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Mr. Ken Purchase (Wolverhampton, North-East): Does the hon. Gentleman accept that many Labour Members believe that Mr. Desmond's activities, so long as they are legal, are a matter for him and his shareholders? However, many of us would not take a penny-piece from a man who is nothing but a pornographer.
We are told that the Bill will put into legislation what has become the practice and that, under the Tebbit doctrine and the position as stated most recently by the then Secretary of State in 2000, the broader issues will not be taken into account. It is important to consider what has been happening and whether the provision is necessary.
When these issues came into the public domain, the attitude of the former Secretary of State was that he had merely followed the advice of officials. I assume that that is what will happen by law if we pass these provisions in the Bill. However, when the report of the Director General of Fair Trading saw the light of day, a different picture emerged. The director general had advised the Secretary of State that, on the competition issues, he could see no reason to refer the bid, but he pointed out that what he described as the non-competition issues were a matter for the Secretary of State. That is a subtle and rather important difference from what the former Secretary of State had told us earlier.
It emerges that the Home Office had been asked to advise, as had the Department for Culture, Media and Sport, about Mr. Desmond and his activities. The Home Office tetchily concluded that, as he was not breaking the law, it had no further comment to make. However, as The Sunday Telegraph has now revealed, neither it nor anyone else was asked to consider the websites operated by the companies controlled by Mr. Desmond.
We must examine how the matter was dealt with, as there are major questions about how the DTI chose to conduct its investigation into the takeover of Express Newspapers. It would be, at the very least, surprising if Mr. Desmond's colourful websites were not taken into account. We need to be told the precise criteria on which the former Secretary of State based his ultimate decision
Miss Melanie Johnson: The hon. Gentleman is inviting me to comment on what happened. It is hard to understand the relevance of his case to amendments Nos. 197 and 198[Interruption.] I am seeking Madam Deputy Speaker's guidance. In light of the hon. Gentleman's concerns about pressures on time, it is hard to understand how his argument relates to the amendments.
It is necessary to give the provisions careful consideration. Some of the amendments are new, in particular those that relate to newspapers, on which my hon. Friend the Member for South Cambridgeshire may wish to comment. Others are familiar from our deliberations in Committee.
We are worried that the Secretary of State will reserve not only powers to act in the public interest, but the power to add to the criteria as they relate to the public interest. We do not know what the Government have in mind, which is understandable because they do not know what they have in mind. We feel strongly about the matter and intend to press the amendment to a Division. If the Government have nothing in mind, and I am sure that they are being open and honest with the House, they should leave the public interest definition as it is, without the power to add to it by regulation.
As Mr. Desmond was not a newspaper proprietor, his acquisition was not considered under the special newspaper transfer regime, as set up by the Fair Trading Act 1973. Instead, he was considered under the normal merger regime. As my hon. Friend the Member for Eastbourne (Mr. Waterson) made clear, the possible threat to the public interest by the acquisition of Express Newspapers by Northern and Shell could have been considered by the OFT. However, because it put competition as a primary duty, it chose to have no view and referred the problem to the Secretary of State who, although recognising that he had a responsibility, chose not to exercise it. My hon. Friend took us through the conjecture and speculation on why he chose not to consider the wider issues of public interest. We should not count out the fact that they exist, however.
The hon. Member for Wolverhampton, North-East (Mr. Purchase) and others, including the Prime Minister, seem to suggest that what is legal is by definition okay, and what is done legally must therefore be in the public interest. There is no mention of a subset of activities in relation to the ownership of newspapers under existing legislation that are legal but could adversely affect the public interest. I am afraid that the evidence points to the opposite.
In 1990, the Monopolies and Mergers Commission made a report on Mr. David Sullivan and his acquisition of the Bristol Evening Post. I will not quote at great length, but paragraph 6.13 of the report says:
The issue, therefore, is this. If at that time the consent to a transfer of a newspaper title was refused under the special newspaper transfer regime by reference to that test of the public interestinterestingly, we understand that the Government intend at some point to introduce a test of the public interest in relation to the plurality of newspaper ownershipsurely the two things are related. The question whether the Government believe that there is a public interest in the ownership of newspapers and the consequences that flow from that for the accurate presentation of news or for free expression of opinion must be of the essence in relation to the amendments. I hope that I have demonstrated why the handling of Mr. Desmond's case is relevant to their consideration.
I shall deal first with amendments Nos. 197 and 198, which relate specifically to newspapers. On a number of occasionsinterestingly, she even managed to do it earlier this afternoonthe Minister has asserted to the Committee and to the House that the Government have no intention of adding additional public interest, to be specified under clause 57. However, in paragraph 9.7.4 of the document published as a policy narrative to accompany the draft Communications Bill, the Government express their future intention in relation to that Bill, and, on newspaper ownership, state:
Before the Minister intervenes to say that amendments Nos. 197 and 198 do not do all that is required, I understand that subsequently clause 66 would need to be deleted and schedule 26 concerning repeals of the 1973 Act amended. One would have to remove the existing special newspaper transfer regime, but it is important, if we are legislating for what is to be in the Bill, that we do it now and have a clear indication of the circumstances in which Ministers would wish to specify an additional public interest. Plurality of newspaper ownership is one that has been suggested.
Two sets of amendments seek to do slightly different things. That is why they are slightly testing the Minister. Amendment No. 143 would remove from the Secretary of State the ability to specify additional public interest considerations. My personal inclination is that relying on the general merger regime and competition considerations should be sufficient. I accept the argument that national security and what flows from it is an exception, but that should be the only exception. If I were pressed, I would say that amendment No. 143 should be pursued. I would similarly support amendment No. 63. It is likewise designed to remove from the Secretary of State what might otherwise become a politically motivated opportunity to inject additional public interest considerations that are not transparent in advance and not transparent to the marketplace for those who are contemplating or executing mergers.
If we are to have any additional forms of public interest, we should be told what they will be. My purpose in tabling amendments Nos. 197 and 198 is to ensure that we can know precisely, by way of the Government's response in due coursethere might be onewhat kind of newspaper ownership regime is contemplated. If, until now, a special newspaper transfer regime has operated on the basis of confining itself particularly to the accurate presentation of news and the protection of free expression of opinion, I believe that that is a sufficient basis upon which to undertake an examination of plurality of newspaper ownership. Those can be the factors for which we look. Is the diversity of newspaper ownership sufficient to deliver that?
To whom should that test be applied? Clearly, the merger regime has its own test in terms of market share and turnover. However, we have discovered over years past that where newspapers are concernedI quote from the Government's "Consultation on Media Ownership Rules"
One of the consequences that flow from that is that the newspaper ownership regime could be structured in a way that excluded local newspaper titles. For these purposes, as a proxy, I have adopted the threshold of a circulation of 500,000 newspapers a day. That is a limit above which transfers of newspaper titles could be considered.
Whether that approach should apply to existing newspaper proprietors or transfers of ownership in any circumstances is a difficult question. It is difficult to argue that maintaining plurality of newspaper ownership could mean that someone would be barred from the acquisition of a newspaper if he or she was not already a newspaper proprietor and there was no concentration of newspaper ownership.
The only circumstances in which that could be done would be if one were to reintroduce some test of whether someone acquiring a newspaper was a fit and proper person to do so. As the Minister said in Committee, and in her subsequent letter, it is difficult to envisage circumstances where someone could be excluded, on competition grounds, from owning a newspaper or acquiring an enterprise on the basis of whether he or she was a fit and proper person. That should be considered on the basis of disqualifications under the Companies Acts. However, with newspapers, a further question could arise about whether someone is seeking to limit the free expression of opinion or the accurate presentation of views by acquiring a newspaper. It is therefore important to find out more about what the Government are seeking to achieve by extending clause 57, contrary to their previously stated intention.
Amendment No. 143 would make competition the sole factor to be considered in the operation of merger policy, with the exception of national security. Amendment No. 142 is more technical; it will not be immediately obvious to people who are not as familiar with the Bill as Committee members that in clause 44, after the Secretary of State has given a public interest intervention notice and a reference back to him or her has been made by the Competition Commission, he or she has four options for subsequent decisions, two of which can be made in circumstances in which there is a finding of a substantial lessening of competition if a merger is completed or is being contemplated. The two remaining circumstances, given in clause 44(3) and (5), are ones in which there is no finding of a substantial lessening of competition, and the Secretary of State can take account only of public interest considerations.
Ministers have an obligation not to make a reference in or after the period of 24 weeks during which the Secretary of State is allowed to try to resolve the question of public interest by laying an order before Parliament and securing parliamentary approval; they will not make a reference after 24 weeks, and disregard any public interest consideration that has not been finalised. By contrast, the Secretary of State can make a reference before the 24 weeks have elapsed when there is a substantial lessening of competition. A loophole has therefore been created. Curiously, before the expiry of the 24-week period, there is nothing to stop the Secretary of State from making a reference to the Competition Commission on the ground that public interest considerations have not been finalised, and when there is no substantial lessening of competition.
One of the most undesirable circumstances in which a reference could be made is as follows. The Secretary of State has devised a public interest consideration, published an intervention notice, failed to come to the House to secure its approval to finalise the public interest, yet goes ahead and makes a reference to the Competition Commission. That loophole should be closed.