Sky and 21st Century Fox: Proposed Merger
(7 years, 9 months ago)
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, with your Lordships’ leave, I will repeat a Statement made in the other place by my right honourable friend the Secretary of State for Culture, Media and Sport.
“I promised to give the House an update about progress on the process for the bid by 21st Century Fox to acquire the 61% share of Sky which it does not already own. I can confirm that formal notification for the proposed merger of Sky and 21st Century Fox was lodged with the European Commission on Friday 3 March and that I, on Friday, wrote to the parties to inform them that I am minded to issue a European intervention notice on the basis that I believe there are public interest considerations, as set out in the Enterprise Act 2002, that may be relevant to this proposed merger that warrant further investigation. To be clear, I have not taken a final decision on intervention at this stage but have indicated what I am presently minded to do. In line with the guidance that applies to my quasi-judicial role, I will aim to come to a final decision on whether to intervene in the merger within 10 working days of Friday’s notification. Before I make my final decision, and in line with statutory guidance, I have invited further representations in writing from the parties and have given them until Wednesday 8 March to provide them.
In December, I made clear that I would make this quasi-judicial decision independently, following a process that is scrupulously fair and impartial, and as quickly as possible with all relevant information in front of me. To enable this, I instructed my officials to commence work to analyse the relevance of the public interest considerations to the merger and to consider the available evidence. Since the 9 December announcement, I have received representations from the parties to the merger, as well as representations made in writing to the department from a range of people and organisations. They include more than 8,700 responses made in connection with the department’s consultation on the Leveson inquiry and its implementation which referred to the merger. Given my quasi-judicial role, I can consider only evidence which is relevant to my decision.
On the basis of this preparatory work, I have issued a ‘minded to’ letter to the parties on two of the public interest grounds specified in Section 58 of the Enterprise Act 2002. The first public interest ground on which I am minded to intervene is media plurality. That is, specifically, the need for there to be a sufficient plurality of persons with control of the media enterprises serving audiences in the UK. My concern here is that the merger will bring under common or increased control a number of significant news sources, including Sky News and News Corporation’s newspaper titles. As a result, I have told the parties that I am minded to ask for a report from Ofcom on the impact of the merger on media plurality before considering the matter further.
The second public interest ground on which I am minded to intervene is commitment to broadcasting standards. This ground relates to the need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to attaining broadcasting standards objectives. As I have indicated to the parties to the merger, I am concerned about the nature of a number of breaches of broadcasting standards by 21st Century Fox as well as the behaviour and corporate governance failures of News Corporation in the past. In light of those matters, I am minded to intervene on this ground and to ask Ofcom to investigate them further.
I also want to be clear on what this means in terms of the overall process. My decision on whether to intervene is not the end of the matter. Instead, it would recognise that these public interest considerations may be relevant to the merger and will trigger action by Ofcom to assess and report to me on them and the Competition and Markets Authority to report on jurisdiction. There would then be a further decision-making stage for me to undertake in light of those reports, but we are not at that stage yet. As I said at the outset, I will aim to take the final decision on whether to issue a European intervention notice within the 10 working days set out in the guidance and will return to this House to notify Parliament of this decision.
I am today, as I said I would, keeping this House appropriately informed of developments on this important matter, and it is right that I continue to do so. However, given this remains a quasi-judicial process in which I retain a decision-making role for the next 10 days, and potentially beyond, it would be inappropriate for me, or any other member of this Government, to comment on the substantive merits of the case. I hope this update is helpful to honourable Members and that this Statement gives an opportunity to debate this important issue, but at the same time I hope that honourable Members will respect the limits of what I can say given my ongoing decision-making role”.
Lord Stevenson of Balmacara (Lab)
My Lords, I am obliged to the noble and learned Lord for repeating the Secretary of State’s Statement in another place. I am also very grateful to the Secretary of State for coming at what I think must be the earliest possible moment, because she said that she received notification of this only on Friday 3 March. It is very good that she was able to come so quickly. I also put on record our thanks to her for attending a meeting convened by the noble and learned Lord last week where a number of Peers from all sides of the House were able to ask her questions and examine a bit more closely some of the issues that relate primarily to the Digital Economy Bill but also to this subject.
My first question is about who is caught by the quasi-judicial mode, which was mentioned several times by the noble and learned Lord. The Statement refers to the Secretary of State and the Government. Will the noble and learned Lord confirm or deny whether that is departmental Ministers in DCMS or whether there are any other Ministers involved? I will be interested to know to what extent we are able to ask questions and gain answers over this period, which may last a number of weeks.
An important point is that the Statement does not cover the corporate structure which we are now facing with this proposed merger. We know that 21st Century Fox indicated on 9 December that it was making a takeover approach for Sky. It already owns just over 39% of Sky shares, so it is the balance of the shareholding. We know that, after a period of pre-discussion and debate, the European Commission was formally notified of the bid on Friday 3 March. It is important to get it right because there have been changes since we were in this process six years ago. 21st Century Fox is one of two successor companies of News Corporation, which was split up in 2013. It is important that we recognise that Fox is the legal successor of News Corporation and deals primarily with the film and television industries and another company, new News Corp, is a new company focused on newspapers and publishing that was spun out of News Corporation. In the UK, new News Corp owns the Sun, the Times and the Sunday Times. The point is that, although the corporate vehicle under which the acquisition is being made is 21st Century Fox, it is common understanding that the same principles are involved on both sides of that split and therefore the inquiry needs to take account of that. From what the Secretary of State has said, I think there is a willingness to go a little bit further than the straightforward 21st Century Fox approaching Sky. I will be grateful if the noble and learned Lord can respond to that at this stage.
The Secretary of State made the point that there are two dimensions to the inquiry that she is minded to look at. One is plurality. The point was made that, if this bid is successful, it will put an even greater amount of media power in the hands of the Murdoch family in particular and the people involved. Ofcom therefore needs to look at the whole of the group of Murdoch companies in assessing whether the Sky takeover would threaten media plurality. That is a very important aspect in relation to what I have just said about the ownership and control of the family companies that are involved.
The world has changed since 2010-11 when we last looked at this, and Ofcom will need to range much more widely across the media and look at not just newspapers and traditional news delivery through broadcasting but at social media, news aggregators and others from which news is taken. This is quite a substantial change in operation, and I will be grateful if the noble and learned Lord has any observations on whether the resources that are available to Ofcom will be sufficient to cope with that new approach and challenge.
The second ground on which the Secretary of State says she is minded to intervene is on commitment to broadcasting standards. I notice that this section of the Statement is quite carefully phrased. The convention is to refer to the fit and proper test required under the Broadcasting Acts for those who hold a broadcasting licence. Sky holds a broadcasting licence and therefore the controllers of Sky have to be fit and proper persons. The narrow point here is the extent to which that is focused as a process on individuals who may or may not be the named licence holders or on the corporate structure within which they operate. I would be grateful if the noble and learned Lord can confirm that the intention, even though it is not explicit in the Statement, is to look at not only at the individuals but at the corporate structure within which they operate because clearly there are issues on both sides of that.
This is a very important issue, which we will return to in a few days when we understand more about the European intervention notice and whether or not that has been called, and also the extent to which Ofcom will report and whether or not that Ofcom report will lead to further work by the CMA. It is important we get some of the facts on the table now, and I look forward to hearing further from the noble and learned Lord.
Lord McNally (LD)
My Lords, from these Benches, I welcome both the speed and tone of the Statement from the Secretary of State. She has been careful to keep to the legal niceties, although any reading of this would welcome what she considers the merits of the case, particularly, as has been said, her emphasis on media plurality and the commitment to broadcasting standards. These were at the heart of the debate we had over a decade ago—putting into legislation the right to intervene on public interest grounds—led by my noble friend Lord Puttnam, with the support of the noble Lord, Lord Lansley.
It is important to remember that, if anything, the arguments we had then which finally persuaded the then Government to accept the public interest test have got stronger over the last decade, in no small measure because of the behaviour of companies and organisations in which Rupert Murdoch has had an influence. We now face that problem again. Does the noble and learned Lord agree that this is still a major issue with the Murdoch empire in particular, and given the need to take on board how these companies change their structures without really ever changing the spider at the heart of the web?
The other, equally important point, as has been said, is the changes in broadcasting and media over the last decade. Mr Murdoch may play a big part in many ways, but he will soon be a small player compared to some of the giants wandering the media jungle. Does the Minister agree that the danger is that, if we get this wrong, we will set precedents which, when those big boys come along, will leave us in a very weak position in defending the very principles the Secretary of State so eloquently expressed in the Statement?
Lord Keen of Elie
I am obliged to the noble Lords, Lord Stevenson and Lord McNally, for their observations, and will seek to respond to some of the points they have raised. The noble Lord, Lord Stevenson, asked “whose court”, as he put it, deals with this quasi-judicial decision-making process. It will be for the Secretary of State to carry out that process, with the appropriate officials advising her. It will not involve other government departments or Ministers; it will be her decision and her decision alone that instructs this matter. I hope that reassures the noble Lord as to how the process will be carried on.
As for the corporate structures and the past involvement of News Corporation, as the Secretary of State indicated in the Statement, when we address the question of commitment to broadcasting standards, account will be taken of past breaches of those and of behaviour and corporate governance failures, including those relating to News Corporation.
Ofcom, of course, has a fit and proper person test, but that applies in respect of broadcasting licences rather than this issue. It is a different test to the one that will be considered with regard to the merger, but it is important to bear in mind that the same evidence may of course be relevant to both tests. As the Secretary of State set out in her letter, she considered that a number of relevant matters warranted further investigation, including facts that led to the Leveson inquiry, for example, and the question of corporate governance at the News of the World. It will be open to Ofcom to look at all relevant areas—none are being ruled out in this context. The ultimate question will be whether the bidder shows a genuine commitment to broadcasting standards, which will raise very real and relevant questions with regard to past behaviour.
The noble Lord, Lord McNally, asked whether we might be in danger of setting an unhealthy precedent, given the other tests that may be put before us in due course by other media outlets. With respect, I do not consider that this decision-making process involves the setting of precedents. Each of these proposals will be considered on its individual, stand-alone merits. I hope that provides some reassurance to noble Lords.
Lord Stevenson of Balmacara
Before the noble and learned Lord sits down, can I just quote back to him what he said only a few moments ago at the Dispatch Box?
“However, given this remains a quasi-judicial process in which I retain a decision-making role for the next 10 days, and potentially beyond, it would be inappropriate for me, or any other member of this government, to comment on the substantive merits of the case”.
Is there a slight variance with what he said there?
Lord Keen of Elie
There is no variance. It would not be appropriate for any member of the Government to comment on it, but the decision-making process will be by the Secretary of State.
Lord Birt (CB)
My Lords, I welcome the clarity and emphasis in the Secretary of State’s Statement. I fear some may argue, “Never mind the quality, feel the width”: that there are, as the noble Lord, Lord Stevenson, mentioned, many new centres of news on social media and in other places, but it is important to remember that news in the UK, whether print news or broadcast, is facing financial adversity. We see cuts on all sides and a diminution in the quality of our journalism. Does the Minister accept that these criteria need to be applied when considering this matter?
Lord Puttnam (Lab)
My Lords, first, I thank the noble and learned Lord for repeating the Statement, which is for the most part very welcome. Not frivolously at all, the two criteria the Secretary of State has chosen are precisely those for which all-party amendments have been put down for the Digital Economy Bill. I have a question relating to each of them.
The first is on media plurality. As the noble Lord, Lord McNally, has just said, it has been 14 years since we first raised this important issue. Everyone wants plurality and agrees that it is a very good idea, but at that time, we needed a framework. I apologise if the frustration is showing in my voice, but I and many others have sought agreement on that framework on repeated occasions. Ofcom was eventually asked to create a report on that, which was published as the Measurement Framework for Media Plurality on 5 November 2015, but there has been no response from the Government. Interestingly enough, the Secretary of State, in her long letter on Friday, said that one of her issues was that, before a decision could be made, there was a,
“need for qualitative assessment and perhaps further factual inquiries”.
The whole purpose of our current amendments is to help this Secretary of State and any future Secretary of State in making these judgments, based on evidence and on an agreed framework. Therefore, surely it is incumbent on the Government to make it clear that they will seek such a framework and, if necessary, wait until after these amendments have hopefully been approved by this House, and then accept them. That is what we are seeking.
The other issue, as the noble Lord, Lord Stevenson, said, is the fit and proper person test. I have looked carefully at this, because I believe we are making this unnecessarily difficult. Media companies are not football clubs, and in fact there is a very good definition set out by the Financial Conduct Authority, which covers,
“honesty (including openness with self-disclosures, integrity and reputation) … competence and capability … financial soundness”.
Can the noble Lord tell me whether there is any reason whatever why we should not adopt the Financial Conduct Authority’s definition in the Bill?
Lord Keen of Elie
I am obliged to noble Lords, and perhaps I may first respond to the noble Lord, Lord Birt, which I did not do before the noble Lord, Lord Puttnam, spoke.
At the end of the day, clearly, issues of demand and financial adversity will play a part in consideration of what is required, but that will ultimately be a matter for Ofcom in its report rather than for any decision of the Secretary of State.
With respect to the points made by the noble Lord, Lord Puttnam, again, media plurality changes not only over 14 years but year by year—indeed, more swiftly than that in the present environment. It will be for Ofcom to address matters in the present context, rather than trying to establish a framework which might limit the way in which it responds to these issues.
Lord Puttnam
That is exactly the answer that has been given for 14 years. Is it possible that for another 14 years we will use the changing environment of the media not to have a framework which can be applied by a Secretary of State when making these judgments?
Lord Keen of Elie
It respectfully appears to me that the reason that we may have had the same issue for the past 14 years is that it reflects the appropriate approach to take to these matters, rather than the straitjacket of some framework, as the noble Lord proposes. It may be that we differ on that point.
I come to the second matter of a fit and proper person. Of course, the fit and proper person test is applied by Ofcom in the context of a broadcasting licence, but we recognise that in looking to behaviour, which is relevant to this question, it would be appropriate to take into account fitness and past behaviour. Whether it is appropriate to adopt a test developed for the Financial Conduct Authority is another matter entirely, but it is clearly open to Ofcom, when approaching this matter, to have regard to how other regulatory bodies consider the questions of fitness and behaviour.
In a sense, the Financial Conduct Authority test is not peculiar to financial services: it reflects what most reasonable people would regard as the relevant litmus test to determine whether somebody is fit and proper for any post, let alone to control a broadcasting medium.
Lord Deben (Con)
I thank my noble and learned friend for the Statement. I raise again a point made by the noble Lord, Lord McNally. He pointed to the concern that one has when people say, “There are lots of other ways in which news is disseminated”, and therefore the comparison between one television channel and another is perhaps no longer as important as it once was. His point about it being an exemplar—although each case is judged on its own merits and never are other cases not referred to, at least in the mind of those making the decisions—was important.
It is also true that anyone who travels the world to those places where the media have become less and less plural realises the damage that that does to the free society. I hope that my noble and learned friend will pass on to his right honourable friend the concern of many of us that free speech and the free communication of ideas depend on multiplicity and plurality. If ever there were a case in which that has to be defended, it is this case.
Lord Keen of Elie
I am obliged to my noble friend Lord Deben. Of course, a vibrant free press and a plurality of press sources is a fundamental part of any democratic society. That is why the Enterprise Act provisions exist: to ensure that public interest considerations can be taken into account when looking at media mergers.
Lord Wigley (PC)
My Lords, perhaps the noble and learned Lord can help me with the question of potential implications of legislation going through the House. Clearly, every case has to be considered on its merits, but the Secretary of State has to undertake that consideration in the context of the legislative background. Can the fact that legislation is being passed influence the timing by which a decision is taken?
Lord Keen of Elie
It does not appear to me on the face of it that proposed legislation can properly impact in terms on the decision-making process which, in the first instance, will involve a decision in the next 10 days and, thereafter, a report from Ofcom, which I believe is normally, under ministerial guidance, to be produced within 40 days if a decision is made. It is very difficult to see how any proposed legislation can impact on that decision-making process.
Lord Lansley (Con)
My Lords, the second of the specified considerations to which my noble and learned friend referred under the Enterprise Act is for those carrying on media enterprises or controlling such enterprises,
“to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in section 319 of the Communications Act”.
That relates to the standards code, which itself is related to television and radio services. In her review of this consideration, is the Secretary of State obliged to look only at issues related to television and radio services?
Lord Keen of Elie
I am obliged to the noble Lord. I do not understand that the commitment to broadcasting standards is limited simply to television and radio in that sense, but I will take further advice on that point and, if I am wrong, I will write to him and place a letter in the Library.
Lord Razzall (LD)
I wonder whether, when the Secretary of State considers this, the noble and learned Lord will ensure that she takes into account the remark that Mr Murdoch made to your Lordships’ Communications Committee some years ago when it visited New York and he gave evidence to it, when he said that he was very puzzled why Sky News could not be like Fox News.
Lord Keen of Elie
I am not aware of the remark, but no doubt it can properly be brought to the attention of the Secretary of State.
Lord Elystan-Morgan (CB)
My Lords, the fact that the Secretary of State has seen fit to issue this statutory notice will give great satisfaction to most—if not all—Members of the other House. We well understand that these two grounds are not luxuries, not dainty sympathies, at all. They are principles that are central to the concept of liberty and the conduct of a well-ordered society. It is on that basis that we heartily welcome the Secretary of State’s decision.
Lord Keen of Elie
I am obliged to the noble Lord. I should make it clear that what the Secretary of State issued is a letter that states that she is minded to intervene: no decision has yet been made and none will be made until she has had the opportunity to consider responses to it over the next 10 days.
Lord Cormack (Con)
Will the Secretary of State bear in mind that monopoly is always inimical to freedom?
Lord Keen of Elie
I have no doubt that the Secretary of State will have that point in mind in more than one context.