Future of the Post Office

Lord Holmes of Richmond Excerpts

Monday 18th November 2024 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

The noble Lord makes a very good point and I hope that that can be included in the Green Paper as one aspect of this. I reiterate that we see a future for community hubs. It may be that we need fixed premises for that to work in practice, rather than for it to be something that just visits. For more isolated communities, that may well be a solution. Whatever happens, we want to guarantee to all communities in the UK that they will be able to access a post office to do the business that they need to do in order to access public services, driving licences and all the things we were talking about earlier. They will need to have some form of post office within easy reach. That is certainly one way of looking at it.

[Lord Holmes of Richmond (Con)]

My Lords, I declare my financial services and technology interests, as set out in the register. Would the Minister agree that the country is suffering from an epidemic of financial exclusion and digital exclusion, with the two often walking painfully hand in hand? Would not the golden principles of financial inclusion and digital inclusion be two excellent elements on which to fund the Post Office going forward?

Would she also agree that a significant part of the difficulties experienced by sub-postmasters and sub-postmistresses was that computer evidence was taken almost on the nod? Would she agree that it is high time we reversed the burden of proof with computer evidence to what it was pre changing it to this iniquitous position?

[Baroness Jones of Whitchurch (Lab)]

My Lords, I think we have all learned the lesson from the Horizon scandal that you cannot assume that the computer is always right. I absolutely agree with the noble Lord that we need to be much more sceptical when presented with that kind of evidence in future.

On digital exclusion, the noble Lord is absolutely right. It is a huge issue for the Government and we are taking it very seriously. A huge piece of work is going on around this. Obviously, our ambition is to make sure that everybody has the skills and capacity to go online and access services, because it is to their benefit; it makes their life easier. The proposals we have—for example, the Government’s One Login service, will always have the option for individuals to go in person to a post office to access those services as an alternative. We will make sure that people are not excluded. But the real challenge relates to the discussion we were having earlier with the noble Baroness, Lady Smith, about education and skills; it is our intention to make sure that people have the skills, education, capacity and equipment to go online and have all the advantages that the digital world will offer them.

Generative AI: Intellectual Property Rights

Lord Holmes of Richmond Excerpts

Monday 11th November 2024 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, the Government are clear that copyright law must be respected when content is used to train AI models. If copies are made of protected work, licences must be required from the copyright owner unless a specific copyright exception applies. The problem is that the law does not yet apply equally to generative AI models, and that is the issue we are grappling with. Our view is that this should not necessarily be left to the law; unfortunately, it takes a long time for these legal cases to be resolved. We are trying to find a way forward that will be fair to everybody but that does not require the long legislative process that I know the noble Earl is all too aware of.

[Lord Holmes of Richmond (Con)]

My Lords, I declare my technology interests as set out in the register. Does the Minister agree that this is not just a question of fairness? We must have a respected, remunerated, consented, dynamic licensing market for IP and copyrighted works for both the benefit of IP and creatives and for a flourishing AI market in the UK.

[Baroness Jones of Whitchurch (Lab)]

The noble Lord is quite right: we have to find a way forward that reflects the importance of both these sectors to our economy. The creative industries are one of the UK’s most powerful economic activities, worth £124 billion in GVA at the moment, so they are hugely important. We know that we have to respect the creative sector and the journalists working in it, but equally, we know that the future will be about an enhanced AI system. More and more businesses in the UK are now using AI, so that is the way forward and we have to find a way through this, but there is not a simple answer. I assure noble Lords that my colleagues, particularly Chris Bryant and Feryal Clark, are very aware of this issue. It has to be resolved but we would just ask for a little bit more space to allow us to make some progress.

Watchdogs (Industry and Regulators Committee Report)

Lord Holmes of Richmond Excerpts

Monday 9th September 2024 Lords Chamber

[Lord Holmes of Richmond (Con)]

My Lords, it is a pleasure to take part in this debate. I congratulate the noble Lord, Lord Hollick, on his excellent introduction to the debate and thank him and the committee for an excellent report that covers so much ground in such clarity and detail. “Who watches the watchdogs?” has been the cry over centuries of human societies, and it is never more applicable than today with the proliferation of regulators covering all aspects of our economy and society. Performance, independence and accountability are exactly the three points on any tripod to get into the issues surrounding how in the UK we regulate in the 21st century. The recommendations are clear, achievable and relevant, and I agree with all of them.

The themes running through the report are equally clear. There is a sense that it is as good as pointless—worse, harmful—simply to add more statutory objectives to regulators in the belief that this would impact performance and produce a better result for the market or consumers. Similarly, some regulators are able to fund themselves through levies and fees, and others have to go with their hand out to government. That financial structure must impact on the way that they operate, through no fault of their own.

The cry I hear running through the whole report is for clarity, consistency and coherence across the regulatory landscape. I agree entirely. This is never clearer than when we come to artificial intelligence where, currently, there is no regulator. The previous Government had the inadequate approach of writing a letter to all regulators to ask them what they intended to do when it comes to artificial intelligence. Will the Minister say what this Government’s approach will be to get the right regulatory framework for AI? I would certainly like to see an AI authority to review many of the provisions in my AI Private Member’s Bill, and I thank the noble Viscount, Lord Chandos, for his kind words about it.

When I say an AI authority, I do not mean a behemothic regulator covering all aspects of AI; I mean a right-sized, agile, nimble and, crucially, horizontally-focused regulator to look across all the existing regulators to assess their competence, address the issues, challenges and opportunities of AI and identify the gaps where currently there is no recourse. For example, in recruitment, if you find yourself on the wrong end of a recruitment decision, often without even knowing that AI was in the mix, there is currently nowhere in the regulatory landscape to seek redress. Similarly, we need an AI authority to be the custodian of the principles we want to see, not just for the right-size regulation of AI, but going further than that with an ability to transform the way we regulate across the whole of our economy and society and to look at all legislation to address its competence to address the challenges and opportunities of AI.

Will the Minister say where the Government currently are with the regulatory innovation office? What will be the scope? How will it be funded? What will be its first tasks? Does she agree that it is high time that we had an AI authority if we are to gain all the economic, social and psychological advantages and benefits of AI while being wholly conscious and competent to address all the risks and challenges? I suggest that if we had such an AI authority, it would have not just a positive impact on how we go about regulating AI but could improve how we go about regulation and regulators across the piece, not just positively impacting AI, not just asking the question “Who watches the watchdog?”, but enabling those watchdogs to be more, enabling them to be guard dogs and to be guide dogs, and, crucially, if the guard dog and the guide dog fail, empowering them to show their teeth.

Lithium-ion Battery Safety Bill [HL]

Lord Holmes of Richmond Excerpts

2nd reading
Friday 6th September 2024 Lords Chamber

[Lord Holmes of Richmond (Con)]

My Lords, it is a pleasure to take part in this Second Reading and to follow the noble Lord, Lord Berkeley. I congratulate the noble Lord, Lord Redesdale, on his Bill and on the impact that it has already had on the new Government. It means that, unusually for a Second Reading, I can indulge in more questions to the Minister than may otherwise be the case.

It is clear that we cannot turn our energy system green and we cannot reach net zero without batteries. The questions are what batteries and with what chemistry within them, and around how they are constructed, controlled and deployed. That goes to the heart of the noble Lord’s Bill, which I support and wish well on its journey. It seems it may have a longer and more winding journey—or perhaps shorter and more winding—than other Private Members’ Bills.

I have a number of questions for the Minister, not least on the Product Regulation and Metrology Bill, which encompasses much of the noble Lord’s principles in his Private Member’s Bill. First, would it be a good idea to have a complete prohibition on charging any of these batteries, whatever device they are in, in any hallway or common parts of shared dwellings?

Secondly, are the current sanctions against those who manufacture and produce batteries that are not of the requisite standard and quality at an appropriate level? I am also interested to hear what representations the Government have had from our courageous firefighters on what is happening out there? Do we have a clear picture of the number of fires caused by lithium-ion batteries? Do we have that mapping exercise and is it clearly understood? What do the Government need to do to support our firefighters to face different challenges? There will be an exponential increase in the number of these batteries, not just on our person but moving around on small, large and mega mobility devices. What is the Government’s plan to control and effectively deal with these devices when, in tragic and horrific situations, they go wrong?

Looking broader than the Bill, it is clear that the Government need an overall battery strategy. We saw issues with Britishvolt in the north-east, so I am interested to hear from the Minister about the Government’s current strategy for battery use and development, and to get the UK to the level of battery manufacture that it requires to deliver on net zero and our mobility needs.

I refer the Minister to a report on this issue of the Science and Technology Committee, on which I was involved, a couple of years ago, called Battery Strategy Goes Flat. I cannot claim to have been the author of the title but, as it referred to the previous Government, perhaps the Minister can tell us the current Government’s strategy for the battery needs of the country.

Similarly, what level of investment is going into developing and understanding not just current battery technologies but—as the debate already referred to—all the new technologies coming on stream and very nascent technologies that are likely to form a large part of our battery need in a short time? All have potential, but allied to potential risks that need to be understood and legislated for.

Finally, on the future, what is the Government’s grand vision for the role of batteries and fuel cells across our economy and society, so that we have a safe, positive transition to green energy, to mobility for all in an inclusive manner, and a situation where the chemistry and science are fully understood so that, most importantly, we can all go about our business safely. I wish the Bill well and look forward to seeing how it interacts with the product safety Bill to put the country in a far better situation for the generation and storage of energy, and, crucially, our safety.

AI Technology Regulations

Lord Holmes of Richmond Excerpts

Tuesday 30th July 2024 Lords Chamber

[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.

[Lord Holmes of Richmond (Con)]

My Lords, would the Minister agree that the way to regulate AI is principles-based, outcomes-focused and input-understood, and always, where appropriate, remunerated? To that end, what is the Government’s plan to support our creative industries—the musicians, writers and artists who make such a contribution to our economy, society and well-being, and whose IP and copyright are currently being swallowed up by gen AI, with no respect, no consent and no remuneration? Surely it is time to legislate.

[Baroness Jones of Whitchurch (Lab)]

The noble Lord raises a really important point here and again I acknowledge his expertise on this issue. It is a complex and challenging area and we understand the importance of it. I can assure the noble Lord that it remains a priority for this Government and that we are determined to make meaningful progress in this area. We believe in both human-centred creativity and the potential of AI to open new creative frontiers. Finding the right balance between innovation and protection for those creators and for the ongoing viability of the creative industries will require thoughtful engagement and consultation. That is one of the things we will do when we consult on the new legislation.

Post Office (Horizon System) Offences Bill

Lord Holmes of Richmond Excerpts

2nd reading
Monday 13th May 2024 Lords Chamber

[Lord Holmes of Richmond (Con)]

My Lords, this has been a sober and serious Second Reading—understandably so. How does one even begin to find the words to describe such an unspeakable set of circumstances? Perhaps one pulls on the words of those who have been faced with many miscarriages of justice: the CCRC itself described this as

“the most widespread miscarriage of justice”

it had seen. It is for that reason at least that I support this legislation.

I am well aware, and completely supportive, of the separation of powers, and the fine and delicate balance of our unwritten constitution, but in passing this legislation, it is as clear as it can be that Parliament will be carrying out the will of the people. It is also clear that this will set a precedent. I am delicately untroubled by that, because it sets a precedent for a set of circumstances where, were they to occur again, it may well be the case that the will of the people and Parliament need to step in. It is that set of circumstances which—I say delicately and with respect—argue against the claims that this tends towards autocracy and totalitarianism.

This is not something that any of us are undertaking lightly, but it is a means of securing justice for those who have waited far too long, many serving prison sentences and all carrying the sentence of having been convicted, often for decades. This is why I believe Parliament is right to take this Bill through, to enable justice around in the most timely manner. It is difficult to even call it “timely”, bearing in mind how long this has already taken.

To ensure justice and equity for all those who have suffered for so long, I need to ask my noble friend the Minister: how can the Government act to ensure that justice for all happens on a similar, if not identical, timeline? How can the Government, while understanding the reserved nature of the Post Office and the devolved nature of justice, work even more with the Scottish Parliament to ensure that all postmistresses and postmasters in Scotland can achieve justice at the same time or in a similar timeframe to those in England, Wales and Northern Ireland?

Similarly, as other noble Lords have rightly stated, it seems inequitable for those who have already been to the Court of Appeal to be excluded from this legislation. They are effectively being punished for having been able to pursue their claims quickly and effectively, only to find themselves receiving no remedy and the outcome that the court, at that stage and on the evidence provided, delivered for them. We know that justice delayed is justice denied. We have the opportunity to at least bring justice through the legislative process—yes, it is novel and unprecedented—through this Bill.

I turn to the means by which the private prosecutions were brought about in the first place: Section 6(1) of the Prosecution of Offences Act 1985. Many members of the public were shocked to discover that the Post Office could pursue such prosecutions in this manner. They were even more shocked when they realised that this was a power in no sense available just to the Post Office but available across the piece. The Post Office was effectively acting as investigator and prosecutor in cases where it was the alleged victim. Does my noble friend the Minister not agree that this is self-evidently prima facie problematic?

If we are to deliver justice for all those who have suffered, how many sub-postmistresses and sub-postmasters will be left with their convictions not quashed even after this legislation is passed? As much as we can be clear on the numbers, there are approaching 1,000 convictions and so far—again, as much as we can know—around 103 convictions have been quashed: 10%. This Bill, when it comes into statute, will certainly address a large number of those convictions, but how many people—to the Minister’s best knowledge, on the evidence he has available to him—will still be left unhelped after we pass this legislation?

Without moving away from the serious matter of today, I would like to ask the Minister about what thoughts the Government have put to reflecting on Section 6(1) of the Prosecution of Offences Act 1985. What are the safeguards? How did they work in these instances? Are the Government satisfied to continue with this legislation in its current form? Is the Law Commission looking into this?

Similarly, looking to a potential future beyond this unprecedented set of circumstances, what are the Government’s thoughts in terms of the future of the Post Office? It is a unique entity. It has been in our communities, on most of our high streets, for over half a millennium—but 500 years-plus of history does not give any organisation any right necessarily to continue in any form. Does the Minister agree that urgent thought on the structure of the Post Office, potentially looking at mutualisation or other such models, could, at least once we are through this, enable a brighter, better Post Office?

With sub-postmistresses and sub-postmasters, the pillars of our community, knowing our communities and the business better than anybody else, would it not make sense to have their voices, past and present, involved in shaping that future? In equalities discussions, there is a useful mantra, “Nothing about us without us”. I gently suggest that that mantra should apply to considerations about the Post Office going forward, where all the sub-postmasters and sub-postmistresses right across the country are able to have a voice in shaping what needs to be a very different future for the Post Office.

Digital Markets, Competition and Consumers Bill

Lord Holmes of Richmond Excerpts

Committee stage
Wednesday 7th February 2024 Grand Committee

[Lord Offord of Garvel (Con)]

My Lords, I am delighted to speak to this group of amendments, and I thank my noble friend Lord Holmes, the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Jones, for their amendments. I will first briefly address the government amendments, and the other amendments in my closing remarks.

Amendment 195 is a minor and technical amendment which aims to clarify independence requirements for trustees overseeing funds in a consumer savings scheme, strengthening safeguards against potential conflicts of interest. Trustees must have no association with the trader or interests in the trader’s assets, ensuring that funds are controlled for the benefit of savers and independently of the trader.

This measure is essential to safeguard consumer funds against insolvency and ensure that they are used for their intended purpose. I hope that noble Lords will accept this amendment. I look forward to addressing in closing any questions or points that they may have about the amendments in this group. I beg to move.

[Lord Holmes of Richmond (Con)]

My Lords, it is a pleasure to follow my noble friend, if not for the fact that it seems we are going backwards and forwards at the same time, which is always a good state be in. As this is the first time I have spoken on day six in Committee, I restate my technology interests, as set out in the register, as adviser to Boston Ltd.

My two amendments in this group are concerned with artificial intelligence. It is a truism, self-evident and barely in need of stating, that artificial intelligence is already impacting many aspects of our lives—as citizens, as consumers, as businesses and as a country—so it would seem timely to review all the relevant legislation to assess its competence to deal with the challenges, opportunities and risks that AI presents for us in all those roles and capacities. I shall say more on that next month.

Today, within the scope of this Bill, Amendment 199 suggests that all legislation concerned with consumer protection be reviewed to assess its competence to deal with the challenges, opportunities and risks inherent in artificial intelligence. It is clear that a number of the concepts and provisions within consumer protection legislation and regulation will be applicable and competent to deal with AI, but there is a huge gulf between what is currently set out in statute and what we require when it comes to making the best of what we could call this future now. I shall give just one example: if we consider how algorithms are set up simultaneously to push voraciously certain content while holding back other content, it is very difficult to see how consumer protection legislation is set up to deal with that challenge. That is but one specific example.

Amendment 200 goes to the question of consumer protection and the need to label all products and services where AI has been used or is built into that product or service so that the customer can know that and determine whether she or he wishes to avail herself or himself of that product or service. In no sense would this amendment require great burdens to be placed on business in bureaucracy, administration or cost. In many ways, this is yet another example of “set AI to solve an AI problem”, with human in the loop and human oversight always present.

I suggest that these two amendments, taken together, would enable the Bill to speak positively and in a timely manner on the opportunities, risks and threats to all of us, and to try to get the optimal deployment of AI in this context when it comes to consumer protection. I look forward to the Minister’s response.

[Lord Lucas (Con)]

My Lords, we move from a very new problem to a very old problem. My Amendment 215B asks that the Government restore to us the protection we used to have from double-glazing salesmen. There used to be a cooling-off period. That got swept away by EU regulations. Now that we have Brexit, we have the opportunity to give consumers back the protection that they once had. At the moment, double-glazing can claim to be made to the consumer’s specification but, actually, it is not. It is a standard product, and you just tweak it a bit. There is plenty of room when you are providing double glazing, fitted kitchens or anything like that to allow consumers proper time to step back and ask themselves whether they want to go in for such an expense and whether it is something they really want to do. We ought to restore that to consumers, there being no good reason not to.

Digital Markets, Competition and Consumers Bill

Lord Holmes of Richmond Excerpts

Committee stage
Monday 5th February 2024 Grand Committee

[Lord Holmes of Richmond (Con)]

My Lords, I rise briefly to speak to Amendment 140 in my name to add some more fuel to this already well-stoked fire and to set out exactly what we mean in the Bill when we talk about good faith and indeed the lack thereof where a trader does not take into account the interests of the consumer in terms of product design or information about the product or seeks to exploit the consumer because of their biases or particular views to induce a purchase or a desire for a particular product. Amendment 140 merely adds to the excellent amendment, as already set out. I look forward to the Minister’s response.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate. I am pleased to have added my name to Amendment 137 in the name of the noble Lord, Lord Clement-Jones, which deals with the issue of submitting or creating fake reviews by adding it to the list in Schedule 19 of commercial practices which would always be considered unfair. This is the issue that we touched on in the earlier debate. I am pleased that we have the chance to raise this today because it has been an issue of concern for some time. It is good to get the chance to debate and pursue this, and it is good to hear that the Government are also keen to do that.

We argue that this is not just about the effect fake reviews have on consumers; they affect businesses as well. They damage the livelihoods of many small traders—restaurants and hotels, for example—when their business is deliberately targeted by damaging reviews, or the local competition down the road receives glowing fake reviews which take trade away from the legitimate trader, so this has a business element as well as a consumer element. At the same time, Which? reports that the proliferation of fake reviews for online product sales results in consumers being more than twice as likely to choose poor quality products. We heard a little bit about how that works in the earlier debate.

Urgent action is undoubtedly needed to bring quality standards back into online sales and marketing so that people are not duped. As we have heard, since the amendment was tabled, the Government have produced their response to the consultation on improving price transparency and product information for consumers. It proposes that the Government will add fake reviews to the list of banned practices in Schedule 19. I am grateful to the Minister for hosting a meeting last week where we had a chance to discuss this. It is good to hear that the Government have finally decided to act on it.

However, there are still some outstanding concerns. Concerns have been raised by Trustpilot and others that the fact that the proposed wording lacks clarity. The Government saying that they will work with the Office of the Parliamentary Counsel to clarify the wording is a sign that they have not yet got this quite right. Can the Minister clarify the timescale for that additional work? When will we see the outcome of it?

Concern has also been raised that the Government’s proposals do not address the role played by internet service providers and social media in promoting fake reviews. The noble Lord, Lord Clement-Jones, raised this issue. What action will we take against those who host and reproduce these fake reviews, often knowingly?

Concern has been expressed that the penalty for promoting fake reviews is subject only to civil, not criminal, enforcement. Can the Minister explain a bit more about why that decision was taken? In the meantime, we argue that our Amendment 137 addresses those concerns. We look forward to further talks along the lines that the Minister has proposed, and we hope that he will agree to work with us and the Committee to produce a government amendment that is both clear and comprehensive.

The noble Lords, Lord Lucas and Lord Holmes, helpfully sought greater clarity on consumer rights to prevent consumers being misled or manipulated. The noble Lord, Lord Clement-Jones, rightly mentioned the additional measures needed to protect us from rogue traders. I am grateful to the noble Lord, Lord Lucas, for asking a series of small but important questions around his almost probing amendments. It is important to have clarification on the record, and I hope that the Minister will be able to give it.

The noble Lord, Lord Holmes, helpfully raised the issue of good faith and asked how we can bring some standards back into trading and the exchange of information. Again, I hope that the Minister will be able to clarify that.

We have had a positive discussion on these important points. It is good to hear that there will be further discussion. In the meantime, I look forward to hearing what the Minister has to say.

Digital Markets, Competition and Consumers Bill

Lord Holmes of Richmond Excerpts

Committee stage
Wednesday 31st January 2024 Grand Committee

[Lord Tyrie (Non-Afl)]

I have to ask the noble Baroness to bear with me for just a short while. I am being asked to speak to two amendments simultaneously, both of which are quite important, particularly the one that we are on now.

I said a moment ago that I would address some of the objections that Ministers may have heard from the department. One will have been that the CMA’s mission statement and underlying purpose implant a focus on consumers into its bloodstream. It is true that the consumer interest forms part of the CMA’s mission statement—it was found on the walls of its offices when I joined—but it is certainly not in its bloodstream. Few organisations with a responsibility to protect consumers have ever been more remote from consumers than the CMA. The intellectual framework behind the statute that it is trying to enforce is similarly abstract and technical. A consumer duty will put the consumers’ interests firmly into the CMA’s bloodstream.

A second argument against the duty that I think the Ministers will have heard will no doubt be that if the CMA takes action on competition, the consumer will always pick up the benefit. In its pure form, this is straight back to the Chicago school justification for competition policy—the approach rolled out across the world 25 years ago. A heap of academic work has now cast doubt on it. In any case, we do not need the academics, as the evidence is all around us that acting on competition alone has not been enough to stop a growth of consumer detriment and a rise in concentration ratios.

A third argument that no doubt will have been put to Ministers is that a consumer duty will get in the way of the Government’s growth objective, but that is based on the mistaken assumption that there is a trade-off between consumer protection and growth—between a healthy, functioning market with caveat emptor and a nanny state. One might characterise this as the free marketeer case against the consumer duty. I am a free marketeer. Many of our markets are not free at the moment; that is the problem. We have a massive and growing asymmetric power in many markets. Nudge, sludge, drip pricing, loyalty penalties and other rip-offs are on the rise everywhere. It is true that we can reduce these abuses by bringing more competition to these markets and that action is overdue, but it has not been strong enough so far to quell the detriment. On the contrary, abuses of market power, both digital and otherwise, have been growing.

The arguments for some form of consumer duty have been set out over the years by those at the sharp end of dealing with detriment for a very long time, not least the consumer groups. I recognise—this will be a relief to the noble Baroness—that the case I have put has touched on only a very small proportion of the arguments that they have developed in great detail over the years. I am strongly tempted, now I have been provoked, to supply her orally with a few of these, but I will resist the temptation. In any case, I have set out a summary of those arguments in numerous forms in writing in 2019-20, and then again just over two years ago. Not much has changed since then, so I will not rehearse those arguments, but I will end by summarising them.

First, a duty will greatly bolster and increase the effectiveness of the duty of expedition and the scope for interim measures that other parts of the Bill will give the CMA. The effect of all three acting together will be much greater than the sum of the parts. Secondly, it will facilitate a change of mindset that is essential for many of our competition regulators, including the CMA. The mindset of the last quarter of a century—that the CMA should restrict itself to acting directly only on competition—was a lot better than nothing, but it has also caused a lot of problems and been partly responsible for the rise in detriment that we can now see around us. Thirdly, a consumer duty will force the courts, particularly the CAT, to give the CMA more scope to act quickly and directly in the consumer interest. Fourthly, unlike most of what we are doing here, it would give us a better prospect of enabling the Government, of whatever political complexion, to have an opportunity to send a clear message to the public that they can expect powerful, independent bodies such as the CMA to act on their behalf.

[Lord Holmes of Richmond (Con)]

My Lord, it is a pleasure to follow the noble Lord, Lord Tyrie. The Committee certainly benefits from his expertise and experience and he is certainly never hypertrophic.

I shall speak briefly to my Amendment 106, which proposes a new clause entitled: “CMA permission for private enforcement claims”. It is a fairly simple and straightforward amendment and does exactly what the title says. Claimants have to seek permission from the CMA to bring private enforcement claims to the CAT or the High Court. The reason is clear. It is so that when we get to the end of our deliberations the operation of which forum, at what time and by whom is clear and does exactly what Parliament intended. Without this amendment there is potential to bring actions in various fora with different approaches at the same time, potentially muddying the waters and steaming up the windows and not bringing the clarity of procedure which we are seeking to achieve with the Bill.

It is a very clear amendment to have clarity and certainty about which forum at which time and to give the CMA the right to ensure that there is not muddying within the procedure, which is completely avoidable at this stage. I look forward to the Minister’s response.

[Baroness Stowell of Beeston (Con)]

I shall speak to Amendment 106 in the name of my noble friend Lord Holmes. Before I do, I should just reinforce my sincerity in saying that I think the noble Lord, Lord Tyrie, is making some really important points in his amendments. My concern was only to make sure that he did not lose us in his exposition, which was brilliant. I felt that some noble Lords were starting to drift away, and I did not think that was doing him any service. I want him to know that I am very interested and was tuned in the whole way through.

The reason I want to speak on Amendment 106 is that last week I raised the issue of private litigation and asked why the so-called Ofcom model had not been adopted for the Bill. Just to recap, I point out that the Ofcom model is a measure in the Communications Act which requires private litigants to seek Ofcom’s permission before making a claim to the courts or a tribunal. Its purpose is to avoid the regulator and the courts considering the same issues simultaneously and reaching conflicting findings, as my noble friend Lord Holmes has just colourfully described.

Since I raised this last week, I am very grateful for the Minister’s letter, which has been circulated to all Peers and is now in the Library, which outlined the Government’s reasoning for not adopting the measure in this digital markets regime for the CMA. As noble Lords will have seen from that letter, the Government argue that it would risk politicising the CMA because decisions about whether to approve someone taking a case to the tribunal or the courts would be appealable through judicial review, in the Government’s mind reducing certainty and clarity for stakeholders. They also argue that these issues are less prevalent for breaches of requirements imposed by Ofcom, as the primary route for redress is through the Communications Ombudsman and there is no equivalent function in the digital regime.

The Minister may make the same arguments in response to my noble friend Lord Holmes’s Amendment 106. The reason why I want to raise this again and am taking the opportunity today of doing so is because, even after getting his letter and having further conversations, I remain concerned that leaving the Bill as it stands threatens the participatory approach of the firms designated SMS, because it would disincentivise them to co-operate with the CMA. That participatory approach is critical to the success of the new regime and one of the ways in which it is considered better than the European model. It is also worth knowing that the Digital Markets Act—in other words, the European Commission’s version of this regime—includes a provision to avoid conflict between national courts and Commission rulings.

--- Later in debate ---

I hope that the Minister will be able to respond positively both to reduce waste and to ensure that all of us can more easily and affordably repair electronic devices on which we all depend.

[Lord Holmes of Richmond (Con)]

My Lords, it is a real pleasure to follow the noble Baroness and agree with every word that she said. I particularly applaud the specificity around software and hardware becoming obsolete by software not being maintained by the manufacturers who, in effect, make obsolete well before its time the hardware that sits alongside that.

I rise to speak to my Amendment 201. In many ways, the only build I would put on what the noble Baroness has said is around expanding to broader sectors the whole concept of right to repair. Perhaps before my time, or perhaps not, there used to be a symbol, a mark of quality, on many products: “Made in Britain; built to last”. That can go well beyond these shores, but it is not a bad line to consider when we think about right to repair.

All that my Amendment 201 seeks is for products to have their proper, natural and appropriate life cycle. We are in the middle of an environmental emergency, with difficult macroeconomic headwinds and a cost of living crisis. Right to repair speaks to all these issues. In no sense is it the silver bullet, but it is an important part of what we can practically and effectively and should do. It is not increased, burdensome regulation; it is taking a very British approach to a particular problem and with very little difficulty solving it within this Bill.

Amendment 201 proposes changing the Consumer Rights Act 2015 by inserting a right to repair so that, before a purchase is made, information must be provided on the repairability of a good, including whether it has been produced with repairability in mind, whether there are spare parts and how to access them, and the likely cost involved. Similarly, in situations where repairs can be performed safely by the purchaser, the information required includes whether information exists on how to do so, and, if so, how the purchaser can get their hands on it. It is straightforward and it makes economic, environmental and social sense.

To echo what the noble Baroness said, it is—this is positive—a particularly British way of going about things. We can cut those piles of unnecessary electric waste, change how technology operates and have a positive impact across so many sectors of our economy, positively benefiting our society. I look forward to the Minister’s response; this would be a good amendment to accept.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Holmes; I agree with the intent if not exactly the detail of his amendment—I will come back to that. It is also a great pleasure to take part in the debate on this group of amendments, so ably introduced by the noble Baroness, Lady Jones, and following the powerful arguments presented by the noble Baroness, Lady Hayman. As at Second Reading, much of what she said about right to repair is exactly what I would have said, so I will not say it again; I will just cross-reference her speech, as I did at Second Reading on the same subject.

I have attached my name to Amendment 109 in the name of the noble Baroness, Lady Jones, as well as her Amendment 134 on greenwashing. Had there been space, I would also have attached my name to the amendments on right to repair. The noble Baroness, Lady Hayman, and I have been having a little race in various groups.

I start with Amendment 109. It is worth reflecting for a moment on the fact that, as a country, we have legally binding climate and emissions targets. The Committee on Climate Change has been awaiting a new chair for 18 months—reports suggest that at least two Members of your Lordships’ House are in line for that and waiting to find out their fate—and its chief executive has just stood down. Despite all that, it put out a statement yesterday—handily, given the timing of today’s Committee—stressing strongly that, following COP 28,

“the obligation on every country is now to push even harder”

on climate action. It said that the UK needs

“even greater domestic climate ambition to reinforce the UK’s international standing”—

something that the Government are often concerned about. Crucially, it noted

“a significant delivery gap to the UK’s Nationally Determined Contribution (NDC) of reducing emissions by 68% by 2030”.

The independent Committee on Climate Change is saying that we are not doing enough, what we have now is not sufficient and we are not meeting the international obligations that we have signed up to. It is in that context that we need to look at Amendment 109, which could be hugely powerful. We are talking about commercial practices failing to protect consumers in the promotion and supply of goods and services by digital means. This relates to the detailed discussion we had on the previous group of amendments about flights and package holidays and the ways in which they are promoted and people are given information about their environmental impacts.

Since our conference in Brighton last autumn, the Green Party has been calling for a ban on high-carbon advertising. The noble Baroness, Lady Jones, may not entirely thank me for this, but I suggest that this amendment, in essence, implies a ban on high-carbon advertising. For the avoidance of doubt, this is a suggestion not that we should stop anyone flying or taking any action that they need to, but about whether we should allow expensive, continual bombardment—on the internet, from digital screens everywhere we go, on public transport and from every quarter—to purchase things that we might not otherwise have purchased.

Digital Markets, Competition and Consumers Bill

Lord Holmes of Richmond Excerpts

Committee stage
Monday 29th January 2024 Grand Committee

[Lord Holmes of Richmond (Con)]

My Lords, it is a pleasure to follow my noble friend Lady Stowell in speaking to my Amendment 69. As has already been mentioned, a common theme runs through all the amendments in this group: limiting full merits appeals and ensuring that in practice they apply only to the imposition of financial penalties and the quantum of those penalties, as set out in Clauses 85 to 92.

As has already been stated, when he sums up, my noble friend the Minister needs to explain how this will operate in practice and why this situation is so special that a different approach is needed from that of any other regulatory environment, such as Ofcom.

There is nothing more to be said. Following on from the noble Baroness, Lady Jones, I am tempted to ask whether the amendments were government late amendments or late government amendments, but I will leave that hanging with the Committee. Ultimately, we need to ensure that we have clarity on how this approach will work when the Bill becomes law and that there is a watertight limit on the deployment, and potential misuse, of full merits appeals.

[Lord Tyrie (Non-Afl)]

I have put a couple of amendments down which I suspect will not fully accord with the mood of the majority of the Committee on JR. I also support the removal of full merits appeals on fines, and I would like to explain why I have taken that position.

The Government took a number of important decisions on appeals in the other place. One was an amendment conceding that the scale of fines will be subject to a full merits review. Another stuck with the narrow definition of JR, or pure JR. Those two decisions are directly linked—politically, economically and legally—and there is a trade-off between them. They are best considered together.

My view on the fines issue is straightforward. There are two main reasons why the Government have got this decision wrong. First, a key point that we must bear in mind is that fines in the UK for all forms of breach of competition, anti-trust and consumer protection law are, on average, far lower than those in any comparable jurisdiction. As a result, both in the competition field and with many financial regulatory issues, fines are treated as a business cost by large firms. This has been a major weakness of our regulatory framework for decades and is still there now. If fines are to serve as a deterrent to platforms, they need to be large—perhaps very large, even unprecedentedly so for the UK. I fear that a full merits review will drag fines in only one direction, and we have the history of fines review by the CAT in other areas in support of that view.

Incidentally, I am amazed that the Treasury has not taken a closer interest in all this, because fines score against the consolidated fund, but it seems quite sleepy on this issue. It should be very wary of a full merits review of fines.