§ Amendments made: In page 27, line 28, leave out "or in Northern Ireland".
In line 31, at end insert:
(c) in the case of proceedings in Northern Ireland, to the Court of Appeal in Northern Ireland.—[Mr. P. Thorneycroft.]
§ Mr. P. Thorneycroft
I beg to move, in page 27, line 32, after "paragraph" to insert:to the Court of Appeal or the Court of Appeal in Northern Ireland shall be by way of case stated and any such appeal".This Amendment follows the suggestion made by the hon. Member for Islington, East (Mr. E. Fletcher) during the Committee stage, that the appeal should be by way of case stated. We thought it right to meet that suggestion and incorporate it in the Bill.
§ Mr. E. Fletcher
I thank the President for having accepted this suggestion, which we think will be an improvement of the Bill.
Amendment agreed to.
Further Amendment made: In page 27, line 34, leave out from beginning to "any" in line 35 and insert:
Except so far as may be provided by rules made in pursuance of paragraph (d) of subsection (2) of section eighteen of this Act, the Court shall not have power to order the payment of costs by".—[Mr. P. Thorneycroft.]
§ Mr. P. Thorneycroft
I beg to move, in page 27, line 36, to leave out paragraph 10 and insert:10. In relation to the attendance and examination of witnesses, the production and inspection of documents, the enforcement of its orders, and all other matters incidental to its jurisdiction under this Act, the Court shall, subject to the provisions of this Schedule, have the like powers, rights, privileges and authority—
- (a) in England and Wales, as the High Court;
- (b) in Scotland, as the Court of Session:
- (c) in Northern Ireland, as the High Court of Northern Ireland.11. Every person who has the right of audience at the trial of an action in the High Court or in the Court of Session, or in proceedings preliminary to such a trial, shall have the like right at the hearing of any application to the Court, whether sitting in England and Wales or in Scotland, or in proceedings preliminary to such a hearing, as the case may be; and every person who has the right of audience at the trial of an action in the High Court of Northern Ireland, or in proceedings preliminary to such a trial, shall have the like right at the hearing of any application to the Court when sitting in Northern Ireland, or in proceedings preliminary to such a hearing, as the case may be.This Amendment does two things. First, it picks up the provisions for the enforcement of the orders of the Restrictive Practices Court—originally they were in Clause 2 of the Bill, but it is thought 844 more convenient to incorporate them in the Schedule—and it confers in express terms on the new Court the High Court powers in relation to the attendance and examination of witnesses and the production and inspection of documents.
Secondly, it deals with the right of audience, by simply providing for a common right of audience between the English and Scottish Bars in England and Scotland, and the exclusive right of audience in Northern Ireland for the Northern Irish Bar, which I understand is what is desired and agreeable between them.
§ Mr. Speaker
The hon. Member for Islington, East (Mr. E. Fletcher) must wait until we have got rid of paragraph 10, and then we will consider what words, including his Amendment to this Amendment, we shall put in its place.
§ Mr. A. J. Irvine
One point of some importance arises on this Amendment. Before the Amendment appeared, I thought the position was to be that discovery and inspection of documents was covered by Clause 18 of the Bill. Discovery and inspection of documents in this Court will be a very important matter, and will give rise to distinctive problems of a character with which the present rules of court relating to discovery will not be appropriate to deal.
Until I saw this Amendment, I had anticipated that this matter would be dealt with under the rules under Clause 18. That has been altered, and, as I understand the position, instead of, as we had anticipated, there being new rules of court governing discovery and inspection in the quite distinctive type of matter arising in this jurisdiction, the present rules are, by this Amendment, to be made applicable. I think that that is unfortunate, and that the jurisdiction now being conferred is so different in character from that to which one is accustomed that it would be desirable to have new rules to deal with this matter, more especially as, when it comes to probing the issues of public interest in terms of commercial and trade policy, entirely new principles in respect of discovery and inspection of documents will surely apply.
§ Mr. E. Fletcher
I wish to speak to the Question which you, Mr. Speaker, have put to the House, before I move my Amendment.
I do not think that the President did himself justice in recommending this new provision. He seemed to indicate that it was a very slight and rather irrelevant matter, and he treated it as being agreed. I hope that the House will notice that it is a most startling innovation in the whole of our legal and judicial arrangements, and one which should be most carefully considered before we part with it. This Amendment, which has been put down by the President at a very late stage, introduces something which is not only of vital importance to our consideration of this Bill, but which has a much wider application. For the first time the President is suggesting that members of the Scottish Bar should be given a right of audience in an English court.
There is no need for me to remind you, Mr. Speaker, that there is the greatest possible difference between English and Scots law, both in its origin and its history and tradition. Scots law is based on the old Roman law; English law has a totally different origin and history, with the result that in Great Britain we have two totally different conceptions of law. I am glad to note that the Lord Advocate is in the Chamber. As the most distinguished member of the Scottish Bar in this House, I am sure that he will agree that it has never been previously suggested since the Act of Union—and obviously it could not have been suggested before—that there should be this curious amalgamation of English and Scots law, giving the Scots lawyers a right of audience in an English court and English lawyers a right of audience in a Scottish court.
Before the House parts with this Amendment we must see where it would lead us. The President gave no reasons why this course was recommended. He said it had been agreed. Agreed by whom? So far as I know, it does not result from any request from the English bar or from the Law Society. Is it something which has been put forward on behalf of the Scottish Bar? I cannot imagine any other origin for it. How can it be justified? The English Court will sit in England and the Scottish Court will sit in Scotland.
846 It is perfectly true that there is a common Court of Appeal, in the House of Lords, but when appeals come to the House of Lords from Scotland, they are argued by members of the Scottish Bar, because Scottish law is involved. I think that you, Mr. Speaker, would be horrified if you thought that matters of Scots law were being argued in a Scottish court or in the House of Lords by English lawyers. Equally it seems to me foreign to our conception of the right of audience that Scots lawyers should invade what has hitherto been a jealously guarded preserve of members of the English Bar. Therefore, I am opposed to this suggestion.
I know that after we have had a full debate on this matter and studied its implications to the uttermost, the Government, by their majority, will be able to carry the Amendment in the Division Lobbies. How far this question has been ventilated, either in the legal profession or in the Press or by the public, I do not know. I have seen no reference to it at all. One reason why I raise the matter now is because of the air of mystery and assumed innocence with which at the last moment it has been proposed to the House.
If the principle is conceded that this Court which we are setting up should not be given the same status as the High Court and the Supreme Court, in which members called to the English Bar have a right of audience, are we to accept the principle that there should be some innovation of doctrine, and that we should allow laymen the right of audience? After all, however distinguished they may be, and as the Lord Advocate would agree, Scottish lawyers are laymen in an English court. Therefore, the effect of this Amendment is to give laymen the right of audience in this English Court.
I appreciate that the Court we are setting up will not be equivalent in status to the High Court. True, it will be a court of record, but it will not be a court to which the traditions of the Judicature Act, which established the present Supreme Court and which carry on the traditions of the old civil courts, will apply. This will be a purely statutory court, governed by the precise limited jurisdiction and powers of the Bill which we are now considering. In setting up such a court it is quite possible for Parliament to decide what shall be the right of audience.
847 This is not the first time Parliament has set up new courts. We have set up a number of tribunals in recent years under various Acts of Parliament, administrative tribunals and tribunals for this purpose and that. In those cases either one or other of two principles has been observed. Either we preserve the exclusive right of audience to members of the English Bar—and there is a case for that in the traditions of the High Court, or we depart from that principle and extend the right of audience, for which very cogent reasons can also be argued, to others. There are several precedents for extending it to solicitors, trade union representatives, officials of various kinds and secretaries of companies, and throwing the gates wide open. I am sure that I shall have the support of my hon. Friends in saying that there is a great deal to be said for that.
If we are to have a new tribunal and make a departure from the principle of a privilege for members of the English Bar. we should throw the rights of audience wider, both in the interests of the parties themselves and in the interests of other persons with forensic experience, training. skill and expertise in the particular branch of the subject which is to be debated.
I say to the President that he can choose one or other of those two principles, but he cannot choose both. He has chosen to say that this Court shall not be like the High Court, and that audience shall not be restricted to members of the English Bar. That in itself is something which diminishes the status and prestige of the Court. I do not object to that because it has been conceded by the President before that, although this is to be a court of record. it will be a court of an inferior status to the High Court in the sense that certiorari would lie. If it exceeds the jurisdiction which Parliament gives it, certiorari will lie, as in the case of any other inferior court.
This is not to be a case in which exclusive right of audience is restricted to members of the English Bar. If that principle is accepted, which is what the President has done, it is quite unjustifiable and anomalous to say that we will admit one other special class of persons and give them a right of audience and select mem- 848 bers of a foreign Bar: I do not use the word "foreign" offensively—I mean non-national. We shall be admitting practitioners from some other country who have no possible claim to have qualified in England, and shall be giving them a right of audience. If that is the principle for which the President is contending, we say that is quite irrational, but, if that is to be done, we must not stop there, we must at least extend the rights of audience, in the interests of the parties themselves, to other persons, I am not quite sure how far we should go, but I suggest that at any rate we should include qualified English solicitors—
§ Mr. Speaker
The hon. Member is now anticipating his Amendment. We have not reached that yet, and we cannot reach it until the House agrees that the words proposed to be left out shall be left out of the Bill.
§ Mr. Fletcher
I am much obliged, Mr. Speaker. I did not realise that it would be so convenient to divide my remarks into two stages. Having said what I want to say on the main question. I will leave the arguments which I want to adduce in support of the Amendment to the proposed Amendment until we reach that Amendment.
§ Sir L. Joynson-Hicks
I do not propose to follow very far what the hon. Member for Islington, East (Mr. E. Fletcher) has said, because I gather that we may hear it again in a few minutes, and I will reply to it then. I would go so far as to say this, which I think is in order on the Amendment which we are discussing, that with regard to the prospect of seeing some members of the Scots Bar in London I cannot myself feel any anxious fears. I do not know the Scots Bar, but I have heard that there are some quite capable gentlemen who practise at the Scottish Bar. From my point of view I think it might be quite an interesting experience to see them, so to speak, set up against the members of the English Bar in competition.
I would not express any serious objection to the course proposed in that respect by the President, but I should like to refer to some expressions which fell from the hon. Member for Edge Hill (Mr. A. J. Irvine) about the possibility of there being the same system under the rules for discovery and production, etc. 849 in the High Court and in the Restrictive Practices Court. I think the hon. Member has referred to a point which, from the purely practical point of view, might lead to a certain amount of difficulty, if not confusion, in the early stages until the work of the Restrictive Practices Court has settled down.
I understand that, broadly, the situation is that on every occasion on which the Registrar requires his statutory authority to be enlarged by a judicial decision he will go to the High Court in all matters appertaining to registration. It will only be when, in accordance with Clause 15, an application is made for consideration of an agreement that the Restrictive Practices Court will come into operation.
Many of the documents which will be the subject of discovery will be documents which will be discovered in both proceedings, if proceedings take place in the High Court. Therefore, it may be a matter of some difficulty if the rules governing that discovery are different in the two courts. I should have thought it would have been a pity, at any rate until we see how we get on in the two courts, for the rules not to be as nearly the same as possible. In so far as we are seeking to make the Restrictive Practices Court pari passu and as nearly the same as the High Court as it can be, I think it desirable that the rules applicable to each should be as nearly the same as circumstances permit.
§ Mr. P. Thorneycroft
If I may have the permission of the House to do so, I will answer one or two points which have been made. First, with regard to the question of rules of discovery, the rule-making power is retained under Clause 18 (2, b). That is the answer to the hon. Member for Edge Hill (Mr. A. J. Irvine). The power is retained, and the Lord Chancellor will have powers under that subsection for making rules as to discovery, etc. That brings me to the point made by my hon. Friend the Member for Chichester (Sir L. Joynson-Hicks). I do not think it would be fitting for me to comment on the precise nature of the rules which ought to be made or on the need for similarity of the rules with the rules of the High Court, except to say that I will draw the attention of the Lord Chancellor to the points made by both 850 hon. Members, and no doubt he will give his consideration to them in applying his mind to that matter.
With reference to the points so eloquently put by the hon. Member for Islington, East (Mr. E. Fletcher) on the subject of the Scottish Bar, I think it would be a pity if a debate on a Bill designed to remove restrictive practices should end in a demarcation dispute. I was sorry to hear the hon. Member press for that. I should have thought it would have been a liberal and proper provision for Scottish lawyers to appear, on occasion, before this Court.
I understand that the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) has been appearing with great skill in a Scottish appeal in the House of Lords recently, leading a Scottish and an English junior. I am certain that his knowledge of Roman law was fully adequate to the task which he had to discharge at that time. There are, of course, perfectly good precedents for a common right of audience of this kind. I understand that it was the procedure followed before the Railway and Canal Commission, and it is also followed in courts-martial.
When we are dealing with advocates in Scotland or barristers in England, I see no reason whatever why, in the general liberal spirit of the Bill, they should not both appear before this United Kingdom Court. Limiting it to that and not extending it to everybody else—since that is all we can discuss on this Amendment—I should have thought that it was a proper, wise and liberal provision, and I commend it to the House.
Question, That the words proposed to be left out stand part of the Bill, put and negatived.
Question proposed, That the proposed words be there inserted in the Bill.
§ Mr. E. Fletcher
I beg to move, as an Amendment to the proposed Amendment, in paragraph 11, after the first "Court". to insert "or in the County Court".
The House has agreed to delete paragraph 10 and has done so, as the President pointed out, because this is a Bill to remove restrictive practices; and he has appealed to the liberal spirit of the proceedings in which we are engaged. I have put my two Amendments down 851 precisely in that spirit. We are all with the President in wanting to remove restrictive practices.
If the right of audience is to be extended to members of the English Bar and members of the Scottish Bar, then, logically, it should also be extended to English solicitors and, where there are companies which cannot appear in person, to the qualified secretaries of those companies or other chosen representatives.
As the President has said, this is a liberal Measure. We are abolishing restrictive practices. Solicitors are fully qualified in the English law, just as are English barristers, and they have a right of audience in the county courts, and, in fact, in all other courts in the land except the High Court. As the President has recognised, the Restrictive Practices Court is not parallel with the High Court; it may be analogous to it, but in the President's own Amendment he is introducing a departure.
Having made this innovation, it will not derogate from the prestige of the court in any way if, in the same spirit as that of the President's Amendment, the right of audience is extended to all members of the legal profession and, in the event of companies which cannot appear before the court, to qualified secretaries or anyone they choose to represent them. It is in that spirit that I move my Amendment, which I hope the President will accept.
§ Mr. Grimond
Would the hon. Member for Islington, East (Mr. E. Fletcher) make it clear that he has no prejudice against Scottish solicitors, Writers to the Signet or others who appear to be excluded by his Amendment?
§ Mr. Fletcher
I am not prejudiced against Writers to the Signet. If the hon. Member puts down an Amendment to add "Writers to the Signet", I will welcome it, but they are, in fact, covered by my second Amendment.
§ Mr. Barnett Janner (Leicester, North-West)
I beg to second the Amendment to the proposed Amendment.
I assume that we can speak to both Amendments in the name of my hon. Friend the Member for Islington, East (Mr. E. Fletcher). The right hon. Gentleman is asking that Scottish barristers should be admitted to these courts in 852 England—and I do not blame him; I think he is right and that there should be as much competition and as wide a choice as we can possibly get. People should have as wide a choice as possible in choosing who they want to represent them in a court of this description.
In the branch of the profession of which I have the honour to be a member, we consider, on occasions—not always—that there are certain members who can present a case—and I say this with the greatest respect and due deference to members of the other branch of the profession—equally as well as, if not in many instances much better than, those who appear in some High Court cases. Sometimes we sit with considerable trepidation listening to counsel presenting the case, which we think we might have presented much better.
We probably know the facts as well as the advocate putting them forward, and in some cases we probably know them in a little more detail than he does. We know the general reaction of some members of the Bar when we attempt to intervene. We know they become irritated and try to fob off the person who is instructing them, who usually knows the case inside out, and who is himself irritated because counsel is not putting the case as well as he should.
I do not suggest that that applies to any hon. Member; no one would dream of suggesting that. I will go as far as to say that no one would dream of suggesting it about any hon. Member on either side of the House. But it applies in some cases to counsel who are not as well equipped and as able to present a case as those we hear presenting cases in the House from time to time.
Seriously, I think it is high time that the people who prepare a case, who interview those connected with it and who have to handle the whole matter up to the court hearing, should be allowed to continue with the case. It works extremely well in other tribunals, such as the rent tribunals, where this hard-and-fast rule about a member of the Bar appearing has not been exercised. The time of the courts and the expense to the parties would be considerably reduced if an opportunity were given to the solicitor to appear. Not every solicitor wants to appear in court; comparatively speaking, very few want to appear, or feel capable 853 of appearing, in cases. But those who want to appear in court ought not to be prevented from doing so.
That applies to other persons. A company may have confidence in someone and wish him to appear on its behalf before a court. In the second of my hon. Friend's Amendments we suggest that a company should, under seal, be entitled to appoint a person—anybody at all—to conduct its case in these courts. Why not? If the party to the case is prepared to trust its case to someone, why not let it be done? It may save the party considerable expense. The party may feel, rightly, that in a court of this description it is not necessary for the advocate to have the legal training which a barrister or even a solicitor has.
§ Mr. Speaker
I wonder to which Amendment the hon. Member is addressing his mind. We are dealing only with the Amendment in line 9, after the first "Court", to insert "or in the County Court".
§ Mr. Janner
I understood you to say, Mr. Speaker, that we could speak to both the Amendments to the proposed Amendment.
§ Mr. Speaker
No. The second Amendment in the name of the hon. Member for Islington, East (Mr. E. Fletcher) is not selected.
§ Mr. Janner
I abide by your Ruling, Mr. Speaker, of course, but I was under the impression, quite wrongly, that when I asked whether we could deal with the two Amendments together you intimated that we could. In the circumstances, I will revert to the Amendment about solicitors, which obviously means that no one other than barristers or solicitors can appear in the Court, except the party himself. I had thought that it might have been possible to deal with the two Amendments together because, in a sense, the arguments are similar.
I would at least ask the President to say that a person trained in the law, one who passes examinations which are—and I say this with the greatest respect—as hard as or harder than those which the barrister has to pass, should be allowed 854 to appear. The examinations are in respect of precisely the same law, and, in my view, are harder, because the solicitor has to pass in every subject whereas the barrister is not so bound. Again, the solicitor must have had from three to five years' practical experience of the law. He has to see a case through from its inception to its end, with the exception of pleading in the High Court.
I say that such a person, who has such qualifications—and the ability—should not only not be excluded from going into these courts but should be encouraged to do so, because he will not only do it equally well as counsel but such a practice would save a considerable amount of expense to the parties concerned. I therefore support my hon. Friend's Amendment, in the hope that by its acceptance there will perhaps be an opening of the door to something even better. I refer to the merging of the two branches of the profession—but perhaps that is a little out of order at this stage. Nevertheless, if solicitors are allowed to practise in these courts it will be seen that there is advantage to both branches of the law, and something further may emerge.
§ Mr. Mulley
In supporting the Amendment, perhaps I may say, in parenthesis, that there is a feeling at the Bar that there is now too much rather than too little competition. Indeed, if barristers behaved very frequently towards their professional clients as my hon. Friend the Member for Leicester, North-West (Mr. Janner) has indicated is sometimes the case they would probably feel the wind of competition even more keenly. I hope that the President of the Board of Trade will extend the excellent liberal sentiments he professed earlier and widen the scope of the Bill in regard to those who can appear before the Court. I hope, in particular, that he will explain why it is right for Scottish barristers to come to the English courts and vice versa but that Northern Ireland is in another category.
§ Sir L. Joynson-Hicks
I am sorry to say that I must reveal a split in the profession on this issue. At this hour I do not think that the House would wish to embark on a full-dress debate on whether or not solicitors ought to be permitted right of audience in the 855 High Court. I differ from those hon. Gentlemen, members of my profession, who have already spoken on this matter, but what I do wish to emphasis is that, whether it be right or wrong that solicitors should be so permitted, this is not the occasion to seek to introduce it.
I do not think that anyone in the profession would wish it to appear that we had got in by the back door, which is what we should be doing if, on the final Amendment to an Amendment, at the end of the Schedule to the Restrictive Trade Practices Bill, we secured for ourselves a foothold to audience in the High Court. I am quite sure that that would not be the wish of the profession as a whole, and I hope that the hon. Gentleman the Member for Islington, East (Mr. E. Fletcher) will not press his Amendment.
§ 7.45 p.m.
§ Mr. G. Darling
I am sorry that the second Amendment in the name of my hon. Friend the Member for Islington, East (Mr. E. Fletcher) is not to be called, but as that is the case I shall be brief in order to keep within the bounds of order. If I understand it rightly, I welcome the step which the right hon. Gentleman has taken in introducing an Amendment which, as he said, is liberal in character. Our criticism is that it does not go far enough.
There is another point. This Bill deals with restrictive practices, yet right from the beginning, unless I am mistaken, the job of dealing with restrictive practices is handed over to a profession which itself is absolutely full of restrictive practices, as we have discovered from this present brief discussion. By the practices of the profession and of the courts themselves, people are kept out of the courts who could, I think, present cases better than the barristers who appear.
Unless we allow people other than barristers to appear on behalf of companies, organisations, associations, etc., that will be affected by the Bill, we shall be perpetuating the restrictive practices of this profession in the operation of a court set up to get rid of restrictive practices. That is illogical and wrong. I think that these restrictive practices, not only in trade and industry—and, perhaps, in trade unions—but in the legal and other professions, ought to be broken down.
§ Mr. Turner-Samuels
The only question I have to ask the President is whether there is any reason why a… secretary or any other person duly authorised under its Common Seal".ought not to appear on behalf of any of these companies. The answer is that there is no reason whatever.
§ Sir L. Ungoed-Thomas
I should like to say that I am most strongly opposed to the fusion of the barrister and solicitor branches of the profession. I have said that in this House before, and I still strongly hold that view. Secondly, we on this side of the House welcome the extension of right of audience to members of the Scottish Bar, with whom we have had in the past the most happy relationships at the English Bar.
I now come to the difficulty which is facing the Government in respect of their own proposals when read in conjunction with the Amendment put down by my hon. Friend the Member for Islington, East (Mr. E. Fletcher). My hon. Friend developed the case extremely comprehensively, forcibly and cogently, if I may say so with respect, and I do not wish to pass over the same ground at all. What I wish to do is to stress the points which to me appear most material for consideration.
The whole difficulty which arises in connection with the Government Amendment and our own arises from the appalling muddle into which the Government have got by making this extraordinary Court, with a justiciable issue, and with lay members and a High Court judge constituting that Court. That is the source of many of the Government's difficulties in connection with this Bill. If, of course, it were a truly justiciable issue which was put before the tribunal, there would be no difficulty at all, because it would be a matter of law within the ambit of a High Court judge, and a High Court judge would be the appropriate person to deal with it.
But, of course, although the Government call this matter a justiciable issue, it is not that at all. It is an economic issue, and for that reason they have added lay members to the tribunal. Once they have added lay members to the tribunal, 857 they take it outside the High Court. Having been taken outside the High Court, it is just a tribunal, and no questions of exclusive right of audience or anything of that kind apply any longer.
Thus, this body being a tribunal, the Government can bring forward, as they have quite rightly done, a proposal that members of the Scottish Bar may practise before it. We welcome that proposal. As my hon. Friend the Member for Islington, East has said, however, great as our respect is for members of the Scottish Bar, they are, in English courts, laymen. There is no reason why members of the Northern Ireland Bar should not appear. They are not included in the Government's proposal, but there is no reason why they should not be. There is no reason why members of the French Bar, of the South African Bar, or any other Bar should not appear.
What the Government are doing is to provide a right of audience for members of the Scottish Bar, without any sort of logical foundation which would justify a distinction between them and any other laymen who might wish to appear before the Court. It is, therefore, extremely difficult for us to see how one can draw a line, once members of the Scottish Bar, who, as I say, are laymen before the English courts, are admitted. There is no question of law common to the two countries involved, because, when there is an appeal and there is a question of law to be decided, what happens is that the matter goes by case stated to the Court of Appeal. When it goes to the Court of Appeal on case stated, for a decision on a point of law, the English barrister alone has right of audience, and the Scottish barrister has no right at all, with the ridiculous result that a member of the Scottish Bar can practise before the Restrictive Practices Court, but when a case is stated for appeal on a point of law to the Court of Appeal in England, that member of the Scottish Bar can no longer act for his client and plead on the point of law before the Court of Appeal. It is clear that considerations of law were not the motive in bringing in members of the Scottish Bar to appear before the Court.
As I say, there is no wish on our part to exclude members of the Scottish Bar, but the point is that their position makes it perfectly clear that they are laymen, in the conception of the Government in 858 introducing this proposal to give them right of audience. They are laymen, having no right of audience before the Court of Appeal on a point of law. The same principle should accordingly apply to solicitors in this country, for instance, and indeed to any other persons whatsoever.
The right hon. Gentleman referred to the Industrial Court, saying that Scottish barristers have a right of audience there. Of course they have. So have laymen; the right is not confined to members of the Scottish Bar. A court-martial is a special case, because, as the right hon. Gentleman will recollect, there were rather acute debates in this House about courts-martial, and in courts-martial the provisions of law are considered to be common to Scotsmen and Englishmen in the Army. Special provision was made for that; but, be it noted, there was a right of appeal on a point of law to the Court of Criminal Appeal.
There is no right of appeal to the Court of Appeal in respect of which a Scottish barrister can appear. In other words, members of the Scottish Bar are treated as laymen. If they are so treated, and accepted, within the conception of this scheme, that right should not be limited to members of the Scottish Bar.
The Amendment which is before the House extends right of audience to those who practise before the county court. There is no anxiety on our part to extend a privilege to solicitors only; that is no part of our intention at all. If I may say so with respect, while one completely accepts and bows to the Ruling, it is regrettable, from our point of view, that the Amendment which has been selected is the one dealing with solicitors and not the second Amendment, which deals with laymen generally. We put forward the Amendment dealing with solicitors merely as an example of the principle which we are advancing, namely, that this is a tribunal before which, if it is appropriate for any class of laymen at all to appear, then it is appropriate for all laymen to appear. It seems to us that the President is in a quite impossible position in resisting this Amendment, and we shall have to press it.
§ Mr. P. Thorneycroft
All of us, I am sure, on both sides of the House, hold all branches of the legal profession in the very highest regard. We are not here trying to judge between them in any way 859 at all. Those of us who have been in the advocate side of the profession, even if only for rather a short time in early Me, like myself, learn to respect the sister profession of the solicitor.
I wondered whether we were ending the debate on restrictive practices in quite the right spirit. As I listened to the debate on this particular point flashing backwards and forwards, I felt glad that we had restricted the Bill to cover goods and had not expended it to labour or services.
The hon. Member for Islington, East (Mr. E. Fletcher) has, if I may say so, put two cases, and has put both of them extremely well. He suggested, first, that we really should restrict this rigidly to the English Bar and not allow a Scottish advocate to cross the Tweed; and, secondly, he said that we should throw it open, restricted only by the rules of order, to anybody, whether legally qualified or not. I must say that I could not help feeling that the hon. Gentleman ought to be entitled to appear before any court.
I am not really an advocate at all now; I only try to follow these events and arguments. I dare say there is something in what the hon. and learn Member for Leicester, North-East (Sir L. Ungoed-Thomas) has said, that Scottish advocates
§ are, in a sense, laymen in English courts. I must say, however, that it is going a long way beyond extending a common right of audience to say that one can reopen the whole question of right of audience in what I regard and hope will be regarded generally as the equivalent of the High Court. I do not think it is necessary to settle that issue, which is a wider issue in the legal profession.
§ I am only anxious to preserve the position of this Court. While it differs in certain respects from divisions of the High Court, I am anxious that it should be treated in the same way, that cases should be presented in the same manner, and with the same traditions as in the High Court. I am confident that the arrangements we have made here will lead to that end, and I commend them to the House.
§ Mr. Thorneycroft
Northern Ireland, in this sense, may be a little less liberal than Scotland. It is what they desired in the matter, and I am not prepared to judge between them in any other sense.
§ Question put, That those words be there inserted in the proposed Amendment:—
§ The House divided: Ayes 135, Noes 180.861
|Division No. 221.]||AYES||[7.58 p.m.|
|Ainsley, J. W.||Fernyhough, E.||Lewis, Arthur|
|Albu, A. H.||Fienburgh, W.||Mahon, Dr. J. Dickson|
|Anderson, Frank||Finch, H. J.||MacColl, J. E.|
|Bacon, Miss Alice||Fletcher, Eric||McKay, John (Wallsend)|
|Benson, G.||Forman, J. C.||MacPherson, Malcolm (Stirling)|
|Blackburn, F.||Fraser, Thomas (Hamilton)||Mahon, Simon|
|Blyton, W. R.||Gaitskell, Rt. Hon. H. T. N.||Mallalieu, E. L. (Brigg)|
|Bottomley, Rt. Hon. A. G.||Gibson, C. W.||Mann, Mrs. Jean|
|Bowden, H. W. (Leicester, S.W.)||Gordon Walker, Rt. Hon. P. C.||Marquand, Rt. Hon. H. A.|
|Bowles, F. G.||Grey, C. F.||Mikardo, Ian|
|Boyd, T. C.||Griffiths, Rt. Hon. James (Llanelly)||Mitchison, G. R.|
|Braddock, Mrs. Elizabeth||Griffiths, William (Exchange)||Monslow, W.|
|Brockway, A. F.||Hall, Rt. Hn. Glenvil (Colne Valley)||Moody, A. S.|
|Broughton, Dr. A. D. D.||Hamilton W. W.||Morrison,Rt.Hn.Herbert(Lewis'm,S.)|
|Brown, Thomas (Ince)||Hastings, S.||Moyle, A.|
|Butler, Mrs. Joyce (Wood Green)||Hayman, F. H||Mulley, F. W.|
|Castle, Mrs. B. A.||Holman, P.||Noel-Baker, Francis (Swindon)|
|Chetwynd, G. R.||Hubbard, T. F.||Oliver, G. H.|
|Clunie, J.||Hughes, Emrys (S. Ayrshire)||Oram, A. E.|
|Collick, P. H. (Birkenhead)||Hughes, Hector (Aberdeen, N.)||Orbach, M.|
|Collins, V. J.(Shoreditch & Finsbury)||Hunter, A. E.||Oswald, T.|
|Craddock, George (Bradford, S.)||Irvine, A. J. (Edge Hill)||Owen, W. J.|
|Cullen, Mrs. A.||Irving, S. (Dartford)||Padley, W. E.|
|Dalton, Rt. Hon. H.||Janner, B.||Palmer, A. M. F.|
|Darling, George (Hillsborough)||Jay, Rt. Hon. D. P. T.||Pargiter, G. A.|
|Davies, Harold (Leek)||Jenkins, Roy (Stechford)||Parker, J.|
|Delargy, H. J.||Jones, David (The Hartlepools)||Paton, John|
|Dodds, N. N.||Jones, Elwyn (W. Ham, S.)||Peart, T. F.|
|Dugdale, Rt. Hn. John (W. Brmwch)||Key, Rt. Hon. C. W.||Plummer, Sir Leslie|
|Dye, S.||King, Dr. H. M.||Price, Philips (Gloucestershire, W.)|
|Ede, Rt. Hon. J. C.||Lawson, G. M.||Proctor, W. T.|
|Edwards, Robert (Bilston)||Lever, Harold (Cheetham)||Pryde, D. J.|
|Evans, Albert (Islington, S.W.)||Lever, Leslie (Ardwick)||Randall, H. E.|
|Rankin, John||Sorensen, R. W.||Weitzman, D.|
|Redhead, E. C.||Stewart, Michael (Fulham)||West, D. G.|
|Reeves, J.||Stones, W. (Consett)||Wheeldon, W. E.|
|Robens, Rt. Hon. A.||Strachey, Rt. Hon. J.||White, Mrs. Eirene (E, Flint)|
|Roberts, Albert (Normanton)||Stross, Dr Barnett(Stoke-on-Trent, C.)||Willey, Frederick|
|Roberts, Goronwy (Caernarvon)||Summerskill, Rt. Hon. E.||Willis, Eustace (Edinburgh, E.)|
|Robinson, Kenneth (St. Pancras, N.)||Swingler, S. T.||Wilson, Rt. Hon Harold (Huyton)|
|Ross, William||Taylor, John (West Lothian)||Woof, R. E.|
|Shurmer, P. L. E.||Thomson, George (Dundee, E.)||Younger, Rt. Hon. K.|
|Silverman, Julius (Aston)||Turner-Samuels, M.||Zilliacus, K.|
|Silverman, Sydney (Nelson)||Ungoed-Thomas, Sir Lynn|
|Skeffington, A. M.||Viant, S. P.||TELLERS FOR THE AYES:|
|Slater, Mrs. H. (Stoke, N.)||Warbey, W. N.||Mr. Holmes and Mr. Deer.|
|Agnew, Cmdr, P. G.||Grimond, J.||Maydon, Lt.-Comdr, S. L. C.|
|Aitken, W. T.||Hall, John (Wycombe)||Milligan, Rt. Hon. W. P.|
|Alport, C. J. M.||Harris, Frederic (Croydon, N.W.)||Molson, Rt. Hon. Hugh|
|Amery, Julian (Preston, N.)||Harris. Reader (Heston)||Morrison, John (Salisbury)|
|Arbuthnot, John||Harvey, Ian (Harrow, E.)||Nairn, D. L. S.|
|Armstrong, C. W.||Harvey, John (Walthamstow, E.)||Neave, Airey|
|Atkins, H. E.||Harvie-Watt, Sir George||Oakshott, H. D.|
|Balniel, Lord||Hay, John||O'Neill, Hn. Phelim (Co. Antrim, N.)|
|Barber, Anthony||Heald, Rt. Hon. Sir Lionel||Ormsby-Gore, Hon. W. D.|
|Barter, John||Heath, Rt. Hon. E. R. G.||Page, R. G.|
|Baxter, Sir Beverley||Hicks-Beach, Maj. W. W.||Pannell, N. A. (Kirkdale)|
|Beamish, Maj. Tufton||Hill, Rt. Hon. Charles (Luton)||Partridge, E.|
|Bell, Philip (Bolton, E.)||Hill, Mrs. E. (Wythenshawe)||Pickthorn, K. W. M.|
|Bell, Ronald (Bucks, S.)||Hill, John (S. Norfolk)||Pilkington, Capt. R. A.|
|Bidgood, J. C.||Hinchingbrooke, Viscount||Pitman, I. J.|
|Biggs-Davison, J. A.||Holland-Martin, C. J.||Pitt, Miss E. M.|
|Bishop, F. P.||Holt, A. F.||Pott, H. P.|
|Black, C. W.||Hornby, R. P.||Powell, J. Enoch|
|Body, R. F.||Horobin, Sir Ian||Raikes, Sir Victor|
|Boothby, Sir Robert||Horsbrugh, Rt. Hon. Dame Florence||Rawlinson, Peter|
|Bowen, E. R. (Cardigan)||Hudson, Sir Austin (Lewisham, N.)||Redmayne, M.|
|Braine, B. R.||Hughes Hallett, Vice-Admiral J.||Renton, D. L. M.|
|Bromley-Davenport, Lt.-Col. W. H.||Hughes-Young, M. H. C.||Ridsdale, J. E.|
|Brooman-White, R. C.||Hutchison, Sir Ian Clark (E'b'gh, W.)||Rippon, A. G. F.|
|Bullus, Wing Commander E. E.||Hutchison, Sir James (Scotstoun)||Roberts, Sir Peter (Heeley)|
|Burden, F. F. A.||Hyde, Montgomery||Robinson, Sir Roland (Blackpool, S.)|
|Campbell, Sir David||Hylton-Foster, Sir H. B. H.||Roper, Sir Harold|
|Clarke, Brig. Terence (Portsmth, W.)||Iremonger, T. L.||Shepherd, William|
|Cordeaux, Lt.-Col. J. K.||Irvine, Bryant Godman (Rye)||Simon, J. E. S. (Middlesbrough, W.)|
|Craddock, Beresford (Spelthorne)||Jenkins, Robert (Dulwich)||Smithers, Peter (Winchester)|
|Crowder, Sir John (Finchley)||Johnson, Eric (Blackley)||Speir, R. M.|
|Cunningham, Knox||Jones, Rt. Hon. Aubrey (Hall Green)||Stevens, Geoffrey|
|Currie, G. B. H.||Joynson-Hicks, Hon. Sir Lancelot||Steward, Sir William (Woolwich, W.)|
|Dance, J. C. G.||Keegan, D.||Stewart, Henderson (Fife, E.)|
|Deedes, W. F.||Kerr, H. W.||Studholme, Sir Henry|
|Donaldson, Cmdr. C. E. McA.||Kershaw, J. A.||Summers, Sir Spencer|
|Doughty, C. J. A.||Kimball, M.||Sumner, W. D. M. (Orpington)|
|Drayson, G. B.||Lambton, Viscount||Teeling, W.|
|du Cann, E. D. L.||Legge-Bourke, Maj. E. A. H.||Thomas, P. J. M (Conway)|
|Duncan, Capt. J. A. L.||Legh, Hon. Peter (Petersfield)||Thorneycroft, Rt. Hon. P.|
|Duthie, W. S.||Lindsay, Hon. James (Devon, N.)||Thornton-Kemsley, C. N.|
|Eden, J. B. (Bournemouth, West)||Linstead, Sir H. N.||Tilney, John (Wavertree)|
|Emmet, Hon. Mrs. Evelyn||Lloyd, Maj. Sir Guy (Renfrew, E.)||Vane, W. M. F.|
|Errington, Sir Erie||Lloyd, Rt. Hon. Selwyn (Wirral)||Vaughan-Morgan, J. K.|
|Farey-Jones, F. W.||Longden, Gilbert||Vosper, U F.|
|Fell, A.||Lucas, P. B. (Brentford & Chiswick)||Wakefield, Edward (Derbyshire, W.)|
|Finlay, Graeme||Mackie, J. H. (Galloway)||Walker-Smith, D. C.|
|Fisher, Nigel||McLaughlin, Mrs. P.||Ward, Hon. George (Worcester)|
|Fletcher-Cooke, C.||Maclay, Rt. Hon. John||Ward, Dame Irene (Tynemouth)|
|Fort, R.||McLean, Neil (Inverness)||Waterhouse, Capt. Rt. Hon. C.|
|Foster, John||Macmillan,Rt.Hn.Harold(Bromley)||Watkinson, Rt. Hon. Harold|
|Fraser, Sir Ian (M'cmhe & Lonsdale)||Macpherson, Niall (Dumfries)||Webbe, Sir H.|
|Freeth, D. K.||Maddan, Martin||Whitelaw, W.S.I.(Penrith & Border)|
|Garner-Evans, E. H.||Maitland, Cdr. J. F. W. (Horncastle)||Williams, Paul (Sunderland, S.)|
|George, J. C. (Pollok)||Maitland, Hon. Patrick (Lanark)||Williams, R. Dudley (Exeter)|
|Gibson-Watt, D.||Markham, Major Sir Frank||Wills, G. (Bridgwater)|
|Godber, J. B.||Marlowe, A. A. H.||Wood, Hon. R.|
|Gomme-Duncan, Col. Sir Alan||Marshall, Douglas||Woollam, John Victor|
|Gower, H. R.||Mathew, R.||TELLERS FOR THE NOES:|
|Graham, Sir Fergus||Maude, Angus||Colonel J. H. Harrison and|
|Green, A.||Mawby, R. L.||Mr. Bryan.|
§ Proposed words there inserted in the Bill.863
§ 8.7 p.m.
Mr. P. Thorneyeroft
I beg to move, That the Bill be now read the Third time.
I should like to take this opportunity of thanking the House for its assistance on the Bill. We have had a long, constructive and good-tempered debate upon the various provisions in the Bill, which are complicated and in places controversial. The Bill has passed through its various stages unchanged as far as its principles are concerned but certainly improved in its clarity, in its precision and, in some respects, in the machinery which is used for its implementation. All sides of the House have contributed to that result.
Obviously, I cannot present the Bill, in the form in which we are discussing it on Third Reading, as an entirely uncontroversial Measure. Hon. Members opposite have contested its central feature of the Restrictive Trade Practices Court, but I am quite certain that hon. and right hon. Members, on all sides of the House, wish it success in the objectives which it sets out to achieve.
We on this side believe in a system of free competitive enterprise, but that system must be defended not only on its success but on the fact that arrangements which may be made under it are not only fair, but can demonstrably be shown to be fair. One method—at least, one which is well understood—of demonstrating that things are fair in this country is that they should be judged not simply by industry itself, nor even by politicians and by Governments, but by courts working and operating upon criteria which from time to time are laid down by Parliament.
The Bill marks an adaptation in our judicial system designed to meet the present-day economic needs. We deliberately seek to substitute the impartial and informed judgment of a court for the day to day cut and thrust of Parliamentary dispute about issues of this character. We do not believe that Parliament or the courts or the public or industry will suffer from this change.
Obviously, no Bill which deals with this vast and difficult subject can solve all these great problems at a single blow. The Bill is not the only nor, I suppose, will it be the final approach, but I think 864 I can claim that it marks a really important landmark in this field of policy and is an advance on anything which has gone before. I am satisfied that it includes the main range of devices which are designed to restrict competition, and it is right that it should. Some of them may or may not be justified, but what is certain is that they must all of them be open to examination.
I am equally satisfied—and I attach considerable importance to this, too—that the Bill excludes the great range of ordinary commercial agreements and arrangements to which no exception is normally taken in our public affairs, and which must be allowed to go on without constant inquiry and examination. It provides a method of registration and judicial examination which will, I think, prove equitable and efficient.
Apart from the Court, we retain the Monopolies Commission. We retain it, as has been pointed out in debate, in a more limited field. All I would say about the Monopolies Commission is this. I think we should pay a tribute to its Chairman and members. If it had not been for the work which they have done over a number of years now and under different Governments we should not have had this Bill at all. It would have been quite impossible to have devised or constructed a Measure of this character. It was based not only on their large-scale Report on collective discrimination, but upon the sum total of knowledge which they were able to bring to bear in a great number of Reports dealing with very different and diverse problems. We owe them a debt of gratitude.
It is important, I believe, to preserve clearly a demarcation line between their future responsibilities, which are also important, and the responsibilities of the Court. There is a case for a judicial solution of some of these problems. There is a case for administrative or executive solutions. There is no case at all for an overlap of responsibility. If we had that overlap we should have the worst of both worlds, and one of the features of this Measure which we now invite the House to read the Third time is that it does preserve that division between the Monopolies Commission on the one hand and the Restrictive Trade Practices Court upon the other.
865 So far as the problems of resale price maintenance are concerned, I think that the Bill provides an important new advance. Maintaining prices is a practice which may be justified, but there are certainly many other factors and problems which confront us today besides the maintenance of prices, not least of all that of how to get the prices down. In this Measure we have struck is the right balance.
The public generally will be glad to see the end of collective enforcement of resale price maintenance, with the massive and complicated arrangements for private courts and stop lists and the rest. At the same time, I am satisfied that the new legal right for individual enforcement, which the Bill now contains, is adequate to guard against those dangers, which have been genuinely stressed as important, of the loss-leader and the like.
The Bill is a long-term operation. No one will suggest that it will have a sudden, immediate, and dramatic effect, but it will, I believe, make a contribution, and, in my judgment, an important contribution, to the competitive strength of the United Kingdom and to the condition of free and largely unfettered enterprise which we in Her Majesty's Government are satisfied is necessary if we are to solve the economic problems of today.
§ 8.16 p.m.
§ Sir L. Ungoed-Thomas
I should like, first, to congratulate the President upon his handling of the Bill. He has handled it with skill, with knowledge and with courtesy, and it has been a comparatively pleasant task, so far as opposition involves pleasantness, to oppose him on the Bill. The right hon. Gentleman could not have handled the Bill in the way in which he has handled it without a complete and thorough understanding of all its detailed provisions.
We differ, of course, about much in the Bill. We agree, at any rate—that is, the Government and the Opposition, for I am not going to speak for all Members on the back benches on the Government side —that the object of the Bill is a right object, that we should eliminate pernicious restrictive practices. We differ on method, and we say that on method the Government have here produced an ineffective muddle. On details there have been, as the President indicated, improvements, and quite substantial improvements, but 866 improvements which will leave the main conception and structure of the Government's policy in the Bill not substantially affected.
The registration provisions of the Bill we have supported throughout. We think it is a right and proper course to take to ensure registration. How far registration will be effective of itself to lead to any decrease in restrictive practices remains to be seen. It will depend largely upon public opinion how far, as a result of exposing what those restrictive practices and agreements are, the agreements themselves are modified. The penalties in the Bill, if one were not relying on public opinion but on the actual provisions which the Government make for ensuring registration, although appreciably improved in Committee and on Report, are utterly inadequate.
The approach to the prohibitions themselves is different on the two sides of the House. Throughout we have favoured a general prohibition, with provisions for a narrow range of exceptions. The Government have adopted that in one case, the case of the collective boycott to enforce resale price maintenance, and we welcome the general prohibition which is contained in the Clause which deals with that. It is the principle of that Clause which we should have liked to have seen very much further extended.
The result of the Government's proposal, that there should be no prohibition until, in each case, the matter is examined by the Court set up by the Bill, with a queue waiting for the examination of each case, is that the method of examining the cases becomes of crucial importance. It would be comparatively unimportant if a scheme were adopted of a general prohibition with examination of a narrow range of exceptions, but the Government have adopted the opposite course, with the result that the method of examination becomes crucial to the Bill.
The Government have now decided that there shall be a Court and to endeavour to make the issue to be decided by the court justiciable, that is, expressed in terms of a general law suitable for the Court to apply to the facts. It is not, in our view, a justiciable issue. The issues involved, as the President of the Board of Trade has, in part, agreed, are economic and social issues, and that 867 is why the right hon. Gentleman has included lay members in the Court. If it were a purely justiciable issue as a matter of law then, obviously, the right place for it to go would be to the High Court, before a High Court judge qualified to deal with it.
In endeavouring to define the law which shall be applied by the Court—and the Court cannot apply the law unless the law is stated—the Government have inevitably allowed large difficulties of interpretation to arise and big loopholes through which anybody who wishes to do so can escape the consequences. It is a muddled proposal to try to wed what is essentially an economic decision with what is essentially a justiciable process. They simply do not marry together. The result is the great number of difficulties which throughout the Committee and Report stage of the Bill have constantly faced the Government.
There is the danger of dragging judges into political and economic issues. There is the difficulty about obtaining suitable lay members of the Court, and this is a crucial matter in the working out of the Bill. The effectiveness of the Court will depend to a very great extent upon the calibre of lay members obtained for the work. It remains to be seen what will happen, but I am sure that the President of the Board of Trade will bear most strongly in mind the prolonged examination given in Committee and on Report to the need for lay members of a calibre comparable with that of a High Court judge with whom laymen will sit as fellow-members in the Restrictive Practices Court.
We on this side of the House would have preferred a Governmental method of dealing with the matter, with extension of the employment of the Monopolies Commission. I would agree most strongly in commending, if I may with deference, the excellent work which has been done by the Commission. As the right hon Gentleman said, it is only the Commission's work that has made the Bill possible. I should like particularly to have seen the Commission work as a body reviewing the effect on the economy of the country of judicial decisions.
There is no provision in the Bill to ensure that there shall be an individual 868 review, with reports available to the Government and to the House for examination. That would involve no clash and no overlapping between the Commission and the Court. It would simply mean that the Court would arrive at its decisions, and, in the same way as we have Royal Commissions on marriage and other subjects, we should have sitting a Commission on restrictive practices which could review the effects on our economy of the Court's decisions. There would be no question of interfering with or in any way impinging upon the decisions of the Restrictive Practices Court.
We on this side endeavoured to have two main Amendments accepted on the subject of resale price maintenance, to deal with what appear to us to be the two main difficulties in the restrictive practices provisions of the Bill. The first is that there is no check at all upon prices or upon the reasonableness of the conditions imposed in cases of individual resale price maintenance. The other point is one of important principle and of very important practical effect.
This matter was deal with in a very able speech in Committee, when one of my hon. Friends referred to the principle laid down in the Lloyd Jacob Report, which said:Producers are not in our opinion entitled to use resale price maintenance to obstruct the development of particular methods of trading.I am sure that we all agree with that very healthy principle.
The position is that some traders do not pay the surplus profits of their trading on capital to shareholders but pay it, instead, to purchasers in proportion to their purchases, a most admirable method of trading which one would have thought would have commended itself to the sympathetic consideration of the Government as tending to reduce prices and to help those sections of the community which most need it. There is no legitimate cause of complaint against this method of trading.
The Lloyd Jacob Committee said:… we do not consider that a bona fide exercise of this freedom"—that is, the freedom to pay dividends to consumers instead of to shareholders—can imperil the trade or good-will of any manufacturer.No ill results to a manufacturer from that method of trading according to the 869 considered opinion of the Lloyd Jacob Committee. Nevertheless, the Government have made this discrimination despite the Lloyd Jacob Report and have enabled manufacturers to enforce individual resale price maintenance in the courts against traders who trade by this method, including the great co-operative societies of the country, a number of individual traders and agricultural cooperatives and other organisations of that kind.
In our view, this is a really vicious provision. The danger is that manufacturers will take advantage of the rights of going to the courts to extend the discrimination which they may practise. The Labour Party has always made it clear that it is against discrimination. If, therefore, manufacturers use this Bill to extend discrimination against co-operative societies, and against other traders who give trade rebates to their customers, a Labour Government will take steps to put an end to those discriminatory practices.
§ Mr. William Shepherd (Cheadle)
Does the hon. and learned Gentleman recognise that the effect of what is now being done will be in the contrary direction? As soon as one manufacturer takes it into his mind to supply a co-operative society with a given class of goods, other manufacturers will be very much inclined, because of the competitive nature of trade and the fact that they will no longer be bound collectively, to follow suit, which must ease the position of the co-operative society in the course of time.
§ Sir L. Ungoed-Thomas
What is pernicious about this Bill is that it has given the Court the right to enforce individual resale price maintenance and discriminatory practices, expressly including dividends and discriminations of this kind against co-operative societies. What I have said about manufacturers who extend this discrimination against cooperative societies and against other traders who give trade rebates to their customers is that a Labour Government would take steps to end this practice.
Taking the Bill as a whole, we agree with its object, but we are extremely critical and sceptical about the method adopted in it. We are anxious that the Bill should succeed. We want to do 870 everything possible not only to give it a chance, but to help it to succeed. If this method which the Government have adopted is not effective, quite clearly other methods which are effective will have to be adopted, but, in the meantime, we wish to give the Bill a chance. We are in favour of its object, and for this reason we shall agree to the Third Reading.
§ 8.31 p.m.
§ Sir Lionel Heald (Chertsey)
The hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) has described the Bill as an ineffective muddle. The duty of an Opposition is to oppose, and, therefore, if he really thought that the Bill was an ineffective muddle, it would be his duty to recommend his colleagues to vote against it, but he did not do so. I think that is very significant.
§ Sir L. Ungoed-Thomas
I am grateful to the right hon. and learned Member for Chertsey (Sir L. Heald) for his advice to the Opposition as to what they should do, but I think I have made it clear. though apparently not to the right hon. and learned Gentleman, that whereas we were agreed about the object of the Bill, we disagree about the method adopted. It was in reference to that that I said that the Bill was a muddle, and I explained carefully that, because we agreed with the object of the Bill, we were not opposing the Third Reading.
§ Sir L. Heald
I am much obliged to the hon. and learned Gentleman. He has made it plain, of course, that the reason why he had to say these things in his speech was because this Bill represents the very definite carrying out of a specific pledge that was given before and during the last Election. Something very remarkable has been achieved. I can quite understand that, for purely political purposes, the hon. and learned Gentleman had to say what he did. Fortunately, we can leave him to his Socialist politics, and go on to deal with something more important.
This is a very difficult and extremely complicated Bill, which has occupied the attention of the House, I think I am right in saying, for nearly seventy hours. It is a very difficult job that has been done, and I feel that everyone in the House will agree with me on this, at any rate. Certainly in the short time that I have 871 been in the House, there has never been a Bill concerning which the Ministers responsible for it have been more certain of what they were doing, how to do it, and more thoroughly in charge and on top of their job. I think that that is something about which we all ought to be pleased and proud, no matter on which side of the House we sit.
I think it is also interesting to remember some of the things that were said when consideration of this Bill started. For example, there was an article in the Economist, and I almost wondered when I read it whether that journal had not changed places with Punch for the time, so that the more serious political arguments appeared in Punch and the more humorous ones in the Economist. It was suggested that the President of the Board of Trade was to be defended by a band of stalwarts, as they were described, and notably by the hon. and learned Gentleman and others, who were to defend the President of the Board of Trade against the representatives of the trade associations, who were to produce a series of wrecking Amendments designed to destroy the Bill. I had the honour of being named personally by the Economist as being the leading representative of the trade associations.
If one had taken that seriously, one might have regarded it as a rather insulting remark, because I should have thought that, having regard to what I have done in the past in this House and the way in which I have conducted myself here, I would not be regarded as the hired representative of anybody. It was obvious that those responsible for those comments had no understanding of what was happening.
The fact is that the Conservative Party was undertaking what amounted to a serious interference with private enterprise and private industry. We thought, and I believe we were right in thinking —I feel that all our supporters and the country generally would agree—that it was our business in those circumstances to see that the procedure was as fair as possible, that the machinery was as fair and efficient as possible, in order to ensure that no injustice was done. That is what we did.
I am not ashamed to say that I consulted those in responsible positions in 872 various branches of industry and also professional associations. It is the duty of Members of Parliament to inform themselves on these matters, and I certainly have nothing to regret about that. As a result we put down a number of Amendments, and I hope that we have achieved some results in helping to improve the Bill. First there was the position of the Registrar and his relationship to the Court, and the way in which he should be controlled. In the end, after some vicissitudes, we obtained a considerable improvement in that respect. We felt that Clause 16 was not satisfactory as it stood originally. That was especially so where it required the industry concerned, or the parties concerned, not only to prove certain specific things but also, over and above that, to prove as a negative that their practices had not operated, and were not calculated to operate, to the detriment of the public. We felt that that would be an impossible thing to prove as a matter of evidence and, indeed, that view was accepted by my right hon. Friend. In the end we obtained a provision which no doubt will be difficult to work, but which at any rate will deal with the matter in a fair way.
Then there were various other matters, very technical—no doubt very tiring for those who had to be about in the House and who were not very interested in the subject—dealing with trade marks, know-how, patents and all sorts of other things. Yet they were important. They were dealt with. My right hon. Friend paid attention to the trade associations, and not only to them but also to professional bodies such as the Chartered Institute of Patent Agents, highly skilled and professional people, who saw him about these things, and my right hon. Friend met them in respect of a number of points.
If I may speak with great humility, having had the personal experience of being responsible for one or two extremely complicated Bills in this House, I should have thought that this Bill was about as difficult a Measure as any that has had to be tackled, and that, considering everything, it has emerged greatly improved. At the beginning The Times said that this was a precarious Bill anyhow, and hoped that it might survive the Committee stage in a form which would 873 enable it to be useful and effective. I believe that that is the case.
A great deal has been said about the novel nature of the tribunal. I do not think there is anything very startling about it. I think that any High Court judge charged with the duty of interpreting this Measure will be pleased to have with him two experienced men who can speak with knowledge and authority from a practical point of view. I sincerely hope that we shall be able to get the right people to sit on the tribunal. There I agree with the hon. and learned Member for Leicester, North-East.
There are difficulties in that respect. and there are also difficulties in many others; for example, the handling of the question of when various different types of case will be brought up, and in what order they will be brought forward, will be a difficult task. There again, I think that we shall all agree that the selection of the Registrar will be important and difficult, and will no doubt receive very careful consideration.
We are bound to find difficulties; we are bound to find complications; but we all have to agree, however much we may have our individual views about what is not perfect in the Bill, that if we really believe in the principle of the Bill, we must not make too much of the difficulties, but extend to it our best wishes.
To the President of the Board of Trade and the Parliamentary Secretary we must give our thanks and congratulations for the work which they have done in piloting the Bill through the House.
§ 8.40 p.m.
§ Mr. Holt
I was really charmed by the opening remarks of the right hon. and learned Member for Chertsey (Sir L. Heald). We now have it on record in HANSARD that it is a remarkable achievement when one can rely on the promise of the Conservative Party. In the very charitable state of affairs in which we have now arrived, I am also ready to accept the gloss put on the attitude of some Conservative back benchers to the proposals of the Government.
I and some other hon. Members have never considered the right hon. and learned Member in the light in which the Economist regarded him, but certainly 874 some of his right hon. and hon. Friends were regarded with some suspicion by many of us, and possibly the reference in the Economist was to people rather nearer the Floor than he is at the moment. However that may be, it has been one of the interesting things about the Bill that the predicted opposition in the House and in the country has not materialised.
I hope that from that the Government will draw a moral, because there are one or two other matters which face the Government and which have been put off for year after year by this and the previous party in power, because it was thought that if the measures really required to correct a particular fault in the country were taken, there would be a great deal of trouble and opposition. The Government should take courage in dealing with one or two other matters which are outstanding and which have been outstanding for a long time when they see what little real opposition they have had to face in what they consider to be a rather revolutionary undertaking.
Kind words have already been said about the President of the Board of Trade. I cannot remember whether the Parliamentary Secretary was included. If he was not, I should certainly like to include him. If I remember rightly, he came into the action, as it were, at rather short notice, and from what I have heard of him he has had as clear and competent a grasp of the Bill as the President of the Board of Trade has had. I should like to be allowed to pay some tribute to my hon. Friend the Member for Huddersfield, West (Mr. Wade) who has done so much in the consideration of the Bill and who is unable to be here today, because he is in Germany with a Parliamentary delegation.
Having completed my compliments, I should like to say one or two things about the Bill. We thought that there were many loopholes—my hon. Friend the Member for Huddersfield, West went on record as saying that there were at least twenty—when we first saw the Bill, and we are still disappointed with it. It is not what we should have liked. When we recognise that the Bill has not been weakened as it was thought it might be, when we realise that the President has stuck to his guns and got the Bill he wanted, we are grateful for small mercies 875 in that respect. The Bill is undoubtedly better than the one originally presented.
I think that we have still to remain critical, and we shall remain critical. In ordinary language, we should keep our fingers crossed and hope that the expectations of the President of the Board of Trade are justified. I will not embarrass him in his absence by accusing him of being a Liberal; that would be unwarranted flattery and exaggeration. But he has, I think, some fairly firm views on the undesirability of many of these practices, and I think that he quite genuinely wishes to see them removed—and in that we support him.
We feel that the measures which he has taken in the Bill will not allow him to remove all the practices which we should like to see removed, nor will they be removed as quickly as we would have liked. We should, for instance, have liked to see total prohibition of price rings from the beginning. I think that that would have cleared the atmosphere and allowed the Court to consider a number of other practices which are probably just as undesirable, but which are a little more complicated.
Although we welcome the banning of collective enforcement, we have great doubt about the desirability of making resale price maintenance enforceable in the Courts. That is a matter about which we shall remain critical, and we shall undoubtedly have a good deal to say if the result is in fact to restrict competition and prevent that development in distribution in the retail trade which is so urgently required in this country; and that applies to other kindred matters.
The less said about Clause 16 now, the better. It seems it would have been better had the whole Clause been left out. There are so many loopholes that one can really only say, as the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) said earlier, that in respect of Clause 16 the vital matter is who we have constituting the Court. If, in fact, we have as members of the Court some people who have signed some of the minority Reports we have had from the Monopolies Commission, the whole purpose of the Bill will be undermined. My hon. Friend the Member for Orkney and Shetland (Mr. Grimond) said some time ago, perhaps not in this House, that possibly one of the best kind of appointments 876 which the President could make would be, so far as the judges are concerned, those of the real old crusty type, highly suspicious of every activity of man, who, when anyone was brought before the Court, would look upon him with grave suspicion, feeling that everything he did must be against the public interest.
If we had such judges in the chair, as it were—not the big businessmen whom some people seem to approve of so much in this respect, but rather some of the theoretical economists to whom one or two hon. Members opposite have taken great objection in the course of our consideration of the Bill—it seems to me that they would arrive at their decision on some sound logical basis and not merely because they were used to carrying out these practices in their own businesses and, therefore, think that they are a good thing.
I hope that this Bill will fulfil at least the desires of the President of the Board of Trade, although we cannot say that they will fulfil ours. This Bill is certainly better than having no Bill at all. The results will not be as quick as we should like, but we wish the Bill luck. We hope that it will in fact really be the beginning of a change in the climate in British industry away from those restrictive methods which came chiefly because of the difficulties of the 'thirties, when people quite naturally looked round for some way in which to protect their own particular businesses from the difficulties of the time, without in logic really knowing what they did, but with just a natural human instinct to save something from the wreckage. We hope, although we can never be certain, that we have left those days behind. In this new climate what we want is healthy, go-ahead, competitive trade. While remaining critical, we hope that the Bill will do something towards that, and therefore we support it on Third Reading.
§ 8.50 p.m.
§ Mr. R. Harris
It is a matter of deep regret to me that the hon. Member for Bolton, West (Mr. Holt) did not include me among the recipients of the congratulations that he was handing out so freely. As one of the hired assassins of the trade associations to which he made such kind reference, I really feel that I was entitled to some congratulation from the member of the Liberal Party. [HON. MEMBERS 877 "Hear, hear."] I am much obliged to the hon. Members of the Labour Party for supporting me.
For myself, I should like to add my congratulations to the President of the Board of Trade and the Parliamentary Secretary for the way in which they have handled the Bill. I must say that I think that they have been quite brilliant at times. I think that the official Labour Opposition, also, are entitled to a good deal of thanks for the way they have approached this very novel Bill which. on the whole, I think they have treated with great kindness and consideration Per contra, I think that I, too, have treated it with some consideration, having regard to the effect which it is having on the association of which I am secretary.
The President of the Board of Trade has been lucky. He has been rather like the piano which has appeared so often in cartoons and jokes over the centuries. The cartoons show a large piano being moved by two very large gentlemen, one at each end, one saying, "To you" and the other saying "From me", both pushing as hard as they can, and the piano standing absolutely still in the middle. That is rather what has happened here.
It is a great achievement of the President of the Board of Trade to have introduced a Bill with such novel provisions and got it through without any real major change in any respect. There has been a change of wording here and there arid a change in the frills, but by and large it has gone through almost as originally proposed.
It is, I believe, a good idea to register agreements. I am all for registering agreements, and I do not mind them coming out into the open. I think the more so the better. I want the public to feel satisfied that these things are not against the public interest if indeed they are not. I have always favoured that. It is a better thing to do than automatically to ban all agreements which, of course, is what the Labour Party wanted.
§ Mr. Harris
I hope that the Court which is being set up will enjoy the confidence of trade and industry to a greater extent that the Monopolies Commission has done. I do not want to blame the 878 Monopolies Commission. It has had to labour under quite impossible conditions. It is most difficult to appear to be impartial when one has not only got to pronounce a decision but also to collect the evidence. It is a very difficult thing to do, to collect the evidence, present it and then make a decision on it. Somebody is bound to think that one has not been fair.
Under the Court procedure which we have now adopted, it will be much more like the ordinary procedure of the High Court, and I think that it will tend to have the confidence of the people who are affected very much more than the Monopolies Commission has done. I do not quite understand or follow all the arguments of the hon. Member for Bolton, West. I cannot see why the Monopolies Commission, in its present or future form, or in the form that it would have taken had the Opposition Amendment been carried, should be in any better position to pronounce upon the matters which come before it than the new Court will be.
After all, it is a well-known fact that the Government have had great difficulty in finding suitable people to sit on the Monopolies Commission. They may have great difficulty in finding suitable people to sit on the Restrictive Practices Court. It is a difficult thing to find anybody completely and absolutely impartial who has had nothing to do with any of these matters in his life —except, possibly, economists, who have never produced anything.
I should like to say a word on behalf of the businessmen who have been run down so much. If a man has spent many years of his life in trade or industry, and produced something which has improved the standard of living, we cannot just dismiss him as a fool and say that everything he says or does is nonsense or hopelessly biassed. If we had to choose —though, of course, we do not have that choice—between getting rid of the economists or the businessmen, I know which I should choose; I should get rid of the economists, because they have never contributed anything to help bring down prices.
§ Mr. Harris
Yes, but I think that the economists may also be slightly prejudiced. Possibly they suffer from a sense of frustration from never having produced anything very positive in their lives. The hon. Member is a part-time businessman, as he has said, but I hope that he is not a part-time economist as well.
I do not wish to say too much about Clause 16. I am one of those who think that under the provisions of the Clause almost every agreement which is brought before the Court will probably be banned. Hon. Members opposite think, on the other hand, that almost every agreement will get through. I do not like a principle under which someone goes before a division of the High Court and is, so to speak, guilty before he opens his mouth. We shall have to wait and see how this works out.
Clause 19 bans immediately all collective enforcement resale price maintenance. I am bound to say, once again, that I think all the matters dealt with in this Clause should have been made registrable under Part I of the Bill and justifiable before the Court. I have made all these points before, and I do not wish to elaborate them again. Many members of the public cherish the illusion that, as a result of the Bill, we shall have no more private courts, fines, stop lists, snoopers, and the rest of it. But, of course, they will still continue. They may continue under the provisions of Part I of the Bill, because that will be the only way it will be possible to enforce agreements approved by the Court.
It is true that the whole matter will probably have to be approved by the Court, but it is inconceivable that, having approved the principle of a restrictive agreement, the Court will provide no method of enforcing it. If the agreement is given, presumably the Court must give some means of enforcing it. So far as I can see, the only way of doing that will be by the continuance of these private courts, some of which are not so evil as some hon. Members have tried to make out, and in many cases every endeavour has been made to make them fair. My only regret is that we shall not see the 880 Potato Marketing Board appearing before the Court in order to try to justify itself.
Earlier today I said something about Clause 19, when the Amendment which I moved was not seconded, because the seconder, my hon. Friend the Member for Twickenham (Mr. Gresham Cooke), like the hon. Member for Huddersfield, West (Mr. Wade), is on a delegation to Germany and was not able to be present. But I hope that at a later stage the President will see fit to accede to my request to defer the coming into operation of Clause 19. I do not want to repeat what I said earlier, but I think that it would be helpful to trade and industry if this Clause could be made enforceable in three or four months' time, instead of a month after the passing of the Bill, which is the provision applying to the rest of this Measure.
Clause 20, which provides for individual price maintenance is, of course, the "great unknown." We do not know how that will work out and no one is able to say. In some industries its provisions may prove efficient, in many others they may prove to be practically worthless.
I sincerely hope that the provisions of Clauses 19 and 20, and, indeed, of the whole Bill, will serve to bring down prices. If they do that, the Bill will be well justified. But I am bound also to express my fear that prices may perhaps be kept up by the Bill. One cannot deny that this Measure will introduce an air of uncertainty into trade and industry, and there is nothing worse than uncertainty for making industrialists go slow about bringing down prices. It would be a great tragedy if the Bill introduced such an atmosphere of uncertainty, and caused industrialists to feel that the Government and judges were looking over their shoulders all the time. If that stage were reached, industrialists might feel that it was not safe to reduce prices, because they did not know what cuts might be made, and all the rest of it.
However, I do hope that we shall see prices coming down more successfully than we have seen as a result of the activities of the Monopolies Commission. I have made many inquiries with a view to finding whether any reports and strictures made by the Commission have had the effect of reducing prices to the public. I know that there are other things involved besides reducing prices, but I 881 have not seen any evidence of that coming about as yet. Perhaps it will take years for these things to work out. If so, I hope that this Bill will produce quicker results than the Monopolies Commission has done.
Once again, I wish to congratulate the President and the Parliamentary Secretary on the way in which they have got this Bill through, and I wish it every success.
§ 9.1 p.m.
§ Mr. G. Darling
I am glad that the hon. Member for Heston and Isleworth (Mr. R. Harris) gave us an insight into the way he sees the Bill will work. It would be out of order to question him about that with a view to finding out how representatives of trade associations really view the Bill. Incidentally, I am surprised that he should attack academic economists because, leaving the hon. Member out of account, the most successful secretaries of trade associations are, in fact, academic economists.
§ Mr. R. Harris
I appreciate all that and I believe that economists can do a very useful job advising business men, but I do not like them pronouncing on businessmen's activities.
§ Mr. Darling
I agree with the hon. Member that Clause 20 is a shot in the dark. We do not know where we are going, or how it will work out. We may have to amend the Bill as the result of experience, particularly of what happens under Clause 20. We certainly could not begin to amend it now to make it a better Bill and to deal with the question raised by my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas) about the position of co-operative societies, trade rebates, and so on.
When he was in the Chamber a moment ago, the hon. Member for Cheadle (Mr. Shepherd) asked a question about that matter. His question illustrated the confusion which exists on that issue. He thought, as the Parliamentary Secretary thought when he replied to the point in Committee, that because Clause 19 will get rid of collective discrimination, the position of co-operative societies will be improved and, therefore, we ought not to complain about the fact that in Clause 20 the Bill gives legal protection to individual resale price maintenance.
882 The discrimination practised against co-operative societies at present is very largely by individual resale price maintenance. It is not collective in the sense that a manufacturer of gramophone records, a manufacturer of tools or other things, himself imposes the discriminatory conditions about giving rebates about which we have been complaining. In that sense, Clause 19 is no help to us at all. I am very glad that my hon. and learned Friend has said that with a change of Government those discriminatory practices, if they continue, will be dealt with by a Labour Government and will be ended. We are not asking for favours; we want the position of the co-operative societies to be precisely the same as that of everybody else in the trading community.
When dealing with this matter the President of the Board of Trade said that in the Bill he was legislating neither for nor against co-operative societies. That is not quite true. The Bill legislates against restrictive practices, but we leave out from the purview of the Bill one feature of restrictive practices; and the type of practice which is omitted is one to which co-operative societies, in particular, object. By leaving it out of the purview of the Bill, the right hon. Gentleman is legislating against co-operative societies. The restrictive practice to which we refer should have been incorporated in the Bill.
In support of the line which the right hon. Gentleman took, we had a statement from the hon. and learned Member for Middlesbrough, West (Mr. Simon) on the narrow legal point. We argued that the effect of Cluase 20 was to say to a manufacturer, "You can discriminate against co-operative societies on the ground that they distribute their profits to their customers instead of to their shareholders"; and the hon. and learned Member replied that that is not the correct position under the taxation laws because the dividends distributed by co-operative societies are trade rebates and not a distribution of profits.
In fact, that is a legal fiiction to which co-operative societies have agreed over the years in order that the Income Tax provisions may work satisfactorily. We do not accept that situation in theory, although we accept it in practice. The 883 alternative to accepting this legal fiction —the alternative which would give co-operative societies the same treatment as joint stock companies—would mean that in our Income Tax legislation we should have a separate section dealing only with co-operative societies.
So that that situation should not arise, the agricultural, industrial, co-partner-ship and other co-operative societies have accepted this legal fiction that a distribution of profits as applied to cooperative societies is the same as a distribution of trade rebates by a joint stock company. In fact, the distributions in form, in principle and everything else are quite different, and it is wrong to use that very narrow legal argument, based on a legal fiction to which we have agreed in order that the administration of taxation business should be easy, against us in this connection.
Co-operative societies and other traders —and we want to encourage more of them—who distribute their profits to their customers instead of to their shareholders are being discriminated against in the Bill. The Bill goes to the very principle of this form of trading which we have tried to build up in this country and to present to other countries as a model to follow. The Bill discriminates against this form of trading, and that is wrong and unfair.
I hope that the Bill will succeed in doing all the things which the President and the Parliamentary Secretary want it to do. I hope that it will put an end to restrictive practices which are injurious to the trade of this country. But, of course, it is not comprehensive, as we have pointed out. I hope that its weaknesses, faults and unfairnesses will eventually be put right.
Who is to put them right, I think, will be decided by the electors. There are 11 million members of co-operative societies, not all of whom are seized by the importance of what we think is important here. Many of them are opposed to the sort of political action which we take in the Co-operative movement. They think that the Co-operative movement should trust any kind of Government.
§ Mr. Deputy-Speaker (Sir Rhys Hopkin Morris)
The hon. Member is now going beyond a Third Reading debate.
§ Mr. Darling
I am sorry, Mr. Deputy-Speaker. These are my last words, and I think that if I alter them a little I shall not be out of order.
There are many people who think that the Government are being fair and can be trusted to be fair in these matters. Well, they can see what has happened here. We think that the Bill is unfair to co-operative enterprise. We shall go on saying to the public and to our members that it is unfair. We know, I think with some certainty, what the result will be when the electors have to judge these and other matters connected with the Bill.
§ 9.10 p.m.
§ Sir L. Joynson-Hicks
I am sorry that the hon. Member for Hillsborough (Mr. G. Darling) should have concluded upon such a note. As a member of at least two co-operative societies, I certainly do not think that the Bill is discriminatory against such societies, nor do I think that it will have such an effect as will influence electors. This is not a political but a purely industrial Measure, by which we are seeking to achieve what we always told the electors we would achieve, namely, a considerable freeing of our trade and industry.
The hon. Gentleman began his remarks by referring to the state of mental confusion in which various people have found themselves. Again, I think that the early apprehensions which were felt have been very considerably dispelled. I share with him the recollection that many different aspects of society—industrial, business and all those covered by the suppliers of goods—were exceedingly apprehensive as to what the Bill might result in. I believe that those apprehensions have been very greatly allayed during the course of the passage of this Bill. Certainly, we now all know very considerably more about its content and its intent and how it will work than we did in the earlier stages of our deliberations.
I have said that it was part of our original intention as a party and as a Government to endeavour to free trade. The Bill is a step which has been taken towards that end and object. I share the view expressed, with some doubt and hesitation, by my hon. Friend the Member for Heston and Isleworth (Mr. R. Harris) that it is also calculated to help us towards achieving another of our objects, which is to reduce prices. I 885 think that it will do so in a way entirely different from that which he suggested, although the normal freeing of the channels of trade is calculated to increase production and to reduce prices.
The other way in which it will operate to that end is that it will, throughout a considerable section of trade and industry, release a considerable number of people who are at present employed on the entirely unproductive work involved in the administration of these restrictive practices. If that saving in the cost of production is passed to the consuming public, I hope that it will lead to a reduction in prices.
Turning to Part I of the Bill, I believe that it can be nothing but an advantage to bring into the open these agreements which have been entered into. As the hon. Member for Bolton, West (Mr. Holt), speaking on behalf of the Liberal Party, reminded us, many of these agreements were started, or were thought of in the times of the depression in the 'thirties. As I myself indicated in the Second Reading debate, I think that the majority of them were started with the best of intentions and without any ulterior motives except to try to foster and improve the standards of business and the maintenance of business at that time.
There is no doubt that during the course of time, and in the natural empirical growth of condition after condition in the changing circumstances of our economic life, conditions have crept in which, in a number of cases, are contrary to the public interest. It is as well that they should be reviewed, and reviewed by an impartial, judicial tribunal, in which I have not the slightest doubt the public will have confidence.
Industry and trade generally throughout the country will also have confidence that they will be dealt with fairly, openly and honestly in order that an impartial and judicial judgment may be given as to whether or not the practices which have grown up are contrary to the public interest. I am equally sure that those parties to agreements who find that, in the opinion of the Court, the practices to which they have adhered and subscribed are contrary to the public interest, will accept that ruling of the Court without hesitation, and put their own house in order.
886 My hon. and learned Friend referred to one aspect of Clause 16 about which I was exceedingly apprehensive, namely, the necessity for a party to an agreement to establish a negative, as was originally provided in the Bill. I congratulate my hon. and learned Friend and his right hon. Friend upon finding a solution to that problem. I know that they did not enjoy the idea of putting upon a party the onus of proof involving the proving of a negative—an exceedingly difficult thing to do.
To resolve that problem was exceedingly difficult. We have all had a shot at it; suggestions came from different sides of the House, and practically all our suggestions were open to considerable criticism on one ground or another. I believe that the Government have found in this basis of a balance, a solution which does not do away with the necessity of parties establishing the rectitude of their own agreements, but which at the same time, avoids the necessity of their having to prove what might have been completely impossible, that is, a negative.
I do not think I ever had any real doubt, but whatever shadow of doubt might have crossed my mind at the beginning concerning the wisdom of the tribunal being a judicial court resolved during the debates in these proceedings. I am quite sure that that is the right solution. It is a remarkably courageous decision to take, since it involves an entirely new departure and gets away from the habit into which we were falling, not only as a Government but as a nation, in seeking to resolve these problems with administrative organisations and tribunals of one sort or another, before which the parties never really seem to know where they stand. Good though the work of many of them is, they are not the same thing as a judicial court, and they do not enjoy the same confidence among the public at large.
It is not my intention to refer to the latter parts of the Bill, particularly the Clauses dealing with collective enforcement; but I do not share the anxieties of my hon. Friend the Member for Heston and Isleworth that we shall see private courts approved and sanctioned by the Restrictive Practices Court. I cannot foresee the possibility of such an occurrence, and I believe that, in so far as it may be necessary, they will find their 887 own solution within the limits of the Bill, and without further trespassing upon the public conscience.
It remains only for me to tender to my hon. and learned Friend the Parliamentary Secretary my personal congratulations. Having been in a position somewhat similar to his, I know full well the strain, the work, and the effort involved in the situation which he holds, in dealing with a complicated and difficult Measure of this kind. I tender him my sincere congratulations and also to my right hon. Friend the President, for both are Ministers in charge of the Bill and have an unexampled grasp of the detail, not only of the Bill, but of its consequences.
§ 9.20 p.m.
§ Mr. Mulley
The House will agree that the hon. Member for Chichester (Sir L. Joynson-Hicks) has played a prominent part in our deliberations on the Bill and has brought great experience and knowledge to bear on it. The hon. Member will not misunderstand me when I say that we have sometimes wondered whether our fears should not increase as fears on some of the benches opposite were allayed. But we share the same objective and I am sure we shall be equally glad if the Bill produces the reduction in prices for which the hon. Member fervently hoped. I hope, later, to give some reasons why I think the result may not be quite as favourable as the hon. Member thought I should like to add my congratulations to the President of the Board of Trade and to the Parliamentary Secretary on the great competence they have shown in handling the Bill through all its stages in the House and also to thank them for the courtesy they have shown in meeting the arguments which we on this side have advanced in our endeavours to try to improve the Bill.
I have taken a close interest in the Bill, both from the standpoint of an economist, which I used to be before I came into the House, and from that of a barrister, an occupation I now seek to pursue. I am bound to say that I find the Bill much more satisfactory when judged from the latter capacity than from the former. As was said by my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas) in speaking first from these benches on Third 888 Reading, the Bill has been improved in detail but its basic structure remains unchanged.
We have argued that its basic structure is wrong, because economic and political issues are, in our judgment, not strictly justiciable within the necessarily wide statutory limits which any Act of Parliament must lay down. We believe that the real test—the test of public interest—on which the whole of this legislation will stand or fall, is one to which an economic test has to be applied, and it can well be said that these arguments would be better put by economists or, perhaps, by businessmen than by lawyers. There may be a certain duplication as economists and others may be employed to help prepare the briefs on which cases are argued by the barristers concerned.
We do not accept the view that the President and, earlier, the Parliamentary Secretary expressed about the comprehensive and all-embracing nature of the three Parts of the Bill taken together. We believe that a number of loopholes still exist. I do not want to detain the House by going through a number of suggestions which have previously been raised, but I should like to draw attention simply to one to substantiate my proposition.
I believe that there still exists a loophole in the fact that partnership agreements, for example, are exempted from registration. It seems to me that if four people agree to form a partnership in the usual form and provide; n the usual form for dividing the country into, say, four areas, between them after the partnership comes to an end they will be bound to that restriction for five years or so after it comes to an end. But within a couple of days they can dissolve the partnership and have an agreement which will be enforceable in the courts but which will not be registrable under the Act. This is just one example of loopholes which might well be found.
Hon. Members on both sides of the House have expressed anxiety about the interpretation of the Bill, some of the provisions of which are very complicated. We hope that the Government will yet consider that matter. I do not underestimate the difficulty of clarification, and I do not want to be unduly critical, for I know it is a very difficult job, but I ask the Government to give further consideration to it, so that another place, in its 889 legislative capacity, may save itself work in its judicial capacity. I believe that if that is not done a great number of questions of interpretation will be referred to another place through the courts on appeal. That will further delay the getting on with the job which, I am sure, we all want to see undertaken as soon as possible.
I do not want to go over again the difficulties we still envisage about the status of the appointed members. We have brought up this matter a number of times, and as the right hon. and learned Member for Chertsey (Sir L. Heald) and my hon. and learned Friend the Member for Leicester, North-East have said, we must have appointed members of the very highest calibre. As the Parliamentary Secretary knows, there is concern about the kind of person who should be appointed, in particular to the Scottish and Northern Ireland Courts. I would ask that great attention be given to this matter, because I think the Parliamentary Secretary is far too intelligent and has far too high a respect for the courts to be convinced by his own arguments upon it.
I regret that the secretaries of companies cannot have audience of these Courts. A much greater feeling of satisfaction could have been given, and much expense could have been saved, if the secretaries who, no doubt, will be present in any case, could, on occasion, have spoken on behalf of their companies. It seems ridiculous that if there are 30 or 40 parties to an agreement, and they all want to be represented before the Court, 30 or 40 barristers may have to be retained to represent those different interests. I think my hon. Friend the Member for Hillsborough (Mr. G. Darling) is saying that I am speaking against my own personal interests in this matter in speaking as I am. That may be, but I still think that the Government would have been wise to have given more consideration to the question of audience than they have.
I do not think that Part II of the Bill will be nearly as effective as the Government feel it will in stopping restrictive practices or in reducing prices. I am prepared to predict that trade associations and manufacturers, despite Clauses 19 and 20, will be able to run matters very much as they are. If that should be 890 the case, the public will be very grievously disappointed. Insufficient protection is given by the Bill against the danger of loss-leaders, which may disrupt certain sections of the retail trade.
I shall not go further over the arguments about the position of co-operative societies. They were very forcibly and cogently put by my hon. Friend the Member for Hillsborough, but I certainly do believe that the omission of special recognition of the deferred discount traders is a great fault in the Bill.
I have tried before, but unsuccessfully, so I try again now to persuade the Government that the provisions of Clause 19 about interconnected bodies corporate and partnerships are quite different, even though the same words are used, from those in Clause 6. I believe that there is a case for their inclusion in Clause 6, but I cannot see why an interconnected body corporate should enjoy the privilege of continuing collective resale price maintenance, collective boycotts and the rest when their competitors will, rightly, be denied that opportunity.
Unilevers, for example, have a system of companies selling a wide range of products such as soap, detergents, fish, ice-cream, margarine and sausages. Why should Unilever's be in a position to stop all their supplies of goods to a trader because he had sold sausages below the fixed price, wheras other traders have to go through the provisions of Clause 20 to 'enforce their prices? The same will probably apply to the tobacco trade.
The answer may well be that this will be a matter for Part III of the Bill and will be caught by the Monopolies Commission but, as I understand, reference to the Commission applies only if the firm concerned sells a third of the goods of a single description. It seems to me that the possible outcome of the provisions of the Bill may well be an extension of interconnected bodies corporate, where we have a grouping of a large number of firms selling goods of a very wide variety so that in no case will they come within Section 3 of the Monopolies and Restrictive Practices Act. The Parliamentary Secretary seems to find it amusing, but I suggest that it is a point justifying consideration.
§ Mr. Walker-Smith
I was not seeking to register amusement but only, at this late hour, intelligent receptivity of what the hon. Member was saying.
§ Mr. Mulley
I am sorry that I have not sufficient knowledge of the hon. and learned Gentleman's reactions to distinguish the one from the other. It may be that we shall become better acquainted.
It seems to me that there is a danger of an increase in the number of these interconnected bodies corporate and of an intensification of trusts in our economy which, I am sure, will be regretted on both sides of the House. Experience has been that when one tries to stop one form of restrictive practice, certain parts of industry, naturally enough, seek to find another way of avoiding a break-up of their restrictive agreements. The experience of the European Coal and Steel Community in recent years, in its attack on cartels, has shown a marked increase in the development of what we call interconnected bodies corporate, and I ask the President of the Board of Trade to consider the point.
I am sure that the Parliamentary Secretary will help me when he replies to the debate, but I cannot find a single example where a partnership could have an agreement within itself for collective resale price maintenance, that is, the ordinary genuine partnership of the kind which, I understand, it is sought to exclude by means of Clause 6. It seems to me extremely odd. I should think that that might provide a loophole without giving any practical advantage at all. Indeed, the whole of Part II of the Bill favours the large retailer or manufacturer against the smaller, and that is a tendency which I am bound to regret.
The hon. Member for Heston and Isleworth (Mr. R. Harris) has just returned to the Chamber and I should like to make good an omission when the hon. Member was not congratulated upon his part in our discussions and also confess that I used to be an academic economist. I am sure that that shocks the hon. Member profoundly, because judging from his earlier remarks he is one of the few left of those who define economists as people who cannot earn a living themselves and spend their time discovering how other people do it. I am sure that, when he is serious, he does not hold that view.
The emphasis of the second part of the Bill is in favour of the large against the small, and, in particular, in the trade association field. Practical experience surely shows that manufacturers will not 892 take action against large distributors or large retailers. We cannot imagine small manufacturers taking either Selfridges or Harrods to the courts. We cannot imagine a motor manufacturer taking his principal London agent or distributor to the courts, and it is that tendency in the Bill which I think should be regretted and commented upon.
By far the most unsatisfactory provision in the Bill, as we see it, is in Part III. We believe that the Monopolies Commission should play a bigger rather than a smaller part in the campaign that both sides of the House want to wage against restrictive practices in industry. I should like to see Section 3 of the 1948 Act containing the provision that the Commission could investigate cases where 10 per cent. of goods of a particular sort were controlled by one firm, with, of course, the usual proviso that the reference would be made at the discretion of the President of the Board of Trade.
I have failed to be convinced by the arguments from the Government that the fact-finding activities of the Monopolies Commission are likely to hinder the proper and smooth functioning of the new Court. I do not want to enlarge on this particular field, because it is a large one on which to enter at this time of night, but I would say, in short, that I do not believe we can effectively deal with the restrictive practices that have been strangling the British economy and have provided a feather bed for the least efficient producers entirely by this legalistic type of approach. I believe that we can deal with them effectively only by an extension of public control, and, from that point of view, the Bill moves in the opposite direction. Nevertheless, I hope quite sincerely that the Bill will succeed. We hope that our fears may prove to be ill-founded, but I am bound to say that I have grave doubts whether the Bill will achieve, what I am sure we all on both sides of the House want to see it achieve, in the elimination of restrictive practices.
I hope that my cynical Friends behind me will not be able to say—[Laughter.] I should say my cynical Friends who have gone to get some well-earned refreshment. I hope they will not be able to say that the only part of the economy that has been supported has been the Bar, and that the only prosperity 893 has been that of the few barristers who enjoy the good will of the Treasury Solicitor.
I trust that the Bill will not result in a lawyer's paradise, as it has been described, but that we shall see an effective attack on restrictive practices, which we on this side of the House certainly want to see eliminated. I also hope that before the Bill becomes an Act it may become even stronger in the particular directions we have tried to indicate.
§ 9.40 p.m.
§ Mr. Jay
I should like to think that the improvement of this Bill since the Second Reading has been proportionate to the number of hours which we have devoted to it. I do not think that the President of the Board of Trade would deny that it is a better Bill. After all, the right hon. Gentleman has himself put down nearly a hundred Amendments to it, if not quite a hundred, and he has accepted at least fifty from other Members. Of course, the hon. and learned Gentleman the Parliamentary Secretary, on Second Reading, thought that the Bill was perfect then, but I imagine that he has now accepted the view of the President that it was capable of improvement. However, we regard it, though far from being a good Bill, as sufficiently improved to justify our not voting against it on the Third Reading.
If I may, I, too, want to compliment the President of the Board of Trade on his reasonable and conciliatory and courteous attitude—ever since the Second Reading, at all events—and his great patience in answering an extraordinary number of laborious questions from all parts of the House and the Committee. With our help, and that of the Liberal Party at times, when it has been here, the right hon. Gentleman has resisted a great deal of pressure from the group of hard-faced men on his extreme right who have now deserted us entirely.
My hon. and learned Friend has shown such ingeniuty throughout that I have sometimes thought it was he who was drafting the Bill and not the President. The Parliamentary Secretary has remained fluent to the end, if not quite so glib as he was at the beginning, and on one or two occasions he has fallen unaccountably silent for a time.
894 In all really major respects I am bound to say that I fear the Bill is very little improved. I am strengthened in the conviction, by all the debates which we have had, that the main criticisms that we made at the beginning were sound. I will summarise those points briefly now.
First, I am still convinced that the President made a profound mistake in rejecting the main proposal of the Monopolies Commission that there should be a general prohibition of the worst type of practices. He has really never given us a valid reason for doing so, and I am still inclined to believe that he was influenced by his rather queer idea that we could not have a general prohibition unless we made all the practices a criminal offence at the same time. It has always seemed to me as though it was that muddled idea which prevented him from having investigated thoroughly our proposal for having a general prohibition enforced by the injunction procedure, which would, I still think, have cut down greatly the inevitable delays and confusions which we shall now suffer.
Now that the right hon. and learned Member for Chertsey (Sir L. Heald) has returned, I must just say about him that he has worn such an air of superior wisdom throughout the proceedings that we can only regret that he has so seldom given us the verbal benefit of that wisdom.
§ Mr. Jay
At all events we have extracted from the Parliamentary Secretary, in the course of the proceedings the assurance that a list of important practices which he named will, within at least a month of the passing of the Bill into law, be designated for registration. It is the intention of the Board of Trade that they will be registered within three months of the date at which the call is made, if that is the right word. Since that has always been a most important part of what the Government have said, it is a little odd that we have never had that assurance from the President himself.
I take it that when the Parliamentary Secretary gave those undertakings, he had the full authority of the President. 895 If he did not, perhaps the right hon. Gentleman can tell us now, before we have completed the Third Reading of the Bill tonight. Those were very important undertakings, and we are extremely anxious to see that that designation and registration shall be done within one month and four months of the passing of the Bill.
Our debates have confirmed the soundness of our original criticism that the judgments to come before the Restrictive Practices Court are essentially non-justiciable issues. I fear that the truth is that the Lord Chancellor had got this idea of having a court into his head right at the beginning of the Government's deliberations, and forced it on the President, who has been determined ever since to prove, and perhaps even to believe, that these were justiciable issues. Whatever the reason, what has happened is that a large branch of economic and political policy has, as a result of the Bill, been taken out of the hands of Parliament altogether for an indefinite period. That is what has happened, and we should understand what is being done.
In addition to that, the debates have shown what was not absolutely clear at the beginning, that the Registrar who initiates the whole proceeding is not to have any effective responsibility to Parliament or to Ministers. That carries the abnegation of Parliamentary and Ministerial responsibility over the whole business even further. I can see no reason for the President having taken the Registrar so far out of the sphere of Parliamentary control unless he or his advisers did not want to be bothered and troubled with answering Questions about this matter. If that is an unworthy suspicion, perhaps we shall be given some other sufficient reason.
Our original criticism of Clause 19, which purports to ban resale price maintenance, to the effect that it really banned only one method of collective enforcement and not the others, has been entirely vindicated by the President's action in amending that part of the Bill, quite rightly, in a material way, in order to embrace other forms of collective enforcement and to put them out of court. We are still not satisfied that the ban is complete.
For instance, so far as I have been able to follow the discussion, it appears 896 to be still possible for a trade association to advise its members on the use of Clause 20 for the enforcement of individual resale price maintenance. I find it difficult to see how in practice that will differ from collective resale price maintenance. I saw a predatory gleam coming into the eye of the hon. Member for Heston and Isle-worth (Mr. R. Harris) when that point emerged, as if he saw interesting and promising fields of activity in the future.
Above all, the President has been extraordinarily obstinate and foolish in refusing to meet the very acute anxieties of my hon. Friends about the position of the Co-operative movement. Indeed, his rather unreasonable obstinacy here has been very different from his attitude on many other parts of the Bill. One cannot help feeling that he is the victim of political prejudice or political pressure, which is very unwise from his own point of view. I believe that the President honestly thinks—although we believe wrongly—that this is a good Bill, and that he wants it to survive. Of course, if he pushes it into law in this form—and the Bill still has to go through the upper House, so that it is not beyond redemption—he will make it virtually certain that we on this side of the House will be forced to pass an amending Bill removing this discrimination against the co-operative societies as soon as the present Government come to an end, as the electors of Tonbridge have shown they hope they soon will.
The point I want to make to the President is that if there is to be an amending Bill, it is highly likely that someone will say—as he knows they often say inside Government Departments—"If we are to have a Bill affecting this question, we might as well put in a few other things as well which we would like to have, but which we might otherwise have thought not worth the trouble". If he persists with this, he will be inviting major Amendments to the Bill.
One of the other points which we will have in mind as the subject of a possible Amendment in the future will be the remaining powers of the Monopolies Commission. It seems to be quite gratuitous, even from the point of view of the President's Bill, to reduce or emasculate the Commission in this way. It is no use the Parliamentary Secretary saying that the Government are not to emasculate it, when they are reducing the maximum 897 number of members from 25 to 10 and terminating the Commission's power to sit in different groups at the same time.
I think that the Parliamentary Secretary was extremely weak on this point today. He said that the Commission had plenty of work to do but, on the other hand, that there was no need to allow it to consider more than one problem at the same time. Why not give it more work to do, as we suggest, and give it the chance to consider several questions at the same time, if it wishes to do so? I do not think that the Parliamentary Secretary really gave any answer to that question.
Finally, our worst fears, or my worst fear is on the subject of the sort of people the President will appoint as the non-legal members of the Court. He shook our confidence badly during the Committee stage by refusing to accept an Amendment either, on the one hand, to omit the words "commerce and industry", which he will remember appears at that point in the Bill, or, alternatively, if they were included, to put in some reference to consumers' representation as well.
I must warn him that if he or the Government—I suppose it is the Lord Chancellor—appoint a majority, perhaps of ex-trade association officials or retired businessmen or reactionary lawyers—and there are such people—to this Court, then this whole experiment will fail, and, of course, if it fails, it will have been a colossal waste of time. I am bound to say, by way of parenthesis, that my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas) shows that it is possible to be a successful lawyer without being a reactionary at the same time. Unless there is a majority—I say this in all seriousness to the President—as I think there was on the Monopolies Commission, in spite of all that the hon. Member for Heston and Isleworth says, of really independent members of the Court who believe that the consumers' interests should be given the benefit of the doubt, then I think that there is a danger that we shall simply have a series of decisions whitewashing the restrictive practices of industry, as in effect we have had in the courts in previous periods on restraint of trade. That is the real reason why we are legislating on this matter at all.
§ Mr. Philip Bell (Bolton, East)
Does not the right hon. Gentleman think that a High Court judge would then resign, and not be a party to any of this whitewashing?
§ Mr. Jay
I am not aware that that happened in the last fifty years in the case of the restraint of trade, where the old state of the law fell into desuetude, to say no more.
I have been asking myself during the proceedings on this Bill whether the result of it will be better or worse than if we had not had the Bill at all and had simply allowed the old Monopolies Commission to proceed as it was doing before. I have found that question—I must confess, that I have found my views swaying one way and the other as the debates went on—exceedingly difficult to answer. I am inclined to give the final opinion at this stage that it will probably very much depend—and I say this to the President in no party spirit—on whom he appoints to this Court.
I hope that he will earnestly reflect on this matter, and set aside perhaps the natural and inevitable political pressures and prejudices which may play upon him, because if he were to appoint the sort of people whom some hon. Members opposite seemed at one stage of our debate to be recommending, I think he would make it quite certain that we should, perhaps not very long from now, have to pass an amending Bill which would radically alter the whole scheme of things which he has inserted in this Measure.
§ Sir L. Ungoed-Thomas
Before the Parliamentary Secretary rises to speak, may I ask a question? I understand that I may have omitted the hon. Gentleman from my congratulations to the Government representatives. If so, it was, of course, by inadvertence. It would be most churlish of me not to include the hon. and learned Gentleman. He has played a very prominent and valuable part in carrying the Bill through, and I ask him now to permit me to apologise for any omission there was, and to include him in my congratulations.
§ 9.55 p.m.
§ Mr. Walker-Smith
May I at once express the very real appreciation of my right hon. Friend and myself of the very generous comments which have been made by the hon. and learned Member 899 for Leicester, North-East (Sir L. Ungoed-Thomas), the right hon. Member for Battersea, North (Mr. Jay), my right hon. and learned Friend the Member for Chertsey (Sir L. Heald), and others? In the case of my right hon. Friend these tributes are very fully deserved, and in my case they are none the less welcome by reason of being much less well-deserved.
We on our part are most appreciative of the very great help and co-operation which has been given on all sides in the necessarily long and difficult conduct of these proceedings. The right hon. Member for Battersea, North says that at the time of the Second Reading I thought that the Bill was perfect. I do not think I ever quite thought that. I have, in the course of the last eleven years, played a small part, as we do, in the framing of legislation in this House and for the last twenty-five years I have played a small part in the interpretation of legislation. With that dual experience, I would certainly never consider any Act of Parliament, whether in the making or even on the Statute Book, as perfect or free from doubt. What I do think we have been able to do during the Committee and Report stages is to improve and clarify the structure of the Bill without impairing its framework.
The right hon. Gentleman referred to the timetable, and I recall the rather gloomy prognostications which attended the birth of the Bill There were those who said that it would never see its way through the House of Commons at all. There were others, and I think the right hon. Gentleman was one of them, who said that if it did it would take many, many years before anything was done. I am certainly very happy to reiterate the undertaking which, as he reminded the House, I have already given during our debates.
Perhaps for clarity I should recall it. What we have undertaken to do is this: first, to call up under the first registration Order what we consider the most important forms of restrictive practices—price rings, collusive tendering and collective discrimination; and, secondly, to oblige the registration to take place within about three months from the making of the Order. I said that we would make the Order as soon as possible after the Act comes into force. The reference to one month was, as the right hon. Gentle- 900 man will appreciate, a reference to the provision in Clause 32 which delays the coming into operation of the Bill for one month after it has gone through Parliament. We are considering the possibility, as I think I indicated at that stage, of introducing an Amendment in another place to expedite the general coming into effect of the Bill, so as to get the registration, administration and machinery more speedily set up.
While on this point, I would say to my hon. Friend the Member for Heston and Isleworth (Mr. R. Harris) who is sitting in a rather unaccustomed place in the Chamber, that we appreciate the force of the point which he made about Clause 19, and will consider the possibility of introducing at the same time an Amendment in another place with a view to giving a small extension for this purpose in regard to Clause 19.
§ Mr. Walker-Smith
The right hon. Gentleman asked whether, in making these undertakings to the House, I spoke with the full authority of my right hon. Friend. The answer is in the affirmative. On this Bench we proceed with a general unanimity of purpose and intention which I can well understand right hon. Gentlemen opposite finding a little unfashionable. They sometimes put me in mind of the epigram of Oscar Wilde, who said of somebody,He has no enemies, but of course his friends don't like him very much.We have retained the general framework of this Bill in the form in which we commended it to the House on Second Reading. If, as I say, we have sought to improve its structure, we have retained the principle of judicial investigation of restrictive practices and their condemnation where they are found to be against the public interest on the basis of the criteria provided by Parliament. We believe that that system embodies the two basic constitutional principles, on which we traditionally seek to proceed in this country—the sovereignty of Parliament and the rule of law. It is for Parliament to prescribe the principles and for the courts to apply them in particular cases. From that basic concept we have not moved, and in my view it would have been wrong for us to have done so.
901 It is obvious that in that context it is very important to get the general principles for the Court correctly and appropriately defined. That is why it has been appropriate that so much time has been spent on the discussion of Clauses 5 and 6, which together define the agreements which the Court will try, and Clause 16, which enunciates the basis on which the trial will take place.
As I said earlier today, it is our view that we have established a comprehensive pattern of protection against restrictive practices in the various parts of this Bill. Although the ingenuity of people may find an occasional loophole—and that is a possibility in any Act of Parliament—I do not believe that there is any single definable category of restrictive practice which is not catered for in this Measure in one way or another.
Reference has been made to the Opposition solution, or what would have been their solution, and I must say this to the House, and particularly to right hon. Gentlemen opposite. The solution of hon. Gentlemen opposite, unlike ours, has not been subjected to detailed scrutiny and cross-examination by hon. Members for this long period, which I think my right hon. and learned Friend slightly under-stated, of seventy hours in this House. I am bound to say to them that if their procedure had been subjected to the same critical inquiry, I have no doubt that it would not have survived. Had we sought to proceed with their solution, I believe, we should have found that we were walking the tightrope between the danger of doing injustice on the one hand and falling into administrative chaos on the other.
§ Mr. Walker-Smith
Yes, but the Commission was dealing only with part of this general field, and I am referring to the actual time taken in discussions in this House. I think that we are on a different point. No doubt there have been a good many hours put in on this Bill by a good many people which are not included in the seventy hours of debate in the House.
902 Reference has been made by the hon. and learned Member, the right hon. Member and also others, including the hon. Member for Sheffield, Park (Mr. Mulley), to the importance of the composition of the Court. We fully appreciate that there are the statutory requirements of high quality and experience demanded of the members of the Court. Their nomination is in the hands of the Lord Chancellor, and the House may be assured that that matter will engage his anxious and informed attention.
I have already dealt with the question of the Measure coming into operation, but I think that even though the hon. Member for Hillsborough (Mr. G. Darling) is no longer present, I should shortly refer to the question of resale price maintenance and especially to the co-operative dividend, to which he referred. As the House knows, we have pursued the question of resale price maintenance on the basis of a general approach both to collective enforcement and to individual enforcement. I am bound to say that pressure for a case-by-case approach on individual resale price maintenance—seeing whether in this case it is justified and in that case should be rejected—could only generate pressure for a similar approach on collective enforcement, which, on the other hand, we have sought to outlaw entirely in this Bill.
I would remind the House that Clause 20 gives no new basic right. It only extends the power of individual resale price maintenance by assimilating the law as to purchase with notice of the condition of resale price maintenance to what it is already in the fields of patents and registered designs. We feel that too much has been made of this point and that on balance the co-operative societies should have no need to feel that manufacturers who at present supply them freely are going to change their policy merely because of the provisions of Clause 20. Undoubtedly they get the advantage—although the hon. Member for Hillsborough sought to belittle it—in common with others, that they can no longer be the victims of collective boycott or collective discrimination.
I am very glad that the Opposition is not repeating what I had to suggest on Second Reading was a grave error, and is not dividing against the Bill.
§ Mr. Walker-Smith
I admit that the Bill was not perfect in the sense that one would not expect a Bill to be perfect at that stage, but I believe that this is a good Bill and as good as the collective wisdom of the House of Commons can make it. I hope that it will help to introduce added flexibility, vigour and vitality into our economic system.
Several hon. Members have made reference to the effect of the Bill. The hon. Member for Bolton, West (Mr. Holt) and my hon. Friend the Member for Chichester (Sir L. Joynson-Hicks) made a very proper comparison of the economic climate of today with the economic climate of the 'twenties and 'thirties, which fostered the growth of these restrictive practices. I think it is right, as we come to the end of this long road, that we should bear in mind a little sympathetically the sort of conditions which gave rise to the desire to have some sort of protection by way of those practices.
Whether or not they were rightly brought into being in those days, what is clear is that the economic conditions and climate of today are very different from what they were then. In these days there can certainly be no reason for the apprehensions that were entertained in those days and, therefore, restrictive practices today clog the mechanism of our economy, and prevent that full march forward we would all like to see.
Having said that, I wish also to say that we do not put this Bill forward as a cataclysmic event which will make an instantaneous effect on the whole of our economic and social structure. In any case, I do not think progress in this country works quite like that. What happens is that we get the main stream of progress reinforced from time to time by these tributaries, which gradually but significantly broaden the span and accelerate the flood. I believe that the Bill reinforces the general stream of our economic and social progress, and in that confident conviction, I commend it to the House.
Question put and agreed to.
Bill accordingly read the Third time and passed.