§ 3.40 p.m.
§ The Chairman
The first Amendment, in page 2, line 30, leave out from "Act" to end of line 32 and insert:the Monopolies and Restrictive Practices Commission shall constitute a Tribunal to be known as the Restrictive Practices Tribunal",in the name of the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas), is out of order because it would be outside the terms of the Money Resolution.
I shall, therefore, call the second Amendment in the hon. and learned Gentleman's name, and there are 12 other Amendments which go with it and all of which deal with the same point.
§ 3.49 p.m.
§ Sir Lynn Ungoed-Thomas (Leicester, North-East)
I beg to move, in page 2, line 31, to leave out "Court" and insert "Tribunal".
This Amendment is one of the most important to the Bill.
§ Sir Lancelot W. Joynson-Hicks (Chichester)
On a point of order. I regret interrupting the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas), but I know that he is aware that this matter was likely to arise. I raise this point of order in order to seek your ruling, Sir Charles, on the question of whether or not this and the series of Amendments to be taken with it are also out of order.
My reason for doing so is similar to that which you found in regard to the first Amendment, namely, that it is not within the terms of the Money Resolution—because it is quite evident that the purport of the Amendments is to translate the provision contained in the Bill with regard to a legal court into a provision for a lay tribunal.
The immediate Amendment which we are discussing is a paving Amendment which alters the name from "Court" to 400 "Tribunal" and paves the way for subsequent Amendments which delete the provision with regard to judges; the provision that it shall be a court of record and, I have no doubt, the provisions contained in Clause 3, which will probably be argued against upon the Question, "That the Clause stand part of the Bill."
The Money Resolution makes provision for the registration and judicial investigation of certain restrictive trading agreements; and subsequently it makes provision for the payment of remuneration to appointed members of a new Court to be constituted under the said Act.
The question is whether a judicial investigation can be carried out under the auspices of a lay tribunal. I submit that it cannot. The nature of what is or is not judicial was not quite clear to me, and, accordingly, I took the precaution of arming myself with a quotation from Murray's English Dictionary, which says that the word meansOf or belonging to judgment in a court of law or to a judge in relation to this function; pertaining to the administration of justice; proper to a court of law or legal tribunal; resulting from or fixed by a judgment in court".I referred, also, to the Oxford Shorter Dictionary, which gave an almost identical definition with which I shall not trouble you, Sir Charles. It did, however, add this:and (b), also figuratively"—I do emphasise the word "figuratively"—enforced by secular judges and tribunals".A Money Resolution cannot, I think, be interpreted by the House of Commons in a figurative manner. I am quite sure, Sir Charles, that you will be the first to uphold that contention. I therefore submit that not only does the Long Title, for which no Amendment has been put down, relate solely to judicial proceedings, but, also, that the Money Resolution provides only for judicial proceedings and not for the constitution of any lay tribunal or for any proceedings by a lay tribunal.
§ The Chairman
I thank the hon. Member for Chichester (Sir L. Joynson-Hicks). He told me he would raise this point. My advisers did advise me that it was possible, by a subtle legal definition, to rule this and the following similar Amendments out of order. I, too, referred to the dictionary. I am not, of 401 course, trained in the law; but I am, I hope, trained in common sense. I find in Chambers' Dictionary that a tribunal is "a court of justice". I think that the Court referred to in the Money Resolution would come under that definition. The hon. Member did refer to a figurative interpretation; but I have to interpret it, and I think it is in order.
§ Sir L. Ungoed-Thomas
After that curtain-raiser, as it were, perhaps I may be able to come on to the substance of this Amendment. I will observe that we are, of course, familiar not only with courts of law but with industrial courts as well. I should have thought, therefore, that there is really no difficulty whatever about this Amendment. The Amendment itself proposes that a tribunal in place of a court of law, using the term now sanctioned by the hon. Member for Chichester (Sir L. Joynson-Hicks), should be the body to deal with the question whether or not a restrictive practice within the ambit of this Bill should be prohibited or not.
A very important constitutional issue is raised. I was glad to see, a moment ago, that the Attorney-General was present. In fairness to him, I understand he has an appointment and is on duty in the House and will soon be returning. We shall certainly look forward to his observations upon the constitutional aspect of this Amendment. The question really is whether or not the matters to be considered by this body, using a neutral term for the moment, constitute a justiciable issue. That is the fundamental consideration to which I wish to address myself.
We might, of course, have tribunals of different kinds. There might be a tribunal answerable to a Minister; and the President of the Board of Trade, in his Second Reading speech, indicated that he considered the issue which we are raising in this Amendment would really be an issue between an administrative tribunal answerable to a Minister or a court forming part of the judicial system of this country. I agree that that is the fundamental issue.
The tribunal might, as I say, be a tribunal answerable to the Minister. If it is a tribunal answerable to the Minister, it might—as we would prefer and as we indicate in our first Amendment on the 402 Notice Paper—be the Monopolies Commission reconstituted in the form of a tribunal. That would have been our first choice, because, in the Monopolies Commission, we should have secured the advantage of a vast accumulation of knowledge and experience dealing with these matters. Failing the Monopolies Commission, we would then suggest another tribunal, as in this Amendment, answerable to a Minister.
Subsidiary questions might then arise, when the tribunal is answerable to the Minister, as to whether or not the Minister could be made to account in this House for the decisions which he takes on the recommendation of the tribunal, by method of Question, by method of Prayer, or by any other method. Those are, of course, subsidiary questions, and I am not going to address myself to them now. They are all questions analogous to questions which arise in the case of a court of law, as to whether or not there should be a right of appeal, whether there should be appeal on fact or on law, how far the appeal should go, and so on. They are, though important questions, essentially subsidiary questions, which would only arise after we have taken our fundamental decision on principle as to whether there should or should not be a tribunal.
I have referred to a tribunal answerable to a Minister. There is a possibility, of course, of a tribunal which is not answerable to a Minister. We prefer, of course, a tribunal which is, and that is what is contained in this Amendment. None the less, it would be quite tenable to hold that it would be undesirable to drag judges into what we, at any rate, consider to be political issues. Therefore, if we are to have this matter put outside the responsibility of a Minister it is preferable not to drag the High Court judges into what we consider to be essentially political issues. There is that possibility, too.
The other possibility, of course, is the court of law, which is dealt with elsewhere. One can argue the advantages or disadvantages between court or tribunal answerable to a Minister or not answerable to a Minister; one could argue about the length of time proceedings will take, and matters of that kind; but the fundamental question here is whether or not what has to be considered 403 by this body is a justiciable issue. For myself, I say quite frankly, and without any hesitation, that if there were in this Bill, as a test for whether or not a restrictive practice should be condemned, a justiciable issue, then certainly that ought to go to a court of law. If there is no justiciable issue but a political or ecomonic decision, equally that ought to be the responsibility of a Minister who is responsible to the House. The question turns on whether or not there is a justiciable issue.
There is in the Bill, not for the purpose of testing whether a restrictive practice is to be condemned or not, but in other parts of the Bill, justiciable issues—in Clause 5, for instance—the issue whether an agreement is within the Clause or not. That is obviously a justiciable issue, and we have not suggested that it should be a matter for a tribunal's decision; quite obviously not. It should be a matter for decision by a court of law.
In Clause 19 is a provision forbidding boycotting. The President of the Board of Trade has laid it down in terms which quite clearly are a definition of what a boycott is, and they can be applied by a court of law. It is clearly a justiciable issue. We have not put down any Amendments that it should be the subject of consideration by a tribunal in any way. We have put down an Amendment that a tribunal responsible to a Minister should be substituted in place of a court of law because the question of whether or not the restrictive practice should be condemned is not a justiciable issue. That, of course, turns upon Clause 16, to which I shall refer for the purpose of considering whether or not there should be a tribunal or a court of law.
We raised this matter on the Second Reading and we had a very delightful reply from the Parliamentary Secretary. I cannot say that we had a serious answer to the constitutional difficulties that were raised on the Opposition side in the course of that debate. The substantial answer to the case which we made on the Second Reading came not from inside the House of Commons but, three days later, from a speech made by the Lord Chancellor after a dinner in Glasgow. He made a very important speech and 404 dealt, as he always does, with candour and clarity, with the difficulties which had been raised in the Second Reading debate. We shall deal with the speech, as I have informed the Attorney-General.
I am approaching now this question of the justiciable issue, which does not turn on whether a thing is reasonable or not, as has been suggested in some quarters. It has been said that the courts of law are accustomed to deciding whether a thing is reasonable or not; of course they are. Whenever they assess damages they assess what is a reasonable amount. That argument begs the question, which is the ambit within which reasonableness has to be exercised. If it is within a justiciable issue, then the courts of law exercise reasonableness, but no one will suggest that because there is an exercise of reasonableness in Budget decisions therefore Budget decisions are things which ought to be submitted to a court of law. Of course not. Therefore, it begs the question.
Then it was suggested by the Parliamentary Secretary that because we are dealing with individual cases and not generally it was appropriate to a decision by a court of law. The same consideration applies For instance, the Board of Trade deals with individual decisions on grounds of national interest when it considers rationalisation schemes within the Income Tax Act, as is referred to in the Bill. That is a matter for decision by the Board of Trade. There are many individual cases which may be matters for consideration by a court or matters for political consideration; merely to say that because they are individual cases they are matters for decision by a court of law is manifestly not acceptable.
I leave these considerations aside. It depends not upon reasonableness or unreasonableness, or upon whether or not it is an individual case, but essentially upon the nature of the issue that has to be considered by the body that we set up. We know that the function of the court of law is to apply the general rules of law to the facts of the particular case. The rules and the definition are there and the court interprets the definition as part of its function in applying it to the facts of the case. The law therefore applies equally to everybody. It is an essential part of the rule of law that we have in this country that there is a general rule 405 which courts of law apply indiscriminately to the facts of the particular case. The only decision which the court makes is on the question, Does it or does it not fall within the definition which is laid down, such as we have in Clauses 5 and 19, but not, as I shall endeavour to show in a moment, in Clause 16?
The political decision, on the other hand, is an economic decision by the Government and turns upon expediency, on the question whether it is expedient to do this or that, and whether the balance of advantage is here or there. Essentially, it is a case of exercising judgment on the balance of advantage. It is an entirely different approach from the approach by a court of law. We shall be coming to Clause 16; let us just see what it does.
Clause 15 lays down that the court has jurisdiction to decide whether particular practices are contrary to the public interest, and if they are they can be prohibited in ways laid down in the Bill. Clause 16 establishes that a restrictive practice is deemed to be contrary to the public interest unless the court is satisfied otherwise. Then we have seven cases to be considered, in paragraphs (a) to (g). The person responsible for the restrictive practice, the "defendant" I may call him for convenience, has to establish that the practice comes within one or other, or within more than one or other, of those seven "qualifications," as I shall call them.
They involve questions of economic decision of considerable importance, but I shall not spend time on them now. We shall come to those qualifications in paragraphs (a) to (g) in detail when we reach Clause 16. We shall consider their effect, their scope, whether they are economic and how far they can be made the subject of judicial decision. What I want to do at the moment is to concentrate on what I consider to be the main issue.
After the defendant has established one or other of the qualifications in Clause 16, the Court has then to decide whether or not—and I paraphrase—the restriction has operated, or is calculated to operate to an unreasonable extent to the detriment of competitors, consumers or the public or, as it goes on:… otherwise to the detriment of the public.406 That is an extremely wide phrase meaning, as I see it, contrary to the public interest.
What the Court has to decide by the last part of Clause 16 is whether, on balance, the defendant's restriction—he having qualified by coming within one of the cases (a) to (g)—is or is not contrary to the public interest. That is essentially a political decision. That is not a decision for a court of law at all—to decide whether, on balance, something or other is or is not contrary to public interest. That is a decision which this House has to take constantly. In everything it does it decides that.
This is the place and the Government is the body to do it—to take decisions as to whether or not something is contrary to public interest. It is essentially a decision on the balance of advantage to the public as a whole and that, of course, is a political decision. We are not here applying a general rule that is laid down. We are not here dealing with a case in which a court is merely inquiring whether or not the case is within a general rule as established, as we have in Clause 5 and Clause 19. We have an entirely different function in Clause 16.
Let me come, as I must, in some detail to the Lord Chancellor's explanation of Clause 16—if I may say so with respect, a most important speech upon this Bill. The Lord Chancellor was speaking at Glasgow on 9th March, and what I have here is the report of that speech in The Times of 10th March. It is to that report that I shall refer in some detail. I see that the President of the Board of Trade has a copy of it, and if he wishes me to read any part of this column on the way through I will gladly do so. I am most anxious to deal with this fully and with the utmost candour. To my mind, this is a matter which transcends any kind of party issue at all.
Let me deal first with that part of the report, which is headed "Court and Parliament." The Lord Chancellor says:The Government, in the Restrictive Practices Bill, had rejected prohibition"—That is, prohibition of the restrictive practices. He goes on—and we come to the important part:They had decided that this reform must be enforced through a judicial body. He and his colleagues had spent anxious weeks trying to work out a truly justiciable issue to place before that body.407 What appears from that is this—and I hope that I am not being in any way unfair. The decision was made to have a judicial body. Having made that decision, an effort was then made to make the issue for that body as justiciable as possible, instead of deciding first of all what the issue was that was to be tried and then deciding the appropriate body for dealing with it. That, in our view, is the diametrically wrong approach to the problem presented by the Bill. The Lord Chancellor goes on:It was not for a court to decide what should be the commercial and economic policy of the country; that was for the Government and for Parliament.We all agree with that, of course. The Lord Chancellor continues:That was why the Bill provided that certain defined practices were presumed to be contrary to the public interest; it would not be open to the court to substitute its own views for those of Parliament.4.15 p.m.
May I pause there for a moment? What Clause 16 does is merely to raise a presumption—to put the onus of proof upon the person whom I call the defendant. It raises a presumption, and puts the onus of proof on one party to a litigation instead of on another. That is utterly irrelevant for the purpose of deciding the nature of the issue that has to be tried by the body which has to do the trying. I hope that that is perfectly clear. What we have in Clause 16, then, is the shifting of the onus of proof from the person whom I may call the plaintiff to the person whom I may call the defendant.
Therefore, it is not correct, with great respect, for the Lord Chancellor to say that it would not be open to the Court to substitute its own views for those of Parliament if, by that, he meant the views of the Court for those of Parliament on the issues to be tried, with whose nature we are concerned. All that Parliament does by Clause 16 is to put in the qualifications (a) to (g) to say that the onus of proof shall be on the defendant, but it does not define in any way the residuary, the final decision as to where the balance of public interest lies, which we say is essentially a matter—as the Lord Chancellor himself indicated a little earlier in his speech—for parliamentary and governmental decision and not for the decision of a court of law at all.
408 The Lord Chancellor goes on:The Bill put the onus of displacing this presumption fairly and squarely on those who claimed that the practice was within exceptions which they believed to be just.I agree that it does.That did not mean that it was open to them to persuade the court to say, 'In all the circumstances we think this practice is desirable'. That would place on the court the very responsibility which should be on the Government and on Parliament.But it is placing on the Court the very responsibility which the Lord Chancellor said should be on the Government and on Parliament. That is exactly what Clause 16 does. What Clause 16 does is to say that the Court must decide whether, on balance, in all the circumstances—having qualified under (a) to (g)—is the practice, or is it not in the public interest? That is exactly the decision which the Lord Chancellor himself said should be a decision for the Government and for Parliament. He then deals with some of the provisions in (a) to (g), and unless the President wishes me to read the next two paragraphs of the report I will skip them, because I do not think they are relevant, either on one side or the other, to the present point that I am making.
After that, the Lord Chancellor says:The claimants ought not to succeed merely because they could come within one of the seven categories.That is to say, categories (a) to (g).Their practice might still, on balance, be undesirable, and the Bill still put on them the onus of proving that the use of the practice had not been—generally speaking—unreasonably detrimental to the public.That, of course, is exactly the point I make. I entirely agree. That is exactly what the Bill does. It says that, on balance, after qualifying under (a) to (g) it might be detrimental to the public—it might be contrary to the public interest. But that is exactly what the Lord Chancellor has himself recognised earlier in his speech is a matter to be decided by Parliament and by the Government. As I have said earlier, if this were a justiciable issue then, of course, a court of law should be the place where it should be decided, but it is quite clear on an examination of Clause 16—indeed, it is quite clear from the Lord Chancellor's own speech—that this is not a justiciable issue at all but an issue which comes within the kind which he himself says 409 should be decided by the Government and by Parliament.
§ Sir L. Ungoed-Thomas
Perhaps I could finish with the quotations from the Lord Chancellor's speech, because it would be more convenient to have it altogether, and then I will willingly give way to the hon. Member.
The quotation goes on:He was aware that this involved, to some extent, the formation of an economic judgment by the Court.Of course, it does, and it is not a decision which should be a decision by a court of law at all. Then, the Lord Chancellor says:He did not see how that could be avoided.It is no justification for him to say, "We cannot see how it can be avoided", because, as I understand, what he is, in effect, saying is that this is to some extent an economic decision, and it is regrettable that it should be put before the Court, but it cannot be avoided.
The real difficulty is the difficulty of the first paragraph, which I have already read from the Lord Chancellor's speech. The difficulty is that the Government made up their mind to have a court of law and then afterwards tried to cram into it something which they hoped would be as justiciable as possible. The Times report goes on:The court would not consist purely of lawyers; judges would sit together with men who have got experience of the questions they would be considering; and he could not see why such a body should not, within the boundaries drawn by the Bill, form an impartial and objective judgment on these questions.Of course, it will form an impartial and objective judgment. They will be most responsible and highly qualified people, and, of course, they will exercise an objective and impartial judgment on these questions, but that is not the point.
The point is whether, in exercising their impartial judgment, they are exercising it upon a matter which is truly a justiciable issue. Why have these experts? They are not there as assessors to help a judge, because they are being appointed as members of the Court because of their knowledge and experience of the matters to be dealt with. Are they to use their 410 expert knowledge and experience of matters, or does everything have to be proved before the Court, as normally happens in a court of law, and judgments and decisions made purely on the facts as proved in that Court, without regard to the cumulative knowledge which these gentlemen who are members of the Court will have?
This is not really a matter suitable for justiciable decision according to the rules and the ordinary way in which we conduct matters in the courts of law in this country at all. It is a matter of a decision to be made from the greatest accumulation of knowledge and experience which is available, and the greatest accumulation of knowledge and experience available in this country is only available, in the last resort, to the Minister. It is essentially a governmental decision.
It is for all these fundamental reasons that we have put down these Amendments. There are other considerations, as I have already indicated, but that appears to me to be the fundamental difference between us. I have no doubt that my hon. Friends and myself would not have put down the Amendment wishing to substitute a tribunal for the Court if we were satisfied that the issue which has to be tried is a justiciable issue.
I should like to make one other short reference to The Times, if I may. In the course of the last few months, we have had very valuable contributions to our discussions from the Manchester Guardian, The Times and Economist, and I think we have all benefited from these articles. There was a very important article in The Times of yesterday, which I am sure we have all seen, and I merely draw attention to it because part of it is related to the point that I am making about the speech made by the Lord Chancellor.
The Times article, towards the end of the third paragraph, refers to the Amendment to Clause 16, in page 14, line 35, which would provide that, notwithstanding the provisions of paragraphs (a) to (g), a restriction which was not proved to fulfil any of the conditions described in those paragraphs, shall only be deemed contrary to the public interest if the Court decides that, on balance, it operates, or is calculated to operate, to the detriment of the public. The effect of that 411 Amendment, as I understand, is that it shifts the onus of proof. It does nothing else but shift the onus of proof. It does not affect the nature of the issue to be decided under Clause 16. All we have in this Amendment is the shifting of the onus of proof.
Let us now see what The Times says, because apparently The Times went somewhat further than that. It seems to me, with great respect to The Times, that the writer has not understood the latter part of Clause 16 in the same sense as the Lord Chancellor understood it, and certainly not in the same sense as I understand it. In referring to this Amendment, The Times said:Any arrangement passing any of the seven tests would get exemption unless it operated 'on balance' to the detriment of the public. Any amendment of this sort would simply saddle the Court with the duty of re-judging the balance of advantage on general grounds.Then, it goes on, under a misconception, I think—That is a judgment which Parliament has already made.For reasons which I have given, that is not so.This is not a judgment which a Court could properly make.The point I am making is this. The balance of advantage is what has to be decided under Clause 16 as it stands, and the Amendment to which The Times refers merely shifts the onus of proof and does not affect the nature of the question that has to be decided; namely, the political and economic balance of advantage, and that, The Times says, is not a judgment that a Court should properly make. That is in line with the view taken by the Lord Chancellor on general grounds. We say quite clearly that this is a matter of decision in the public interest which is not a justiciable issue at all.
It is an issue which ought to be decided in the last resort by the Government and by Parliament. Of course, the Government should have the assistance of a tribunal. Of course, there should be an impartial inquiry into it, and no President of the Board of Trade, or whatever other Minister is involved, will make his decision on the recommendations of that tribunal except after very serious consideration in the interests of the country 412 as a whole. That is the only way in which this matter should be decided, and not by pushing off the responsibility on to a court of law.
Yesterday, we had a very full discussion on the duties of the Registrar. I think I am correct in saying that every speech from both sides of the Committee pressed for the Registrar being answerable to the Ministry and to this House of Commons. Despite the fact that every single speech from both sides of the Committee was directed to that point, the Minister refused to do so. Here, the Minister takes a similar kind of action. He is pushing on to a court of law, which is not in any way answerable to the House of Commons, responsibility over this vast field of economic decision.
It is, of course, a profoundly important constitutional issue. We are passing on to a Court a responsibility for exercising an economic and political decision. However eminent that Court may be, that is not a proper constitutional step to take. It is contrary to the whole of our democratic constitution, and it is for that reason, basing it as we do on the view that Clause 16 does not set up a justiciable issue, and for that reason primarily, that we have put down these Amendments.
§ 4.30 p.m.
§ The President of the Board of Trade (Mr. Peter Thorneycroft)
First, might I say how much I appreciate the manner and, if I may say so without presumption, the clarity with which the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) has put forward what is an important case. The case is clearly not without substance. Believe me, we ourselves have very carefully weighed the two arguments.
The issue is whether we should have an administrative tribunal or a court. I do not want to go back on the point of order which was raised, but I should like to say that I am glad that we are having this discussion. It is clear that we must have such a discussion at some stage in the Bill, for otherwise it would be as if we had a ghost hovering over all our deliberations on subsequent Amendments. It is much better to have the discussion now, to take it quietly and decide what the issue is. We can then have any vote which is necessary, and afterwards we can proceed upon whichever basis the Committee decides.
413 I am also glad of another thing which the hon. and learned Gentleman made clear. There are really only two choices here. There is not really a third choice. Either we have a court of law, which is part of the judiciary, which is in that estate of the realm, which has the powers and privileges of the High Court, including powers with regard to contempt, and so on, or we have a tribunal which is answerable to a Minister.
The hon. and learned Gentleman touched for a moment on the possibility of having something in between those two, but he dismissed it almost as soon as he had mentioned it. Anybody who contemplates the third possibility even for a few moments will dismiss it. The House may hesitate before it hands over any part of its responsibility in economic affairs to the judiciary for a decision. How much more would it hesitate before it handed it over to something which was neither the judiciary nor Parliament? Consequently, we can dismiss that possibility altogether, and the choice is, therefore, between a court of justice and a Minister.
I am, of course, familiar with the case in favour of the administrative structure. Economic matters are ultimately a matter for decision after argument in the House of Commons and subject to the responsibility of a Minister. I am also familiar with the other point put to me, whether it is right to hand over to the courts economic judgments which might be matters of controversy.
Let us be clear what it means if we keep it with the Minister. It must be more than a formality. The hon. and learned Gentleman said he would not enter into what happened afterwards—neither will I—with regard to whether there should be negative Resolutions, and so on, but something has to happen. If it is with a Minister, the Minister has to be challengeable in the House. It is the Minister who has to have ultimate responsibility for all the decisions.
I wonder whether right hon. and hon. Gentlemen opposite have contemplated the size of the task which they are seeking to channel through one Minister. We have only to look at the size of the report of the inquiry relating to tyres, and that is only one of hundreds of cases which may be dealt with. The Minister 414 has many other preoccupations, including those concerned with export trade, import trade, the British Standards Institution, company law and patents, and so on, and it would mean that in this instance the Minister would be part-time. Let there be no mistake about it; only a small part of his time would be taken up with the detailed study of the mass of complicated evidence involved.
§ Mr. Thorneycroft
I must finish my point first and then I will give way.
I want the Committee to be clear about the choice. On the one hand, it is having a part-time Minister dealing with a whole mass of matters concerned with restrictive practices, rings and the rest, all this being channelled through one Minister. On the other hand, the choice is three full-time courts whose time, energy and resources would be wholly devoted to the matter.
Remarks have been made about slowness. Nobody who looks at the matter impartially for a moment can have any doubt as to the speedier method of dealing with the matter. The idea that one can have speed when these massive reports are channelled one at a time through a bottle-neck does not bear examination for a moment. I have other arguments about the merits of the case, but on the question of speed, which has been referred to over and over again by hon. Members opposite, I must say that there is no question whatever where the main benefit lies. If hon. Members want speedy action, they must not try to channel everything through one Minister with every decision open to Parliamentary debate and challenge. They should set up proper judicial machinery with men who are skilled in the matter and will devote their whole time to the task.
§ Mr. Turner-Samuels
Now that the right hon. Gentleman has had his say on that, I should like to put to him a consideration with which he has not dealt. He has mentioned that the House has two choices, one being a court and the other being a tribunal answerable to the Minister. There is a very important third choice which is buttressed by the Jacobs Committee and the Report of the Royal Commission—
§ The Temporary Chairman (Mr. Bowles)
Order. The hon. and learned Gentleman must resume his seat when I am on my feet.
§ The Temporary Chairman
The hon. and learned Gentleman was very slow in doing so. He is intervening now, but he must not make a speech at this stage.
§ Mr. Turner-Samuels
I did not intend to make a speech. I wanted to make my question to the Minister quite clear. Why should it not be possible for Parliament to decide what is an illegal agreement in this context? That is what the Jacobs Committee favoured, and it is precisely what the Royal Commission explicitly proposed. Would that not cut out the delay, the complication, the examination and all the difficulty that the Minister says he would have in dealing with the matter?
§ Mr. Thorneycroft
The hon. and learned Gentleman has put a fair point. There is a case for having no inquiry whatever, and it is fair to put to me that that is a possibility. However, it is not a possibility that we are considering at this stage. We may later discuss whether certain things should be ruled out or the order in which they should be dealt with, but that is not relevant to the present discussion. The present discussion is on the basis, which is shared by most hon. Members, that some inquiry is likely to have to take place at some stage.
If we have some inquiry, we are asking ourselves whether it should be done by an administrative tribunal responsible to a Minister or by a court. I hope that the points that I have made so far will tend to lead the Committee to the view that if we want speed there is no question where the advantage lies, and it is in having three full-time courts wholly concerned with the matter. We ought not to make it a sort of part-time occupation for the President of the Board of Trade.
Then there are other considerations which we have in mind. The hon. and learned Member proposed an administrative tribunal consisting of fourteen lay members. That is the essence of the proposal. As I understood him—he will correct me if I am wrong—they would not be just inquiring at large. They 416 would have some criteria placed before them. I am not asking the hon. and learned Member to accept the full Clause 16 at the moment, but something like Clause 16 would have to be put down as the sort of criteria to guide them.
We have the fourteen wise laymen selected and they are told to make judgments as to whether the onus of proof is or is not discharged on these particular matters. If I may say so with great respect and deference to the hon. and learned Member, that sounds a most peculiar arrangement. It is like having a jury without any judicial guidance whatever. However we drafted Clause 16 the criteria would not be simple. They are not matters on which any layman can express an opinion whether the onus is being discharged or not. To loose a lay tribunal on them without any judicial guidance whatever seems to me a most extraordinary arrangement.
§ Sir L. Ungoed-Thomas
We do not want any misunderstanding on this. I am sure the right hon. Gentleman wishes to be perfectly clear, as I tried to be perfectly clear in dealing with this issue. The right hon. Gentleman referred to fourteen wise laymen, but I presume that on any tribunal like this any President of the Board of Trade would be sufficiently wise to have an efficient lawyer as chairman of the tribunal, as, in fact, we have on the Monopolies Commission, which we propose should be the first tribunal.
§ Mr. Thorneycroft
That does not altogether satisfy me. These decisions would go through a lay tribunal to a Minister. Are we to put the Minister into the position of trying to judge whether the onus under Clause 16 (g) is, in fact, being discharged or not and how far it is justiciable or not. If we are to attempt to lay down something as near justiciable as even the hon. and learned Member admits Clause 16 to be, the right authority to judge that is a court, not a lay tribunal.
I can see the case for a lay tribunal if the inquiry were, in fact, at large. The logic of the case is that the choice is between a court and a lay tribunal on the lines of the present Monopolies Commission inquiring by an inquisitorial arrangement at large. This present proposal is a hybrid arrangement which would hand over responsibility—not to 417 a court, but to a lay tribunal, and would get the worst of every possible world. We have weighed these matters very carefully. The hon. and learned Member will forgive me, but I am obviously not going to debate Clause 16 at this stage; we shall have opportunities to do so later. We believe that in that Clause we have succeeded in setting out what we conceive to be a justiciable issue.
The hon. and learned Member referred to the speech of the Lord Chancellor. I did not see anything improper in the phrase of the Lord Chancellor that we had sought to work out a justiciable issue. If we have a court it is very right and proper that we should try to draft the issue to be put before it in a form which in fact is justiciable. I am conscious, as is the hon. and learned Member, that these are matters which involve not only issues of fact and law, but also to some extent of economic judgment as to where the public interest lies. I admit that at once. That is something the Court has got to decide, but that is not a novel consideration for a court. It is not the first time that the courts of this country have been called upon to judge the public interest.
I should like to refer to one of the authorities on this matter. The hon. and learned Member, I know, is familiar with these cases. I have them available if he should wish to refer to other sections than those I quote. The leading case in this connection was the Nordenfelt case (1893) 1 Chancery. I refer to the judgment of Lord Justice Bowen, in which he said:I can conceive cases in which the absolute restraint might, as between the parties, be reasonable, but yet might tend directly to injure the public; and a rule founded on public policy does not admit of any exception that would really produce public mischief; such might be possibly the case if it was calculated to create a pernicious monopoly in articles for English use—a point I desire to leave open, and one which, having regard to the growth of syndicates and trusts, may some day or other become extremely important.4.45 p.m.
The Committee might agree that although Mr. Justice Bowen had considerable foresight in 1893 he was not disturbed by the courts having to make a judgment on public interest. His statement was approved in the Court of Appeal by Lord Justice Herschell, who said: 418I think a restriction applying to the entire kingdom may in other cases be requisite and justifiable. I must, however, guard myself against being supposed to lay down that if this can be shown, the covenant will in all cases be held to be valid. It may be, as pointed out by Lord Bowen, that in particular circumstances the covenant might nevertheless be held void on the ground that it was injurious to the public interest.I am not citing these cases on the merits or the facts of the cases involved. What I am saying is that the courts of England have not been frightened about having to judge the public interest.
§ Sir L. Ungoed-Thomas
Is the right hon. Gentleman aware that when that case went to the House of Lords, Lord Parker pointed out that, in fact, no decision had ever been taken by any court on the ground of injury to the public?
§ Mr. Thorneycroft
It may be that no such decision had been taken, but it may be that the law should be altered as to what is or what is not the public interest. [HON. MEMBERS: "Oh."] One moment. The point I am making, which I say on these judgments is incontrovertible, is that the courts were not afraid to judge the public interest on these matters. That was said in the clearest possible terms by Lord Justice Bowen and was supported in the House of Lords.
§ Mr. Turner-Samuels
What Lord Herschell, then Lord Chancellor, said in that case was quite a different matter from the purpose for which the President of the Board of Trade is using the statement. There was a clear duty on the court to decide that case. Nobody denies that as the law stands—of course it is judge made law at that—the courts have the power to decide matters of public policy or public interest, but the Lord Chancellor was not saying there that a court of law as against a lay tribunal is the proper or the better tribunal to judge the matter. He was merely dealing with an issue which he had to decide and he could not evade it.
§ Mr. Thorneycroft
That is a perfectly fair comment. Nobody in those cases said that Parliament was an improper body to decide these matters. Why I am citing these cases is that it was clearly laid down there that the courts of this country are competent to decide these matters of quasi-economic interest in which the public interest is directly involved.
§ Mr. Thorneycroft
The hon. and learned Gentleman shakes his head, but as he raised this point, I think it right to answer it. Lord Parker was not a Member of the House of Lords when it dealt with that case, so he did not have an opportunity to discuss it.
I now come to the next case in which Lord Parker was sitting—the Attorney-General of the Commonwealth of Australia v. Adelaide—which was, I think, the one which the hon. and learned Gentleman had in mind. I should like to cite what Lord Parker said, because it sustains my argument. He said:The chief evil thought to be entailed by a monopoly, whether in its strict or popular sense, was the rise in prices which such monopoly might entail. The idea that the public are injuriously affected by high prices has played no inconsiderable part in our legal history. … It influenced the courts in their attitude towards contracts in restraint of trade. Although, therefore, the whole subject may some day have to be reconsidered, there is at present ground for assuming that a contract in restraint of trade, though reasonable in the interests of the parties, may be unreasonable in the interests of the public if calculated to produce that state of things which is referred to by Lord Justice Lindley and Lord Justice Bowen as a pernicious monopoly, that is to say, a monopoly calculated to enhance prices to an unreasonable extent.In the face of these decisions, to seek to contend to the Committee that the courts of this country had not been prepared to consider issues of this kind is a contention which simply cannot be sustained. The truth is, of course, that the courts have adjudicated on much more complicated matters than this in their time and will have to consider much more complicated cases than this in the future.
§ Mr. Thorneycroft
I am glad to have the support of my right hon. and learned Friend the Member for Chertsey (Sir L. Heald), and I hope that he will say a word on this in a moment.
§ Mr. Roy Jenkins (Birmingham, Stechford)
I thought that the argument of the Government on this, and certainly the argument of the Lord Chancellor in the speech which has been quoted, was that the Government had sought to put and succeeded in putting a properly justiciable issue to the courts. Now, as I understand 420 it, the right hon. Gentleman is trying to prove that an issue which is not properly justiciable has been considered by the courts, and that is an entirely different argument. His argument at the present time as to whether this is a properly justiciable point or not will nonetheless be considered by the courts as they have in the past considered it.
§ Mr. Thorneycroft
I am answering the argument addressed to me. It was that matters of economic policy affecting the public interest were inappropriate to the courts of this country. That was put with the greatest clarity in the argument addressed to me. I thought it proper to challege that and to answer it on the authorities as they stand. I say that the authorities, over fifty years of decisions, make it clear beyond a peradventure that the courts of this country have been perfectly happy and willing to deal with matters of this kind. If they were prepared to deal with them as the law stands at the present time, there is certainly no reason why they should not agree to deal with them when the law is stated with greater particularity, as set out in Clause 16.
§ Mr. Turner-Samuels
There is only one case, if the President will forgive me telling him this, in which the issue as to whether it was proper or even feasible for a court of law to decide what was in the public interest or what was public policy, and that is the Moyne Steamship Company v. MacGregor, decided in the House of Lords in 1892, and, therefore, the views of the judges both in the courts of first instance and in the Court of Appeal and in the House of Lords which are propounded show conclusively that the judiciary itself has always held that they are not a proper tribunal to decide any such point.
§ Mr. Thorneycroft
If the hon. and learned Gentleman wishes to sustain that argument he is perfectly entitled to intervene in the debate and to cite any authority. I have cited the highest authorities in this country and some very distinguished judges to show perfectly plainly that these matters have not only been considered, but are perfectly proper for consideration by the courts of this country. I have, therefore, no doubt whatever as to the ability of the courts to deal with these particular problems as they are set out in the Bill.
421 But the matter goes a little further than that. I agree with the hon. and learned Gentleman that these issues which are raised are complex and difficult and involve not only fact and law, but economic matters. It was for that reason that we have included here not only a court consisting of a judge, but a mixed court which will consist of laymen experienced in these issues who will sit together with the judge.
I respect the views put forward by the hon. and learned Gentleman in his speech, but I do not accept that the courts of this country are not able to judge upon issues of this character. All history controverts the argument which he has put forward. I am quite satisfied that if we were to leave these matters simply to an administrative tribunal, answerable and responsible to a Minister of the Crown, we should be faced with endless delay. It would be stultifying to the efforts of any Government to deal effectively with this great problem of restrictive trade practices, and when I see the possibility of a judicial solution offering not only fairness, but also speed in solution of our difficulties, I commend that particular solution to the Committee and urge it to adopt it.
§ Mr. Douglas Jay (Battersea, North)
Is the right hon. Gentleman really arguing that the efforts of the courts to deal with the subject of restraint of trade over the last fifty years have been successful? If so, why have we this revolution now in handling this matter?
§ Mr. Thorneycroft
That was not what I was arguing. I would not be happy with the common law as it stands, or as I believe it to stand, upon restraint of trade. It is for that reason that the law is altered in this Bill. Clause 16, whether one agrees with it or not, is a fundamental alteration to the common law of this country. With regard to the restraint of trade, my argument was on a much narrower front. It was to meet the case that is constantly made that the courts of this country are somehow incompetent to judge matters of this kind. I say that the authorities believe otherwise.
§ 5.0 p.m.
§ Mr. Eric Fletcher (Islington, East)
Even with all his vehemence and eloquence, I do not think the President of the Board of Trade has answered the point made by my hon. and learned 422 Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas). Nor has he answered the point put by my hon. Friend the Member for Stechford (Mr. Roy Jenkins). The right hon. Gentleman has tried to answer a totally different point which has not been put. The question which was put from these benches was whether or not this was a justiciable issue. The President addressed himself to something totally different. He has told us that in his view the courts would be willing and able to deal with these questions.
Our objection to proceedings in the courts does not involve either their independence or their integrity, or the intellectual competence of the judiciary. It goes much deeper. The question is whether it is appropriate, whether it is constitutionally correct; or whether, as we suggest, it involves great constitutional dangers for a Statute of this kind for the first time to impose upon the judiciary the responsibility of taking decisions on matters which are not matters for the judiciary, but which involve decisions on economic policy.
It is no use for the President to try to confuse these two quite separate issues. The cases which he has cited show merely that there have been exceptional cases in the courts in the past in which judges have had to decide the question of public interest as an incidental matter to some perfectly proper justiciable issue. The passages which the right hon. Gentleman quoted, from Lord Herschell and Lord Justice Parker and others, all show that if there is any question, however difficult, which comes before a court, whether a court of the first instance, the Court of Appeal or the House of Lords, the judiciary, naturally, is prepared to deal with it. No one doubts that. On the other hand—and this is the corollary of what the President has said—judges themselves have never concealed their profound dislike of becoming involved in what are purely political questions.
Everyone knows that it is a matter of embarrassment to the judiciary when questions come before the court involving, for example, matters of trade union policy and trade union rights. There was a notorious case in the days of the General Strike, when questions which were really political questions fell, incidentally, to be decided in a court of 423 law, and the greatest embarrassment to the judiciary resulted when decisions were given on a particularly narrow point. The duty ought never to be placed on the judiciary of giving a decision on what, in effect, is not a justiciable issue but a question of economic or political policy.
I do not want to go again over the arguments advanced by my hon. and learned Friend in support of his thesis that this Bill does not create a justiciable issue. He made his case far better than I could hope to do. In fact, the case he made was conceded by the Lord Chancellor in his speech at Glasgow. He concedes that it is not a justiciable issue. The apologia of the Lord Chancellor—and he speaks as the head of the judiciary—is full of excuses and references to embarrassments to the judiciary at having this unusual and unprecedented and, as we think, quite unconstitutional burden thrust on them. The dangers that will result were clearly put by The Times in a leading article the following day, and the President of the Board of Trade has not addressed his mind to them at all.
The dangers that flow from this process are not that the courts will not be able to do the work. Let us for a moment assume that the Government carry through their Measure, and have not the wisdom to see the folly of what they are doing. Let us assume that a court is eventually set up. No one doubts that the judges will do their best to fulfil the duties thrust upon them. But our case is that it is something which ought not to be done; and that if it is done, it will produce a serious public mischief. The point was perfectly well put by The Times in their leading article commenting on the Lord Chancellor's speech, and this is what I wish the President to address his mind to. After quoting Lord Kilmuir, The Times states:Close thought must be given to the probable effect on the judiciary itself. Will judges who have been watched in the new tribunals weighing these highly controversial questions of expediency, however closely their terms of reference are limited, carry back to the Queen's Bench or Chancery quite the same unassailable reputation for detachment from political considerations that they have hitherto enjoyed? This is a matter to which the Law as well as Parliament should give serious consideration.424 Were authority required for the proposition that one of the greatest bulwarks of our liberty is the absolute independence of the judiciary from the Executive, and the absolute necessity of keeping the judges completely free and untrammelled by contact with decisions of political expediency, I do not think I could do better than quote words which made a great impression on this House as recently as March, 1954.The principle of the complete independence of the judiciary from the Executive is the foundation of many things in our island life. It has been widely imitated in varying degrees throughout the free world It is perhaps one of the deepest gulfs between us and all forms of totalitarian rule."—[OFFICIAL REPORT, 23rd March, 1954; Vol. 525, c. 1061.]There is much more in the same strain. I am quoting the words of the right hon. Member for Woodford (Sir W. Churchill) in one of his most eloquent speeches in this House which he made during the Second Reading debate on the Judges' Remuneration Bill.
In my opinion, the President of the Board of Trade, in what he is doing, is violating the fundamental constitutional principles enshrined in our national life and so clearly stated by the right hon. Member for Woodford as recently as March, 1954. The objection which I would make, in addition to those urged by my hon. and learned Friend, and all the other objections on the grounds of delay which have been urged by other hon. Members, is that this is an innovation of a quite unnecessary kind; and a very dangerous kind, because it has the effect of bringing the judges of this country into the arena of political controversy and putting upon them a responsibility—which should be that of the Executive, challenged when necessary by Parliament—of taking an economic decision. That is something which, in the submission of hon. Members on this side of the Committee, is totally unnecessary and will have grave constitutional results.
During the Second Reading debate, and subsequently, the President of the Board of Trade has taken great credit to himself for not having made any criminal offences under this Bill. If he had thought it well to introduce criminal offences, as he might have done, that would have been similar to what is done in the United States. There is a great deal to be said 425 for it. In fact, if one could put the clock back and look at what ought to have been done fifty or sixty years ago, one might well argue that in the interests of economic competition, enterprise and the stimulating of initiative and so on, we ought to have done what was done in America; we ought to have had a Sherman Act, and so forth, in which the machinery of the criminal law is invoked. With that system one has a justiciable issue, and inevitably the matter has to go to the courts. If the President of the Board of Trade had done that, he would have been justified in having a court system because no other system would have been tolerable if these matters had been made criminal offences.
The President of the Board of Trade cannot have it both ways. He has chosen—no doubt, for a good reason, and he has taken great credit to himself for doing so—deliberately to refrain from making these matters criminal offences. But having done that, he cannot at the same time say that they are justiciable issues. He knows that they are not. The corollary of that is that the matter ought to be left to a tribunal responsible to the Minister.
§ Sir L. Heald
My right hon. Friend the President of the Board of Trade was quite right in thinking that today I would support him and that I would not in any way be influenced by any effects of yesterday.
The hon. Member for Islington, East (Mr. E. Fletcher) and the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) have both made as the burden of their speeches this proposition that the reference of matters in Clause 16 to a judicial tribunal is a constitutional innovation, and the hon. Member for Islington, East also said that the Statute would for the first time impose on courts the duty of deciding questions of economic policy. All I can say is that there appears to be a complete vacuum—I think that would be the most polite way of putting it—in the memories of those two hon. Members, both of whom are learned in the law, because what they say is just simply, completely and absolutely wrong. They have forgotten what seems to be of most vital significance.
In the Bill we find there is an omission. Matters relating to patents, letters patent, 426 are excluded from the Bill. Why?—because there is already a procedure for investigation of the abuse of monopolies, and that procedure is precisely a judicial procedure for considering economic policy which the two hon. Members have said is an unheard of constitutional innovation. I would hesitate to say that neither of them have heard of that procedure; I think it is more charitable to say that their memories are at fault.
In view of that, and the fact that the two leading speakers for the Opposition appear to have lost their memories temporarily, I feel that I must remind the Committee of what the position is. In relation to inventions, this terrible constitutional innovation of judicial consideration of economic policy is fairly respectable. It dates from 1623, in the Statute of Monopolies which provided—and the relevant Section is still in force—that patents that arehurtful to trade or generally inconvenientwere void, and they are void today. Up to the year 1883 it was possible—and, indeed, the equivalent is still theoretically possible—to present a revocation petition to the court by the procedure known as scire facias in order to revoke a patent on that ground. It must have been and was, absolutely essential to show the most direct relationship with economic considerations, as is obvious from the words which I have read.
That was up till 1883. Revocation had to be applied for to the Privy Council. By the Patents Act, 1883, the Board of Trade was given power to order compulsory licences—a nice, administrative tribunal such as hon. Members opposite want. But it did not last very long, because by the 1907 amending Patents Act not only could the Board of Trade grant licences but power was introduced to apply to a gentleman called the Comptroller-General of Patents for relief by way of compulsory licence or, in case of necessity, revocation. There was introduced for the first time this so-called monstrous constitutional innovation whereby the Comptroller-General—who is essentially a judicial officer, with appeal to the court and, in fact, to the House of Lords if a patent is revoked—was charged with the duty of considering this side of the matter.
427 In 1919, a further Act was passed which made it a matter for consideration on a number of specified grounds. I think it is sufficient if I come up to date and say that at the present time by Section 21 of the 1949 Act if the order is not complied with, in the last resort the patent may be revoked. The procedure there is this: an application, which may be made under Sections 16 to 21 of the Act, is made in the first instance to the Comptroller-General of Patents. But there is an appeal to the appeal tribunal. There is a judge in the Chancery Division, and if he revokes the patent there is an appeal to the Court of Appeal and to the House of Lords.
§ Mr. Coldrick (Bristol, North-East)
The right hon. and learned Gentleman has referred to the year 1623. Is it not correct that at that period the State conferred legal monopolies upon certain people to do certain things? As the State conferred that right, one can understand the matter being referred to a judicial tribunal. But it is not now suggested that the State is going to confer a monopoly upon someone. We understand that this Bill is designed to destroy monopolies.
§ Sir L. Heald
I do not want to spend time on the matter. Perhaps I might inform the hon. Member that the 1623 Act made all monopolies illegal. If they had been granted before, they were all made illegal, and there were certain exceptions made in relation to inventions. It is nothing to do with what the hon. Gentleman supposed. The procedure was one for the revocation of a Royal grant which applies to any case, and the case that we are considering is one where a patent has been granted, just as it is granted today, and it subsequently becomes objectionable.
This terrible constitutional enormity justifies one in drawing attention to the fact that in 1909, according to the second volume of the Chancery reports of that year, at page 68 Mr. Justice Parker, whose name we have already heard once today as being so opposed to this kind of thing, spends 30 pages discussing economic questions as to whether or not a patent should be revoked. He does not seem to have been very shocked on 26th March, 1909, nor on 4th March, nor on 3rd March, when the case started.
§ Mr. Turner-Samuels
With all respect, this is a most irrelevant argument. Is it not a fact that the learned judge in the court of first instance had to discuss it? It was his duty to try this matter, and, in order to arrive at a decision, that was the ground that he had to explore.
§ Sir L. Heald
Of course it was. I am pointing out that any suggestion that there is an innovation about this is all nonsense. I have 30 pages of it that anybody can read. Obviously, the hon. and learned Member has not read them yet. If they are read, they will be found to go into all these questions as to whether there has been an abuse of monopoly, which is precisely what we are discussing.
Finally, I should like to remind the Committee of the existing law. In this great code of sections, the considerations are set out and the language is almost that of the present Bill—of course it is. That is where the Board of Trade have got a lot of it from.
Here are just one or two of the things:The grounds upon which application may be made for an order"—to the judicial tribunal, which is so much in accord of the views of hon. Members opposite, are these:
is being unreasonably prevented;
- "(a) that the patented invention, being capable of being commercially worked in the United Kingdom, is not being commercially worked therein or is not being … worked to the fullest extent …
- (b)that a demand for the patented article … is not being met on reasonable terms, or is being met to a substantial extent by importation;
- (c)that the commercial working of the invention in the United Kingdom is being prevented or hindered by the importation of the patented article;
- (d)that by reason of the refusal of the patentee to grant a licence or licences on reasonable terms—
- (i) a market for the export of the patented article … is not being supplied; or
- (ii) the working or efficient working of any other patented invention …"(iii) the establishment or development of commercial or industrial activities in the United Kingdom is unfairly prejudiced …Those are exactly the considerations with which we are dealing today. They have been dealt with in that way by the courts for fifty years, and the whole of this story about constitutional innovation is purely a mare's nest.
§ Sir L. Heald
I was quoting from the Patents and Designs Act, 1949, Section 16.
It would not be right for me to weary the Committee further, but we ought to be quite clear that the argument is purely artificial. To say that it is based upon that might be rather rude, but it is designed to appeal to ignorance on the part of those who do not appreciate that the Board of Trade—in this case the Government—are merely applying to the abuse of agreements the same principle of decision which has been applied to the abuse of monopolies for all these years. Therefore, what we are doing is, in my opinion, absolutely right and logical.
On the other hand, the Opposition, in pressing their claim for the tribunal, are really adopting the Alice principle that we know so well—sentence first, verdict afterwards. Indeed, one or two Members of the Opposition might rival the gentleman at the time of the French Revolution, whose name I cannot remember, but who, when a mass execution was taking place, rushed out and said, "Stop the executions. We must try one or two of these people." That is the kind of approach we have had, but, fortunately, I do not think the Committee will be taken in by it or will accept it. I hope very much that the Committee will reject the Amendment.
§ Mr. Roy Jenkins
The two speeches we have heard from the other side, by the President of the Board of Trade and the right hon. and learned Member for Chertsey (Sir L. Heald), have tried to prove too much. The right hon. and learned Gentleman, in particular, assured us that there was no innovation in this procedure and that we would go on very much as before so far as the treatment of monopolies is concerned. I should have thought that the Bill was a substantial innovation so far as monopolies were concerned and that the President of the Board of Trade would not be at all anxious to adopt the right hon. and learned Member's argument that little difference was being made and that there was hardly any innovation. The Bill does break new ground, although, perhaps, not 430 exactly the sort of ground we would like to see broken.
§ Sir L. Heald
I am sure that the hon. Member does not want to do me an injustice. Of course the Bill breaks new ground, in the way that it applies to other kinds of monopolies a judicial type of procedure which previously has been applied to only one type of monopoly, in patents.
§ Mr. Jenkins
The right hon. and learned Member for Chertsey was not only drawing his analogies from the method dealing with patents, but from the various ways in which monopolies could come before the Court. He referred to the Statute of Monopolies, 1623, and later took his argument rather further forward. There is here an important difference of approach. Does one regard the way in which we have dealt with monopolies in the past as a satisfactory basis or not? I certainly do not regard it as a satisfactory basis, and I hope we can go ahead on a very different basis now.
The President of the Board of Trade opened his speech by saying, in a very conciliatory manner, that there was a great deal in my hon. and learned Friend's argument. He implied that the Government had considered the two matters very carefully and that the balance of argument between the two had been rather slight. The right hon. Gentleman put a great part of the onus of his argument on what he claimed would be the extra speed of the method which has been adopted.
The right hon. Gentleman raised two main arguments. The first was the question of extra speed, and the second was that the courts had been quite accustomed to dealing with matters of this nature and would not find it particularly difficult to deal with them in the future. That, I think, is a fair summary of his two main points.
On the question of extra speed, if that is to be one of the main bases on which the Government decided between two almost equally balanced courses, it is in sharp contradiction with the concluding passages of the right hon. and learned Gentleman's speech, in which he suggested that the procedure proposed by this side of the Committee would be 431 hopelessly unfair to people who would be brought forward under it and that it was a case of executing a man before he was tried.
That is a quite different approach from that of the President of the Board of Trade. On the one hand, the right hon. and learned Member for Chertsey said that in our approach we pay no regard whatever to the right to a fair trial for people who would be brought before the tribunals, and the President of the Board of Trade said that the balance of argument was very close but that the Government came down on the one side largely because of the question of extra speed.
§ Mr. Thorneycroft
I do not want the hon. Member to misunderstand me. He has given a fair analysis of my speech about the question of speed and the fact that the courts could quite well deal with this matter. There are, however, many other arguments—I could have developed my speech for an hour or more had I chosen to do so many of which were advanced admirably by my right hon. and learned Friend. One of these is the certainty which it is necessary for industry to have so that these great decisions are not at the whim of some political phase or change each week or month. In other words, to try to establish a solid body of case law upon the basis of principles laid down by Parliament.
§ Mr. Jenkins
I have no doubt that a substantial number of different reasons could always be brought forward in favour of any argument, but we may be fairly certain that even if the President of the Board of Trade does not want to address the Committee for an hour, he put forward the reasons which he regards as the strongest from his point of view and not those which he considers to be the weakest or the least important. That is a fair assumption.
We had two points from the right hon. Gentleman. One concerned speed and the other, which seemed to me to be rather wide of the mark, appeared to be that the courts had dealt with this kind of issue in the past and there was, therefore, no need to worry about their ability to deal with it in future. I do not think that any of us on this side would worry because we thought that the courts, if presented with the Clause as it stands, 432 would not do their best under the Bill. Of course, the courts will accept their duty.
What we have to consider is not whether it is possible for the courts, on the basis of how they have behaved in the past, to give decisions, but whether they are in all the circumstances the best people upon whom to lay a fresh responsibility in this sphere in the circumstances of 1956. The arguments which the President put did not help us to reach a decision on this question. What Lord Justice Bowen, Lord Herschell and Lord Justice Parker said did not touch the question whether it is desirable that in anti-monopoly legislation the courts can do the job. It touched upon the fact that the courts had to take certain decisions into which economic considerations entered. That is a quite different issue from that which we are considering now.
There are two quite separate issues here, and I do not think that the President kept them wholly distinct in his own mind. The first is that, whatever the sort of issue before the courts, they must come to a decision. I agree that they will when they are presented with a clearly justiciable issue in the sense that the courts are clearly competent to judge upon it. I think that both the President and the right hon. and learned Member for Chertsey treated this issue as of no importance.
The right hon. and learned Member—I am sorry he has gone—spoke as though there was no substance in it at all and as though there was no need to bother whether or not it was a justiciable issue. It is difficult to reconcile his speech with that of the Lord Chancellor to which reference has already been made. What was it that the Lord Chancellor said? He said that he and his colleagues hadspent many anxious weeks trying to work out a wholly justiciable issue to place before that body.If the right hon. and learned Member for Chertsey were still the Attorney-General he would not be of much help as one of the colleagues of the Lord Chancellor in assisting with this job, because the right hon and learned Member—I am glad he has now come back—was making out that this was not the difficult problem which the Lord Chancellor quite clearly and frankly admitted that it was.
§ Mr. Jenkins
The fact that a thing is difficult to decide means that there is a great deal more argument on the other side than the right hon. and learned Member even began to admit.
There is the second issue which was also raised by my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas), but which was not touched on by either the President or the right hon. and learned Member for Chertsey. If this is an absolutely and clearly justiciable issue, if this is not a break in the sort of issues which the courts since 1623 or later have been frequently pronouncing upon, why have these two lay members? What are these two lay members intended to do? We ought to have an answer to that question which my hon. and learned Friend asked. Are these two lay members to contribute to the Court their outside knowledge and experience, to contribute which they are, after all, to be appointed? Or are they not? Or is the Court to pronounce solely on the basis of the facts presented before it without any reference to this outside knowledge and experience?
I should like an answer to these questions, and I should like a general justification of why the Government have adopted their view as expressed in the rather barren speech of the President and in the speech of the right hon. and learned Member for Chertsey, which, although not barren, certainly showed that he had closed his mind to these perplexities. Are we to take the view that there is no special difficulty about this, and that this is an issue the courts are used to pronouncing upon? If so, why do we need the lay members?
§ Mr. William Shepherd (Cheadle)
I listened to the speech of the hon. Member for Stechford (Mr. Roy Jenkins) with considerable interest, because I am in agreement with the view that this is by no means a simple matter and that these issues are not clearly and unmistakably justiciable. Nevertheless, I think the case which was made by my right hon. and earned Friend the Member for Chertsey Sir L. Heald) was an overwhelming one, and that when the Opposition have had a 434 chance of another month or so to review this question even more they will come to the view the Government have, that a legal tribunal is the best method of dealing with this question. The hon. Member for Stechford seemed to see some disparity between the view expressed by the President of the Board of Trade and that by my right hon. and learned Friend because one thought the method was speedier and the other thought it was fairer. There is, however, no contradiction in saying that a legal tribunal is speedier than would be the method proposed by the Opposition and that it is also demonstrably fairer.
I would emphasise the importance of fairness. Hon. and right hon. Gentlemen opposite, after some discussion, have settled for what they have quite properly called a "mixed economy," and both sides of the Committee are dissatisfied about some of the practices in British industry. It is very important if we are to make changes, as both sides want to make, in the conduct of British industry that what we do shall command the greatest measure of confidence, and that industry shall be induced to the state of mind that it will want to go with what the Government wish to do. That is most important, and I think we have under-estimated it in this Committee. Therefore, if there are difficulties over justiciable issues, but the tribunal will lead to a better appreciation and acceptance by industry of the principle, I think the small risk we are running may be worth while.
It is quite clear from what the President said that it would not be possible for a President of the Board of Trade to carry the substantial burden which an increase in anti-monopoly activity inevitably entails. We have to find some alternative means, and I think that a legal tribunal, even with its shortcomings, is the answer to this question. Certainly, it is a better answer than that proposed by the hon. Member for Islington, East (Mr. E. Fletcher) who asked, "Why not have Shermanesque machinery?" We set out a proper procedure which avoids criminal proceedings, and a procedure much more rapid than that suggested by the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas).
Were we to transform the Monopolies Commission into a sort of administrative 435 tribunal, we should lose something which, by the proposals in the Clause, we are now gaining, because under this arrangement we shall have both the tribunal and the Monopolies Commission. There are certain things which cannot be done by the tribunal which can be done by the Commission in, for instance, important and delicate questions involved in the export trade, and in services, which have not been investigated in any way up to now. That could properly be done by the Monopolies Commission.
Therefore, if it is a question of the widest possible front of attack on monopolies or of the widest investigation of monopolistic practices the proposition contained in the Bill is the better one. The hon. and learned Member for Leicester, North-East made great play with this. He said that the balance of judgment was left to the judges and that there was a mixture of legal, economic and political matters for them to judge. There is an element of that in this procedure, and I do not think there is any good in the Committee's trying to deny it.
I do not think that it goes anything like as far as has been suggested from the benches opposite. Not in every case, by any means, will the tribunal be called upon to make a judgment which is political and economic. Most of the cases will fail to get over the hurdles of matters of fact and the Court will not be called upon to form a residual political and economic judgment. Only if the cases get over the initial hurdles will the Court be called upon to make that political and economic judgment.
I agree that that residual judgment is not generally a suitable one for the Court to make. We run some risk of involving the justiciary in political dissension but, on balance, I think that it is wise and prudent that we should take this course, because only in a few cases would there be a residual judgment. Even then we have gone to the extent of providing laymen who can act as a cushion in absorbing some of the difficulties involved in making such a residual political and economic judgment.
§ Sir L. Ungoed-Thomas
The hon. Member is putting a very fair case, but would he not agree, in relation to the 436 residuary part, that that is exactly what the Governmental decision should be?
§ Mr. Shepherd
I agree that, ideally, it is desirable that there should be a governmental decision. If we could hive the matter off in two parts, that would be one way of tackling it, but that is no longer possible, because the volume of work involved would place a great burden on the President of the Board of Trade or a Minister. Therefore, we must ask the justiciary to accept this task. We do not hold the view that at no time in history must the justiciary take on a fresh task, and surely we cannot say that because it has never done this in the past it should never do it in the future. I think that this is by far the best way of tackling the matter. I ask hon. Members opposite to think again about the tribunal. I know that they want a rapid review of these practices, and I think that a legal review is the best way of achieving it.
§ 5.45 p.m.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
A large number of considerations arise on this Clause, apart from the main justiciable issue as it has been referred to. I will draw the attention of the Committee to some of these but, before doing so, I should like to refer to one or two points which have been raised so far on the main issue.
The President of the Board of Trade called in aid the Nordenfelt line of cases and the right hon. and learned Member for Chertsey (Sir L. Heald) called in aid the example of patents. He said that in view of the patents precedent it was impossible to represent this Bill as introducing a constitutional innovation. If a system of law imposes a capital penalty for murder, and for murder alone, and then by a new law the capital penalty is decreed to apply additionally to the offence of lighting a cigarette on a zebra crossing, the capital penalty is not in these circumstances a constitutional innovation, but the novelty of its application is none-the-less startling and is in that respect not dissimilar to the proposal in the Bill. The type of monopoly to which this Bill is intended to apply is fundamentally different in character and content from the monopoly of invention. This Bill attacks something of quite a different character.
437 As to the President of the Board of Trade's point, nobody on this side of the Committee would deny for one moment that for many years it has been the practice of the courts to have regard incidentally to the question of whether a particular contract was not enforceable as being contrary to public policy. But here again it seems to me that there is a great difference between what is proposed in the Bill and that line of case. The Bill confers a non-incidental jurisdiction on questions of economic policy.
I want to put before the Committee certain of the secondary points which in my view make it desirable that this matter should be dealt with by a tribunal and not by a court. I bear two things in mind all the time. The first is that despite the fact that I attach importance to these matters, the heart of the argument for this Amendment is on the point of the justiciable issue. The second point which I bear in mind is that in principle, where the choice has to be made between a court of law and a tribunal, I should prefer, in the vast majority of circumstances, a court of law.
I have observed with as much dissatisfaction as any other hon. Member the extent to which the jurisdiction of the courts has been ousted in recent years. We are conscious of that on both sides of the Committee, but nobody can accuse us of arguing in this instance in favour of ousting the jurisdiction of the courts. The fact is that we are dealing with a new jurisdiction and the question is whether that should be exercised by a court or by a tribunal.
There are, for the purposes of the Bill, several advantages to be gained from these matters being determined by a tribunal and from the application of tribunal procedure. They may seem small taken one by one, but in the aggregate they amount to a good deal. There is, first of all, the point that the informality of proceedings before a tribunal, though it has its disadvantages, possesses also very considerable advantages. The danger of the relatively informal proceedings before a tribunal is that discussion can become too diffuse, but the fact that the parties to the inquiry are not tied or restricted to the rigidity of the processes of courts of law often has very considerable advantage.
438 It is some advantage, for one thing, that a party should not be restricted to or tied to pleadings which he or his representative has settled. One of the very few advantages, it may be thought, which the Bill possesses is that it will perhaps lessen the burden of those hon. Members who are also members of the Bar. For if they are instructed to appear before this Court they will have in the pleadings, in the same document, valuable notes to be used for speeches they make in the House or in the country. There may often be, as I say, advantages, if one wants to get to the heart of the thing, in an inquiry of wide scope, in not being tied too closely and rigidly to High Court procedure.
I would also suggest that, in the nature of things, it is often desirable for purposes of an inquiry of this kind that the rules of evidence should be applied rather more flexibly and rather less rigidly than would be the case in a court of law. Of course, it is of vital importance, in the determination of questions of criminal and civil liability, that the strictest rules should be observed as to evidence. When it comes to determining whether there is a practice which is operating contrary to the public interest, however, it may well become desirable that evidence should be given which would be regarded as not admissible in a court of law.
For the purpose of this Bill, it may often be a perfectly proper and desirable question to put to a witness—not an expert witness—"What is your interpretation of this document? What do you think is the true construction of it? What do you think is the effect of it?" It may be a perfectly admissible question in this class of inquiry to ask, "What did the salesman say?" Such evidence not admissible in a court of law, should be more readily admissible in this type of inquiry if the effort is really to be made, as we hope, to get to the root of the trouble.
§ Mr. Hector Hughes (Aberdeen, North)
My hon. Friend, in referring to the differences between a court of law and a tribunal, and the kind of evidence which could be given at either, seems to be referring back to the case of Thorough-good, in which Chief Justice Bryan, three hundred years ago, said:This court doth not try the thoughts of a man, for the devil himself knoweth not what are a man's thoughts.439 My hon. Friend is apparently relying on that line of thought for the purpose of arguing that a tribunal might listen to that kind of evidence whereas a court of law would not.
§ Mr. Irvine
I am always stimulated by the assistance of my hon. and learned Friend.
There is the additional point that under the procedure of a court of law there is necessarily a strict body of rules dealing with the matter of discovery of documents. It may well be that in the proceedings envisaged by this Bill such strict rules as regards discovery may be undesirable. For example, I can well conceive that at the end of an inquiry it may be fair and proper that a respondent company should have the opportunity of producing a document which has not been referred to previously, and of which it has given no notice of intention to produce. These are no doubt technical matters, but I suggest to the Committee that in the aggregate they are not unimportant. If the rigid rules of a court of law are to be applied then a good deal of harm may result.
Of course, it is true that under Clause 18 of this Bill it is open to the Lord Chancellor to make rules to deal with the special procedure of this Court. In theory it might be practicable to make rules applicable in this Court which would be different in content and kind from the rules applying in other divisions of the High Court. However, that is an unlikely event, and it seems to me desirable that something less rigid should be applicable to this class of inquiry.
The scope of these inquiries will be very extensive. Indeed, it will be so extensive that the cases going before this new Court will be similar to the class of case which, if it were to go to the courts now, would at once be referred to an Official Referee because of the reluctance of the High Court judges to deal with matters involving an unusual degree of technicality and detail. The fact that the scope of the inquiry is so wide and may be so technical seems to me to be an additional ground for preferring tribunal procedure.
There is another consideration that has to be borne in mind, and the Parliamentary Secretary will at least agree that what I say on this point is against interest, 440 and I say it without enthusiasm. One advantage of the tribunal procedure is that it will not be necessary for a respondent company to appear by counsel. It may sometimes occur that a company which, it is alleged, is a party to a restrictive agreement contrary to the public interest, may desire that its case shall be represented to the tribunal by its solicitor. This may be because its solicitor knows its history and knows the officers of the company and is, therefore, the ideal man to represent the case of the company to the tribunal.
I put it to the Committee that these points, taken in the aggregate, amount to a good deal. In addition, it may prove desirable that many of these inquiries should take place out of London and in the provinces. I should have thought that in many cases it would be desirable that they should take place in centres of industry and enterprise such as Lancashire and South Wales.
It will be much easier for the decentralisation of these inquiries to take effect if the matter is in the hands of a tribunal as distinct from a court. I do not know whether it is intended that these matters shall be dealt with by the judges on Assize, but I should have thought that would be difficult to arrange.
§ The Parliamentary Secretary to the Board of Trade (Mr. Derek Walker-Smith)
It is in the first Schedule of the Bill.
§ Mr. Irvine
Be that as it may, if we want a distribution of the work of inquiry, it would be much easier if there were tribunals, which can travel more conveniently than can judges to different parts of the country.
Finally, there is provision in the Bill that on questions of fact the judge who is presiding in the Court can be overruled by his two colleagues, the two non-judicial members of the Court. I believe it to be undesirable from the point of view of the status of our judges that this should be possible. In my view it is undesirable, bearing in mind the all-important question in the public interest of maintaining the status of our judges, that it should be possible, perhaps repeatedly, for a judge in a court to be over-ruled by his two colleagues on questions of fact.
§ Mr. Raymond Gower (Barry)
May I ask the hon. Gentleman what he means when he says that it would be more convenient for a tribunal to travel round the country than for a judge to do so?
§ 6.0 p.m.
§ Mr. Irvine
I do not want to keep the Committee further on that point, but, as I have been asked the question, I would say that there is a great deal of administration attached to assize work—and there is difficulty in fitting in the work in one assize town after another in the proper sequence. I believe it would be conceded that to dovetail the restrictive practices work into the assize would in practice involve a considerable difficulty, which I believe would not be present in the case of a tribunal. I believe that judges should visit the provinces in their capacity as judges only on assize to deal with regular assize business and I should have thought that if we wanted these inquiries carried out to any substantial extent in the provinces the balance of convenience would be to have them dealt with by a tribunal. It is a matter of administration upon which the Government may have something to say, but I feel that a tribunal would be in this respect more convenient.
These various points in the aggregate—and always bearing in mind the major point of the justiciable issue—seem to me to add up to a strong case for the Government agreeing to this class of inquiry being carried out by a tribunal and not by a court.
§ Mr. Græme Finlay (Epping)
I disagree profoundly with the views expressed by the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) because I think this is a most important constitutional issue, and I agree with my right hon. Friend the President of the Board of Trade that it is an issue which can be looked at from both sides. I still think it possible to over-estimate to too great a nicety the disadvantages of a court of this kind considering economic criteria, and in the end I have reached the conclusion that we must look at the matter from a practical point of view.
I take it that all hon. Members want to deal with the danger of monopolies and restrictive practices, and we therefore have to decide the best system by which this should be done. It is true that some 442 of the decisions involved have a very significant economic flavour. Perhaps one of the most important is in Clause 16 (f). That is the Clause in which a practice which would otherwise be blameworthy can exculpate itself if the court reaches a conclusion that in regardto the conditions actually obtaining or reasonably foreseen at the time of the application, the removal of the restriction would be likely to have a serious and persistent adverse effect on the general level of unemployment in an area, or in areas taken together, in which a substantial proportion of the trade or industry to which the agreement relates is situated, or to cause a substantial reduction in the volume or earnings of the export trade of the United Kingdom;".That is a paragraph which contains decisions of significance having economic consequences. Is it fair to suggest that if a judge decides upon such matters he will so contaminate himself that it will be impossible for him to go back to the Queen's Bench Division in a state of respectability? I submit that that is not the case. This kind of decision can easily be taken in a manner which can ensure that the judge will remain respected for his integrity. The point which was raised by The Times about going back to the Queen's Bench Division seems to be rather of an academic character, because the volume of consideration which has to be done by this court will be so extensive that for many years to come there will be so much work that there is no prospect of any judge going back to normal judicial duties.
It is perfectly true that this is a constitutional issue of great dimensions, and I was most impressed by the tome which my right hon. Friend held up relating to the findings of the Monopolies Commission on tyres, which is only one of the many decisions which will have to be taken by the court. If we look at the problem from the practical point of view and consider the tremendous growth of governmental intrusion since 1893, when the Maxim Nordenfelt case was considered, we realise how impossible it is. How can we consider it possible that a President whose duties have multiplied since the Maxim Nordenfelt case was decided should make decisions of such variety and weight as he showed in the Blue Book about tyres can accept further detailed administrative responsibilities about these restrictive practices? It is absolutely impossible, impracticable and 443 unrealistic to do so, and if we tackle the matter in any other way we shall get nowhere with the Bill.
That is why I think we can be too nice when we look into the dangers in relation to the judges. We have to look at it more practically than that. We must bear in mind that when the Maxim Nordenfelt case was decided the learned judges in the Court of Appeal were prepared to accept responsibility for these quasi-economic decisions. How much more so now when conditions have substantially altered.
There is respectable authority for this. My right hon. and learned Friend the Member for Chertsey (Sir L. Heald) referred to the Patents Court, in which he is so well versed and specialised. I understand that the procedure and composition of this Court is modelled on the Railway and Canals Commission, which was set up in the 'thirties. That Commission had to establish matters which were certainly of economic and commercial significance in relation to railway and canal traffic. I am left in no doubt about it that the balance of convenience from every point of view comes down in favour of establishing a court to deal with these matters.
§ Mr. John Cronin (Loughborough)
I have listened to the President's arguments with the careful attention which they usually deserve. I find myself, however, in some difficulty. I gather that the two principal arguments he has against the Amendment is that judges of the High Court are completely capable of dealing with economic and social matters and that the work involved, if the President himself is responsible for it, would be too much for one man. My hon. Friend the Member for Stechford (Mr. Roy Jenkins) has already dealt with the first point. If judges are so completely capable of dealing with economic and social matters, why have lay members of the Court at all?
I am concerned, however, about the argument of overwork. We all appreciate that the Minister's burdens are very heavy, but if the President suggests that the work is too much for one Minister, surely that also applies to the Registrar it is proposed to appoint. If a Minister cannot deal with all these things, why is 444 it possible for a Registrar to do so? That seems to be the crux of the matter. Admittedly, a Minister has to answer Questions, but the Registrar will have to deal with much more detailed work. Surely if we want a superman as Minister to have a Minister responsible for a tribunal, we must have more than a superman to be a Registrar.
The right hon. and learned Member for Chertsey (Sir L. Heald) produced several arguments against the Amendment and put emphasis on the fact that Section 16 of the Patents and Designs Act, 1949, provides that judges deal with matters somewhat similar to those to be found in Clause 16 of the Bill. That shows how completely unfamiliar with these matters the judiciary really is by the mere fact that of all the multitudinous public Acts passed in the last 150 years there is only one Section of one Act which can be cited as being similar to Clause 16 of the Bill in the type of judicial interpretation required.
I should like to support the view of my hon. Friend the Member for Edge Hill (Mr. A. J. Irvine) that court procedure is far too rigid to deal with these socioeconomic matters. He pointed out that it is impossible to take evidence informally in court. That, of course, is desirable in ordinary court conditions, but it makes a system of dealing with complex socio-economic matters, which vary from day to day, very rigid. The court by the nature of its procedure cannot deal with the constant variations in economic climate. A court tends to look to the past and not to the future.
There is another rather important aspect of the undesirability of court procedure for dealing with this Bill and that is the doctrine of binding judicial precedents. I have had no legal training, but I understand that the whole basis of the law as practised in the courts depends on the doctrine of binding judicial precedents. If a case has been decided on a certain legal principle previously, that becomes the binding precedent which a later court has to follow. If every time one of these Restrictive Trade Practices Courts sits it has to follow precisely the decisions of a previous sitting on a matter of similar legal principle, we shall be in very serious difficulties.
Even more difficult is the matter of a binding precedent by a higher court. All 445 hon. and learned Gentlemen present will agree that a court has to accept as a binding precedent a decision of a higher court. According to the Schedule of the Bill, there is a right of appeal on points of law from the Restrictive Trade Practices Court to the Court of Appeal and, presumably, from there to the Law Lords of another place. The result will be that the Restrictive Trade Practices Court—if there are appeals from its decisions—will be bound to accept the views of the Court of Appeal, a court consisting entirely of legally trained persons.
Within a short time the lay members of the Restrictive Trade Practices Court will have no significance at all, because the Court of which they will be members will be bound to accept the binding judicial precedents of a higher court. I feel bound to suggest that putting lay people into these courts is merely a sop to give confidence to industry. It can have no permanent effect. The Court will inevitably become one which is entirely legalistic in its outlook and which will have to follow binding legal decisions either of itself or of a higher court.
I should like to ask the Committee to consider how the decisions of the Court would be affected so far as parliamentary procedure is concerned. Yesterday, many hon. Members emphasised the importance of being able to ask Questions about restrictive practices. It is clear that Questions which refer to cases which are being tried in a court, or which have been tried in a court, will be out of order. If I may quote Erskine May, Fifteenth Edition, in page 343, it says definitely that Questionsreflecting on the decision of a court of law or being likely to prejudice a case which is under trialare inadmissible. I ask the Committee to realise exactly what that will mean. Nearly everything relating to a decision which has been made by the Restrictive Trade Practices Court will be out of order.
§ Mr. Philip Bell (Bolton, East)
Supposing there were a decision which the House did not like. Is the hon. Member suggesting that the Minister could not be asked whether he was aware of the decision and whether he intended to take 446 steps to alter the law? Is the hon. Member suggesting to the Committee that, in fact, that would not be allowed?
§ Mr. Cronin
The first answer is that under the Minister's intended arrangements he will have no responsibility whatever, so he could not be asked that question. The second answer is that he cannot be asked that question in a manner which reflects on the decision of a court.
§ Mr. Bell
As I understand it, if there were a decision—I do not mean a corrupt or wrong decision—which said that a certain thing was all right and was not a monopoly, if hon. Members read about that decision and were not satisfied, there is nothing to stop them from asking the Leader of the House, the Prime Minister, the President of the Board of Trade or the Attorney-General, whether he was satisfied with the decision, nor from the hon. Member saying that he wanted the law altered. Could that not be done?
§ Mr. Cronin
The hon. and learned Member must be aware that it is quite inadmissible to ask a Question reflecting on the decision of a court. That is quite plainly written in Erskine May. I should like the Committee to realise exactly where this is leading us. What will happen is that once a court is making a decision on an industry, no matter how vital and wide in scope, that industry is removed from Parliamentary Questions.
We should not be too parochial in our approach to this matter. It would be worth-while looking at the practice of other countries which have initiated and are now practising legislation to deal with restrictive trade practices. It is worth while noting whether or not they are using court procedure. The United States has a Federal Trade Commission which consists of five members, not more than three of whom may be appointed from any one political party. Any company or organisation which is practising restrictive practices can be examined by an official of the Federal Trade Commission who makes a report to the Commission. After hearing evidence from the company concerned, the Commission can make a cease and desist order. The Commission is almost the same as the kind of tribunal proposed in the Amendment. That has worked extremely well in the United States.
447 Another way of dealing with restrictive trade practices in that country is by means of the Anti-Trust Division of the Department of Justice. That Division examines the affairs of any company which is adopting restrictive practices, can negotiate with it and instruct it to cease using those practices. A court decision is not usually necessary. I ask the Committee to realise that this procedure is a very flexible and rapidly moving one, and contrasts rather favourably with the ponderous legal procedure which the President suggests that we should adopt.
It might be argued that the United States has no system of registration, and that the situation proposed here will be therefore more complex. Sweden has had a system of the registration of restrictive practices since 1946. It has a functionary called the Fair Business Commissioner, whose duty it is to examine the affairs of companies adopting restrictive practices. He reports back to the Fair Trade Commission, which can hear evidence from the company concerned and make recommendations that it should cease using those restrictive practices. In all the cases I have mentioned, both in the United States and Sweden, these restrictive practices have been dealt with first by a non-legal tribunal, and only as a last resort does that tribunal need to use the ultimate sanction of a court of justice.
Bearing these facts in mind, I suggest that there is a strong case against using a Division of the Supreme Court of Judicature to deal with these essentially socio-economic matters. I make no apology for referring to earlier centuries. For a long time enlightened Members of Parliament did their utmost to separate the judiciary from the Executive and Parliament. In fact, that was the whole purpose of the 1689 Bill of Rights. Now, however, right hon. and hon. Members opposite are trying to bring the wheel full circle and pass some of the responsibility of the Government on to the judiciary. This is obviously a very undesirable reversal of the existing suitable and appropriate state of affairs.
We have built up an Executive which probably has more power than the executive of any other country in the world, apart from the dictatorships. In this 448 case, some of that power is being handed over to a court of judges. I ask the President and the Parliamentary Secretary to give some consideration to the advisability of accepting this Amendment. I know that they are probably committed, but I would ask them to consider the Amendment very carefully and, whatever they do, to make sure that they do not hand over to a court, executive functions which are essential for the efficient running of the country. I would ask the President to turn his back upon the rather unattractive, Gothic structure which lies at the western end of Fleet Street, and walk towards Westminster and Whitehall, where his proper duty lies.
§ Mr. Reader Harris (Heston and Isleworth)
I am very glad of the opportunity to support the President in this matter, because I do not think that I shall support him in many other matters concerning the Bill. If one gets the chance of supporting the President one wants to seize the opportunity.
From my point of view, the argument whether the questions which will have to be decided here are justiciable is not nearly so relevant as the fact that if we adopt the judicial procedure it will command much more respect among the people whose affairs are going to be enquired into. I ask the Committee to accept the fact that, as things are at the moment, the Monopolies Commission—which has been operating to the best of its ability and is composed, I do not doubt, of men who are honest and hardworking—has not commanded the respect of industry.
I wish that hon. Members opposite could see some of the documents and letters which are sent to me. They would be left in no doubt that about three-quarters of the members of the Commission are descended from long and distinguished lines of bachelors, and that the people who have been examined by them dislike them intensely and do not believe that they are impartial. That is most regrettable, and I think that if we change to the judicial procedure the system will command much more respect than it does at present.
There are, of course, political and economic considerations which will have to be determined—
§ Mr. Harris
Yes. The proper people to decide such matters are Members of the House of Commons, but the House of Commons cannot give consideration to every single agreement which has to be registered. It therefore has to depute its duties to somebody else.
The question is, do we depute them to the Monopolies Commission? I say no, because although some of its members are economists and some are lawyers, not many are business men. It may be said that a judge is no better able to decide these matters, but, traditionally, judges command the respect and confidence of the public, and I believe that they are just as well able to decide these matters as are the members of the Commission.
After all, sitting with them will be business men, whereas under the present system the Monopolies Commission consists largely of part-time members, and this has meant that the Government have had a very difficult job in finding people with the right experience and ability to decide these matters who are willing to sit upon the Commission. Such people are very few and far between, because the average business man of experience is kept far too busy in other directions. A court composed of judges and lay members, as provided in the Bill, offers quite as good a solution as can be obtained. I know that no solution will be ideal, but out of a lot of rather bad alternatives this is probably the best that can be arrived at.
Another reason why I support the establishment of the judicial procedure in this case is that, whatever the Opposition may say about it, I believe that they want established a device which will be amenable to political pressure. We cannot ignore the fact that the approach to industry by the Socialist Party is in many respects very different from ours. I have grave suspicions of the approach of the Socialist Party to the Bill. I doubt whether it wants to see this Measure brought into operation entirely because it thinks it will be good for industry. The people who will be affected by it number millions. In most cases the public will be most affected, but people working in industry, as well as the ordinary consumers, will be affected.
I have a suspicion that the Socialist Party approaches this subject rather in the way that people in the olden days 450 used to put two cocks into a ring and see them tear each other to pieces. If that is the approach of hon. Members opposite, an argument upon the subject can be developed at a later stage. Because their approach is so different from ours, however, it is desirable that the judicial procedure should be set up, thereby removing the whole question as far as possible from political pressure. I therefore have great pleasure in supporting my right hon. Friend upon this solitary occasion.
§ 6.30 p.m.
§ Mr. Donald Wade (Huddersfield, West)
I do not share the conviction of the President of the Board of Trade and the right hon. and learned Member for Chertsey (Sir L. Heald) about the suitability of a court of law far deciding issues which are essentially political and economic, although I am aware that, from time to time, our judges have been called upon to decide such issues. On the other hand, I am not particularly enthusiastic about administrative tribunals.
My colleagues and I have approached this matter from a rather different angle from that of the Minister and the official Opposition. I hope that our approach is, at any rate, a logical one. We have considered this question of tribunal versus court very carefully, and we agree that there are arguments on both sides. We have approached it from the general principle that Parliament should decide political and economic issues. That is the principle we should all endeavour to uphold. I admit that it is not quite so simple in practice. One cannot always ensure that all political and economic issues are decided by Parliament alone.
One of the weaknesses in this Bill, if passed in its present form, is that Parliament will thereby be delegating too much in the political and economic realm. That is a weakness which we should endeavour to remedy in the course of discussion on the Bill. Having once adopted the view that the body which is set up should interpret the law, and that so far as practicable Parliament should decide political and economic issues, I think it is only right that we should recommend the creation of courts of law rather than administrative tribunals. That is the reason which leads me to the conclusion that there should be courts of law.
451 As regards the matter of precedents, I foresee that at first there may possibly be some divergence in decisions made by different courts, or by different tribunals; but I am not sure that that would be a satisfactory state of affairs. It would be chaotic if tribunals were to give all kinds of decisions, not being bound by precedent. On the whole, I think that courts of law would tend to give similar decisions to a greater extent than would administrative tribunals. If there were a number of tribunals giving very different decisions, parties would try to come before tribunal A instead of before tribunal B in order to get what they thought were more favourable decisions. I appreciate it is sometimes said that such a state of affairs can be found in courts of law, but, on balance, there is, I think, a stronger case for a court of law than for a tribunal.
There is one further argument. I am an optimist, not as to this particular Bill, but as to the future; I hope that in time there will be a change in climate, and that the day will come when legislation will be introduced more in the nature of the legislation in operation in Canada. Canada is a better example than the United States. The time may come when the issues which are decided by this new body, be it court or tribunal, will be more in interpretation of the law and less decisions on economic and political issues.
I believe that once the decision has been made to set up administrative tribunals, then the general principle I mentioned at the outset, that Parliament should decide political and economic issues will have been abandoned. Once administrative tribunals are set up, they will not, I think, be changed; they will remain. Therefore, in the hope of changing the Bill, and with this rather optimistic view about the future, I think the right course is to create courts of law rather than tribunals.
§ Mr. Turner-Samuels
I am quite certain the President of the Board of Trade wants to give the country what is in his opinion the best tribunal for the purpose of dealing with these matters; but the mere fact that somebody says that so-and-so is the best tribunal does not prove that it is. The matter is much more important than that. The Committee ought to be satisfied on reason and argu- 452 ment as to which is the better of the two tribunals which have been proposed.
It has been said that one of the reasons why a court is better is that a court will give more consistent decisions, and that it is very desirable in these matters—as, indeed, it is in most—that there should not be different or conflicting decisions. On the other hand, I would venture to say to the President of the Board of Trade that in this particular field, dealing with the public interest, where the various agreements involved are so extensive and themselves so different one from another, the very idea of rigidity may be harmful to the public interest and not helpful at all. Flexibility rather than rigidity in this matter is most desirable; the facts of each particular agreement should stand on their own footing, and the matter be decided accordingly.
I could not quite follow the argument of the hon. Member for Huddersfield, West (Mr. Wade), one of the few Members of the Liberal Party in the Committee, who spoke about Parliament in this matter delegating too much. It seems to me that the Liberal Party, in conformity with the growing characteristic that it has recently shown, is seeking to have the best of both worlds. I agree with the President that we cannot have that; we must make up our minds what definite line we are to pursue.
As I say, the hon. Gentleman said he thought that Parliament was delegating too much. He seemed in what he said to come to a conclusion which I could not at all understand—certainly, in my opinion, it was not logical—that because Parliament is delegating too much it is therefore preferable to have a court of law instead of a lay tribunal. How that proposition is established on those wide and vague premises I find difficult to follow.
§ Mr. Wade
I am sorry that the hon. and learned Gentleman did not understand my argument. It appears to me logical that if we contend that there is too much delegation, and if we contend that Parliament should decide political and economic issues, it follows that any body which is set up being primarily to interpret the law should be a court of law rather than an administrative tribunal.
§ Mr. Turner-Samuels
That, of course, only makes the position more obscure; 453 I find it more difficult to understand why the hon. Gentleman wants to adopt this course. However, I will excuse it on the ground that it comes from the Liberal benches.
Another fugitive point that was made and which should be noticed was that it is very important that a tribunal should have the confidence and respect of those who come before it. Nobody would gainsay that for a moment, but the notion that it is only by having a court of law that that confidence and respect can be engendered is surely quite wrong. What makes the point here rather interesting is that that confidence and respect apparently is to be generated only in respect of one side. It is the parties whose restrictive agreements are attacked who do not like the Monopolies Commission, but that is plainly not a test whether the Commission is right or wrong. The only test is whether the Commission is the proper venue, in all the circumstances, through which these matters ought to be considered.
Let me come to two main aspects of the matter. One was dealt with by the President of the Board of Trade and the other by the right hon. and learned Member for Chentsey (Sir L. Heald). I am sorry that the right hon. and learned Member is not here. He put the point that it was not correct for my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas) to say that the proposal in the Bill to establish a special Court is an innovation. He gave as his reason that there are matters relating to letters patent that have been similarly dealt with, and said that there was no reason why, as we had one field of that kind, we should not extend the practice and have another field such as that in the Bill dealt with in the same way.
There is a whole world of difference between the provisions of the Bill with which we are dealing and this matter of letters patent in connection with inventions. It is manifest that the House of Commons itself is a mixed tribunal. It consists to some extent of lawyers, but in the main its complexion is lay in character. The President of the Board of Trade and his Parliamentary Secretary are both lawyers and had the President of the Board of Trade remained at the Bar he would become an eminent lawyer; 454 we all accept that. The President of the Board of Trade will, I am sure, agree that all hon. Members who are lawyers do try to take a broad and not a forensic or juridical view of these matters.
It is quite wrong to say that the example of letters patent as regards inventions can be compared with what is being done in this Bill. What is the difference? It is a crucial one. Letters patent deal with matters diametrically opposite to the vital point that we have to consider here. In the main they deal not with the public interest but with individual interest. The whole point in protecting an invention is to protect the right of an individual. Of course, the public have in a certain respect to be considered, but that is really a small aspect of the matter. What the court has to be very careful about is that it does not give letters patent in respect of inventions against the public interest, and it is in that sense in the main that the public is being protected.
Another part of the matter which goes with the latter argument is that the Statute of Monopolies is equally a different kind of measure from that of the present Bill. The Statute of Monopolies does the very reverse of what is sought to be done in this Bill. It makes specific matters illegal—I should like the President of the Board of Trade to follow this point. I quite understand that when a good point is being put it is necessary for him and his Parliamentary Secretary to have consultation, but I am sure he will be profoundly interested in the point of view that I am advancing.
The Statute of Monopolies, as I say, makes specific matters illegal, while the Bill does not do that at all, but, on the contrary, says that certain agreements are to be registered, and exemptions to that are to be allowed. It is on this question of exemption that brings me to my next point. The President of the Board of Trade made what I thought was a completely unsustainable point about this. He referred to Clause 16 and the seven paragraphs containing what he described by the words "justiciable grounds", and said that they were of such a nature that they ought to come under judicial review rather than under the review of a lay tribunal. It is fair to add that he agreed that the judicial 455 review should be fortified and clarified by lay assessors.
What are the exemptions in question? What are matters which are to be imposed upon the Court as having to be taken into consideration when deciding whether the restrictive agreements that have been registered are to be allowed to continue or not? What is this prohibition sought to be imposed by the Bill? Why should there be a difference between this prohibition if imposed on a judicial tribunal as against its being imposed on a lay tribunal? This prohibition is surely telling the court, "You cannot touch these agreements if these grounds of exemption are satisfied." Why could we not say it in exactly the same way to a lay tribunal? The answer might be, "Ah, yes, but every one of these seven grounds is of such an esoteric and complicated legal nature that it is absolutely necessary to bring a judicial mind in to explicate and decide them".
In this context, that argument just does not hold water. I do not want to take up a lot of the Committee's time because there has already been a very long discussion on the matter, but I wish that I could have had the opportunity of answering the President of the Board of Trade on these matters earlier. I should have liked to have done it more fully.
I would ask the right hon. Gentleman to look at these particular grounds individually. I expect that either he or the Parliamentary Secretary will reply, so I put this point to them explicitly. [Laughter.] This matter is of very great importance and public interest, and not simply of parliamentary fun. I ask whichever Minister is to reply to satisfy the Committee by saying in what respect any of these grounds is not more suitable for a lay tribunal to decide upon than for a judicial tribunal to do so? They are matters of the public interest, and therefore lay and business people should be much more familiar and expert as to them than any judicial functionary would be. Therefore, the effect of that part of the argument on which the President relies—and I agree that it is a very important point—on close examination is against his case and not in favour of it.
It is very often the case that when there is cogency in points that are raised they are deliberately avoided when the reply 456 comes from the Government Front Bench. If the Government care to be in default on this issue then they, of course, must be, but I do ask whoever replies to satisfy the Committee, by reasoned argument that any one of these seven grounds is, by reason of its complication, its technicality or its legal character, more suitable to be tried by a judicial than by a lay tribunal.
Let me come to the question of the courts trying these matters of public interest, and let us see if we cannot get a firm proposition on which we can agree. The President of the Board of Trade seemed to base his case on the ground that because courts had hitherto tried these matters there was no reason why they should not go on trying them, and therefore include this particular one, which is a new addition. That, of course is not the issue here at all. It is perfectly true that the courts have tried matters concerning public policy and public interest, but I would remind the President that it was the courts themselves that gave themselves the capacity and jurisdiction to do so.
This right of the court to try such matters is based purely on judge-made law. I think that I should have the President's assent to that. There is no Statute that controls this principle, which, in the 'nineties, came before the House of Lords. The House of Lords then laid down that the courts of this country were fully competent, and that it was right that they should consider and decide these matters affecting the public interest and public policy. But they did exactly the same thing—as I am sure the President will recall—in regard to common employment. The right hon. Gentleman will remember that the doctrine of common employment was also a piece of judge-made law. The courts said that they had the right to consider whether the act of a fellow-Servant invalidated another fellow workman from bringing an action against the employer in respect of the fellow servant's negligence. That, again, was purely judge-made law.
It is interesting and important to recall that this House brought in legislation to repeal that very doctrine, because Parliament said that it was not right that the courts should any longer have that particular power. Putting the matter on that basis—that the fact that the court 457 has the power to try is conclusive—must, of course, be quite wrong. The whole issue is as to whether, in fact, these are matters which the courts ought to have power to try or whether they should not more properly be tried by a lay rather than by a judicial tribunal.
As the President has quoted from certain cases I should like to remind him of certain other judicial opinions. The President opened the law books—or had passages typed from them for him—and quoted from certain law cases. As a matter of fact, if he cares to consult what I think is really the leading case of this matter—the Moghul Steam Ship Company case—he will find that this function of the courts is repudiated by the courts themselves. In dealing with the question of public interest and policy, one eminent judge put it this way:It is a branch of the law which should not be extended, as judges are more to be trusted as interpreters of the law than as expounders of what is called public policy.That is clearly a matter which the Committee has to take into consideration when dealing specifically with this question of public interest. Another eminent judge in this particular field said this:To draw the line between fair and unfair competition, between what is reasonable and unreasonable"—and that is one of the elements with which this Bill deals—passes the power of the court.I could go on with one quotation after another. There is no doubt that the consensus of legal opinion and the balance of judicial pronouncement is that this element of public interest is not one which should properly be left for the courts to decide.
One has to take the context in which this matter is before the House. There is not the slightest doubt that for years there has been an exploitation of the public by a small, privileged body of people by which the public has become outraged because of the methods that have been applied. That has forced the hands of the Government to bring in the Bill. Indeed, it was because of that that the Monopolies Commission was set up by a Labour Government. It is right to say that that Commission did a very good job of work, and that it was sufficiently armed if the President of the Board of 458 Trade had been ready to implement his powers to enable the Commission to deal with all these matters efficaciously and speedily, which it effectively could do.
In this purely factual domain of public interest, however, the Government have thought fit to bring in this Bill by which, instead of the matter being dealt with by people who can do it speedily and knowledgeably, it is being sent to a Court of law, which will inevitably involve endless delay, endless legal controversy, and endless legal fighting and expense, and in all probability in which the people who are being assailed and whose agreements ought to be destroyed are to be more powerful than the public in the fight because of their resources and because the public is not to be represented in the Court at all.
I say that that is quite wrong. This matter should be put in the hands of an instrument which is popularly nearer to the public than is a court of law; which has greater and speedier facilities—indeed, not only the facility and the knowledge but the desire to act—to scan these agreements and, where proper, to say that they ought to be invalidated. I support the Amendment by which my hon. and learned Friend seeks that these matters should go before the kind of tribunal which he seeks to have set up.
§ Mrs. Barbara Castle (Blackburn)
I have so far resisted intervening in this lawyers' paradise on this Amendment, but we have heard from the President of the Board of Trade this afternoon a strange piece of doctrine which I really think ought not to go unchallenged, and which otherwise might get lost sight of in the legal verbosity to which we have been subjected.
When the President answered my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas) he was quite clearly impressed by the weight of the arguments which my hon. and learned Friend had produced. The right hon. Gentleman said that there was considerable substance in the impressive case which my hon. and learned Friend has made. He said that he had weighed all the considerations with great care, but he gave us the impression that he had come down in favour of this judicial procedure on one ground, and on one ground alone, and that was 459 the amount of work which would be laid upon his shoulders if he did not accept this machinery.
He gave us, in that dramatic way of his, a really over-emphasised picture. "Imagine," the right hon. Gentleman said, "if I were to accept the procedure which you suggest; imagine if I gave you your case about these matters not being justiciable and that I gave you your tribunal." There would be thousands of cases, he said, channelled through the Minister—a part-time Minister who would be overburdened with the work that would be placed upon him.
The trouble with the right hon. Gentleman is the same trouble as that of many professional debaters. He is apt to be carried away by his own eloquence, and he over-emphasised his own case. It was an entirely exaggerated picture which he gave us. What he did was to base all his arguments on distortion. He gave us the impression that, on the one hand, there would be three full-time courts of law dealing with these cases, and, on the other, one Minister—one man, part-time, he said—which I thought was a little bit of self-slander. He gave us this picture of these alternatives, but, of course, they are not alternatives at all.
What the right hon. Gentleman left out is a vital part of the process. We are not suggesting in our proposition that the Minister should be the tribunal. We are suggesting, it is true, that he should be there as a final court of appeal, as it were, but between him and the defendant or applicant in each case stands the tribunal, in our suggestion. It could be a whole-time tribunal, if he likes, or it could divide itself up into three and carry on parallel consideration of these matters. The right hon. Gentleman has really grossly distorted the whole position in order to put his case across.
I would suggest that it is totally wrong to give the impression that there would be coming before this House thousands of cases which are to be registered. It really is ridiculous, and I suggest to the right hon. Gentleman that he should refer to his own speech on Second Reading. There would be two processes between him and the initiation of this work. First, there would be the process of registration, and the right hon. Gentleman gave us, on Second Reading, a glowing 460 picture of what the effect of registration would be. He said:ߪ do not let any of us ignore the effect of registration. I have no doubt whatever about what is happening at the moment. Industries at this very moment are looking at their arrangements very closely. They are deciding what they are going to keep, and in consequence publicly register, and every industrialist is asking himself whether his particular arrangements are in his judgment essential. Industry has a little time, while this Bill is being discussed, to ponder on these matters, and it is my hope and belief that quite a number of devices which may have been appropriate 25 or 30 years ago may now be quietly dropped."—[OFFICIAL REPORT, 6th March, 1956; Vol. 549, c. 1942.]Therefore, we have got a large percentage of our thousands of cases disappearing voluntarily by the act of registration alone, on the Minister's own admission. I read in The Times or somewhere else quite recently an estimate that 36 per cent. of the agreements would disappear simply because they would have to be made public.
Then we come to the second stage—that of the tribunal, when these agreements have to go through the very fine sieve of the tribunal, with all the additional publicity. Then, on the assumption that the tribunal has ruled that these agreements are contrary to the public interest, we have another sifting-out process before we get to the Minister.
Therefore, the right hon. Gentleman's whole case is based on exaggeration, and it was typical of the way in which he has avoided the closely-reasoned arguments put to him from this side of the Committee on this issue. It strengthens my belief, which I certainly had on reading the Lord Chancellor's speech—a belief which I hold in common with my hon. and learned Friend the Member for Leicester, North-East—that what the Government have done in approaching this matter is not to decide what was the most suitable machinery, but to start, a priori, with the belief that the President of the Board of Trade had said "Now, look here, we have got to do something about monopolies, but I am not going to have all this extra work pushed on to me, so you must find some other means of doing it". Therefore, they had to put wet towels round their heads and try to decide how they could make these matters justiciable, as the Lord Chancellor said. We ought not to be discussing this matter on that basis.
461 The whole tendency of social legislation is to put increasing burdens on the Government, and we cannot have a Government interfering in a wide range of social policy without that meaning more work for Ministers. The President cannot hope to tackle the problem of monopolies without getting more work, and if it is work that he wants to avoid he should never have entered this field at all. Therefore, I think it is a most serious condemnation of him that he should have used the arguments that we have heard this afternoon as to what his duty was. He should have said that the monopolies must be tackled and that it was his responsibility to do it, because we have always looked upon him as a great crusader on these matters.
When the right hon. Gentleman was on the Opposition benches, he gave us the impression that there was nothing he was wanting to do so much as to get on the Government side of the House with the responsibility of tackling these dragons of the monopolies. Well, he is there now, and he says that he is going to wash his hands of the job because it means much more work. We are perfectly willing to agree to let the right hon. Gentleman have another Parliamentary Secretary to do the work.
§ Mrs. Castle
Yes, or another Government. I do not mind changing places with the right hon. Gentleman.
This is a question of public policy and Government responsibility, and the right hon. Gentleman ought to have sat down and decided what was the best way in which to discharge that responsibility and provide the appropriate machinery. Anybody who listened to the President's speech today would agree that he made no answer to the telling arguments which my hon. and learned Friend put forward on this matter.
I would also point out, on this question of the appropriate machinery, that the President said that if it is speed we want, we should take these questions to the courts of law. If it really is speed that we are after, coupled with the most appropriate machinery for the task that we are trying to do, we should have accepted the majority Report of the Monopolies Commission, but that has 462 not been mentioned at all. That is what our case is based upon, and not merely the substitution of a tribunal for a court.
Our case is based on the belief, with the majority of the Monopolies Commission, that the right procedure would have been to have a general prohibition, and merely have exceptions for the consideration of the tribunal. These two things go together, and this is an additional argument above all the legal details which we have heard this afternoon. The Monopolies Commission has worked far harder on this matter, and gone into much greater detail, than has the President, and according to the Commission that is machinery which would give efficacy and speed. The Commission states thatit follows logically from the conclusion that these practices operate generally against the public interest that they should be generally prohibited. … In our view, the right way to deal with such cases is to except them from the general prohibition where a case for doing so has been established.'The Commission suggests that some inquiries would be necessary, but that the number of inquiries to be made by that method would be very much smaller. If he were thinking of speed and not merely of evading a proper attack on the matter, that is the way in which the President should have gone.
A general prohibition would have added to the deterrent effect of the Bill because it would have strengthened the presumption behind the Bill—which is now merely a presumption and which would have become a legal prohibition—that these practices are contrary to the public interest. It would have reduced the number of cases where individual firms tried to fight the prohibition. It would have shamed more firms into altering their practices and would have reduced the pressure of work arising from those claims for exemption. It would have enabled us to retain overall parliamentary control without completely overburdening the administrative machine. I believe that the President has shown quite lamentably this afternoon that he has not considered these Amendments on their merits.
§ 7.15 p.m.
§ Sir L. Ungoed-Thomas
We had had an interesting, long, and in some ways astonishing, debate, and no speeches have been more astonishing than those of the President of the Board of Trade and the 463 right hon. and learned Member for Chertsey (Sir L. Heald). It emerged clearly from the President's speech that what we now have in Clause 16 is a decision on economic and political public interest. It is equally clear from the Lord Chancellor's speech that that is exactly the sort of thing which he considers should be a matter for decision not by a court but by Government and Parliament. We thus have emerging from the debate a diametrically opposite approach on fundamental principles between the President and the Lord Chancellor.
Having come to the conclusion that the final decision under Clause 16 is one of economic and public policy, it must follow, as every reputable writer on the subject I have read has said, that it should be a matter for governmental and parliamentary decisions.
Some odd references have been made to patent law and restraint of trade law and extracts have been quoted from various lord justices and lords of appeal. Nothing in any branch of the law compares with the decision of the balance of economic and political public advantage embodied in Clause 16. I have not just burst out of the narrow confines of patent law and have not the detailed knowledge of it possessed by the right hon. and learned Gentleman.
§ Sir L. Ungoed-Thomas
But I am aware of the 1949 Act and of the provisions of Section 37, which deal with the economic matters to which the right hon. and learned Gentleman drew attention. The first of the requirements in dealing with a licence is whether the patent is not being commercially worked in the United Kingdom to the fullest extent that is reasonably practicable. Of course, that is limited to a comparatively simple inquiry on a question of fact and there is nothing in it to take it as an example here. It cannot be compared with a general decision on the country's welfare in economic and political matters. I could read the other requirements.
§ Sir L. Ungoed-Thomas
There is no balancing of general economic advantages. This also applies to the part of 464 public interest in restraint of trade cases. Public interest is involved in restraint of trade cases just as it is involved, in a sense, in all our law, for all our law is based fundamentally upon public interest. But the law is formulated in rules which can be applied in such a way as to make them justiciable.
Let us consider one very familiar case of restraint of trade—the covenant between a workman and his employer not to practise within a certain radius of the place of his employer's work. The decisions reached by the court are whether a particular restriction is reasonable in the interests of the covenantor; secondly, whether it is reasonable in the interests of the covenantee; thirdly, whether it is reasonable in the public interest; how has it been dealt with by the courts? May I read—since it is apparently fashionable to treat the Committee as a court of law—a statement by Lord Parker, one of our greatest judges:It was at one time thought that in order to ascertain whether a restraint was reasonable in the interests of the covenantor the Court ought to weigh the advantages accruing to the covenantor under the contract against the disadvantages imposed upon him by the restraint, but any such process has long since been rejected as impracticable.What the court is asked to do here is not to balance an advantage within a small contract as between an employer and an employee, within a very small ambit, but to balance the advantages to the whole economy. That is miles away from any decision which any court takes upon a matter of public interest.
The third part of the requirement is whether it is reasonable in the interest of the public, and that is not a matter upon which any decision has ever been founded. What has happened is this: if it is reasonable in the interests of the covenantee, it is considered automatically reasonable in the interest of the covenantor. No balance is involved at all and the only question to which the court is reduced is whether it is in the interests of one party to the contract for his protection.
Let us consider other cases of contracts held contrary to the public interest. The court does not decide, as it is asked to decide in Clause 16, is this contract contrary to the public interest? It is asked to say, has this contract a certain tendency? If it has, 465 it is automatically contrary to the public interest. Let us consider a contract for sale of office or a dispensation making a gift in a will—a very famous case—which said that a vast sum was given to a certain person if he obtained a certain honour. In that case the court refused to go into the question whether or not in that particular case there was a danger of corruption. It simply said, "Looking at this dispensation, has it or has it not a tendency towards corruption in the trafficking in honours." Of course, quite obviously it had. There is no difficulty in deciding that, but that is not dealing with the individual case on the ground that it is contrary to the public interest.
It is applying a rule of law that certain contracts, if they have certain specified tendencies, are contrary to public interest and ought to be condemned. What we have here is entirely different. Clause 16 makes the judges direct deciders in each particular case, whether on the facts of that particular case the matter is on balance in the interest of the public or not. That is a political and economic decision which it is for the Government to take.
Parliament, of course, can say that certain practices should be condemned. It is for the courts to decide whether a particular contract is within that category or description or not, but that is not what Clause 16 says. I have avoided the qualifications because we shall come to them later and we would be here interminably if we dealt with them now. I have respect for the hon. Member for Cheadle (Mr. Shepherd), but I shall not deal with his speech now. I will simply limit myself to the main issue as we are coming to the qualifications (a) to (g), later.
We say that under Clause 16 that is not to be a governmental and political decision. That is the fundamental question to be decided. If it is not a justiciable issue it is no answer to say that it is inconvenient for the President of the Board of Trade to deal with this matter. Nor is it any answer for the hon. Member for Heston and Isleworth (Mr. R. Harris) to say that he does not like the Monopolies Commission, apparently because the Monopolies Commission has been so efficient that he objects to its procedure.
We say this matter should be decided as a matter of principle. Is it or is it 466 not a justiciable issue? If we are convinced that it is a justiciable issue, whatever the consequences it should be a matter for the court, whatever the delays involved, but, if it is not a justiciable issue, similarly, whatever the consequences, it should be a matter for parliamentary decision and, in the last resort, that should be exercised through a tribunal responsible to the Minister.
§ Mr. P. Thorneycroft
We have had a full, useful and informative debate on this subject. I hope I am not too dogmatic about it. I still feel this is a matter on which not all the truth is to be found on either side of the Committee. It is an issue on which far-seeing men can honestly hold different opinions.
I shall express my belief shortly. I believe the arguments which have been adduced, and in particular the very forceful speech of my right hon. and learned Friend the Member for Chertsey (Sir L. Heald), have demonstrated that these are issues which the courts are competent to discuss and to decide upon. I quite agree, having said that, that it is still open to the Committee quite properly to debate whether it is more appropriate for the courts to decide these issues or for an administrative tribunal to decide them.
We weighed these matters very carefully and, for my part, I am clearly of the opinion that the balance of advantage lies in favour of the judicial Court. I make no apology for talking about speed again as that point has not been answered. It is not enough for the hon. Member for Blackburn (Mrs. Castle) to say that the Minister would have a tribunal; the Minister would be responsible. He has to study these things and be familiar with the details and with the decisions taken.
There is not only the question of speed but also of certainty and the absence of any body deciding these things by the whims of political opinion. I think that is important. There is the manifest fairness of a judicial tribunal. Dealing with restrictive practices will be a big task, and I think it important, not only that it should be fairly done, but that it should be manifestly fairly done, with confidence it-, the Court and, above all, the authority of a Court.
I listened to some of the things which have been said about the Monopolies 467 Commission. I also disagree with what was said, but it is because we have a Monopolies Commission which has not the authority of the High Court that those things can be said. I do not believe we can deal with these matters unless we have bodies which have the full authority of the High Court making these decisions upon principles laid down by Parliament.
§ Mr. Thorneycroft
I really do not think the Capital Issues Committee is a very close analogy to this issue. No doubt it is subject to some criticism, but nothing like the criticism which can be engendered on issues of this character. I would beg the hon. and learned Member to weigh this matter carefully and not to be too
conservative in his judgment on it. He quoted quite a lot of what the Lord Chancellor said in his speech. I wish to quote the last paragraph in which my right hon. and learned Friend said:
I have cited these problems …"—
the problems of the courts—
to show how today we must be prepared to adapt the traditional forms of law to meet the needs of our time. I am certain that the attempt must be made. I think it can succeed and its success will show that the law in Britain, of whose past we are proud, can meet the challenge of a complex, scientific State.
I believe that to be true and I think this procedure of the judicial tribunal is the right one.
§ Question put, That "Court" stand part of the Clause:—
§ The Committee divided: Ayes 209, Noes 162.469
|Division No. 140.]||AYES||[7.28 p.m.|
|Agnew, Cmdr, F. G.||du Cann, E. D. L.||Jennings, J. C. (Burton)|
|Aitken, W. T.||Duthie, W. S.||Johnson, Dr. Donald (Carlisle)|
|Allan, R. A. (Paddington, S.)||Errington, Sir Eric||Johnson, Eric (Blackleg)|
|Alport, C. J. M.||Farey-Jones, F. W.||Jones, Rt. Hon. Aubrey (Hall Green)|
|Arbuthnot, John||Finlay, Graeme||Joseph, Sir Keith|
|Astor, Hon. J. J.||Fleetwood-Hesketh, R. F.||Johnson-Hicks, Hon. Sir Lancelot|
|Atkins, H. E.||Fletcher-Cooke, C.||Kaberry, D.|
|Baldwin, A. E.||Fort, R.||Keegan, D.|
|Balniel, Lord||Foster, John||Kerby, Capt. H. B.|
|Barlow, Sir John||Fraser, Sir Ian (M'cmbe & Lonsdale)||Kerr, H. W.|
|Barter, John||Freeth, D. K.||Kershaw, J. A.|
|Baxter, Sir Beverley||Gammans, Sir David||Kimball, M.|
|Bell, Philip (Bolton, E.)||George, J. C. (Pollok)||Lambton, Viscount|
|Bell, Ronald (Bucks, S.)||Gibson-Watt, D.||Leavey, J. A.|
|Bennett, F. M. (Torquay)||Glover, D.||Legge-Bourke, Maj. E. A. H.|
|Bennett, Dr. Reginald||Godber, J. B.||Legh, Hon. Peter (Petersfield)|
|Bevins, J. R. (Toxteth)||Gomme-Duncan, Col. Sir Alan||Lindsay, Hon. James (Devon, N.)|
|Bidgood, J. C.||Gower, H. R.||Linstead, Sir H. N.|
|Biggs-Davison, J. A.||Graham, Sir Fergus||Lloyd, Maj. Sir Guy (Renfrew, E.)|
|B'shop, F. P.||Grant, W. (Woodside)||Low, Rt. Hon. A. R. W.|
|Body, R. F.||Grant-Ferris, Wg Cdr. R. (Nantwich)||Lucas, Sir Jocelyn (Portsmouth, S.)|
|Brains, B. R.||Green, A.||Lucas-Tooth, Sir Hugh|
|Brooke, Rt. Hon. Henry||Grimston, Sir Robert (Westbury)||Macdonald, Sir Peter|
|Bryan, P.||Grosvenor, Lt.-Col. R. G.||McKibbin, A. J.|
|Buchan-Hepburn, Rt. Hon. P. G. T.||Gurden, Harold||Mackie, J. H. (Galloway)|
|Burden, F. F. A.||Hall, John (Wycombe)||Madden, Martin|
|Butler, Rt. Hn. R. A. (Saffron Walden)||Harris, Reader (Heston)||Maitland, Cdr. J. F. W. (Horncastle)|
|Campbell, Sir David||Harvey, Air Cdre. A. V. (Macclesfd)||Manningham-Buller, Rt. Hn. Sir R.|
|Carr, Robert||Harvey, Ian (Harrow, E.)||Marlowe, A. A. H.|
|Cary, Sir Robert||Harvey, John (Walthamstow, E.)||Marples, A. E.|
|Channon, H.||Harvie-Watt, Sir George||Marshall, Douglas|
|Chichester-Clark, R.||Heald, Rt. Hon. Sir Lionel||Mathew, R.|
|Clarke, Brig. Terence (Portsmth, W.)||Heath, Rt. Hon. E. R. G.||Maude, Angus|
|Conant, Maj. Sir Roger||Henderson, John (Cathcart)||Maudling, Rt. Hon. R.|
|Cooper, Sqn. Ldr. Albert||Hill, Rt. Hon. Charles (Luton)||Mawby, R. L.|
|Cooper-Key, E. M.||Hill, Mrs. E. (Wythenshawe)||Medlicott, Sir Frank|
|Cordeaux, Lt.-Col. J. K.||Hinchingbrooke, Viscount||Molson, A. H. E.|
|Corfield, Capt. F. V.||Hirst, Geoffrey||Moore, Sir Thomas|
|Craddock, Beresford (Spelthorne)||Holland-Martin, C. J.||Mott-Radclyffe, C. E.|
|Crosthwaite-Eyre, Col. O. E.||Holt, A. F.||Nabarro, G. D. N.|
|Crouch, R. F.||Hope, Lord John||Nairn, D. L. S.|
|Crowder, Petre (Ruislip—Northwood)||Horobin, Sir Ian||Neave, Airey|
|Cunningham, Knox||Horsbrugh, Rt. Hon. Dame Florence||Noble, Cmdr. A. H. P.|
|Currie, G. B. H.||Howard, John (Test)||Nugent, G. R. H.|
|Dance, J. C. G.||Hudson, W. R. A. (Hull, N.)||Oakshott, H. D.|
|Davidson, Viscountess||Hughes-Young, M. H. C.||O'Neill, Hn. Phelim (Co. Antrim, N.)|
|D'Avigdor-Goldsmid, Sir Henry||Hutchison, Sir Ian Clark (E'b'gh, W.)||Orr, Capt. L. P. S.|
|Deedes, W. F.||Hyde, Montgomery||Orr-Ewing, Charles Ian (Hendon, N.)|
|Digby, Simon Wingfield||Iremonger, T. L.||Page, R. G.|
|Donaldson, Cmdr. C. E. McA.||Irvine, Bryant Godman (Rye)||Pannell, N. A. (Kirkdale)|
|Doughty, C. J. A.||Jenkins, Robert (Dulwich)||Partridge, E.|
|Peyton, J. W. W.||Sandys, Rt. Hon. D.||Touche, Sir Gordon|
|Pickthorn, K. W. M.||Scott-Miller, Cmdr. R.||Turner, H. F. L.|
|Pitman, I. J.||Shepherd, William||Turton, Rt. Hon. R. H.|
|Pitt, Miss E. M.||Simon, J. E. S. (Middlesbrough, W.)||Vaughan-Morgan, J. K.|
|Pott, H. P.||Smithers, Peter (Winchester)||Vickers, Miss J. H.|
|Price, David (Eastleigh)||Spearman, A. C. M.||Vosper, D. F.|
|Prior-Palmer, Brig. O. L.||Speir, R. M.||Wade, D. W.|
|Profumo, J. D.||Spens, Rt. Hn. Sir P. (Kens'gt'n, S.)||Wakefield, Sir Wavell (St. M'lebone)|
|Raikes, Sir Victor||Stevens, Geoffrey||Walker-Smith, D. C.|
|Rawlinson, Peter||Studholme, H. G.||Ward, Hon. George (Worcester)|
|Redmayne, M.||Summers, G. S. (Aylesbury)||Waterhouse, Capt. Rt. Hon. C.|
|Rees-Davies, W. R.||Sumner, W. D. M. (Orpington)||Whitelaw, W. S. I (Penrith & Border)|
|Renton, D. L. M.||Taylor, Sir Charles (Eastbourne)||Williams, Paul (Sunderland, S.)|
|Rippon, A. G. F.||Teeling, W.||Wilson, Geoffrey (Truro)|
|Robertson, Sir David||Thomas, Leslie (Canterbury)||Woollam, John Victor|
|Robinson, Sir Roland (Blackpool, S.)||Thompson, Lt.-Cdr. R. (Croydon, S.)||Yates, William (The Wrekin)|
|Robson-Brown, W.||Thorneycroft, Rt. Hon. P.|
|Rodgers, John (Sevenoaks)||Thornton-Kemsley, C. N.||TELLERS FOR THE AYES:|
|Roper, Sir Harold||Tiley, A. (Bradford, W.)||Mr. Wills and|
|Russell, R. S.||Tilney, John (Wavertree)||Colonel J. H. Harrison.|
|Ainsley, J. W.||Hannan, W.||Oswald, T.|
|Allen, Arthur (Bosworth)||Harrison, J. (Nottingham, N.)||Owen, W. J.|
|Allen, Scholefield (Crewe)||Hastings, S.||Pannell, Charles (Leeds, W.)|
|Anderson, Frank||Hayman, F. H.||Parker, J.|
|Bacon, Miss Alice||Henderson, Rt. Hn. A. (Rwly Regis)||Pearson, A.|
|Baird, J.||Herbison, Miss M.||Plummer, Sir Leslie|
|Bartley, P.||Hobson, C. R.||Price, Philips (Gloucestershire, W.)|
|Benson, G.||Holman, P.||Proctor, W. T.|
|Beswick, F.||Houghton, Douglas||Pryde, D. J.|
|Bevan, Rt. Hon. A. (Ebbw Vale)||Howell, Denis (All Saints)||Redhead, Edward Charles|
|Blackburn, F.||Hubbard, T. F.||Reeves, J.|
|Blenkinsop, A.||Hughes, Cledwyn (Anglesey)||Rhodes, H.|
|Blyton, W. R.||Hughes, Emrys (S. Ayrshire)||Roberts, Goronwy (Caernarvon)|
|Boardman, H.||Hughes, Hector (Aberdeen, N.)||Rogers, George (Kensington, N.)|
|Bottomley, Rt. Hon. A. G.||Hunter, A. E.||Ross, William.|
|Bowden, H. W. (Leicester, S. W.)||Hynd, J. B. (Attercliffe)||Shinwell, Rt. Hon. E.|
|Boyd, T. C.||Irvine, A. J. (Edge Hill)||Short, E. W.|
|Braddock, Mrs. Elizabeth||Irving, S. (Dartford)||Silverman, Sydney (Nelson)|
|Brockway, A. F.||Jay, Rt. Hon. D. P. T.||Simmons, C. J. (Brierley Hill)|
|Broughton, Dr. A. D. D.||Jenkins, Roy (Stechford)||Skeffington, A. M.|
|Burton, Miss F. E.||Jones, Rt. Hn. A. Creech (Wakefield)||Snow, J. W.|
|Butler, Herbert (Hackney, C.)||Jones, Jack (Rotherham)||Sorensen, R. W.|
|Callaghan, L. J.||Jones, J. Idwal (Wrexham)||Sparks, J. A.|
|Castle, Mrs. B. A.||Jones, T. W. (Merioneth)||Stewart, Michael (Fulham)|
|Chapman, W. D.||Kenyon, C.||Stones, W. (Consett)|
|Chetwynd, G. R.||Key, Rt. Hon. C. W.||Stross, Dr. Barnett (Stoke-on-Trent, C.)|
|Clunie, J.||King, Dr. H. M.||Swingier, S. T.|
|Coldrick, W.||Lawson, G. M.||Sylvester, G. O.|
|Collick, P. H. (Birkenhead)||Lee, Frederick (Newton)||Taylor, John (West Lothian)|
|Collins, V. J. (Shoreditch & Finsbury)||Lee, Miss Jennie (Cannock)||Thomas, George (Cardiff)|
|Corbet, Mrs. Freda||Lever, Leslie (Ardwick)||Thomas, Iorwerth (Rhondda, W.)|
|Craddock, George (Bradford, S.)||Lewis, Arthur||Thomson, George (Dundee, E.)|
|Cronin, J. D.||Lipton, Lt.-Col. M.||Turner-Samuels, M.|
|Cullen, Mrs. A.||Mabon, Dr. J. Dickson||Ungoed-Thomas, Sir Lynn|
|Davies, Stephen (Merthyr)||MacColl, J. E.||Usborne, H. C.|
|Deer, G.||McGhee, H. G.||Warbey, W. N.|
|Dodds, N. N.||McKay, John (Wallsend)||Watkins, T. E.|
|Donnelly, D. L.||McLeavy, Frank||Weitzman, D.|
|Dugdale, Rt. Hn. John (W. Brmwch)||MacPherson, Malcolm (Stirling)||Wells, Percy (Faversham)|
|Ede, Rt. Hon. J. C.||Mahon, S.||Wells, William (Walsall, N.)|
|Edwards, Rt. Hon. Ness (Caerphilly)||Mallalieu, J. P. W. (Huddersfd, E.)||West, D. G.|
|Edwards, W. J. (Stepney)||Mann, Mrs. Jean||Wheeldon, W. E.|
|Evans, Albert (Islington, S. W.)||Marquand, Rt. Hon. H. A.||White, Mrs. Eirene (E. Flint)|
|Fletcher, Eric||Mellish, R. J.||White, Henry (Derbyshire, N. E.)|
|Forman, J. C.||Mikardo, Ian||Wilkins, W. A.|
|Fraser, Thomas (Hamilton)||Mitchison, G. R.||Williams, David (Neath)|
|Gaitskell, Rt. Hon. H. T. N.||Monslow, W.||Williams, Rev. Llywelyn (Ab'tillery)|
|Gibson, C. W.||Moody, A. S.||Williams, W. R. (Openshaw)|
|Gordon Walker, Rt. Hon. P. C.||Morris, Percy (Swansea, W.)||Willis, Eustace (Edinburgh, E.)|
|Greenwood, Anthony||Mort, D. L.||Winterbottom, Richard|
|Grey, C. F.||Moyle, A.||Woof, R. E.|
|Griffiths, Rt. Hon. James (Llanelly)||Mulley, F. W.||Zilliacus, K.|
|Griffiths, William (Exchange)||O'Brien, Sir Thomas|
|Hall, Rt. Hn. Glenvil (Colne Valley)||Oliver, G. H.||TELLERS FOR THE NOES:|
|Hamilton, W. W.||Oram, A. E.||Mr. Holmes and Mr. J. T. Price.|
Question put and agreed to.
§ Mr. Frederick Mulley (Sheffield, Park)
I beg to move, in page 2, line 33, at the beginning to insert:Subject to subsection (6) of this section".
§ The Temporary Chairman (Sir Austin Hudson)
I think that it will be for the convenience of the Committee if, with this Amendment, the following Amendments are considered: In page 3, line 5, at end add:(6) The number of members of the Court may be increased by order of the Board of Trade. The power to make such order shall be exercisable by statutory instrument and such order shall be of no effect until it is approved by Resolution of each House of Parliament.In Clause 3, page 3, line 6, at beginning insert:Subject to subsection (5) of this section".In Clause 3, page 3, line 28, at end add:(5) The number of judges nominated by the Lord Chancellor or the Lord President of the Court of Session or the Lord Chief Justice of Northern Ireland may be increased by order of the Board of Trade. The power to make such order shall be exercisable by statutory instrument and such order shall be of no effect until it is approved by resolution of each House of Parliament.
§ Mr. Mulley
The purpose of the Amendment is to give power to the President of the Board of Trade by order, subject to an affirmative Resolution of each House, to increase either the number of appointed members or the number of judges or both. I do not propose to detain the Committee very long, because I think that this is a reasonable Amendment which should commend itself to the President of the Board of Trade. [Interruption.] One of my hon. Friends says that the more reasonable it is the more unlikely it is that it will be accepted. I do not go quite as far as that. I am hoping that we shall have a very satisfactory response from the Minister when he replies.
I would make the point very briefly that the essence of our approach to the Bill is that we want the court or tribunal or whatever the body is to be to work well and speedily. The Committee having decided that it shall be a Court, we naturally want to try to improve the Bill so as to make the Court work as speedily as possible, consistent, of course, with the thorough examination of every case, which we all desire.
472 Until the register is complete we cannot tell how many courts and judges and other members will be required, and therefore we do not presume to state the number in the Amendment. We wish to give the President power so that there is a speedy process available to him should it be necessary to increase the number of courts considering these matters. We heard yesterday that every agreement registered must be considered by the Court and, therefore, we anticipate that there will be a lengthy waiting list. It may be desirable to increase the number of judges and other members in order more speedily to deal with the business.
It is not clear exactly how individual courts will work, and it may be that the Minister will enlighten us about what the Government have in mind. There are to be five judges and not more than nine other members, and if, as appears to be the case, there will be one judge and two lay members in each court, it follows that there cannot be more than four courts engaged in this business at any one time.
§ Mr. Walker-Smith
The hon. Gentleman will see that there is an Amendment on the Order Paper increasing the number from nine to ten.
§ Mr. Mulley
I am obliged to the hon. Gentleman, but we must not assume that because an Amendment is on the Order Paper it will necessarily be carried. As the President said yesterday, we have to take the Bill as it is, and that is what I am endeavouring to do.
I am glad that the Government are saving us the trouble of dealing with that point, but it does not invalidate my argument. It merely means that at the most there will be five courts able to sit at any one time. According to Clause 3 (2), and very reasonably, a judge nominated shall not be required to sit outside the jurisdiction of his own court. It would seem that there will be one court in Scotland and one in Northern Ireland and, therefore, even if the Amendment which has been mentioned is accepted, we must anticipate that the maximum number of courts that can sit in England and Wales will be three. In view of the great volume of business which may be expected, that number may not be enough.
I do not complain about Scotland and Northern Ireland having separate courts, 473 but because of the geographical situation of the head offices of companies likely to be concerned in these agreements, I think it follows that the majority of cases will fall to be heard in the English courts, and I think that three may not be enough. This may be a suitable occasion for us to be informed of what the Government have in mind about appointing new judges.
It is material that we should know whether it is intended to appoint new judges under the Bill or whether judges already appointed will be seconded for this work. It is no secret that some judges are under-employed. In the Chancery Division, in particular, there is not a sufficient volume of work for all the judges to be fully employed on Chancery business. It would be useful if we knew what is the intention of the Government in this matter.
If it is intended to appoint judges specifically for this work, it may be difficult to find the most able people for the job. Their work will be in a narrow compass and more economic than legal. Although I can advance only my own opinion, it would seem to me that judges engaged exclusively in this work would not have the best chance of promotion to the Court of Appeal or above. I wish to stress that the whole purpose of moving the Amendment and the purpose of the Amendments which we are discussing with this one is to increase the ability of the courts to deal with the volume of business that we anticipate will be forthcoming.
§ 7.45 p.m.
§ Mr. P. Thorneycroft
I do not think that it would be proper for me to speculate on the possibilities or otherwise of the promotion of particular judges. But I can do something which may be more satisfactory to the hon. Gentleman by saying that, in principle, I am prepared to accept the Amendment. The idea behind this and the other Amendments is that at this stage we cannot be certain of the precise number of judges which will be required and that it would be proper to make provision in the Bill for increasing their number and the number of the lay members.
One difficulty about accepting this Amendment and the others as they stand is that according to the new proposed subsection (6) the number of members of the Court may be increased by order of 474 the Board of Trade. That would not fit into the Bill because, as the hon. Member will know, appointments of members of the Court are to be made through the Lord Chancellor. If the hon. Member would accept my assurance that we are prepared to accept the principle of his Amendment, I can give him an assurance that we shall arrange for the introduction of a suitably phrased Amendment at the appropriate stage.
§ Mr. Jay
As the President accepts in principle the Amendment which has been proposed by my hon. Friend, may I say that we are grateful for this striking proof that the vigilance of the Opposition has rescued the Government from at least one mistake. I can assure the right hon. Gentleman that if he will accept all our Amendments, we will co-operate with him to the utmost in pushing through this Bill at the greatest possible speed.
§ Mr. Hector Hughes
The Bill deals with Scotland as well as England and Wales, and at present it is uncertain whether the prosecutions and other legal work will be dealt with by courts, as is desired by the Government, or by tribunals, as is desired by hon. Members on this side of the Committee. In the event of the work being dealt with by courts, will the judicial officers be drawn from the Scottish Bench and Bar or from where will they be recruited? Alternatively, if the principle of our Amendments be accepted, will the personnel of the tribunals be drawn from England or Scotland?
§ Mr. Thorneycroft
We are getting a little ahead of the present stage of our discussions. There is a provision later in the Bill for increasing the number of High Court judges in order to provide a source from which these judges can be provided. That is dealt with in the present Clause 26. I ought not to pursue that point at present because it is wide of what we are now dealing with. If the hon. and learned Member has any question to ask, perhaps he would put it when we come to that Clause.
§ Mr. Mulley
I am grateful to the President of the Board of Trade for his acceptance of the principle of this Amendment, and I therefore beg to ask leave to withdraw the Amendment, on the understanding that the matter will be dealt with at a later stage.
§ Amendment, by leave, withdrawn.475
§ The Temporary Chairman
There are a number of Amendments which go together and relate to the matter we are now discussing. Perhaps it would be convenient if we also discussed the Amendment in line 34, after "than" to insert:eighteen and not less thantogether with the Government Amendment in the same line to leave out "nine" and to insert "ten"; the Amendment in the name of the hon. Member for Middleton and Prestwich (Sir J. Barlow) in line 34 to leave out "nine" and to insert "twelve" and the Amendment in the names of the hon. Member for Bolton, West (Mr. Holt) and the hon. Member for Huddersfield, West in Clause 3, page 3, line 8, at the beginning to insert:not more than eight and not less than.
§ Mr. Wade
I agree that this course would be convenient, Sir Austin, and in view of the encouraging remarks of the right hon. Gentleman it will not be necessary for me to detain the Committee long.
Yesterday, the Parliamentary Secretary made an important statement when he indicated that all agreements that were registered would in due course come before the Court. We have no idea how many agreements will be registered. In Sweden there are 1,250 on the register, but in this country, with its much more complex economy and widespread industrial activity, there will be many more agreements registered. It is doubtful, therefore, whether the number of courts specified in the Bill could deal in a reasonable time with the number of cases brought forward.
§ Mr. Thorneycroft
I think I can help the Committee on this point. We have just accepted an Amendment which gives the Lord Chancellor power, by order, to increase the number of judges. That goes a considerable way to meeting these Amendments. At the same time, it is desirable to start with the right number, and whatever number is right, the number in the Bill, which is nine, is manifestly wrong. I think that the right number to start with is ten which, on the basis of having all five courts sitting at the same time, makes it possible for each court to sit with two lay members.
476 If the Government Amendment to substitute ten for nine is accepted, and then the Committee relies upon the assurance I have given that if this number proves inadequate at any time we shall have power, by order, to increase it, I believe that would meet the general wish of those who have put down these useful Amendments.
§ Amendment, by leave, withdrawn.
§ Mr. P. Thorneycroft
I beg to move, in page 2, line 34, after "Act", to insert:of whom one, to be selected by the Lord Chancellor, shall be President of the Court".It is not necessary to deploy much argument in favour of this Amendment. It is sensible that what is in the nature of a Division of the High Court should have a President, and the Lord Chancellor is the right person to appoint him.
§ Mr. E. Fletcher
Do I take it that it is the conception of the right hon. Gentleman that the Restrictive Trade Practices Court will become, in effect, a self-contained Division of the High Court? If that is the case, what significance has it in connection with the organisation of the High Court?
Does it mean that the President will be a judge ranking with the Lord Chief Justice and the President of the Probate, Divorce and Admiralty Court? Does it mean that there will be a separate Division? I do not want to anticipate what we may want to say about Clause 3, on which this Amendment has a bearing. Until the right hon. Gentleman put down this Amendment it was by no means clear whether it was his intention, or the intention of the framers of the Bill, that the judges to be nominated would be all Chancery judges or all Queen's Bench judges, or partly one and partly another. Therefore, we want to know whether it is intended that these judges shall be permanently attached to this Division or whether there will be the same measure of interchangeability as exists at present.
§ Mr. Hector Hughes
Following the observations of my hon. Friend, may I ask the right hon. Gentleman what would be the relation of the President of this Court in England to the Lord Chief Justice? He will be President of the Court. Will that Court be a Division of the Supreme Court, just as Queen's Bench today is a Division of the Supreme Court, and just as the Probate, Divorce and Admiralty Court is a Division? Will these courts all be Divisions of the Supreme Court under the jurisdiction of the Lord Chief Justice, for instance, for the allocation of their work? Also, what will be their relation to the chief of the judiciary in Scotland? Will the Court in Scotland be under the head of the judiciary there?
§ Mr. Thorneycroft
The Restrictive Trade Practices Court will not be a Division of the High Court in any accurate sense of that term. It will be a court of record, as is set out in the Bill, with the same status as the High Court. The reason for having a President is the same as for having a Lord Chief Justice in charge of the Queen's Bench Division; that is to say, it is necessary to have someone who will arrange and determine who is to constitute the various courts. That is an ordinary, workmanlike arrangement, and that is why we are seeking power in this Amendment to enable the Lord Chancellor to appoint the President.
§ Amendment agreed to.
§ Mr. P. Thorneycroft
I beg to move, in page 2, line 34, to leave out "nine" and to insert "ten".
We have already discussed this Amendment and I need only add that, if we appoint ten at the beginning, this will enable two lay members to sit in each of the five courts.
§ Mr. Hector Hughes
Inasmuch as the original number in the Bill is nine, an odd number, would it not be wise to substitute an odd number?
§ Amendment agreed to.
§ 8.0 p.m.
§ Mr. Walker-Smith
I beg to move, in page 2, line 37, to leave out from "noticed" to the end of line 42.
The object of subsection (3) is to place the Restrictive Practices Court in the same position in regard to the enforcement 478 of its orders in matters such as committal for contempt as is the High Court in England and the Court of Session in Scotland. However, as drafted, the subsection is perhaps open to some doubt and ambiguity because it might be interpreted to mean that the enforcement of the orders is to be done by proceedings in the High Court or Court of Session, as the case may be, if that meaning were attached to the phrase "as if they were orders of the High Court or Court of Session."
The intention of the subsection is to ensure that the Restrictive Practices Court has the power to enforce its own orders. The object of the Amendment is to do away with the ambiguity. We are considering whether it may be necessary to have a further Amendment to the Schedule specifically to provide that the Restrictive Practices Court shall have powers to enforce its orders in this way.
§ Amendment agreed to.
§ Motion made, and Question proposed, That the Clause, as amended, stand part of the Bill.
§ Mr. Jay
Before we finally part with the Clause, which, in effect, sets up the Restrictive Practices Court, I should like briefly to refer to an earlier argument of the President which is relevant and which he complained had not been answered. My hon. Friends and I still hold the view that the Court is likely to mean much slower procedure than the alternative of the Commission responsible to the Minister, which we have proposed. We believe that the paraphernalia involved in legal procedure is bound in the end to be more laborious.
Apart from the issue of whether the subject will be justiciable or not, to which I will not return, the only answer which the President gave—it is clearly an argument which has moved him firmly in favour of the Court solution—was that under the alternative the President—he described the President as part-time; I take it he meant that he would be part-time only in dealing with this matter, and I go that far with him—would be snowed under by the appalling load of work. That argument seems to be entirely without substance. I accept that the President really believes it, but I think he has been deluded by whoever put the idea into his head.
479 In the first place, the argument proves too much. If it were true, it would be impossible for the Chancellor of the Exchequer effectively to carry out the work which has been carried out by Chancellor's of the Exchequer for twenty or more years. The Chancellor has Ministerial responsibility for the Inland Revenue, the Customs and Excise, the Capital Issues Committee and the Civil Service Commission, as well as a number of other bodies. About 15 years ago there were added to those responsibilities, giving an example of a rather similar body, the War Damage Commission, for which the Chancellor was responsible to the House. It could have been said that it was absolutely impossible for the unfortunate part-time Chancellor, on top of his other manifold and immense responsibilities—which, I believe, are probably greater than those of the President—to take on the huge burden of the War Damage Commission, for it could rightly have been said that it would involve thousands of cases of a complicated and detailed kind reaching his desk and would absolutely paralyse his activities as Chancellor. That could have been said with as much plausibility as the arguments that we have had from the President today.
However, that type of argument did not turn out to be true. We are arguing here not from theory but from practice and experience. No doubt the extra burden involved a great deal of work. Indeed, I can assure the President that it did. Nevertheless, the Chancellor, with the assistance of his large and efficient staff, which the President seems to have forgotten, succeeded in discharging those responsibilities.
What is the reason for that? This is the relevant point. All the cases under the alternative suggestion that we propose would not be dealt with personally by the President. It would be ridiculous to suggest that they would. Individual cases relating to taxation, war damage, postwar credits, etc., do not go personally to the Chancellor of the Exchequer, except in very rare cases where some individual or a Member of Parliament has reason to think that gross injustice is being done. None the less, the essential fact remains that the Chancellor has a responsibility, and in the last resort—I remember it 480 happening in the case of the Civil Service Commission—one can approach the Minister and a Question can be asked in Parliament. Consequently, the picture of the Minister being snowed under and unable to reach judgments is a totally false one. I assure the President that I honestly think it is almost entirely without substance.
What would have happened under the sort of arrangement that we have in mind? There would first of all have been the Commission. It would have taken decisions, precedents would have been created and certain types of cases would have become well known, and in those cases it would have been accepted by everybody that there was no point in an appeal or protest and, therefore, no useful purpose would have been served in putting one forward. Therefore, we should not have had in a great majority of cases Questions in the House, letters to the Minister, Prayers and Adjournment debates, the sort of things which appear to have scared the President out of his wits.
One could argue, I suppose, if we were at the start of the National Service Acts—this is relevant, Sir Rhys, because I am putting a parallel to the President's argument—that if one placed on the Minister of Labour responsibility for calling up every individual in the community at a certain age and made him responsible to the House for doing so, every individual and every Member of Parliament would be able to protest to the Minister personally about each case, that the system would be unworkable, that the machine would be brought to a stop, and that it ought all to be transferred to some judicial tribunal. We know that that does not happen. In the great majority of cases it is accepted that there is no special issue to argue and that the call-up or release can go forward with the reasonable approval of everybody.
I suggest to the President that, with the Commission, with his own staff which would have dealt with the subject, and with the precedents and principles on which the matter was worked, after a time there would not have been many cases, as there are not in any of the comparative subjects which I have mentioned, which would have gone to the President personally for decision or 481 would have been brought to the Floor of the House.
I have expressed these reasons briefly because we have discussed the main issue at some length, and I have raised the matter only because the President said he had not been answered. I consider that there is no substance, when one looks at comparative legislation and comparative administration, at the argument that if our proposal were adopted the pace of the enterprise would inevitably become slower. Having heard that as the sole argument of the President—
§ Mr. E. Fletcher
So far as I am concerned, the Committee having decided the question of principle, that it would be better to have a Court than a tribunal, I prefer now to ask the President of the Board of Trade a few questions about his conception of the Court. The Committee and the country must now accept the decision and operate it as best they can. I am not at all sure that I understand it, and this is the opportunity to ask the President to explain how the Court will work.
I quite understand that Parliament has the right to set up courts. I am not sure when it acquired that right because, of course, in the old days it was a matter of the Prerogative. Only the Sovereign created courts and in mediaeval and feudal times the ability to create courts was one of the most potent sources of power. I gather that during the nineteenth century that privilege passed from the Crown to Parliament.
I want the President to tell us exactly how the new Court will be integrated—if I may use that expression—with the existing establishment of the judiciary and the Court system. I am, of course, familiar with the Supreme Court of Judicature (Consolidation) Act, 1925, which superseded the earlier legislation of the nineteenth century and which set up the High Court with its three Divisions and the Court of Appeal and provided for the 482 ultimate appeal to the House of Lords. It strikes me as a little novel that there is no modification of that Act. Has the President considered that and does he not think it necessary?
May I just test the matter? The President told me a moment ago that the new Court will in no sense be a Division of the High Court. I assume from that that it is to have some sort of completely independent jurisdiction other than that of a High Court. I do not know, for example, whether decisions of the High Court can be quoted in decisions by the Restrictive Practices Court, or whether they will be binding on it. I do not know whether decisions of the Restrictive Practices Court will be binding on the High Court.
Will its existence be similar to that of a Court of Criminal Appeal? There, we have a court whose decisions, as we know perfectly well, have nothing to do with and are not binding on the civil courts. In fact, it was very largely because of the famous dispute—as the Parliamentary Secretary will recall—in the 1920s between Lord Hewart, presiding in the Court of Criminal Appeal, and the Court of Appeal as to whether restrictive practices could be enforced that we had all this confusion years ago, and which very largely produced the present system whereby restrictive covenants cannot be enforced against third parties, a doctrine which is now being reversed by later Clauses in the Bill.
I do not want to anticipate questions which we will have to put to the Government on that aspect of the matter. Let us try to visualise how this Court will be worked. It appears to me, from Clause 3—and I do not want to anticipate the point—that the new Court will be manned partly by judges of the High Court—perhaps from the Queen's Bench Division, perhaps from the Chancery Division, perhaps from the Probate, Divorce and Admiralty Division—
§ 8.15 p.m.
§ Mr. Fletcher
—and it will also be manned by lay judges who are not members of the High Court. I suppose that they will have the same measure of independence. I suppose that their 483 salaries will be charged to the Consolidated Fund Account. Are they to have the same status of irremovability, except by resolution of both Houses of Parliament?
§ Mr. Walker-Smith
Provision is made in the Bill for all that. The tenure of the lay members of the Court is provided for in Clause 4 (2), which we have not yet reached. The question of how the opinion of the lay member will count in relation to the opinion of the judges in the Court is specified in paragraphs 4 and 5 of the Schedule.
§ Mr. Fletcher
They have the right to vote, and their opinion counts on questions of fact, and so on. I am anxious that the Parliamentary Secretary should tell me his conception of the precise constitutional status in the heirarchy of the courts of this particular Court, when constituted. That is very important. Suppose, for example, it commits some obvious error. Will certiorari lie from this Court to the High Court apply? That is the real test of the independence of a court.
One is familiar with a whole variety of inferior courts constantly exceeding their jurisdiction. I am thinking not only of county courts and magistrates' courts, but of administrative tribunals and courts of all kinds which from time to time have to be corrected by the High Court. We have been brought up to believe that in all such cases there can be an a certiorari, in cases of real error or in cases of excess of jurisdiction, to the High Court, which is the court laid down by Parliament to exercise ultimate and sovereign jurisdiction over all other courts in the land, apart from the Ecclesiastical Court.
Will this Court fall into that category? I know that it will be a court of record, but so are some of those other courts. A coroner's court is a court of record, but its jurisdiction is very limited and, if it exceeds its jurisdiction, it can be corrected. Can we have any light on that aspect? Have these matters been considered? I notice that the Lord Chancellor rather assumes that as head of the judiciary he will have some ultimate responsibility for this Court. I am not sure how that arises, because apart from the power of nomination of High Court judges, one of the matters which seems 484 to be excluded from the operations of this court is any appeal to the House of Lords.
The Schedule provides that there shall be an appeal to the Court of Appeal. I shall confine myself to references to England and leave references to Scotland to my hon. and learned Friend the Member for Aberdeen. North (Mr. Hector Hughes), who is a much greater authority on Scottish matters than I can pretend to be. These questions are not frivolous. I am asking for information, because hitherto I had hoped that the whole of the court procedure would have been removed from the Bill. If it is to stay in, the questions which I am raising are pertinent.
I almost feel that I should apologise to the President and the Parliamentary Secretary for not having given them prior notice of these questions. In fact, they have only just occurred to me. However, I hope that either now or at some later stage the real status of this Court and its relationship to the hierarchy of the other courts of the land will be thought about and clarified.
§ Sir L. Joynson-Hicks
I have listened with great interest to the speech of the hon. Member for Islington, East (Mr. E. Fletcher) and, with him, I shall await with interest the replies to several of the questions which he raised. I do not wish to say anything following upon his remarks, but I have sat through nearly all the debate on the Clause and I think it necessary to say something in reply to the right hon. Member for Battersea. North (Mr. Jay).
I heard the speech of my right hon. Friend the President, and also that of the hon. Member for Blackburn (Mrs. Castle), who first raised the point. I am sure that all those who heard the debate appreciated that the reference made by my right hon. Friend to the opportunities which his other duties in his office gave him for the supervision of an additional court was but a passing reference and by no means a fundamental argument for his case. In spite of that, the right hon. Gentleman has blown up this molehill into the most cloudy form of mountain to which I have ever had to listen. [Laughter.] Evidently the right hon. Gentleman not only heard what I said, but appreciates what I meant.
§ Sir L. Joynson-Hicks
There, I certainly cannot agree with the right hon. Gentleman. It seemed to me perfectly evident that what the right hon. Member and his hon. Friends desire to do is to provide a tribunal which can be directed, in matters of policy, by a politician, and which will be responsible to a political party. There is no doubt that that is the basis of their objection to the Clause, and the line upon which they are attacking it.
On the other hand, there is not the slightest doubt that the one thing which the parties to the proceedings desire is to have those proceedings considered by a judicial court, which will not be influenced by political considerations, so that industry will know where it stands and will be able to regard that court with the same high degree of respect for the impartiality of its judgments as it has for the judgments of the High Court itself. Furthermore, the other people concerned with the results of the court's decisions, namely, the public—the people employed in the industries and the consumers who acquire their products and services—universally desire the decisions to be made by a court which they can trust, and not by a tribunal which is subject to political influence.
§ Mr. Hector Hughes
There are a few matters upon which I should like the Minister's guidance before we part with the Clause. First, there seems to be a disparity between the status of the judges and the lay members of this Court. Under Clause 4—which we have not yet reached, but which has been mentioned—the other members of the Court will be appointed for a period of three years while, under Clauses 2 and 3, the judges will be High Court judges drawn respectively from the High Court of England, the High Court of Scotland and the High Court of Ireland. Presumably the judges so drawn 486 will occupy their offices during Her Majesty's pleasure.
§ The Deputy-Chairman (Sir Rhys Hopkin Morris)
As I understand the hon. and learned Member's argument, he is now drawing a distinction between Clause 2 and Clauses 3 and 4. That question cannot arise in a debate upon the Question, That the Clause stand part of the Bill.
§ Mr. Hughes
I quite agree, Sir Rhys, but these matters have been mentioned and it is very difficult to discuss this part of the Clause without dealing with the matters which arise from it. However, I do not want to trespass, and I bow to your Ruling at once. I shall not say another word about it. But that was a matter upon which I sought the guidance of the Minister.
Secondly, there is the question of appeals. I know that they are dealt with in the Schedule, but the question also arises here in relation to the establishment of the Court. I want to know whether the decisions of the Court will be final and conclusive. If not, how far will the appeals from them lie? I cannot deal with that matter further without turning to the Schedule, but I should like to know whether the Court's decisions will be binding.
Thirdly, I would like to know about rules. Usually, when a court is being set up, there is some provision in the relevant Statute about the making of rules. So far as I can see, there is not a word about it in this Bill. What is to be the procedure and practice in this court, and what rules are to govern that procedure and practice? Further, for the purpose of initiating and conducting proceedings in this court, will there be pleadings; and if so, what is the position in regard to them?
It appears from what the Minister says that there will be an appeal from this court to some court of appeal, but it is not clear what the court will be, nor whether it will be an appeal on fact or law, or both, or by case stated. What is the situation? Litigants before these courts will be involved in controversy in these cases not only in England but in Scotland, too, and it is right that they should know how they will stand in the matter.
§ 8.30 p.m.
§ Mr. Willis
I am sorry that the Lord Advocate has disappeared, because the few remarks I am going to make concern the position of Scotland under this Clause. The Court to be set up may apparently have a Scottish judge at its head. Under Clause 26, powers are given to appoint an additional Scottish judge, and I assume that it will be for this purpose.
To discuss Clause 26 would be out of order; but we were told a few years ago, when we passed a Bill increasing the number of Scottish judges, that it was done because of the very large volume of work in the Scottish courts. The indication is that this judge will be appointed specifically for this purpose.
On a previous occasion I made a speech on this matter in the House. Unfortunately, it has become the practice in Scotland for the Lord Advocate or Solicitor-General to be appointed a judge whenever there is a vacancy. It seems to me that, in a matter in which it has been admitted during the debate there is a certain political content—
§ The Deputy-Chairman
It seems to me that matter can be dealt with more appropriately when discussing Clause 26.
§ Mr. William Ross (Kilmarnock)
On a point of order, Sir Rhys. The appropriateness or otherwise should surely be determined by the person who is going to answer, and it does not matter what Clause it relates to. In any event, there is not a representative of the Scottish legal office here, and we are wasting our time. Obviously, the two Government representatives present on the Front Bench opposite do not know anything about it.
§ The Deputy-Chairman
The matter under discussion has nothing to do with the representation on the Front Bench.
§ Mr. Willis
I have no wish to be out of order, but during the debate on this Clause it has been repeated from both sides of the Committee, as one of the arguments on whether there should be a Court or a tribunal, that there are matters to be dealt with by the Court which have a certain political and economic content. My point concerns the constitution of the Court. It is a matter which ought to receive the attention of the Government: for a purpose such as this, the selection 488 or appointment of the judge should be from among the judges who have been in office for a considerable time.
I do not want to repeat the arguments I have made in previous debates on what I consider to be a rather serious situation in Scottish judicial matters; but it does seem to me that the Government ought, if possible, to avoid putting in charge of the court the judge who is newly appointed to make the number up to 16 for this purpose. Obviously, people will think of him in terms of his political affiliations. That applies to both sides of the House, whether he be a Labour or Conservative Lord Advocate or Solicitor-General; if he becomes a judge for a certain time he will be thought of in terms of his political affiliations.
I am convinced that in this Court it would be very disadvantageous and certainly would not create the confidence which everyone considers to be desirable if, for the first year or two of the Court's operation, the judge in charge is thought of in terms of his political affiliations rather than in terms of his judicial abilities. I am not casting any aspersions upon whoever may be appointed, but I believe that to be something which certainly ought to be watched very carefully.
§ Mr. Mulley
I do not wish to detain the Committee long, nor do I wish to appear discourteous. Nevertheless, when we are discussing what are esentially legal matters, I feel it would assist the Committee if Law Officers were present in the Chamber. I appreciate we cannot have the Lord Chancellor here. I am not going to make a cheap point. I know that the President and the Parliamentary Secretary are here, but if we are to discuss matters of the kind raised by the very specific words of my hon. Friend the Member for Islington, East (Mr. E. Fletcher), then I do think it would be of assistance, as we cannot have the Lord Chancellor here, that we should at least have one of his Law Officers to represent him.
§ Mr. P. Thorneycroft
Perhaps I might now do my best to answer these points. I will start with the right hon. Member for Battersea, North (Mr. Jay). He restricted himself to the one question whether it was right to say that the procedure of an administrative tribunal responsible to a Minister was slow.
489 He underestimates the size of the task which has to be tackled and the controversial character of it. These practices are widespread and very deep-seated. The people who practise them believe with almost passionate fervour that they are right. When the Bill is passed I am sure it will be accepted generally as the will of the House of Commons. The machinery will be gone through and the judgments will be observed; but to imagine that we can have inquiries going on with the Minister responsible, and that, somehow or other, the Minister can detach himself from those inquiries, is a bad argument.
The right hon. Gentleman said quite rightly that Ministers have very wide responsibilities that very often do not come to their individual attention. That is absolutely true. A Minister's life would be unbearable if every one of those responsibilities came to his attention. I can speak with several years' experience in the Board of Trade, and I assure the right hon. Gentleman that restrictive trade practices do not come into that category. Every single Report of the Monopolies Commission in my time has come to me personally, not once but very often several times, on a number of very complex, controversial and difficult points.
It is not a question of trying to avoid work. One would not be a Minister if one were trying to avoid work. This is relevant to the question of the bottleneck and of how quickly we can get through this job. If we are serious—and I think both sides of the Committee are—in our desire to get through this business with expedition and fairness, we have to look at these things objectively and practically. I say with all sincerity, from the experience I have had, that if this is done on a basis of Ministerial responsibility it will be done much more slowly.
§ Mr. Thorneycroft
The courts deal with revenue cases. Individual taxpayers, much as they would like it, do not go 490 to see the Chancellor of the Exchequer. On the other hand, if in any one of these cases under the Bill, whether it is tyres, sand and gravel from Scotland, the dental goods industry, or any of the hundreds of industries involved, the practices in the industry are being challenged, it would demand and could get, if there were a responsible Minister in charge, the right to put its case personally to him. The Minister would have to deal with it and would have to be prepared to examine and to defend his position against experts. It is often said that there is no subject on which there is not an expert in one part or another of the House of Commons. The Minister would have to defend not on the broad principle, but on the meticulous details, and the historical background of the particular trade arrangements. I will not develop that point too far, but I ask the Committee with sincerity to weigh these arguments and considerations, which have weighed with us very much in coming to our decision on the Bill.
The hon. Member for Islington, East (Mr. E. Fletcher) bowled some rather fast ones to us on procedure. The decisions of the Appeal Court are, of course, binding, while the decisions of the lower court constitute persuasive precedents, as they do in any other court, but are not in the full sense binding. There is an appeal to the Court of Appeal, as is set out in the Schedule, and to the House of Lords. I am informed that a writ of a certiorari would, in fact, hold in the case of that court. That is the best answer I can give at short notice to the points which the hon. Gentleman put to me.
I agree with my hon. Friend the Member for Chichester (Sir L. Joynson-Hicks) that speed, of course, is not the only point. There are, as he rightly pointed out, other and formidable considerations. It is not only speed—I do not want to emphasise them all again, but there is the necessity, as we see it, for certainty in these matters; for the knowledge that a steady flow of decisions is to come through untrammelled by changes of political opinion, political pressures and Questions which may be put in this House. There is also—and this is a point that I should like to emphasise once again—the need for authority in any court which is to be put in charge of making decisions upon these matters.
491 We really cannot set up an administrative tribunal, which, the moment it makes a decision, is to be bitterly criticised, sometimes in the House of Commons, but more often by the industry which has appeared before it, and by the Press, and so forth. It is not possible to have decisions taken in that kind of atmosphere. It is far better, in our judgment, for Parliament in due consideration to lay down the principles which are to be followed and then to ask for a judicial court to interpret those particular criteria in a particular case.
The hon. and learned Gentleman the Member for Aberdeen, North (Mr. Hector Hughes) asked about the appointment of the judges. That is dealt with in Clause 3. The question of appeal is dealt with in paragraph 7 of the Schedule. As regards rules of court, there will of course be rules of court as there are rules of every court. Indeed, the hon. and learned Gentleman has put down an Amendment to Clause 18, which deals with that particular subject so he has obviously given considerable thought to that matter himself. In answer to the hon. Member for Edinburgh, East (Mr. Willis) the increase in the number of Scottish judges is dealt with in Clause 26 and, of course, it will be a matter, not for me but for the Lord President of the Court of Session to say which judge is to act in this regard.
§ Mr. Hector Hughes
Perhaps I may put to the President of the Board of Trade one further point which I ought to have put before. It arises directly on this Question, "That the Clause stand part of the Bill." Clause 2 (5) provides that:The Lord Chancellor may appoint such officers and servants of the Court as he may, with the approval of the Treasury … determine. …Inasmuch as the Lord President of the Court of Session in Scotland has, under another Clause, the power of recommendation with regard to the constitution of the Court, would it not be right, and would not the President take into account in subsection (5), that the Lord Chancellor should consult with the Lord President of the Court of Session with regard to the appointment?
§ Mr. Thorneycroft
I am not familiar with the relationship of the two, but I have no doubt that the Lord Chancellor 492 does take the Lord President of the Court of Session into consultation. If the hon. and learned Gentleman looks at the Schedule he will see that the central office of the Court is to be in London, and I think it is for that reason that the officers are appointed from there. I will, however, look into that.
§ Mr. Hughes
I think that the right hon. Gentleman has missed the point, and as he says that he does not know the relationship of the heads of the judiciaries of England and Scotland, respectively, I may tell him that the Lord Chief Justice is head of the judiciary in England and the Lord President of the Court of Session head of the Scottish judiciary.
§ Mr. Hector Hughes
The point I am making—and perhaps I did not make it clearly enough—relates to Clause 2 (5), which provides thatThe Lord Chancellor may appoint such officers and servants of the Court as he may, with the approval of the Treasury … determine. …Inasmuch as the court will consist not only of English judges but also of Scottish judges and Scottish appointees, I am asking the Minister to alter the subsection so as to make it read that the Lord Chancellor shall make the appointments after consultation with the Lord President of the Court of Session in Scotland. The suggestion has fairness in it, I think, and I ask the President of the Board of Trade to consider it.
§ Mr. Thorneycroft
The hon. and learned Member's propositions always have fairness in them, and I can assure him that we shall certainly consider the point.
§ 8.45 p.m.
§ Sir Leslie Plummer (Deptford)
In the previous discussion, the hon. Member for Heston and Isleworth (Mr. R. Harris) thought fit to make some criticisms of the Monopolies Commission, and to deduce that it was absolutely right and proper that a Court should be established to deal with the registration of complaints in a judicial fashion. I notice that the President of the Board of Trade, following the example set by the hon. Member 493 for Heston and Isleworth, has constantly referred to the fact that a tribunal would always be subject to the criticism of Members of this House, and, therefore, would not have the weight that would be given to any decision by a judicial court.
Who attacks the Monopolies Commission? Where do we get this view that the Monopolies Commission is composed, as the hon. Member for Heston and Isle-worth says, of people whose antecedents are doubtful and whose decisions are subject to criticism because they are not arrived at faithfully and properly? Where does the President get the view that there is throughout this country not the same confidence in the Monopolies Commission as there would be in a court constituted in the way which he recommends?
Neither the hon. Member for Heston and Isleworth nor the right hon. Gentleman himself can deduce that from industry, for three years ago, our own Select Committee on Estimates, under the chairmanship of the hon. Member for Weston-super-Mare (Sir I. Orr-Ewing), investigated the Monopolies Commission, and summoned before it the Economic Director of the Federation of British Industries and Mr. W. J. Jones, a Director of the Electric Lamp Manufacturers' Association, whose company, along with others, including that with which Viscount Chandos is associated, had been considered by the Monopolies Commission.
The Chairman put the most pointed questions to the Director-General of the Federation of British Industries, Sir Norman Kipping, as to the objectivity of the Monopolies Commission, and I should like to quote, from the Report of the Select Committee on Estimates (Sub-Committee F) on 3rd March, 1953, what Sir Norman said. We were asking him about the policy of the Monopolies Commission, and he said:Our impression is that people have, on the whole, been glad of the care and precision with which the Commission has conducted the inquiries.If there is anybody in this nation who has cause to criticise the Monopolies Commission, it is the Director-General of the Federation of British Industries. Here is a man who has a vested interest in opposing many of the decisions of the Commission, and who had to say that people had been glad of the care and precision with which the Commission had conducted the inquiries.
494 It is fair to say that Sir Norman is a salaried employee of the Federation of British Industries and is in a position to take a more objective view of the work of the Commission than Mr. W. J. Jones, Director of the Electric Lamp Manufacturers' Association, a body containing members who were most severely criticised by the Monopolies Commission, yet who said:I do not know whether it is the right moment for me to say it, but having regard to the letter from your secretary I have the impression that the inquiry was a long and detailed and exhaustive one, but nevertheless I felt it was a very fair inquiry. I also still have the impression that if it were less exhaustive and carefully conducted, then any industry concerned would be the poorer for it. That is merely my perspective of having been through the inquiry for about three years.I quote this time from the Report of 17th March, 1953, when he was asked whether the Commission was spending too much time or laying too much emphasis on the background and the history of the structure of the association and industries of the association—whether it was conducting itself in a way in which a properly constituted tribunal under the Bill should conduct itself; and he said:May I put it this way? I realise that one of the terms of reference of the Monopolies Commission was to get a true perspective of the industry, but I think if I had any little hesitation on the matter I would possibly feel that sometimes they delved a little too deeply into the past. I think that would be my general impression of things. But having said that, it is difficult to nail it down in detail,He had the opportunity to make any criticism he liked on the conduct of the tribunal set up in the form of the Monopolies Commission, and he and the Director-General of the F.B.I. came to the view which we have tried to put here over and over again—that it was possible to have, in a tribunal established on those lines, a fair, honest and impartial tribunal, doing a good job in the interests of the Government and of the country.
It is about time that these subjective criticisms of the Monopolies Commission stopped, and that hon. Members read some of the Reports produced by other hon. Members so that they might know that a successful organisation like that can point the way to the future success of similar tribunals.
§ Mr. P. Thorneycroft
I fully share what the hon. Member for Deptford (Sir. L. Plummer) has just said. There is and 495 should be no question in any quarter of the House about the fairness with which the Monopolies Commission has conducted its work, and if anything were said to the contrary in any quarter I would dissociate myself from it. My argument was not based upon that principle at all.
The most I said was that if we had an administrative tribunal, whether the Monopolies Commission or not, responsible to a Minister, it would certainly not be exempt from criticism. It is the very essence of that system that it should be subject to criticism. That was all I said, and if anyone interpreted it in another light I am grateful to the hon. Member for assisting me in putting that right. I have every reason, and the country has every reason, to be grateful to the Monopolies Commission for the work it has done and for the foundation it has laid for the advances in this field.
§ Mr. R. Harris
I associate myself with my right hon. Friend's remarks, but I am sure the hon. Member for Deptford (Sir L. Plummer) realises that there is liable to be some lack of confidence in a Report which is issued with a very large minority Report, completely disagreeing with the majority Report. In the very important Report on Section 15, seven members of the Commssion signed the majority Report, three very powerful members signed a Report completely opposite, and one signed a special Report disagreeing with the major recommendation. In the case of the tyre Report, there were nine people—
§ Mr. Harris
The main Amendment to the Clause was that there should be a Monopolies Commission Tribunal.
§ The Deputy-Chairman
We are not now dealing with the Amendment but with the Question "That the Clause stand part of the Bill."
§ Mr. Harris
I have made my point. I merely wanted to make it clear that there is liable to be some lack of confidence where there is a large minority Report.
§ Mr. Turner-Samuels
The hon. Member has not made the point. He alleged that he had letters from industry to show that the actions of the Monopolies Commission were not impartial.
§ The Deputy-Chairman
When this matter was raised first it was in order, but the discussion is getting far too wide.
§ Mr. Frederick Lee (Newton)
If we are to convey the impression that decisions of a tribunal are in some way less reliable than those of a court, I submit to the President that that is a most dangerous precedent to set. Wages and conditions applicable to wide ranges of industrial workers, in the last analysis, are determined by tribunals. I should have thought the way in which both sides in industry have now reached the point of accepting such tribunal decisions is based on their complete reliance on the impartiality and fairness with which tribunals conduct their business.
If we are to be told that for the purposes of this Clause we must deem a decision by a court to be superior to that which we might expect from a tribunal, that might have a bad effect on decisions of tribunals in the wider spheres of industry. Wage relationships and the settlements of disputes are dealt with by tribunals, and on the decisions of those tribunals both sides rely with confidence.
We have heard most dangerous arguments in support of the institution of a court instead of a tribunal which could have far-reaching effects on the future of industrial peace in Britain if taken up by either side of industry in the relationship between employee and employer. I hope that from that point of view some of the things we have heard in this debate will be looked at again in order that no feeling should be permitted to go out from this Committee that the decisions of tribunals are inferior in any way as to the reliance which may be placed upon them from those of a court, no matter what that court may be.
§ Clause, as amended, ordered to stand part of the Bill.