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( ) The date specified in a notice under subsection (4)(b) may not be earlier than the date on which the notice is given.").

Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5.

Moved, That the House do agree with the Commons in their Amendment No. 5.--(Lord McIntosh of Haringey.)

On Question, Motion agreed to.



Clause 16, page 9, line 38, leave out ("does not infringe") and insert ("has not infringed").

Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 6. At the same time, I should like to speak also to Amendments Nos. 8, 21, 22, 26, 28, 37, 58, 59, 74 and 75. The purpose of these amendments is to correct and make consistent the tense used in the Bill in relation to a prohibition being infringed and to ensure consistency and clarity in the operation of exclusions from the Chapter I prohibition. I can give the longer speech if noble Lords wish it. I have four or five pages which are fairly generously typed.

Lord Fraser of Carmyllie: My Lords, before the noble Lord sits down, I hope that noble Lords will resist that threat.

Lord McIntosh of Haringey: My Lords, I am grateful to noble Lords. With the correction that I missed out Amendment No. 29 from the list, I commend Amendment No. 6 to the House.

Moved, That the House do agree with the Commons in their Amendment No. 6.--(Lord McIntosh of Haringey.)

On Question, Motion agreed to.

5.15 p.m.



Leave out Clause 19.


That this House do disagree with the Commons in their Amendment No. 7, but do propose the following amendment in lieu thereof--
Leave out Clause 19 and insert the following new clause--
The press diversity prohibition

(".--(1) This section shall apply if a monopoly situation exists within the meaning of section 6 of the Fair Trading Act 1973 in relation to the supply of--
(a) national newspapers, or
(b) national newspapers of any particular description,
and where this section applies it applies to any person or persons in favour of whom that monopoly situation exists within the meaning of section 49(2)(b) of the Fair Trading Act 1973.

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(2) Any conduct on the part of any person to whom this section applies shall be prohibited if--
(a) it constitutes an anti-competitive practice; and
(b) it may reduce the diversity and independence of the national newspaper press in the United Kingdom.
(3) For the purposes of this section "an anti-competitive practice" is a course of conduct which has, is intended to have, or is likely to have the effect of restricting, distorting or preventing competition.
(4) The prohibition imposed by subsection (2) is referred to in this Act as "the press diversity prohibition".").

Lord McNally rose to move, That this House do disagree with the Commons in their Amendment No. 7, but do propose the amendment set out in lieu thereof.

The noble Lord said: My Lords, I was much encouraged in an earlier debate to find the House in a frisky mood. I hope that noble Lords on the Government Benches who preach the wisdom of this House by sending messages to another place will hold firm for the next short debate.

Noble Lords were informed earlier that the previous Bill had taken rather a long time in its passage through Parliament. The Bill was introduced into this House on 15th October 1997, so it has just had its first birthday. I am not sure that the Whips made that clear when they convinced the Minister that this was a good maiden Bill for him to try to take through Parliament. The most significant event in relation to this Bill occurred on 9th February of this year when noble Lords passed an amendment standing in my name and that of the noble Viscount, Lord Astor, the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Borrie, to insert specific protection for the newspaper industry against unfair competition. That amendment was removed by the Commons in Committee.

In considering this amendment today, I ask noble Lords to exercise the real but rarely used power to ask the Commons and the Government to think again. There are those who say that this House has no real influence. I ask noble Lords to cast their minds back to 9th February and their victory that night and see what the consequences have been. On Monday The Times had gone up from 10p to 30p. I wanted something more substantial for my political epitaph than the creation of 300 per cent. inflation. Nevertheless, that is a fact. The Office of Fair Trading has spontaneously mounted an inquiry into the pricing policy of The Times. We eagerly await an inquiry that newspapers tell us is a robust one. Perhaps most exciting of all, we discovered on the night of 9th February that there are almost as many independent directors of The Times in this House as there are Bishops on the Bishops' Bench. We also discovered (to paraphrase Dorothy Parker) that they represent the full gamut of emotions from A to B.

I understand that for those Labour rebels who supported the amendment that evening it becomes a little more difficult. When governments reach this stage in a parliamentary year, we know that intellectual argument is abandoned and they simply plead that defeat will disrupt their timetable and put this and other legislation into jeopardy. But I ask noble Lords to remember that this has never been a wrecking amendment; it is an amendment to make a good Bill better.

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What are the differences between me and the Minister? I believe that they can be narrowed down to his belief that a cocktail produced by Clause 60 of the Bill and Articles 85 and 86 of the Treaty of Rome will create in British law a veritable legislative "Viagra", as far as concerns competition law. The Minister believes that, because the Bill incorporates prohibitions based on Articles 85 and 86 of the treaty and brings into domestic competition law, via Clause 60 of the Bill, provisions to be interpreted consistently with the corresponding provisions of Community law, predatory pricing and other abuses will be subject to the tests of predatory pricing laid down by the European Court of Justice. That is why, if the Minister runs true to form, we shall hear a good deal this evening about Tetra Pak. All I can say to the Minister is that Tetra Pak is an excellent packaging but makes a poor fig leaf.

European case law on manufactured goods and industrial products is hard to square with the realities of the newspaper industry. As Mr. Richard Fowler, QC, has said:

    "In my opinion European case law could not be relied upon".
Yet the Government rest their case on an almost a blind belief in the strength of European case law. I understand that competition lawyers sometimes refer to certain sections of legislation as "Klondike clauses" because of the lucrative litigation to which they give rise. Without the specific prohibitions contained in my amendment, I believe that the Bill will offer a Klondike for lawyers with no guarantee of protection for the quality, diversity and choice of our newspapers. That is why I commend to noble Lords the amendment now before the House. It is less sweeping in its terms than the clause that noble Lords supported in February, which was removed by another place. It confines its prohibitions to anti-competitive practices. Any action that is not an anti-competitive practice would escape prohibition even if it threatened to reduce diversity in the press.

I have never opposed vigorous competition; nor do I want to fossilise the present structure of the newspaper industry. But I want the new Competition Commission to have explicit and freestanding duties to watch anti-competitive conduct that threatens press diversity. This is more likely to happen where its responsibility is specific rather than part of a wider and more general duty. The nub of my case, and the cause of the differences with the Minister, is encapsulated in a single quote from Mr. Ian McCartney, the Minister responsible in another place. When rejecting proposals to lower the threshold of what is "dominant" in the newspaper market he said:

    "I see no justification for treating newspapers differently".--[Official Report, Commons; 8/7/98; col. 1165.]

My whole case is that newspapers must be treated differently. Why? I give the answer provided by Mr. Robin Cook on 20th July 1994 when he was the Labour Party spokesman on these matters. He called then for specific action against predatory pricing and unfair competition. He said that at that time Labour Party policy was,

    "informed by a view of a need for a diverse media and of the importance of a diverse media for a healthy democracy".

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That is why there is justification for treating newspapers differently. They are important for the preservation of a healthy democracy. That position was adopted by spokesman after spokesman of the Labour Party before the general election.

I shall leave it to others to speculate on the reasons for the change of heart. But I say to the Minister, "U-turn if you want to", but on these Benches we remain convinced of the need for special treatment and protection. In this we are consistent, as indeed, I understand, is the Opposition Front Bench. It consistently appeased Mr. Rupert Murdoch when in government, as the diaries of the noble Lord, Lord Wyatt, now reveal, and is set fair to appease him again tonight. And much good may it do them. Let me reassure them that parties, compared with dead parrots, do have an after-life.

I make only two other points. One is to the editor and staff of The Times. When Mr. Petter Stoddart, editor of The Times, addressed a meeting in the House before the Summer Recess, he accused me of attacking the integrity of The Times journalists. Nothing could be further from the truth. I repeat my affirmation of last February: some of my best friends write for The Times. Let me go further. If the integrity of The Times journalists were ever to be under threat, I suspect they could rely more on support from these Benches than from some who will pose as their friends today.

Finally, I say this to your Lordships. My perseverance on the issue relates to a wider picture. We are told that we are on the threshold of the information age. At the dawn of that age, control of technology and information is concentrating at an alarming rate. During the summer there was a photograph in our national newspapers of a gathering of about two dozen people who between them controlled most of the means of disseminating news and information to our democratic world. That concentration of power, married with the advance in technologies, offers a challenge to democratic governments and free societies which we have scarcely begun to address.

Last week we agonised about how rich men could buy themselves influence and access by donating money to political parties. So we stop foreigners giving money to our political parties. But buy yourself a newspaper or a television station and you buy power and influence which makes and unmakes governments; it makes 10 Downing Street an ever-open door and sends Chancellors of the Exchequer scurrying to obscure mid-western locations to pay court.

The amendment will not end such power, but it will send a message. The media moguls are not self-regulators. One day we shall have to contain them. I realise that I am asking the House to exercise a rarely used power. But the independence and diversity of our national press is an exceptional cause. Let us draw a line in the sand tonight and ask the Government and another place to think again. I commend the amendment to the House.

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Moved, That this House do disagree with the Commons in their Amendment No. 7 but do propose the amendment set out in lieu thereof--(Lord McNally.)

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