§ Mr. P. Thorneycroft
I beg to move, in page 2, line 5, at the end to insert:(3) The Registrar may consult the Law Officers of the Crown through the Treasury Solicitor on any appropriate matter of doubt or difficulty arising in the execution of his duties.I think there is no doubt that consultation on matters of difficulty should always take place, but my right hon. and learned Friend the Member for Chertsey (Sir Lionel Heald) has drawn particular attention to this point, and I think it was the view of the Committee that it would be better to state it clearly in the Bill. Matters 'may arise where consultation could fruitfully take place between the 609 Registrar and the Attorney-General. I am not going to discuss here the question of Crown privilege which raises much wider issues than this—in fact, so much wider that I hope it may be possible to debate them in a wider context than this Measure.
There is no doubt that, quite apart from privilege altogether, and quite detached from that, there may be cases where Government Departments themselves are participating in one way or another in arrangements of this kind. After all, Government Departments sometimes trade. The Post Office, the Ministry of Supply and the Ministry of Works may on occasions be involved in one way or another in arrangements which would be registrable under this Measure, and I think it is the general sense of the House that evidence of the facts about any situation should be given.
I do not think there is any difficulty about this normally. There is nothing to do with privilege in that. I am only using this as an example of the sort of thing which might happen. If there were any difficulty, there would be no reason why the Registrar should not consult with the Attorney-General in a particular case of that character. I use that merely as an illustration of the way that these things might be done. Certainly it is our wish that the full information should always be in front of the court.
However, I am not trying to put that forward as a limiting factor in any way. I think it is right to record in the Bill that if there is any matter of doubt or difficulty, in an appropriate case consultation of this kind should take place and the fact should be recorded as is proposed in this Clause.
§ Sir L. Ungoed-Thomas
I am a little puzzled by the right hon. Gentleman's references to cases in which Government Departments might be involved in agreements of this kind. Does he seriously contemplate that where Government Departments are involved in agreements when they might require the advice of the Law Officers, the Registrar, perhaps acting in a different capacity—perhaps against the Government Departments as parties to agreements—should nevertheless consult the Law Officers? Does not the right hon. Gentleman contemplate a conflict of interests resulting in an impossible situation for the Law Officers?
§ Mr. Turner-Samuels
This is a very good Amendment indeed. I am perfectly certain that what the President of the Board of Trade was doing was to try to illustrate how useful this provision might be, without dogmatising that any one of those cases would in fact come into play.
The whole point really seems to be this. These particular matters relate to the public interest. As the matter stands without the Amendment, it is very doubtful whether we would not put the Registrar and, indeed, the Law Officers into a most invidious position unless it were explicitely stated that it was proper that there should be contact for the purpose of consultations for advice between those two official officers.
According to our canons of justice and our conduct of litigation, it is very doubtful whether it would have been valid and, indeed, proper for the Registrar and the Law Officers to come into contact with each other without it being clearly enacted that it was proper to do so. It must in actual practice be proper because where the public interest is involved and the Registrar is in any doubt, it is right and indeed necessary that there should be this right of consultation available. That is what this Amendment seeks to do, and I am sure the House agrees that we should accept this position.
§ 5.0 p.m.
§ Sir L. Heald
I should like to say a word of thanks to my right hon. Friend for bringing this matter forward at this stage. It may be right that I should remind the House that on 11th April this matter was discussed in the House on an Amendment which I then moved. I am sorry that the right hon. Gentleman the Member for South Shields (Mr. Ede) is not here, because not for the first time he stood shoulder to shoulder almost alone with me like two Athanasii against the world. We achieved very little success. What we pointed out at that time by our Amendment was that it was desirable to have two things. We actually asked there that the case should be presented by the Registrar under the direction of the Attorney-General, and it was pointed out at that time that that was not a desirable thing. I will not go into the discussion. Later, when the matter was discussed on another Clause, my right hon. Friend said that he would reconsider the matter with a view to meeting us in 611 another way. So far as that part of that Amendment is concerned, he is actually meeting us by this provision that the Registrar may consult the Law Officers, and I have not the slightest doubt that although "may" does not mean "shall", it means in practice "will", because, quite obviously, the Registrar would consult the Attorney-General if he had the opportunity of doing so.
We come to the second part of the Amendment moved then, which was to the effect that it should be the duty of the Treasury Solicitor preparing the case for the Attorney-General to ensure that all the relevant facts and circumstances were before the Court whether in favour of or against the interest of any party to any such agreement.
It was then stated by the Attorney-General that that certainly would be the intention and he thought that it was unnecessary to have any provisions to that effect. We are naturally very glad to hear, although my right hon. Friend has not put anything in the Amendment about it, from him today that that certainly is the intention. Perhaps I may ask him to confirm the position as we understand it, because it is a matter that has caused a certain amount of concern.
One has to remember that the Registrar is the other party to the proceedings apart from the particular industry that is being investigated, and the Registrar, being a new kind of animal, will have no documents or information at all in his possession except the register, and it may very well be that there is information in the hands of Government Departments which would be very valuable to the parties and to the Court. What has been rather troubling some of us is what guarantee there would be that that information would ever be available because, under the ordinary process of discovery, the Registrar would, of course, be acting perfectly properly if he made a list of the documents in his possession. which would consist merely of the register and nothing else.
We want to be quite sure that the Registrar would in fact, if he were asked to do so, and if it were suggested that there was material that might be helpful —and there might very well be—use his 612 best endeavours to get that from the Departments and that the Departments would not unreasonably withhold any information which they had. Questions may arise about Crown privilege and matters of that kind. I agree with my right hon. Friend that that is a matter to be discussed at another time, and we are very hopeful indeed that there will be an opportunity of discussing that important subject at large very soon.
Meanwhile, I think that the most we can ask of my right hon. Friend, who, I think, has very nearly satisfied us on that already, but not quite, is that we would like to have another word from him about it. Will he say that it will be the business of the Registrar that one of the matters on which he would consult the Attorney-General would be as to whether there was material which could usefully and properly be put at the disposal of the Court by the parties, whichever way it should turn?
I equally would like my right hon. Friend to say—and I have no doubt that it will be the case, and I hope that there will be no difficulty in saying so—that Government Departments if they have material will not unreasonably withhold it. This is quite a serious point, because any of us who has experience of complicated litigation will know that if a party, I do not say wants to be awkward, but if he likes to be strict can say, "I am very sorry, I have no documents on this matter and no power to get them out of anyone else." It really is a matter of machinery, and if we had an assurance of that kind from my right hon. Friend, I myself would feel perfectly happy and also grateful to him for what he is doing.
§ Mr. E. Fletcher
When I first saw this Amendment on the Order Paper I was disposed to regard it as innocuous, but I was very disturbed by what the President of the Board of Trade said just now in commending it to the House. In fact, his observations threw an entirely new light on the matter, and it is for that reason that I think the House ought to probe it a little before we accept it.
During the Committee stage, we had quite a lengthy discussion on Clause 1 with regard to the proper channel for the appointment of the Registrar and with regard to the whole question of Parliamentary accountability. Amendments were put down and supported on both 613 sides of the House suggesting that the Registrar's chain of responsibility ought to be to a definite Minister of the Crown in order that the principle of Parliamentary responsibility might be quite clearly understood. Some hon. Members suggested that he should be appointed directly by the President of the Board of Trade, and some suggested that he should be appointed by the Lord Chancellor. In fact, to take another example, I thought that he might just as conveniently be appointed by the Home Office, because his functions would be, if not quasi-judicial, concerned with the administration of the law and the responsibility of initiating proceedings in a court comparable with the High Court.
Those Amendments were not accepted, but it seems to me that the President of the Board of Trade has, by putting down this Amendment, sought at any rate to go some way to satisfying, in particular, the arguments put forward by the right hon. and learned Member for Chertsey (Sir L. Heald). But what do we now find? I do not regard this as nearly so satisfactory as a Clause saying that the Registrar shall be appointed by and responsible to a Minister of the Crown.
The suggestion now is that he may consult the Law Officers of the Crown through the Treasury Solicitor. The first question that occurs to me on those words is what do they mean. Do they, for example, if those words are incorporated in the Bill, give Members of Parliament the right to put Parliamentary Questions down to the Attorney-General as to whether, on such and such a case, he has been consulted by the Registrar?
§ Mr. Fletcher
Surely, if Parliament writes into a Bill that the Registrar is to consult the Law Officers of the Crown, it will be competent—and I am not quarrelling with it; I am welcoming it, but we must know where we are, and I am asking the President to confirm it—for Members to ask the Attorney-General whether, as regards a particular matter, 614 he has been consulted or not. I am not suggesting that the Attorney-General should be asked to report to the House the advice he has given. I think that as the question may quite properly arise whether certain proceedings have been taken or are contemplated or certain groups of agreements are going to be investigated, it would be right for the House to know whether he opinion of the Law Officers has been taken or not.
§ Mr. Leslie Hale (Oldham, West)
It seems to me that one question which one needs to ask in the House at any rate, and without any other qualification, is why action has not been taken in connection with a certain agreement. The Registrar may have taken the advice of the Attorney-General. What is the answer that will be given? If the answer be that the Registrar took the advice of the Attorney-General and the Attorney-General advised that the agreement does not constitute a breach of the Act, what is the situation then?
§ Mr. Fletcher
I am obliged to my hon. Friend the Member for Oldham, West (Mr. Hale). He will, no doubt, be making his own speech in his own way later on, when he will, if I may say so, to the entertainment, delight, and edification of the House, develop the points which are now troubling him, as they now trouble me; others, no doubt, will arise as we go on. I do not know what the answers will be to hypothetical questions, but we are, at any rate, concerned to know that these questions can be put.
Secondly, what is to be the position of the Treasury Solicitor? He has been introduced here for the first time. I am not clear to whom he is responsible. Is he responsible to the Attorney-General, or to the President of the Board of Trade? Is he a mere conduit pipe? Questions cannot be put to him, obviously, but, presumably, Questions about him and about his functions can be put to some Minister. Here again, I congratulate the President of the Board of Trade; he is going a long way to help us. I only hope that he will go a little further and clarify this matter in our minds, so that we may understand more clearly how we can usefully develop this chain of Parliamentary responsibility, to which the right hon. and learned Gentleman the Member for Chertsey and my 615 hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels) attach so much importance.
There is another aspect of this matter which disturbed me when I heard the President of the Board of Trade speaking. He indicated, no doubt quite rightly, that under this Bill agreements to which Government Departments are a party, or at any rate in which Government Departments are involved, may be registrable. As he quite properly pointed out, in these days Government Departments are very often trading organisations. Even if Government Departments are not trading organisations, there are certain quasi-Government institutions, such as the nationalised boards, which may be involved.
For instance, the Atomic Energy Authority will, presumably, enter into quite a number of agreements which will inevitably contain restrictive provisions. I shall be very surprised if it does not. Some of those agreements may be perfectly proper and necessary for security reasons; some of them may be made with individuals and companies in this country; some of them may be made with individuals and concerns overseas. It is not intended that there should be any discrimination in the matter. There are security provisions, as one knows, which will be observed, but, over and above the security provisions written into the Bill, in the whole field of atomic energy, which is to play such an immense part in our economic and industrial affairs in the next generation, there will inevitably be a whole series of agreements, nothing whatever to do with security, which, as the President recognises, will be registrable, and which will, therefore, subsequently be open to adjudication if necessary.
I was not clear from the remarks of the President what would be the function of the Law Officers of the Crown as regards restrictive agreements which are prima facie registrable. It seems to me there will be a conflict of duty. The primary constitutional duty of the Law Officers of the Crown is to advise and protect the Sovereign, acting through the Ministers of the Crown, and thereby, of course, all the Government Departments. But Government Departments in this country are subject to the law of the land 616 like any other individual, and if any Department should enter into a restrictive agreement, that agreement will be registrable. It would, accordingly, be the duty of the Registrar to consider whether or not any proceedings should be taken.
Ex hypothesi, there may be an agreement between a company and, shall we say, the Atomic Energy Authority, which is quite unnecessarily restrictive in its application, or an agreement with the Coal Board or some Department of State. Surely, the Law Officers of the Crown are put in a very complicated position in respect of any such agreements if they have, on the one hand, to advise the Crown and, on the other hand, have at the same time to advise the Registrar as to what his duty shall be.
I am not complaining at all that this Amendment should be written into the Bill. I make these observations because it seems to me that, if it is written into the Bill, the consequences of what the President has said will have to be examined. We shall have to consider what our attitude will be. I hope that, on reflection, the President will at least recognise that the points which have emerged in this debate require a good deal of further consideration. It may be necessary to qualify this Amendment, and to consider its application as regards agreements in which Government Departments are involved, either directly or indirectly as parties, or perhaps as sponsors of some commercial activity in which they are directly interested, quite legitimately, in order to further the public interest in one way or another.
My own opinion is that it would be difficult, until this matter has been investigated on the lines I have indicated, for the House to accept this Amendment implicity as it stands. I hope we shall have a considered reply on this matter from the Government.
§ Mr. Simon
I welcome this Amendment, principally because, to my mind, it recognises the impartial and independent function of the Law Officers in our constitutional system. I cannot, for my own part, see that there is any conflict of duty at all, any more than arises very frequently, I should have thought, in the exercise of the Law Officers' function where there is a conflict of interest 617 between two Departments. It is a valuable tradition in our system that the Law Offiers do give independent and impartial advice to the Government, irrespective of how it impinges on the interests of particular Departments.
§ Mr. Turner-Samuels
A conflict of interest can, and does on occasion, arise which raises the question whether it is proper for the Law Officers to give an opinion in such a case. In those circumstances, the Law Officers are careful not to advise if, on the facts, it is obviously not proper that they should do so.
§ Mr. Simon
I am much obliged to the hon. and learned Gentleman the Member for Gloucester (Mr. Turner-Samuels).
The question arose also of the function of Parliament. As I understand it, it has always been held that it is constitutionally undesirable, and, indeed, constitutionally improper, to divulge any advice that the Law Officers have given to the Crown. Very frequently, the question is asked whether the Law Officers have been consulted. Sometimes it is answered. Very often the answer is "Yes". Sometimes there is no answer at all, and one is left to surmise in those cases that, by inadvertence, the Law Officers had not been consulted, and that is why the disaster has occurred. As I understand it, it is the ordinary procedure that one can ask whether the Law Officers have been consulted—and the answer is generaly given—but one cannot find out what opinion has been given.
There is just one other point which I should be grateful to have cleared up by my right hon. Friend. He gave an example of the sort of situation in which this consultation might be necessary and he said—I was very glad to hear him say it—that there could be cases where Government Departments were participating in or were involved in arrangements which would fall within the ambit of the Bill, and that it is his desire and intention that all evidence of the facts in such matters should not be withheld by Government Departments.
I am sure that we all welcome that declaration. My right hon. Friend was not, I take it—and I hope that he will make it explicit—limiting that declaration of his intention merely to cases where Government Departments may be participating in or involved in this arrange- 618 ment, but it is his intention, generally speaking, that, apart from questions of privilege, evidence of all relevant facts in the possession of all Government Departments should be made available to the parties and to the Court and should not be unreasonably withheld. I should be very grateful to my right hon. Friend if he would specifically deal with that.
§ Mr. P. Thorneycroft
With the permission of the House I should first like to say that I am glad that we did put down this Amendment, because if there is any doubt about the matter it is much better that the doubt should be resolved here rather than that it should strike anyone with surprise afterwards. I do not think that it is very startling to say that the Registrar should be free to consult the Attorney-General through the Treasury Solicitor on any appropriate matter of doubt or difficulty. I think it would be very remarkable if he could not.
The Treasury Solicitor is the legal adviser to the Registrar. He acts as solicitor to the Registrar. I have stated that on other occasions but I think it is as well to restate it now. I think that the House generally regards it as a very proper and appropriate arrangement that the Registrar should receive legal advice from an official of such high standing as that. He is, of course, represented in court by counsel nominated by the Attorney-General. I do not suggest that in those circumstances he has to spend all his time consulting the Attorney-General himself. Nevertheless, I think it is right that he should be able to do so.
A great many people can, and no doubt a great many people on rather conflicting sides do sometimes consult the Attorney-General. I agree with my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon) that the Attorney-General very often does have to reconcile within the great orbit of his advice what might sometimes at first sight appear to be inconsistent points of view, to hold the scales fairly, and to give advice as to what the law and practice should be. That is the great task which falls to the Attorney-General in this country and one which will remain with him.
If there is a question of doubt or difficulty as to whether something should be 619 registered, that is a matter for the High Court. There is provision in the Bill for application to the High Court to resolve such issues. If there is a question as to the order in which particular practices are brought before the Restrictive Practices Court, I think that that is a matter on which Questions could be put to the President of the Board of Trade. I do not know that one would get an altogether satisfactory answer on all occasions, but as the President has power over the order and timing, presumably some Questions in that field would be relevant.
I am not prepared to go beyond the admirable exposition of my hon. and learned Friend as to what Questions can be put to the Attorney-General. I think it has been the experience of most of us to have heard Attorney-Generals of all parties say that consultation has taken place, but I can recall no Attorney-General disclosing what advice was given on such occasions. I am quite certain that no hon. Member would press for that.
So far as the illustration I gave—and I should like to emphasise that it was only an illustration—I am grateful to the hon. and learned Member for Gloucester (Mr. Turner-Samuels) for raising the point about factual information being given. Of course, nothing that I have said changes the basic provision of the Bill that the onus of proof is laid fairly and squarely on the parties to the agreement. It is for them to make out their case. It is explicit in everything in the Bill that they must produce the evidence to discharge the onus set out in Clauses 15 and 16.
We are also agreed, I think, that we do want the full facts to be brought forward, and in cases where Government Departments can give oral evidence of relevant facts the Court itself—I emphasise, the Court itself—will wish that evidence of that kind should be brought forward. It is certainly my wish that such evidence may be available. I used that merely as one illustration of the type of consultation.
§ Mr. Hale
When I emerged from my bath this morning I felt, even if I did not look, precisely like Diana Dors the other day. I said "Two pounds—the money is an insult. I shall not go." 620 After hearing this discussion I am now glad that I changed my mind. The President of the Board of Trade made, I think, one of the most remarkable short speeches I have heard from the Government Front Bench—and that says a lot. He congratulated himself on putting down the Amendment because it provided an opportunity for others to disagree with it. That may be so, but it can apply to almost anything on the Order Paper. Having congratulated himself on finding people who disagreed with it, he concluded his speech without saying whether he was in favour of the Amendment or not. We are still in doubt as to whether or not he is asking the Committee to accept it.
The hon. and learned Member for Middlesbrough, West (Mr. Simon) referred to the constitutional position of the Attorney-General. There is no position more unconstitutional than that of the Attorney-General. It is anomalous. It is almost legally atavistic. It has always involved a conflict of duty. It should be abolished, and the duties of legal adviser to the Crown should be separated entirely from the duties of the head of the Bar and the person who conducts litigation in the courts in the name of Her Majesty. But to recognise that there is an obvious conflict is no reason for adding to the conflict.
I must say that the right hon. and learned Member for Chertsey (Sir. L. Heald), with his long experience of the sort of people whom Tory Governments appoint to various offices, took the gloomiest view about the sort of man who would be appointed Registrar. He said that the Registrar would not have any law books or have access to them; or be a member of the legal profession who would normally have at his disposal the services of the Bar or Law Society libraries.
§ Mr. Hale
Listening to the right hon. and learned Gentleman I wondered whether he was sure that the Registrar would be able to read at all, and whether he would not be in need of constant advice on all the duties of his profession.
Speaking a little more seriously—and I certainly think it should be considered seriously—there are two aspects to the matter. The first is whether it is good that the Registrar should have the right 621 to consult the Attorney-General at all. As I understood the President, he is pretty well satisfied that the Registrar should have that right. The second aspect is whether the President should have the right to write it into the Bill and so give the right hon. Gentleman, probably, the right to refuse to reply to Questions.
In the first place, once statutory sanction is received, it becomes almost obligatory upon the Registrar to consult the Attorney-General in any case of difficulty, because he lays himself open to the gravest criticism if he does not. The moment he makes a "bloomer" and some hon. Member asks a Question, if we have that right, or, if we have not, writes to The Times—if The Times will publish it, and it does not publish much of a controversial nature nowadays—the Registrar is attacked at once.
They will say "You silly fool, what's the use of saying now that you have made a mistake? You could have consulted the Attorney-General." It is one of the cherished traditions of the House that the Attorney-General will give correct advice. This is one of those illusions we preserve ߞand perhaps it is as well that we should preserve them—through all the changes of party.
The right hon. and learned Member for Chertsey will recall that Lord Westbury, when Lord Chancellor, having bitterly attacked trustees for their improper conduct of a trust, had handed to him a note signed by him as a young barrister—Mr. Richard Bethell—advising those very trustees to act just as they had done. He was not apparently taken aback, but merely expressed surprise that a young gentleman who could give such bad advice should have advanced so far in his profession.
For the purpose of hypothesis I assume that the Attorney-General, on balance, might be right. We therefore get the Registrar popping along to the Attorney-General's office on every matter of difficulty. Then the hon. and learned Member for Middlesborough, West, if I may use a vulgar expression, "blows the gaff." As he says, we then have the position that if any hon. Member asks a Question, he is told that the Attorney-General has advised on it. If he then asks what that advice was, he is told that it is not the practice to disclose it. There is a 622 complete cloak on Parliamentary Questions about the Registrar. The Registrar says "I saw the Attorney-General," and the Attorney-General says "My high and distinguished office does not permit me to disclose the advice I gave." Therefore, this Amendment raises the matter of the legal discussion we had about Parliamentary accountability in a great number of cases.
Quite seriously I say to the President that this Registrar's position is already a pretty anomalous one. The President has defended it, and has explained it, and, I think, has made a very good case for something quite new. Lawyers tend to be conservative about the law, and I admit quite frankly to a certain Toryism about legal procedure. One becomes inured to certain practices, and we look with suspicion at innovations. It may be that this is a very good innovation, but it is an already anomalous position.
The Registrar is partly the C.I.D. He has got to issue the original instructions. He has got to examine such particulars as are given. He has got to undertake inquiries and make some report which he can also give to the Court and say, "I have reason to believe that these people have failed to comply with their obligations." This relates to the procedure we were talking about on the last new Clause. Then he is a part of the Court, and then he is the man who decides on prosecutions.
After all, the Attorney-General is the man who normally will appoint counsel. This is going to create a very difficult position. I do not know whether the President has consulted the present Attorney-General on this. I suggest quite seriously that he should. I do not mean by that any discourtesy to the right hon. and learned Member for Chertsey, who speaks as a former Attorney-General with precisely the same authority and who enjoys just as much respect in the House. I am suggesting only that the difference of interest is that the right hon. and learned Member for Chertsey, at his own request, has ceased to exercise those very important duties, and that the occupant of the office, who is still exercising those duties, may well say, "I do not want my duties added to."
§ Sir L. Heald
Is the hon. Member suggesting that the Amendment was moved 623 without the Attorney-General knowing about it? Is that a serious suggestion, or one of the hon. Member's humorous ones?
§ Mr. Hale
On the contrary, it is a perfectly serious suggestion. I am just asking. I really should have thought, in view of the fact that we have been almost continuously engaged for some time on various Amendments and new Clauses to this and to the Finance Bill and other Bills, that the President had been very fully engaged. We know that observations have been made recently which suggest that there are some members of the Government who are hardly on terms of communication with one another at all. However, the right hon. and learned Gentleman the Member for Chertsey gives me the assurance that he is quite sure that the Attorney-General has been consulted, and I am quite prepared to receive it from him.
The Amendment is open to objection on the principle of the thing, and open to much more serious objection because it is being written into the Bill. I do not believe that the writing into the Bill of the word "may" will help. If the Registrar has the right, and is almost obliged to use it, and if he is obliged to use it, it means that a veil of secrecy will be cast over Parliamentary Questions. The Attorney-General is, after all, in an even more anomalous position. So far as I can see, no human being is going to benefit by this.
The Registrar has at his disposal anyhow, on the payment of the appropriate fees, the advice of the whole of the rest of the Bar. fie can go to any distinguished counsel he likes. He, presumably, will be a distinguished lawyer himself. He is going to appear in the Restrictive Practices Court consisting of distiguished judges. What on earth is the value of having a provision which is open to so many objections and open to the possibility of bringing about a situation which at the moment, however we envisage it, we see clearly to be anomalous and difficult?
§ Sir L. Ungoed-Thomas
The origin of this Amendment is not, of course, in the merits of the proposal itself. That. I think, is a somewhat important consideration in approaching it on its merits. As the right hon. and learned Gentleman the 624 Member for Chertsey (Sir L. Heald) mentioned, its origin was a proposal put forward to ensure that the activities of the Registrar before the court were properly conducted. I am not going to repeat that debate again, but I think it was a fantastic fear, and this Amendment is the legacy of that fear. Therefore, it is not a proposal which was put before the Committee on the Bill in the first place as a proposal which had to be considered on its merits as something desirable to have in the Bill. That is the starting point of thy; approach to this proposal. It is, in fact, a proposal which comes before the House not on its merits but as a sop to some of the back benchers on the Government side.
I say at once, as I did in Committee, that, of course, like the President himself. we all of us on this side of the House are extremely anxious that everything should be properly and adequately conducted, and that, of course, the best possible advice should be available to the Registrar. Therefore, despite the origin of this proposal, we did not feel. I tell the President frankly, any special reservation about this Amendment.
However, I am extremely disturbed, as my hon. Friends have been, at what has emerged in the debate. There was the Crown Privilege point mentioned unfortunately, as perhaps the President now thinks, which had nothing to do with this one way or the other. Therefore, I am not going to spend any time upon that.
I come to what my hon. Friend the Member for Islington, East (Mr. E. Fletcher) so forcibly discussed, the position of the Registrar under the Bill. The Registrar under this Bill, as I understand it, is a statutory body appointed by Her Majesty, but certainly not a Government Department in the ordinary sense of the term, because he is not a statutory body responsible to any of the recognised Departments of Government. It is true that the Board of Trade has certain limited statutory powers to give instructions to the Registrar, but the Registrar himself is an independent statutory body with statutory duties and functions given him by the Bill. He is not a Government Department in the ordinary sense.
Therefore, I myself should think—I am not saying this is absolutely right: I have some doubt about it—that the Registrar would not have the right to 625 consult the Law Officers without having a statutory provision about it. That is certainly my prima facie view of it, and I should like to know what is the Government's view of that. Is it so, or is it not so? I am not complaining that the Attorney-General is not here, because he had no special reason to think that this difficulty would arise now, but the President ought to know, and the House is entitled to know, whether the Government's view is that the Registrar will have the right to consult the Law Officers independently of the provision in this Amendment.
If he has no right, as I am inclined to think, apart from this statutory provision, what we are doing is to insert in the Bill a special provision conferring a power and authority which otherwise would not exist. Therefore, one ought to approach with some concern the question why this extraordinary exception should be made. If the right to consult is there, there is no point in having the Amendment, and it is futile. Therefore, I suggest there is some substance in this Amendment and that it is not a mere tactic to satisfy the concern of back benchers on the Government side.
Therefore, assuming that there is a point of substance and that without the Amendment there would be no power to consult the Attorney-General, we are now approaching the matter on the footing that this special, extraordinary provision is required. What are the justifications for it? When everybody else whom the Registrar could consult are available, why should this provision be made? I have mentioned the other points which lead to the practical difficulty that the President of the Board of Trade must face. It is the difficulty of the conflict of duty between various bodies.
The point has been very rightly made, with respect, by the hon. and learned Member for Middlesbrough, West (Mr. Simon) and others that, of course, the Law Officers advise when there is conflict between Government Departments. When they advise in those cases the matter is resolved, generally speaking,
§ within the ambit of the Government, but here we have a Registrar who is outside the ambit of the Government altogether and of necessity involved in litigation. Here is the crux of the matter. He is involved of necessity in litigation against a party, part of which might be a Government Department.
§ The whole basis of the approach to the Bill is litigation. Every agreement registered will be brought before the court. It of necessity involves litigation before the Restrictive Practices Court and the Law Officers will apparently be called upon in this litigation to advise the Registrar on the one side—for there is a right to call upon that advice—whilst a Government Department must be involved on the other side, and not alone but with other parties.
§ We on this side of the House are not approaching this matter at all in a hostile manner but rather in a friendly way. Before we heard the debate, we did not think that there was a great deal of objection to this provision. It is only in the light of what is contemplated within the ambit of the Amendment and in its effect that I personally feel there is a strong objection to it. There is also the very practical point made by my hon. Friend the Member for Oldham, West (Mr. Hale) that if we write something of this kind into the Bill, which says that the Registrar may consult the Law Officers of the Crown there will be a corresponding obligation upon the Law Officers to give advice. And that statutory obligation might impliedly arise in cases where the Registrar is involved in litigation against other Government Departments.
§ I ask the President of the Board of Trade not to ask now for the Amendment but to consider these very substantial matters. I ask him to withdraw the Amendment now and consider the arguments before the Bill goes to another place. There might then be another opportunity of considering it further in this House at a later stage.
§ Question put. That those words be there inserted in the Bill:—
§ The House divided: Ayes 263, Noes 198.627
|Division No.215.]||AYES||[5.44 p.m.|
|Agnew, Cmdr. P. G.||Amery, Julian (Preston, N.)||Ashton, H.|
|Aitken, W. T.||Amory, Rt. Hn. Heathcoat (Tiverton)||Atkins, H. E.|
|Allan, R. A. (Paddington, S.)||Arbuthnot, John||Baldock, Lt.-Cmdr. J. M.|
|Alport, C. J. M.||Armstrong, C. W.||Balniel, Lord|
|Barber, Anthony||Harris, Reader (Heston)||Nairn, D. L. S.|
|Barlow, Sir John||Harrison, A. B. C. (Maldon)||Neave, Airey|
|Barter, John||Harrison, Col. J. H. (Eye)||Nicholls, Harmar|
|Baxter, Sir Beverley||Harvey, Air Cdre. A. V. (Macclesfd)||Nicolson, N. (B'n'm'th, E. & Chr'ch)|
|Bell, Philip (Bolton, E.)||Harvey, Ian (Harrow, E.)||Nield, Basil (Chester)|
|Bell, Ronald (Bucks, S.)||Harvey, John (Walthamstow, E.)||Noble, Comdr. A. H. P.|
|Bennett, F. M. (Torquay)||Hay, John||Oakshott, H. D.|
|Bevins, J. R. (Toxteth)||Heald, Rt. Hon. Sir Lionel||O'Neill, Hn. Phelim (Co. Antrim, N.)|
|Bidgood, J. C.||Heath, Rt. Hon. E. R. G.||Ormsby-Gore, Hon. W. D.|
|Biggs-Davison, J. A.||Henderson, John (Cathcart)||Orr-Ewing, Charles Ian (Hendon, N.)|
|Birch, Rt. Hon. Nigel||Hicks-Beach, Maj. W. W.||Osborne, C.|
|Bishop, F. P.||Hill, Mrs. E. (Wythenshawe)||Page, R. G.|
|Black, C. W.||Hinchingbrooke, Viscount||Pannell, N. A. (Kirkdale)|
|Body, R. F.||Hirst, Geoffrey||Partridge, E.|
|Boothby, Sir Robert||Holland-Martin, C. J.||Peyton, J. W. W.|
|Bossom, Sir Alfred||Holt, A. F.||Pilkington, Capt. R. A.|
|Bowen, E. R. (Cardigan)||Hope, Lord John||Pitman, I. J.|
|Boyd-Carpenter, Rt. Hon. J. A.||Hornby, R. P.||Pitt, Miss E. M.|
|Braine, B. R.||Horobin, Sir Ian||Pott, H. P.|
|Braithwaite, Sir Albert (Harrow, W.)||Howard, John (Test)||Powell, J. Enoch|
|Bromley-Davenport, Lt.-Col. W. H.||Hudson, Sir Austin (Lewisham, N.)||Price, Henry (Lewisham, W.)|
|Brooke, Rt. Hon. Henry||Hughes Hallett, Vice-Admiral J.||Prior-Palmer, Brig. 0. L.|
|Brooman-White, R. C.||Hughes-Young, M. H. C.||Profumo, J. D.|
|Bryan, P.||Hulbert, Sir Norman||Raikes, Sir Victor|
|Buchan-Hepburn, Rt. Hon. P. G. T.||Hutchison, Sir Ian Clark (E'b'gh,W.)||Ramsden, J. E.|
|Bullus, Wing Commander E. E.||Hyde, Montgomery||Rawlinson, Peter|
|Burden, F. F. A.||Hylton-Foster, Sir H. B. H.||Redmayne, M.|
|Butcher, Sir Herbert||Iremonger, T. L.||Renton, D. L. M.|
|Butler, Rt.Hn. R.A.(Saffron Walden)||Irvine, Bryant Godman (Rye)||Ridsdale, J. E.|
|Campbell, Sir David||Jenkins, Robert (Dulwich)||Robertson, Sir David|
|Carr, Robert||Jennings, J. C. (Burton)||Robinson, Sir Roland (Blackpool, S.)|
|Cary, Sir Robert||Johnson, Dr. Donald (Carlisle)||Robson-Brown, W.|
|Channon, H.||Johnson, Eric (Blackley)||Rodgers, John (Sevenoaks)|
|Chichester-Clark, R.||Jones, Rt. Hon. Aubrey (Hall Green)||Roper, Sir Harold|
|Clarke, Brig. Terence (Portsmth, W.)||Joseph, Sir Keith||Schofield, Lt.-Col. W.|
|Conant, Maj. Sir Roger||Joynson-Hicks, Hon. Sir Lancelot||Scott-Miller, Cmdr. R.|
|Cooper, Sqn. Ldr. Albert||Keegan, D.||Sharples, R. C.|
|Cooper-Key, E. M.||Kerby, Capt. H. B.||Shepherd, William|
|Craddock, Beresford (Spelthorne)||Kerr, H. W.||Simon, J. E. S. (Middlesbrough, W.)|
|Crouch, R. F.||Kershaw, J. A.||Smithers, Peter (Winchester)|
|Crowder, Sir John (Finchley)||Kimball, M.||Soames, Capt. C.|
|Cunningham, Knox||Kirk, P. M.||Spearman, Sir Alexander|
|Currie, G. B. H.||Lagden, G. W.||Spens, Rt. Hn. Sir P. (Kens'gt'n, S.)|
|Dance, J. C. G.||Lambert, Hon. G.||Stanley, Capt. Hon. Richard|
|Davidson, Viscountess||Lambton, Viscount||Stevens, Geoffrey|
|D'Avigdor-Goldsmid, Sir Henry||Lancaster, Col. C. G.||Steward, Sir William (Woolwich, W.)|
|Deedes, W. F.||Leather, E. H. C.||Stewart, Henderson (Fife, E.)|
|Digby, Simon Wingfield||Leburn, W. G.||Stoddart-Scott, Col. M.|
|Dodds-Parker, A. D.||Legge-Bourke, Maj. E. A. H.||Studholme, Sir Henry|
|Donaldson, Cmdr. C. E. McA.||Legh, Hon. Peter (Petersfield)||Summers, Sir Spencer|
|Drayson, G. B.||Lindsay, Hon. James (Devon, N.)||Taylor, Sir Charles (Eastbourne)|
|du Cann, E. D. L.||Lindsay, Martin (Solihull)||Taylor, William (Bradford, N.)|
|Duncan, Capt. J. A. L.||Linstead, Sir H. N.||Teeling, W.|
|Duthie, W. S.||Lloyd, Maj. Sir Guy (Renfrew, E.)||Thomas, Leslie (Canterbury)|
|Eccles, Rt. Hon. Sir David||Lloyd, Rt. Hon. Selwyn (Wirral)||Thomas, P. J. M. (Conway)|
|Eden,Rt.Hn.SirA.(Warwick & L'm'tn)||Lloyd-George, Maj. Rt. Hon. G.||Thompson, Kenneth (Walton)|
|Eden, J. B. (Bournemouth, West)||Longden, Gilbert||Thorneycroft, Rt. Hon. P.|
|Emmet, Hon. Mrs. Evelyn||Low, Rt. Hon. A. R. W.||Thornton-Kemsley, C. N.|
|Errington, Sir Eric||Lucas, Sir Jocelyn (Portsmouth, S.)||Tiley, A. (Bradford, W.)|
|Erroll, F. J.||Lucas,P.B.(Brentford & Chiswick)||Tilney, John (Wavertree)|
|Farey-Jones, F. W.||Lucas-Tooth, Sir Hugh||Touche, Sir Gordon|
|Fell, A.||Macdonald, Sir Peter||Turner, H. F. L.|
|Finlay, Graeme||McKibbin, A. J.||Tweedsmuir, Lady|
|Fisher, Nigel||Mackie, J. H. (Galloway)||Vane, W. M. F.|
|Fletcher-Cooke, C.||McLaughlin, Mrs. P.||Vaughan-Morgan, J. K.|
|Fort, R.||Maclay, Rt. Hon. John||Vickers, Miss J. H.|
|Foster, John||McLean, Neil (Inverness)||Vosper, D. F.|
|Fraser, Sir Ian (M'cmbe & Lonsdale)||Macleod, Rt. Hn. lain (Enfield, W.)||Wakefield, Edward (Derbyshire, W.)|
|Freeth, D. K.||MacLeod, John (Ross & Cromarty)||Wakefield, Sir Wavell (St. M'lebone)|
|Galbraith, Hon. T. G. D.||Maddan, Martin||Walker-Smith, D. C.|
|Garner-Evans, E. H.||Maitland, Hon. Patrick (Lanark)||Wall, Major Patrick|
|George, J. C. (Pollok)||Manningham-Buller, Rt. Hn. Sir R.||Ward, Hon. George (Worcester)|
|Gibson-Watt, D.||Markham, Major Sir Frank||Ward, Dame Irene (Tynemouth)|
|Glover, D.||Marlowe, A. A. H.||Waterhouse, Capt. Rt. Hon. C.|
|Godber, J. B.||Marples, A. E.||Watkinson, Rt. Hon. Harold|
|Gomme-Duncan, Col. Sir Alan||Mathew, R.||Webbe, Sir H.|
|Gower, H. R.||Maude, Angus||Whitelaw, W.S.I.(Penrith & Border)|
|Graham, Sir Fergus||Mawby, R. L.||Williams, Paul (Sunderland, S.)|
|Green, A.||Maydon, Lt.-Comdr. S. L. C.||Williams, R. Dudley (Exeter)|
|Grimond, J.||Milligan, Rt. Hon. W. R.||Wood, Hon. R.|
|Grimston, Hon. John (St. Albans)||Molson, Rt. Hon. Hugh||Woollam, John Victor|
|Grimston, Sir Robert (Westbury)||Morrison, John (Salisbury)||Yates, William (The Wrekin)|
|Grosvenor, Lt.-Cot. R. G.||Mott-Radcliffe, C. E.|
|Hall, John (Wycombe)||Nabarro, G. D. N.||TELLERS FOR THE AYES:|
|Harris, Frederic (Croydon, N.W.)||Mr. Richard Thompson and|
|Ainsley, J. W.||Henderson, Rt. Hn. A. (Rwly Regis)||Parker, J.|
|Albu, A. H.||Hobson, C. R.||Parkin, B. T.|
|Allaun, Frank (Salford, E.)||Holman, P.||Paton, John|
|Allen, Arthur (Bosworth)||Holmes, Horace||Pearson, A.|
|Allen, Scholefield (Crewe)||Howell, Charles (Perry Barr)||Plummer, Sir Leslie|
|Awbery, S. S.||Howell, Denis (All Saints)||Price, J. T. (Westhoughton)|
|Bacon, Miss Alice||Hubbard, T. F.||Probert, A. R.|
|Balfour, A.||Hughes, Cledwyn (Anglesey)||Proctor, W. T.|
|Bence, C. R. (Dunbartonshire, E.)||Hughes, Emrys (S. Ayrshire)||Pryde, D. J.|
|Benn, Hn. Wedgwood (Bristol, S.E.)||Hughes, Hector (Aberdeen, N.)||Randall, H. E.|
|Benson, G.||Hunter, A. E.||Rankin, John|
|Bevan, Rt. Hon. A. (Ebbw Vale)||Hynd, H. (Accrington)||Redhead, E. C.|
|Blackburn, F.||Irvine, A. J. (Edge Hill)||Reeves, J.|
|Blenkinsop, A.||Irving, S. (Dartford)||Reid, William|
|Blyton, W. R.||Isaacs, Rt. Hon. G. A.||Robens, Rt. Hon. A.|
|Boardman, H.||Janner, B.||Roberts, Albert (Normanton)|
|Bottomley, Rt. Hon. A. G.||Jay, Rt. Hon. D. P. T.||Roberts, Goronwy (Caernarvon)|
|Bowden, H. W. (Leicester, S.W.)||Jenkins, Roy (Stechford)||Robinson, Kenneth (St. Pancras, N.)|
|Bowles, F. G.||Johnson, James (Rugby)||Rogers, George (Kensington, N.)|
|Boyd, T. C.||Jones,Rt.Hon.A.Creech(Wakefield)||Ross, William|
|Braddock, Mrs. Elizabeth||Jones, David (The Hartlepools)||Shinwell, Rt. Hon. E.|
|Brockway, A. F.||Jones, Elwyn (W. Ham, S.)||Silverman, Julius (Aston)|
|Broughton, Dr. A. D. D.||Jones, Jack (Rotherham)||Silverman, Sydney (Nelson)|
|Brown, Thomas (Ince)||Jones, J. Idwal (Wrexham)||Skeffington, A. M.|
|Burton, Miss F. E.||Jones, T. W. (Merioneth)||Slater, Mrs. H. (Stoke, N.)|
|Butler, Herbert (Hackney, C.)||Kenyon, C.||Slater, J. (Sedgefield)|
|Butler, Mrs. Joyce (Wood Green)||Key, Rt. Hon. C. W.||Smith, Ellis (Stoke, S.)|
|Callaghan, L. J.||King, Dr. H. M.||Snow, J. W.|
|Castle, Mrs. B. A.||Lawson, G. M.||Sorensen, R, W.|
|Chetwynd, G. R.||Ledger, R. J.||Stokes, Rt. Hon. R. R. (Ipswich)|
|Clunie, W.||Lee, Frederick (Newton)||Stones, W. (Consett)|
|Coldrick, W.||Lee, Miss Jennie (Cannock)||Summerskill, Rt. Hon. E.|
|Collick, P. H. (Birkenhead)||Lewis, Arthur||Sylvester, G. 0.|
|Collins, V. J.(Shoreditch & Finsbury)||Logan, D. G.||Taylor, Bernard (Mansfield)|
|Cove, W. G.||Mabon, Dr. J. Dickson||Tayor, John (West Lothian)|
|Craddock, George (Bradford, S.)||MacColl, J. E.||Thomas, George (Cardiff)|
|Cronin, J. D.||McGhee, H. G.||Thomas, Iorwerth (Rhondda, W.)|
|Crossman, R. H. S.||MoKay, John (Wallsend)||Thomson, George (Dundee, E.)|
|Cullen, Mrs. A.||MacPherson, Malcolm (Stirling)||Thornton, E.|
|Darling, George (Hillsborough)||Mahon, Simon||Timmons, J.|
|Davies, Harold (Leek)||Mallalieu, E. L. (Brigg)||Turner-Samuels, M.|
|Davies, Stephen (Merthyr)||Mallalieu, J. P. W. (Huddersfd, E.)||Ungoed-Thomas, Sir Lynn|
|Dodds, N. N.||Mann, Mrs. Jean||Usborne, H. C.|
|Dugdale, Rt. Hn. John (W. Brmwch)||Marquand, Rt. Hon. H. A.||Viant, S. P.|
|Ede, Rt. Hon. J. C.||Mason, Roy||Warbey, W. N.|
|Edwards, Rt. Hon. Ness (Caerphilly)||Mayhew, C. P.||Wells, Percy (Faversham)|
|Edwards, Robert (Bilston)||Messer, Sir F.||Wells, William (Walsall, N.)|
|Edwards, W. J. (Stepney)||Mikardo, Ian||West, D. G.|
|Evans, Albert (Islington, S.W.)||Mitchison, G. R.||Wheeldon, W. E.|
|Evans, stanley (Wednesbury)||Monslow, W.||White, Mrs. Eirene (E. Flint)|
|Fernyhough, E.||Moody, A. S.||White, Henry (Derbyshire, N.E.)|
|Fienhurgh, W.||Morris, Percy (Swansea, W.)||Wilkins, W. A.|
|Fletcher, Eric||Morrison,Rt.Hn.Herbert(Lewis'm,S.)||Williams, Rt. Hon. T. (Don Valley)|
|Forman, J. C.||Mort, D. L.||Williams, W. R. (Openshaw)|
|Fraser, Thomas (Hamilton)||Moss, R.||Williams, W. T. (Barons Court)|
|Gaitskell, Rt. Hon. H. T. N.||Moyle, A.||Willis, Eustace (Edinburgh, E.)|
|Gibson, C. W||Mulley, F. W.||Wilson, Rt. Hon. Harold (Huyton)|
|Grenfell, Rt. Hon. D. R.||Neal, Harold (Bolsover)||Winterbottom, Richard|
|Grey, C. F.||Noel-Baker, Francis (Swindon)||Woodburn, Rt. Hon. A.|
|Griffiths, David (Rother Valley)||Oliver, G. H.||Woof, R. E.|
|Griffiths, Rt. Hon. James (Llanelly)||Oram, A. E.||Yates, V.(Ladywood)|
|Griffiths, William (Exchange)||Oswald, T.||Younger, Rt. Hon. K.|
|Hale, Leslie||Owen, W. J.||Zilliacus, K.|
|Hall, Rt. Hn. Glenvil (Colne Valley)||Paget, R. T.|
|Hamilton, W. W.||Paling, Rt. Hon. W. (Dearne Valley)||TELLERS FOR THE NOES:|
|Hastings, S.||Paling, Will T. (Dewsbury)||Mr. Short and Mr. Deer.|
|Hayman, F. H.||Palmer, A. M. F.|