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Lord Skelmersdale: My Lords, could the noble Lord explain that more fully? As I understood it, the information has to be available to be collected. If it is available to be collected and is not collected, when the

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police ask for the information it will not be there. Therefore, surely everyone will be in contravention of the order.

Lord Filkin: My Lords, essentially, there will be a request to a carrier to provide information between certain points and certain flights over certain periods of time. If the carrier has not been asked about such information previously, he cannot be expected to have it in his possession.

If I have not engaged with the noble Lord, Lord Skelmersdale, perhaps we can enjoy one of our correspondences. I shall be pleased to do so if that will help. I shall consider what he said and see whether I can give a better answer in writing.

As I signalled, we hope that the information will assist in targeting and profiling terrorists. With regard to the impact on international commercial issues, the point is well made about the importance of trying to move progressively towards some harmonisation of such data systems across the world. However, again, one cannot do nothing while that process takes perhaps five or 10 years; we must move in parallel by starting our systems and pressing for some convergence internationally.

I am aware of the time and aware of the pressure from other business. I conclude by stressing what I said about the importance of taking forward the consultation with a variety of industries. The meeting on 11th July made clear that we were talking not only about airline industries but about airport, travel and other industries. One could not even talk about one industry as a homogeneous group. There were significant differences in impact between, for example, low-cost and higher-cost scheduled flights and between charters. Therefore, those issues must be understood and taken into account by government and by the police in terms of developing the systems. The industry itself must also recognise its responsibilities, as it did at the meeting, by working with government to ensure that we obtain relevant information to reduce our security threats.

Lord Skelmersdale: My Lords, before the Minister finally concludes this business, does he accept from me that he has answered with a very straight bat but that, unless the bat is held in the right place, the ball still hits the wicket?

Lord Filkin: My Lords, I agree with the noble Lord, Lord Skelmersdale, that the fundamental issue is about the utility to reduce terrorism. Clearly government will not be passive on these issues. They will need to hold discussions with the police and security services progressively to ensure that the utility being obtained is proportionate to the burdens and pressures that result from the processes.

To an extent, one has to start on that venture rather than assume that it is impossible. That is why we believe it is right to make this order and to begin the process of progressive, thoughtful implementation.

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Lord McNally: My Lords, before the Minister sits down, does he agree that, in a proper and orderly fashion, we would not consider passing the order until we had seen the outcome of the meeting on 13th September? As I said, we shall not divide on the issue tonight, but I hope that the noble Lord, Lord Skelmersdale, will put on his pads again when we return on 7th October. If we are to approve the order tonight, the House is entitled to know the outcome of that 13th September meeting, either by a ministerial Statement or by the activities of the noble Lord.

Lord Filkin: My Lords, of course, in a proper and ordered world, we would not have experienced the events of 11th September and we would not have had the sense of pressure that faces all civilised governments in the world. That is the tension that we face at present. I commend the order to the House.

On Question, Motion agreed to.

Enterprise Bill

8.54 p.m.

House again in Committee on Clause 41.

Lord Hunt of Wirral moved Amendment No. 125:


    Page 26, line 42 leave out from "57" to end of line 43.

The noble Lord said: I want to draw to the Minister's attention subsection (3) of Clause 41, which states:


    "For the purposes of this Part a public interest consideration is a consideration which, at the time of the giving of the intervention notice concerned, is specified in section 57".

Clause 57 is entitled "Specified considerations". Subsection (1) of the clause states:


    "The interests of national security are specified in this section".

Subsection (2) states:


    "In subsection (1) 'national security' includes public security; and in this subsection 'public security' has the same meaning as in article 21(3) of the European Merger Regulations".

I shall not comment on subsections (3) and (4) because they will be the subject of a subsequent debate. However, Clause 41(3) goes on to say,


    "is specified in section 57 or is not so specified but, in the opinion of the Secretary of State, ought to be so specified".

In a previous debate, when dealing with amendments put forward by his noble friend Lady Turner of Camden, the noble Lord, Lord Hoyle, and a number of other noble Lords, the Minister made it clear that he did not wish to see political lobbying creeping back in. I shall now help him, as will this side of the Chamber, to ensure that that does not happen. I do not know whether he authorised the concluding words of Clause 41(3), but they are an open door. They are not restricted at all by the phrase "national security". I refer again to the words,


    "is specified in Clause 57 or is not so specified but, in the opinion of the Secretary of State, ought to be so specified".

The Minister will recall that Clause 57 is merely entitled "Specified considerations". There we have it: all the arguments that the Minister deployed in dealing

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with his noble friends—"There are tough choices to be made"; "There are problems"; "I agree, there are adverse social employment consequences to be faced"; "We must avoid uncertainty"; and "We must decide on solely competition issues"—those are all very strong words but they are weakened enormously by this open door.

At present, unless the Minister accepts my amendment, it will be open to the Government to add a new ground of public interest when they feel like it. Surely that is most unsatisfactory. When it was pressed in the other place, the Minister argued that the power should remain. However, Miss Melanie Johnson was unable to say what possible category she might have in mind to add to the definition in the Bill. I believe that Miss Johnson has a long way to go before she acquires the expertise and experience of the Minister. Therefore, I very much hope that he will be able to tell us what categories the parliamentary draftsmen had in mind.

It is possible that he will want time to reflect on the matter. In that case, we may have to return to the subject at a later stage. But, unless he is able to make very strong arguments to the contrary, I believe that the Government have an opportunity here to move the goalposts when the game is in process. Why do I say that? Under this subsection a new public interest ground could be added if the Secretary of State decided to change the rules after the parties concerned had embarked on their merger. It is perfectly possible for those who were intent on merging suddenly to find that the rules were changed after the event. Therefore, that would introduce the very uncertainty that the Minister had in mind when he so persuasively argued with his noble friends that he did not want to return to the bad old days of political involvement in such matters.

Since my noble friend Lord Tebbit introduced his guidelines, there has been a self-denying ordinance among successive Secretaries of State of both main parties that they would look narrowly at competition issues when they reached their decisions. There is an element of cross-party consensus—it is wholly to be applauded—that political involvement brings the system into disrepute.

I welcome the Minister's assistance on one point. Members of the public probably find it difficult to distinguish between a politician making a decision on non-political and political grounds. What is the difference between the public and the political interest for a Minister? An analysis of that might be interesting.

Why am I so concerned about this subsection? There will be further debate on the newspaper industry and the figure of Mr Richard Desmond. The Minister may recall that the director-general had advised the Secretary of State that on competition issues he could see no reason to refer the bid. But the bid was referred. Although we are not discussing newspapers, the Minister might reflect on that situation and assure us that it will never occur again. If he is able to give that assurance, surely it is possible for him to agree to the amendment. It would remove the temptation to

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reintroduce party politics, political issues and matters as important as employment and social issues which so exercised his noble friends. That temptation is surely a diversion which the Minister will not wish to have on the face of this legislation.

We shall come to further debate on subsections (3) and (4) of Clause 57. They already allow the Secretary of State to,


    "modify this section for the purpose of adding to, removing or amending any consideration which is for the time being specified in this section".

It cannot be a matter of national security. It must be a matter which comes under the overall heading of "specified considerations". The provision states that the Secretary of State may have an opinion that there is a specified consideration and that he can add the consideration to his list of allowable reasons even though the merger process may be under way. So he could come in through political lobbying which I recall can be very intense, with Members of Parliament coming to see you who are concerned about the effect of a merger or a competition situation in their constituencies. The Minister will not need me to give a list of examples of what would happen in those circumstances.

I am giving the Minister the opportunity to turn his previous words into action and to accept the amendment. I beg to move.

9 p.m.

Lord Sainsbury of Turville: It is necessary to see the amendment in the context of what went previously. Although there was a self-denying ordinance, the Secretary of State always had the ability in circumstances which could not be envisaged at the time to take a public interest consideration into account.

We have here a residual power of the Secretary of State, in the light of circumstances which we cannot envisage at present. The only circumstance we can envisage clearly at present is national security. Noble Lords might wish for other examples. If we could envisage what those would be, we would put them in the legislation. However, I give a flavour and an example. Let us suppose that some new technology is essential to large parts of the British economy and the possibility exists that some company will be able to get control of it. It might be difficult to say that that relates to national security, but the economic security of the country might be involved.


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