My Lords, it has been illuminating to listen to the varied and valuable contributions from all noble Lords who have spoken in this debate. I thank all those who have risen to speak. As may be expected, a broad range of knowledge, differing views and important concerns has been shared and expressed. The noble Lord, Lord Clement-Jones, referred to Apple’s dominance and it not being prepared to comply with any digital legislation. This should make us mindful of what big tech is getting up to. One thing is very clear: there is a strong consensus in the House that legislation is needed to catch up with, and indeed anticipate, the rapidly changing digital landscape which even the most technophobic among us can no longer afford to ignore.

I shall speak specifically to Amendments 14, 15, 23 and 24 in the name of my noble friend Lady Jones of Whitchurch. I thank the noble Baronesses, Lady Harding and Lady Kidron, and the noble Lord, Lord Clement-Jones, for adding their names. The principle behind Amendments 14 and 15 is to ensure that the Competition and Markets Authority can tackle anti-competitive conduct in a non-designated activity, provided that the anti-competitive conduct is related to a designated activity. These amendments do not seek to hamper digital innovation but rather to create a pro-competition market in which consumer interests are safeguarded.

In Committee, the noble Lord, Lord Vaizey of Didcot, showed great innovation when he described the so-called leveraging principle as the “anti-whack-a-mole” principle, and I shall refer to it as the “whack a mole” principle from now on. Thanks to him, we all know what this means: companies can use their market power to retain an anti-competitive advantage until the regulator is about to catch them and then, just before the whack, they shift this unfair advantage somewhere else. This can happen again and again, perpetuating the inequity and creating unnecessary work for the CMA. Our amendment would prevent companies from circumventing regulation by shifting their anti-competitive behaviour from designated to non-designated activities.

I have no doubt that many noble Lords will have received briefings, representations and requests for meetings from big tech companies, which are pushing back strongly on these amendments. They cite concerns about regulatory overreach. They claim that these amendments will have lasting consequences, potentially delaying or deterring new and improved digital services being brought to market, but this is not the case. These amendments are pro-competition. They ensure that the playing field remains level. New innovators will not face an uneven pitch obstructed by too many whack-a-molehills with a maze of secret tunnels beneath it. I sincerely hope that the Minister is prepared to stand up for consumer interests in the face of increasingly powerful technology companies and, like a good groundskeeper, will roll the pitch to keep it even.

If the Minister genuinely supports a competitive marketplace, I hope he will support these amendments. If he does not feel that he can address our concerns, I give notice that we will test the opinion of the House on Amendment 14. I hope he will find my argument persuasive, and I will listen carefully to his response.

I will, in passing, mention three other amendments which support Amendments 14 and 15, to which I have just spoken. Amendment 12, tabled by the noble Lord, Lord Clement-Jones, simply widens the conduct requirements for designated undertakings to include an undertaking’s conduct with respect to any other digital activity that is impacted by its designated activity. Together with Amendments 16 and 17, tabled by the noble Lord, Lord Lansley, this would enable the CMA to keep conduct requirements under review and take account of whether those requirements are having their intended pro-competition effects and, if not, to determine whether further intervention is required. Taken together, we believe that these amendments clarify and reinforce the powers available to the CMA.

I shall speak now to Amendments 23 and 24. Once again, I thank the noble Baronesses, Lady Harding and Lady Kidron, and the noble Lord, Lord Clement-Jones, for adding their names. These amendments would have the effect of reverting the wording on countervailing benefits exemptions to the Bill’s original text, as referred to by the noble Baroness, Lady Stowell. We object to the Government’s late amendments because they would narrow the application of the exemption through which big tech companies can argue that their conduct gives rise to benefits which outweigh the detrimental impact on competition that their conduct would otherwise breach. I hope the Minister will listen carefully to my argument and agree to accept Amendment 23 and revert to the original wording, as it is another issue about which we feel strongly enough to test the opinion of the House, if required.

Amendments 23 and 24 also reinsert the requirement for the conduct to be “indispensable” to the realisation of the benefits before an exemption can apply. As we discussed in Committee, the removal of the word “indispensable” may weaken the regulator’s ability to rebuff countervailing benefit claims.

We believe that without the word “indispensable”—a word which has a recognised competition law standard—the threshold for claims will be reduced. It follows that a lower threshold would increase the likelihood of success for big tech firms’ claims against the regulator. We fear that this could become a go-to tactic for litigation lawyers—a means by which they could delay a final conduct requirement outcome and thereby prolong a potentially anti-competitive advantage.

Without our far more precise definitions, the CMA may find itself inundated with numerous claims of countervailing benefits, used tactically by expensive lawyers to divert the regulator’s limited resources from its central task of pursuing the conduct investigation.

In Committee, the Minister said that

“the current wording is that the benefits could not be realised without the conduct, and the previous wording was that the conduct is indispensable to the realisation of those benefits”.—[GC 231.]">Official Report, 24/1/24; col. GC 231.]

He went on to argue that this creates the same standard—neither higher nor lower—but with greater clarity.

In his subsequent letter, the Minister again argued that the current government-amended language has the same meaning as that originally proposed in the Bill. We do not accept that the different wording in fact means the same the thing. This is our key point of disagreement: if it does mean the same thing, why did the Government bother to change it?

The word “indispensable” is a recognised competition law standard. Reinserting this word strengthens the clarity of the law. This is a clarification which, it appears, we are all seeking. We assert that, in this Bill, the word “indispensable” is indispensable.

I now refer to the amendment from the noble Lord, Lord Black. We are sympathetic to the final offer. If there is a credible offer, it would offer challenger companies the option of coming to a settlement rather than playing into the hands of the dominant big tech companies with their vast financial resources.

In conclusion, I would like to mention Amendment 60 in the name of the noble Lord, Lord Fox. This amendment requires the DMU to take into account interoperability and international standards in discharging the duty to promote competition in the interests of consumers. Interoperability standards enable the operational processes underlying the exchange and sharing of information between systems. This ensures that all digital research outputs are findable, accessible, interoperable and reusable: the four pillars of the FAIR principles. Their widespread acceptance and adoption as standards for management of data, development of infrastructure and delivery of services in the sector warrants the amendment’s inclusion in the Bill.

As we have argued throughout, our aim is to avoid unnecessary and expensive legislation. It is our contention that these amendments help to achieve that objective. I will listen keenly and with considerable interest to the Minister’s response, in particular on Amendments 14 and 23.