Digital Markets, Competition and Consumers Bill

Debate between Lord Tyrie and Lord Lansley

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?