Digital Markets, Competition and Consumers Bill

Debate between Chris Bryant and Jeremy Wright

Consideration of Lords amendments
Tuesday 30th April 2024 Commons Chamber

[Sir Jeremy Wright]

How would a tribunal consider the appropriateness of a CMA intervention without considering the detail and merit of it?

[Sir Chris Bryant]

The point is that either the change is necessary because a new and different measure is being adopted by the Government, in which case it is a lower threshold and therefore inappropriate, or the change makes no difference whatsoever, in which case it is unnecessary. The normal standards for deciding whether an amendment is appropriate would lead us to ask, “Is it necessary, or does it provide a good remedy?” I do not think that either is the case, which is why Labour does not support the Government’s wording.

The second set of amendments, Lords amendments 12 and 13, deal with countervailing benefits. Just to prove that Labour Members speaking from the Dispatch Box are very consistent with one another, my next sentence was effectively said by my hon. Friend the Member for Pontypridd in a previous debate: the countervailing benefits exemption allows the Competition and Markets Authority to close an investigation of a breach of a conduct requirement if a firm can demonstrate that its anti-competitive conduct produces benefits that outweigh the harm and are therefore indispensable. On Report in the Commons, the Government significantly reduced the threshold for that exemption, removing the word “indispensable” and merely requiring that

“those benefits could not be realised without the conduct”.

It sounds the same, but it is different—subtly but importantly different. The Lords amendments would remove that paragraph and alter the next line so that it reads

“the conduct is indispensable and proportionate to the realisation of those benefits”.

I will make two points in this area. First, as I think everybody accepts, the “indispensable” standard is a well-understood concept in UK competition law: it is used in the Competition Act 1998, which I do not believe to be as outmoded as some Members have suggested. Secondly, the courts would interpret Parliament’s deliberate move away from an existing, well-understood standard as intending to create a new, lower threshold, which again will inevitably allow the big tech firms greater scope to launch complex legal challenges.

If the Government really do not see any distinction between the two thresholds, the most obvious compromise would be to reinstate the word “indispensable” alongside the Bill’s new wording and to clarify, today at the Dispatch Box and in the Bill’s explanatory notes, that the “indispensable” standard and the new form of words inserted by the Government have an identical meaning. Otherwise, there is a risk that the courts will seek to explore further whether Parliament has deliberately created a new threshold and standard.

I simply say to the Minister that I remember, when he was on the Back Benches and we had lengthy discussions about the powers of Companies House, that he was very keen on making sure that Companies House had the powers it needed to do proper investigations. He regularly made the point that lots of people have very deep legal pockets, and that does not necessarily mean that the consumer always wins out. I would argue that it is the same in this case.

Lords amendments 26 to 28 to clause 89 and Lords amendments 31 and 32 to clause 103 relate to appeals. The Bill originally had judicial review as the appeal standard for all CMA decisions under part 1, but in the Commons the Government moved to merits appeals for penalty decisions. I accept that this is only about penalty decisions, but I none the less believe that it is dangerous because, while the new regime is intended to be collaborative, it is ultimately the threat of fines that will incentivise big tech firms to comply with the CMA’s decisions. If there is no prospect of a fine, whether large or small, those large tech firms may well decide to be less collaborative.

There is the even greater danger that merits appeals on penalty decisions bleed back across the Bill into regulatory decisions, giving big tech firms greater scope to frustrate and challenge the CMA’s decisions. While it is correct that the courts are generally able to distinguish between judicial review and merits elements of appeals—that point has been made in previous debates by the former Attorney General, the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright)—it does not eliminate the concern about the two bleeding into each other, especially if the two streams take place together in the same case. If the Government are unable to reinstate judicial review appeals across part 1, as we would prefer, a clarificatory amendment should be inserted in the Bill to provide certainty that appeals on penalties cannot impact on other regulatory decisions to eliminate scope for speculative challenges.

It is worth bearing in mind that the chief executive of the CMA has made it clear that the authority wants the judicial review standard to apply. She welcomed effective judicial scrutiny of its decisions, but said:

“We think that the JR standard achieves that.”

She went on to say that her experience of merits appeals was that they result in

“very protracted litigation”,

making it

“a lot harder to reach constructive, collaborative outcomes”,

because

“all eyes are on that litigation process.”––[Official Report, Digital Markets, Competition and Consumers Public Bill Committee, 13 June 2023; c. 7, 8, Q4.]

Let me come on to the matter of ticket touting, and Lords amendment 104. I start by thanking Lord Moynihan—a Conservative peer, of course—for tabling this amendment and for his significant work across many years. When I have not agreed with every sentence from my hon. Friend the Member for Washington and Sunderland West (Mrs Hodgson) on this subject, I have sometimes felt the scratches on my back from her very elegant fingernails, but she has also done enormous work, and I think she is much to be praised for it. There are many others in the House of whom that is true as well, including all those sitting next to her on the back row, who I am sure will catch your eye later, Mr Deputy Speaker.

I start from a very simple principle: the value of a ticket—whether for the rugby, the football or a gig at the O2—is created by the artists, the promoters and, above all, the fans. Yes, the secondary ticketing market can help all three, because sometimes people buy more tickets than they need or are unable to attend for whatever reason, but the abuse of the secondary market can lead to artists, promoters and fans all losing out, and abuse is rife.

I will take an example of a case that has already been through the courts. It is that of Lynda Chenery, Mark Woods, Maria Chenery-Woods and Paul Douglas, who bought and resold concert tickets worth £6.5 million. They bought them on primary sites, including Ticketmaster, before reselling them on secondary ticketing platforms, such as Viagogo, at inflated prices. They used endless tricks, including sending customers ripped envelopes to imply that the tickets had been lost in transit or using fraud juice, which involved the use of Tipp-Ex correcting fluid or more sophisticated digital methods, to amend tickets. They held their customers in open derision. Having scammed one person into paying £535 for a ticket for the Harry Potter west end show, they referred to him in an email as “another idiot”. These people are despicable parasites preying on fans, and we need to go far further to address this issue.

This practice prices many fans out of the market and adds no value whatsoever to the creative process, at a time when creators are in desperate need of making a living out of their craft. In 2016, one ticket for Adele at the O2 arena in London was listed on GetMeIn for £24,840, which is 290 times the face value of the ticket. Nobody in the Rhondda would be to afford such a ticket. Incidentally, Wimbledon faces exactly the same set of problems.

Viagogo is today selling two tickets for Pink at the Millennium stadium in Cardiff on 11 June for £498 each. I think the fans could perfectly legitimately start shouting:

“What about us?

What about all the plans that ended in disaster?”

It is not obvious what the original price was for those tickets. On Viagogo, people can get one ticket for Peter Kay at the O2 on 4 May for £302, or tickets for “The Book of Mormon”—it has been in the theatre for several years, and is a wonderful, hilarious show—on 4 May at £420 each. In a way, the one that upsets me the most is that tickets for the ballet “The Winter’s Tale” at the Royal Opera House on 3 May—a Friday night—are £1,006 each, but people can buy those tickets from the Royal Opera House for £140, because there is taxpayer involvement in supporting the Royal Opera House.

We could say the same of StubHub, on which two standing tickets for Doja Cat in Glasgow on 11 June with a face value of £162 are selling at £1,002. This is a pernicious industry. It is parasitical, it does nothing for the creative industries in this country and we must tackle it.