from dealing with and legislating on injunctions? Why cannot the IPO likewise establish a truly fair SEP licensing ecosystem?

The least the Government can do is give more detail to the many SMEs affected by this decision. The forward look states, rather lamely:

“The IPO will continue engagement with relevant industry and institutions to continue to inform our ongoing policy development and implementation of those actions set out above”.


What on earth does that entail? That is pretty mealy-mouthed. What benefit will there be from that?

[Lord Stevenson of Balmacara (Lab)]

My Lords, this is a wide-ranging group; there is good news hidden in the middle of it, and bad news—we will have to wait for the Minister to respond to get a full picture. Others have spoken in some depth and so I will not try to repeat what has been said. I certainly will not try to follow the noble Lord, Lord Clement-Jones, whose expertise exceeds the combination of everybody’s in the Chamber at present. On SEPs, I can only stand back in amazement that he has been able to understand what is being recommended by the IPO, let alone to have come forward with a plan that might take us a bit further down the track that we clearly ought to have gone down.

I turn first to the questions the noble Baroness, Lady Bennett, raised, which cut to the heart of what, is in some senses, the purpose of the Bill. I am afraid that she rather weakened her case at the end by saying that it was a much broader basis for debate and discussion than could be encompassed within this Bill; I think she saw it primarily as a way of continuing a much larger battle, and I wish her well with that. In that sense, we do not need to take this forward. However, I hope that the Government are taking note of the impacts that some of the provisions in the Bill are having, in the sense that it is not achieving the aims and objectives, which I think we all share, of making sure that we reduce carbon and try to meet targets which have been set for us in the long term on this. Therefore, greenwashing will continue, but we hope that it will be better in scope and that the focus will be more across the range of government activity.

On imitation packaging, as the noble Lord, Lord Clement- Jones, said, we have also been discussing this for a number of years in various Bills as they have come forward, and it is good that the assertion now is that in Clause 224 and Schedule 19, there will be help. However, the question is, of course, enforcement. I would be grateful if, when the Minister comes to respond, he could give us a bit more information about how that might happen in practice.

The questions raised by the noble Earl, Lord Lindsay, and supported by “the team”, as it was described, are a continuation of debates and discussions we have been having in this House for as long as I have been here—and I certainly have participated in them. It is good to see the government amendments in as far as they go, but the three remaining questions, as raised in Amendments 99, 100 and 101, need answers. I hope the Minister will expand on where the Government have taken us so far and give us some assurances.

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[Lord Clement-Jones (LD)]

My Lords, that is a bit terse, even by the Minister’s standards. I think we need to hear a little more about the form of enforcement, because the amendment is about the unsatisfactory nature of current enforcement. I referred to there having been only one enforcement since 2008, despite the fact that it was successful. What guarantee do the welcome recipients of the provisions in paragraph 14 of Schedule 19 have that there will be an effective enforcement regime?

[Lord Offord of Garvel (Con)]

The view of the Government in this legislation is that the banned commercial practice is banned already, as set out in Schedule 19, and that a strict civil enforcement regime is already in place, strengthened by Part 3. It is down to enforcers to tackle these misleading replica goods; our view is that it is up to the enforcement regimes to enforce under the current law.

[Lord Clement-Jones (LD)]

My Lords, I am not sure that the Minister has a full brief about the nature of the available enforcement. Will he write to me to provide a few more particulars and give more assurance in this respect?

[Lord Stevenson of Balmacara (Lab)]

My Lords, it is important that we unpick the point made by the noble Lord, Lord Clement-Jones, which I think was touched on but not addressed by the Minister. If we rely on civil remedies, we are not really addressing the problem that there is, in effect, an opportunity, for those who wish to, to exercise criminality; this surely cannot be left to the civil courts.

[Lord Offord of Garvel (Con)]

As some clarification is required, I am happy to write further on the matter.

Amendments 70, 71 and 93 to 98 are technical government amendments. The Bill empowers the courts to impose monetary penalties for a breach of consumer law and procedures. To accommodate the different processes by which court orders are served or enforced in Scotland and Northern Ireland, the amendments provide that prescribed penalty information may accompany an order in a separate notice, as well as being contained within it.

On government Amendments 72 to 90, on online interface and the powers of consumer law enforcers to tackle illegal content, I thank noble Lords who have contributed on this important issue. I am pleased to bring forward government Amendments 72 to 90 to give all public designated enforcers take-down powers to tackle infringing online content. The amendments enact the commitment made by the Government in their recent consultation response.

I thank the noble Lord, Lord Clement-Jones, for Amendments 91 and 92. Amendment 91 would require the CMA to provide advice on a business’s compliance with consumer law on request. It would also prevent enforcement action by any enforcer if the advice were complied with. The CMA already provides general guidance and advice on compliance. It is businesses’ responsibility to comply with the law, referring to guidance and seeking independent legal advice where necessary. It would not be appropriate to transform the CMA into a bespoke legal advice service. The amendment would also drain CMA resources from much-needed enforcement activity. Moreover, Amendment 92 compels the CMA to accept primary authority advice received by a business where that advice has been complied with. It is common practice for the CMA to consult the primary authority before taking action; this strikes the right balance and avoids binding the CMA to such advice, thus inappropriately neutering its discretion. I hope the noble Lord will agree that the purpose of a direct enforcement regime is for the CMA to enforce faster and more frequently; these amendments would diminish this objective and remove the deterrent effects of the regime.

[Lord Clement-Jones (LD)]

My Lords, does the noble Lord understand the need for certainty of advice when it is given by a primary authority and that the primary authority must feel, when it gives that advice, that it has the full backing of the CMA? There seems to be no assurance that this is under consideration or even a matter of concern.

[Lord Offord of Garvel (Con)]

We are clear that the CMA provides general guidance and advice, but it is the responsibility of businesses to comply with the law. If the CMA is transformed into a bespoke legal advice service, it will not be doing the work it is meant to do, which is focusing on enforcement. Therefore, we believe the balance is right in the mechanism put forward.

Turning to trading standards and Amendments 99, 100 and 101, I am grateful to my noble friend Lord Lindsay and the noble Baronesses, Lady Bakewell and Lady Crawley, for their continued advocacy for trading standards departments and for meeting with me on these issues. I very much enjoyed meeting the case officers in this place. Amendment 101 would end the prohibition on enforcers using information that a person has been compelled to provide under broad information notice powers in criminal proceedings against that person. This prohibition safeguards a person’s right not to self-incriminate—a long-established right protected by the common law and the Human Rights Act. The courts have held that material which exists independently of the will of the suspect, such as pre-existing data obtained during a search of the suspect’s premises, may be admissible in a criminal trial against them. By contrast, to comply with an information notice, a person will likely be required to generate documents. Legislation already permits trading standards departments to exercise their investigatory powers outside their local authority boundaries, including by carrying out in-person inspections of business premises. We have been informed that trading standards departments have used these on-site powers to secure documents from traders suspected of an offence and then relied successfully upon such documents in prosecutions against them.

Amendments 99 and 100 would permit any trading standards department based in Great Britain to carry out investigations across national borders. As I committed to my noble friends in writing, I have asked government officials to work further with trading standards to identify practical measures supporting greater cross-border co-ordination. To clarify, if an infringer is based in Scotland and the offence has caused harm in England, the English enforcer can pursue a prosecution through the English courts and vice versa—the procurator fiscal can prosecute a case where a trader is based in England but the infringement was committed in Scotland. All court orders in respect of consumer protection breaches have effect in all parts of the United Kingdom, regardless of where they have been made. We are open to exploring a variety of options, for example, exploring how best to facilitate local authorities across the country to exercise investigatory powers on behalf of each other. I have asked them to consult with trading standards when developing guidance on this legislation to ensure clarity on what it provides for. Once again, I thank my noble friend and the noble Baronesses for their engagement on this issue.

Government Amendments 102 and 103 make further consequential amendments to the Estate Agents Act 1979. They achieve consistency in how the Act applies to non-compliance with obligations under the court-based and the CMA direct enforcement regime.

Turning to standard essential patents, raised by the noble Lord, Lord Clement-Jones, through Amendment 152, I can confirm that the Government have now published their key objectives on SEPs and a forward look at work to be conducted in 2024. This follows input received in 2023 from key stakeholders from industry. The Government will first take forward non-regulatory interventions where action can be taken now. Later in 2024, the Government will launch a technical consultation on other potential interventions. On the question of injunctions, the Government believe that other measures, such as guidance, information on SEP licensing and how to respond to SEP disputes, is a proportionate government response at this stage. A resource hub will provide guidance that will enable businesses to better understand the SEP licensing system and the UK courts’ approach to the remedies available for patent infringement and existing services available for dispute resolution. The IPO will also continue engagement with relevant industry and institutions to continue to inform our ongoing policy development and interventions. My noble friend Lord Camrose has confirmed that his department will be making steps in what the noble Lord, Lord Stevenson, has described as a very complicated area.

I hope that this will—

[Lord Clement-Jones (LD)]

I am sorry to intervene again. The Minister is really confirming what the IPO has advised in its forward look. The Minister is saying, “Yes, this is important, but we are not going to do anything about injunctions”. Does he recognise the asymmetry in all this? This is why SMEs need enforcement to be looked at much more carefully in terms of the amendment that I have tabled. What is the essential objection to going forward with some kind of change, given that the rest of the proposals from the IPO seem to be pretty satisfactory?

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[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise very briefly. I spoke on these important subjects in Committee, and I am not going to repeat everything I said. I want to speak specifically on Amendment 104 on the right to repair, which the noble Baroness, Lady Hayman, so powerfully introduced, just to make a couple of additional points. She said that we are per capita the second-highest producer of e-waste in the world. It is interesting that we were talking about the security implications of this Bill in an earlier group on media ownership. With the incredible amount of e-waste in the world—53 million tonnes in 2022—and the need for rare earth minerals and the other minerals that go into these replacement products, it is worth saying there is a security implication to this that people may well not have thought of.

The noble Baroness, Lady Hayman, said that the Minister said that things were heading in the right direction. It is worth noting that there are a couple of areas where it very clearly is not. Increasingly, producers of devices, particularly phones, are hard-coding error messages into their product, so that if a third party tries to repair it, there is an error message and the device will not work any more. That has very clearly got worse, not better. There is also an increased amount of parts pairing, in which individual parts are tied to the device they are shipped with using a unique serial number, so you cannot get a replacement part put in. Again, the device will stop working. I think that was a really important point to make.

I have two points to make about how much further other parts of the world have gone. First, it was EU regulations that forced the latest iPhone to include a USB-C charging point rather than a proprietary one. That has both saved resources and saved people money, because the cost is about 1/10th of the proprietary charger, so this is also a cost of living issue. Secondly, I note that Germany and Austria have subsidies for repairs to allow low-income people to get electronic devices repaired when they would not be able to afford to do so otherwise. Please let us get some progress here.

[Lord Clement-Jones (LD)]

My Lords, my noble friend Lady Bakewell has clearly set out our support for Amendment 104 by the noble Baroness, Lady Hayman, and Amendments 109 and 115 by the noble Earl, Lord Lindsay, so I will not repeat what she has said. I shall speak to Amendments 107A and 107B relating to fake reviews, Amendments 105, 106, 110 and 111 regarding electrical safety and Amendment 108 on package travel.

The issue of electronic safety is a relatively new entrant in our discussions on the Bill, for which I apologise, but charities such as Electrical Safety First and Which? as well as the Government’s own Office for Product Safety and Standards have repeatedly found unsafe goods listed on online marketplaces. For instance, one investigation undertaken by Electrical Safety First found that 93% of products bought from online marketplaces were unsafe.

The Government have made a series of commitments on both online safety and product safety, included committing to ensuring that only safe products could be placed on the market now and in future, ensuring that the product safety framework was fit for purpose and making the UK the safest place in the world to be online. In my view, failing to address the sale of unsafe goods within the Bill means that they will fail to achieve their objectives in protecting consumers and promoting competition, and in addition will continue to fail in achieving their objective of ensuring that the UK is the safest place in the world to be online and that only safe products are placed on the market. By not including the sale of unsafe products within the scope of the Bill, it seems that the Government are allowing the UK to become what has been described as a Wild West for unsafe products.

There is a clear interrelationship between scams and unsafe products. For instance, Electrical Safety First found unsafe devices claiming to save consumers energy being sold on the online marketplace eBay. Not only were these devices ineffective at saving consumers energy, but they were also unsafe, placing consumers and their homes at the risk of electrical shock and fire. By not including unsafe products in the Bill, the Government therefore continue to place consumers at risk on a daily basis.

Consumers shopping on online marketplaces in other jurisdictions are better protected than UK consumers —in the EU, Australia and the USA, to name but three. The UK is clearly not moving at the same pace as comparable countries when it comes to regulating online marketplaces. The Bill is an opportunity to address that, but in its current form it is a missed opportunity to protect consumers.

I turn to Amendments 107A and 107B. In September 2023, as we know, the Government consulted on adding fake reviews to the unfair commercial practices list via Schedule 19 to the digital markets Bill, and now we have the government amendments to the Bill to reflect that. They are welcome so far as they go, but it is perplexing—informed organisations such as Trustpilot are perplexed—as to why the Government are not placing a stronger duty on social media firms and ISPs that host the sale of fake reviews. The wording does not expressly bring social media and internet service provider sites within scope where these are used by review sellers and brokers to offer their services. That seems extremely unsatisfactory, given that the Bill is so far through its scrutiny, and it is only on Report here in the Lords that we are seeing the wording that the Government intend to use to ensure that fake reviews are included in Schedule 19 on commercial practices.

Amendment 107A seeks to ensure that there is no loophole in the application of new paragraph 12A(4) inserted by Amendment 107. The inclusion of the words “for the facilitating of” in paragraph 12A(4)(b) could be read narrowly to suggest that the purpose of the service is relevant. In our view, providers of certain services such as social media sites that host the sale of fake reviews could potentially use that as a technicality through which to avoid liability by claiming that the purpose of the service they offer is not for doing anything covered by sub-paragraphs (1) and (2), and therefore this provision is not applicable in the event of abuse.

Is the Minister of the view that the facilitation of the sale of fake reviews by social media and internet service providers will be in the scope of this legislation under paragraph 12A(4), given the integral role that such services can play in enabling fake reviews to find customers? If not, why is such a gap being left in the legislation? Apparently, the Government are citing the legal scope constraints that act to limit their ability to tackle activity that happens upstream. I do not know what discussions have taken place between Trustpilot and the Government, but that sounds rather extraordinary.

I turn to Amendment 108. Since our discussions in Committee, it seems that Ryanair has started to work with some online travel agents. That definitely sounds like a win for our debates if we can take it as such, but other low-cost airlines are still resisting booking through agents, causing various harms to consumer protection, as we have discussed. The Minister’s statement about the package travel restrictions call for evidence is welcome, but the matter under discussion has always been a wider point regarding the use of third-party agents. Hence I have come back with one of the amendments that I tabled in Committee.

The Minister made one or two points in Committee that are worth picking up. He said that

“the contract is between the trader and the consumer, and therefore the consumer benefits from the relevant consumer rights”.

He also said that whether the transactional decision

“is carried out by the consumer themselves or a third party is not relevant. The consumer that the contract is with will receive the relevant consumer rights”.

Yes, the consumer is entitled to protection, but where an agent is involved this requires either the trader to pay the agent or the agent to stump up the refund themselves. That position also does not reflect the regrettable truth that consumers are being discriminated against because they choose to book through third parties.

The Minister brought up the question of the consumer-to-trader relationship and whether or not traders would

“become consumers in the eyes of the law”.

However, the issue is not that the agent becomes the consumer but that consumers who book directly through a third party are equally protected.

The Minister said that

“the Government have ensured that the CMA has significant powers to investigate and act if it finds that businesses are behaving anti- competitively in a market”.

It is not the CMA’s market powers that are in dispute; the problem is that the CMA is not acting to use those powers to investigate key consumer markets, despite clear evidence that competition is not working well.

The Minister also said:

“The operation of airlines and travel agents is governed by PTRs and ATOL. Those are being reviewed. That is the appropriate way to consider these issues”.—[Official Report, 31/1/24; cols. GC 394-95.]


Although important, neither of those addresses the misuse of market power and the damage that this is causing to consumer protection and to the viability of the market. Neither the PTR or ATOL regimes protect consumer choice or promote competition. The loss of that is the real threat, which can be addressed only through a CMA market review.

Finally, as regards ticketing, I very strongly support the amendment in the name of the noble Lord, Lord Moynihan. I salute him and Sharon Hodgson MP for their work through the all-party ticketing group throughout the years. In Committee, the noble Lord, Lord Offord, said that the Government do not wish to prevent consumers having choice in respect to secondary ticketing, but surely it should be an informed choice, in the way that the noble Lord outlined in his amendment. The Minister talked about the fact that the Government have legislated to give consumers fuller information on tickets that they are buying on the secondary market, but that is still not full information.

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[Lord Black of Brentwood (Con)]

My Lords, I refer to my earlier declarations of interest.

I raised a significant number of issues relating to subscription contracts in Committee. I am very grateful to both my noble friends on the Front Bench for listening to those arguments, and for bringing forward amendments to deal with them, and I strongly support them. They help fulfil the Government’s aims without placing unacceptable burdens on business.

There is only one remaining issue that we dealt with in Committee, and that is why I am supporting the amendment in the name of my noble friend Lord Lucas. His amendment would remove the prescriptive wording that is currently in the Bill and allow for traders to provide notices

“in a clear and prominent manner:”

His wording simply recognises that the prescribed renewal information is at the heart of the notice and must not be skewed out of view, while allowing for other beneficial information to be included, if desired. I am sure all noble Lords will be very happy that it ensures notices do not become a GDPR-style irritant, but something which is actually helpful to consumers. It would certainly be counterproductive if consumers experienced information fatigue and stopped opening communications from traders or simply opted out of them all together.

Equally, it will alleviate the burdens on traders, who may feel obliged to send emails around the time of renewal notices, to provide information on alternative deals, packages and so on, which could otherwise be dealt with in one communication. As my noble friend said, there may be other ways of dealing with it, or other wording, and I look forward to hearing what the Minister has to say about this amendment, which I support.

[Lord Clement-Jones (LD)]

My Lords, I am going to be extremely brief as I think we are all anxious to move towards seeing whether the noble Lord, Lord Moynihan, will move his previous amendment to a vote.

There is a common factor here; all these amendments were designed to flush out the Minister to give more assurance and information, and in large part that has been successful. There are still some outliers in terms of reminder notices; the Minister is well aware that there are some players, like Adobe, who will find, when they work it out, that they are going to have to give five notices for an annual contract. I do not know whether the Minister has looked at that and has answers to it.