Lord Faulks:

Moved by Lord Faulks

13: Clause 19, page 11, line 7, leave out “proportionate” and insert “appropriate”Member’s explanatory statementThis amendment would restore the Bill’s original wording in relation to Clause 19.

My Lords, I invite the House to cast its mind back to the debates we had on the first group. Amendments 13 and 35 are both concerned with the use of “proportionality”. The debates in Grand Committee and today on Report have been very much cross-party: there has been a shared endeavour to improve what is an excellent Bill, which strikes an important blow in regulating appropriately the digital market and, in particular, establishing a proper balance between big tech, with its immense power, and the smaller players.

The original Bill had “appropriate”, and I wish to return to that wording. The change in the wording followed a heroic amount of lobbying by big tech, and there was a reason behind this lobbying: to make it easier to prolong, appeal and obfuscate—to use the legal might and finances that big tech has—and to possibly frustrate the whole purpose of the Digital Markets Unit.

The Minister, who has engaged with thoroughness and politeness throughout this process, did his best to reassure the House by saying that the use of “proportionate” was to reinforce the Government’s expectation that the Digital Markets Unit would act proportionately. We do indeed expect it to act proportionately, but the use of “proportionate” in this context carries a heavy legal charge, as he tacitly accepted by saying that the use of “proportionality” meant that the analysis would spill over from cases involving the Human Rights Act or A1P1 into all cases, so that the scope for challenge of an intervention would significantly increase. That is not a happy situation, as a number of noble Lords have so eloquently said in supporting this amendment.

Amendments 13 and 35 are to the same effect, and I hope that Amendment 35 is regarded as consequential on Amendment 13. I wish to test the opinion of the House.

Ayes 217, Noes 192.

Amendment 13 agreed.

Clause 20: Permitted types of conduct requirement