Digital Markets, Competition and Consumers Bill
Wednesday 13th March 2024
(1 month, 2 weeks ago)
Lords ChamberDigital Markets, Competition and Consumers Bill 2022-23 View all Digital Markets, Competition and Consumers Bill 2022-23 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 47-II Second marshalled list for Report - (11 Mar 2024)
19:30 - Division on Amendment 150 - Ayes: 165 / Noes: 154 - Amendment 150 agreed.
Lord Clement-Jones
“Amendment of section 58 of the Enterprise Act 2002After section 58(2A) of the Enterprise Act 2002 insert—“(2AA) The need for free expression of opinion and plurality of ownership of media enterprises in user-to -user and search services.(2AB) Media enterprises include—(a) newspapers,(b) broadcasters, and(c) providers of video on demand and audio on demand.(2AC) For the purposes of this section “user-to-user service” and “search service” are defined in Part 2 of the Online Safety Act 2023.””Member’s explanatory statement
This amendment updates the specified considerations that the Secretary of State can use to issue a public interest notice that reflect modern market conditions where new media may give rise to such concerns.
Lord Clement-Jones (LD)
My Lords, with only one amendment in this group, I have the mixed blessing of having the Minister’s undivided attention. I will be very brief as I want to give way to heavier oncoming traffic, in the form of Amendments 67 and 158. My intention in retabling this amendment on Report is to probe further the Government’s intentions as regards amending the Enterprise Act 2002, in respect of mergers of digital media.
In Committee, I pointed out that the Online Safety Bill—now Act—sets great store by the importance of freedom of expression on digital media and, in the context of competition in the media, we believe that the protection of the public interest needs bringing up to date, alongside the collective consumer interest. This was on the basis that digital media now play a significant role in the national discourse, and public interest considerations could emerge from permutations of takeovers or mergers.
In Committee, I described how Section 58 of the Enterprise Act is limited in scope, and that we should add the need for free expression of opinion and plurality of ownership of media enterprises in user-to-user and search services to the existing public interest considerations that the Secretary of State can take into account. The reply of the Minister—the noble Lord, Lord Offord—was sufficiently encouraging for me to bring the amendment back for further and better particulars. He said:
“The Government are currently reviewing the recommendations on changes to the media public interest test in Ofcom’s 2021 statement on media plurality. Ofcom did not recommend that online intermediaries or video and audio on-demand services should fall within the scope of the media mergers regime, which this amendment would provide for”.
There is always hope. The Minister went on:
“We are considering Ofcom’s recommendations carefully and, as we do that, we will look closely at the wider implications on the industry. The Government have not proposed pursuing substantive changes to the grounds for public interest interventions in mergers in this Bill. The changes recommended in Ofcom’s review can be addressed directly via secondary legislation under the made affirmative procedure, if appropriate”.—[Official Report, 29/1/24; col. GC 291.]
The Minister did not offer any detailed timetable, so this is a brazen attempt to push the Minister further in telling us what the Government really have in mind, even if it is going to be included in secondary legislation. It is quite clear, in general, that changes to the Enterprise Act are needed and should be in contemplation. I very much hope the Minister can go rather further than he did in Committee. Indeed, it may be that there is a vehicle available, in the form of the Media Bill, which could take the position further. I beg to move.
Lord Lansley (Con)
My Lords, I intervene very briefly to support the noble Lord, Lord Clement-Jones, in the intentions of his amendment. A number of noble Lords will recall that, about eight years ago, we sought that the Government would use secondary legislation to extend the definition of media enterprises under the Enterprise Act.
The point that the noble Lord, Lord Clement-Jones, is making is in this territory. Clearly, if media enterprises for these purposes were defined more widely, it would capture some of the providers that the noble Lord, Lord Clement-Jones, was talking about. At the moment, media enterprises basically consist of print newspapers or broadcasters—and broadcasters are only those that are licensed under the Broadcasting Acts.
I hope it will be evident to noble Lords that there are now many more news creators and aggregators, and sources of news, that make up the news landscape and are not comprised within the definition of print newspapers or of broadcasters under the Broadcasting Act. So we need to make sure that the specified considerations under Section 58, about free expression, accurate presentation and plurality, are applied in relation to this wider definition of media enterprises.
This was something that Ofcom said to Ministers in pursuance of the consultation about the media public interest test, I think as far back as 2021, or maybe at the end of 2022. So I suppose what I am asking is to share in the urging of the noble Lord, Lord Clement-Jones, that Ministers might take this on, and to give advance notice that—from my point of view—we should address this in the Media Bill quite soon, in order to give them further encouragement for this purpose.
Lord Bassam of Brighton (Lab)
My Lords, we are very grateful—we are always very grateful, actually—to the noble Lord, Lord Clement-Jones, for tabling this amendment, which raises a valid concern around the suitability of the current provisions in Section 58 of the Enterprise Act.
We take the view that the world has changed significantly since that legislation was put on the statute book. It was changed as a result of the passage of the National Security and Investment Act, but not in a way that addressed the points that have been properly raised by the noble Lord. Some aspects of this debate featured during the passage of the Online Safety Bill, and I strongly suspect we will revisit this on other occasions in the future, as the noble Lord, Lord Lansley, has invited us to with the Media Bill.
The noble Lord, Lord Clement-Jones, described this as a “brazen attempt” on his part. Well, I hope the Government will be open-minded about looking at whether and how the public interest notice regime could be revised in the future, to take account of different types of media provider. However, because I know that noble Lords would like to progress on to another interesting group on a similar topic, I will hand the Floor to the Minister.
The Parliamentary Under-Secretary of State, Department for Business and Trade and Scotland Office (Lord Offord of Garvel) (Con)
I thank the noble Lord, Lord Clement-Jones, for Amendment 64. It would expand the list of media merger public interest considerations to include:
“The need for free expression of opinion and plurality of ownership of media enterprises in user-to-user and search services”.
I previously addressed this issue in Committee, when I referred to the Government’s ongoing consideration of Ofcom’s recommendations. As suggested by the noble Lord, ensuring that our regime is updated to reflect current market conditions remains important.
My noble friend Lady Stowell of Beeston has been engaging extensively with government on changes to the wider media merger regime, and I understand that discussions have been constructive. My noble friend Lord Parkinson of Whitley Bay, who is in his place, is the Lords Minister responsible for media mergers. To avoid repetition, I will not speak to the detail of these discussions now but will leave it to my noble friend, who will return to the substance of this in the next debate. I hope the noble Lord will be able to withdraw his amendment and allow us to discuss this further when the next group is debated.
Lord Clement-Jones (LD)
My Lords, I can barely contain my excitement. It is very good to see the noble Lord, Lord Parkinson, in his place, and I very much look forward to hearing what he has to say in the debate on the next group. There is a difference in principle, though, between the amendments in the next group tabled by the noble Baroness, Lady Stowell, on ownership by foreign Governments and the future-proofing that my amendment seeks for digital media.
I very much appreciate what the noble Lords, Lord Lansley and Lord Bassam, said about the need to encompass this type of media. Whatever the content of the Minister’s response, I believe that if we do not deal with digital media in this Bill, we will need to deal with it in the Media Bill. It is a current issue; the Minister used the phrase “current market conditions”, which was a slightly odd way of describing the fact that we now have an incredibly lively digital media. After all, why do we have the final offer mechanism in the digital markets Bill? It recognises the issues related to news media and the need to make sure that there is a proper negotiation on the use of, and links to, news media. We need to make progress on this, but I will give way to the oncoming traffic of the next group. I beg leave to withdraw my amendment.
Lord Tyrie
“Review of whistleblowing provisions(1) The Secretary of State must commission an independent review, chaired by someone appointed with the consent of the relevant Select Committee of the House of Commons, of the extent to which whistleblowers are adequately protected and supported under the competition and markets regime in the United Kingdom.(2) The review under subsection (1) must consider, but is not limited to assessments of—(a) whether existing protections are sufficient to encourage whistleblowers to act;(b) what protections exist in competition regimes in other jurisdictions;(c) whether further protections should be introduced and what form they should take;(d) any matter related to whistleblowing provisions that the relevant Select Committee of the House of Commons reasonably requests that the review consider.(3) The review under subsection (1) must be published and laid before Parliament within 12 months of the passing of this Act.(4) In this section “relevant Select Committee of the House of Commons” means the Business and Trade Select Committee and any successor.”
Lord Tyrie (Non-Afl)
This was all debated on Monday evening, but I am sure that many of us have already forgotten exactly what happened then. The amendment would secure a review for improving the prospects for effective whistleblowing. The case—in my view and, it seems, those of almost everybody who participated—is unanswerable. I was not surprised that the Government did not come forward with any effective answers to it, but I was surprised—
Lord Evans of Rainow (Con)
My Lords, does the noble Lord wish to move the amendment or not? He already spoke to it on Monday, so he cannot speak once again.
Lord Offord of Garvel
Member’s explanatory statement
This amendment, which would amend section 124 of the Enterprise Act 2002 (orders and regulations), is consequential on paragraph 17(6) and (9) of Schedule 9 to the Bill which omits order making powers in section 111(4) and (6) of that Act.
“Foreign power acquisition of news media organisations(1) A foreign power (as defined in section 32 of the National Security Act 2023) may not acquire a news media organisation or publisher of news in any form ("a publisher") where the publisher's primary place of business is in the United Kingdom, unless the conditions in subsections (2) to (4) are met.(2) Investigations by the CMA under sections 44 and 45 of the EA 2002 and by OFCOM under section 44A of the EA 2002 have been completed.(3) The Secretary of State has made and published their decision under section 54 of the EA 2002 stating that there are no competition-related or consumer-related concerns.(4) Where the conditions in subsections (2) and (3) are met, the Secretary of State must by regulations approve the acquisition.(5) Regulations under subsection (4) are subject to the affirmative procedure.”Member’s explanatory statement
This amendment would prevent the acquisition of a UK news media organisation by a foreign power without the approval of both Houses of Parliament, where competition or consumer-related concerns have been raised.
Baroness Stowell of Beeston (Con)
My Lords, I will also speak to the consequential Amendment 158 in my name. I thank noble Lords who have signed my amendment: my noble friend Lord Forsyth and the noble Lords, Lord Robertson of Port Ellen and Lord Anderson of Ipswich. I am grateful to them all for their support and expertise, which have been invaluable in getting us to this point. I am sorry that the noble Lord, Lord Anderson, is unable to be in the Chamber today because of other responsibilities overseas, but he has asked me to restate his support.
I am also grateful to my noble friend the Minister and Julia Lopez, his ministerial colleague in the other place, for their constructive and generous engagement with me on this matter over the past week. I have consciously not been in contact with the Secretary of State, Lucy Frazer, mindful of her current quasi-judicial responsibilities. I will return in a moment to what action the Government might take.
I am sure your Lordships agree that freedom of the press is fundamental to a functioning democracy. Freedom of the press means freedom from government: the freedom of the media to scrutinise and hold to account those of us in Parliament on behalf of the electorate, who get to choose who governs and every Government’s fate. Upholding that unbroken principle, which we have protected for centuries, is what has prevented any UK Government owning or controlling the press. It is surely inconceivable, then, that we would sanction a foreign Government or state power to do what no UK Government have ever done or would ever do.
I want to be clear that I have no problem with foreign businesses or individuals owning UK media organisations. Today’s foreign UK media owners are a large reason why we have a thriving media environment that is financially independent of government, and I recognise the importance and value to our economy of foreign inward investment to a range of different sectors. The stark difference between foreign businesses and foreign Governments is that if the latter were allowed to own our news media, it would raise big questions about foreign policy, editorial independence and the relationship between an outlet’s owners and its coverage.
We cannot ignore that public trust in news, Parliament and the political class has fallen significantly in recent years, and allowing foreign Governments to own such a critical and sensitive part of our nation would damage public confidence in all of us yet further if it was allowed to happen. Only yesterday, Lord Ashcroft published a poll showing that two-thirds of the British public do not support foreign government ownership of UK media. The same poll showed that this is not a partisan matter, with a similar percentage of voters who support all the major UK parties sharing the same view. The British people might not always love the British media and all that it does, but the principle of press freedom certainly matters to them. This principle is in jeopardy because of the proposed takeover of the Telegraph and Sunday Telegraph and the Spectator magazine by RedBird IMI, a fund that is 75% backed by the UAE.
The action taken to date by the Secretary of State for Digital, Culture, Media and Sport and the instructions she has issued to Ofcom and the Competition and Markets Authority to investigate the takeover are very welcome and demonstrate that the Government recognise the well-evidenced concerns about the potential for editorial influence and the risk of censorship by the UAE Government. My concern, which I know that many noble Lords and Members of the other place share, is not just about the potential acquisition of those important newspaper titles. This situation has exposed that in law there is nothing that clearly prohibits the acquisition of a UK news organisation by a foreign power or organisations under significant foreign government control. So although we are relying on the Culture Secretary to reach the right decision and uphold our press freedom, nothing in the current legal framework provides certainty that she can and will do so. This is particularly worrying at a time when some parts of the UK news media face significant economic challenges.
My amendment seeks to close that gap in the law. In simple terms, my amendment would prevent the acquisition of a UK news media organisation by a foreign Government or power without the explicit approval of Parliament. If passed, it would provide an additional and vital barrier of protection for press freedom in this country. The consequential Amendment 158 would ensure that the proposed new clause in Amendment 67 would take effect immediately that the Bill receives Royal Assent.
As I said, my noble friend the Minister and Julia Lopez, the excellent Media Minister, have devoted significant time for discussions with me since I tabled my amendment. I do not doubt their commitment to finding a way to provide the legal certainty that we are currently lacking, and I know that they and officials have been working very hard on this over the past week or so.
From our most recent discussions, I expect my noble friend the Minister to set out an alternative solution when he responds to this debate. I will listen carefully to what he has to say. I am not wedded to the detail of my amendment or the procedure that it sets out, and I will be pleased if the Government propose something that is better and tighter than what I have been able to bring forward. The only question for me is whether the Government’s way forward meets a clear and simple objective: preventing a foreign Government representative or foreign state-controlled entity owning or controlling our news media.
I will not pre-empt what my noble friend might say, nor how I might respond to what he says. However, to be clear, I will have no hesitation in pushing my amendment to a vote if necessary. But I think we all recognise the gravity of the matter before us—the Government included—and I am confident, from the reaction and strong support I have received from noble Lords around the House and from Members of another place, that there is a collective desire to meet that simple objective. Indeed, we must meet it, because if we do not, the freedom of our press is at stake. I beg to move.
Lord Robertson of Port Ellen (Lab)
My Lords, I added my name to this amendment, and I commend the noble Baroness, Lady Stowell, for the energy and effectiveness of her campaign. Just before the debate started, my mobile phone produced a Sky News newsflash, which said that, at 4 pm, the Government will make a decision to accept the basis of the noble Baroness’s amendment. That is a nice piece of news to get just before you stand up to speak.
I was delighted to join the noble Lords, Lord Anderson and Lord Forsyth, in adding my name to this. Unusually, we are on the same side of the argument, although at Question Time the noble Lord, Lord Forsyth, threw out some remarks that other Members of the House will not have recognised but which were designed as an insult to previous positions I have taken on other issues.
Yesterday, I was in Prague, the capital city of the Czech Republic, congratulating it on 25 years since its entry into the NATO alliance. I made the point, as many people at the conference did, that 25 years ago the Czech Republic joined NATO, having overthrown the communist system and regained freedom after all the years in serfdom to the Warsaw Pact and the Soviet Union. The point was made that freedom is not an abstract concept but something that is very clear and precise, and it includes free speech and a free press. That is why I believe that a very significant principle is involved at this point.
As the noble Baroness said, there is no provision in the legal framework of this country at the moment to prevent a foreign Government gaining control or ownership of our media outlets. To the vast majority of the public, that would seem to be outrageous. As Lord Ashcroft’s poll showed, the fact is that a large majority of the population do not agree with the idea of a foreign Government owning our media outlets. That should come as no surprise to anybody in this House or in the other place; it seems almost self-evident. Yet we do not have that legal provision, and we should.
Lord Forsyth of Drumlean (Con)
My Lords, I congratulate my noble friend on her skill and thank the splendid, clever people in our Public Bill Office who enabled her to find a way through this legislation to have an amendment that is in scope—because, for a very long time, we thought that would not be possible. I tried with the Media Bill, and the best I could come up with was a regret Motion on the Second Reading that showed there was widespread support. The noble Baroness, Lady Stowell, deserves considerable credit for making that navigation and getting us to the point where, in her courteous way—she is much more diplomatic than me—she gives the Government an opportunity to do the right thing and support an amendment to this Bill to protect the freedom of the press in our country and, with that, the very foundations of our democracy.
I will say something about the Telegraph bid made by this curious organisation called RedBird IMI—it is a very odd bird indeed. We are told that Sheikh Mansour, the vice-president and Deputy Prime Minister of the UAE, is acting in a purely private capacity by those who wish to advance this so-called investment. Now I am a banker, but I do not really understand how you can have an investment strategy that involves paying multiples of the value of the asset and, in carrying out the bid, briefing the press to the effect that you would be prepared to have a minority interest and, presumably, not have a vote—that strikes me as an odd investment strategy indeed.
What it is, is what it is: an influence strategy. The payment of a rich price is about getting influence through the medium of the Telegraph and the Spectator magazine—it is not a commercial issue. Money talks, of course, and ownership matters. One of the very few things that I disagreed with Mrs Thatcher on was that she tended to the view that ownership did not matter. Ownership does matter, and the freedom of our press should never be up for sale.
I said in an earlier debate that he who pays the piper calls the tune—but this is not a melody. The very idea of an autocratic state with a poor record on human rights owning or holding any influence in a major British daily newspaper is utterly surreal: a country that hosts Putin, greets him as dear friend and purchases oil as he circumvents sanctions and conducts his blood-soaked regime and brutal, illegal war in Ukraine; a country whose laws ban any direct criticism of their rulers through the Government’s national media council, where citizen journalists and bloggers are targeted for criticising the regime and accused of defamation, insulting the state and posting false information with the aim of damaging the country’s reputation; a country that puts journalists in jail, deports critics and closes down any criticism; a country that is bottom of the class in international freedom tables; a country where, according to Amnesty International, at least 26 Emirati prisoners remain behind bars because of their peaceful political criticism.
The bidders at IMI promise editorial independence, just as they did in the case of CNN Business Arabic. According to the Times report of 12 January, Sultan Al Jaber, chairman of IMI, put pressure on CNN Business Arabic to avoid negative news about the UAE, despite promises to preserve journalists’ editorial independence. The Times reported that the editor-in-chief was forced out within months of his appointment for refusing to submit to requests from Al Jaber for positive coverage. Al Jaber was previously head of the UAE’s censorship agency, so had much experience in this area.
I hope I have convinced the House—I do not think I need to try very hard—that this bird cannot fly, but it is not just about this particular bird, as the noble Lord, Lord Robertson, said. No insult was intended earlier—I was just pulling his leg. There is a principle here. Foreign Governments should be nowhere near the ownership of newspapers and magazines. In fairness to the Government, no one could have predicted how this utterly bizarre bid would come to pass. I know of no democratic country that would allow a foreign state to take ownership of key national newspapers. I now regret my regret amendment. Perhaps it was a little unfair to criticise the Government for not including measures in the Media Bill and drawing the Long Title so tightly that it was impossible to amend the Bill in that respect. The debates in this House showed universal opposition. The poll by Lord Ashcroft, which has been mentioned, reflects that in the country.
This amendment may not be perfect. It is an old trick of Sir Humphrey to say, “Well, I accept the amendment in principle but unfortunately the drafting is not quite right”. From my experience of talking to Minister Lopez and from the work done by my noble friend Lady Stowell, I believe the Government are working sincerely to try to find a way of having an amendment that will produce what I believe everyone in the House would like to see. They should continue to work with my noble friend and the other sponsors to ensure that the Bill leaves this House amended. Nothing less than a complete ban on foreign Governments having any role in the governance, ownership or financing of our media is acceptable. It is, as I have said before, a no-brainer.
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.
Lord Kamall (Con)
My Lords, a number of principles have been spoken about. I believe firmly in the principle that no Government, British or foreign, should be allowed to own a UK media outlet. When my noble friend Lady Stowell asked me whether I would support her amendment I initially declined, because I told her it did not go far enough. I apologise for that, because, as my noble friend said, the UK Government do not own any media outlet; why, therefore, should any foreign Government be allowed to do so?
We should also be absolutely clear that this is not anti-foreigner sentiment. I and, I am sure, many other noble Lords have no objection to foreign private companies owning UK news media outlets. Indeed, in my years in the European Parliament we used to refer to the Financial Times as the in-house paper of the European Commission, only to find that it was owned by a Japanese company.
There are clearly some tricky issues here in drafting the relevant law that the clever lawyers will have to navigate. For example, it is well known that Chinese non-state-owned enterprises often have strong links to the leadership of the Chinese Communist Party. Indeed, some China analysts claim that there is little difference between the Chinese Government’s influence over state-owned and non-state-owned companies, so were a non-state-owned Chinese company to bid for a UK media outlet there would also be a number of questions. That is possibly a debate for another day.
In short, like many noble Lords, I am against any government ownership of UK media organisations, whether it be the UK Government or a foreign Government. For these reasons, I support Amendments 67 and 158 in the name of my noble friend Lady Stowell.
Lord Clement-Jones (LD)
My Lords, despite the shortness of this debate, we have had some very fine and inspiring speeches. We on these Benches wholly support the amendment moved by the noble Baroness, Lady Stowell. Indeed, like the noble Lord, Lord Robertson, I find it extraordinary that we do not have this already on the statute book. Given the importance of pluralism and freedom of speech in our media, the thought of foreign Governments impacting on our media in the way that is currently threatened seems quite extraordinary.
My main purpose is to associate myself with the remarks of the noble Lord, Lord Forsyth. When he moved his regret amendment, he talked about the ownership by the UAE of a UK quality newspaper. I have spent the last 10 years campaigning for the release of Ryan Cornelius from a Dubai jail. He was unjustly imprisoned on trumped-up fraud charges, and his sentence was arbitrarily extended by 20 years in 2018, just as he was due to be released. He now faces the prospect of many more years in jail. I am all too aware of the reality that lies behind the pleasant-looking tourist Dubai. Parliament should definitely have its say before a UK newspaper falls into the hands of such a Government. All this is a result of the activities of a member of the royal court of Dubai, so it very close to home in the UAE. Not only do we as a party on these Benches wholly support this amendment, but I personally feel very strongly about the need for it.
Lord Bassam of Brighton (Lab)
My Lords, I think the whole House is grateful to the noble Baroness, Lady Stowell, for the way in which she set out the arguments behind her amendment, and for the clarity, force and power of her voice in putting those arguments forward. We are also grateful to the noble Lord, Lord Forsyth, for the way in which he has argued his case—not once, but twice, and several other times too, when he has been given the opportunity; I always enjoy his interventions. I am enormously grateful to the noble Lord, Lord Robertson, for bringing breaking news to your Lordships’ House.
It might seem slightly ironic to some that we on the Labour Benches are trying to come to the rescue of the Daily Telegraph, but there is a much more important principle at stake here. It is an obvious place to start but let me begin with first principles: Labour believes in a free and fair press without state interference. We also believe in the accurate presentation of news and in freedom of expression, which is particularly important in the context of RedBird’s attempted takeover. Our view on this matter is not shaped just by the Telegraph Media Group takeover proposal currently being considered by the Secretary of State; we would have similar concerns if other titles were subject to bids from other states. When the Minister explains to the House the Government’s intention, can he clarify the position, too, of not just newspapers but other publications? That is not to say that we do not have real concerns about the proposed sale of the Telegraph Media Group. We very much welcomed the Secretary of State initiating the investigations by the regulators. Now that their reports have been submitted, we hope that a decision will be taken in a timely way and as soon as possible, and in a way that is consistent with the quasi-judicial nature of the process.
For the avoidance of doubt, this is not to say that we oppose foreign investment in this country; we believe that inward investment in our economy is vital. The noble Baroness, Lady Stowell, spoke eloquently on that point, as did the noble Lord, Lord Kamall. However, foreign ownership of UK media organisations raises broader questions around the accurate presentation of news and, in certain cases, the free expression of opinion. Both of these, as many noble Lords have said, are vital to the long-term health of the print media sector and, more importantly, to our democracy.
I listened very carefully to the noble Baroness’s introduction and the other speeches. We have to give them all credit for the way in which they addressed the issue. I listened particularly to the noble Lord, Lord Robertson, because of his expertise, and his former role and continuing interest in security matters. While I am giving out thanks, I also thank the Minister, who helpfully found the time to meet me and my noble friend Lady Jones of Whitchurch this afternoon to discuss this important issue.
As we have seen with other legislation, most progress is often made when groups from across your Lordships’ House have open, frank discussions and then work together to agree solutions. I understand that for various reasons the text of Amendment 67 is not necessarily what all its supporters would have wanted. For that reason, and for a number of others that I will set out, we are not convinced that it presents the right response to this serious matter. Our view is that a free and fair press should be without state interference, which means without undue influence from our own state as well as others.
It is correct that the Secretary of State should take an interest in cases which raise concern on competition and plurality grounds, but her responsibilities are rightly constrained by legislation, and her ability to comment is limited by the quasi-judicial role she is playing. Where security concerns may arise, the Secretary of State will no doubt receive confidential briefings on the potential implications of different outcomes. In our view, that process must be allowed to play out. That the CMA and Ofcom have reported to the Secretary of State this week points to the well-established merger regime that has been in place in this country for some time. As part of their investigations, those independent regulators draw on expert advice and are able to obtain appropriately handled confidential information, including material that may be highly commercially sensitive. On the basis of all that information, they may then come to a judgment regarding the suitability of a takeover proposal and advise the Secretary of State accordingly. Parliament has empowered the Secretary of State and those regulators. In our view, that is an appropriate level of state interest in sensitive matters.
Amendment 67 proposes that once the regulators have carried out their work and the Secretary of State has come to a decision, it should be for Parliament to approve that decision. While we generally support parliamentary scrutiny of the Executive and their decisions, we are not convinced that the mechanism envisaged by the amendment is suitable in the light of the sensitive security and commercial information that would have to be shared to inform debate and determine the outcome of votes in both Houses.
My impression from earlier discussions with the Minister and his colleagues in other departments is that a better approach would be for the Government to acknowledge the strength of feeling in this House and commit to bringing back their own text at Third Reading. If the Minister is able to make that commitment, I hope that colleagues on all Benches will be minded to accept that offer and work with Ministers, as we will offer to do, in the coming weeks to find a satisfactory outcome.
We have enormous sympathy with the noble Baroness, Lady Stowell, on this issue. We do not feel able to support her proposition in the form it is with us today. We know it has been brought forward with the very best of intentions, intentions we support, and because we share those, we urge the Minister to respond positively to finding a way forward over the next few weeks.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, it is a pleasure to speak on this Bill for the first time, even if it is some 43 minute later than advertised by some of our free media outlets. It touches on debates we have already had in connection with the Media Bill.
His Majesty’s Government firmly believe in a free media and a free press. It is the bedrock of our democracy and an essential safeguard which ensures accountability and effective government. I know that noble Lords share that firm belief. We heard it strongly again today, not least from my noble friend Lady Stowell of Beeston, whom I thank for her work in reflecting these important principles through her scrutiny of this Bill, the Media Bill and others.
Media freedom depends on having a plurality of media through which the public can access a wide range of accurate, high-quality news, views and information. My right honourable friend the Secretary of State has championed press and media freedom from her very first moment at the Department for Culture, Media and Sport. She has been clear about its importance and has made it a personal priority.
Lord Forsyth of Drumlean (Con)
I am very grateful for what my noble friend has said. Could he clarify the position on minority stakeholders? He used the word influence. Would that mean having a small number of shares?
Lord Bassam of Brighton (Lab)
My Lords, in order to help, can we be absolutely clear that this covers minority ownership and control? We need clarity on that. The noble Lord, Lord Moore, made that point. It would help the House for the avoidance of doubt.
Lord Parkinson of Whitley Bay (Con)
The noble Lords have intervened at a helpful point, because I was about to outline that we want to ensure that the new measures do not have undesired effects on wider foreign business investment in the UK media, or on purely passive investments made by established investment funds.
In the amendment we will bring forward at Third Reading, it will be necessary to take a power to make secondary legislation to set out two points clearly: first, what limited types of established investment funds we mean, which could be split out of the general prohibition on foreign state ownership provided for by this regime; secondly, the very low threshold up to which they may be permitted to invest, which we intend to be considerably lower than the current thresholds for material influence in the Enterprise Act.
As we bring this forward ahead of Third Reading, we would be very happy to discuss the drafting with noble Lords before it is tabled so that we can discuss the detail. We will set that out in the provisions at Third Reading.
Lord Lansley (Con)
I am sorry to interrupt my noble friend but, as he knows, I am interested in the question of media enterprises more generally. Is he intending that the amendment to be brought forward will relate only to newspapers, and therefore will not touch upon broadcasters, as they will be excluded? I am not sure I understand why the presentation of news by broadcasters is to be treated differently from the presentation of news by newspapers.
Lord Parkinson of Whitley Bay (Con)
The provisions we will bring forward at Third Reading will relate to newspapers and periodical news magazines, as I have set out. It will not cover television and radio broadcasters at this time, but that is something we will continue to consider. We have already been considering it as part of our broader work on the media mergers regime. That work will continue. I am happy to speak with my noble friend Lord Lansley and others about it.
Lord Clement-Jones (LD)
Could the noble Lord go through again what will happen to an existing merger, which is subject to existing procedure? He seemed to be saying that, as soon the new provision comes in when the Bill passes, it will be subject to the new procedure as well as the old. Is that what he was saying, and how will that work?
Lord Parkinson of Whitley Bay (Con)
That is what I was saying, but it depends on when the Bill gets Royal Assent. That is in the hands of noble Lords and not just the Government. If any live case is still ongoing at the time of Royal Assent—we intend for the new provisions to come into effect at Royal Assent—then the Secretary of State will obviously follow the provisions as set out in other Acts of Parliament as decided by Parliament previously, and follow the law as enacted after Royal Assent.
Lord Clement-Jones (LD)
I have a second question. I am assuming that internet digital news media—not a newspaper—will not be covered by these provisions.
Lord Parkinson of Whitley Bay (Con)
No. I am grateful that we have separated the debate on the noble Lord’s previous amendment from this so that I can respond directly to the amendment brought by my noble friend Lady Stowell. I am grateful for his understanding of that.
The Government are focused on the reforms to media ownership rules, which were suggested in Ofcom’s 2021 review. It did not recommend that online inter- mediaries, including social media platforms, search and video/audio-on-demand services should fall in scope of that. I heard what the noble Lord said about having this debate in the Media Bill, and I look forward to doing so.
The secondary legislation provisions that I have outlined will be subject to the affirmative procedure in Parliament. Until such time as those regulations are laid and approved by Parliament, the whole regime applies to everybody caught by the general foreign state prohibition.
We have always believed that the trustworthiness of our news and the lack of government interference in it, whether domestic or foreign, is of paramount importance, which is why we are setting out today our plan to make that more explicit in the regulatory regime that exists. As my noble friend Lady Stowell is aware, work is already under way to update the media mergers regime more broadly, and I touched on that in my responses to noble Lords. We will continue to take that work forward. I hope that, on that basis, my noble friend is able to withdraw her amendment today. With renewed thanks to her and a renewed commitment to work with those who have supported her, I am grateful for the opportunity to speak today.
Baroness O'Neill of Bengarve (CB)
My Lords, for the avoidance of doubt, could the Minister clarify whether the proposed restrictions apply not only to print and broadcast media but to digital media?
Lord Parkinson of Whitley Bay (Con)
No, it is just to newspapers and periodical news magazines.
Baroness Stowell of Beeston (Con)
My Lords, I am very grateful to all noble Lords who have spoken for their support and for the powerful speeches that they have given, and I am very grateful to my noble friend for his clear and comprehensive explanation of the Government’s position, and their firm intention to bring back an amendment at Third Reading to address that simple objective that I outlined at the start of this debate.
Because my noble friend covered such a lot of ground and this is quite complex stuff, for the benefit of other noble Lords and anyone else following this debate, I shall play it back at him a little bit, perhaps in plainer English, if I may—although noble Lords must forgive me if some of it is not as plain as it would be if I was speaking outside the House.
What we have heard is that the Government will bring forward an amendment at Third Reading that will expand the definition of foreign power beyond that in the National Security Act to include individuals who might not otherwise be adequately captured. That is something that has been of particular interest and concern to some of the legal noble Lords who have been following and commenting on my amendment. The amendment will expand the definition of “newspaper” in the Enterprise Act to include news magazines explicitly. The amendment will give the Secretary of State a new power to issue a foreign state intervention notice if she is notified or becomes aware at any time of possible foreign state involvement to own, control or influence a newspaper or news magazine. Once her order is issued, the CMA must investigate and, if it establishes that it is a foreign state, as newly defined, any investment or takeover will be blocked—or, if the investment has already happened, the Secretary of State will have the power to unwind that investment. All that will come into force once the Bill gets Royal Assent, and it will apply to any live regulatory case alongside the existing procedure that the Secretary of State is following.
In addition, at Third Reading, the Government will bring forward an amendment to create secondary legislation, which will be subject to the affirmative procedure. Those regulations will define what kind of indirect foreign state entity might be allowed to make a passive investment, such as a sovereign wealth fund of a democratic state, and include a very low threshold below which such an entity could invest. The purpose of those regulations will be to preserve the opportunity of legitimate foreign investment in news media. For example—and I think that it helps to get an example to understand what we are talking about here—it has been pointed out to me that the Norwegian state investment fund has single digit investments in News Corp, Reach, which is also known as the Mirror Group, Paramount Global, which owns Channel 5, and Comcast, which owns Sky.
To me, what my noble friend has outlined today, on my simple interpretation of it, makes sense. I am very grateful to the Minister for emphasising the very low-level investment that the Government are considering for the secondary legislation that will come forward, but the precise percentage will matter. I know that he will not be able to commit now to bringing forward the regulations in draft at Third Reading, because there is a lot of work for officials to do between now and then, but I hope that he can commit to doing as much as he can at Third Reading to provide the detail that we will need to be properly satisfied that what then follows will meet all our concerns.
“(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.
Baroness Crawley (Lab)
My Lords, I support the noble Earl, Lord Lindsay, and I wish to speak briefly to Amendments 99 to 101 in his name, mine and that of the noble Baroness, Lady Bakewell of Hardington Mandeville. In doing so, I apologise for not being able to speak at Second Reading or in Committee. I sincerely thank my noble friend on the Front Bench and the noble Lords on the Lib Dem Front Bench for promoting and supporting our amendments in our absence. I also thank the Minister for being so very generous with his time in meeting us between Committee and Report, and for listening so intently to trading standards officers who do this work on the ground, day after day.
The effect of Amendments 99 and 100 would be to give new powers to trading standards officers to operate across national borders when necessary. Current legislation does not make it clear that trading standards officers in England and Wales can exercise their powers across the border with Scotland, even though this is an area of reserved powers. In fact, the current legislation implies that this cross-border enforcement activity is not permitted. It would be helpful if the Minister, in his reply, could make clear the exercise of powers across borders, so that it is at least on the record for trading standards professionals.
At a post-Brexit time when the UK is building up its new internal market in goods and services, and needs corresponding consumer protection, this current questionable restriction on pursuing officers makes it very difficult to enforce legislation where a rogue trader offends across a national border. I am sure the Minister will agree that, for the success of the new internal market, trading standards officers should be able to pursue and enforce right across the United Kingdom.
Amendment 101, to which I have also added my name, would be an opportunity to finally update trading standards officers’ powers of entry, as the noble Earl said. At present, trading standards officers are required to exercise physical powers of entry to premises before information access or the seizing of documents, which may well be needed in criminal proceedings. The amendment, which we support, would have the effect of changing their information-gathering powers to enable documents to be requested in writing and without the need for physical entry, and for those documents to still be used in criminal proceedings.
This would be a lot less hassle for legitimate businesses and traders, and would give them more time to source the required documents. For the small, overstretched band of trading standards officers, the requirement to exercise physical powers of entry across the country, in order to seize documents that they may need to use in criminal proceedings, is not cost effective for their cash-strapped local authorities. Rogue traders are not constrained by local authority boundaries, and trading standards officers may have to travel long distances to obtain documents physically. Their local authorities may not be able to finance such activity, and the case would therefore be dropped. I ask the Minister to think again on this matter, to sustain consumer confidence in the consumer enforcement powers of a UK-wide trading standards profession.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I wish to speak briefly to support Amendments 99 to 101 in this group, to which I have added my name. The noble Earl, Lord Lindsay, and the noble Baroness, Lady Crawley, have very clearly set out the arguments and the rationale for our amendments, so I will not go into the same detail.
I thank the Minister for his time and that of his officials in meeting with those of us who have signed these amendments, and for his letters clarifying the position. We are grateful for the Government’s movement on several of the issues we raised in Committee. They were not actually raised by us—because of other circumstances, none of us was able to be here—but they were ably covered by the noble Lord, Lord Bassam, and my colleague, the noble Lord, Lord Clement-Jones.
Amendments 99 and 100 raise the issue of how trading standards operate across borders throughout the country. This is causing them considerable concern, and I will not repeat what has already been said, except to say that trading standards are a vital local authority service, but not one that attracts the same level of support as children’s services or disability services. I declare my interest as a vice-president of the LGA.
Local authority budgets are stretched beyond what is needed to make many vital services safe for the consumer. On Amendment 101, trading standards needs support in order to operate as effectively and efficiently as it can to protect the public. Requesting documents by post is more cost effective than going to the trouble of crossing the country to fetch documents. Trading standards needs to be able to operate effectively across the whole UK, and I support this amendment.
Lord Clement-Jones (LD)
My Lords, it is very good to see the full team back on the trading standards amendments. I congratulate all three noble Lords on their championing of trading standards. They need the powers that are being argued for in these amendments; they are the unsung champions of the consumer, and we should support them.
My main purpose in rising is to speak to Amendments 69, 91, 92 and 152. As regards Amendment 69, on misleadingly similar parasitic packaging, it was encouraging to hear the Minister confirm in Committee that the prohibition of misleading actions in Clause 224 and the banned practice in paragraph 14 of Schedule 19 will address the long-standing unaddressed practice of misleadingly similar packaging.
However, those provisions matter little if they are not enforced. During consultations and the debate on the Consumer Protection from Unfair Trading Regulations 2008, the then Government stressed that public enforcement would be effective and efficient. This has not proved to be the case, with just one enforcement action by trading standards in 2008—albeit a successful one. If shoppers are to be protected from this misleading practice, there must be a realistic expectation that the Bill’s provisions will be enforced.
Historically, the Government have placed the duty on public enforcers. That is unrealistic, as trading standards face diminishing resources. The CMA stated clearly that misleadingly similar packaging is a consumer protection, not an IP, issue, following its investigation of the groceries market in 2008. Yet is has undertaken no hard or soft enforcement and did not include it in its recent scrutiny of the grocery sector; there is no sign that it will take a different approach in the future. There are no other realistic public enforcement options available. For the Bill to make a difference, it is essential that affected branded companies are granted powers to bring civil cases using the Bill’s provisions on the specific practice of misleadingly similar packaging alone. It has been ignored by public enforcers for the last 15 years, despite the many examples that appear year on year. Granting affected brand owners such powers would mean that shoppers would have the protection envisaged by the Bill, and affected brand owners would have more effective redress at no cost to the taxpayer.
Amendments 91 and 92 concern an area of concern for the retail industry, expressed by its representative body, the British Retail Consortium, in which I was an active participant more years ago than I care to remember. The well-established and well-used primary authority system enables a business to request assured advice from a primary authority that it has appointed. Provided that the business follows the advice, it cannot be prosecuted by any local authority for its actions. Under the Bill, the CMA will receive additional powers on consumer protection, whereby it will move to administrative fines that are potentially very high. I am informed that the CMA currently refuses either to provide assured advice of its own or to accept primary authority advice. It says that it may not agree with the advice and that it would be too costly, ignoring the fact that it is at a cost to the business. That undermines the primary authority system and will do so even further when the CMA receives its new fining powers because businesses will feel unable to rely totally on primary authority advice for what they are doing in the overlapping areas.
The amendments attempt to deal with that, either by requiring the CMA to provide assured advice itself, as set out in Amendment 91, or, perhaps more practically, by accepting primary authority advice as binding up to the point that it may be repealed if it is shown to be inaccurate, as set out in Amendment 92. That would mean that a business could rely on it for anything it does up to any repeal. It should also be remembered that the CMA can, if it wishes, act as a supporting regulator, whereby it can be called on to provide its view to a primary authority when that authority is looking at providing advice in an area of relevance and overlap to the CMA.
Finally, it should be noted that the CMA has decided to provide what is, in effect, assured advice on competition matters in the sustainability area; namely, it has agreed not to prosecute a business that seeks its advice and follows it in a small area on the competition side. This means that, in principle, the CMA does not seem to be opposed to such an approach. Green claims on the consumer side are a key area of uncertainty for business, an area where assured advice would in fact be most useful.
I turn to my final amendment, Amendment 152. As I explained in Committee, standard essential patents are patents that are necessary to implement an industry standard, such as wifi or 5G. Because the market is locked into a standard, and to prevent abuse of the market power that this situation conveys, SEP owners are required to license their SEPs on fair terms. Unfortunately, there is widespread abuse of this monopoly power by SEP holders. The principal issue raised with me by the Fair Standards Alliance is the threat of injunctions; the costs to many businesses can be ruinous. This tactic not only threatens innovation by UK businesses but represents a strategic risk for UK priorities, such as 5G infrastructure diversification and smart energy network security, by limiting the competing players. The availability of injunctions for SEPs gives foreign SEP holders the ability to prevent others in the UK from entering, succeeding and innovating in those markets.
The Minister, the noble Lord, Lord Offord, gave a somewhat encouraging response in Committee—I keep using the word “encouraging” about his responses, although I keep hoping for better—to the effect that the Government would set out their thinking in the very near future, and that that would include the question of injunctions.
After many months of consultation, the IPO has published its 2024 forward look on this issue. It has reported its findings to Ministers and has agreed key objectives concerning SEPs. Those are
“helping implementers, especially SMEs, navigate and better understand the SEPs ecosystem and Fair Reasonable and Non-Discriminatory (FRAND) licensing … improving transparency in the ecosystem, both pricing and essentiality; and … achieving greater efficiency in respect of dispute resolution, including arbitration and mediation”.
Although the IPO has confirmed that SMEs are especially disadvantaged by the current SEP regulations, it states, disappointingly, on injunctions that
“we have concluded that we will not be consulting on making legislative changes to narrow the use of injunctions in SEPs disputes”,
with very limited justification for the decision, saying simply that it was taken after
“careful consideration of the evidence, operation of relevant legal frameworks and international obligations”.
The Coalition for App Fairness has pointed out to me that a day after the IPO announcement, the European Parliament voted by a large majority to approve its own SEP regulation. The EU framework will include the creation of an SEP register, database and essentiality checks; a defined maximum total royalty for an SEP; and an independent, expert-led conciliation process to establish the fair price for SEPs, which, crucially, will block the use of injunctions while the process is taking place. That seems entirely appropriate. The EU has proved that such a regulatory regime can be delivered; why cannot the UK Government, with all the freedom of Brexit? What is the basis for the IPO decision? What evidence, legal frameworks and international obligations prevent it from dealing with and legislating on injunctions? Why cannot the IPO likewise establish a truly fair SEP licensing ecosystem?
The least the Government can do is give more detail to the many SMEs affected by this decision. The forward look states, rather lamely:
“The IPO will continue engagement with relevant industry and institutions to continue to inform our ongoing policy development and implementation of those actions set out above”.
What on earth does that entail? That is pretty mealy-mouthed. What benefit will there be from that?
Lord Stevenson of Balmacara (Lab)
My Lords, this is a wide-ranging group; there is good news hidden in the middle of it, and bad news—we will have to wait for the Minister to respond to get a full picture. Others have spoken in some depth and so I will not try to repeat what has been said. I certainly will not try to follow the noble Lord, Lord Clement-Jones, whose expertise exceeds the combination of everybody’s in the Chamber at present. On SEPs, I can only stand back in amazement that he has been able to understand what is being recommended by the IPO, let alone to have come forward with a plan that might take us a bit further down the track that we clearly ought to have gone down.
I turn first to the questions the noble Baroness, Lady Bennett, raised, which cut to the heart of what, is in some senses, the purpose of the Bill. I am afraid that she rather weakened her case at the end by saying that it was a much broader basis for debate and discussion than could be encompassed within this Bill; I think she saw it primarily as a way of continuing a much larger battle, and I wish her well with that. In that sense, we do not need to take this forward. However, I hope that the Government are taking note of the impacts that some of the provisions in the Bill are having, in the sense that it is not achieving the aims and objectives, which I think we all share, of making sure that we reduce carbon and try to meet targets which have been set for us in the long term on this. Therefore, greenwashing will continue, but we hope that it will be better in scope and that the focus will be more across the range of government activity.
On imitation packaging, as the noble Lord, Lord Clement- Jones, said, we have also been discussing this for a number of years in various Bills as they have come forward, and it is good that the assertion now is that in Clause 224 and Schedule 19, there will be help. However, the question is, of course, enforcement. I would be grateful if, when the Minister comes to respond, he could give us a bit more information about how that might happen in practice.
The questions raised by the noble Earl, Lord Lindsay, and supported by “the team”, as it was described, are a continuation of debates and discussions we have been having in this House for as long as I have been here—and I certainly have participated in them. It is good to see the government amendments in as far as they go, but the three remaining questions, as raised in Amendments 99, 100 and 101, need answers. I hope the Minister will expand on where the Government have taken us so far and give us some assurances.
Lord Offord of Garvel (Con)
I thank noble Lords for their amendments, contributions and questions. I turn first to Amendment 68, proposed by the noble Baroness, Lady Bennett of Manor Castle. This amendment would provide that consumers’ collective interests included avoiding any detrimental effects resulting from the advertising of high-carbon products and services. The Bill already protects consumers during the transition to net zero. Enforcers can take action to tackle misleading green claims. Moreover, helping to accelerate the UK’s transition to net zero is one of the priorities in the CMA’s new annual plan. I hope that this reassures the noble Baroness.
Amendment 69, from the noble Lord, Lord Clement-Jones, would prohibit the use of packaging that is similar to that of other products. The promotion of imitation packaging is already a banned commercial practice, as listed in Schedule 19. Part 3 strengthens the civil enforcement regime, ensuring that enforcers can tackle misleading replica goods. I hope the noble Lord will therefore not press his amendment.
Lord Clement-Jones (LD)
My Lords, that is a bit terse, even by the Minister’s standards. I think we need to hear a little more about the form of enforcement, because the amendment is about the unsatisfactory nature of current enforcement. I referred to there having been only one enforcement since 2008, despite the fact that it was successful. What guarantee do the welcome recipients of the provisions in paragraph 14 of Schedule 19 have that there will be an effective enforcement regime?
Lord Offord of Garvel (Con)
The view of the Government in this legislation is that the banned commercial practice is banned already, as set out in Schedule 19, and that a strict civil enforcement regime is already in place, strengthened by Part 3. It is down to enforcers to tackle these misleading replica goods; our view is that it is up to the enforcement regimes to enforce under the current law.
Lord Clement-Jones (LD)
My Lords, I am not sure that the Minister has a full brief about the nature of the available enforcement. Will he write to me to provide a few more particulars and give more assurance in this respect?
Lord Stevenson of Balmacara (Lab)
My Lords, it is important that we unpick the point made by the noble Lord, Lord Clement-Jones, which I think was touched on but not addressed by the Minister. If we rely on civil remedies, we are not really addressing the problem that there is, in effect, an opportunity, for those who wish to, to exercise criminality; this surely cannot be left to the civil courts.
Lord Offord of Garvel (Con)
As some clarification is required, I am happy to write further on the matter.
Amendments 70, 71 and 93 to 98 are technical government amendments. The Bill empowers the courts to impose monetary penalties for a breach of consumer law and procedures. To accommodate the different processes by which court orders are served or enforced in Scotland and Northern Ireland, the amendments provide that prescribed penalty information may accompany an order in a separate notice, as well as being contained within it.
On government Amendments 72 to 90, on online interface and the powers of consumer law enforcers to tackle illegal content, I thank noble Lords who have contributed on this important issue. I am pleased to bring forward government Amendments 72 to 90 to give all public designated enforcers take-down powers to tackle infringing online content. The amendments enact the commitment made by the Government in their recent consultation response.
I thank the noble Lord, Lord Clement-Jones, for Amendments 91 and 92. Amendment 91 would require the CMA to provide advice on a business’s compliance with consumer law on request. It would also prevent enforcement action by any enforcer if the advice were complied with. The CMA already provides general guidance and advice on compliance. It is businesses’ responsibility to comply with the law, referring to guidance and seeking independent legal advice where necessary. It would not be appropriate to transform the CMA into a bespoke legal advice service. The amendment would also drain CMA resources from much-needed enforcement activity. Moreover, Amendment 92 compels the CMA to accept primary authority advice received by a business where that advice has been complied with. It is common practice for the CMA to consult the primary authority before taking action; this strikes the right balance and avoids binding the CMA to such advice, thus inappropriately neutering its discretion. I hope the noble Lord will agree that the purpose of a direct enforcement regime is for the CMA to enforce faster and more frequently; these amendments would diminish this objective and remove the deterrent effects of the regime.
Lord Clement-Jones (LD)
My Lords, does the noble Lord understand the need for certainty of advice when it is given by a primary authority and that the primary authority must feel, when it gives that advice, that it has the full backing of the CMA? There seems to be no assurance that this is under consideration or even a matter of concern.
Lord Offord of Garvel (Con)
We are clear that the CMA provides general guidance and advice, but it is the responsibility of businesses to comply with the law. If the CMA is transformed into a bespoke legal advice service, it will not be doing the work it is meant to do, which is focusing on enforcement. Therefore, we believe the balance is right in the mechanism put forward.
Turning to trading standards and Amendments 99, 100 and 101, I am grateful to my noble friend Lord Lindsay and the noble Baronesses, Lady Bakewell and Lady Crawley, for their continued advocacy for trading standards departments and for meeting with me on these issues. I very much enjoyed meeting the case officers in this place. Amendment 101 would end the prohibition on enforcers using information that a person has been compelled to provide under broad information notice powers in criminal proceedings against that person. This prohibition safeguards a person’s right not to self-incriminate—a long-established right protected by the common law and the Human Rights Act. The courts have held that material which exists independently of the will of the suspect, such as pre-existing data obtained during a search of the suspect’s premises, may be admissible in a criminal trial against them. By contrast, to comply with an information notice, a person will likely be required to generate documents. Legislation already permits trading standards departments to exercise their investigatory powers outside their local authority boundaries, including by carrying out in-person inspections of business premises. We have been informed that trading standards departments have used these on-site powers to secure documents from traders suspected of an offence and then relied successfully upon such documents in prosecutions against them.
Amendments 99 and 100 would permit any trading standards department based in Great Britain to carry out investigations across national borders. As I committed to my noble friends in writing, I have asked government officials to work further with trading standards to identify practical measures supporting greater cross-border co-ordination. To clarify, if an infringer is based in Scotland and the offence has caused harm in England, the English enforcer can pursue a prosecution through the English courts and vice versa—the procurator fiscal can prosecute a case where a trader is based in England but the infringement was committed in Scotland. All court orders in respect of consumer protection breaches have effect in all parts of the United Kingdom, regardless of where they have been made. We are open to exploring a variety of options, for example, exploring how best to facilitate local authorities across the country to exercise investigatory powers on behalf of each other. I have asked them to consult with trading standards when developing guidance on this legislation to ensure clarity on what it provides for. Once again, I thank my noble friend and the noble Baronesses for their engagement on this issue.
Government Amendments 102 and 103 make further consequential amendments to the Estate Agents Act 1979. They achieve consistency in how the Act applies to non-compliance with obligations under the court-based and the CMA direct enforcement regime.
Turning to standard essential patents, raised by the noble Lord, Lord Clement-Jones, through Amendment 152, I can confirm that the Government have now published their key objectives on SEPs and a forward look at work to be conducted in 2024. This follows input received in 2023 from key stakeholders from industry. The Government will first take forward non-regulatory interventions where action can be taken now. Later in 2024, the Government will launch a technical consultation on other potential interventions. On the question of injunctions, the Government believe that other measures, such as guidance, information on SEP licensing and how to respond to SEP disputes, is a proportionate government response at this stage. A resource hub will provide guidance that will enable businesses to better understand the SEP licensing system and the UK courts’ approach to the remedies available for patent infringement and existing services available for dispute resolution. The IPO will also continue engagement with relevant industry and institutions to continue to inform our ongoing policy development and interventions. My noble friend Lord Camrose has confirmed that his department will be making steps in what the noble Lord, Lord Stevenson, has described as a very complicated area.
I hope that this will—
Lord Clement-Jones (LD)
I am sorry to intervene again. The Minister is really confirming what the IPO has advised in its forward look. The Minister is saying, “Yes, this is important, but we are not going to do anything about injunctions”. Does he recognise the asymmetry in all this? This is why SMEs need enforcement to be looked at much more carefully in terms of the amendment that I have tabled. What is the essential objection to going forward with some kind of change, given that the rest of the proposals from the IPO seem to be pretty satisfactory?
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.
Lord Offord of Garvel
Member's explanatory statement
This amendment provides that, where an order is made requiring payment of a monetary penalty, the requirement to provide monetary penalty information (see clause 203) within the order may instead be met by providing the information in a separate document. This will ensure that if any such information is not known at the time of making the order it can be included instead in that document.
“(9) In the application of subsection (4) to Scotland, “service of the order” includes service of an extract order in execution of or diligence on the order.” Member's explanatory statement
This amendment is consequential on my other amendment to clause 158.
Member's explanatory statement
This amendment enables all public designated enforcers to apply for online interface orders, and interim online interface orders, instead of only the CMA.
Member's explanatory statement
This amendment is consequential on my first amendment to Clause 160.
Member's explanatory statement
This amendment is consequential on my first amendment to Clause 160.
“(4A) Section 154 (CMA directions to other enforcers) applies where it appears to the CMA that another public designated enforcer intends to make an application for an online interface order, or an interim online interface order, as it applies in relation to intended applications for enforcement orders and interim enforcement orders, but for this purpose the reference to such other enforcer in subsection (2)(b) is to be taken as a reference only to such other public designated enforcer.”Member's explanatory statement
This amendment extends the power of the CMA to give directions to other enforcers intending to make an application for an enforcement order or an interim enforcement order so as to include intended applications by other public designated enforcers for online interface orders and interim online interface orders (see my first amendment to Clause 160).
Member's explanatory statement
This amendment is consequential on my first amendment to Clause 160.
Member's explanatory statement
This amendment is consequential on my first amendment to Clause 160.
Member's explanatory statement
This amendment is consequential on my first amendment to Clause 160.
Member's explanatory statement
This amendment is consequential on my first amendment to Clause 160.
Member's explanatory statement
This amendment is consequential on my first amendment to Clause 160.
Member's explanatory statement
This amendment is consequential on my first amendment to Clause 160.
Member's explanatory statement
This amendment is consequential on my first amendment to Clause 160.
Member's explanatory statement
This amendment is consequential on my first amendment to Clause 160.
Member's explanatory statement
This amendment is consequential on my first amendment to Clause 160.
Member's explanatory statement
This amendment is consequential on my first amendment to Clause 160.
Member's explanatory statement
This amendment is consequential on my first amendment to Clause 160.
Member's explanatory statement
This amendment is consequential on my first amendment to Clause 160.
Member's explanatory statement
This amendment is consequential on my first amendment to Clause 160.
Member's explanatory statement
This amendment is consequential on my first amendment to Clause 160.
Member's explanatory statement
This amendment is consequential on my first amendment to Clause 160.
Lord Offord of Garvel
Member's explanatory statement
This is amendment is consequential on my amendments to clause 158.
“(5) References in subsections (1) and (2) to an order include references to a notice accompanying such an order given under section 158(4).(6) In the application of this section to Scotland, the references in subsections (1)(e) and (3) to an order being served include service of an extract order in execution of or diligence on the order.”Member's explanatory statement
This amendment is consequential on my amendments to clause 158.
Member's explanatory statement
This amendment provides that, where an order is made requiring payment of a monetary penalty under new paragraph 16A of Schedule 5 to the Consumer Rights Act 2015 (see Schedule 16 to the Bill), the requirement to provide the information listed in paragraph 16A(7) within the order may instead be met by providing the information in a separate document. This will ensure that if any such information is not known at the time of making the order it can be included instead in that document.
Member's explanatory statement
This amendment is consequential on my first amendment to Schedule 16.
Member's explanatory statement
This amendment corrects a drafting error.
“(12A) In the application of this paragraph to Scotland, the references in sub-paragraphs (7) and (8) to an order being served include service of an extract order in execution of or diligence on the order.”
Lord Offord of Garvel
Member's explanatory statement
This amendment provides that orders under the Estate Agents Act 1979 prohibiting unfit persons from doing estate agency work can be made in cases where a person has failed to comply with an undertaking given to the CMA under clause 185 of the Bill.
“(c) after paragraph (bb) insert—“(bc) has failed to comply with a requirement imposed by a final infringement notice given under section 182 of that Act in relation to estate agency work; or”Member's explanatory statement
This amendment provides that orders under the Estate Agents Act 1979 prohibiting unfit persons from doing estate agency work can be made in cases where a person has failed to comply with a final infringement notice given by the CMA under clause 182 of the Bill.
Baroness Hayman
“(5A) Section (Right to repair) confers the right to repair on consumers.”
Baroness Hayman (CB)
My Lords, I rise to move Amendment 104 and speak to Amendment 118, tabled in my name. I declare my interests as chair of Peers for the Planet. I express my gratitude to my supporters, the noble Baronesses, Lady Harding of Winscombe, Lady Ritchie of Downpatrick and Lady Bakewell of Hardington Mandeville. I also thank the external organisations that have supported us with evidence and briefings.
With these amendments, we return to the issue raised in Committee of the suite of consumer rights known as the right to repair. As I explained then, the current lack of such a consumer right to repair means that many of us have experienced intense frustration at non-existent or overpriced spare parts for broken electrical and electronic equipment, which we are repeatedly told will be more expensive to repair than simply to replace. The least well-off households, on tight budgets, therefore get forced into a cycle of regularly replacing cheap equipment rather than being able to repair it and keep it in use for longer. As well as the economic impact on families and consumers, this wastes scarce resources, such as rare metals, while producing large amounts of waste for landfill. The UK now produces the second-highest per capita amount of electrical and electronic waste in the world.
My amendment would task the Government with producing a strategy to enhance the consumer’s right of repair for electrical and electronic products, and would put a stop to restrictive practices that undermine consumer efforts to repair and continue to use the products they own. As I said in Committee, there is widespread public support for action. That support was echoed around the Committee when we debated it and is evidenced in the extreme popularity of television’s “The Repair Shop”. I am grateful for the support of its presenter, Jay Blades, when he said that too often our efforts to repair things
“are blocked by manufacturers’ badly designed products or unaffordable spare parts. Extending a right to repair would help us rediscover the joy and skill of restoration, repair and redesign”.
I am extremely grateful to the Minister, the noble Lord, Lord Offord, and his team of officials, from both his department and others, for their extensive engagement on this topic since Committee, but I am afraid that I remain unconvinced that everything is well and that there is no need for an overarching strategy. I recognise that a number of limited initiatives are under way, but I am afraid the reality is that the work that is being undertaken falls short of the necessary scale, breadth and urgency if we are to improve the consumer’s experience.
In addition, there is no clear point of accountability for this work at the centre of government. Responsibilities are split between at least three departments. The Department for Business and Trade is engaged in relation to post-Brexit product safety standards. Defra ostensibly owns waste and resource management policies across the board, but all responsibility for the repair of electrical and electronic products now rests under the eco-design regulations, which sit at DESNZ. But DESNZ focuses on reducing domestic greenhouse gas emissions, rather than on the repairability of products such as computers, tablets and smartphones.
My decision to return to this issue, with some limited changes in response to criticisms made in Committee, has been influenced by two additional points. First, I discovered that under the Northern Ireland protocol, where the single market in fact includes eco-design, eco-labelling and battery legislation, consumers in Northern Ireland will be able to repair phones, smart- phones and tablets, and to see a repair index in the energy label from next year. They will also be able to replace all batteries in consumer products from 2027. These rules come from the EU, which, like many other jurisdictions, is pressing ahead with its own reforms. This leads me to believe that the complexities that the Minister has previously outlined are not insuperable and that the Government, if they can do it in Northern Ireland, could extend similar protections to consumers in England, Scotland and Wales.
The second point that makes me return to the subject is the letter published yesterday by Philip Dunne MP, the chair of the Environmental Audit Committee in the House of Commons. That letter criticised and bemoaned—that is probably fair—the progress that has been made in the three and a half years since the committee’s report on electric waste. The letter says that adequate progress is simply not being made. In November 2020, the EAC said that the Government should enshrine the right to repair in law. In February 2021, the Government responded that they
“would explore whether requirements to improve repairability … could be considered for a wider range of products”.
More than three years later, they are still exploring but are yet to discover a single additional product for which they might legislate for increased repairability. I fear that the necessary action will simply not happen unless someone in government takes a grip—I can think of no one better than the Minister we have with us today—and we can see a coherent strategy and plan and the accountability for its implementation.
I believe I have responded to most of the points the Minister made in Committee. He also suggested that adding the right to repair to consumer law would oblige retailers to pre-emptively seek information from manufacturers, adding to costs and reducing choice. My amendment would not do that. It would put the obligation on manufacturers to proactively provide the data—it would not put the duty on retailers; nor do I think the amendment could possibly fall foul of WTO rules when so many other WTO members are doing similar things.
I simply do not believe that the progress made already is sufficient or that there are insuperable barriers to doing what needs to be done. The argument that we can rely on progress that is glacial at best simply does not hold water. Everyone seems to think that this is a good idea. No one argues against having better-designed and easier-to-repair products. It is just that no one seems to be willing to grasp the nettle to do anything about it. This amendment would make sure that they did. I beg to move.
The Earl of Lindsay (Con)
My Lords, I will speak to Amendments 109 and 115. Once again, I do so with the co-sponsorship of the noble Baronesses, Lady Crawley and Lady Bakewell.
I will address Amendment 109 first. Fake reviews can cause loss, detriment and harm to consumers and law-abiding businesses. The government amendment that adds fake reviews to the practices in the schedule is therefore welcome. However, that amendment makes the practice an “excluded description”, meaning that enforcement action can be taken only through the civil route.
All the other banned practices, except two relating to matters under the remit of the Advertising Standards Authority, allow enforcement officers to take action through either the civil or the criminal courts. That depends on what is most appropriate and proportionate in the circumstances. If it is deemed that 29 out of the current 31 practices should have the option of a criminal penalty, we strongly believe that fake reviews should also be in this category, as the practice is arguably more serious and causes greater detriment to consumers and reputable businesses than a number of the other practices in that list. Making fake reviews either a civil or a criminal breach would send a strong message to those looking to deceive consumers and would give enforcers the opportunity to take stronger action if and when necessary.
I turn to Amendment 115. Invitation to purchase is a complex area of the legislation, and the Bill differentiates between this and “misleading omissions”. A commercial practice is a misleading omission if it omits “material information”; in other words, information the average consumer needs to make an informed decision. It can be challenging to decide what is information that consumers want and what is information that consumers need. If a practice is an invitation to purchase, a number of matters are identified as being material information. Therefore, an omission of any of these breaches the legislation and allows enforcement action to be taken.
One of those matters is the trader’s name and address. Rogue traders often approach vulnerable consumers offering unnecessary and substandard work, but without giving a price before starting the work. As price is part of the definition of invitation to purchase, in such circumstances the practice is not an invitation to purchase and so the trader’s name and address are not specifically material information. This is to the detriment of the consumer. This information is unlikely to be considered material information under misleading omissions, and the Companies Act 2006 does not require the provision of a name and address if a trader has no trading name or is trading under his own name.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I put my name to two sets of amendments in this group: Amendments 104 and 118 on the right to repair, and Amendments 109 and 115 on trading standards issues.
I will speak first to the right to repair. The noble Baroness, Lady Hayman, set out clearly the rationale behind these amendments, and I know that she has been working with the Minister and officials to try to get some traction on this issue. Part of my role in the House, for my party, is waste: how to minimise it, how to deal with it when it is created, and how to prevent it being created in the first place.
I was also brought up to repair what was broken and give items a new lease of life; the Screwfix catalogue is always lying around somewhere in our house. If you are going out for the evening and have a full skirt, which is no longer fashionable and can be unpicked, it is relatively easy to sew it back up into something more appealing, ready to wear out and wow your friends in the evening. This is not the case when a washing machine goes wrong and starts to flood the kitchen floor.
The amendment is very detailed and gives plenty of time for manufacturers to adapt their practices and start thinking again about abandoning their wasteful practices, which force the hard-pressed consumer to buy a replacement for an item that, with a little thought, could well have been repaired and lasted much longer, instead of joining the heap of white goods at the local household waste recycling centre and then landfill. The right to be able to repair an electrical or electronic item or household product should be universal.
The noble Earl, Lord Lindsay, set out the arguments for Amendments 109 and 115 extremely well. While I understand that the Government do not believe that fake reviews should be a criminal offence, it is difficult to understand why, if there are currently 31 schedule practices, of which 29 are both civil and criminal breaches of the CPRs, two, including fake reviews, should be subject to civil breaches only. Of the 29, it is up to the judgment of the officer whether they take civil or criminal action. Many of the “fake review” fraudulent claims and activities are deliberately targeted at children and the elderly—the most vulnerable in our society. Civil action does not give the protection they deserve or require.
I have received a contribution from the National Trading Standards eCrime Team; it is a case study. A consumer is looking to buy a dehumidifier, so googles “dehumidifiers”; Google or other search engines show top results at the top of the page, which are usually Google adverts. The advert shows a 5-star-rated product. The consumer clicks on that product link, which takes them to a website that spotlights reviews that look genuine about how amazing the product is. The consumer buys the product and the money is taken from their bank, but it is a totally fake site with fake reviews and the products do not actually exist. There are 600 cases of consumers being tricked by fake reviews on this site and product alone; there is a detriment here of £90,000. There are multiple examples of this with lots of different products. Consumers are being drawn to sites using fake reviews and handing over their money, and the products do not arrive as they do not exist. I am sympathetic to the Minister’s wish not to increase the number of activities that come under the “criminal activity” banner but remain convinced that action is needed on this issue.
On invitation to purchase and the subject of price, I am grateful for the Minister’s clarification but remain concerned that a rogue trader will make a particularly good case that the price being quoted is the total cost to the consumer, only later to add in other costs and taxes. This is not something we are used to in this country. In America I can decide to buy something for $25, having looked at the price label, but when I get to the checkout I find I am charged $27.50, as both local and national tax have been added. All Americans are used to this; it is only the uninformed tourist who gets caught out, but usually only once.
I remain convinced that those targeted by rogue traders are those who may not be aware that VAT or material costs are not always included in the initial price quoted. Will the Minister see whether there is some way in which our request on this issue can be accommodated?
Baroness Crawley (Lab)
My Lords, as the third of the consumer protection enforcement team mentioned by the noble Lords, Lord Clement-Jones and Lord Stevenson, I have added my name to Amendments 109 and 115.
Amendment 109 concerns the issue of fake reviews; this has already been well set out by the noble Earl, Lord Lindsay, and the noble Baroness, Lady Bakewell. It is worth looking again at Hansard and the example from the noble Baroness, Lady Bakewell, of the live evidence we have received from the National Trading Standards eCrime Team as to the sites where people are handing over their money as we speak, thinking they have read a legitimate review and bought an amazing product, but the product does not exist.
I recognise the move that the Government have made in adding fake reviews to the list of 31 commercial practices that are, in all circumstances, considered unfair and banned practices. However, trading standards sees the practice of giving fake reviews as clearly fraudulent in nature, and therefore it should be a criminal as well as a civil offence, if the circumstances are correct for that judgment to be made. At the moment, we are confined to looking at fake reviews as a civil offence.
Fake reviews are also a growing distortion of the online marketplace. They are unfair to legitimate businesses and completely deceptive of consumers. This amendment is important in making fake reviews a criminal as well as a civil offence. I hope that the Minister understands the seriousness of this—I am sure he does—and will think again about his stance on this amendment.
Lord Moynihan (Con)
My Lords, I rise to speak to Amendment 150, which builds on the work undertaken in this House at the time of the Consumer Rights Act 2015. I am fully supported by the indefatigable Sharon Hodgson, the MP for Washington and Sunderland West in another place, who is the co-chair of the APPG on Ticket Abuse; I am the other co-chair. Many leading musicians, sportsmen and sportswomen also support further action, as does FanFair Alliance.
Amendment 156 seeks to protect the many people who buy tickets for popular sport and arts events from the fraudulent abuse provided by a poorly regulated secondary market, a term coined by touts in 2008 to provide their activities with a veneer of respectability. What we are dealing with is a black market that profits from ticket obtained in bulk, illegally. Promoters whose terms and conditions are ignored have, in effect, lost the ability to sell tickets to the public at face value. To see hundreds of thousands of attempts by bots to harvest tickets in bulk for a single event is not uncommon. These amendments simply seek to implement recommendations made by the Competition and Markets Authority and to provide important safeguards for consumers. As evidenced by the security team at the O2, there are daily stories of families travelling to London to go to sold-out events finding on arrival that the tickets they had bought in good faith were fraudulently sold and unsuitable for admission. They have no recourse available to them at the time of the event. They have lost all the costs they incurred for travel and a hotel, to which must be added the bitter disappointment of missing what might be the event of a lifetime for them and their children, and all the incidental costs of the process.
In 2007, when I joined the campaign against modern-day ticket touts, there were approximately 120 full-time ticket touts in the United Kingdom. By 2015, the number had risen to 400, who regularly attacked primary ticketing systems using aggressive software to harvest tickets in bulk—400 too many when we were working on the Bill which resulted in the Government accepting many of our amendments. Today, there are not 400, there are between 3,000 and 4,000 touts, not based only in the UK but attacking ticket systems for UK events. This explosion has been brought about by the advent of mobile and digital ticketing. Whereas touts previously had to wait for paper tickets to arrive by post, they can now harvest tickets and send them out in an instant from mobile devices and apps.
Put simply, this aggressive software takes the form of scalper bots, computer programs which can store the details of hundreds of credit cards, which, at the press of a button, sweep the market for tickets for popular events while the likes of us and, more importantly, many families across the country are filling in all their details online, often waiting a long time for their applications to be processed, only to find that all the tickets have been sold. Within minutes after filling in the forms, the tickets they were seeking appear on secondary ticketing sites, at vastly inflated prices, benefiting only the touts and the secondary platforms. Most ordinary fans do not stand a chance against this. This is particularly true, sadly, at the Royal Albert Hall, where the market provides evidence that board members and trustees can benefit from the corrosive practices of the secondary market, which I address in Amendment 151.
The truth is that tickets are being harvested by today’s ticket touts in bulk. To do so, they have perfected their trade to the point that they have become “trusted suppliers” for the likes of viagogo and StubHub and guarantee the delivery of a large number of tickets before they have gone on sale to the public. If, for whatever reason, they fail to deliver their tickets, many resort to printing fraudulent tickets and delivering them to the secondary market to retain their trusted supplier status in the future, to the detriment of consumers who turn up to the concert or sport event to find that they are turned away.
My noble friend the Minister kindly wrote to Members of the Committee and was correct when he said that ticketing is more secure. However, the same technology also enables touts to carry out larger attacks on ticketing systems than ever before due to the increased portability of digital tickets. Frankly, the ticketing industry is on the cusp of losing the ability to sell tickets to genuine fans at an affordable price, thus depriving the lowest-paid, hardest-working fans of the ability to see their favourite artist or sports team.
In writing to the Members of the Committee, my noble friend the Minister mentioned the trial resulting in the conviction of two touts and the subsequent £6 million forfeiture order. They used dishonest and fraudulent tactics which would have been found out far sooner if the amendments before the House this evening were on the statute book. National Trading Standards, whose budget has been frozen for many years, has stated that it simply does not have the budget to pursue any more cases of this kind. The number of touts now attacking ticketing systems makes it an impossible task for law enforcement to prosecute some, let alone all, of them to the point where it would disrupt their activities and protect consumers.
Recently, viagogo has taken to concealing the face value of tickets behind an icon. This is a loophole in consumer protection that needs to be closed. Consumers should be able to see clearly the original price of the ticket they are about to purchase, as well as the ticket tout’s details, in order to check that the business they are buying from even exists. That would have helped both the cases that are currently under consideration by the courts.
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.
Lord Leong (Lab)
My Lords, I thank all noble Lords who have spoken in this debate. Once again, I have been extremely impressed by the range of expertise and the depth of insight. Conscious of the time we have all been here, I will address some of the key amendments as briefly as I can.
Amendments 104 and 118, in the names of the noble Baronesses, Lady Hayman, Lady Bakewell, Lady Ritchie and Lady Harding, would require the Secretary of State to publish a strategy conferring the right to access repair. They would also ban practices which prevent repair or prematurely terminate software support. The right to repair is an essential part of the circular economy. Many businesses understand that this is an opportunity for innovation, creating new jobs, saving money, reducing waste and saving scarce resources.
We are sympathetic to the noble Baroness’s amendment. The noble Baroness, Lady Hayman, has made strong arguments for her amendment, and she has a lot of support around this House for action to be taken on this issue. We are, in principle, supportive of the right to repair and its contribution to the circular economy, although we recognise that the impact on the sector will be significant. We would, therefore, encourage the Minister, if he cannot accept this amendment today, to make a firm commitment at the Dispatch Box that the Government will work with the noble Baroness, across departments, to ensure that real progress will be made on this issue in the near future.
We support Amendments 105 and 106 from the noble Lord, Lord Clement-Jones. These would make selling goods online, when they do not meet specified safety requirements, constitute an unfair commercial practice. Additionally, we are broadly sympathetic to Amendment 108 in the name of the noble Lord, Lord Clement-Jones, which lists five new unfair commercial practices. However, we would welcome proposals for further discussion.
Moving on to fake reviews, Amendment 109, in the names of the noble Earl, Lord Lindsay, and the noble Baroness, Lady Crawley, would insert provisions around fake reviews of products into Schedule 19. We welcome government Amendment 107, which adds various activities relating to fake reviews directed at consumers to the list of unfair practices in Schedule 19 to the Bill.
However, we would encourage the Government to adopt Amendments 107A and 107B from the noble Lord, Lord Clement-Jones. These propose small improvements to address the role played by internet service providers and social media in promoting fake reviews. If the Minister does not accept these amendments, can he explain why ISPs and social media are not specifically covered within the government amendments?
We must not forget the real-life consequences of the issues at stake among all the technical details. We all remember the awful tragedy of the Grenfell Tower fire in June 2017, which killed 72 people and injured 70 more. The source of this blaze was recently identified as a faulty fridge-freezer. Even one more preventable death from recalled products, where there are known risks to consumers, would be one too many. We urgently need to act to do whatever we can to prevent further tragedy.
The following amendments address this issue directly. Amendment 110, again in the name of the remarkably industrious noble Lord, Lord Clement-Jones, would make it a misleading action to sell goods online without taking reasonable steps to ensure that they have not been subject to a product recall. Amendment 111 would require the Secretary of State to make regulations to define the “reasonable steps” set out in Amendment 110. Amendment 120, in the noble Lord’s name, defines the terms “online marketplace” and “safety requirements”, which we support.
The Government set up the Working Group on Product Recalls and Safety to bring together experts from fire services, trading standards, consumer groups and industry. They were tasked with identifying the causes of fire from white goods—everyday items such as dishwashers, washing machines, tumble dryers and fridge-freezers—and the actions needed to reduce them. Experts suspect that selling recalled and faulty goods via online stores and social media platforms is common practice. I ask the Minister: when did this working group last meet? Are there are plans for consultations to explore this dangerous behaviour?
Moving on to drip pricing, we thank the Government for listening to our concerns in this area and bringing forward Amendments 112, 113 and 114. We ask the Government specifically to keep the definition of mandatory fees under review.
Amendment 115, in the name of the noble Earl, Lord Lindsay, is a sensible one, proposing that price should be removed from any invitation to purchase so that it is not an inducement to buy.
The following government amendments are technical, clarificatory and consequential and we are broadly in agreement: Amendments 116, 117, 119, 121, and 141 to 149.
In Committee, I spoke about the UK’s secondary ticketing market. It is estimated to be worth £1 billion annually. The industry model is to purchase tickets for sporting and cultural events in bulk, and then resell them at inflated prices, as referred to by the noble Lord, Lord Moynihan. Such practices exclude people who cannot afford artificially high prices and exploit the people who can. Several renowned artists, through their management firms, are implementing measures to ensure that genuine fans secure tickets initially, and to identify and nullify tickets resold for profit.
I am pleased to speak to Amendment 150 in the name of the noble Lord, Lord Moynihan, supported by the noble Lord, Lord Clement-Jones, and my noble friend—and good friend—Lady Jones of Whitchurch. Not only would it prevent bulk-buying of tickets, it would end the fraudulent practice of speculative selling. This is where touts list and sell seats they do not have, bank the proceeds and then hope to secure a ticket later to fulfil an order. This is despicable. I respectfully remind the Minister that these practices most certainly are not good examples of competitive markets, nor do they give consumers genuine choice and flexibility.
Online ticket touts create nothing except misery for fans. They exploit the market and distort it, purely for their own profit. The voices of the creatives, the ones both we and their fans want to support, are calling for the Government to act. We on this side will support the noble Lord, Lord Moynihan, if he seeks to test the opinion of the House on Amendment 150. Of course, we will consider and vote for it in its place on the list.
Finally, we support Amendment 151, which addresses a very specific situation. When a trustee of a charity receives tickets in respect of their role, they must not resell them on a secondary ticketing site for more than face value plus a handling charge.
I hope the Minister has been persuaded by my whistle-stop summary, and as I catch my breath, I will listen with interest to his response.
Lord Offord of Garvel (Con)
As ever, I start by thanking noble Lords for their amendments and all who spoke for their important and considered contributions. On Amendment 104 on right to repair, tabled by the noble Baroness, Lady Hayman, it has been a great pleasure to discuss this with her during this process and, indeed, since Committee. I also thank the noble Lord, Lord Leong, and the noble Baronesses, Lady Bakewell and Lady Bennett, for their impassioned contributions on this issue.
Noble Lords may recall from Committee that there is much excellent work under way in this area across government, involving in my department, Defra, the Department for Energy Security and Net Zero and the Department for Science, Innovation and Technology. Waste prevention and eco-design are two key strands of this work. As well as this cross-government work, Defra, which published Maximising Resources, Minimising Waste last year, is currently setting up the necessary programme management and governance functions around that work, and will work closely with other government departments, including those with a consumer perspective, to achieve these goals. I appreciate the point that there is a lot to co-ordinate here, and I hope that this governance will reassure noble Lords that the problem is being gripped. The Government will also set out in a future publication how each scheme interacts and adds up into a coherent whole.
I appreciate the point that the noble Baroness made about Northern Ireland, and we will of course consider carefully the implications of new EU regulations in Northern Ireland. Naturally, we will adopt an approach that best suits the UK circumstances when designing our own regulations; we are always open to allowing for more or less any objective that would even improve on the EU’s regime.
While I am sympathetic to the intent of these amendments, the Government’s view is that there is already a strategic framework in place for supporting right to repair. I greatly appreciate all the work that the noble Baroness, Lady Hayman, is doing in this space. Of course, her continued input would be greatly welcomed as this work progresses. I have said to her before that we are violently agreeing on the need for this to happen, and I am very happy to work with her to move forward.
I turn to Amendment 108, tabled by the noble Lord, Lord Clement-Jones, relating to third-party agents. I would like once again to reassure him that the protections sought in these amendments are mostly provided for elsewhere in consumer law. Clauses 225 and 227 prohibit traders using misleading actions or aggressive practices, including influencing a consumer’s decision on whether to use a third party. A particular dispute between an airline and an online travel agent has often been raised, including in Committee, when discussing this issue.
The CMA has significant powers to investigate and act if it finds that businesses are behaving anti-competitively in a particular market. It is right that those matters be determined by the CMA as it sees fit, which means that I cannot comment on its work—but I can assure the noble Lord that it is alive to this issue. More broadly, we have recently consulted on the package travel regulations that govern many of these sectors, and I look forward to sharing the response to the call for evidence.
I turn to the issue of invitation to purchase, and thank my noble friend Lord Lindsay for his Amendment 115, as well as the noble Baroness, Lady Bakewell, for her contribution on this issue. The amendment would remove the requirement that a price is provided before an action is considered an invitation to purchase. Actions that are considered an invitation to purchase attract specific consumer rights. The Government believe that the changes proposed by this amendment would expand the definition too far, rendering the invitation to purchase provisions unworkable in practice. The Government are confident that sufficient legal protection is already in place for circumstances in which vulnerable customers engage rogue traders to undertake services on their behalf. In the Consumer Rights Act 2015 there are pre-contract information obligations on traders to provide identity and contact details. Nevertheless, I draw your Lordships’ attention to my commitment for officials to continue to work with noble Lords to identify practical measures to support trading standards officers.
The noble Baroness, Lady Bakewell, raised an important point about VAT. I can provide an assurance that pricing information must already include any relevant taxes, including VAT, and VAT and pricing information is also subject to the Price Marking Order that the Government consulted on last year. We will introduce secondary legislation to improve transparency, including on all taxes.
Baroness Hayman (CB)
My Lords, I am extremely grateful to everyone who has taken part in this debate. I have to say that I have never really experienced such violent agreement—as the Minister put it—from both Front Benches, and such little appetite for doing anything about it, or for any action. So I have to say that I think we are missing a legislative opportunity to do something that would have enormous support both in the country and, I believe, among individuals around the House. However, I really do not want to be churlish. I am genuinely grateful to the Minister, because he has spent a lot of time and thought on this issue and I recognise that he is confident that progress will be made without legislation.
I will just say that I think it would be prudent if I put a note in my diary, for maybe nine months’ time, to put down an Oral Question to see exactly what progress we have made. At the same time, I might remind myself to look very carefully at the Labour Party manifesto to see what its policy on waste actually is. On that note, I beg to leave to withdraw my amendment.
Lord Offord of Garvel
“12A “(1) Submitting, or commissioning another person to submit or write—(a) a fake consumer review, or(b) a consumer review that conceals the fact it has been incentivised.(2) Publishing consumer reviews, or consumer review information, in a misleading way.(3) Publishing consumer reviews, or consumer review information, without taking such reasonable and proportionate steps as are necessary for the purposes of—(a) preventing the publication of—(i) fake consumer reviews,(ii) consumer reviews that conceal the fact they have been incentivised, or(iii) consumer review information that is false or misleading, and(b) removing any such reviews or information from publication.(4) Offering services to traders—(a) for the doing of anything covered by sub-paragraph (1) or (2);(b) for the facilitating of anything covered by sub- paragraph (1) or (2) to be done.(5) For the purposes of this paragraph—(a) “consumer review” means a review of a product, a trader or any other matter relevant to a transactional decision;(b) “fake consumer review” means a consumer review that purports to be, but is not, based on a person’s genuine experience;(c) a consumer review conceals the fact it has been incentivised if—(i) a person has been commissioned to submit or write the review, and(ii) that fact is not made apparent (whether through the contents of the review or otherwise);(d) “consumer review information” means information that is derived from, or is influenced by, consumer reviews;(e) a person “submits” a review or information if they supply it with a view to publication;(f) “writing” includes creating by any means; (g) “commissioning” includes incentivising by any means (and “commissioned” is to be read accordingly);(h) “publishing” includes disseminating, or otherwise making available, by any means;(i) publishing in a “misleading way” includes (for example)—(i) failing to publish, or removing from publication, negative consumer reviews whilst publishing positive ones (or vice versa);(ii) giving greater prominence to positive consumer reviews over negative ones (or vice versa);(iii) omitting information that is relevant to the circumstances in which a consumer review has been written (including that a person has been commissioned to write the review).”Member’s explanatory statement
This amendment adds various activities relating to fake reviews directed at consumers to the list of unfair commercial practices in Schedule 19 to the Bill.
Lord Offord of Garvel
“(b) the total price of the product (so far as paragraph (ba) does not apply);(ba) if, owing to the nature of the product, the whole or any part of the total price cannot reasonably be calculated in advance, how the price (or that part of it) will be calculated;”Member’s explanatory statement
This amendment, along with my amendment to insert new subsections (3A) and (3B) into clause 229, requires a trader to set out in an invitation to purchase the total price of a product including any mandatory fees, taxes and charges that apply to the purchase of a product rather than “drip-feeding” such amounts during the transaction process.
Member’s explanatory statement
This amendment is consequential on my other amendments to clause 229.
“(3A) For the purposes of subsection (2)(b) the total price of a product includes any fees, taxes, charges or other payments that the consumer will necessarily incur if the consumer purchases the product.(3B) For the purposes of subsection (2)(ba) (and subject to the matters mentioned in subsection (6)) the information given must—(a) be such that it enables the consumer to calculate the total price, and (b) be set out with as much prominence as any information that is set out in compliance with subsection (2)(b).”Member’s explanatory statement
See the explanatory statement for my amendment to clause 229(2) (on page 153, at line 12).
Lord Offord of Garvel
Member’s explanatory statement
This amendment, and my other amendment to clause 232, changes the parliamentary procedure for regulations under clause 232 so that any regulations made under the clause (not just the first) are subject to the affirmative procedure.
Member’s explanatory statement
See the explanatory statement to my other amendment to clause 232.
Lord Offord of Garvel
“(aa) the descriptions of practices mentioned in paragraph 12A of that Schedule;”Member’s explanatory statement
This amendment provides that the new unfair commercial practice relating to fake reviews provided for by my amendment to Schedule 19 will be an excluded description of practice for the purposes of clause 236(7) (and accordingly will not be subject to criminal liability).
Lord Offord of Garvel
“(2A) In section 74(3) (interpretation of Chapter)—(a) in paragraph (b) for “the Consumer Protection from Unfair Trading Regulations 2008 (S.I. 2008/1277)” substitute “Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024”; (b) in paragraph (c) for “those Regulations (see regulation 19 of those Regulations)” substitute “that Chapter (see section 230 of that Act).”Member’s explanatory statement
This amendment makes a further amendment to the Online Safety Act 2023 that is consequential on the revocation of the Consumer Protection from Unfair Trading Regulations 2008 and the commencement of Chapter 1 of Part 4 of the Bill.
Lord Offord of Garvel
“(5) See section 274(4) to (8) for how this Chapter applies in relation to a contract that—(a) was an excluded contract at the time it was entered into, and(b) on subsequently ceasing to be an excluded contract, becomes a subscription contract.”Member’s explanatory statement
This amendment is consequential on my second amendment to clause 274.
Lord Offord of Garvel (Con)
My Lords, I am delighted to speak to this group of amendments, and I thank the noble Lord, Lord Clement-Jones, and my noble friends Lord Lucas and Lord Mendoza for their amendments. I will first address the government amendments.
Amendments 122 to 125, 138 and 139 aim to address the concerns raised by my noble friend Lord Mott about certain microbusinesses, such as small local farm shops, being unintentionally captured by the new subscriptions rules simply because they are incorporated. Together, these amendments alter the requirement for a business to be unincorporated in order to benefit from the exclusion. Instead, a business will benefit from this exclusion so long as it meets the “micro-entity” thresholds in the Companies Act 2006. The other requirements of the exclusion, which require a business to deliver foodstuffs to the home or workplace without the use of couriers, remain unchanged. This ensures that the exclusion remains well targeted and captures only the smallest of businesses. I am grateful to my noble friend for highlighting this issue, and I hope he is reassured by these amendments.
Lord Mendoza (Con)
My Lords, Amendment 126 is in my name. I declare my interests as set out in the register, particularly as chairman of Historic England, which also has oversight of English Heritage. I want to talk about the very narrow point the amendment tries to cover, which is the specific treatment of contracts relating to charity membership subscriptions. I am sure that many in this House have purses and wallets bulging with membership cards for museums and wonderful organisations such as the National Trust, English Heritage, the Woodland Trust, and so on, and this issue is causing great concern across the charity sector. I am sure many noble Lords’ inboxes have been filled with briefings and pleas from charities. The point is a very narrow one: according to the Income Tax Act 2007, if a subscription is refundable, it will become no longer eligible for gift aid, which is a very large number for charities up and down the land.
I have been grateful over the last weeks for the assiduous attention of my noble friend the Minister and the Bill team. I am also grateful to organisations we have probably all heard from, such as the NCVO, the National Trust and English Heritage, for helping with the background on this. I was even more impressed, as my noble friend the Minister has set out, that the issue was directly referred to with its own lines in the Budget, and that the Treasury has committed to amending gift aid legislation by SI before this part of the Bill comes into force.
As the Minister has said previously, there is no intention to change the status quo on the eligibility of gift aid on these membership subscription contracts. However, I will make three points. No specific changes are being proposed for the provisions in the Bill so there will be a contradiction, before it is sorted out, between this primary legislation and the Income Tax Act 2007, which creates uncertainty. I know it creates uncertainty because we talk to charities, and they need security and confidence and the ability to plan and budget their operations. I know that the noble Lord, Lord Clement-Jones, has put a lot of work into this and I look forward to hearing him present his mechanism for the timing of how this might be helped.
In a way, despite the lines in the Budget, the Government’s amendments have conferred only a general power on the Treasury to make secondary legislation: there is no statutory commitment to get around to actually doing so before these measures come into force. This raises a risk that the provisions of the Bill could be enacted by this or a future Parliament without the issue actually being resolved. The Government’s amendments do not address the concerns raised regarding the application of consumer protections to charity memberships, which are treated as donations for tax purposes. We are certainly not asking for charities to be exempted from consumer protections, and I agree with my noble friend the Minister that many parts of a charity’s operations should not be—its shops, restaurants, cafés, and so on.
However, it cannot be right that we apply a cooling-off period to a form of charitable donation in the same way that you would to a TV subscription service. If I put £5 in the tin for the Royal British Legion, I do not expect to be able to claim it back the following week, saying “I made a mistake”. Membership subscriptions are accepted as donations under the Income Tax Act, and have been for a long time; donations are not refundable, so how can you have a cooling-off period? You have circular contradiction going on. Naturally, I prefer that these contracts might be protected by the amendment as I have set it out; it simply puts this very specific narrow bit of a charity’s operation—membership subscription contracts—into Schedule 21. I am very grateful to the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Jones of Whitchurch, for helping get these points across.
Charities are concerned, and perhaps while the Government are in a giving vein during the Third Reading of the Bill, they might reconsider putting in this very small amendment, which would provide huge relief for charities, and the certainty and reassurance they need, because they do such incredible work right across the country, and they are deeply concerned.
Lord Lucas (Con)
My Lords, I will speak briefly to Amendment 127 in this group. I do not hold, in any particular way, to my choice of wording, but I am fairly sure the Government’s choice of wording is not right. We all receive a huge quantity of emails; we do not want multiplicity—we want effectiveness—and to demand that these emails come separately is a mistake. I hope the Government will see this as an opportunity to rationalise and reduce the size of my inbox and everybody else’s inbox. If we allow more than one thing to be in the message, then the prominent message must be the statutory one. To have it in the subject line and in the first sentence, so that it comes up in the summary when you look at what the email is about, would be a better way of putting it than my amendment, but I am sure the Government can improve on that.
Lord Black of Brentwood (Con)
My Lords, I refer to my earlier declarations of interest.
I raised a significant number of issues relating to subscription contracts in Committee. I am very grateful to both my noble friends on the Front Bench for listening to those arguments, and for bringing forward amendments to deal with them, and I strongly support them. They help fulfil the Government’s aims without placing unacceptable burdens on business.
There is only one remaining issue that we dealt with in Committee, and that is why I am supporting the amendment in the name of my noble friend Lord Lucas. His amendment would remove the prescriptive wording that is currently in the Bill and allow for traders to provide notices
“in a clear and prominent manner:”
His wording simply recognises that the prescribed renewal information is at the heart of the notice and must not be skewed out of view, while allowing for other beneficial information to be included, if desired. I am sure all noble Lords will be very happy that it ensures notices do not become a GDPR-style irritant, but something which is actually helpful to consumers. It would certainly be counterproductive if consumers experienced information fatigue and stopped opening communications from traders or simply opted out of them all together.
Equally, it will alleviate the burdens on traders, who may feel obliged to send emails around the time of renewal notices, to provide information on alternative deals, packages and so on, which could otherwise be dealt with in one communication. As my noble friend said, there may be other ways of dealing with it, or other wording, and I look forward to hearing what the Minister has to say about this amendment, which I support.
Lord Clement-Jones (LD)
My Lords, I am going to be extremely brief as I think we are all anxious to move towards seeing whether the noble Lord, Lord Moynihan, will move his previous amendment to a vote.
There is a common factor here; all these amendments were designed to flush out the Minister to give more assurance and information, and in large part that has been successful. There are still some outliers in terms of reminder notices; the Minister is well aware that there are some players, like Adobe, who will find, when they work it out, that they are going to have to give five notices for an annual contract. I do not know whether the Minister has looked at that and has answers to it.
Baroness Jones of Whitchurch (Lab)
My Lords, I hope that I too can be brief. When we discussed the provisions on subscription contracts in Committee, there were a number of concerns raised about the original wording. There was, at the time, a recognition that some consumers were being trapped into subscription contracts from which they could not easily withdraw. There was a further issue of subscription auto-renewing without people realising, which cost individuals an estimated £500 million a year.
However, against that, there was a strong case made for the many regular subscriptions for the goods and services which were genuinely wanted and loved, and for the many other subscriptions to good causes and charities on which those organisations depended. There was a growing consensus among noble Lords that we had not got that balance right, so I am very pleased that the Minister has listened and engaged with these concerns and we are pleased with the Government’s amendments now tabled.
First, we welcome the decision to exclude micro-entities, such as milkmen and farm shops, from the provisions.
Secondly, it is helpful that the new amendments clarify the way that consumers should notify the business that they wish to end a contract. We would have welcomed a clearer provision for a simple on/off toggle button to end subscriptions; we hope that the Government will keep that option under review.
Thirdly, we welcome the new government proposals to prevent binge-watching of digital content for free during the cooling-off period. The noble Lord, Lord Clement-Jones, has further amendments on this issue which provide helpful clarification on those outstanding issues. I hope the Minister can provide some reassurance that these issues will be kept under review.
We are pleased that the Government have addressed the very real concerns from the charity sector that gift aid claims would be lost under the new regulations. The Government have explained that this requires a change to the Treasury regulations and have given an assurance that these changes will be implemented before this section of the Bill comes into force in October 2025. I pay tribute to the persistence shown by the noble Lord, Lord Mendoza, in trying to resolve this issue, which we have been pleased to support. His Amendment 126 pursues this issue, and I know that there are many in the charity sector who would like further clarity and certainty on how those assurances can be delivered in practice. I was pleased to hear from the Minister that they will be subject to further engagement with stakeholders to get this right, and I think that is the way forward.
The amendments proposed by the noble Lord, Lord Clement-Jones, helpfully set out a route that could be taken to bring about a successful resolution, and I hope the Minister can confirm that those principles will underlie any ongoing discussions.
Finally, Amendment 127 from the noble Lord, Lord Lucas, raises the need for reminder notices to be prominent in any correspondence, and we very much support the intent behind his amendment. We hope the Minister will feel able to give the reassurances that the noble Lord, Lord Lucas, seeks, that these issues will be addressed.
Overall, the provision in the Bill has made good progress, but it is not the end of the matter. I hope the Minister can assure us that the operation of these changes will be kept under review and, if necessary, brought back to the House for further attention. I look forward to the Minister’s response.
Lord Offord of Garvel (Con)
Once again, I thank all noble Lords for their passionate and eloquent speeches. I turn to Amendments 126A, 126B and 127A in the name of the noble Lord, Lord Clement-Jones, and Amendment 127 in the name of the noble Lord, Lord Lucas, relating to reminder notices.
The purpose of these notices is to give consumers essential information about their next renewal payment, and how to end their subscription if they no longer want it. That is why they are only required ahead of certain payments being taken, where the consumer could alternatively avoid paying by exercising their right to end the contract. We believe reminder notices are particularly important for 12-month contracts that automatically renew, given that a consumer may commit to another full year of payments if they miss the opportunity to end their contract.
For such contracts, businesses will only need to send two reminder notices per year, with one other reminder required if the contract starts with a free trial. We believe this is reasonable and strikes the right balance between ensuring consumers are prompted to consider their ongoing subscription and ensuring businesses are not overburdened.
I turn now to Amendment 127, tabled by my noble friend Lord Lucas, and I thank my noble friend Lord Black for his contribution, also relating to reminder notices. I am grateful to my noble friend for his amendment and I agree with him that businesses must be able to provide other information in these notices, such as promotional or advertising material. It is, after all, a key means of engaging with customers. However, as drafted, this amendment would mean that, while the reminder notice must be clearly given, the essential information that must be contained in the notice could get lost in marketing material. Therefore, while the Government cannot accept the amendment in its current form, I commit to bringing forward government amendments at Third Reading which will seek to strike the right balance on this topic.
Our amendments will allow businesses to provide other material—as they choose—in a reminder notice, but they will also ensure that the required information remains the most prominent information in the notice. This approach will ensure consumers receive clear and timely information about their current subscription, while allowing businesses the opportunity to provide promotional offers or other information in a reminder notice.
I turn to Amendments 131, 133 and 134, tabled by the noble Lord, Lord Clement-Jones, on cooling-off periods. I share the noble Lord’s intent to ensure the cooling-off rules work for digital content providers. As I explained in my earlier remarks, before introducing the relevant secondary legislation for how refunds work during cooling-off periods, the Government will consult on a “use it and lose it” proposal. It is essential that we consult on this proposal, as the proposal, or a version of it, may well apply to other services or products, such as personalised goods.
We have focused mostly on the digital sector today, but many other sectors, with different circumstances, may also be relevant. In light of this, we do not agree that detailed arrangements just for digital content should be in the Bill. The full range of sectors should be considered in consultation, and such detail is better suited to secondary legislation, which can be updated when required. That is why we have made it very clear, through our Amendments 136 and 137, that secondary legislation can take account of different products and circumstances. That is also why the noble Lord’s Amendment 135 is not necessary. Its objective is already achieved with the existing drafting and has been explicitly clarified through the Government’s own amendments.
I now turn to Amendments 126 and 140 on gift aid, tabled by my noble friend Lord Mendoza and the noble Lord, Lord Clement-Jones, respectively. I also thank the noble Baroness, Lady Jones of Whitchurch, for her contribution on this topic. For the reasons set out earlier, we do not consider excluding memberships which qualify for gift aid to be the best way to address this issue. Instead, the Treasury will amend the gift aid regime to ensure that it is compatible with the subscriptions chapter. As I have already said, the Treasury has shown its firm intention to lay the necessary legislation with the statement recently made in last week’s Budget.
On the points raised by the noble Lord, Lord Clement- Jones, we do not consider placing such conditions for the commencement of the chapter as the best way to achieve these aims. Noble Lords rightly point out that charities will need clarity on how consumer and gift aid regimes work together. I assure your Lordships that we will work closely with the Treasury, HMRC and the charity sector to provide guidance where needed before the regime commences.
For the reasons stated earlier, we do not consider that there should be specific detail about the cooling-off period in the Bill for particular products or services. However, we will consult before the end of the year and will be sure to engage closely with the charitable sector to understand issues specific to it.
As I emphasised earlier, the purpose of consultation is to develop rules which are fair and workable for traders and consumers and take account of circumstances such as those set out by the noble Lord. This will inform the secondary legislation that will be needed for the regime to be operable, and therefore we do not think a specific requirement that the regime cannot commence without it is necessary. As I mentioned before, the law is clear that, where a consumer donates regularly to a charity without receiving goods, services or digital content in return, this will not meet the definition of a subscription contract. Such donations are therefore out of scope of the chapter.
I hope this reassures noble Lords of the Government’s intent and that therefore they will not feel the need to press their amendments.
Lord Offord of Garvel
Member's explanatory statement
This amendment, along with my other amendments to Schedule 21, provides that a contract for the supply of foodstuffs etc delivered to the consumer’s home is excluded from the subscription contracts regime if the trader’s business is a “micro-entity”, which is assessed on the basis of the business’ turnover, balance sheet and number of staff, regardless of whether the business is incorporated or not.
“(3A) For the purposes of sub-paragraph (1), a business is a micro-entity in each financial year, other than its first financial year, that the condition in sub-paragraph (3B) or (3C) is met in relation to the business.(3B) The condition in this sub-paragraph is met if—(a) the business is carried on by a company, and(b) the company qualified as a micro-entity in accordance with section 384A of the Companies Act 2006 in relation to the preceding financial year.(3C) The condition in this sub-paragraph is met if—(a) the business is not carried on by a company, but(b) if the business had been carried on by a company, the company would have qualified as a micro-entity in accordance with that section in relation to the preceding financial year.(3D) In the first financial year of a business, the business is a micro-entity for the purposes of sub-paragraph (1) if (and for so long as) the person carrying on the business believes on reasonable grounds that the person will qualify as a micro-entity in accordance with section 384A of the Companies Act 2006 in relation to that financial year (or would do so if the person were a company).”Member's explanatory statement
See the explanatory statement for my other amendment to Schedule 21.
“(5) In this paragraph—“company” has the same meaning as in the Companies Act 2006 (see section 1 of that Act);“financial year” —(a) in relation to a business which is carried on by a company, means the company’s financial year in accordance with sections 390 to 392 of that Act;(b) in relation to a business which is not carried on by a company, means a year, beginning on 6 April and ending on the following 5 April;“first financial year” —(a) in relation to a business which is carried on by a company, means the company’s first financial year in accordance with sections 390 to 392 of the Companies Act 2006;(b) in relation to a business which is not carried on by a company, means the first financial year in which the business begins trading.”Member's explanatory statement
This amendment is consequential on my other amendments to Schedule 21.
Lord Offord of Garvel
“(a) in a way which is straightforward, and”Member's explanatory statement
This amendment sets out the principle that must inform the way in which a trader enables a consumer to bring a subscription contract to an end.
Member's explanatory statement
This amendment enables a consumer to exercise a right to bring a subscription contract to an end by notifying the trader by any clear statement of their decision to bring the contract to an end. The concept of a consumer ending a contract by making a clear statement of their decision to do so is already in use in consumer law.
Lord Offord of Garvel
Member's explanatory statement
This amendment enables a consumer to exercise a right to cancel a subscription contract for breach of an implied term under the Chapter by notifying the trader by any clear statement of their decision to cancel the contract. The concept of a consumer ending a contract by making a clear statement of their decision to do so is already in use in consumer law.
Lord Offord of Garvel
Member's explanatory statement
This amendment enables a consumer to exercise a right to cancel a subscription contract during a cooling-off period by notifying the trader by any clear statement of their decision to cancel the contract. The concept of a consumer ending a contract by making a clear statement of their decision to do so is already in use in consumer law.
Lord Offord of Garvel
Member's explanatory statement
This amendment makes clear that the power under clause 266(1)(a) may be exercised to provide that a consumer may lose the right to cancel during a cooling-off period if the consumer chooses to receive digital content or services during that period.
“(3A) Provision under subsection (3)(a) and (b) may secure the result (for example, in cases where a consumer has been supplied with digital content or services under a contract before it is cancelled during a cooling-off period) that—(a) the consumer remains liable (partly or fully) for payments falling due before the cancellation of the contract, and(b) the consumer is entitled to a reduced or no refund.”Member's explanatory statement
This amendment makes clear that the power under clause 266(1)(b) may be exercised to provide that a consumer remains fully or partly liable, and so is not entitled to a refund or a full refund, in respect of payments they have made under a subscription contract before cancelling it during a cooling-off period, for example where the consumer has received digital content or services during that period.
Lord Offord of Garvel
Member's explanatory statement
This amendment clarifies that the Chapter does not apply in relation to any contract that was entered into before clause 253 comes into force. This is to ensure that it does not apply to a contract that was not a subscription contract when it was entered into before that clause comes into force (e.g. because it was an excluded contract) but then becomes a subscription contract after that clause comes into force.
“(4) Subsections (5) and (6) apply where—(a) a trader enters into a contract that is an excluded contract,(b) but for it being an excluded contract, the contract would have been a subscription contract, and(c) on a later day (the “relevant day”), the contract ceases to be an excluded contract and, accordingly, becomes a subscription contract.(5) This Chapter applies to the contract with the following modifications— (a) sections 255 and 256 (pre-contract information) do not apply;(b) section 257 (reminder notices) applies as if—(i) in subsection (1), the reference to a trader entering into a subscription contract with a consumer that does not involve a concessionary period were a reference to a trader entering into the contract,(ii) the reference in subsection (2)(a) to the day that the contract was entered into were a reference to the relevant day, and(iii) subsections (3), (4) and (6) were omitted;(c) section 258 (content and timing etc of reminder notices) applies as if, in subsections (3) and (4), references to the period specified by the trader in pre-contract information were references to the period specified by the trader in information given under subsection (6) of this section;(d) section 261 (terms implied into contracts) applies as if—(i) in paragraph (a), the reference to the duty set out in section 255(1)(a) were a reference to the duty set out in subsection (6) of this section;(ii) paragraph (b) was omitted;(iii) in paragraph (d), the reference to pre-contract information were a reference to the information given under subsection (6) of this section;(e) section 263 (right to cancel during cooling-off periods) applies as if subsection (1)(a) were omitted.(6) As soon as reasonably practicable after the relevant day, and in any event before the end of 12 months beginning with that day, the trader must give to the consumer key pre-contract information and full pre-contract information in relation to the contract, other than any such information that is excluded by subsection (7).(7) Information is excluded by this subsection if—(a) it relates to the initial cooling-off period under the contract;(b) it relates to a period mentioned under section 253(3)(a) (initial concessionary period) and the relevant day falls after the end of that period.(8) For the purposes of the duty under subsection (6)—(a) it is irrelevant whether any of the information required has already been given to the consumer before the relevant day,(b) section 255(5) applies as it applies for the purposes of the duty under section 255(1)(b), and(c) paragraph 13 of Schedule 22 is to be ignored.”Member's explanatory statement
This amendment provides for how the subscription contract regime applies to a subscription contract that was initially excluded from the regime as a result of being a contract of a kind listed in Schedule 21 but later falls to be included in the regime as a result of no longer being a contract excluded under that Schedule.
Lord Offord of Garvel
“(a) a bankruptcy order having been made in relation to the trader (or, in Scotland, the trader’s estate having been sequestrated),(b) a winding up order having been made in relation to the trader as a result of the trader’s insolvency,(c) an appointment of a liquidator (otherwise than following the making of a winding up order) as a result of the trader’s insolvency,(d) the trader being in administration,(e) the appointment of an administrative receiver (or, in Scotland, a receiver) in relation to the trader, or(f) in any jurisdiction, the trader being subject to an order or procedure that corresponds to any order or procedure mentioned in paragraphs (a) to (e).”Member's explanatory statement
This amendment broadens the definition of insolvency for the purposes of the Chapter.
Lord Offord of Garvel
“(4A) In subsection (4)(a)(i) the reference to limiting (or further limiting) the accreditation to particular descriptions of ADR or of special ADR arrangements includes, in particular, limiting it to ADR relating to consumer contract disputes that have already been referred for ADR or to special ADR arrangements that already exist (as the case may be), whether for a limited period or otherwise.”Member's explanatory statement
The amendment clarifies that the powers of the Secretary of State under clause 297 to limit or further limit the scope of an accreditation includes limiting it to finishing off subsisting referrals of disputes for ADR and/or operating existing special ADR arrangements.
Member's explanatory statement
This amendment ensures that the requirement that new conditions imposed on an ADR provider’s accreditation must be ones that the Secretary of State considers necessary to secure compliance with prohibitions applies also to other variations made by the Secretary of State to the accreditation.
“(6A) In subsection (6) “existing conditions” means the existing conditions disregarding any previous variations made under subsection (4)(a) or (7)(b).”Member's explanatory statement
This amendment clarifies which existing conditions are being referred to in clause 297(6).
Member's explanatory statement
This amendment provides that the duty to keep new conditions imposed on an ADR provider’s accreditation under review, and to revoke such conditions if no longer necessary, extends also to other variations made in respect of the accreditation.
Member's explanatory statement
This amendment is consequential on my amendment to clause 297 at page 201, line 36.
“(b) by notice to the ADR provider vary the accreditation for the purpose of revoking or reversing the effect of all or any of the variations, to the extent that the Secretary of State considers that they are”Member's explanatory statement
This amendment is consequential on my amendment to clause 297 at page 201, line 36.
Member's explanatory statement
The amendment would bring the language in line with references elsewhere to the variation of an accreditation
Member's explanatory statement
The amendment would bring the language in line with references elsewhere to the variation of an accreditation
Lord Moynihan
“Requirements on secondary ticketing facilitiesAfter section 92 of the Consumer Rights Act 2015 insert—“92A Requirements on secondary ticketing facilities(1) A secondary ticketing facility must not permit a trader or business to list tickets for resale unless the trader or business has provided evidence of proof of purchase to the ticketing facility, or evidence of title to the tickets offered for resale.(2) A secondary ticketing facility must not permit a reseller to sell more tickets to an event that they can legally purchase from the primary market.(3) A secondary ticketing facility must ensure that the face value of any ticket listed for resale, and the trader or business’s name and trading address are clearly visible, in full, on the first page the ticket is viewable on.(4) The information required by subsection (3) must be unabbreviated, and must not be hidden behind an icon, drop down menu or other device.(5) A secondary ticketing facility must make it clear to traders and businesses based overseas that sell tickets to UK consumers and target UK consumers through paid or sponsored advertisements or paid infomercials that they are subject to UK legislation.””Member's explanatory statement
This amendment imposes requirements on secondary tickets sites regarding proof of purchase, ticket number limits and the provision of information, with the aim of reducing fraud. These requirements are in line with recommendations made by the CMA.
Lord Moynihan (Con)
My Lords, I am very grateful to the noble Lord, Lord Leong, who highlighted that we should listen not solely to the musicians—the Arctic Monkeys, Mumford & Sons, Little Mix, Radiohead and many others—who called for these changes but to the true fans who are being scalped. It was interesting that my noble friend the Minister, to whom I listened carefully, totally avoided recognising that it is the Competition and Markets Authority that knows the scale of this problem better than anyone else and that has proposed these changes. As the noble Lord, Lord Clement-Jones, stated, it is very rare for the Government both to ignore and to reject the clear recommendations made by the CMA.
Amendment 150 is a simple and effective way to protect true sports and music fans at the big-ticket concerts across the UK. If it is right for the French, the Irish and in New York City—and if it was right for every Member on this side of the House during the build-up to the Olympic and Paralympic Games in 2012, when we voted unanimously for far more onerous measures—it is right today for this House to help true fans.
It is with great sadness that I was not persuaded by my noble friend the Minister when he sought to apply to that point. Therefore, I seek to test the will of the House.
Lord Offord of Garvel
Member's explanatory statement
This amendment, together with my other amendment to clause 335, ensures that the power to make regulations containing consequential amendments is conferred on the Treasury rather than the Secretary of State if the regulations only contain amendments to tax legislation, in compliance with the usual approach. This would, for example, enable the Treasury to make amendments to the Income Tax Act 2007 so as to ensure that gift aid can continue to be claimed in the case of payments made under subscription contracts between consumers and charities.
“appropriate authority” means—(a) in the case of regulations under this section that contain amendments only in relation to tax, the Treasury;(b) in any other case, the Secretary of State;”Member's explanatory statement
See the explanatory statement for my amendment to this clause at line 2.
Lord Offord of Garvel
“(4A) In the case of regulations under section 335 made by the Treasury, the references in subsections (3) and (4) to each or either House of Parliament are to be read as references to the House of Commons only.”Member's explanatory statement
This amendment secures that the power to make regulations under clause 335 containing only amendments to tax legislation are subject to procedure in the House of Commons alone, in compliance with the usual approach for such powers in recognition of the financial privilege of the Commons. See also my amendments to that clause providing for the power to be exercisable by the Treasury.
Lord Offord of Garvel
Member's explanatory statement
This amendment is consequential on my amendment leaving out Clause 127.
Lord Offord of Garvel
“(ai) Part 1;”Member's explanatory statement
This amendment to section 393 of the Communications Act 2003 relocates the previous amendment to that section made by clause 109(3) (which is omitted by my other amendment to that clause).
“(ai) Part 1;” Member's explanatory statement
This amendment would add Part 1 of the Bill to the provisions listed in section 111(6) of the Wireless Telegraphy Act 2006 (information sharing by OFCOM).
“(aa) Part 1;”Member's explanatory statement
This amendment would add Part 1 of the Bill to the provisions listed in Article 4 of the Postal Services Act 2011 (Disclosure of Information) Order 2012 (information sharing by OFCOM).