I am unhappy about this order. I accept what the Minister said as to the desirability of controlling, or indeed preventing the further development of the trend, to which she referred, with regard to the level of concentration in the newspaper sector. A desirable order to prevent that trend which would not be as far ranging as this order is or purports to be could have been made. I have very much more than a doubt that the order is not valid and I will not oppose any attempt to correct the invalidity. The subsection of the Act under which the order is made provides for a procedure whereby the Act should apply, notwithstanding the size, to a proposed merger or take-over of a particular class. The exceptional nature of this has been indicated by the Minister, in so far as it requires the notification procedures of the Act to apply, irrespective of the size of the enterprise involved.
This order does not affect a particular class, it affects particular classes. It is not a legal quibble and it is not a draftsman's error that would make it possible to call in aid the Interpretation Act to convert the singular into the plural. This order affects the two distinct enterprises of printers and publishers. The only thing which unites these two enterprises, which could arguably constitute them one class, is that the printers must be printers of newspapers or publishers of newspapers. If the section is read in this fashion, the subsection of that section could render nugatory the entire provisions with regard to the appropriate size for notification.
If the mere fact of printing or publishing a newspaper, which is exceedingly widely defined in the order, is to engage in an activity entitling both different activities to be treated as of the same class, then arguably the order could provide that the carriers, the distributors and the suppliers to newspapers would all constitute one class, united by the single fact that they carried, distributed or supplied to, newspapers. This is very unlikely to be successfully argued and it is most undesirable that it should be, because it is most undesirable that the Mergers, Take-overs and Monopolies (Control) Act should apply to all sorts of transactions irrespective of their sizes. If I am correct, the order does not matter and it would hereafter be held to be invalid, but assuming it is valid the order is excessive in what the affected enterprises are prevented from doing. The printers cannot merge with or take-over the publishers or be taken over by the publishers, and likewise the publishers cannot merge with or be taken over by the printers. Much more important than that, the printers of newspapers cannot take over any other enterprises, whether involved in the business of newspapers or not, and the publishers of newspapers cannot take over or be merged with any other enterprise, irrespective of the size of the printers of the newspapers. If we are thinking of Independent Newspapers, The Irish Press, the Irish Press Group or The Irish Times this would be rather a lot of talk but it is not so, because of the definition of a newspaper.
A newspaper is defined in the order as any periodical, and that has been judicially defined as a work that comes out from time to time and is miscellaneous in its articles. The printing of any periodical that comes out from time to time whether daily, weekly, monthly, quarterly, annually or even occasionally, constitutes an enterprise which means that the printer cannot, irrespective of his size, or the size of what he is contemplating doing, merge or be taken over without notification to the Minister and without all the procedures of approval being followed. We have three evening papers, four daily papers, three Sunday papers and, according to my information, 48 provincial newspapers. All of these are affected. Periodicals intended for circulation to members of a particular trade, profession, or occupation only are excluded from the order.
Clearly the printers or the publishers of periodicals like Hibernia, Magil, Business and Finance, Irish Business, The Irish Tatler and Sketch, The Irish Bystander, Social and Personal, Image, Liberty and Our Boys, which may represent a very small segment of their activities are put in a position where they cannot be taken over, they cannot merge and cannot go into a joint venture in any form of activity which would involve them in more than 30 per cent of the voting right shares in that joint venture, without being obliged to notify the Minister. This is going much further than is required to achieve the purpose which the Minister wishes to achieve. It is unfortunate that this should be done because it is quite unnecessary. What it is desirable to achieve is to prevent the take-over of newspapers, the take-over of the publisher of newspaper and the take-over of the printers of newspapers, but not newspapers as extensively defined as they are here.
In the United Kingdom the Fair Trading Act, 1973, went about this in a much better way. I recognise the difficulties which face the Minister in this area. In the UK part 5 of the Fair Trading Act does not apply the assets test or the turnover test to newspapers: it applies instead, a circulation test. I can see that may not be quite apt for what the Minister has in mind here, and what public policy has in mind to look after. The range of circulation, according to the information I have, of provincial papers stretches from about 4,500 copies to more than ten times that. It would be very hard to do as the UK did and say that this affects a take-over by a newspaper with a circulation of 600,000 and provides a clearance only in the case of a take-over, that it affects only the take-over by a newspaper with a circulation of 600,000, or a newspaper with a circulation in excess of 25,000. Here the take-over that is affected is the take-over by a newspaper of anything, the take-over of a publisher of a periodical, which is so defined as to be much more extensive than the like definition in the UK. In the UK they are simply defined as daily, Sunday, and local newspapers. Concievably here, in certain instances periodicals would include studies, religious newspapers, and religious comment. I know that the Minister does not intend that any of these things should be affected. The law that should emanate from this House should never go further than it is required to go for the purposes of curbing the mischief it has in mind to curb.
I recommend that the Minister consider what I have said and the making of a different type of order, or if the Minister wants to take in printers, orders. The definition of periodical in particular is unhappy and excessive.