Digital Markets, Competition and Consumers Bill

Baroness Bennett of Manor Castle Excerpts

Report stage
Wednesday 13th March 2024 Lords Chamber

[Lord Moore of Etchingham (Non-Afl)]

My Lords, I refer your Lordships to my entry in the register. I have been on the staff of the Telegraph Media Group since 1979, so this interest bulks large in my mind; I had to confess it at once. I am very grateful for everything that has been said and to the noble Baroness, Lady Stowell, for moving this amendment. I am also very pleased that this has been a cross-party affair coming from all sides of the House.

My only regret so far is that the Government were inclined to regard this as a technical matter that had to be looked at in terms of rules. It is important to look at the rules, which DCMS is doing, but it is not really about that. As has been said by the noble Lord, Lord Forsyth, and all other speakers, this is a very important matter of principle. The delay involved has been very difficult for newspapers in general, and particularly for my own and for the Spectator, because while you do not know what will happen you cannot really get on with doing your journalism. That tends to erode things if you are not careful, so it is very important that we have got to the heart of it.

I endorse absolutely everything that the noble Lord, Lord Forsyth, said about the Abu Dhabi bid, but I am quite glad that I do not have to say it myself, because if we had had such a rule and such clarity from the start, people would not have had to get into this issue of saying rather difficult truths about many regimes across the world. We would simply have been able to say, “No, sorry, the rule is the rule, and that’s that”. I hope we can learn something from all that.

I have seen the leak, if that is the right word, so I have a rough idea about what we might hear later. I want to make two important points. One is that I hope the Spectator, and magazines like it, will be properly included in any decisions, because, as I understand the rules at present, they refer to national newspapers and not automatically to national news magazines, and I think precisely the same point should apply.

There is room for possible problems about minority ownership. It is possible, in the way that ownership works in companies, that an ownership of less than 50% can amount to a controlling interest; that can be done in a covert way or sometimes in an open way. If it were the case that, for example, RedBird IMI took a minority stake, that would be better than a majority stake but would not automatically solve the problem. I hope the Government will address that.

At the Daily Telegraph we have always been proud advocates and practitioners of a free press, but we have not particularly enjoyed having to advocate it quite so hard and so repeatedly to get the message across. I am glad to sense that the message has got across, and I am grateful to noble Lords on all sides of the House. I hope we can now move forward with due expedition.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise very briefly for two reasons. First, I offer Green support to the direction in which we are heading and join in the congratulations for the noble Baroness, Lady Stowell, on all the work she has done here.

Before I begin the second point, I declare my historical interest as a former editor of the Guardian Weekly and a former employee of the Times. I will refer to the report Who Owns the UK Media?, published last year by the Media Reform Coalition at Goldsmiths. I very much agree with what the noble Baroness said about the importance of the principle of press freedom, and with the noble Lord, Lord Forsyth, about the free press as a foundation of our democracy, and that ownership matters. But I urge all noble Lords who take part in this Report to consider how much diversity of media ownership matters.

As it says in that report, three UK publishers—DMG Media, News UK and Reach—control 90% of the print reach in the UK and 40% of the online reach. The report’s authors said there was an “urgent need for reform”, and urged Ofcom, Parliament and the Government to take action to address diversity of media ownership. If DMG Media were to buy the Telegraph Media Group, its print share would rise from 42% to 47%.

I very much welcome what I think we are about to hear and all the work that has gone into this, but I urge noble Lords to consider the much more work that needs to be done to achieve the diversity of voices that is so crucial to the strength of our democracy.

[Baroness Fleet (Con)]

My Lords, I rise to speak to Amendment 67, tabled by the noble Baroness, Lady Stowell, and I congratulate her on all the hard work she has done to get to this point.

I have not spoken previously on the Bill, but I specifically want to speak today as a passionate supporter of a free press and freedom of speech. As a former deputy editor of the Daily Mail and the Daily Telegraph, and the editor for seven years of the London Evening Standard, I know that anyone who buys a newspaper wants to influence society, politicians and government. All proprietors interfere. Many editors have been forced to resign because of that interference. I departed from the Telegraph with Max Hastings because the owner—the noble Lord, Lord Black—disagreed with the editor’s support for Europe. After I left the Standard, the paper became a promotion vehicle for the new owner, the noble Lord, Lord Lebedev, and his personal interests. The notion that a Government, or someone appointed by a Government, buys a newspaper other than to directly influence the newspaper is fanciful.

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Moved by

[Baroness Bennett of Manor Castle]

68: Clause 148, page 94, line 33, at end insert—
“(c) the collective interests of consumers includes avoiding any detriment that might be incurred by consumers as a result of advertising products and services which will have a significant impact on the United Kingdom's ability to reach a level of net zero carbon emissions by the year specified in section 1 of the Climate Change Act 2008.”Member’s explanatory statement
This amendment seeks to amend the definition of the ‘collective interests of consumers’ to include the detriment caused by advertising and promotion of high carbon products and services.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise to move Amendment 68, but it is not my intention to speak to any of the other amendments in this diverse and large group, in the interests of proceeding in a timely manner.

Noble Lords will see that this amendment seeks to amend the definition of the collective interests of consumers to include

“the detriment caused by the advertising and promotion of high carbon products and services”.

For noble Lords who were not in Committee, I will tell the story of the origins of this, which was Amendment 109 from the noble Baroness, Lady Jones of Whitchurch. Her amendment basically set out that there would be controls to avoid detriment for any action that would prevent us reaching net zero by 2050. I pointed out to the noble Baroness that, given that at that time the Climate Change Committee was saying that we were well off track for meeting that 2050 net-zero target, the amendment, in effect, would have stopped all advertising of any product producing carbon, which I do not think was the noble Baroness’s intention.

I therefore find myself in the unusual situation of tabling on Report a more moderate amendment than we were discussing in Committee in terms of reducing carbon emissions and looking to reduce the detriment for consumers. That is why my amendment focuses on high-carbon products. As I said in Committee, high-carbon products obviously include fossil fuels, flights, SUVs and plastics, but also fast fashion, meat and dairy, and banks that are funding the likes of BP and Shell. It is worth noting, going back to when the Government first started promoting this Bill, that we were promised a huge amount of action; one of the purposes of the Bill was to provide protections from greenwashing. We have gone a long way backwards from that. My amendment is an attempt to reinstate, in a small way, what was stated to be an original intention of the Bill.

I promise that this was not co-ordinated, but I note that I speak to this amendment just a few hours after—we are very timely—another Member of your Lordships’ House, the noble Baroness, Lady Brown of Cambridge, has published an article on Business Green pointing out how the UK is not in any way on track to meet the needs of climate adaptation. She talks about us

“sleepwalking into an energy system”

that cannot be implemented and achieved, while we face flooding, extreme heat and water scarcity that will cost lives.

Therefore, this is an amendment to take us in a direction that we surely need to go. There is no right to advertise. We can decide what sort of advertising all our consumers are subjected to, particularly in the digital space, where people are bombarded, every second, with more and more adverts, and we know how advertising tracks us: once we have shown an interest in one topic, we are subject to bombardment. We do not have to say that it is open slather and you can do whatever you like in terms of advertising and promotion. Cigarette advertising is an obvious area where we have already taken quite tight action, and I note that Transport for London now restricts advertising of a range of products, including junk food, and there is talk of banning gambling promotion. France and Amsterdam are also looking at a ban similar to the one that this amendment would point us towards, banning high-carbon adverts.

It is not my intention to put this to a vote. There are so many areas of government action in which the Greens start saying something and, 10 years later, it gets delivered and becomes government policy, but we really cannot wait on climate action, as the independent Climate Change Committee says; that, of course, features Members of your Lordships’ House. We really need to act now, and if we are not going to see this from the Government in this Bill, there will be opportunities forthcoming. The Media Bill comes to mind, and we will see where we can continue to push for action in this area. I beg to move.

[The Earl of Lindsay (Con)]

My Lords, I shall speak to Amendments 99 to 101 and I declare an interest as president of the Chartered Trading Standards Institute. I am pleased that also sponsoring these amendments are my predecessor as president of the institute, the noble Baroness, Lady Crawley, and the noble Baroness, Lady Bakewell of Hardington Mandeville, a former leader of Somerset County Council.

Before speaking to these amendments, I thank my noble friend for using the Bill to extend online interface order provisions to trading standards, an issue we raised in Committee in amendments moved very ably by the noble Lords, Lord Clement-Jones and Lord Bassam of Brighton. I thank my noble friend also for the correspondence and discussion with him and his officials since Committee about the ongoing concerns that have prompted our amendments in this group and the next.

Amendments 99 and 100 would enable local authority trading standards officers to exercise their powers throughout the United Kingdom. Currently, the legislation implies that officers in England and Wales can exercise powers only in England and Wales but not in Scotland, and vice versa, but rogue traders operate across our internal borders and the legislation and powers that underpin trading standards and consumer protection should recognise this cold, hard reality. We fully respect the different legal jurisdictions involved. The current restriction, however, relates to the exercise of powers, not to the ability to take legal proceedings, and the legislation applies equally in the devolved nations. The restriction makes enforcement more challenging if, for example, a trader based in Scotland commits an offence in England, as trading standards officers can face legal challenges if they request documents they would be entitled to were it not for this anomaly. I should add that trading standards officers across Scotland, England and Wales support this amendment, as it would allow them to conduct investigations throughout the United Kingdom in a more efficient and cost-effective manner.

Amendment 101 would enable trading standards to access information by letter, rather than being restricted to having to exercise a power of entry to access that same information. As the Bill is currently drafted, trading standards need to visit the business in person to obtain paperwork to use as evidence in criminal proceedings. This amendment would ease the pressure on businesses, as they will then have time to gather and send any documents requested, and to seek legal advice, rather than face a trading standards officer just turning up at their business address without notice and seizing documents.

This proposal is therefore in the interests of both businesses and enforcers, and we believe that it does not breach the individual’s human rights or cause any greater risk of self-incrimination. It also reflects the financial difficulties that local authorities are facing, not least those that have declared bankruptcy. There are clear cost implications if an enforcement officer is required to drive half way across the country to obtain documents. Cases can be dropped if there is insufficient council budget for such travel. The documents I am referring to are those that the officer has the right to request and seize when on the business premises, and in those circumstances a trader would have to provide them immediately.

We believe that the ability to make a written request for documents that are held by the business and are required as evidence would substantially reduce costs to the local authority, reduce pressure on businesses and allow those breaching the legislation to be brought to justice more efficiently and cost effectively.

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[Lord Offord of Garvel (Con)]

On the basis that my noble friend Lord Camrose has responsibility for the IPO, he has kindly offered to write to the noble Lord on this matter and give further clarification.

This has been a varied and valuable debate. I thank noble Lords again for their engagement. I hope the assurances that I have provided will therefore give noble Lords confidence not to press their amendments.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I thank the Minister for his response, though I am not sure “confidence” is quite the right word for the emotion I am feeling at the moment.

I said that I would comment only on my Amendment 68, but I must make brief reference to commend the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Crawley, for doing what many think your Lordships’ House should be restricted to—providing modest improvements and ways to help the Government make the system work better. I do not think it should be restricted to that, but it is certainly important that it does it. Reflecting on the trading standards issues, it was not mentioned but is worth noting that the Chartered Trading Standards Institute noted last year that, in the last decade, the number of trading standards officers in local authorities has halved, so they need anything that makes their work easier. The Government would, I am sure, say that they believe in efficiency and government productivity, and the suggestion from the noble Baroness seemed to be designed for that purpose. None the less, those are very technical areas, so I will park them there, as I will park the government amendments.

Regarding my Amendment 68, we will be watching closely what the CMA does in terms of action on green- washing. There is a general belief that the Bill simply does not have the teeth, or strength, that it needs. The overall issue—that we are way beyond our current targets on climate emissions—was not addressed by the Minister. I thank the noble Lord, Lord Stevenson of Balmacara, for the comments and strength he brought to the intention to see more action in this area. In the meantime, I beg leave to withdraw the amendment.

Amendment 68 withdrawn.

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The changes I am asking the House to accept are simple yet vital consumer protection measures. I am not seeking to ban the secondary market, as the Irish Government have done in the face of these market abuses; nor am I seeking to criminalise the secondary market, as my noble friends on this side of the House did when it came to the Olympic and Paralympic Games in 2012. I am simply asking the Government to ensure that there are methods in the legislation to stop touts exploiting consumers with hidden icons on their tickets, to provide proof of legitimate purchase and to stop touts selling thousands of tickets that that they do not have at the time of offering them for sale. Hiding critical details behind icons is disingenuous, at least, and dishonest, at worst. There is adequate room on tickets for this information, as evidenced by many theatre tickets across London.

[Baroness Bennett of Manor Castle (GP)]

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

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

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

[Lord Clement-Jones (LD)]

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

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

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

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

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

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

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

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

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

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

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

He also said that whether the transactional decision

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

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

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

“become consumers in the eyes of the law”.

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

The Minister said that

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

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

The Minister also said:

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


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

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