My Lords, I will also speak to Motions A1, B, B1, C, C1, C2 and D.
I start by thanking noble Lords for their constructive input and careful scrutiny during the passage of the Bill. We have created legislation that will drive innovation and deliver better outcomes for consumers across the UK by addressing barriers to competition in digital markets and tackling consumer rip-offs.
The Bill has been strengthened in many places in this House. However, today, I will speak to Motions A to D, which address amendments that remain to be agreed across the Bill. The Government ask that this House does not insist on the amendments rejected in the other place and that it agrees to the amendment proposed in lieu of changes proposed by noble Lords.
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Noble Lords will be aware that the digital markets issues relate to amendments made in the other place. This House has debated those in detail, and I have had
the pleasure to meet noble Lords to discuss them subsequently. The Government have made an important amendment in lieu in this area, which I will come to shortly. However, the other amendments, as made in the other place, strike the right balance between vigorously promoting competition in the interests of consumers and healthy challenge of the CMA’s decisions. I will take these in turn to discuss why we encourage the House not to insist on these amendments to revert the Bill to its original wording.
I will first speak to Motion A, relating to Amendments 9 and 19, tabled by the noble Lord, Lord Faulks. I am grateful for the noble Lord’s contributions and experience on this matter. It has been my pleasure to engage with him on his view that proportionality in this context would create a novel legal standard for appeals regarding the CMA’s decision to impose obligations. The CMA will have significant new powers and discretion under this ex ante regime and it is right that there are safe- guards which ensure that it designs its interventions proportionately. This will strengthen the UK’s position as one of the best places in the world to do business.
I hope that noble Lords on all sides can agree that overregulation is undesirable, and this threshold provides an important safeguard to prevent that. The Government expect that the courts and the Competition Appeal Tribunal, or CAT, will interpret proportionality by taking an approach consistent with their approach to proportionality in ECHR challenges. We also expect that ECHR considerations on proportionality will be directly relevant in most cases anyway.
Moving to Motion C, relating to Amendments 26 to 28, 31 and 32, on penalty appeals, tabled by the noble Lord, Lord Bassam, and the noble Baroness, Lady Jones of Whitchurch, I appreciate the concerns of noble Lords about the potential of full merits appeals to lead to what has been termed “bleed back” into regulatory decisions and we have reflected closely on previous case law on similar issues. Given the CMA’s ability to impose considerable fines, a merits-based approach will allow the CAT to take a more thorough view on whether any penalties have been properly applied.
Having considered the approach of the courts to appeals decisions in competition cases under similar legislative frameworks, the Government are confident that the courts will have no problem in finding that appeals on the merits relating to penalties must be restricted to challenges about the penalty itself and will not be extended to any earlier breach decisions. Appeals against all other digital markets decisions will be under judicial review principles. I hope that this provides reassurance to noble Lords that there is little risk of “bleed back”.