My Lords, I find that reply very difficult to understand. I appreciate that there will be circumstances in which it is sensible for a restrictive practice to be agreed, communicated and, in one sense, registered in order to meet certain other objectives. Those may be legal requirements, quasi-legal requirements, safety requirements or in the broadest sense in terms of people protecting investments and so forth. However, I do not think that it is an absolute defence. It is something that the authorities will need to take into account in terms of motivation and judging whether the companies involved were acting reasonably, but it is not an absolute defence. I find that part of it particularly difficult to understand and particularly undermining of the Government’s general approach on this.
In terms of cartel offences not actually being committed, from the way the Minister has described it, it looks as if, in the bidding arrangements, any restriction would be on the bidders that the client was prepared to consider. It would not depend on their technical ability or their financial viability, but could be purely arbitrary; that is, the old boys’ network. That is effectively what the cartel offence in relation to bidding was attempting to stop. You go to the usual suspects only to bid for a contract and as long as you tell those bidders that you are restricting it to them then there is no problem. It is not even committing an offence. It is not even that there is a justifiable move. It is absolutely the case that an offence is not committed.
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I can see there are restricted circumstances, for example in the insurance arrangements to which the Minister referred, where such a restriction of the impact would be sensible and necessary. However it is much narrower than the provisions of Clause 5(1) and (2) in terms of an offence not committed, and Clause 5(6) and Clause 6 in relation to the defence. I fear that the
good intention in the Government’s changes could be undermined by markets or clients having too broad an ability to actually restrict the market. This would be to the detriment of other companies and ultimately the detriment of consumers. I will withdraw in a moment because there is no point in pushing these amendments tonight, but I think the Government need to reflect on these issues.
I am going to slightly abuse the process of the House. I am sorry I have not given the Minister notice although I have given it in various other contexts. I should have raised this on the earlier group of amendments relating to concurrent regulators, specifically in relation to Ofcom. I am not expecting an answer from the Minister on this tonight, but I am giving him notice and ask if he could write to me, or more appropriately to the noble Lord, Lord Stevenson.
I raised this point in the immediate debate after Leveson, in the debate we had the other week and in Committee on this Bill. Would the Government use the opportunity of this Bill—with its section dealing with the competition powers which we are just about to leave—to address the plurality issues that Leveson raises? Leveson made the point that if you want a truly free press you have to have diversity of opinion, and to have that you need plurality of ownership. Clearly there are parts of this Bill which relate to the newspaper industry. I am sorry I did not mention it before the dinner break because it was more appropriate to the discussion of the relations between CMA and Ofcom, but I will now give notice to the Minister that we may be coming back to this. The last occasion on which the Government had an ability to deal with this was the week before recess when the noble Lord, Lord Stoneham, raised the issue of plurality with his DCMS colleague and was told that the Government are still thinking about it.
The competition section of this Bill is an obvious possibility for raising and implementing the plurality dimensions of Leveson. It has not got anything to do with the other areas which deal with behaviour and Royal Charters. Nor is it to do with the arguments about freedom of the press and regulations, but plurality is a separate section and—as I say—I have raised it on a number of occasions in various contexts. It would be useful if we could know the Government’s position on that before we reach the end of Report. I am sorry that I have done that out of order. Going back to being in order, subject to the points I have made, I beg leave to withdraw.