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Lord Sainsbury of Turville moved Amendments Nos. 41 to 46:
- Page 27, line 42, at end insert "or
On Question, amendments agreed to.
Clause 45 [References under section 44: supplementary]:
Lord Sainsbury of Turville moved Amendment No. 47:
On Question, amendment agreed to.
Clause 53 [Decision of Secretary of State in public interest cases]:
Lord Sainsbury of Turville moved Amendment No. 48:
On Question, amendment agreed to.
Clause 57 [Specified considerations]:
Lord Hodgson of Astley Abbotts moved Amendment No. 49:
The noble Lord said: My Lords, I return to an issue which we have covered before. That is, the specified considerations about national interest. In part the amendment relates to Clause 57 and the powers of the Secretary of State to modify the section by order. The Minister has already spoken to an amendment which inserts additional words in Clause 57(3). My concern is the way in which the wording overlaps and duplicates Clause 41(3), and appears to achieve the same outcome.
Secondly, my amendment seeks to remove the open-ended nature of Clause 57, subsections (3) and (4). Therefore, the subsections are duplicative and open-ended. The concept of national security is easily understood. I support it. But this catch-all seems to be a very blunt instrument. I find catch-alls dangerous.
The Minister earlier was after me about the importance of the market and how my suggestion, when speaking to amendments with the noble Lord, Lord Phillips, was soft on the importance of the market. I assure the noble Lord that I am not soft on the importance of the market. Subsections (3) and (4) of Clause 57 seem to me to say that the market is very important, but that if we do not like the way that the market is working we have subsections (3) and (4) and we can offset the market by using our powers under those subsections. What the Minister said in Committee did not give me huge confidence that the provisions might not be used in that way. If we are going to be marketeers let us be marketeers. We should not have clauses where there is an open-ended issue. National security is fine, but we should stick to national security and not have the ability to bring in all kinds of other criteria as per that clause. I therefore beg to move.
Lord Sainsbury of Turville: My Lords, I hasten to say that there is no weakening at all of our belief in competition, but there is a question of whether we can at present foresee all circumstances in which a Secretary of State may have legitimate grounds to intervene. The provision deals with that uncertainty about issues that we cannot today foresee. The amendment would remove the mechanism to amend the list of public interest considerations. We believe that that power is a necessary safeguard to ensure that the Bill can be adjusted in future.
As we have previously said, only national security will be defined as a consideration by the Bill, but we cannot predict all future circumstances. During consideration of the Bill in Committee, I tried to give a flavour of how the power could be used in future, with respect to new technology that we may need to control. I can do no more than that. National security is clearly provided for in the Bill and the forthcoming Communications Bill will make provision for plurality in newspaper mergers. We cannot foresee further specific considerations. However, we believe that it is sensible to provide for a transparent mechanism to deal with unforeseen circumstances.
Our clear intention is to deliver a system in which the vast majority of cases are decided by the independent competition authorities against a competition-based test. We have, however, recognised that the interests of national security need to be provided for in the régime, and we think it sensible to provide a mechanism for further public interest considerations to be specified in future. I understand the concern that the Government should not be able to abuse that power, but we have ensured safeguards in the Bill. The power to alter the considerations specified will operate transparently and the Secretary of State will publish her reasons for any
I hope that I have been able to give sufficient reassurance. I invite the noble Lord to withdraw his amendment. I repeat that there is no weakening in our belief in competition.
Lord Hodgson of Astley Abbotts: My Lords, before the Minister sits down, there is one thing that I could not understand from our earlier debate. Will the order be made by affirmative or negative resolution?
Lord Sainsbury of Turville: My Lords, I believe that it will be by affirmative resolution of Parliament. I shall check that point and, if I am not right, I shall write to the noble Lord.
Lord Hodgson of Astley Abbotts: My Lords, I am grateful to the Minister for that and grateful that he has understood people's concern about the open-ended nature of Clause 57(3) and (4). If there is an affirmative resolution, at least we will have an opportunity to debate the order fully when the new powers come to be used. In the light of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Sainsbury of Turville moved Amendment No. 50:
On Question, amendment agreed to.
Clause 58 [Intervention by Secretary of State in special public interest cases]:
Lord Sainsbury of Turville moved Amendments Nos. 51 to 55:
(ii) Community law or anything done under or in accordance with it"
Page 28, line 21, at end insert—
"(aza) in relation to the making of a report by the OFT under section 43, the time of the making of the report;"
Page 28, line 42, after "State;" insert—
"(ga) the powers to extend time-limits under section 24 as applied by subsection (5) above, and the power to request information under section 30(1) as so applied, were not exercisable by the OFT or the Secretary of State before the giving of an intervention notice but the
existing time-limits in relation to possible references under section 21 or 32 were applicable for the purposes of the giving of that notice;
(gb) the existing time-limits in relation to possible references under section 21 or 32 (except for extensions under section 24(4)) remained applicable on and after the giving of an intervention notice as if any extensions were made under section 24 as applied by subsection (5) above but subject to further alteration by the OFT or the Secretary of State under section 24 as so applied;
(gc) in subsection (1) of section 30 for the words "section 21" there were substituted "section 44(2) or (3)" and, in the application of that subsection to the OFT, for the word "deciding" there were substituted "enabling the Secretary of State to decide";
(gd) in the case of the giving of intervention notices, the references in sections 22 to 31 and 33 to the making of a reference or a reference were, so far as necessary, references to the giving of an intervention notice or an intervention notice;"
Page 29, line 16, at end insert—
"(1A) Where the Secretary of State believes that it is or may be the case that two or more public interest considerations are relevant to a consideration of the relevant merger situation concerned, he may decide not to mention in the intervention notice such of those considerations as he considers appropriate."
Page 29, line 24, after "undertaking" insert "or group of undertakings"
Page 30, line 4, after "undertaking" insert "or group of undertakings"
Page 32, line 32, leave out paragraph (b) and insert—
"(e) the European Commission is considering a request made, in relation to the matter concerned, by the United Kingdom (whether alone or with others) under article 22(3) of the European Merger Regulations, is proceeding with the matter in pursuance of such a request or has dealt with the matter in pursuance of such a request."
Page 40, line 6, leave out "or" and insert "and"
Page 42, line 42, leave out subsections (3) and (4).
Page 42, line 43, leave out "adding to," and insert "specifying in this section a new consideration or"
Page 43, line 15, leave out paragraphs (b) and (c).
Page 43, line 21, leave out "a" and insert "one or more than one"
Page 43, line 28, at end insert "and the conditions mentioned in subsection (3A) are satisfied.
(3A) The conditions mentioned in this subsection are that, immediately before the enterprises concerned ceased to be distinct—
(a) at least one of the enterprises concerned was carried on in the United Kingdom or by or under the control of a body corporate incorporated in the United Kingdom; and
(b) a person carrying on one or more of the enterprises concerned was a relevant government contractor."
Page 43, line 39, at end insert—
"(aza) in relation to the making of a report by the OFT under section 60, the time of the making of the report;"
Page 44, line 8, after "State;" insert—
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