Digital Markets, Competition and Consumers Bill

Baroness Kramer Excerpts

Report stage
Monday 11th March 2024 Lords Chamber

The noble Baroness, Lady Kramer, has been arguing vigorously for years that we need to go much further, that we need an office for whistleblowers—a fully independent oversight regime with a remit well beyond the competition field. I have hesitated before supporting such a proposal but, given where we are now, perhaps she is right. At the very least, we need an immediate review to find out whether she is.

[Baroness Kramer (LD)]

My Lords—

[Lord Kamall (Con)]

My Lords—

[Baroness Kramer (LD)]

Please.

[Lord Kamall (Con)]

I thank the noble Baroness. I am afraid that was the opposite of chivalry.

I want to speak to Amendment 153, tabled by the noble Lord, Lord Tyrie. He and I have had a number of conversations about this. I refer noble Lords to my interests as set out in the register. Having written about competition law at EU level and taken part in debates on competition issues in the European Parliament during my many years there, I was very torn between the merits appeal and the judicial review. I was tempted by the idea from my friend in the other place, the right honourable Robert Buckland, of possibly a time-limited merits appeal.

Many of us fell down on the side of judicial review because the small firms, the challenger firms, were asking for it. They believed that it was quicker and more effective. We hope that it will be. That is why many of us have supported this. But we have to ask: what if we are wrong? We do not have perfect information. What if judicial review takes longer than envisaged? Some noble Lords have said to me that the Joint Committee of Parliament that the noble Baroness, Lady Stowell, proposed would be much more effective in holding the CMA to account and ensuring that there is not a repetition of cases being restarted because they lost at JR. That argument has some merit.

However, we must take a step back and realise that, given that none of us has perfect information, we should be aware of the notion of unintended consequences. I have written about this a number of times over the years for think tanks. Often a well-intentioned government intervention that is supposed to make things better, which many people support at the time and that makes sense and looks like it will work does not turn out how it is supposed to but makes things worse.

In that spirit, I have been thinking about how we make better laws. How do we ensure that there are safeguards in place for unintended negative consequences? How do we make some redress to ensure that we change course, having thought that we were on the right course but having made things worse by not recognising the unintended consequences? In Committee, I said that I had considered tabling an amendment for a review after three or five years, or whatever. However, I am concerned that this would be seen as a loophole by the big companies, which would then hold off in order to show that JR was not working so that they could go back to merits appeal.

The noble Lord, Lord Tyrie, has solved that problem in many ways with Amendment 153. It is right that we have a review of all legislation to ensure that it has worked out as was intended and so that where there are unintended, unforeseen consequences, when it did not work as we had envisaged, we have those safeguards. A good way of doing that would be to have reviews of legislation such as the one that the noble Lord proposes here, to ensure that we could change course if it did not turn out how we intended.

I hope it will do. I hope judicial review will work. I hope it will be much quicker and we will have a much more competitive market. I hope the challengers will grow stronger, we will have more competition and see creative disruption and new challengers at every stage and consumers benefiting. Amendment 153 says, “Let’s make sure that we take stock to see whether legislation—particularly a Bill as important as this—works out as we want it to”. That is why I support Amendment 153.

--- Later in debate ---

Litigation funding raises issues that are worldwide. They are very similar, whether in continental Europe, the United States, Singapore or Australia, by way of illustration. These are covered in the report. I very much hope that the Ministry of Justice will find it useful and think of a way to tap into all the knowledge that the group has. What the answer is, what the principles are, I will not take your Lordships’ time up with, except to say that it may not be regulation. Regulation is not a universal success. There are other ways of doing things—maybe codes of conduct, maybe voluntary agreements. It is quite clear that this gives England and Wales, and the UK, an opportunity to show what we have always had: leadership in the law. We are known throughout the world for this. I very much welcome what the Lord Chancellor has done because it shows what a real leader he is.

[Baroness Kramer (LD)]

My Lords, I very much support Amendment 61 moved by my noble friend and colleague Lord Clement-Jones. I am very much a believer in equality of arms. The issue of exemplary damages speaks exactly to that. I hope very much that the Government will take that on board, because it is a fundamental principle that makes a great deal of practical difference as well when wrong has happened and when people seek redress.

I support the two amendments tabled by the noble Lord, Lord Tyrie. Briefly, on Amendment 153, regarding the five-year review, I had the privilege of serving under the noble Lord’s chairmanship on the Parliamentary Commission on Banking Standards. In many ways that was similar to this Bill, but our proposals were exceedingly radical. They required very substantial change by the financial services industry. We very much wanted them to be reviewed after a period of time. We did not manage to trap that into legislation; it did not happen. Instead, when issues became evident where we had made changes—for example, on presumptions of guilt and in areas where there was intense lobbying on ring-fencing and whatever else—changes happened but not in a coherent and sensible way that benefited from that overarching focus that we had had during the original review. That has been a real weakness. We finally have a new committee in this House, the Financial Services Regulation Committee, providing some accountability to regulators, but that is an issue that we would have picked up on much earlier had we been in the process of doing a comprehensive review. That underscores many of the points that have been made about this issue.

We live in changing times. The idea that things stand still and you can do everything piecemeal is really not appropriate. However, I will speak most on the issue of whistleblowing. I have not otherwise participated on the Bill but, when I see the word “whistleblowing”, I am afraid that I suddenly find myself lured on to the Benches.

I very much ask the Government to take this issue on board, because I agree with the noble Lord, Lord Tyrie, and others: we will never get to grips with wrongdoing in any of the areas covered by the Bill, particularly with all the new complexities and the constant change within the digital and competitive arena, until we have an effective whistleblowing regime. We need a system that leads to the follow-up of valid tips from whistleblowers. Currently, looking at different regulators in many different fields is clearly completely haphazard. Some tips are followed up, some are dismissed and some are ignored. Secondly, and just as importantly, we need a proper arrangement to protect whistleblowers from retaliation, so they will not suffer detriment by coming forward.

Our current system depends on the Public Interest Disclosure Act 1998, which was a Private Member’s Bill that was brought forward then as part of employment law. It was ground-breaking at the time but has long been shown to be utterly inadequate compared with more recent schemes, particularly in the United States. Those US schemes have had an astonishing success rate in disclosing wrongdoing, leading to prosecutions, convictions and financial penalties.

I will use an example not from the anti-trust field but from a field that I know best and with which many will be familiar—the Securities and Exchange Commission. Since it brought in its whistleblowing scheme in 2011 under the then new Dodd-Frank legislation, by the end of fiscal year 2022, it had received over 83,000 tips from whistleblowers and collected in excess of $6 billion in financial penalties. In fact, there has been so much activity in the following years that those numbers would be significantly higher if we brought them up to date.

It is also fair to assume that billions of dollars of wrongdoing have been deterred by the fear of disclosure under such an effective whistleblowing regime. Not just the SEC but a number of entities use whistle- blowing legislation within the financial field; the Commodity Futures Trading Commission—CFTC—is another example that has had the same kind of success as the SEC. I find it rather disturbing that the CFTC is now doing road trips in the UK to encourage whistleblowers who are aware of financial wrongdoing with any US connection to contact it directly. In fact, something close to a quarter of the cases it is currently pursuing have a UK-based whistleblower somewhere within them, because finance is so international. Now the people at the CFTC are very careful not to criticise any UK regulators, but it is not a compliment that they feel it is necessary to be here to get their independent message across to anyone who has come across wrong-doing, with a US connection, in the financial field.

The Public Interest Disclosure Act is inadequate for at least four reasons, some of which were mentioned by the noble Lord, Lord Tyrie. It does not require any follow-up on a tip, even if it is acknowledged to be valid. It covers only employees and not the many others, such as contractors or clients—all kinds of people come forward—who blow the whistle when they see wrongdoing. They are not covered at all and have zero protection at present. All it provides is anonymity for disclosures that are made to a prescribed group of people—basically, the regulators and MPs. Most whistleblowers are not anonymous; they will have raised issues with management, companies, employers, suppliers and clients. When they see something wrong, they do not instinctively think of themselves as whistleblowers in need of protection, and when they do, their identity is then known.

No regulator in the UK has ever acted to protect a whistleblower from retaliation. That retaliation is usually years spent in an employment tribunal or in the courts. For many whistleblowers, it is a loss of career. There is a wide scheme of informal blacklisting—we know of case after case. Many whistleblowers have to use their own resources because there is no legal aid to fight this process, so they run into financial ruin. You can imagine the mental health costs and the frequency with which families break down.

However, I have spoken to pretty much every UK regulator and typically—there are a few exceptions—they regard their own monitoring and supervision as entirely sufficient, with whistleblowing a mere marginal assistance. They also believe that whistleblowers should act out of duty and altruism, and not because there is protection from retaliation available or compensation for harm.

I have talked about the SEC and the CFTC and, prior to the Dodd-Frank legislation in the United States, which put in the strict whistleblowing rules and made them mandatory, US regulators had exactly the same attitude as the current UK regulators and the same failure to create a pattern of whistleblowing and to follow up cases. The change came with legislation.

In the sectors covered by the Bill, the rewards for wrongdoing are a huge temptation and require highly sophisticated expertise and knowledge. We can see why that is tough for a regulator to manage, unless it has a really effective whistleblowing programme. In its recent directive, the EU is now catching up with the United States in recognising whistleblowing as a key tool to expose wrongdoing early and to deter wrongful behaviour. It is time that we did the same.

I hope that the Minister takes back this message to those who are working on the reform of the whistleblowing framework, as it is really important. Sometimes one hears rumours that they are looking just to tweak existing legislation, but what is needed is a radical change that meets the needs and gives us the opportunity that an active whistleblowing community can deliver. I hope the Government will take on board that message.

[Lord Bassam of Brighton (Lab)]

My Lords, I promise that I am not going to stand for too long between this session and people’s desire to have supper. I have a few words to say, but I will try to keep them as brief as I can. This group of amendments deals with the interaction of the courts with regulation and redress, and we obviously support Amendment 61, in the name of the noble Lord, Lord Clement-Jones, on exemplary damages in class action cases. We will listen to the Minister’s explanation carefully and try to understand why the Government are continuing to resist this approach.

We recognise that government Amendment 62 is part of a wider initiative to put right the fallout from the Supreme Court judgment in the PACCAR case, which acted as an inhibition to litigation fee agreements that enable collective actions such as those involving the postmasters and postmistresses. If we have learned anything from Committee, it is that Ministers should live in dread of the experience of the former Lord Chief Justice, at all times. The noble and learned Lord, Lord Thomas, offered us some wise words on that occasion and I am glad—delighted, actually—to see the Government finally acting with some speed to bring forward a Bill from the Ministry of Justice that covers a wider range of cases than the current Clause 127 achieves. If the noble Lord, Lord Clement-Jones, had not quoted Alan Bates, I would have done, because I thought it was a ringing endorsement of what was necessary.

Perhaps I could task the Minister and tire him a little to put a bit more on the record about the detail, nature and extent of the short Bill when he sums up. Can he give us a clue about its introduction date?

Post Office Horizon Scandal: Compensation Payments

Baroness Kramer Excerpts

Monday 19th February 2024 Lords Chamber

[Lord Offord of Garvel (Con)]

The government advice is that each individual claimant must submit his or her claim, and money is available to them to take legal and medical advice. That is part of the reason why we think that, of the 477 cases, we have 58 claims—because they are more complicated—quite rightly being put together by each claimant and their advisers. When these claims are submitted, we have guaranteed that we will action 90% of them within 40 days of receipt.

[Baroness Kramer (LD)]

My Lords, the noble and gallant Lord’s question was about not compensation but the issue of funding the correction of the software to the tune of £150 million. The entirely appropriate question is: why is Fujitsu not paying for the reworking of that software, rather than the Government and the taxpayer?

[Lord Offord of Garvel (Con)]

Perhaps I should have been clearer: the Government are funding this company, Post Office Ltd, to effectively commission a new system to replace Horizon. It might be reasonable to assume that it will not be Fujitsu that does the second system.

United Kingdom Internal Market Act 2020 (Services Exclusions) Regulations 2023

Baroness Kramer Excerpts

Wednesday 18th October 2023 Lords Chamber

I assure noble Lords that, following an extensive public consultation and engagement process, the instrument will ensure that the services exclusions in Schedule 2 to the UKIM Act are both appropriate and effective. The changes reflect how those services are currently provided and regulated in the UK. I commend the draft regulations to the House.

[Baroness Kramer (LD)]

My Lords, I was not involved with the legislation for the United Kingdom Internal Market Act 2020 and I have to admit that, even after reading the Explanatory Notes, much of this SI seemed to me more like a Rubik’s cube, so I was appreciative of the clarifications from the Minister.

To a non-expert like me, the SI appeared at first glance to be essentially technical tidying, but I can also see that it tangles with the underlying tensions between the UK Internal Market Act and the common frameworks—that is to say, the intergovernmental agreements that set out how the Governments of the UK nations will work together to manage regulatory divergence in policy areas that were formerly governed at EU level. That leads me to be a little concerned, at least, that the instrument before us received the formal consent only of the Welsh Government. I have no idea whether that is because of objections by Scotland and Northern Ireland, simple oversight or, perhaps, in the case of Northern Ireland, because its Assembly is unable to sit. Perhaps the Minister might expand on that and explain to us why that formal consent was not given, because on the surface it is certainly a little troubling. I remember warning some colleagues involved in the internal market Act when it was passed that it created the likelihood of confusion and tension between Westminster and the devolved authorities, so I am wondering whether this is an instance of that.

I am also trying to understand what the SI will do on a day-to-day basis for the workforces that it names and what the impact will be on their potential customers. I can understand the removing of the exclusions for financial services providers; I assume that it has a positive impact on competition. But I wonder if there was any consideration that it might have a detrimental impact on the provision of local services. We have always had a great problem in financial services stopping everything being either sucked into London or the major centres and in making sure there is local activity across the whole United Kingdom.

I am struggling to understand the consequences of amending social services exclusions. It is very hard to understand why the qualifications for someone who works in social services should differ and whether this reflects some deeper issues within social service provision.

But I am most mystified by the exclusions that have been introduced for what I will group together as qualified utility engineers. They are now excluded from mutual recognition and the non-discrimination principle. We are in a period where we know we have to focus on net zero. That creates dramatic change in the way energy is provided. There are issues of introducing insulation as rapidly as possible across the country and issues with utilities—for example, shortages of reservoirs and transport. All these individuals will apparently be excluded from mutual recognition and non-discrimination. Could the Minister explain what the day-to-day impact is of that exclusion decision?

I thank the Minister and once again apologise for my lack of familiarity with the underlying legislation. It would certainly help in some of these areas to have some further clarification.

[Baroness Blake of Leeds (Lab)]

My Lords, I thank the noble Baroness, Lady Kramer, for the image of a Rubik’s cube in looking at this legislation. I welcome the detail that has been provided; it has been very helpful and, as a result, I will keep my comments fairly brief. I thank the officials who have been involved in the process and the Minister for his detailed explanation.

The major concern I want to raise is that, despite the detailed consultation—I am very pleased to see the extent to which that was undertaken—it is troubling that consent was only achieved with Welsh Ministers and not Scottish Ministers. Obviously, the Written Ministerial Statement was laid before the Summer Recess, which was a significant time ago now, and I wondered whether there have been any more conversations between those bodies to seek further reassurance about the progress of this.

I have a specific question. The Scottish Government made a request in relation to heat network authorisations. Can I seek clarification that that has been incorporated into this SI?

I too would like to ask if the noble Earl is able to give us a more detailed explanation of why consent was not forthcoming. As we know, the Scottish Government did not consent to the UKIM Act. Could the Minister explain whether this is the reason? Has he had any explanation of the reasons? Is there a reflection of any concern with the content of the SI as a result? We obviously have to note the continued absence of the Northern Ireland Assembly and Executive. We want to explore with the Minister if that is seen as one of the reasons consent was not forthcoming.

This speaks to a broader concern, which we have expressed on many occasions, about the hoarding of power in Westminster. This is still seen as an issue. Perhaps the lack of progress on an agreement on a range of common frameworks with the devolved Administrations, and the failure to bring this forward, undermines the co-operative working with the DAs.

In terms of review, paragraph 14.1 of the Explanatory Memorandum mentions a review of the Act’s amendment powers, which “must take place” between the third and fifth anniversaries of the passing of the legislation. Could the Minister provide an update on this? Would it be reasonable to assume that there will be further review towards the end of the period stated? If this is the case, has work already begun to detail what further amendments might be required?

[The Earl of Minto (Con)]

I thank noble Lords for their valuable contributions to the debate on this instrument. I agree that it is a very technical SI, and I would like to answer some of the detailed questions properly in writing. I have a lot of the detail here, but I know that time is short, and we want to get on with it. A number of very valuable points have been made, and I will endeavour to answer them to the best of my ability.

The provisions of the UKIM Act naturally bring up historic opposition, but I hope that the legislation that we are looking to pass today will be considered on its own merits in relation to protecting the UK internal market. As a reminder, the instrument will enable the effective operation of services regulation in the UK by adding, amending and removing service sectors excluded from the market access principles in Part 2 of the UKIM Act to reflect current regulatory practice in the UK.

This instrument is a direct result of a public consultation and therefore a rare amendment to the exclusions list, following the intention to make the scope of the UKIM Act better support intra-UK trade. It continues to guarantee that services connected with the supply or production of gas and electricity can be regulated separately in the parts of the UK. This will ensure regulation, mainly in environmentally sensitive areas, can continue without the application of the UKIM Act’s market access principles maintaining how the service is provided or regulated in parts of the UK. It will also ensure the services excluded in Schedule 2 better reflect the UK’s circumstances post-EU exit by removing exclusions which are no longer necessary in this new context.

[Baroness Kramer (LD)]

Could I ask for clarification? If you are one of the relevant engineers, who is excluded, and you move, do you need to get another set of qualifications? I want to clarify that that is the way this has gone.

[The Earl of Minto (Con)]

I do not believe that that is the case, but I will confirm that.

On the issue of the devolved Administrations and consent, there was absolutely no intention to pass this SI without getting everybody’s consent. Our officials have worked continuously throughout this process with Ministers and officials to bring them along. It is extremely gratifying that the Welsh Government accepted everything. The situation in Scotland is slightly different. There was a fairly robust defence of why they did not want the UKIM Act in the first place. I think that has obviously had an impact. However, we have accepted some of the exclusions they wanted put in.

Small and Medium-sized Enterprises: Interest Rates

Baroness Kramer Excerpts

Wednesday 13th September 2023 Lords Chamber

[The Earl of Minto (Con)]

I am not aware that we have made any specific proposal with NatWest but, through the British Business Bank, with a base rate of 5.25%, SMEs can borrow at 6%. They will find it very hard to match that anywhere in the market.

[Baroness Kramer (LD)]

My Lords, community development financial institutions lent over £80 million last year to in excess of 3,000 small businesses, 90% of which had been turned down by a conventional lender. Will the Government finally grasp the nettle and incentivise the major commercial lenders to invest in CDFIs in order to provide lending to those small businesses that do not fit the portfolio of commercial banks, as they do in the United States?

[The Earl of Minto (Con)]

The noble Baroness makes a very good point. CDFIs have been extremely successful and, if one looks at the plethora of lending opportunities right now, it continues to broaden because of the new entrants into the market. We will certainly take it up with the major banks and see where we get.

Whistleblowing Framework

Baroness Kramer Excerpts

Tuesday 16th May 2023 Lords Chamber

Asked by

[Baroness Kramer]

To ask His Majesty’s Government whether the whistleblowing framework will include an assessment of the desirability of setting up an independent Office of the Whistleblower to deliver its objectives.

[The Minister of State, Department for Business and Trade (The Earl of Minto) (Con)]

My Lords, the Government recognise how valuable it is that whistleblowers are prepared to shine a light on wrongdoing and believe that they should be able to do so without fear of recriminations. The Government launched a review of the whistleblowing framework on 27 March this year. This will examine the effectiveness of the existing framework in meeting its intended objectives, which are to enable workers to come forward and speak up about wrongdoing and to protect those who do so against detriment and dismissal. The review will provide an up-to-date evidence base on whistleblowing.

[Baroness Kramer (LD)]

My Lords, the APPG for Whistleblowing, many Members of both Houses, scores of whistleblowers, significant legal counsel involved with whistleblowing, and even regulators in their evidence to the APPG have called for an office of the whistleblower. Will this review give full consideration to such an office —yes or no? If not, why not?