Consumer Rights Bill

Lord Stevenson of Balmacara Excerpts

Monday 24th November 2014 Lords Chamber

It is very disappointing that despite my noble friend Lady Jolly’s offer in Grand Committee to convene a meeting before Report, the meeting on this amendment with the Minister Ed Vaizey will not take place until Thursday 27 November. Even though that discussion has not yet taken place, I hope that the Government will consider their position, especially in the light of the strong statements by the CEO of Ofcom on at least two occasions. I beg to move.

[Lord Stevenson of Balmacara (Lab)]

My Lords, like the noble Lord, Lord Clement-Jones, we support an open internet, and it is in that spirit that we have signed up to the amendment. There is a case here for the Government to decide where they think the legislation currently lies, and if it is not clear that Ofcom has the powers that the noble Lord spelt out in some detail, it is important that this is resolved.

I think that it would surprise many people to learn that internet service providers have no obligation to allow their customers to access all the legal internet, despite selling “internet access” to all their customers. If DCMS believes that both existing legislation and new additions within the Bill resolve the issue of mis-selling, it is important that the Government agree with us that clarity should be made beyond peradventure. We need to know whether Ofcom is right that it does not have the powers, in which case the amendment will resolve that. If DCMS and Ofcom agree that the necessary powers do exist, DCMS should say so publicly and make it clear beyond any doubt that Ofcom has the necessary powers to act on any relevant open internet infringements. I look forward to hearing what the Minister has to say.

[Baroness Jolly (LD)]

My Lords, the debate on this important issue in Committee was a very good one, as my noble friend said. The discussion focused more on the protections for net neutrality than on the specifics of this amendment. I sympathised with the points made and committed to a meeting to discuss them. I thought it important that the relevant interested parties were present, especially Ed Vaizey, the Minister for Culture and the Digital Economy. His diary proved to be completely immovable. The meeting is now in the diary for this Thursday and I am looking forward to it.

It is clear from the discussions so far that this is a really complex area, and one which is causing a great deal of debate both in Europe and across the Atlantic. We believe that we are global leaders in delivering open internet services. In the UK, a competitive market, effective self-regulation and consumer expectation have delivered a much more open internet than perhaps elsewhere.

As noble Lords may be aware, industry has developed two self-regulatory codes of practice—both now with full sign-up from major ISPs, with Vodafone, EE and Virgin Media signing up to the open internet code in recent weeks. This is the code that governs their behaviour and ensures that they do not block services that compete with their own. Mobile operators that restricted some services such as Skype no longer offer new packages that do so. Ofcom, the regulator, has been in dialogue with the provider whose behaviour this clause attempts to address and there is a commitment to review the wording in its terms and conditions to ensure that these are not misinterpreted in any way.

Critics of this self-regulatory regime will say that there is no penalty for falling foul of the open internet code and that ISPs can change their mind about being signatories at any time. While this is true, it is also the case for many other areas that are self-regulated, for example in online advertising, where great strides have been made to ensure a transparent sector. However, it is also true that in the two and a half years since the open internet code was agreed, no breaches have been reported. If there is a significant change in the number of signatories or we see common breaches reported, the Government will look at this again. Consumer expectations are such that we do not envisage this happening again.

In answer to my noble friend’s comments, we have discussed these issues with Ofcom. We agree with Ofcom that there may be some room for interpretation regarding its powers in this area. However, we do not believe that the amendment would deliver the intended restrictions on internet access providers. Furthermore, Ofcom’s analysis of the market for internet access services suggests that there is not an urgent need for intervention. The market is continuing to move towards the comprehensive provision of neutral open internet access services, and there is no evidence of present consumer harm. Therefore, for the time being, and because of the recent developments in this area, we see no evidence of the need for legislation.

However, by way of reassurance, as noble Lords will know, Clause 64(2) in Part 2 of the Bill means that providers will be unable to hide definitions of the service provided—such as broadband access—in the small print, and will have to give them due prominence. The Bill also retains the protections currently in force through the Unfair Terms in Consumer Contract Regulations 1999, which give regulators the powers to tackle such abusive behaviours, if proven. We are also taking a power in the Bill to allow us, after parliamentary scrutiny, to update the grey list. This means that were consumer or trader behaviour to change, or evidence of particular consumer detriment to emerge, we could add terms to the grey list to accommodate that. That could apply in this case should changes by providers not take place or we see a shift in provider behaviour across the board that is not currently evidenced. That means that ISPs will not be able to hide any clauses and that there is a route for action for regulators, should this prove still to be an issue. I believe that that is a more appropriate way to deal with this than legislating at this point, especially given that this is being addressed by the regulator.

We should also be aware of the ongoing process in Europe regarding net neutrality as part of the telecoms single market package. The Government have always championed the self-regulatory approach, but we recognise that not all markets are the same as the UK’s and that there is growing demand for further protections for net neutrality from other member states. It is clear from the European Council that there is the will to include text on net neutrality. We will continue to engage proactively with the European Council on that, and believe that an appropriate solution can be found. The latest text from the Italian presidency shows movement towards a more principles-based and outcome-focused approach, which we believe would be more appropriate.

To conclude, while I am sympathetic to the intentions of the amendment, the Bill is not the right place to do this. Telecoms regulation needs to be handled through telecoms legislation. We do not believe that the amendment will change the regulator’s power in this area; nor do we believe it be necessary at this time, given the market developments. We will continue to engage with the EU in a constructive manner.

I commend my noble friend’s persistence on the issue. The Government are unable to accept his amendment, but I hope that I have offered sufficient assurance to persuade him to withdraw it.