§ The Temporary Chairman (Major W. J. Anstruther-Gray)It might be for the convenience of the Committee to take this Amendment together with the Amendments in page 6, line 27, leave out subsection (2); in page 6, line 27, leave out from "force" to end of line 41, and insert:
within three months from the passing of this Act";and in page 6, line 31, leave out subsection (3).
§ Mr. JayThe purpose of the group of Amendments is to achieve what the President of the Board of Trade professes to be the object of the Government, to secure reasonable speed and efficiency in the operation of the Bill. We are seeking that the registration of agreements shall take place not by a succession of classes ordained by the Board of Trade over perhaps an interminable number of years, but simultaneously, at some definite date after the passing of the Bill.
We are assuming that the President's scheme is that no agreements are prohibited outright, except for resale price 259 maintenance. I want the Committee to note that it does not necessarily follow that we have to fall back on the elaborate process of registration in a series of classes or stages over a long period of years. It would be over a long period, admittedly that individual agreements would be brought before the Restrictive Practices Court. But they would all have to be registered early within a definite period.
I see two advantages in early simultaneous registration. When I say "early" it may be three months. I think it is agreed by all that publicity is desirable in this matter of restrictive practices, and it is partly for that reason that practices which have to be registered may be cancelled and abandoned without waiting for registration. I mentioned on Second Reading the case of a trade association which had abandoned the attempt it was making to stifle an independent firm.
There is also the case, of which we have had information, of the tobacco retail trade. I believe that it is considering at this moment whether or not to abandon the restrictions which are preventing individual tobacco manufacturers from selling their cigarettes at all. The issue may well depend upon whether it is clear that registration of this type of agreement will take place at an early date. If it emerges that this or any other type of restrictive practice is in doubt, some of these associations will decide to go on for the time and not to worry much about it.
In addition to that, I would point out to the Parliamentary Secretary that the Monopolies Commission in its Report on Collective Discrimination, which gave rise to the Bill, clearly envisaged that registration should be simultaneous and not long-drawn out. The Commission pointed out that there could be outright prohibition, or the other and weaker procedure ensuring a measure of publicity and supervision and requiring traders falling within the scope of the law to register, so as to prohibit them, if it was found that they were not acting in the public interest.
The only objection I can see to this reasonable proposal is that the Government will say, "If all agreements are to be registered that are within the scope of the Act within three mouths of its passing, 260 the Registrar will be snowed under and there will be a state of chaos. The machinery will break down."
I am not convinced by that argument. I do not think it would be impracticable for the Registrar to operate in that way. He would not be bound to have his whole register made up in its final and perfected form so that every detail was open to early and ready inspection by the public at some early date. It could be left to him and he would discover in practice how long it would take to reach that state. The obligation would be on the parties to agreements to carry out registration by the due date.
I am reminded, amongst other parallels, of an occasion during the war when some of us in the Ministry of Supply and other Departments had to schedule a vast variety of industries under the Essential Work Orders in a very few months. It was said that it could not be done, that there would be chaos, and that it was quite impossible because it involved scheduling which was a complicated procedure in itself. It was done for a large number of industries without undue hitches or accidents. I think that other cases could be quoted. I do not believe that the physical feat of registration would be impracticable.
If I may, I would quote the hon. and learned Gentleman's speech on Second Reading as evidence of that. The Parliamentary Secretary will remember that he gave an undertaking at the end of his speech, which for some reason the President refrained from giving at the beginning of the debate. We hope that some of the encouragement and advice we were able to put forward on that day helped the Government to make up their minds. The Parliamentary Secretary then said:
We shall propose to make a very early registration of common prices, level tendering and collective discrimination, which together form the great bulk of restrictive trade practices, and we shall hope to get those agreements registered within about three months of the making of that Order."—[OFFICIAL REPORT, 6th March, 1956; Vol. 549, c. 2055.]I hope that the Committee will note that the hon. and learned Gentleman there said that this group represented the great bulk of restrictive trade practices. Nevertheless, he assured us that the Board of Trade hoped that they could all 261 be registered within three months of the making of the Order. I do not know exactly what the Parliamentary Secretary meant by "great bulk," but if he meant that, say, 85 per cent.—if one can measure restrictive practices in that way—were within that group and could be registered within three months, it should be reasonably possible to get the whole lot registered in a slightly longer period.On this Amendment, therefore, we should like to ask the Parliamentary Secretary—we would have liked the President to have done so had he been here—to reaffirm his very important assertion on Second Reading that the Government are going to make a very early registration of those types of practices—common prices, level tendering and collective discrimination.
§ Sir James Hutchison (Glasgow, Scotstoun)I wonder if the right hon. Gentleman will tell the Committee how he proposes to deal with subsection (5) under his Amendment—the question of statutory instruments coming before the House. Does he propose that that machinery should disappear or would it be used within three months, and would not that cause considerable congestion?
§ Mr. JayWe are proposing that there should be no phasing of the different types of agreement at all, and the question presumably would not arise of Parliament approving the President's decision to group the practices in successive classes.
I was asking the Parliamentary Secretary, first of all, whether he would reaffirm this undertaking, and also whether he would explain to us just what he meant by making a very early registration of these groups. Does "very early" mean within one month of the passing of the Bill, or what does it mean? It is no consolation to know that the practices will be registered within three months of the Board of Trade making its Order if, in fact, that Order is not to be made until a long period after the Bill is passed. Can he give us this assurance? In view of his statement that it is perfectly practicable to get the bulk of the practices registered in that period, can he tell us why we cannot go the whole hog, have the whole lot registered within a reasonable time, and thereby very greatly accelerate the speed, the efficiency and the publicity which ought to follow on the Bill.
§ 6.15 p.m.
§ Mr. WadeI am as anxious as any hon. Member to see the registration and investigation of these agreements proceeded with as speedily as possible, but I am not entirely happy about the consequences that might follow from this series of Amendments. It is possible that the number of agreements that would have to be registered at the same time would rather clog the machine. Furthermore, as a result of these Amendments, no affirmative Resolution of Parliament would be required, and to that extent Parliament would lose control over orders for registration.
§ Mr. JaySurely, in those circumstances, Parliament would decide here and now—today—that they should all be registered forthwith, so I do not think there would be any need for Parliament to take further decisions.
§ Mr. WadeI appreciate that. I was going to say that hon. Members who support the Amendment may consider that that is not a serious matter.
A further consequence is that the Amendment might affect accountability. We had an interesting discussion on Clause 1, and I and my colleagues and other hon. Members felt that the replies from the Minister were not entirely satisfactory on that subject. It appears to me that if there are no orders for registration—that it is all to be done en bloc—it might have the unintended consequence of limiting still further the degree of accountability by the Minister, and we may find that the questions we are entitled to ask are restricted further than they already will be as a result of the wording of Clause 1.
I know that that is not the fault of those moving the Amendment, but it is a consequence which we must keep in mind. I hope that the Parliamentary Secretary will consider that point as well as the one I mentioned earlier, namely, the danger that there may be rather a flood of agreements registered all at once.
§ Sir L. Joynson-HicksI should like to associate myself with the apprehensions which have been expressed about the congestion which it is feared might result to the Registrar and his staff. That apprehension I entirely share, but there is another aspect of a practical character. Speaking as a professional myself, I think 263 it likely that the majority of parties to agreements, having read the Bill and having been made aware of the fact that it had been enacted, would consult their advisers as to the steps that would be necessary for them to take to register, or consider registration of, such practices as they might be operating. They would seek to have the Act interpreted to them in the light of the actual circumstances in their own particular case in order to decide whether such arrangements as they might have were registrable.
That is something which, if thrown completely and simultaneously to the professional bodies in this country, would not be capable of achievement—within the limited time which the right hon. Gentleman the Member for Battersea, North (Mr. Jay) anticipates—with any hope of success at all. The result will be that the various parties in question will be advised to register every arrangement they have so as to be on the safe side, and the register will be cluttered up with a lot of unnecessary detail when, quite likely, a lot of the arrangements are not covered by the Act at all.
I therefore hope that the Minister will not accept this Amendment, but will allow the matter to proceed in an orderly and respectable way, so that the parties concerned can have proper advice and the register can be properly compiled. After all, power is retained by the President to call up at whatever speed he likes, and if the digestion of the machine can cope with the flood more speedily than was expected the President can always make his orders with greater rapidity and in quick succession.
§ Mr. Hector Hughes (Aberdeen, North)The argument to which we have just listened is bad reasoning. Surely it is the other way about. This clause is unnecessarily detailed and is cluttered up by a mass of verbiage which is damaging to its real purpose. In my submission, the Amendments which we are discussing will simplify the Clause and will aid the administration of the Bill when it becomes an Act, and indeed will simplify the register. As it stands, the Clause is obscured. Therefore, the words sought to be left out should be omitted.
The Clause is unnecessary and undesirable in its present terms, in view of the terms of the two preceding Clauses. 264 The other day we heard a lot about the preceding Clauses, and surely the mass of detail which clutters up this Clause should be left out in the way suggested by these Amendments.
What is required is not a redefinition of the agreements which are registrable; that is done by Clause 5. Nor do we want a redefinition of excepted agreements; that is done by Clause 6. But here, in Clause 7, we have a whole lot of new formulae and definitions, which, if they are to be in the Bill at all, should have been in either Clause 5 or Clause 6.
Instead of the simplicity and clarity which would make this a workmanlike Clause, a whole lot of unnecessary matters are included. We have a variety of complications, different dates for different purposes, different classes of agreements, different classes of business, different types of restrictions, different goods, processes and transactions, different areas and places. All these are now put into Clause 7, and we seek to leave them out so that the Clause can be made a simple Clause for the purpose for which it was designed.
Therefore, I hope that the Minister will take into account these observations and will realise that the proper course for him would be not to follow the wrong reasoning of the hon. Member for Chichester (Sir L. Joynson-Hicks), but to realise that a simple Clause is required to deal with the registration of agreements already defined in Clause 5, and that if any further definitions or qualifications are required with respect to those agreements this is not the place to have them. The Minister should reconsider Clause 5 and put any further definitions and qualifications into that Clause, leaving Clause 7 a simple and workmanlike provision by omitting the words sought to be left out.
§ Mr. Turner-SamuelsThe Committee must consider what my right hon. Friend the Member for Battersea, North (Mr. Jay) said when he moved the Amendment in connection with simultaneous registration. I understand that what the Government are seeking to do through the machinery of this Clause is to have certain classes of agreements selected by means of a system of priority, and that would mean that certain other classes of agreements would be left for some later time.
265 I cannot see how, in a matter of this kind, priority of class is to be a test. Where we have, as the central point of this legislation, the question of the public interest, I should have thought that the proper priority would be the infraction of the public interest. It is not a question of any particular class of agreement. By this procedure one might be registering certain classes of agreement, and by doing that one might leave out a most urgent agreement that requires immediate attention in order to avoid what I have referred to as an infraction of the public interest.
I cannot see how the object of the Bill is to be achieved, how one is to prevent an injury to the public interest and how one is able to deal immediately with the amendment of something that has taken place against the public interest, unless we have simultaneity of registration. We should then have in front of us for examination and for action any agreement which may operate against the public interest.
Otherwise, instead of talking about this system of priorities and registration of classes, we are setting up a mechanism of delays. By the same token that certain classes of agreements are being brought forward, we are also pushing certain classes of agreement backward, and it may be in those very agreements that are being held back where the public interest is urgently and most immediately involved. I cannot see why the Committee should be asked to adopt a system which will be cumbersome and complex, and which may be anything but beneficial to the purposes that we are seeking to achieve in a matter where we are being asked to deal with injury to the public interest.
I cannot see how we are to select particular types of agreement specially in order to achieve the end for which this legislation is supposed to be set up. I do not see how it can possibly be carried out. I do not see how it could be practicable. If the Government are really anxious about this matter, if they want to protect the public interest and be able to tackle any agreement which is detrimental to the public, there ought to be simultaneous registration.
I appreciate that there are many agreements to register, but that is really a 266 numerical matter. It has nothing whatever to do with the particular urgency of any one matter. I can quite understand that there will be a large number of agreements to register, but that is only a question of the period within which to register, as my right hon. Friend the Member for Battersea, North said. There is no reason why the Government should not say that all agreements must be registered within a certain period. Three months has been mentioned. For argument, let us say six months; at least, let us put a definite period to the term of registration so that the whole of these agreements can be caught, examined and submitted to the Court where necessary. I can see no objection to, or difficulty about, saying definitively that there should be registration within a definite period.
§ 6.30 p.m.
§ Mr. Walker-SmithThe Committee is not divided here on any point of principle. The right hon. Gentleman the Member for Battersea, North (Mr. Jay) defined his objective as the achieving of reasonable speed and efficiency in registration. That is certainly the objective of the Government, also. We are anxious to achieve the earliest practicable registration of agreements, and all that really is in issue here is a purely administrative and practical matter as to whether we will achieve that aim better by having an order-making power—for reasons already adduced on Second Reading—or whether it will be better to jettison that power and do what these Amendments seek to do, namely, make all agreements registrable within three months of the passing of the Act.
In the first place, it is not appropriate to make it obligatory to register all agreements, as this Amendment seeks to do. We have taken account of what the right hon. Gentleman said on Second Reading and we have, as he will have seen, re-examined our saving provision, subsection (4), and greatly limited it, which I hope will meet with his commendation. It is still desirable, nevertheless, to have some procedure whereby it is possible to exclude from the processes of registration the, so-to-speak, "minnows" which are of no substantial economic significance. If these Amendments were accepted, we should not be able to retain that provision in the Bill.
267 Secondly, we do think that the order-making power is valuable. It is valuable because it enables agreements of first priority and urgency to reach the register first. I quite appreciate that that point would not arise if they could all be registered simultaneously, without the possibility of administrative difficulty and inconvenience retarding the operation of dealing with the really important ones.
It is a difficult matter to prophesy about in any dogmatic way, and I would not propose to do that. But I do suggest that the probabilities are, where one does not know how much will be dredged up in the way of restrictive agreements—and nobody knows until registration starts—that there will be a large weight of small agreements which will tend to flood the register and embarrass the Registrar if they are all to be dealt with simultaneously within a statutorily prescribed time. The right hon. Gentleman said that there was no difficulty about scheduling the essential industries.
§ Mr. Walker-SmithIt was done, but on that occasion it was no ordinary matter because those doing it had the advantage of the assistance of the right hon. Gentleman. I do not think he will be able to help the present Registrar—at least, not as far as I know.
The only other argument advanced in favour of—if I may adopt the polysyllable used by the hon. and learned Member for Gloucester (Mr. Turner-Samuels)—the simultaneity of registration was the effect of publicity. It is quite true, of course, that we wish to see as many agreements as possible jettisoned without the necessity to come before the Court, where it is possible for those who are parties to them to do so; but I do not agree with the right hon. Member for Battersea, North that the most convenient course to secure that result is to expedite registration in all cases.
The process is a continuing one, and by having an order-making power it will be possible to get the maximum number of agreements jettisoned without the necessity of their cumbering the register at all. It is right that the possibility of jettisoning should be kept open right to 268 the last moment. You, Major Anstruther-Gray, as a noted equestrian, may remember the words of the poet:
Between the stirrup and the ground I mercy ask'd, I mercy found.There will be many cases, right up to the point of registration, where these agreements may be jettisoned and save the whole administrative paraphernalia of dealing with them.The right hon. Gentleman asked about our intentions. I can give an unqualified assurance that what I said on Second Reading still holds good. We shall be able to do these things, provided he does not seek to compel us to clutter up the register with all sorts of agreements simultaneously under the terms of the statute. The undertaking I gave on Second Reading was, I think, in clear terms. It would deal, inter alia, with the matter of collective discrimination to which he has referred.
The other point is the time for making the order. The right hon. Gentleman asks when we expect to make the order. Under Clause 32 of the Bill, the Act is not to come into force until one month after it has been passed by Parliament, so, of course, we cannot make the order until the Act is in force; but if, as I hope is the case, we make good progress with this Bill, then I would certainly give consideration to introducing an Amendment at a suitable stage to enable the order to be brought in before the expiry of one month from the passing of the Act. I hope that, with that assurance, the right hon. Gentleman will not press his Amendment so that we can pass on.
§ Sir L. Ungoed-ThomasMay I just ask a question about the exclusion of "minnows"? The hon. Gentleman did indicate that if this Amendment were carried, then it would not be possible to operate the provisions covered by the Government Amendment to Clause 7, which would provide for the exclusion by the Board of Trade of small agreements of no economic significance. I am not sure that I understood him correctly, but if I did, surely that must be wrong because, obviously, that provision for the exclusion of "minnows" would apply equally well at any time, whether the arrangement is for registration in accordance with orders of the Board of Trade made in accordance with the provisions of the Bill as 269 it stands, or by the stated date. It would not affect the operation of the Minister's Amendment.
§ Mr. Walker-SmithThis Amendment is, is it not, the first of the Amendments to leave out the words
Subject to the provisions of this section",so that there would be compulsion to register every agreement without any saving provision in the Clause? The power to exclude "minnows" under our subsection (4), as we propose to amend it, is a provision which would be excluded if the wordsSubject to the provisions of this sectionwere taken out. That is the only point here; I do not think that it is a very difficult one.
§ Sir L. Ungoed-ThomasThe Parliamentary Secretary has based himself on a technicality. It is misleading for the Committee to have the impression that the Parliamentary Secretary is on a point of substance when he is, in fact, on a mere technicality of the wording of the Amendment. It does not help us to get on if he takes points of that kind.
Secondly, does he suggest that if the words
subject to the provisions of this sectionwere taken out of subsection (1), then subsection (3), which would remain in the Bill, would be entirely nugatory and its provisions would be disregarded by the Court? Clearly, the position would be exactly the same as if the wordssubject to the provisions of this sectionwere included.
§ Mrs. Barbara Castle (Blackburn)The Parliamentary Secretary has not been up to his usual form in the answers which he has given on these very important Amendments. My hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas) made a point about the "minnows" with which I will not deal because my hon. and learned Friend has disposed of the Parliamentary Secretary completely on that point.
I will turn to the main part of the Parliamentary Secretary's argument, which fell into two halves which seem to me completely to contradict each other. In the first part of his remarks, the hon. and learned Member made great play 270 with the fact that if we were to have effective progress in this field we must select our priorities very carefully. As I listened to him I felt that that was an argument—but it was exactly opposite to what he said on Second Reading.
At the end, realising that he had better not create the impression that the procedure which he proposes would be very much slower than that which we would use, the Parliamentary Secretary said, "I stand by the undertaking which I gave on Second Reading." If he will look at that undertaking he will find that he said quite specifically that within three months after the passing of the Act it was the Government's intention that the great bulk of restrictive agreements should be registered.
§ Mr. Walker-SmithThe hon. Lady will appreciate that there is no inconsistency in that. I could not single out these specific important categories referred to in my speech on Second Reading unless we had the order-making powers which the Amendment would jettison.
§ Mrs. CastleAccording to the Parliamentary Secretary, those categories will cover the great bulk of the agreements, and, therefore, he will have cluttered up the machinery in any event. He is trying to have the best of both worlds, but life is not like that. He is trying to tell us, on the one hand, that his procedure will involve no more delay than ours. Then he tells us that it would cover the great bulk of the agreements. Then he tells us, in another breath, that we must give him order-making powers in order that he may be selective, because he must pick out one or two urgent priorities. Are his urgent priorities, in fact, about 90 per cent. of the field? If so, his argument against our desire to see automatic registration falls to the ground.
We are with the Parliamentary Secretary when he says that a great many of our hopes of achieving speed in this work depend on the jettisoning of the maximum number of agreements before registration becomes necessary. That is an important factor which we should bear in mind. Nevertheless, the hon. Gentleman has totally failed to answer the argument of my right hon. Friend the Member for Battersea, North (Mr. Jay), who pointed out that the best way to see that the maximum number of agreements 271 are jettisoned is by publicity and the impact of publicity which automatic registration would bring.
If the Minister is to have the order-making procedure, there will be a hope of delay for industry, and therefore there will be procrastination. The industries will not themselves put their house in order, as would be the case if they knew that there was an automatic obligation on them to register within three months after the passing of the Act.
6.45 p.m.
Perhaps I may next answer the argument of the hon. Member for Huddersfield, West (Mr. Wade). He said that he did not like our Amendment much because it meant that Parliament would lose control over the Registrar. He quite rightly pointed out that we on this side of the Committee had expressed some anxiety, when discussing Clause 1, about the lack of control over the Registrar. I agree with him on that point; in fact, I spoke warmly for some of his Amendments at the time. But I suggest to him that this is the wrong way to approach the matter—to say that because the Government have thrown away the Parliamentary control over the Registrar which we wanted, through control of the method of appointment and his activities, we should salvage something by wrecking the process of registration. Surely that is the wrong way round. We want to see Government control at the right point, whereas the Government are retaining control at the wrong point.
§ Mr. WadeTo save time, I did not deal with a point which might perhaps answer the kindly but critical comments which the hon. Lady has made. We are suffering from the handicap of many years of delay in introducing legislation of this nature. I believe that we should have introduced legislation eight or nine years ago, and I have said that on many occasions. We should first have embarked on registration, probably the registration of agreements defined by Parliament. That would have taken at least six months. We should then have introduced legislation laying down what Parliament considered to be against the public interest. I would then have given an opportunity to associations to alter their rules, 272 if necessary. That would have taken time, but it would have been the right procedure seven years ago. Now, unfortunately, we have had to introduce legislation which combines registration, investigation and prohibition. That is the reason for my earlier comments.
§ Mrs. CastleIt has been very interesting to listen to the hon. Member's speech about what he would have done if he had been President of the Board of Trade, but that is not the point he made against our Amendment; he has now made quite a different speech—and I was perfectly willing to give him the opportunity to make it. I was dealing with his previous speech, in which he said that by our Amendment we were going back on our previous fight to retain Parliamentary control over the Registrar.
My answer to him remains the same; of course we want better Parliamentary control over the Registrar, but the way to bring that about is through the method of appointment, which we tried to achieve in the discussion on Clause 1. Unfortunately, the Government defeated us. That does not mean that, having failed in that respect, we should now wreck the process of registration.
The tragedy of the Government's procedure is that they are trying to retain control at the wrong point. Registration should be automatic. This is not the point at which the Government should step in and look for priorities and get in the way of what ought to be an automatic job. The Government are interfering at the wrong point. They need control over the later processes, which are inevitably more important. We could institute proper control over the stage at which proceedings start if we had an effective control over the Registrar's activities.
There is no administrative reason why registration should not be automatic and there is an important psychological reason that it should be automatic. We all claim, by lip-service, that restrictive practices are contrary to the public interest, although we have spent a lot of time on the Bill whittling that away under the Government's influence. Let us here, at least, retain the statement that in the view of the Committee the registration of this type of restrictive practice will be an automatic and legal obligation on the 273 parties to those agreements from three months after the passing of the Act. That would be a reasonable period after the passing of the Act. We have had no reason given why that should not be so. I suggest that the argument about Parliamentary control has been applied wrongly on this point. I do not agree with the Parliamentary Secretary. There is a point of principle here, and in view of that I beg my right hon. Friend to press the Amendment.
§ Mr. E. FletcherI, too, thought the remarks of the Parliamentary Secretary most unsatisfactory. They made a very bad impression on this side of the Committee. There was no real attempt to answer the points made by my right hon. Friend the. Member for Battersea, North (Mr. Jay). As my hon. Friend the Member for Blackburn (Mrs. Castle) said, the remarks of the Parliamentary Secretary were quite contradictory.
§ Mr. Walker-SmithNo.
§ Mr. FletcherOh, yes. The hon. Gentleman tried to minimise the division between us on this matter.
I agree with my hon. Friend the Member for Blackburn that a very important and fundamental difference is raised by these Amendments. I thought it very unfortunate that the Parliamentary Secretary should try to get away with a purely verbal technicality about the "minnows." Of course, we agree with the new subsection (3), which was originally put down by my hon. Friend the Member for Stechford (Mr. Roy Jenkins) and other hon. Friends and has now been adopted by the President of the Board of Trade. It is all right to have some exception of that kind, but the real point of principle is that if the Government are really serious about this Bill and really intend to go ahead and stop these practices which are contrary to the public interest, there is no reason whatever why they should not make them all registrable within three months of the coming into operation of the Act.
The Parliamentary Secretary said that he thought a certain number of these agreements would be jettisoned and he was anxious that people should have a locus pœnitentiœin which to jettison them. Why extend that? If it goes out from Parliament that as soon as this Bill is passed these practices will all be registered, any which are to be jettisoned will 274 be jettisoned immediately. If, on the other hand, the Board of Trade retains its order-making power those practices may be kept for a very long time before the orders are made. We believe that the sooner undesirable agreements are scrapped and jettisoned the better it will be. That will be sooner if it is known that they have to be registered within three months of the passing of the Act.
The Parliamentary Secretary must address himself to this fact. Does he, as he said on Second Reading, really intend that there shall be a very early registration of the three classes of agreement which he regards as the bulk, or does he not? If they do constitute the bulk, there should be no difficulty in making them all registrable. He spoke of administrative difficulties. What does he mean by that? Is not this some bureaucratic device of registration? Surely the Government have decided what kind of machinery has to be set up and what kind of staff will be needed for the registration. We should like the Registrar to have adequate staff from the outset to enable him to cope with all the agreements dealt with under the Bill. Unless he has adequate staff it will be cluttered up. We do not want the work to be cluttered up, but we want the Registrar to have sufficient staff to make sure that it is not cluttered up.
This really is in the nature of a test of the sincerity of the Government in their approach to this Bill. They can form their opinion of it just as well as they can form their opinion on order-making power and as to the kind and number of agreements which are to be registrable. They have time to do that between now and the passing of the Bill into law. The Government are not slow in introducing all kinds of machinery dealing with all kinds of novel matters, whether Premium Bonds or something else. If the Minister sets his mind to it there will be no difficult about the machinery necessary.
If there is any administrative difficulty it will be the fault of the Minister, and he will be condemned for it. We want to strengthen his hand. I hope that the Parliamentary Secretary will not think, after this debate, that this is merely an idle series of Amendments. We want to ensure that everything which should be registered shall be registered within three months after the Bill comes into law. We believe that only by that 275 method will the Government give a clear indication that it is their intention to deal with the matter seriously.
§ Mr. Wilfred Fienburgh (Islington, North)One of the difficulties we have in dealing with the Government in this debate is the fervour and vigour with which they advance any particular argument which comes to their aid at any given moment irrespective of the fact that it may contradict an argument which, with equal fervour, they may have put forward a few days previously.
The Parliamentary Secretary has done the same today. When, a few days ago, the point at issue was the possibility of delay and he was anxious to avoid any charge of delay, he was at pains to point out that most of the main agreements would be called upon for registration practically immediately. Today, when he seeks to make arrangements for an orderly progression to the penitent stool, he seeks to contradict the argument he made previously.
The same is true of the President of the Board of Trade. A few days ago, when discussing the effectiveness of publicity and procedure to follow the original registration, the President was strongly in favour of publicity as being one of the major instruments in the Bill for achieving the desired result. I do not have to give my own words in support of my argument, because the right hon. Gentleman said it himself on 26th April:
… many industrialists, as we know, have been looking at their arrangements and searching their minds whether they are necessary in this modern age.I presume that the right hon. Gentleman meant the arrangements, not the minds. He went on:A great number of them will be put away and never heard of again. If we can get rid of restrictive practices that way it is much more satisfactory than all the courts and tribunals than any of us can create."—[OFFICIAL REPORT, 26th April, 1956; Vol. 551, c. 1991.]I heartily agree with the President of the Board of Trade on that. Therefore, why should we remove pressure from those industrialists who are busily considering their restrictive arrangements by postponing even in the slightest degree the need for the registration of these agreements? If they are acting with such alacrity as the President said a few days ago, surely we should do nothing in the 276 interests of the Bill, in the interests of economy and in the interests of the career of the President of the Board of Trade, to delay the process of consideration. If withering away of restrictive practices is to follow registration, surely there can be no argument than that there should be registration immediately and comprehensively over the whole field of restrictive practices under the Bill.The second point I should like to deal with is the alibi put forward by the Parliamentary Secretary that immediate and comprehensive registration would impose a terrific administrative burden on the Board of Trade. I do not think that that can be so. Of course, there would be a burden and, of course, it would be an immediate burden on the Board of Trade, particularly, as the Parliamentary Secretary pointed out, if 85 per cent. of the registrable agreements to be registered would be registered in the early stages. There would be some kind of temporary burden on the administrative arrangements of the Board of Trade.
7.0 p.m.
There is no doubt that the main impetus and the main flood of the work in the initial stages of the operation of the Bill when it becomes an Act will be much heavier than the continuing process of administration, so that, whatever happens, there will be an administrative bulge at the beginning. The Parliamentary Secretary is arguing with us because we seek to increase that administrative bulge, as it were, by the mere 15 per cent. of difference between his 85 per cent. registration and our 100 per cent. complete and comprehensive registration. Whichever method is adopted, whether it is the President's method or that suggested by our Amendment, there will be this initial administrative burden, and we are not seeking to extend it very greatly; though the President will in any case have to make provision for it.
Finally, I wish to take up a point made by an hon. Gentleman opposite, who referred in detail to this Amendment. He suggested that the labour and administrative overloading would happen not only at the Board of Trade, but also in industry when industry looked at its own practices and decided whether its arrangements came within the scope of the Bill or not. The Amendment put forward from this side of the Committee would, 277 in effect, greatly reduce the labour in industry and the labour of counsel who will be advising industry, because we are removing one category of definitions from the scope of the Bill altogether.
In other words, as the Bill stands, both industry and its advisers will have to consider two things: first, whether the practices and agreements which they have fall within the scope of the Bill as a whole: and, secondly, as order after order succeeds each other from the Board of Trade, in an attempt at ordering this regulated queue to the Registrar, industry will have to look at its agreements from a second light and see whether they come within the ambit of a particular order which has been put forward by the President of the Board of Trade at any particular time.
Therefore, there will be a double process of assessment, analysis and discussion in industry and by its advisers under the Bill as it stands, whereas, under the Amendment which we are proposing, the effect will be to relieve a great strain on the Minister and on counsel advising industry, for which they should be grateful. Whether they will be grateful or not I do not know, because the decision which has to be made and the advice which will have to be given by counsel is by our Amendment restricted to a single set of categories where the agreement is registrable at all, and the removal of the problem whether a particular industry is first, second, or third or ad infinitum in the queue.
On this point, therefore, I think that the Parliamentary Secretary either has a point of substance, in which case he was completely misleading the Committee in the discussion by his own plans for registration, or building up a strong argument on a narrow point, in which case the graceful thing for him to do would be to accept the Amendment moved from this side of the Committee.
§ Mr. John Cronin (Loughborough)I follow my hon. Friend the Member for Islington, North (Mr. Fienburgh) on most of his points, with one possible exception. He rather indicated that counsel would be grateful to be saved a certain amount of work, but my impression is that counsel rather welcome work and that the more complex legal issues are, the more satisfied they generally are.
§ Mr. Fienburghindicated assent—
§ Mr. CroninMy hon. Friend acknowledges that perhaps that may be the case.
I listened to the arguments of the Parliamentary Secretary with care, and I thought that he seemed to employ rather less than his usual dialectical skill on this occasion in presenting them, so that they did not sound very convincing.
As I understood him, the principal objection to the Amendment moved from this side of the Committee is that the Registrar will be flooded by a mass of small agreements being registered. Is that really likely to be such a serious embarrassment to the staff as the hon. Gentleman suggested? I should like to look at the physical objects of the task, which are mentioned in Clause 8 and which seem to be of a simple nature.
For instance, subsection (1, a) calls for the names of the parties to the agreements to be handed in to the Registrar, and paragraph (b) of the same subsection calls for the terms of the agreements. This does not seem to be a very complex phase of this legislation. All that is necessary is that someone will have to receive these particulars and file them, and I should not have thought that that would be a great embarrassment to any reasonably well-conducted office. I do not suggest that the Registrar should act within three months, but that the practices should be registered within three months of the passing of the act.
However, I will not labour the point because some of my hon. Friends and my right hon. Friend the Member for Battersea, North (Mr. Jay) have already made clear that the whole object of this registration within three months of the passing of the Act is to be absolutely certain and clear that all firms continuing restrictive practices must register them. It may well be that some firms will tend to drop these practices, and the Parliamentary Secretary will agree about that, but surely he will agree that they are more likely to be jettisoned immediately or rapidly if it is known that they have to be registered within that time? That seems to me to be the common sense of the matter.
If the firms concerned know that there is likely to be delay, if there seems to be some hope that they may have to wait until next year or the year after, or if 279 they think there are to be prolonged delays, they will continue to operate their restrictive practices. Do not let us forget the fact that substantial profits are derived from these practices, and that whenever there is an economic profit motive, the restrictive practice will be pursued, unless there is a very clear indication to the contrary. I do not accept the argument that there will be any decline in the number of practices that will be jettisoned.
Another aspect of the matter is, I think, rather unfair. We on this side of the Committee would like all those people who are interested in this matter to be quite clear and know where they are, but, as the Clause is drafted, some industries will have to register soon, some later, some more some time, and some others almost never. There will be long delays, and the result will be that we shall find that some of the more nefarious restrictive agreements will be operated with impunity but without any fear of publicity of registration if the firms concerned know, or think there is hope, that there will be prolonged delay.
I suggest that we should take away that hope from firms or industries which are operating restrictive practices seriously contrary to the public interest. We want this Bill to convey to them the same kind of warning as is conveyed by the gate in Dante's "Inferno"—they must abandon all hope of continuing their practices.
Another thing is that the Parliamentary Secretary's scheme will cause considerable uncertainty in industry. Various firms which operate restrictive practices base their production, costings and their price basis on restrictive practices. If there is to be uncertainty and they do not know when they are to be registered, they will not be able to plan their production, pricing or costing, and they will be confused. This is very unfair to the industries concerned, which are getting a hard deal from the Board of Trade in this matter.
I ask the Parliamentry Secretary to reconsider the matter. What we want to do is to make sure that every firm has a clear straight run. We want to make sure that they are all lined up at the starting gate and can get off to a good start, whereas the Parliamentary Secretary wants to drive them into the arena of public opinion one after the other, rather like a disorderly kind of bullfight.
§ Mr. JayThe Parliamentary Secretary was extremely unconvincing this evening. I thought he might say that the procedure which we propose would be unworkable, but he did not say that. I am sure that if the Board of Trade thought it was unworkable, he would have said so. I imagine that one reason why he did not say so was that he very nearly told the House, on Second Reading, that it was practical.
The Parliamentary Secretary brought forward two objections to the Amendment. He said that it would exclude the Board of Trade's power for leaving out what he called the "minnows" from registration. If that is the objection, we are content to have an arrangement by which there is a definite date for all registrations, with provision for excluding the minnows. Secondly, the Parliamentary Secretary somehow managed to persuade himself that if there was registration over a long period, there would be more publicity and more healthy effects from publicity. Surely, if the jettisoning of the agreements is due to the publicity, and the publicity is due to registration, it must follow that the sooner there is registration, the sooner the agreements will be jettisoned. I do not believe that that can be seriously questioned.
The hon. Member for Huddersfield, West (Mr. Wade) had doubts that by this procedure we would take the matter out of the hands of Parliament. I think that exactly the reverse is the case and that the hon. Member had forgotten Clause 1 (2). On the suggestion that we are making, the position would be that if all agreements within the scope of the Bill were registered by a certain date, under Clause 1 it would be in the hands of the Board of Trade to instruct the Registrar as to the order according to which he took proceedings against certain of the agreements which had been registered; and since Clause 1 uses the words:
subject to … directions … by the Board of Trade with respect to the order …it follows that it would be open to hon. Members of the House to ask the Board of Trade Questions on that matter. I think, therefore, that under this procedure there would be much greater, and not less, Parliamentary control.In the end, the Parliamentary Secretary gave an assurance, for which I am grateful, which I understood to mean that subject to some consideration he would pro- 281 ceed to the first group within one month of the date when the Bill became law. We would, naturally, like to have that quite firm and definite before we part with the Bill, and I hope that the Parliamentary Secretary may later be able to make it quite firm, as, I gather, he was not able to do tonight.
Can the hon. and learned Gentleman give us this assurance, also? Can he say how soon the other main groups of restrictive practices outside the groups to which he referred on Second Reading will be called for registration? I pointed out on Second Reading that as the Bill stood, it might take a hundred years before everything was registered, and the Parliamentary Secretary did his best to make fun of that. If he is to prove to us that he was sincere, can he tell us when the remaining restrictive practices, bar what he calls the minnows and bar the original group, which he described as being the bulk of all practices, will be registered? Can he say, for instance, that the other remaining practices bar the minnows will be registered at least within, say, three or five years of the passing of the Bill?
§ Mr. Walker-SmithThe Committee will not expect a long reply from me. I note that two hon. Members who put points after I spoke last, do not expect a reply, because they have left the Chamber.
I am glad the right hon. Member for Battersea, North (Mr. Jay) is not, I understand, pressing his Amendment, which would exclude the "minnows" provision. As for the rest, all I need say is that on Second Reading I affirmed the desire of the Government to get on as quickly as possible with registration, and I gave a programme. I have this evening not only reaffirmed that programme; I have improved upon it. Therefore, it is clear that hon. Members opposite, who sought to say that the Government were
§ not seeking to make proper progress in this matter, were making an unfounded allegation and one which, in the circumstances, was rather less than fair.
§ 7.15 p.m.
§ I will certainly be able to reassure the right hon. Gentleman that the other agreements about which he asks will be well within the period which he has specified. I think he said three or five years—
§ Mr. Walker-SmithI thought that the right hon. Gentleman, with his characteristic moderation, had come down from 100 years to three or five years on this occasion. It will be well within that shorter period. It may be possible, before the House parts with the Bill, for my right hon. Friend or me to make a more precise statement.
So far as the major group is concerned, the order will come as soon as possible after Parliament has dealt with the Bill and I hope it may be possible even to anticipate the month's interval which is now prescribed by Clause 32. On that, I ask the Committee to say that the Government have shown their good faith and the practicality of their intentions, and I hope that we may now have a decision on the Amendments.
§ Mr. JayI understand that if this Amendment is withdrawn, it will be possible to divide on the next Amendment. In the circumstances, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Amendment proposed: In page 6, line 27, leave out subsection (2).—[Mr. Jay.]
§ Question put, That the words proposed to be left out stand part of the Clause:—
§ The Committee divided: Ayes 264, Noes 205.
285| Division No. 159.] | AYES | [7.16 p.m. |
| Agnew, Cmdr, P. G. | Barter, John | Body, R. F. |
| Aitken, W. T. | Baxter, Sir Beverley | Bossom, Sir A. C. |
| Allan, R. A. (Paddington, S.) | Beamish, Maj. Tufton | Bowen, E. R. (Cardigan) |
| Amery, Julian (Preston, N.) | Bell, Philip (Bolton, E.) | Boyd-Carpenter, Rt. Hon. J. A. |
| Arbuthnot, John | Bell, Ronald (Bucks, S.) | Boyle, Sir Edward |
| Armstrong, C. W. | Bennett, F. M. (Torquay) | Braine, B. R. |
| Ashton, H. | Bevins, J. R. (Toxteth) | Braithwaite, Sir Albert (Harrow, W.) |
| Baldock, Lt.-Cmdr. J. M. | Bidgood, J. C. | Bromley-Davenport, Lt.-Col. W. H. |
| Baldwin, A. E. | Biggs-Davison, J. A. | Brooke, Rt. Hon Henry |
| Balniel, Lord | Birch, Rt. Hon. Nigel | Brooman-White, R. C. |
| Barber, Anthony | Bishop, F. P. | Browne, J. Nixon (Craigton) |
| Barlow, Sir John | Black, C. W. | Bryan, P. |
| Bullus, Wing Commander E. E. | Holland-Martin, C. J. | Orr, Capt. L. P. S. |
| Burden, F. F. A. | Holt, A. F. | Osborne, C. |
| Butler, Rt. Hn. R. A.(Saffron Walden) | Hornsby-Smith, Miss M. P. | Page, R. G. |
| Campbell, Sir David | Horobin, Sir Ian | Pannell, N. A. (Kirkdale) |
| Carr, Robert | Horsbrugh, Rt. Hon. Dame Florence | Partridge, E. |
| Cary, Sir Robert | Howard, John (Test) | Pickthorn, K. W. M. |
| Chichester-Clark, R. | Hudson, Sir Austin (Lewisham, N.) | Pilkington, Capt. R. A. |
| Clarke, Brig. Terence (Portsmth, W.) | Hudson, W. R. A. (Hull, N.) | Pitman, I. J. |
| Cole, Norman | Hughes Hallett, Vice-Admiral J. | Pitt, Mist E. M. |
| Conant, Maj. Sir Roger | Hughes-Young, M. H. C | Pott, H. P. |
| Cooper-Key, E. M. | Hulbert, Sir Norman | Powell, J. Enoch |
| Cordeaux, Lt.-Col. J. K. | Kurd, A. R. | Prior-Palmer, Brig. O. L. |
| Corfield, Capt. F. V. | Hutchison, Sir Ian Clark (E'b'gh, W.) | Profumo, J. D. |
| Crosthwaite-Eyre, Col. O. E. | Hutchison, Sir James (Scotstoun) | Raikes, Sir Victor |
| Crouch, R. F. | Hyde, Montgomery | Ramsden, J. E. |
| Crowder, Sir John (Finchley) | Hylton-Foster, Sir H. B. H. | Redmayne, M. |
| Cunningham, Knox | Iremonger, T. L. | Rees-Davies, W. R. |
| Currie, G. B. H. | Irvine, Bryant Godman (Rye) | Remnant, Hon. P. |
| Dance, J. C. G. | Jenkins, Robert (Dulwich) | Ronton, D. L. M. |
| D'Avigdor-Goldsmid, Sir Henry | Jennings, Sir Roland (Hallam) | Ridsdale, J. E. |
| Deedes, W. F. | Johnson, Dr. Donald (Carlisle) | Roberts, Sir Peter (Heeley) |
| Donaldson, Cmdr, C. E. McA. | Johnson, Eric (Blackley) | Robertson, Sir David |
| Doughty, C. J. A. | Johnson, Howard (Kemptown) | Robinson, Sir Roland (Blackpool, S.) |
| Drayson, G. B. | Jones, Rt. Hon. Aubrey (Hall Green) | Robson-Brown, W. |
| du Cann, E. D. L. | Joseph, Sir Keith | Rodgers, John (Sevenoaks) |
| Dugdale, Rt. Hn. Sir T. (Richmond) | Joynson-Hicks, Hon. Sir Lancelot | Roper, Sir Harold |
| Duncan, Capt. J. A. L. | Kaberry, D. | Ropner, Sir Leonard |
| Duthie, W. S. | Keegan, D. | Russell, R. S. |
| Eccles, Rt. Hon. Sir David | Kerby, Capt. H. B. | Schofield, Lt.-Col. W. |
| Eden, Rt. Hn. Sir A. (Warwick & L'm'tn) | Kerr, H. W. | Scott-Miller, Cmdr. R. |
| Eden, J. B. (Bournemouth, West) | Kimball, M. | Sharpies, R. C. |
| Emmet, Hon. Mrs. Evelyn | Kirk, P. M. | Shepherd, William |
| Errington, Sir Eric | Lagden, G. W. | Simon, J. E. S. (Middlesbrough, W.) |
| Farey-Jones, F. W. | Lambton, Viscount | Smithers, Peter (Winchester) |
| Fell, A. | Lancaster, Col. C. G. | Soames, Capt. C. |
| Finlay, Graeme | Leather, E. H. C. | Spearman, A. C. M. |
| Fisher, Nigel | Leavey, J. A. | Spens, Rt. Hn. Sir P. (Kens'gt'n, S.) |
| Fleetwood-Hesketh, R. F. | Leburn, W. G. | Stanley, Capt. Hon. Richard |
| Fletcher-Cooke, C. | Legh, Hon. Peter (Petersfield) | Stevens, Geoffrey |
| Fort, R. | Lennox-Boyd, Rt. Hon. A. T. | Steward, Harold (Stockport, S.) |
| Foster, John | Lindsay, Hon. James (Devon, N.) | Stewart, Henderson (Fife, E.) |
| Freeth, D. K. | Linstead, Sir H. N. | Stoddart-Scott, Col. M. |
| Galbraith, Hon. T. G. D. | Llewellyn, D. T. | Studholme, H. G. |
| Gammans, Sir David | Lloyd, Rt. Hon. Selwyn (Wirral) | Summers, G. S. (Aylesbury) |
| Garner-Evans, E. H. | Longden, Gilbert | Taylor, William (Bradford, N.) |
| George, J. C. (Pollok) | Lucas, P. B. (Brentford & Chiswick) | Teeling, W. |
| Gibson-Watt, D. | Lucas-Tooth, Sir Hugh | Thomas, Leslie (Canterbury) |
| Glover, D. | McAdden, S. J. | Thompson, Kenneth (Walton) |
| Godber, J. B. | Macdonald, Sir Peter | Thompson, Lt.-Cdr. R. (Croydon, S.) |
| Gomme-Duncan, Col. Sir Alan | McKibbin, A. J. | Thorneycroft, Rt. Hon. P. |
| Gower, H. R. | Mackie, J. H. (Calloway) | Thornton-Kemstey, G. N. |
| Graham, Sir Fergus | Maclay, Rt. Hon. John | Tiley, A. (Bradford, W.) |
| Grant, W. (Woodside) | Macleod, Rt. Hn. Iain (Enfield, W.) | Touche, Sir Gordon |
| Grant-Ferris, Wg.Cdr. R. (Nantwich) | Macleod, John (Ross & Cromarty) | Turton, Rt. Hon. R. H. |
| Green, A. | Maddan, Martin | Tweedsmuir, Lady |
| Gresham Cooke, R. | Maitland, Cdr. J. F. W. (Horncastle) | Vane, W. M. F. |
| Grimond, J. | Manningham-Buller, Rt. Hn. Sir R. | Vaughan-Morgan, J. K. |
| Grimston, Hon. John (St. Albans) | Markham, Major Sir Frank | Vosper, D. F. |
| Grimston, Sir Robert (Westbury) | Marlowe, A. A. H. | Wade, D. W. |
| Grosvenor, Lt.-Col. R. G. | Marples, A. E. | Wakefield, Edward (Derbyshire, W.) |
| Gurden, Harold | Marshall, Douglas | Wakefield, Sir Wavell (St. M'lebone) |
| Hall, John (Wycombe) | Mathew, R. | Walker-Smith, D. C. |
| Harris, Frederic (Croydon, N.W.) | Maude, Angus | Wall, Major Patrick |
| Harris, Reader (Heston) | Mawby, R. L. | Ward, Hon. George (Worcester) |
| Harrison, A. B. C. (Maldon) | Maydon, Lt.-Comdr. S. L. C. | Ward, Dame Irene (Tynemouth) |
| Harvey, Air Cdre. A. V. (Macelesfd) | Medlicott, Sir Frank | Waterhouse, Capt. Rt. Hon. C. |
| Harvey, John (Walthamstow, E.) | Milligan, Rt. Hon. W. R. | Webbe, Sir H. |
| Hay, John | Moore, Sir Thomas | Whitelaw, W. S. I. (Penrith & Border) |
| Heald, Rt. Hon. Sir Lionel | Morrison, John (Salisbury) | Williams, Paul (Sunderland, S.) |
| Heath, Rt. Hon. E. R. C. | Mott-Radclyffe. C. E. | Wills, G. (Bridgwater) |
| Henderson, John (Cathcart) | Nabarro, G. D. N. | Wilson, Geoffrey (Truro) |
| Hicks-Beach, Maj. W. W. | Nairn, D. L. S. | Wood, Hon. R. |
| Hill, Rt. Hon. Charles (Luton) | Neave, Airey | Woollam, John Victor |
| Hill, Mrs. E. (Wythenshawe) | Nicolson, N. (B'n'm'th, E. & Chr'ch) | Yates, William (The Wrekin) |
| Hill, John (S. Norfolk) | Nield, Basil (Chester) | |
| Hinchingbrooke, Viscount | O'Neill, Hn. Phelim (Co.Antrim, N.) | TELLERS FOR THE AYES: |
| Hirst, Geoffrey | Ormsby-Gore, Hon. W. D. | Mr. Oakshott and |
| Colonel J. H. Harrison. | ||
| NOES | ||
| Ainsley, J. W. | Allen, Scholefield (Crewe) | Baird, J. |
| Albu, A. H. | Anderson, Frank | Balfour, A. |
| Allaun, Frank (Salford, E.) | Awbery, S. S. | Bellenger, Rt. Hon. F. J. |
| Allen, Arthur (Bosworth) | Bacon, Miss Alice | Bence, C. R. (Dunbartonshire, E.) |
| Benson, G. | Houghton, Douglas | Popplewell, E. |
| Beswick, F. | Howell, Denis (All Saints) | Probert, A. R. |
| Bevan, Rt. Hon. A. (Ebbw Vale) | Hubbard, T. F. | Proctor, W. T. |
| Blackburn, F. | Hughes, Cledwyn (Anglesey) | Pryde, D. J. |
| Blenkinsop, A. | Hughes, Emrys (S. Ayrshire) | Randall, H. E. |
| Blyton, W. R. | Hughes, Hector (Aberdeen, N.) | Rankin, John |
| Boardman, H. | Irvine, A. J. (Edge Hill) | Redhead, E. C. |
| Bottomley, Rt. Hon. A. G. | Irving, S. (Dartford) | Reeves, J. |
| Bowden, H. W. (Leicester, S.W.) | Isaacs, Rt. Hon. G. A. | Reid, William |
| Brockway, A. F. | Jay, Rt. Hon. D. P. T. | Robens, Rt. Hon. A. |
| Broughton, Dr. A. D. D. | Jeger, George (Goole) | Roberts, Albert (Normanton) |
| Brown, Thomas (Ince) | Jeger, Mrs. Lena (Holbn & St.Pncs.S.) | Roberts, Goronwy (Caernarvon) |
| Burton, Miss F. E. | Jenkins, Roy (Stechford) | Robinson, Kenneth (St. Pancras, N.) |
| Butler, Herbert (Hackney, C.) | Jones, Rt. Hn. A. Creech(Wakefield) | Rogers, George (Kensington, N.) |
| Castle, Mrs. B. A. | Jones, David (The Hartlepools) | Ross, William |
| Champion, A. J. | Jones, Elwyn (W. Ham, S.) | Royle, C. |
| Chapman, W. D. | Jones, Jack (Rotherham) | Short, E. W. |
| Chetwynd, G. R. | Jones, J. Idwal (Wrexham) | Shurmer, P. L. E. |
| Clunie, J. | Jones, T. W. (Merioneth) | Silverman, Julius (Aston) |
| Coldrick, W. | Kenyon, C. | Simmons, C. J. (Brierley Hill) |
| Collick, P. H. (Birkenhead) | Key, Rt. Hon. C. W. | Skeffington, A. M. |
| Collins, V. J.(Shoreditch & Finsbury) | King, Dr. H. M. | Slater, Mrs. H. (Stoke, N.) |
| Cove, W. G. | Lawson, G. M. | Slater, J. (Sedgefield) |
| Craddock, George (Bradford, S.) | Ledger, R. J. | Smith, Ellis (Stoke, S.) |
| Cronin, J. D. | Lee, Frederick (Newton) | Snow, J. W. |
| Crossman, R. H. S. | Lee, Miss Jennie (Cannock) | Sorensen, R. W. |
| Cullen, Mrs. A. | Lever, Leslie (Ardwick) | Sparks, J. A. |
| Davies, P. | Lewis, Arthur | Steele, T. |
| Darling, George (Hillsborough) | Lindgren, G. S. | Stones, W. (Consett) |
| Davies, Ernest (Enfield, E.) | Logan, D. C. | Summerskill, Rt. Hon. E. |
| Davies, Harold (Leek) | MacColl, J. E. | Swingler, S. T. |
| Davies, Stephen (Merthyr) | McGhee, H. G. | Sylvester, C. O |
| Deer, G. | McInnes, J. | Taylor, Bernard (Mansfield) |
| Delargy, H. J. | McKay, John (Wallsend) | Taylor, John (West Lothian) |
| Dodds, N. N. | McLeavy, Frank | Thomas, George (Cardiff) |
| Donnelly, D. L. | MacMillan, M. K. (Western Isles) | Thomas, Iorwerth (Rhondda, W.) |
| Dugdale, Rt. Hn. John (W. Brmwch) | MacPherson, Malcolm (Stirling) | Thomson, George (Dundee, E.) |
| Dye, S. | Mahon, Simon | Thornton, E. |
| Edelman, M. | Mallalieu, E. L. (Brigg) | Timmons, J. |
| Edwards, Rt. Hon. John (Brighouse) | Mallalieu, J. P. W. (Huddersfd, E.) | Tomney, F. |
| Edwards, Rt. Hon. Ness (Caerphilly) | Marquand, Rt. Hon. H. A. | Turner-Samuels, M. |
| Edwards, Robert (Bilston) | Mason, Roy | Ungoed-Thomas, Sir Lynn |
| Edwards, W. J. (Stepney) | Mellish, R. J. | Usborne, H. C. |
| Evans, Albert (Islington, S.W.) | Mikardo, Ian | Viant, S. P. |
| Evans, Stanley (Wednesbury) | Mitchison, G. R. | Warbey, W. N. |
| Fienburgh, W. | Monslow, W. | Watkins, T. E. |
| Fletcher, Eric | Moody, A. S. | Weitzman, D. |
| Forman, J. C. | Mort, D. L. | Wells, Percy (Faversham) |
| Fraser, Thomas (Hamilton) | Moss, R. | West, D. G. |
| Gibson, C. W. | Moyle, A. | Wheeldon, W. E. |
| Gooch, E. G. | Mulley, F. W. | White, Henry (Derbyshire, N.E.) |
| Grenfell, Rt. Hon. D. R. | Neal, Harold (Bolsover) | Wilkins, W. A. |
| Grey, C. F. | Oliver, G. H. | Willey, Frederick |
| Griffiths, David (Rother Valley) | Oram, A. E. | Williams, Rev. Llywelyn (Ab'tillery) |
| Griffiths, William (Exchange) | Orbach, M. | Williams, W. R. (Openshaw) |
| Hale, Leslie | Oswald, T. | Willis, Eustace (Edinburgh, E.) |
| Hall, Rt. Hn. Glenvil (Colne Valley) | Paling, Rt. Hon. W.(Dearne Valley) | Wilson, Rt. Hon. Harold (Huyton) |
| Hamilton, W. W. | Paling, Will T. (Dewsbury) | Winterbottom, Richard |
| Hannan, W. | Palmer, A. M. F. | Woodburn, Rt. Hon. A. |
| Harrison, J. (Nottingham, N.) | Parker, J. | Woof, R. E. |
| Hastings, S. | Parkin, B. T. | Yates, V. (Ladywood) |
| Hayman, F. H. | Paton, J. | Younger, Rt. Hon. K. |
| Healey, Denis | Pearson, A. | Zilliacus, K. |
| Herbison, Miss M. | Peart, T. F. | |
| Hobson, C. R. | Plummer, Sir Leslie | TELLERS FOR THE NOES: |
| Mr. Holmes and Mr. J. T. Price |
Question put and agreed to.
§ Mr. Walker-SmithI beg to move, in page 6, line 30, at the end, to insert:
(3) The Board of Trade may, on the recommendation of the Registrar, by order except from this section agreements of any class appearing significance; and any such order may make provision for the removal from the register of particulars of any agreement of that class of which particulars have previously been entered therein under this Part of this Act.Subject to your approval, Sir Rhys, I think that it will be convenient to the Committee to take, at the same time, 286 the Government Amendments in page 6, lines 31 and 42.This matter has already been touched upon in the discussions which we had on the last Amendment. Clause 7 (4) gives the Board of Trade rather a wide power to exclude agreements from the register. It is not desired to have more than a limited power, so as to exclude what in our previous discussion were referred to as the "minnows" among the restrictive agreements, that is to say, agreements 287 perhaps of purely local effect or agreements in some other way having no substantial economic significance.
I understand from what was said by the right hon. Member for Battersea, North (Mr. Jay) that the Opposition concedes the principle that there should be some power of exclusion of this type of agreement. Therefore, I commend this amended and narrow form to the Committee. The orders made under subsection (4) will be subject to parliamentary control under the provisions of subsection (5).
§ Mr. E. FletcherThis is a great improvement on subsection (4) as printed in the Bill, but I wonder whether it is sufficiently clear. As I understand, the Board of Trade has now asked for power to exclude by order agreements of a class which in its opinion has no substantial economic significance. The first question which occurs to one is whether any agreement in the class in respect of which an order is made can itself have any substantial economic significance.
I can well understand that there may be quite a large number of individual agreements which would merit exemption from legislation if looked at individually, but at the moment it is not apparent what the Parliamentary Secretary has in mind in referring to a class of agreements none of which has any substantial economic significance. I think that it would help us to appreciate what he has in mind if he would give us just one illustration of the sort of order that may be made under this new subsection (3).
§ 7.30 p.m.
§ Mr. Walker-SmithI think that what will happen in practice is that the Committee will see that the proposed new subsection empowers the Board of Trade to make an order upon the recommendation of the Registrar and then the order can make provision for the removal of the particulars at present on the register and the non-registration of similar matters.
The Registrar will find that he is getting on the register certain of these agreements of no substantial economic significance because they are purely local, or for whatever other reason, and he will then come to the Board of Trade and say, "I am getting this sort of stuff. This is not the stuff it is any use proceeding 288 with to the Court. On the basis of the sort of agreement I have already got, I am now in a position to define precisely the sort of agreements which should be exempted within this class." Then the order will be drafted on that basis, and it will be at that point of time possible to draft it with precision and particularity. I do not think I had better essay on any hypothetical examples in case they may be brought to commit the Board or the Registrar hereafter in point of fact. I think that this makes clear how this is intended to work and the useful function which it will discharge within this more limited context.
§ Sir L. Ungoed-ThomasIt appears from that answer that the Board of Trade does not know how clearly it is going to work.
§ Mr. Walker-SmithNot now.
§ Sir L. Ungoed-ThomasI agree, but it is now that we are concerned about. I agree that it does not matter very much not having classes defined within the Bill when we have the provisions of subsection (5) to ensure that the matter shall be brought before Parliament. If it were not for the provisions in subsection (5), we on this side of the Committee would be strongly inclined to vote against these provisions, because it is obviously desirable in cases of this kind that the classes should be defined in the Bill.
In other parts of the Bill all the classes are defined. We have classes defined in Clause 5 for inclusion in registration, and in Clause 6 for exclusion from registration. One thing which we are not told in the Bill and by the Parliamentary Secretary is what class is to be excluded. It is difficult for us to envisage what class of agreement could be excluded.
Let us approach this in the way in which the Parliamentary Secretary has done. The Registrar is to see a number of agreements of no substantial economic significance on his register. He will then, the Parliamentary Secretary suggests, be in a position to define a class. That is exactly one of the difficulties which we envisage in this Amendment in defining a class. How can one define a class of agreement of no substantial economic significance except by saying that it is of no substantial economic significance?
289 My hon. Friend the Member for Islington, East (Mr. E. Fletcher) envisaged in his approach to the Amendment that every single agreement in that class would be of no substantial economic significance. I am not at all sure that the Amendment as it stands means that. The Amendment may well mean—and I am not joining issue with my hon. Friend on this—that the class considered as a whole is of no substantial economic significance, but nevertheless we may have agreements in the class which can be of appreciable economic significance.
The general difficulty which we feel in considering this Amendment is how the class can possibly be defined, so much so that, until we had the Parliamentary Secretary's reply, we on this side of the Committee in considering this Amendment were not at all sure that the grammatical meaning of "appear to the Board" to be of no substantial significance should apply to a class or was not intended to apply to a class at all but to each of the individual agreements that went into the class.
The problem with which the Parliamentary Secretary is faced here is a substantial one. We welcome this Amendment as a very great improvement, of course, on the subsection which it replaces, and we have a great deal of sympathy with the substance of what the Parliamentary Secretary and the Board of Trade have in mind. But, following his reply to my hon. Friend, we are extremely sceptical as to whether in fact this is an effective provision and whether it would not be far wiser for the Board of Trade simply to refer to any agreement instead of any class.
All that I wish to say in support of my hon. Friend on this matter is to ask that the Parliamentary Secretary give further consideration not to the purpose which he has in mind—we are in agreement as to the purpose—but to the way in which that purpose is handled in this Amendment.
§ Mr. Walker-SmithI am glad that we are at one about the purpose and the intention of the Amendment which we are discussing. In regard to the form of it, it may be possible to see whether there is any middle course between defining a class, which is what the Amendment at 290 present does in pursuance of the general structure of the Clause and identifying agreements specifically sub nomine, which is, I think, undesirable. If it is possible to find a middle course—I have no pride of authorship about this—I will certainly look at this matter between now and the Report stage to see if we can improve on the actual wording; but perhaps we may have the Amendment now as a basis for going on?
§ Mr. Philip BellI hope that I am not being pedantic by saying that I cannot quite understand how the recommendation of the Registrar matches up with the fact that it is the Board which has to make up its mind about substantial economic significance. Let us test it for one moment. The Board looks at the register and thinks that the particular item registered is of no substantial economic significance. Having got as far as that, it has to wait for a recommendation of the Registrar. What will the Registrar recommend? He has not looked into it at all, he has no executive power at all, and on what basis will he make a recommendation?
Will he make one before the Board decides that it is of substantial economic significance or afterwards? I wonder whether it is the other way round? If the Board thinks it is of no substantial economic significance, it must tell the Registrar to remove the agreement. It seems to me to be otiose to ask the Registrar to recommend something which the Board itself wants if the Board makes up its mind to say to the Registrar, "Remove it". But to have two people nibbling at this, with the Registrar having no possibility of finding out if it is of economic significance, makes his job administrative at that stage. Fortunately for him, he has not to decide whether on balance it is a good thing or a bad thing. Would the Parliamentary Secretary consider whether those words are put in to inflate the position of the Registrar but not really to give him either the means or the method of taking any action of his own?
I wonder about the words referred to by the Parliamentary Secretary—"agreements of any class appearing to the Board ". I do not want to be pedantic, but I should have thought that the words "of any class" govern the word "agreements". I say, with respect, that I feel 291 unhappy about the phraseology of the first of those two lines.
§ Mr. Walker-SmithI assure my hon. and learned Friend first in regard to the question of the relationship of the agreements and the class that this is covered by what I have said already as to the further consideration that we shall give. There is nothing sinister about the provision in regard to the recommendation of the Registrar. I explained earlier how we visualised this working. It is the Registrar who will see the type of agreements coming in, which are what I call the minnows, and it is for him to draw the attention of the Board of Trade to them.
There is nothing sacrosanct about these words as we are to look at them again, but, of course, the object in having the recommendation of the Registrar is to make it clear that this provision will only be exercised in order to get administrative efficiency and viability into the working of this procedure. It is not a question of the Board of Trade suddenly, for some economic, political or other reason of its own, seeking to exclude some forms of agreement.
§ Amendment agreed to.
§ Further Amendments made: In page 6, line 31, leave out "the last foregoing subsection" and insert "this section."
§ In page 6, line 42, leave out subsection (4).—[Mr. Walker-Smith.]
§ Motion made, and Question proposed, That the Clause, as amended, stand part of the Bill.
§ 7.45 p.m.
§ Mrs. CastleIn view of the debate we have had on some earlier Amendments, and of the refusal of the Parliamentary Secretary to accept the idea of the automatic registration of agreements as being the onus on the parties to those agreements, I do not think that we should allow the Clause to go without trying to clear up the ambiguity on a rather important point.
That point is, on whom lies the initiative for registering these agreements? Is the initiative with the Registrar or is it with the parties to the agreement? As I have studied this Clause, in conjunction with those dealing with the question of registration, I find it difficult to be sure 292 what exactly is the legal obligation in respect of registration of the parties to the agreement.
This matter is dealt with in various parts of the Bill. Clause 1 merely states that the Registrar has the duty to maintain a register but, unless I am being very obtuse, it is difficult to find out how the agreements are to get on to the register. By whose initiative? On whom do we lay the legal obligation in this Bill to take action? It is interesting to study the form of words used in this Clause. It is a rather strange form of words because it is in the passive tense. The Clause does not say that so-and-so shall register an agreement. It says that every agreement shall be subject to registration.
We know already from our discussion of this Clause that the registration will not be automatic. It is within the control of the Board of Trade and therefore, presumably, the Board of Trade can vary the legal obligation to register—
§ Mr. Walker-SmithI do not want to interrupt the hon. Lady, but the points she is now raising are matters which will come up under Clause 8, which deals with responsibility for furnishing particulars for the purpose of registration. In seeking to answer the hon. Lady, Sir Rhys, I would not want to get out of order by reason of anticipation.
§ Mrs. CastleI have studied Clause 8 with care, Sir Rhys, and it is just because I think that it does not meet this point that I feel that I must raise it on Clause 7.
The Deputy-Chairmanif that be the case, I think the hon. Lady should raise it on Clause 8, rather than on Clause 7.
§ Mrs. CastleI am sorry if I have not made myself clear, Sir Rhys.
I am saying that on my reading of Clause 8 it does not deal with the question of registration, but with the question of furnishing particulars. If I could be allowed to develop my argument, it might emerge that there is a point of substance. Of course it might also emerge that I have been rather stupid. That is a possibility, but I do not think that we ought to dismiss—
The Deputy-ChairmanIf the hon. Lady looks at Clause 8 she will find that 293 it deals with registration, and it appears to me that it would be more appropriate to raise the matter on that Clause.
§ Mrs. CastleWith great respect, Sir Rhys, I have gone into this with great care and I find Clause 8 does not deal with registration, but with the furnishing of particulars. That, I suggest, is not necessarily the same thing, because it does not say, in Clause 8, at what stage those particulars are to be furnished—that is to say, whether before or after the Registrar has asked for them.
§ Mrs. CastleIf the Parliamentary Secretary had paid me the courtesy of allowing me to try to develop what I think is a serious point, he would have seen that I am suggesting that there is a gap in the Bill which he may not have realised. It fails to state specifically whether there is a legal obligation on the parties to an agreement to take the intiative in registering, or whether it is for the Registrar to decide that an agreement exists which ought to be registered and then invite the parties to the agreement to register it by furnishing him with the particulars.
I suggest in all seriousness that those are two separate questions and two different types of activity. The second would be dealt with in Clause 8, but the first would fall within Clause 7. I am suggesting that the wording in Clause 7, which is in a deliberately passive tense for some unknown reason—that every agreement shall be subject to registration—does not make clear what is the function of the Registrar.
We want to know whether, for example, any legal obligation falls upon anybody to register until the Registrar has approached him and asked him to furnish particulars. That is my point, and I must deal with it now; otherwise, we shall pass from the Clause on the assumption that one of the interpretations is the correct one—and it might be that the Committee would wish to challenge the second of the interpretations. I personally take the view that what we ought to do is to place the legal obligation upon the parties to the agreement, whether or not the Registrar ever approaches them for particulars. The 294 legal obligation should be theirs, and if it is discovered that parties to an agreement have failed to take the initiative in getting themselves placed on the register they should be punished under the Bill.
As the matter stands we cannot do that, because the only offence which can arise, under Clause 8, is the failure to furnish particulars—and it is not made clear whether that failure comes into existence because of an overture by the Registrar. I suggest that if we take all the Clauses relating to registration together, we shall see that the implication arises at a number of points that the initiative is to be the Registrar's, and that we are in fact expecting him to be a kind of mixture of bloodhound and crystal gazer, or water diviner, going round until his stick tells him that there is an agreement which should be registered.
In our view, that is not the right way to approach the matter. That is one of the reasons why we have fought for the simultaneous and automatic registration of agreements. Such a provision would make it clear to every party to such an agreement that it was his duty, within a limited period after the passing of the Bill, to take the initiative in making that agreement known. That is my point. I sugest that this mystery about what is meant by this passive tense is made even deeper by reference to Clause 10, which suggests—
§ Mrs. CastleWith great respect, Sir Rhys, I would point out that here we have an obscurity. When we try to understand what it means and suggest that the provision should be in the active tense and not the passive tense, surely we are in order in pointing out that unless we make that change the implications which may be gathered from the other Clauses show a certain bias in favour of a certain interpretation. If you would allow me to do so, I shall try to keep in order in raising this point of substance.
Perhaps you will allow me to use Clause 10 as an illustration. That Clause suggests that someone has been compelled to register an agreement which is not subject to registration—that is why he is an aggrieved person. The aggrieved person is somebody who has been com- 295 pelled to register an agreement that was not registrable. Clearly, he could not have been so compelled if the onus to register was upon him—because he would not have registered in that case. How, under Clause 10, can that situation arise, if the legal onus is—
The Deputy-ChairmanThe hon. Lady is placing me in some difficulty. Her argument does not arise on this Clause. This Clause deals with the classes of agreement to be registered.
§ Mrs. CastleIt is a difficulty—but I should have thought that there was a certain amount of flexibility in this Committee to discuss this problem at the first point at which it arises, which is on this Clause.
§ Mr. Walker-SmithI only want to suggest, for your consideration and help, Sir Rhys—and to help the hon. Lady—that I can, in fact, clear up the doubts about this matter in not more than two minutes, by means of a very brief reference to Clause 8, if that would be helpful to her.
The Deputy-ChairmanIt may be possible to clear it up, but it should be done under Clause 8 or Clause 10.
§ Mrs. CastleI am anxious to make progress. If the Parliamentary Secretary cares to intervene at some point, and you will be kind enough to call me again afterwards, Sir Rhys—
§ Sir L. Ungoed-ThomasSurely my hon. Friend the Member for Blackburn (Mrs. Castle) is in order. Her point is that the Clause contains no provision which states who is to register. She suggests that the person to register must be the Registrar. The reason she says that is that in Clause 10, which deals with the rectification of the register, the person who applies for that rectification is a person described as the person aggrieved. My hon. Friend reads from that that the person who must ensure registration under subsection (1) of this Clause is the Registrar, and she goes on to say that that should not be so. I suggest, therefore, that she is quite in order.
§ Mrs. CastleI am open to the judgment of the Committee in this matter. I must ask the Committee to excuse my verbal inaccuracies, but I would point out that, in my feminine way, I have been saying exactly the same thing as my hon. and learned Friend has just said; indeed, if I had not, he would not have taken the point so aptly, because it had not occurred to him before.
It has been extremely difficult for me to make myself clear, because I have been so constantly interrupted. I have attempted to use other Clauses as an illustration. If hon. Members would read through Clauses 8, 10, 11 and 12 they would find that those Clauses set up an assumption that the initiative in taking the act of registration lies with the Registrar. If I am right there is no legal obligation for the parties to an agreement to take the initiative in registering, without waiting to be routed out by the Registrar and being asked to furnish particulars.
Indeed, if we go through the relevant Clauses we find that the only offence that a party to an agreement can commit in connection with registration is the failure to comply with a notice from the Registrar asking him to notify the Registrar whether he is a party to an agreement. Nowhere is there an offence for failing to take the initiative.
Surely this is a matter of very considerable substance. If the Registrar is going to have to spend an enormous amount of his time going around and making reasonable assumptions as to the existence of agreements which should be registrable—which is the phraseology used in a subsequent Clause—he will be spending a great deal of time upon a job which, in our view, ought to be done automatically. He has a tremendous amount of work to do in preparing cases for inquiry by the Restrictive Practices Court, and all the rest. It was never our view that he should have, first and foremost, to find out—by some means which is not made clear—whether agreements which should be registered but are not are in existence. I suggest that this is an omission in the Bill. If it is not the Government's intention that the Registrar should do this the wording of the Clause ought to be altered. If it is the intention, 297 it is still more true that the right hon. Gentleman should alter the wording in order to clarify the intention.
8.0 p.m.
We also suggest that the Clause should specifically state what legal onus is on the Registrar, and it ought to define on which parties to the agreement falls the obligation to register, whether on all of them or only on some of them. Are we to make it equally binding upon everybody who is a party to a registrable agreement to go forward and register it? Ought we not to have a form of words to enable one of the parties to do the registering in the name of the others?
The Clause is ambiguous. Taken in conjunction with subsequent Clauses, the assumption of the Clause is that there is no legal obligation on the part of anybody until the Registrar has asked for the agreement.
§ Mr. Walker-SmithThe Committee will appreciate that the task of answering all the points raised by the hon. Lady the Member for Blackburn (Mrs. Castle) and at the same time keeping in order is a little difficult, because I shall have to anticipate subsequent Clauses and Amendments.
Clause 7 prescribes the obligation for the registration of agreements. The way in which an agreement is registered is by the furnishing of particulars to be incorporated in the register. The hon. Lady will appreciate that in law not all agreements have in any event to be in writing. If she will be good enough to look at Clause 8 (3) she will see clearly set out the particulars to be registered or furnished for registration—to use the language of the Clause—in the case respectively of written and oral agreements.
Next comes the hon. Lady's question on whom lies the obligation to furnish these particulars of agreements for registration. The onus of doing that is on all the parties to the agreement and not on the Registrar. Clause 8 (4) defines the period within which the particulars have to be furnished. As I have already stated, the particulars having been defined in Clause 8 (3) you spell the onus out of subsection (5), which gives the procedure for default. If the particulars are not furnished, the Registrar proceeds to his default powers under subsection (5).
298 He serves notices upon any parties to the agreement. If the particulars are not then furnished, the parties are in default and certain other consequences follow. I do not want to anticipate discussion on subsequent Amendments, but I can say that the onus is satisfied when one party to the agreement furnishes the particulars. That is obviously commonsense, because what is required is to get the particulars on to the register. As soon as one party to the agreement has done it, the onus is satisfied.
The position is clear. The types of particulars to be registered are defined in Clause 8, the general liability to registration having appeared in Clause 7, which we are now on. The default procedure is in Clause 8 (5), while Clause 8 and the subsequent Clauses deal with the power to follow up notices and with the offences where people are in default in respect of compliance.
§ Mr. FienburghThe only difficulty about accepting the explanation of the Parliamentary Secretary is that it does not meet the arguments put forward by my hon. Friend the Member for Blackburn (Mrs. Castle). The hon. Gentleman seeks to prove that Clause 8 (5) spells out—as he puts it—or implies a responsibility to register, because it gives the Registrar power of sanction in the event of default. It does not, as I see it, give power of sanction in default of registration but only in default of furnishing the particulars.
§ Mr. Walker-SmithThey are the same.
§ Mr. FienburghThe argument of my hon. Friend was valid. On her interpretation of the Bill as a whole, the Registrar has to smell out agreements, and after that they will be registered. When the Registrar, having smelled out the agreement, asks that the particulars should be furnished, the default provisions come in when the particulars are not furnished. The Bill does not say that the default powers are exercisable in the event of default of initiating of registering in the first place.
§ Mr. Walker-SmithI thought I had explained the position clearly. Let me try to make it clear. The furnishing of particulars is, in fact, the registering of an agreement.
§ Mr. E. FletcherIt is all very well for the Parliamentary Secretary to say that the furnishing of particulars is registration. Clause 7 deals with registration. My hon. Friend the Member for Blackburn (Mrs. Castle) was complaining that Clauses 7 and 8 are couched in the passive mood. There is no obligation, therefore, on anybody under Clause 7 to do anything. I am glad that the President of the Board of Trade has come into the Committee. He may have gleaned from his Parliamentary Secretary what has been said by my hon. Friend the Member for Blackburn.
This is a very serious matter. The issue is perfectly simple. There is no need, in draftsmanship, for Clause 7 (1) to start off in the passive mood and say:
Every agreement to which this Part of this Act applies shall be subject to registration.The right way, and the only sensible way, is to redraft that subsection to make it read:Every party to every agreement to which this Part of this Act applies shall cause such agreement to be registered.The only way to get it right is to put an actual and definite obligation on every party to an agreement to do something. If we put something in the passive mood and say that every agreement shall be registered, it has no effect because we are not telling anybody to do anything. I do not want to be too elementary with the President of the Board of Trade, but he must understand that we cannot say to an agreement "Go and be registered". Even the right hon. Gentleman will agree that that would be silly and even immature. We cannot tell an inanimate object to do something, but we can put a definite, positive responsibility upon an individual who is amenable to the law of the land.What bothers me is not only that the Parliamentary Secretary gave such an inadequate answer to my hon. Friend but that he appeared to justify it by saying that under a later Clause certain things would happen. It is our duty to make the Bill intelligible. We are trying to help the President of the Board of Trade. What astonished me was that the Parliamentary Secretary and the President did not seem to welcome this.
We are trying to make this Bill intelligible. Before we part with Clause 7, before we vote on it, before we accept 300 it, I would ask the President if there is any reason why we should not get this perfectly clear. We want the parties to the agreement to be responsible for registering, and, therefore, we want subsection (1) to say that the parties to an agreement shall see that it is registered. Pausing there, there would be a point to meet but, as my hon. Friend the Member for Blackburn elaborated in her remarks, there is more substance to it than that. We want to know whether the obligation is on every party to an agreement or only on one.
§ Mr. P. ThorneycroftIf I may just answer that now, there is an Amendment on that subject. It arises not on this Clause but on Clause 8. It will be perfectly appropriate to debate it then, but it is quite irrelevant to this Clause.
§ Mr. FletcherI am perfectly prepared to debate Clause 8 when we come to it, but I am not prepared to leave Clause 7 until I have got it in a perfectly satisfactory state. Why must this be worded in the passive tense? Why say of an agreement that it shall be registered when that makes no sense at all? Why not alter the wording, as I suggest, so that it reads, "every party to every agreement to which this part of this Act applies shall cause such agreement to be registered"? If it said that, we should all know where we were and everything else would then fall into line. We should then have Clause 8 laying down that the parties would be required to give such-and-such particulars and everything would follow on perfectly properly and logically, and we should not have to spell it out, by some process of crossword juggling such as the Parliamentary Secretary suggests, to understand the meaning. In all seriousness, I ask the President to try to word this beyond any possibility of doubt. We are trying to impose obligations to have these agreements registered.
There is another point. Suppose there is an agreement to which there are six parties. It is quite likely that any one party might think that one of the other five was going to register it. It might be an agreement to which there are two or three principal parties and two or three subsidiary parties. In all honesty, one or other party might say, "I am not directed by the Bill to do anything. It is not my duty. If this has to be registered I assume that someone else—one of the 301 principal parties—will register it." Each of the parties might say "This is not my responsibility." There is nothing in the Bill which places any positive obligation on any particular party to do something and each might quite honestly leave it to the others.
We want to remove that risk, and my view is that that risk can only be removed by saying positively that the parties shall register the agreement. For the life of me I cannot understand why the President is unwilling to accept that suggestion. I hope that before he invites us to accept Clause 7 we shall have his assurance that this most important point which my hon. Friend has raised will be much more fully considered.
§ 8.15 p.m.
§ Sir L. Ungoed-ThomasI am sure that we do not want to spend a good deal of further time on this, because what it comes down to is merely a point of clarification—but a very important point of clarification. I hope that the President will read carefully the very able speech—if I may say so with respect—of my hon. Friend the Member for Blackburn (Mrs. Castle). There really is a point of substance here.
I will be perfectly frank about all this. After some consideration I read this as meaning that the only thing that has to be registered in connection with an agreement is the particulars. I grant that at once to the Parliamentary Secretary. But it is confusing when we find that in Clause 7 no obligation at all is imposed for registration. My hon. Friend the Member for Blackburn made a very powerful argument in favour of a possible view that the obligation for registration would lie upon the registrar—which, of course, is not the President's intention at all. I hope that the right hon. Gentleman will very carefully consider what my hon. Friend said.
Then we come to the answer which the Parliamentary Secretary gave as to how the particulars were to be furnished, and how, indeed, this comes within Clause 7. The registration under Clause 7 is done by the furnishing of the particulars under Clause 8. From that he argues that as the particulars have to be furnished by the parties, so he says, the registration under Clause 7 is also to be done by the parties. That is, of course, a logical 302 sequence, but his reasoning for that is the provision for default in Clause 8 (5), and as, he says, there is default in furnishing particulars, and as the registrar may serve notice on any party to the agreement, he infers that the party to the agreement is the person in default; and that a person, in order to be in default, must be the person who is under the obligation to furnish the particulars under Clause 8 (1) that a person is the person who is under the obligation to register the agreement under Clause 7. Well, of course, as my hon. Friends have said, that is an extraordinary far-fetched way of finding out that the obligation for registration lies upon the parties to the agreement. I must confess that I did not arrive at that conclusion, and I still beg to question whether that conclusion is correct.
If under Clause 8 (5) there is default in furnishing particulars, then, if the argument of my hon. Friend the Member for Blackburn is correct, under this Clause the default, if there is any duty at all, will be the default of the registrar, but I beg to question even whether default is the proper word here. Default means the omission of a duty. There is no duty imposed. There can be no duty imposed, and there can hardly be any default if default means more than omission, because there is no sanction in this Bill, as I understand it, for the mere omission to register particulars. At a later stage, after the Registrar asks for the particulars and they have not been provided and so on, we get it, but we are dealing with Clause 7 as elucidated by Clause 8 (1), and for that, as I see this Bill, there is no penalty. By that I do not mean a criminal offence in any way, but there is no loss, no sanction of any kind, no consequence of any kind flowing from the mere omission to register the particulars.
§ Mr. Walker-SmithIs not this what the Committee will debate on the hon. and learned Gentleman's Amendment to Clause 8 in page 7, line 44, and can we not wait until then to deal with this point?
§ Sir L. Ungoed-ThomasNo, we cannot wait until then to deal with this point, because it is not the same point. It is put in for the same reason but it is not the same point I am not dealing with Clause 8, page 7, line 44, but with the 303 point which the Parliamentary Secretary made in regard to subsection (5). In that subsection there is no default because there is no duty. There is no duty because there is no sanction and we are completely vague about it all. I do not want to spend time on this matter. It can be dealt with very simply. As I understood from the Parliamentary Secretary's reply, there is not really a difference in intention between us.
The intention of everybody is that the registration should be made by the parties and the obligation should be on the parties to register. If that is so, why not adopt the suggestion—if not the precise wording, on the same lines—made by my hon. Friend the Member for Islington, East (Mr. E. Fletcher) and simply say outright in Clause 7 that the obligation for registration shall be on the parties to the agreement, and say it when it first appears, because that will make it so much clearer to everybody? It can be done on the lines suggested by my hon. Friend the Member for Islington, East or by connecting Clause 7 (1) with Clause 8 (1) and accepting our Amendment in Clause 8 when we come to it. I ask the President of the Board of Trade to consider this matter before Report.
§ Clause, as amended, ordered to stand part of the Bill.