Sky and 21st Century Fox: Proposed Merger

Debate between Lord Keen of Elie and Lord McNally

Thursday 16th March 2017 Lords Chamber

[Lord McNally]

My Lords, I, too, welcome the Statement and the way that the Secretary of State is approaching her responsibilities in this regard. The big problem is that we have been here before. In many ways, we are dealing with an issue that we have faced many times—since the end of the war there have been five royal commissions on the press, and Leveson—and yet we still have these concerns about power and influence.

I am still haunted by the word that Mr Murdoch used at the height of the hacking scandal when he appeared before the Select Committee and said it was the humblest day of his life. I always thought that that was an odd word to use. It is not humbling, it is not regretting, it is not “I am going to mend my ways”. In fact, everything that has happened since has warned us that there has been no change in the approach.

Can the Minister tell us what were the points that Fox contested? It would be interesting to know how it contested what we thought a week ago was a very good Statement. As the noble Lord, Lord Stevenson, said, where does this sit in the timetable of other decisions to be made about Leveson 2 and about setting up one of the great prizes of Leveson—a genuine, low-cost arbitration system under Section 40? It is important that we look at this in a holistic way, not a siloed way. I also worry about the 40-day time limit. We should not put false timetables on these decisions because we will be stuck with them for a very long time.

I welcome the Secretary of State’s emphasis on her assurances about respecting her quasi-judicial authority. Will the Government also guarantee that any meeting or communication between Mr Murdoch and the Prime Minister, or their emissaries, is made immediately public, as well as the record of any meetings that do take place? There is a long record of Mr Murdoch having access outside the direct ministerial responsibilities, in all the jurisdictions in which he operates.

The wording of the Statement gives us confidence but will the Minister assure us that we are in a process which is going to satisfy somebody he will be well aware of—the man or woman on the Clapham omnibus? When we get to the end of this process, will it feel right? Will it smell right? Will it look right? If it does not, we will have created another problem that we will have to face further down the road.

[Lord Keen of Elie]

I am obliged to noble Lords for their observations on this matter. I will begin with a number of points raised by the noble Lord, Lord Stevenson; first, the question of commitment to broadcasting standards. When one is looking at broadcasting standards, one can have regard to broadcasting by way of television and radio within the statutory context but of course when actually applying a test of commitment, one is looking much more broadly at the behaviour of a particular party. That would include their behaviour in the context of news media, newspapers and other related conduct. This is not a narrowly defined issue. Commitment to broadcasting standards will embrace the conduct of a party. A party includes corporate parties and their relevant behaviour but also of course the behaviour of a controlling shareholder of a corporate party, or even a shareholder with less than a majority interest but a material controlling interest in a corporate entity. I seek to reassure the noble Lord that the question of commitment to broadcasting standards is approached on what, I suggest, is a broad basis.

With regard to plurality and the publication of reports, I understand that the last report was published in December 2010. We will publish reports arising out of this intervention, albeit I understand that they may have to be redacted to some extent on the grounds of commercial sensitivity.

On the question of a fit and proper person being undefined, clearly there is a crossover between “fit and proper” and the question of the commitment to broadcasting standards. As I understand it, that is why Ofcom has expressed confidence in being able to respond to the Secretary of State by reference to not only commitment but the fit and proper test that applies under the Broadcasting Acts of 1990 and 1996.

With regard to Leveson part 2 there is little I can say, as the noble Lord, Lord Stevenson, anticipated, in view of the undertakings given to the court pending the final disposal of the application for judicial review—an application, I would add, which was made not by this Government but against them. As regards the powers of Ofcom under the 2002 Act, it has expressed the view that it has sufficient powers. But I note that it does not, in the context of discharging its duty with regard to fit and proper under the Broadcasting Act, have the power to compel the attendance of witnesses. Nevertheless, where it requests their attendance or the provision of documents and witnesses and documents are not provided, that has a material bearing upon its assessment of commitment to broadcasting standards. Somebody who is not prepared to answer simple questions about how they would discharge their obligations as a licensee would throw into doubt whether they have a true commitment to those standards. That may appear a little circular to the noble Lord but it is essentially an effective mechanism by which Ofcom can control this process.

Coming to the observations of the noble Lord, Lord McNally, I am not going to enter into a debate about the definition of “humbling”. Nevertheless, it appears on the face of it that what occurred had hit home not only with the corporate structure—the shareholders—but with individuals who held those shares. It simply would not be appropriate for me to identify the contested points made to the Minister at this stage. The Secretary of State is going to carry out a quasi-judicial process, on the advice of Ofcom and the CMA. We have to await the outcome of that process. The noble Lord mentioned the 40-day time limit. Again, that is a statutory provision and Ofcom is confident that it can adhere to that time limit. We therefore feel that it is appropriate.

As regards guarantees with regard to meetings, I am not aware of any meetings being planned or proposed by Mr Murdoch. A quasi-judicial decision will be made by the Secretary of State and the noble Lord, Lord McNally, may accept my reassurance that there is no question of inappropriate contact from any party with the Secretary of State pending the determination of that decision. With regard to the gentleman and lady on the Clapham omnibus—as originally invented, I believe, by Lord Denning—we will have to await their response to this process. But we have confidence in Ofcom and in the CMA, and we will see in due course whether it is necessary to take this on to a phase 2 inquiry at the instance of the CMA. I am obliged to noble Lords.

Sky and 21st Century Fox: Proposed Merger

Debate between Lord Keen of Elie and Lord McNally

Monday 6th March 2017 Lords Chamber

[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.

Imprisonment for Public Protection Sentences

Debate between Lord Keen of Elie and Lord McNally

Tuesday 11th October 2016 Lords Chamber

[Lord Keen of Elie]

In the past year, 512 have been released into open conditions.

[Lord McNally (LD)]

My Lords, as the Minister who saw the abolition of IPPs through this House, can I assure the Minister that it was the wish of Parliament at that time to see an end to IPPs? His replies today show the same immobility which so frustrated me as a Minister. There will be IPP prisoners well into the next decade unless Ministers and the Parole Board take advice from those informed with a welter of information. With his reputation, I ask the Minister to take a close look at some of the facts he has given to the House today, because he will find that they mask the fact that many thousands of prisoners will remain under these schemes long after Parliament intended them to end. The reason why so many distinguished lawyers now call for this to end is that it is not only an injustice to the individual but is now doing real, serious damage to our criminal justice system.

[Lord Keen of Elie]

The facts are the facts. There is mobility and we are moving in the right direction. There is an increasing reduction in the number of IPP prisoners who are held. Let us remember that the test is whether these prisoners will represent a high or very high risk of serious harm to others when they leave prison. There is a necessary balancing act between the interests of society as a whole and the very great problem which these dangerous prisoners present. We are conscious of that and have provided further resources to the Parole Board. In light of the Osborn decision in the Supreme Court, we have taken forward the requirement for oral hearings, and we are doing everything in our power to ensure that this prison population is reduced. Let me add one further point. In 2012, when the IPP sentence was abolished, there were put in its place some seriously increased sentences for dangerous offenders, including the extended determinate sentence. If those sentences had been applied to this present cohort, it is not easy to say that they would be released in the foreseeable future.