Digital Markets, Competition and Consumers Bill

Lord Lansley Excerpts

Committee stage
Wednesday 24th January 2024 Grand Committee

[Lord Tyrie (Non-Afl)]

My Lords, I do not know whether I am the sole dissenting voice—I do not think I am—but I want to make one preliminary point. I never thought I would make a point in defence of lawyers, but not all legal challenge or scrutiny will necessarily be wrong as this Bill proceeds or as the CMA takes its decisions. It is extremely important that we bear in mind, as we will come on to later on in the Bill, that we need to have a sense of balance about all this, so that we do not allow quite reasonable discontent with some of the shocking practices we have seen from platforms to lead us to a place that we might subsequently regret and which could lead to injustices or damage to British interests through loss of innovation or inward investment.

I listened very carefully to what the noble Lord, Lord Faulks, said. It seemed to boil down to very few things. Are convention rights engaged? They probably are, or if they are not then they will be. Even if they are not, the courts will find a way of getting them in eventually. If they are, what have the Government added? That is why I think I might be with the amenders here. I think very little, if anything at all, has been added. Was this a piece of window dressing, supplied by the Government to satisfy the intense lobbying that has taken place, particularly of No. 10? It had a whiff of that about it for me when I first saw it—I see one or two nods of assent. If it is, I am particularly wary of this change, which is what leads me to think that the amenders might be right. If it is more than this—if something very substantive has been added—then I think we would all like to hear from the Minister what exactly it is that, as a result of the adding of “proportionality”, will be considered for legal scrutiny when this Bill is on the statute book.

[Lord Lansley (Con)]

My Lords, I will briefly intervene. I have not signed the amendments but I am rather supportive of what the noble Lord, Lord Faulks, said in support of his amendment.

In thinking about this, among other thing I had the benefit of seeing a letter that the Parliamentary Under-Secretary at the department sent to my friends in another place, Robert Buckland and Damian Collins, after Report in the Commons; other noble Lords may have seen it. In that letter, he set out why he was building proportionality into Clause 19. He said:

“Our intention for this amendment is to allow a firm to appeal a decision by arguing that the DMU made public law errors in its consideration of proportionality under normal JR principles—without establishing that their rights under the European Convention on Human Rights are engaged”,


for example, the right to peaceful enjoyment of possessions. So that would not bring convention rights on board. The letter continues: “For example”— it is always helpful to have an example—

“the firm could argue that the DMU failed to take a relevant consideration into account, made a material error of fact or otherwise acted unreasonably”—

so JR principles—

“when deciding against an intervention that would have been less burdensome on the firm while still achieving the same outcome”.

So the outcome has to be achieved, but is it proportionate to impose this particular conduct requirement or pro-competitive intervention?

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[Lord Lansley (Con)]

Before we move away from this point, there was an interesting use of the word “reinforces”. Am I right in thinking that my noble friend is telling us that, if the original wording in the Bill were used and the word “appropriate” was there, it would none the less be his expectation that, in making decisions about conduct requirements or pro-competitive interventions, the CMA would in fact do so in a manner that was proportionate, because that is the appropriate way in which to make those decisions? Our worry is that by “reinforcing”, my noble friend is actually opening a door.

[Viscount Camrose (Con)]

I will go on to speak more about this. The intention of the Government in “reinforcing” is to bring clarity, particularly since, as I say, A1P1 is not universally applicable to these cases. It brings clarity, and therefore I hope that the effect will be as much closing the door as anything else.

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[Lord Clement-Jones (LD)]

My Lords, let us go back to the calmer waters of Clause 20. In moving Amendment 18A, I look forward to hearing what the noble Lord, Lord Lansley, has to say about his Amendment 31, which I have signed as well.

It seems that 75% of purchase scams originate from social media platforms. They often occur when consumers go to digital marketplaces, such as Facebook Marketplace, and try to buy goods from their peers which never arrive. Such scams cost consumers over £40 million in the first half of 2023 alone, and they seem to be on the rise. Currently, many consumers purchasing on peer-to-peer marketplaces have no access to secure payment providers that offer protections in the event that their purchase never arrives. Some marketplaces, such as Vinted and eBay, have integrated with secure providers, but despite many experts stating that these integrations will protect consumers and keep money out of the hands of criminals, adoption is still patchy across major marketplaces.

Building on voluntary commitments made in the recent Online Fraud Charter, this amendment would empower the CMA to require these marketplaces to provide consumers with a way to pay on these platforms that offers protection when things go wrong, such as when goods and services do not arrive as described, provided that these marketplaces are identified by the CMA as designated undertakings which have strategic market status. This would also be a good step in protecting consumers transacting online. Some payment services, such as PayPal or Stripe, do offer consumers protection when things go awry.

Such an amendment would also have a secondary impact: marketplaces would be better incentivised to vet sellers to ensure that they are able to meet the risk-management expectations of the commercial partners that offer secure payment services. For the avoidance of doubt, this amendment does not propose that designated marketplaces use any specific provider of secure payment services. Clause 20 sets out an exhaustive list of permitted types of conduct requirements that may be applied to designated undertakings. This amendment would confer power on the CMA to impose conduct requirements that protect consumers buying goods on peer-to-peer marketplaces identified as designated undertakings with strategic market status. I hope very much that the Minister will give this suggestion serious consideration.

[Lord Lansley (Con)]

My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for introducing Amendment 18A. On Monday, in the previous day of Committee, we looked at the list of conduct requirements—both the obligations placed on designated undertakings and the capacity to set conduct requirements preventing designated undertakings doing certain things. The noble Lord is asking whether we have covered the ground sufficiently, and so am I.

In Amendment 31, I come at it from the position that I took in earlier amendments, but I wanted to separate this out because it is in a different case. The train of thought is the same: to look at the detailed obligations included in the EU’s Digital Markets Act and to say that we are approaching it in what I hope is a better way that sets broader, more flexible definitions and looks to see how they will be implemented in detail by the Digital Markets Unit. That is fine; I am okay with that, but we need to be sure that the powers are there. For example, Amendment 18A is about whether the requirement to trade on fair and reasonable terms in Clause 20 comprises this power. It is a simple question: would it be possible for such conduct requirements to be included by the DMU under that heading?

Mine is a different one. In paragraph (6) of Article 5 of the Digital Markets Act, the European Union sets an obligation for gatekeepers—that is, its comparable reference to designated undertaking; in this sense it is dealing with platforms—that:

“The gatekeeper shall not directly or indirectly prevent or restrict business users or end users from raising any issue of non-compliance with the relevant Union or national law by the gatekeeper with any relevant public authority, including national courts, related to any practice of the gatekeeper”.


For our purposes, I have rendered that in the amendment as something slightly simpler in our language—that is to say, that an obligation may be placed on designated undertakings that they shall not seek

“directly or indirectly to prevent or restrict users or potential users of the relevant digital activity from raising issues of non-compliance with any conduct requirements with any relevant public authority”.

It is not just the CMA, of course; there may be others involved, such as the Information Commissioner and other public authorities.

For this purpose, I looked at the conduct requirements laid out in Clause 20 to find where this might be covered. I do not think it is covered by the material about complaints handling processes. This is not about whether you can make a complaint to the designated undertaking; this is about whether one is subject to the provision, as a user or potential user, such as an app seeking to complain about the non-compliance of a designated undertaking to the Digital Markets Unit. That is not the same as having a complaints process in place.

Do we think this could happen? Noble Lords will make their own judgments about that. All I am assuming is based on the fact that, for example, in April 2021, in the Judiciary Committee hearings on competition in app stores in the US Senate, Senator Klobuchar said, to paraphrase, that a lot of providers of apps were afraid to testify. They felt that it was going to hurt their business and they were going to get intimidated. So I am not having to invent the proposition that there may be a degree of intimidation between the providers of apps, for example, and the platforms that they wish to use.

In a sense, we do not actually need to know that it is happening to know that we should give the power to the Competition and Markets Authority to set conduct requirements as and when necessary to prevent such a thing happening. I do not think that it is comprised within the existing text of Clause 20.

I hope that my noble friend will take this one away, with a view to thinking positively about whether it is required to be added to the conduct requirements in Clause 20 at Report.

[Lord Stevenson of Balmacara (Lab)]

I am grateful to the noble Lords, Lord Clement-Jones and Lord Lansley, for raising this point. Clause 20 is very important, as has been mentioned, as it puts flesh on the bones of what we have been talking about for most of the first and half of the second day in Committee—which is whether we have in place the ability to deal with the important firms likely to be designated as SMS and the challenger firms. We have said before, and I am sure that we will repeat it, that this is a very innovative approach to regulating. We are very much trusting those who are appointed to take this forward with a great deal of power and not a lot of overarching scrutiny —or, if it is, it will be retrospective and not prospective.

Therefore, we have to understand that the CMA must have the ability to do all this and have the range of functions that are important. The noble Lord, Lord Clement- Jones, raised one in particular—a very important one to consumers—around seeing on the internet the goods of your dreams and then finding a payment system that siphons your money away but does not deliver the goods; that is not a palliative one for any Government to propose. I hope that the Minister has some reassuring words about the points raised by the noble Lord.

I had to read the amendment proposed by the noble Lord, Lord Lansley, three or four times to understand what he was getting at, so I am very grateful to him for his brief introduction. It was only on this occasion; normally, he is as a lucid as we would wish—and sometimes as pellucid. He raises a very subtle question about whether the measures that are not sufficiently exposed here will cover the question of those who have innovative lawyers thinking about ways in which they can avoid some of the very broad measures in Clause 20.

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[Lord Clement-Jones (LD)]

My Lords, I think there is quite a lot of meat in what the Minister said just now, both in respect of the amendment in the name of the noble Lord, Lord Lansley, and my amendment.

I appreciate that we have a set of moving parts here, including the response to the consultation on smarter regulation, improving consumer price transparency and product information for consumers, which came out this morning.

The answer to the noble Lord, Lord Stevenson, was quite interesting. However, if what the Minister said about the conduct requirements in Clause 20 is to be put into effect, I suggest that he has to bring forward amendments on Report which reflect the response to the consultation. I do not think this can be done just as a sort of consumer protection at the back end of the Bill; it has to be about corporate conduct, and at the Clause 20 end of the Bill.

Obviously, we will all read the words of the Minister very carefully in Hansard. It is interesting. I have written down: “Why are we kicking the tyres on Clause 20?” As the noble Lord, Lord Stevenson, said, this is absolutely central to the Bill. Basically, it could not be more important; getting this clause right from the outset will be so important. This is why not only we but the CMA will be poring over this, to make sure that this wording absolutely gives it the powers that it needs.

I take the point of the noble Lord, Lord Stevenson. These are very important powers, and we have to make sure that they are used properly, but also, as the noble Lord, Lord Lansley, said, that the powers are there. Otherwise, what are we spending our time here in Committee doing, if we are going to put forward a Bill that is not fit for purpose? We have to make sure that we have those powers. I like what the Minister had to say in reference to the Clause 20(3)(a) provision. Again, when people look at Pepper v Hart and so on, that will be an important statement at the end of the day.

We have certainly managed to elicit quite a useful response from the Minister, but we want more. We want amendments coming down the track on Report which reflect some of the undertakings in the response to the consultation on consumer price transparency and product information for consumers.

The only other thing to say—exactly as the noble Lord, Lord Stevenson, has said—is that comments about the consultation are that it was half a loaf. There is a whole lot more to be said on drip pricing. We have a discussion coming down the track on that, and we will reserve our fire until then.

[Lord Lansley (Con)]

As I understood it, Clause 20(3)(a) is about discrimination between users; it is not about trying to stop any user of a platform going to the CMA to complain about non-compliance or other conduct requirements—or indeed that conduct requirement. I will happily look at what my noble friend said and hope that it meets the test of the kicking of the tyres. If it does not, we may have to return to this.

[Lord Clement-Jones (LD)]

My Lords, that is a useful warning that we need to read Hansard extremely carefully to see what the Minister thinks the scope of that really is and whether it covers the point that the noble Lord, Lord Lansley, has made.

This is a continuing discussion and, in the meantime, I beg leave to withdraw my amendment.

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[Lord Lansley (Con)]

My Lords, in my short contribution I will look at what Clause 29 adds and whether it is necessary. I suppose I am saying that I want to speak to whether Clause 29 should stand part. We might have to come back to that.

My starting point was Clause 19(10):

“Before imposing a conduct requirement … on a designated undertaking, the CMA must have regard in particular to the benefits for consumers”.


Unless I am missing something, that will include disbenefits, so the countervailing benefits form part of that consideration. I do not understand why it would not be the best drafting, or the best Explanatory Note, to say, “Under Clause 19, when the CMA is considering imposing a conduct requirement, it must have regard to any countervailing benefits of not imposing such a conduct requirement”.

That is the starting point but let us say, for the purpose of the argument, that Clause 29 is not really about the imposition of a conduct requirement in the first place but about what should happen when there is a conduct investigation. But there are more stages for the designated undertaking. When the CMA wants to impose a conduct requirement, it has to give a notice under Clause 21 and say what the benefits are. The undertaking can come along and say, “Well, we have countervailing benefits if you don’t do this”, so it is entirely open at that stage to raise the countervailing benefits clause. I do not know why it is called an exemption. It is not an exemption. There should not be an exemption from the regime; there should just be a balance: how is the consumer benefit to be maximised? Once that notice has been served, it is subject to a public consultation under Clause 24, and the undertaking can come along under Clause 24.

Let us say that all that has happened, and there is a potential breach of the conduct requirement, and the CMA initiates an investigation under Clause 26. When the CMA does that, it has to give the opportunity to make representations within a defined period. Even if the countervailing benefits have not been taken into account in the original activity, when a breach is considered the notice is issued and the undertaking can come along and say, “Well, actually, the consumer benefits are being delivered by this means, and it is necessary and indispensable”, or whatever word you use. We could include it, if necessary, in the guidance.

I do not think that we are quite finished, even then. Clause 27 requires that in the

“undertaking to which a conduct investigation relates … the CMA must consider any representations that the undertaking makes”.

We could have put it in there, because it has a right to make representations at that point.

After all these things, which get us to the point where it has been considered in the first place, considered in whether a notice of a breach should be issued, and considered in the notice for the conduct investigation, and been given the opportunity to make representations, why do we need another clause that says that there is this thing that is called a countervailing benefits exemption as distinct from, at each previous stage—and there are many of them—the benefits or disbenefits and potential consumer benefits from different requirements that are to be considered? Frankly, I do not see it—unless it is, as my noble friend said, that there is a “get out of jail free” card that can be played. If it can be played, it will be played, so I do not think that we should allow it to be played.

[Lord Kamall (Con)]

My Lords, I will speak to Amendments 36, 38, 39, 40 and 41. I have been trying to understand the reason for the current government position. One issue that I have thought about, and which I have written about in the past, is the notion of unintended consequences. Often a well-intended government intervention can make things worse. Many of you will remember the example of the Government of the 1990s introducing the dash to diesel, as it was supposed to be better for the environment—and, in response, we found that actually it made things worse. That is not to criticise the Government of the day, as it was well-intentioned, and many people supported the reduction of greenhouse gases.

One thing that I have thought about with regard to better law-making is how we ensure that there are safeguards in place for when there are negative unintended consequences. For that reason, I have some sympathy for considering whether the unintended consequence of a CMA decision could make things worse for consumers. However, like many noble Lords I am concerned that this is a massive loophole for large tech companies to continue to engage in anti-competitive behaviour or, as other noble Lords have said, slow down the process.

Having looked at the amendments and the Government’s position, I want to ask my noble friend the Minister a direct question. Could he explain what the Government mean by countervailing benefits and give some real examples, or hypothetical examples, of where consumers may be harmed by a pro-competitive intervention by the CMA? If that response convinces noble Lords, perhaps the Government could consider bringing forward an amendment based on Amendment 41 from the noble Lord, Lord Clement-Jones. I look forward to my noble friend the Minister’s response.

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[Lord Vaux of Harrowden (CB)]

I hope that this group of amendments will not be as much of a marathon as the previous group—or indeed that performance from the Deputy Chairman. I start by apologising that I could not attend the first day in Committee, due to a combination of Avanti West Coast and Storm Isha. I would have liked to have spoken in support of amendments in the first group that day, and I entirely agree with what has been said about ensuring that we do not create opportunities for large tech firms to use their immense legal firepower to slow down the process of designating them as having strategic market status, and ensuring that the information and work already done by the CMA can be taken into account. It is fair to say that the same themes have continued today, and Amendment 59 is a continuation of them in a slightly different way.

As a number of noble Lords have already pointed out, we already know who the main strategic players are and that they are already abusing their strategic market positions, as the noble Lord, Lord Tyrie, said so clearly on day one. The noble Baroness, Lady Harding, described how the big tech players know that the regulation is coming, but they are walking backwards as slowly as they can. As she pointed out, we see that very clearly with the EU’s Digital Markets Act, in which so far every potential SMS-equivalent firm has challenged its designation through every stage of the courts that it can. So at best we are unlikely to see any SMS designations until well into 2025, and possibly much later, if they are able to spin out the process.

If I read the Bill correctly, there is actually only one immediate additional obligation that designation imposes on a company: a requirement to report possible mergers on a more enhanced basis than currently applies. But this obligation does not come into force until the SMS designation has been made.

As I said, we already know who the main players are. That is not just speculation—the CMA has already confirmed some of them in its previous work. As an example, in its Mobile Ecosystems market study report of June 2022, just a year and a bit ago, the CMA confirmed that both Apple and Google would meet the test of having strategic market status in the supply of mobile operating systems and the devices on which they are installed, in native app distribution, and in mobile browsers and browser engines. It is not speculation; we know who these people are. Why, then, would we want to wait for another year or more, allowing them to game the system during that period, before applying the enhanced merger reporting requirements on them?

Amendment 59 would apply the enhanced merger reporting requirement to companies that have been given notice that they are under SMS investigation, rather than having been designated. We do not have to wait until the designation has been made. We have heard already the fears that the large tech players will seek to spin the designation process out. Without Amendment 59, the large tech companies would have an additional incentive to game the system by deliberately prolonging the designation process so that they could complete a merger that would be reportable once designated but which is not reportable before the designation is made. I do not think that it is a good idea to give them further incentive to do that.

This is important. For much too long, the large tech companies have been able to entrench their market power through acquisitions with relative impunity. Very few have been passed to the CMA for investigation. In the 10 years to June 2023, according to Wikipedia—admittedly not the best source, but the only one I could find easily—Alphabet, the owner of Google, has completed at least 129 acquisitions, Apple 81 and Microsoft 110. In each case, that has happened across an extraordinarily wide area of activities. These big companies can afford to gamble on acquisitions, even if all they do is succeed in taking out a competitor, or potential competitor.

The enhanced merger reporting regime that this Bill will introduce is a really important step, and I very much welcome it, but we should ensure that it cannot be side-stepped by making it applicable as soon as a company has been informed that it is under SMS investigation. This does not prejudge the merits of any merger; it would simply allow the CMA to take a look while the SMS investigation is under way, rather than it going through under the radar.

I am sure that the Minister will argue that it would be unfair to apply the more stringent merger reporting rules to companies that have not yet been designated, but I do not believe that that is right. First, under Clause 9, the CMA is able to investigate an SMS firm only when it has reasonable grounds to consider that it may be able to designate an undertaking as having SMS. As previously pointed out, we know who those companies are, and we know that there are reasonable grounds for a lot of them that exist at the moment, as the CMA has already pointed out. More importantly, would not it be extraordinary if a merger that would meet the new threshold, and that therefore might impact the strategic status investigation itself, was not reported to the CMA during the investigation? That cannot make sense.

This is very simple: we know who the strategic players are, we know that they abuse their market power, including through mergers and acquisitions, and we know that they are likely to seek to challenge and prolong designation to avoid regulation—we have seen them do it. So let us at least put them under the enhanced merger reporting rules at the earliest opportunity, rather than leaving it for another couple of years.

[Lord Lansley (Con)]

My Lords, I am very glad to follow the noble Lord, Lord Vaux of Harrowden, who presented very well the context to both of these amendments and made a very good point about the desirability of extending the scope of Clause 57 in the way proposed in Amendment 59.

Amendment 60 stands in my name and that of the noble Lord, Lord Clement-Jones—who may be able to say something in his absence through the medium of the noble Lord, Lord Fox.

From my point of view, Amendment 60 goes back to the Furman review of 2019, which noble Lords will recall, which reflected a similar point to one that was made by the noble Lord, Lord Vaux of Harrowden. Paragraph 3.44 of the review referred to the preceding decade and said that in that preceding decade

“Amazon, Apple, Facebook, Google, and Microsoft … have made over 400 acquisitions globally”.

Under the Competition and Markets Authority in this country, in that decade none was blocked, none was notified voluntarily and none was called in for phase 1 or phase 2 investigation. There were European Commission investigations—and that might be regarded as the more appropriate umbrella as a competition authority—but it cleared Google and DoubleClick, Apple and Shazam, and Microsoft and LinkedIn. They were not blocked.

The world has moved on since Furman, and you might say that we have learned more and know more about some of the benefits that are obtained by some of those acquisitions. But the Furman review looked very carefully at whether we should regard mergers involving digital companies differently. That is, I suppose, my point.

I refer to paragraph 3.81 and subsequent paragraphs of the Furman review, which said:

“In mergers involving digital companies, the harms”—


the balance of benefits and disbenefits in relation to future competition—

“will often centre around the loss of potential competition”.

It goes on to say:

“Although potentially harmful to consumers, these outcomes are likely to be relatively uncertain at the time of the merger. This may make it hard to demonstrate that a substantial lessening of competition is more likely than not”.


I will come back to “substantial lessening of competition”, which will be a term familiar to many noble Lords. It gave the example, at this point, of the 2012 Facebook acquisition of Instagram, which at the time was a small photo-sharing platform. It said that even if the OFT had gone on from its phase 1 to a more thorough phase 2 investigation—which of course is more than a decade prior to the period it was looking at—it may have been limited in its ability to block the merger by the balance of probabilities standard: looking at a substantial lessening of competition, would it be more likely than not that there would be a substantial lessening of competition? We do not need to debate Facebook and Instagram and how it all turned out.

The Furman review said:

“The CMA should take more frequent and firmer action to challenge mergers that could be detrimental to consumer welfare through reducing future levels of innovation and competition, supported by changes to legislation where necessary”.


That was its strategic recommendation B. It went on to say, in a recommended action:

“Digital companies that have been designated with a strategic market status should be required to make the CMA aware of all intended acquisitions”.


That is indeed exactly what Clause 57 achieves. To that extent, the recommendations of the Furman review were carried through.

Interestingly, the Furman review went on to discuss the question of whether the balance of probabilities standard could be replaced by a balance of harms standard. I am not going to pursue that, because I can see that it was very difficult to vary a standard which is, in effect, not in the statute but is in the substance of the practice. What I have done instead, in Amendment 60, is to ask what it is that is lacking, or may be lacking, and should we, through the mechanism of the Bill, examine very carefully whether we can do more to strengthen the powers of the Competition and Markets Authority in relation to digital competition in particular.

Once there is a notification in relation to a potential merger, Clause 57(9) refers to the steps that the CMA may take in relation to a merger. It refers to Section 33 of the Enterprise Act 2002. It does not change it; it just refers to those steps. I have the benefit—I may not be the only one here, I am not quite sure—of having been on the Standing Committee in the other place on the Competition Act 1998 and the Enterprise Act 2002. I see that my noble friend was on the Standing Committee on the Enterprise Act—and maybe both.

We will come back to the issue, but I say to my noble friend the Minister, in parenthesis, referring to the previous debate, that trying to compare a block exemption under the Competition Act, which is ex post regulation, with an exemption applied in relation to an ex ante imposition of a conduct requirement by the regulator is, I am afraid, a false analogy. I will not go back to that, but I think it does not really apply.

What I have done in Amendment 60 is to seek to vary Section 33 of the Enterprise Act 2002—quite a big thing to do—but only in relation to designated undertakings. The amendment says that if one is a designated undertaking, not only does one have to notify but there is a difference in the structure of Section 33, so that where it says that a reference can be made in relation to

“(a) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and (b) the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services”,

I am seeking adding an “or”. So (a) would apply in all cases; (b) might apply; or (c ) would apply, which the amendment makes clear would say

“or, (c) if the relevant merger situation involves a designated undertaking under section 2 of the Digital Markets, Competition and Consumers Act 2024 the creation of that situation may be expected to result in the loss of future benefit to consumers in the provision of digital activities as a consequence of the forestalling of prospective competition”.

The drafting may be deficient, but I make the point that we need to put in the drafting what we are trying to do. That is to give the CMA explicit statutory cover to look forward—as it does in its five-year forward designation—identify a merger situation and ask, in the context of its forward-looking assessment, which it must do for designation purposes, whether there is an expectation that that merger situation would result in the loss of future benefit to consumers if it were brought into effect. That is a reasonable alignment between the nature of the designation process and its forward-looking character and the desirability of the assessment of any potential merger situation having the same characteristic.

Digital Markets, Competition and Consumers Bill

Lord Lansley Excerpts

Committee stage
Monday 22nd January 2024 Grand Committee

[Viscount Camrose (Con)]

I certainly do not intend to gloss over any of these issues. I can confirm that the department receives extensive advice on these matters, as have those working on the Bill, not only from competition lawyers but from other stakeholders in the market of all different sizes and types, and indeed from the CMA itself. To turn around the noble Lord’s position, if we make a designation that is designed to last for five years, it is crucial that we take into account existing evidence and what is foreseeable today when determining whether to make that designation. Nobody is being asked to be overly speculative, but it is possible to identify existing trends and available information that can form part of the analysis, and use that to make the determination, particularly as the CMA will then have a duty to explain in detail the rationale behind its decision to designate a firm with SMS, or indeed not to do so.

[Lord Lansley (Con)]

Apologies; I had not intended to intervene on this group, but I am confused and I wonder if my noble friend might be able to help me. We have the word “entrenched”. Obviously, we are talking about “substantial and entrenched”, but “substantial” is not really in debate since, if it has strategic significance, it is likely to be substantial; the issue is with “entrenched”.

A theme that I might develop later on other aspects is to look at our legislation in the context of what has been done by the European Union in its Digital Markets Act. We are doing things differently—and better, I hope—but my point is that the European Union looks at the question of what it describes as an “entrenched and durable position”. That seems to have two aspects to it: the first, “entrenched”, is that it exists and has existed for some time; and the second, “durable”, relates to it being foreseeable that it will continue to exist in future. We have lost the word “durable” and retained “entrenched”, but we are applying it in relation only to what is foreseeable—forward-looking assessment. I am confused about why it is only a forward-looking assessment. The relevant regulation from the European Commission looks back three years to establish whether it is entrenched, and looks forward to see whether it is durable or whether there are foreseeable developments that would give rise to such an entrenched, significant market status. I am looking for both and, at the moment, I cannot see both; I see only the forward-looking part.

[Viscount Camrose (Con)]

Indeed. I am afraid that the use of the word “durable” in this context is new to me. I will very happily take that forward and consider whether it might be a valuable addition to the guidance here. To focus on the outcomes that we want here, we want a reasonably derivable position that the existing entrenched power of the potentially SMS-designated firm is likely to last for the five-year period. We want to ensure that any evidence or analysis supporting that position is presented as part of the report that details why the decision is taken. I will take forward the use of the word “durable”.

[Lord Lansley (Con)]

Would it be fair to say that the contention in this legislation is that the determination that there is a position of strategic significance also satisfies the argument of whether such substantial market power exists? This further assessment is really about whether it is likely to be entrenched and durable over the five-year period, since the designation extends for five years. This is looking forward over those five years. I think it is perhaps not absolutely clear how these two clauses are intended to be considered together for this purpose.

[Viscount Camrose (Con)]

I take note of my noble friend’s point. There may be many areas on which all of us in this Committee end up disagreeing, but one that I doubt we will disagree on is the need for absolute clarity in all these measures. I am very happy to commit to taking that away and seeing whether there is an appropriate form of words that can deliver the clarity that noble Lords are seeking.

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We have heard about the asymmetry potentially within this Bill if we do not get the information sharing right. This would create yet another competitive imbalance in the legislation that is designed to remedy an anti-competitive market. The provisions in this legislation must be available to the smallest player in the market as well as the largest. Amendment 19 would not compromise confidentiality of individual transactions or reveal identifying information about any SMS firms or third parties, because of the requirement that the CMA anonymise and aggregate any data it publishes. The amendment would also allow policymakers, academics, civil society and journalists to monitor the effectiveness of the new regime.

[Lord Lansley (Con)]

My Lords, this is a substantial group of amendments. I have two amendments in the group to which I wish to speak: Amendments 20 and 29. I am grateful to the noble Lord, Lord Clement-Jones, for signing them. I will also discuss a number of other amendments later.

We are dealing with the structure of Clauses 19 and 20. Clause 19 has a set of objectives that conduct requirements are intended to achieve. My noble friend Lord Holmes of Richmond’s Amendment 15 effectively asks us to examine what the purpose of the objectives are. It is quite an interesting question. The objectives are not translated directly into the conduct requirements; the conduct requirements are intended to achieve the objectives. Setting out the broad range of objectives might be regarded as a way of enabling the Competition and Markets Authority to have a broader scope when setting its conduct requirements. Equally, there is a risk that if the scope of the conduct requirements is not specified in Clause 20 and they rely on Clause 19 and the broad-ranging objectives, they will be opened up to challenge as to the meaning of them. We need to be careful.

I come at this from the standpoint that the Digital Markets Act in the European Union does not set objectives in quite that way. It sets not broad objectives but a large number of detailed obligations on what it calls gatekeepers—effectively the same as our designated undertakings for these purposes. We are going down the different route of setting broad objectives and a broader description of conduct requirements. The Competition and Markets Authority will then go on to specify in detail what those conduct requirements look like in relation to any particular designated undertaking to achieve the objectives. That is a better way of doing things.

My two amendments—I will comment on one or two other amendments to the same effect—are asking whether Clause 20 gives the Competition and Markets Authority the necessary scope of powers to achieve what it wants to achieve by setting conduct requirements. Clause 20 is divided into two parts: the things that are positively required to be done by designated undertakings and the things that designated undertakings should be prevented doing. It is important to have those two bits in mind.

I have to confess that I have used the mechanism of looking at our own legislation through the scope of other legislation before, and Amendment 20 to Clause 20 is no different. I looked at the Digital Markets Act and it sets out a lot of detailed obligations. I then asked myself: to what extent do I feel comfortable that what is in Clause 20 gives the CMA the power to do this thing if it wishes to do it?

People are not likely to argue about the fact that data itself is central to this process. When it sets obligations for gatekeepers, Article 5 of the Digital Markets Act starts with a set of obligations related to the ways in which the personal data of users of services can be taken and used. Article 6 talks about the circumstances in which data may be portable and the portability of data between and among gatekeepers and users. Article 6(11) sets out the circumstances under which gatekeepers may or may not access third-party data provided to them as a consequence of users of their undertakings. Article 7 consists entirely of obligations on gatekeepers in relation to the interoperability of number-independent interpersonal communication services.

These are all detailed obligations relating to data access. Whose data can they access and how can they use it? How can they port data between different users and themselves? They are also about the interoperability between and among the users of their services.

I have looked at Clause 20, and the noble Lord, Lord Clement-Jones, was right: there is a provision which restricts interoperability. It is in that bit which prevents undertakings doing things that they should not do. It says that they should not restrict interoperability, but there is no corresponding positive conduct requirement which says that they should be promoting interoperability. This is where the noble Lord and I are coming from, in relation to our Amendments 20 and 21, if I remember correctly.

The point is to secure data access, interoperability and data portability. My amendment is designed to put into that first, positive set of conduct requirements that those should all be things where the CMA has the ability to make what are, effectively, positive conduct requirements upon undertakings to ensure that they enable the market to function more competitively and more efficiently. That is Amendment 20.

Why do I not rely in Amendment 20 or Amendment 21 on the other reference to data, which is in Clause 20(3)(g)? That provision means that requirements may be

“for the purpose of preventing a designated undertaking from … using data unfairly”.

This is very dangerous. We have reached the point where data is a central issue, yet Clause 20 hardly specifies the various ways in which data should be at the core of these conduct requirements. The only reference that we are really relying on for many of these issues is that it should not be used “unfairly”. That is not enough. I am not taking that out, but let us leave in “using data unfairly” and add to it.

Where we add to it is not least in Amendment 29, which, after saying that they should not use data unfairly, would insert

“or using data that is not publicly available which is generated or provided by users of the relevant digital activity in the context of their use of the relevant digital activity”.

I use that language because it is a shorter version of what is in Article 6.2 of the EU regulations, which says that a gatekeeper should not use

“in competition with business users, any data that is not publicly available that is generated or provided by those business users in the context of their use of the relevant core platform services”.

It seemed to me that there was a particular extension of this question of the unfair use of data, which is where they take data from their platform users and use it for themselves. That is what we are trying to restrict and, broadly speaking, what the Digital Markets Act tries to restrict. These two amendments, from my point of view, are about putting data firmly into the conduct requirements, specifying how data is important and where positive requirements may be put, and being specific about the unfair use of data, when data that other users put on the platform is taken for their own use.

On other amendments, briefly, Amendments 22 and 32 would give the CMA the power to vary the scope of conduct requirements in future, rather than relying on the Secretary of State to do so—but of course with parliamentary approval. There is an argument which says, “At least we have an opportunity to examine any change in the scope of conduct requirements if we leave that in”, so I am afraid I do not support that.

The noble Lord, Lord Clement-Jones, made an interesting set of points about copyright. That is very important and it is quite hard to see where it lies in here, unless it were under trade on fair and reasonable terms. However, it will require the CMA to look and ask, “Do fair and reasonable terms lead us to set conduct requirements for designated undertakings relating to, for example, copyright terms?”. It might perhaps be worth us exploring whether it should.

There are one or two other things. I support Amendment 34, which raises a valuable question about taking account of the impact of conduct requirements before making pro-competitive interventions. Otherwise, I just make the general point that I hope, through Amendments 20 and 29, we might put the importance of data firmly into the structure of conduct requirements for designated undertakings.