Byers' pledge to take politics out of mergers returns to haunt him

NEWS ANALYSIS Despite the Secretary of State's promise to reform competition policy, he is under attack for intervening more than his predecessors
WHEN STEPHEN Byers announced with a great fanfare last August that he had decided to do for competition policy what the Chancellor had done for monetary policy by taking the politics out of merger decisions, he must have known that his actions would be closely scrutinised to ensure they matched his words.

It is worth recalling exactly what the Secretary of State for Trade and Industry had to say as he announced that most merger decisions would become the sole province of independent competition authorities.

"Business is entitled to know that important merger decisions will not be influenced by short-term political considerations," said Mr Byers. The Government's approach, he went on, would "allow companies to plan for and take commercial decisions with confidence and efficiency. This approach has worked for interest rate decisions and I believe it is now time to consider a similar approach to merger cases".

Three months later those words have come back to haunt the Secretary of State as he faces attack for what is regarded in many quarters as the blatantly political decision to refer the pounds 8.5bn cable merger between NTL and Cable & Wireless Communications to the Competition Commission. In doing so, Mr Byers acted against the advice of his own independent competition authorities but very much in accordance with the wishes of Rupert Murdoch's BSkyB, virtually the only party to have lobbied for a referral.

Four days after Mr Byers decided to refer the cable merger (and, in a separate decision, the French group Vivendi's acquisition of a 25 per cent stake in BSkyB) the Competition Minister, Kim Howells, caused amazement by hosting a private lunch at the Department of Trade and Industry for Tony Ball, the chief executive of BSkyB, in apparent contravention of departmental rules.

In truth, Mr Byers' record was already departing from his rhetoric well before the cable decision. In the 10 months that he has been Secretary of State, Mr Byers has publicly disagreed with either the Director General of Fair Trading, John Bridgeman, or the Competition Commission on no fewer than six occasions. As one competition lawyer says: "His capriciousness when it comes to merger and monopolies decisions is beginning to make even the previous government look consistent in its approach."

Angela Browning, the Conservatives' frontbench trade and industry spokeswoman, is particularly critical of Mr Byers' intervention in the monopoly investigation into Milk Marque, the farmers' milk co-operative.

She accuses him of first vacillating over the inquiry, causing immense uncertainty and damage to dairy farmers, then overruling the Competition Commission and finally kicking the report into the long grass.

"Mr Byers does not seem to have a clear strategy, but even if he does have one it does not appear to be guided by principle. He is quite prepared to intervene when there is a political motive," she said.

Mr Byers' officials at the DTI argue that in the vast majority of merger cases, the Secretary of State has gone along with the recommendations of the competition authorities. But this ignores the point that most of these cases are neither controversial nor politically sensitive.

Until last week's NTL/Cable & Wireless referral, Mr Byers had largely been given the benefit of the doubt in the City, where it is assumed, quite wrongly, that his pledge to take the politics out of mergers will be enshrined in law any time now. In fact, there is no chance of any legislation being introduced this Parliament. Even supposing Labour wins the next election, a change in merger policy is not generally thought likely to be near the top of the agenda.

"The Byers strategy is really quite brilliant," says one competition expert. "He has created the perception that he is depoliticising merger policy when actually he has intervened more in the space of the last year than his three predecessors did put together."

Competition lawyers also point to the way in which, unseen by the public eye, successive Labour secretaries of state have begun to undermine the system of confidential advice that the Office of Fair Trading gives to ministers and to companies which are contemplating mergers.

In the past 18 months there are thought to have been four occasions on which the confidential advice of the OFT has been ignored, including at least one of the recent mergers involving electricity utilities.

It does not do for ministers to be seen to be perpetually at odds with the competition authorities. Part of the reason Mr Bridgeman's predecessor as director general of Fair Trading, Sir Bryan Carsberg, quit unexpectedly was said to be his exasperation at being repeatedly second-guessed in Victoria Street. Ministers generally learn, therefore, how to be more subtle about bending the competition authorities to their will. "Rather than overruling the OFT in public, the best solution is to lean on it in advance so that it comes up with the advice that you want to hear," says one seasoned veteran of merger investigations.

When, and indeed if, Mr Byers' reform of merger policy actually becomes law, he will still have the scope to intervene in two specific areas - defence mergers and those involving newspapers.

But, crucially, he will also retain the reserve power to intervene on grounds of "exceptional public interest" above and beyond competition concerns. The Secretary of State will have the right to determine what constitutes exceptional public interest but so far he has not enlightened anyone as to the circumstances in which he might use his powers.

As one jaundiced observer notes: "Even if they get around to reforming the system, I wonder whether anyone will notice the difference."