§ Mr. Darling
I beg to move, Amendment No. 61, in page 14, line 42, to leave out "weekly" and to insert "relevant".
I think that this is the weekly newspaper, is it not?
The Amendment deals with weekly newspapers and arises out of discussion in Committee where we undertook to table an Amendment which would bring 249 weekly local newspapers within the scope of the Bill. We were impressed by the arguments which were advanced by hon. Members on both sides of the Committee and we agreed that if we could possibly find a form of words which would allow us to deal with local weekly newspapers we would do so. This and other Amendments carry out that undertaking.
§ Mr. van Straubenzee
For the general convenience of the House, might we also discuss Government Amendments Nos. 64 and 65? I think that the Minister of State would agree that they are consequential.
§ Mr. Speaker
If the House so pleases. It is a trick on the Minister who was allowed to speak to one only, but if it makes no difference, so be it.
§ Mr. van Straubenzee
I would be lacking in courtesy if I did not express my appreciation to the Minister. It was I who proposed in Committee the Amendment upon which these Amendments are based and which bring local newspapers within the ambit of the new and improved provisions of the Clause. I follow the difficulty which the Minister has had in finding a definition of what we all understand by the words "local newspaper" but the final wording of the Clause is now a little cumbersome, for it reads:For purposes of this section 'newspaper' means a daily, Sunday or local (other than daily or Sunday) newspaper circulating …Even at a reasonable hour of the day one has to pause for a considerable time to work out what in heaven's name that means. If, before the Bill goes to another place, a shorter way of expressing the point can be found, it will be enormously for the convenience of anyone who has to work this Measure in due course.
It is common knowledge that the Opposition's proposal of this principle and the Government's acceptance of it has caused considerable anxiety in important sections of the Press. For instance, the Thomson organisation is contemplating extending the range of its evening local newspapers. My hon. Friend the Member for Reading (Mr. Peter Emery) and I are familiar with this since we are shortly to be in the area of one which is starting. I do not 250 believe that the House is acting unreasonably in bringing mergers of local newspapers within the ambit of these new and important provisions. We have not time at this hour to go into them properly, but we went into them in some detail in Committee, and I honestly do not believe that the fears of newspaper proprietors in this regard are valid. I hope very much that, as time goes on, they will feel that they are genuinely in the national interest, and I express my gratitude for what the Government have done.
§ Mr. John Hall
I join my hon. Friend the Member for Wokingham (Mr. van Straubenzee) in thanking the Minister of State for having brought forward these Amendments which give effect to the proposal which we made in Committee. Obviously, he has had difficulty in arriving at a definition, and it takes a little understanding, as my hon. Friend said. Perhaps a better form of words can be found before the Bill goes to another place.
When the Minister of State rose to move the first Amendment, he seemed a little puzzled at first about what the Amendments actually did. This shows the problem facing all of us in debating matters as complicated as these at this hour of the morning, and it gives force to the Motion which I sought to move earlier in the evening that we should report Progress. It is not easy to debate matters of this kind at such an hour, and one suffers sometimes a mental aberration which makes it difficult to argue or to follow argument. This is one reason why we should from time to time make certain that we rise at a reasonable hour. Nevertheless we welcome the Amendments, and we hope that the Minister will be as forthcoming on later matters as he has been on this.
§ Amendment agreed to.
§ Mr. Darling
I beg to move Amendment No. 62, in page 14, line 43, to leave out "three million" and to insert "five hundred thousand".
This Amendment is consequential.
§ Mr. Jay
The change from weekly to daily necessitates a change also in the figure. The figure of 500,000 daily corresponds, if I may put it in that way, 251 to the figure of 3 million which previously appeared in the Bill. Therefore, it is in that sense consequential.
§ Mr. Peter Emery
I understand that one could not leave the larger figure of 3 million in the Bill, but just to suggest that it is consequential is slightly to overplay one's hand. A figure had to be decided upon. Were the newspaper proprietors consulted? How did the Government arrive at the figure of 500,000? In considering this matter, it is important that the House should know why the Government decided upon this particular level. I do not think it is fair to say that this is merely consequential. It is not. It is a figure which ought to be established because of the weekly position, and I do not think it is consequential.
What consultations has the Minister had before settling on this figure of £500,000, and, indeed, is this something which is generally agreed by those people in the newspaper world?
§ Mr. Darling
Of course, this is consequential. There is nothing remarkable about it; it is a simple matter of arithmetic and required no consultation with anybody. In case the hon. Gentleman does not understand it, a weekly newspaper is published weekly; that is, on one day out of every six. If one divides 3 million by six, one gets half a million. It is as simple as that.
§ Mr. Emery
The Minister of State cannot get away with that sort of reckoning. He has spent much of his own life with newspapers and he knows as well as I do that the relationship between a daily and national circulation and that of a weekly newspaper is not something which should be subject to a rule of thumb assessment of devising a figure for six days and dividing it in the hope of getting a logical answer. It may be an arithmetically correct answer, but it is no answer in logic, and does not meet the point which we are making.
The hon. Gentleman said quite frankly that there had been no consultations, and I think that is quite evident. I am aghast to hear that, introducing the weekly newspapers into this Bill, no more consideration was given to them than the making of just a rule of thumb division of an 252 arbitrary figure. Even at this hour, this is highly unacceptable.
§ Amendment agreed to.
§ Mr. Speaker
The next Amendment is No. 57, line 43, to leave out "unlawful and".
With it, we shall discuss Amendment No. 69, in line 6 to leave out subsection (4).
I beg to move Amendment No. 57, in page 14, line 43, to leave out "unlawful and".
I rise more in sorrow than in anger, to move the Amendment, because it would have the effect of removing the criminal sanction from Clause 8 and, indeed, from all other parts of this legislation. My anger is reserved for the fact that we are discussing this new and dangerous provision at a time of the night when it is quite impossible to do it justice.
I would set out once again the objections which we have to this innovation. First, it is applied in the face of 17 years' experience of this type of legislation and directly against Section 11 of the Monopolies and Restrictive Practices (Inquiry and Control) Act, 1948, which is specific in saying thatNo criminal proceedings shall lie against any person by virtue of the making of any order … on the ground that he has committed, or aided, abetted … or conspired or attempted to commit … any contravention of the order.The same is repeated in the Restrictive Trade Practices Act, 1956, many times. It flies against what I thought was the bipartisan—if there had been a Liberal here I would have said "tripartisan"—determination in the 17 years not to imitate the American experience of introducing the criminal law into this part of our legislation. I think it is unnecessary. I see no reason why those who work for, with, by and on newspapers should be singled out in this way.
It is quite enough to provide a civil sanction for those who make any sort of attempt to get round the prohibition in Clause 8(1). It is quite enough that a transfer of a newspaper or of newspaper assets without reporting it to the Board of Trade should be void and unenforceable at law in the sense that the contract was unenforceable and that any money paid under it could not be recovered at law by the purchaser and, therefore, there 253 would be a very severe sanction to prevent the purchaser paying such money because in that case the vendor could keep not only the money but also the newspaper. It seems to me that that would be enough.
But if that is considered not enough, we have a divesting procedure, which has been provided in the earlier part of the Bill, to force a newspaper proprietor who infringed this provision to cough up what he was not allowed to acquire. We also have the procedure with mergers which could perfectly well be adapted to this situation. The President has, in my opinion, rightly insisted on a procedure relating to commercial and industrial mergers by which they can be held up pending an inquiry. I do not see why newspaper mergers and take-overs should not be subjected to exactly the same procedure, thus avoiding this heavy wheel of the criminal law.
The argument in favour of it is twofold. First, there is the argument that once a newspaper is taken over in this way, it cannot be revived—one cannot unscramble the egg—and, therefore, the divesting procedure is really unnecessary, or, rather, inefficient. But that, of course, is true of a fine or a term of imprisonment. One cannot by means of a fine or term of imprisonment cause any more successful divesting than one can by a divesting decree, and if the various sanctions which I have suggested are really enough, as I am sure they are, I do not think that this extra, unique and extraordinary penalty is correct.
The second argument is an appeal to authority, the authority of the Royal Commission on the Press. There it is stated, without having been argued, on page 110 in the following words:If as we recommend, breach of the provision is to involve penalties enforceable in the criminal courts, it is important that there should be no room for doubt on the question whether the provision applied.That is the only place, except for the summary of recommendations at the end, where this is referred to. It is a remarkable assumption, because there is no argument in the whole of the Shawcross Report about it. There is a mere assumption. I cannot believe that if the case had been argued instead of being assumed the Royal Commission would have reached this conclusion. In any event, of course, it was dealing with only daily 254 and Sunday newspapers and in the very first sentence of that paragraph the Commission says:The limitation of the scheme to daily and Sunday newspapers would remove some of the difficulty of defining the subject matter of the transaction.Later, the paragraph said that the definitions would have to be particularly tight and close throughout the provision if a criminal sanction could possibly be applied.
In fact, the definitions have been considerably widened by the inclusion of weekly newspapers and that again is a reason for having second thoughts about criminal sanctions. The matter becomes more complicated, but at this time of night it is difficult to explain the complications, when one considers the number of persons who may be involved in criminal proceedings. Subsection (4) puts… any person who is knowingly concerned in or privy to any purported transfer thereof without the required consent …in peril. This means that secondary parties—clerks, typists and people of that sort—are technically brought within the ambit of this law.
Of course, as it stands, and in spite of the Amendments we moved, the person concerned only has to know that a purported transfer takes place. He or she would not have to know anything about circulation figures or anything about a 25 per cent. shareholding, which is what defines a newspaper proprietor with a controlling interest. Nor would he have to know that it necessarily was even a transfer, because a transfer is defined in subsection (5), among other things, as a… transfer of assets necessary to the continuation of a newspaper as a separate newspaper …and he might not think that that was transfer of a newspaper at all.
This may seem fanciful but it is a fundamental principle of our criminal law that one does not put people in too wide a net of peril even though one never has any intention of prosecuting them. That principle seems to be very considerably breached by this provision and it is one which could be justified only on the ground of extreme necessity. No sufficient justification was advanced in Committee and I hope that the Minister may somehow, in spite of the hour, lucidly explain the need for it.
§ Sir Eric Fletcher
I agree with the hon. and learned Member for Darwen (Mr. Fletcher-Cooke) in one respect only—and that is that it is impossible to do justice to this theme at this hour. The theme I should like just to do justice to is the theme that it is absolutely necessary that in the application of this Bill to Press mergers their prohibition should be buttressed by the full rigours of the criminal law. This matter was very fully debated in Committee and I will try shortly to answer the two points raised by the hon. and learned Gentleman.
He referred to the Report of the Royal Commission and said, surprisingly it seemed to me, that no reason was given for the very clear statement of the Commission that the breach of the provision should involve penalties enforceable in the criminal law. He said that it was an assumption. On the contrary, it was stated as axiomatic, because it followed upon a very lucid exposition of the way in which this question of the freedom of the press had been applied in the United States. I cannot do better than summarise what is stated in the Report, in paragraph 339, where the closing passage from the judgment of Mr. Justice Douglas is quoted:Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interest.3.0 a.m.
In other words, when we speak of freedom of the Press we are speaking of the right of the public to free dissemination of the news. We are not referring to the freedom of the Press millionaires in their commercial interest to enter into combinations. I agree that the proposal involves treating the newspaper industry differently from industry in general and that is what we are doing.
The Royal Commission says that the reason for that is that the public interest, in relation to the newspaper industry, is different. That is why it is treated differently. As has been pointed out, if there is a newspaper merger it is impossible to unscramble it, and that is why there must be a severe deterrent instrument to prevent that mischief from arising.
256 One does not have an adequate deterrent effect if one merely relies on civil proceedings, nor would a fine be adequate to deter Press magnates from carrying through a merger. That is why, as has been found in America, and as was treated as axiomatic by the Royal Commission, the only way in which the public interest can be buttressed in this respect is if, differently from all other mergers, it has the sanction of the criminal law. For that reason, I must advise the House to reject the Amendment.
The Minister without Portfolio rightly stated that it was impossible to do justice to this theme at this hour of the night, and it is clear he has done no justice to it by saying that a fine would not be enough of a deterrent, because that is exactly one of the deterrents he provides in his Bill, in subsection (4), which is one of the subsections we are seeking to delete. Since justice cannot be done to this important theme at this hour, I express the hope that it may be done in another place at a time when justice can be done to it by a sufficient number of persons in another place, with knowledge of this matter, because this debate has become a thin farce.
For that reason I do not think we should continue and I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Amendment proposed: In page 15, line 9, leave out "to" and insert "so to continue".—[Mr. Jay.]
§ Mr. John Hall
I rise only to say that it would be discourteous of me not to acknowledge the courtesy of the Minister in giving effect to the Amendment that I moved, not quite in these words, during the Committee stage.
§ Amendment agreed to.
Further Amendments made: In line 12, leave out "or Sunday" and insert:
Sunday or local (other than daily or Sunday)".
§ In line 14, at end insert "or any part thereof".—[Mr. Jay.]
§ Mr. Jay
I beg to move, Amendment No. 66, in page 15, line 20, to leave out "six" and to insert "three".
257 I think we can discuss Amendment No. 67, in line 30 and Amendment No. 68, in line 33 with this Amendment. The effect of the Amendments is to carry out an undertaking, also given in Committee at the request of various hon. Members, to substitute three months for six months as the normal period for consideration of a Press merger, as opposed to a non-newspaper merger. As a result of these Amendments, in the case of a non-newspaper merger the normal period will be six months with a possible extension to nine months and in the case of a Press merger it will be three months with a possible extension to six months.
§ Mr. Peter Emery
Even at this late hour, I think it only right and proper that we should thank the Government for considering the point. Although they would not accept our Amendment in exactly this form when we moved it in Committee, they have now seen fit to implement our proposals. As the President of the Board of Trade will realise, I felt strongly about this in Committee. I am grateful to the Government for seeing reason, and we will be delighted to support them in any Division which they might want to call.
§ Amendment agreed to.
§ Further Amendments made: In page 15, line 30, leave out "six" and insert "three".
§ In line 33, leave out "six" and insert "three".
In page 16, line 37, leave out from "and" to end of line and insert:
in subsection (1) above, the reference to relevant circulation is a reference, in relation to a newspaper published on any given day, to the circulation of that newspaper as published on that day, and the reference to average relevant".—[Mr. Jay.]