§ 3.34 p.m.
§ Mr. George Darling (Sheffield, Hillsborough)
I beg to move, in page 9, line 16, to leave out "High" and to insert "Restrictive Practices".
§ The Chairman
I think it will be for the convenience of the Committee if this Amendment is taken with the Opposition Amendment to line 20 and that in page 10, line 1.
§ Mr. Darling
Yes, Sir Charles.
Many hon. Members are lawyers and know more than I do about the workings of the High Court and of the proposed Restrictive Practices Court. They will probably say that I am all wrong in suggesting that, when dealing with alterations to trade agreements, applications for these alterations should go to the Restrictive Practices Court and not to the High Court. As far as I can see—it has been said frequently—the whole of the procedure provided for in the Bill will give the lawyers a great deal of work and will add considerably to their income. It seems to me that we are giving them an unnecessary amount of work and that we are not getting the purpose of the Bill properly in focus if we suggest that applications for the alteration of agreements should go to another court. It seems to us on this side that this is a matter, like everything else in the Bill dealing with the legal procedure, that could be, and ought to be, dealt with in the Restrictive Practices Court.
I believe that the Bill is giving far too much work and income to the lawyers, who will have a very good time when it comes into operation and the registration of agreements, questions of exceptions and all the rest have to be thrashed out. It seems to some of us, at any rate, that all this will add unnecessarily to the legal burdens which are imposed upon the industrial community by the Bill. I therefore want to know why the Government 399 consider it necessary for applications for the alteration of agreements to go to a court other than the one which has been set up to deal with the Bill.
If I am wrong, I shall be quite happy for the Minister to say so, but I object to this unnecessary expansion of legal work, with which I disagree entirely. I disagree with the whole of the legal procedure which is provided for in the Bill.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
I support the Amendment and those of the remarks of my hon. Friend the Member for Hillsborough (Mr. G. Darling) which were not derogatory to my profession. One thing which I should have thought would be quite clear about the activities of the new Court which it is proposed to set up is that its work will be very specialised in character. The Court will have regard to questions which will be quite novel in coming before the judiciary. That being so, and the matters arising under the Bill, when it becomes law, being in this way of a specialised character, I should have thought it was very desirable that all parts of the proceedings should be confined to the Restrictive Practices Court.
It would seem to me undesirable administratively that, by the Bill in its present form, applications would be made, probably at 2 o'clock, to judges of the High Court, with the imposition upon these judges of the determination of interlocutory matters arising as a result of this innovation in the law, when, I should have thought, it was far more convenient that these matters should be dealt with by the Restrictive Practices Court itself.
Once that Court is created and has started building up its body of case law and its methods of procedure and practice, it will get to know, if I may so express it, the way of the Bill, when it becomes an Act, and matters arising under it, which should carry weight and which would require attention, and it will be able, I should have thought, to deal with this kind of problem much more expeditiously than would the High Court.
The applications which are to be made under the Clause could raise very difficult questions. The matter referred to in the first subsection, as to whether particulars should be removed from the register, may often involve elaborate and 400 extensive research into the subject matter of the application. If that were all, I should have thought that to impose that burden upon the High Court judges would be undesirable and might quite well result in an unsatisfactory dislocation of the lists and of the ordinary programme of the High Court.
It is, however, not all, because under a subsequent subsection, to which another of the Amendments which we are now discussing refers, applications may go to the High Court upon the very extensive question whether an agreement is one which is registrable under Clause 4. That may often involve very thorough investigation and extensive research.
Moreover, the Bill provides that notice of the application must be given to the Registrar, and he will have the right and the power to appear and to resist the application. In that context, we are getting quite a distance away from the short type of ex parte application which can be conveniently dealt with by the judges of the High Court in our usual procedure. We may well have an issue arising as to whether a complex agreement is a registrable agreement under the Bill, with a party to the agreement taking one point of view and the Registrar taking another. This is quite inappropriate for application to the High Court when there is in existence, as there will be, a Restrictive Practices Court accustoming itself to the procedure and the types of problem that will arise.
In determining whether particulars should be removed from the register, and whether a particular class of agreement or particular agreement is registrable, the judge will often derive very great assistance from the advice he receives from the lay members of the Court. Why should the High Court judge, as proposed by the Bill, dealing with what may be complex difficulties, not have the advantage of turning to lay members of the Restrictive Practices Court to assist him in making a decision on the matter?
I suggest to the President of the Board of Trade that there may be many occasions where the class of application will give rise to points which are quite peculiarly appropriate to be considered and dealt with by lay members whom the Government propose to place on the Restrictive Practices Court. The Government have recognised in principle—and 401 I agree with that decision—that it is desirable in many instances to have sitting with the judge lay members with experience of trade and commerce and public affairs. If that view is taken in principle, what can be the reason for concluding, as the Government by this Clause in effect conclude, that these lay members may not be helpful on the interlocutary and ancillary matters arising from these applications?
I ask the Government to consider these arguments and to reflect upon their weight. The point is a narrow one, but it is not unimportant. Here we are considering a matter which may have a considerable effect on the list of cases in the High Court and upon the conduct and the movement of the business there. We are considering how best to deal with applications which, by their very nature, may be very involved and may require extensive and prolonged examination in certain circumstances.
§ Mr. Eric Fletcher (Islington, East)
I am sorry to say that on this point I do not find myself in agreement with my hon. Friend for Edge Hill (Mr. A. J. Irvine.) I take some credit myself for saying so, because I think that it illustrates to the President of the Board of Trade that we on this side of the Committee are trying to look at this matter in a constructive and helpful and not in a partisan manner. Although I have listened very carefully to my hon. Friend the Member for Edge Hill and my hon. Friend the Member for Hillsborough (Mr. G. Darling), I frankly disagree with them and I hope that the President will not accept the Amendment.
May I dismiss as irrelevant the first argument of my hon. Friend the Member for Hillsborough, who made one of the usual cheap jibes about the legal profession? I do not think that it makes any difference from that point of view whether these applications go to the High Court or to the Restrictive Practices Court or any other court. Therefore, I do not think that that point is relevant.
There are, however, two other points which I think are very relevant. We on this side of the Committee, of course, do not approve of this Restrictive Practices Court at all in principle. We should prefer a tribunal, but the Government must have their way because they have 402 a majority. But having got a Restrictive Practices Court, I think that it will have plenty to do in dealing with the cases that come before it—these semi-justiciable, semi-law and semi-economic issues.
We think that the sooner that Court gets on with dealing with the mass of applications that will come before it the better. Therefore, from that limited point of view of the Restrictive Practices Court being able to utilise its time to the best advantage, I should prefer that the Court should not be cluttered up, to use the Parliamentary Secretary's favourite phrase, with adventitious matters.
I should prefer that these applications of a totally different character, as to whether or not a particular agreement should be registered, should go to the High Court. Those issues are much better decided by a High Court judge sitting alone, because those issues will involve strictly justiciable matters—matters of the precise interpretation of the phraseology of the Bill when it becomes an Act. They will not involve any economic issues at all. They will involve simple matters of construction which can be suitably decided by a High Court judge, without any benefit of any assessor.
An arrangement of that kind would have another advantage. Once the Bill is passed and becomes part of the ordinary law, the more it is integrated into the whole of our legal machinery the better. Therefore, the more judges of the High Court there are dealing with the interrelated aspects of the Bill the better, and I should be against segregating before a particular court all the issues that arise from the Bill. If there are to be people who ignore their duty of registration and become liable to penalties for having defaulted in furnishing particulars, those people should be dealt with by the ordinary courts.
Equally, if there are issues as to whether a particular agreement should be registered or not, such matters should come before the ordinary courts, that is, the High Court, because those issues are totally different in nature from any issue as to whether a particular agreement is or it not contrary to public policy.
There may well be a number of applications under Clause 10, and the fact that they will come before a different court is, in my opinion, an advantage 403 rather than a disadvantage. The whole apparatus which is being set up—though very belatedly—to deal with monopolies is something which should, as far as possible, be integrated with our whole legal system. I am anxious that the public should come to realise that the application of this Bill is a matter of great national importance, not just a matter of legal importance, though it must obviously involve legal issues.
I am anxious that this Measure should be so assimiliated with our legal system that public opinion will come to regard with revulsion offences of a monopolistic character and the making of agreements which are evil in their nature in that they offend against public policy. Therefore, I think that the more courts there are dealing with these matters and the more publicity is given to them in different courts, the better; and the arrangement proposed in the Bill would be a better arrangement than trying to pretend that this is some purely segregated element of our system in which offences are not as serious as other kinds of offence.
I admit that the matter is arguable, and I apologise to my hon. Friends for not agreeing with them, but, for those reasons, I personally hope that the President will not feel able to accept the Amendment.
§ Mr. Frederick Mulley (Sheffield, Park)
I support my hon. Friend the Member for Islington, East (Mr. E. Fletcher); and I say that now because I should not like it to be thought that he was the only black sheep on this side of the Committee. I was impressed by the arguments advanced in support of the Amendment, but the main reason prompting me to speak against it is my concern about the three courts which are to be available to deal with restrictive practices. I would hate to find their time occupied by considering matters of a purely legal nature which should rather be dealt with in the ordinary way by the High Court. Moreover, unless the drafting of the Bill is greatly improved by the Report stage, it seems to me that most of these matters will in any case have to go to a higher court than the courts of first instance of the High Court before anyone is sure what particular exceptions may mean.
404 I would, therefore, ask the President not to look too sympathetically at this Amendment. At the same time, I would ask him to tell us what he has in mind as regards the High Court itself. Will it be the Queen's Bench Division or the Chancery Division? Subsection (2) of the Clause seems to raise matters of construction, rectification of registers, and so on, which are very similar to some of the company matters dealt with by the Chancery Division, and the Chancery Division might well be the more appropriate division to deal with matters raised under this Clause.
§ Mr. M. Turner-Samuels (Gloucester)
I was very sorry to hear my hon. Friend the Member for Hillsborough (Mr. G. Darling) say what he did about lawyers. It really is most extraordinary what an almost perverted delight some people seem to take in throwing jibes at lawyers. It lies ill in the mouth of any trade unionist to throw jibes at lawyers, because the influential and strong position which trade unions enjoy today is due in large measure to the successful battles in the past waged in the courts on their behalf.
§ Mr. Ellis Smith (Stoke-on-Trent, South)
Only because the trade unions organised these things, often against the opposition of lawyers.
§ Mr. Turner-Samuels
I do not think that there is any need for acerbity about this matter. I am surely entitled to reply to the strictures made upon my profession.
I cannot agree for one moment with this Amendment, which seeks to substitute the Restrictive Practices Court in these particular instances for the High Court. I am sorry to have to differ from my hon. Friend the Member for Hillsborough and with my hon. Friend the Member for Edge Hill (Mr. A. J. Irvine). My hon. Friend, rather strangely, referred to his Amendment as raising a narrow point, but, rather than being narrow, its effect seems to go to the whole width of this Bill. If the President were agreeable to doing what the Amendment asks, it would mean that there might be no ultimate purpose served by the Bill at all, and in that case we might just as well go back to the Monopolies Commission and keep the Monopolies and Restrictive Practices Act in full operation.
405 The provisions of that Act could, if they were fully implemented by the President and if the recommendations and reports of the Commission were endorsed by him, fulfil quite adequately and, in my submission, even better than the provisions of this Bill, the purpose behind this whole piece of legislation.
Although, like my hon. Friend the Member for Islington, East (Mr. E. Fletcher), I do not agree with the High Court being brought into this Bill at all, and I do not agree with the provisions of the Bill as a whole, my submission being—as I said it on Second Reading—that it would have been perfectly all right to continue the status quo, and to allow the Monopolies Commission to operate in the fullness of the provisions of the Act if adequately implemented by the President of the Board of Trade.
To say that this is a narrow point is, I submit, quite wrong, because it would, in effect and in practice, get rid of a salient feature of this Bill altogether. If we are to have this Bill—and we have already passed an important proportion of it—not in a mangled state but in operative form, then it is clear that this Clause, which is a pivotal one in the implementation of the machinery it seeks to set up, must stand. The only thing we can hope is that the general treatment of this matter in the way proposed in the other provisions of the Bill, by a mixed tribunal consisting of High Court judges and lay members, will, notwithstanding that it is a branch of the High Court, be effective to achieve the purposes which the President of the Board of Trade and the Government tell us they have in mind in order to promote the pubic interest in cases of restrictive trade practices.
§ 4.0 p.m.
§ Mr. Wilfred Fienburgh (Islington, North)
I do not propose to follow my hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels) in his totally inaccurate historical resume of the formation of the trade union movement. Indeed, I remember being asked, not long ago, to review a book on the structure of trade unionism written by my hon. and learned Friend, and, having found 49 errors of fact in the first 30 pages, I decided that the book needed not reviewing but rewriting, and I therefore consigned it to the ash-can, where 406 it lay for some time. We will, I think, leave these matters aside.
There is one question I wish to raise about this Clause and the Amendment. The more the lawyers talk about this Bill the more worried I become, as a layman, about the number of different instruments which are now being harnessed to the prosecution of the ending of restrictive practices. When we tally up the imposing list of authorities—Ministers, institutes and bodies of the law—we begin to reach a quite overwhelming total. There is the President of the Board of Trade, who will have some influence and power over ordering the regulation of the registration of restrictive practices; there is the Registrar, with the function of investigation, registration and, to some extent, prosecution—although we think that he has not enough power of prosecution; there are the ordinary courts of law, involved in considering any restrictive agreement in which patent law is involved, and, finally, the Restrictive Practices Court itself. We are now proposing to introduce the High Court, and, ultimately, we have the House of Lords, which is rather heavily involved in sorting out the provisions of the Bill.
§ Mr. Fienburgh
Yes, as my right hon. Friend reminds me, the Monopolies Commission will still be left with some slight powers even after the President of the Board of Trade has tried to emasculate it.
I wish to draw sustenance—as one so easily can in this Bill—from the words of the President himself. He put up a much better argument than I could for leaving this matter to be dealt with by the Restrictive Practices Court. In dealing with the question whether there should be a court or a tribunal, on the lines suggested by hon. Members on this side of the Committee, he said:Either we have a court of law, which is part of the judiciary, which is in that estate of the realm, which has the powers and privileges of the High Court, including powers with regard to contempt, and so on, or we have a tribunal which is answerable to a Minister."—[OFFICIAL REPORT, 12th April, 1956; Vol. 551, c. 411.]After the way in which the Committee dealt with our Amendments we are left 407 with the first alternative. In effect, by the definition of the President, the Restrictive Practices Court is also a court of law, part of the judiciary, which is in that estate of the realm, and has the powers and privileges of the High Court, including powers to deal with contempt. If that is so, why is it necessary to refer this point to the High Court? Why cannot it be left to the Restrictive Practices Court, which has all the powers of the High Court, and which should surely be able effectively to deal with the matter, without lumbering still another body on to the bandwagon which is attempting to deal with restrictive practices?
§ Mrs. Barbara Castle (Blackburn)
While the lawyers are falling out about this matter, I should like to refer to something which is puzzling my simple mind. This Clause strikes me as being completely absurd. We are here dealing with agreements which should never have been put on the register. There are only two ways in which agreements can get on the register, under the provisions of the Bill. The first is by the parties to the agreement furnishing particulars. We had a lot or argument about that obligation and phraseology yesterday. It is quite clear that the parties to an agreement will not furnish particulars about it if they do not think that it is subject to registration—so they will not be able to come along later, as aggrieved parties, saying, "Our agreement should never have been put on the register; take it off." There will be no appeals upon that basis.
The second way in which agreements can get on the register is by the Registrar serving a notice upon a party to remedy his default in not furnishing particulars. That intervention of the Registrar becomes effective only through its being backed up, where necessary, by an order of the High Court. If to furnish particulars is the same as to register—and we are told by the President that it is—the Clause is providing, in fact, either that the party who has volunteered his registration can appeal to the High Court and say that he should never have been registered, or that the High Court, having ordered a party to register, can afterwards be appealed to by him, on the ground that it should never have made that order.
408 The Clause is, therefore, providing for a situation in which either a party to an agreement is appealing against himself, or the High Court is being appealed to to annul its own order. I may be simple, or I may be talking sense, but I should have thought that that was a peculiar situation to get ourselves into. I cannot see why we have to bring in the High Court at all.
According to the interpretation of Clause 5, surely the decision whether an agreement is subject to registration is, first, the responsibility of the parties, and, failing that, of the Registrar, who should step in and force the parties to act. They will then be put on the register. There is no stigma about being on the register. The fact that agreements are on the register does not necessarily mean that they are contrary to the public interest. The process of deciding whether or not they are comes at a later stage in the Bill. I should have thought that the fact that an agreement was on the register, backed if necessary by an order of the High Court, produced a situation which did not in itself create injustice.
The question whether or not action should be taken against the agreement is a very different kettle of fish, and one which has to be dealt with later by the Restrictive Practices Court. But surely the two decisions could be merged into one, and be dealt with by the Restrictive Practices Court. When that Court examines an agreement on the register and decides whether or not it is contrary to the public interest, it will take into account the question whether that agreement falls within the terms of Clause 5. I see absolutely no reason for bringing in the High Court at this stage to rectify a grievance which will either have been created by the party appealing or by an action of the High Court itself.
§ The Parliamentary Secretary to the Board of Trade (Mr. Derek Walker-Smith)
I do not think that I should enter into the internecine warfare which broke out on the benches opposite upon the old subject of lawyers. The Committee may agree that, taken by and large, lawyers are good and necessary people in courts of law, and in dealing with matters of law. Whether they take an undue proportion of the time of the deliberations of the Committee is a matter upon which there may be two opinions.
§ Mr. A. J. Irvine
The hon. and learned Gentleman will surely distinguish between the wheat and the chaff.
§ Mr. Walker-Smith
I do not think that I want to be tempted into this delicate field.
In answer to what was said by the hon. Member for Hillsborough (Mr. G. Darling), I would point out that in regard to matters such as costs there is nothing in it in the issue which is before the Committee at present. Whichever court it may be, a party is fully entitled to appear in person—although, in practice, no doubt parties would more frequently be represented by counsel, and it would no doubt be the same counsel whichever court was concerned. So I do not think anything turns on matters of costs. Also, nothing turns on matters of appeal because, whichever court the appeal went to, the channel of appeal would be precisely the same.
§ Mr. G. Darling
Surely the hon. and learned Gentleman will agree that the more complicated one makes the legal procedure, the more chances there are of lawyers getting bigger incomes.
§ Mr. Walker-Smith
I am hoping to show in a moment that, on balance, this is the quicker and simpler method of dealing with the matter.
As the hon. Member for Edge Hill (Mr. A. J. Irvine) has said, this is a narrow point. I agree with him that it is an important point, but it is purely a point as to which, in practice, taking all the circumstances into account, will prove to be the better and quicker method. I think that the Committee is agreed that speed is one of the main objects of this exercise.
I would remind the Committee of the matters with which the court, whichever court it may be, will be dealing. It will be dealing with the matters defined in the first two subsections of Clause 10. First it will be dealing with the removal of particulars of agreements which have been wrongly registered either because they do not come within Clause 5 or because they should be exempted under Clause 6. Secondly it will be dealing with the determination in advance of whether or not agreements should be registered.
If I might deal with the point raised by the hon. Lady the Member for 410 Blackburn (Mrs. Castle) the dilemma which she suggests does not I am glad to say arise in practice. If she will look at Clause 8 (5 b), to which she did not refer the Committee, she will see how particulars could get on the register by the action of the Registrar, and give rise to an application by a party to the agreement as a person aggrieved seeking their removal.
In either of the tasks under those subsections, what the court, whichever one it is, will have to do is to construe the agreement or memorandum as defined in Clause 8 (3), possibly supplemented by further particulars under Clause 11 (2). That being so, the task which the court has to perform, as the hon. Member for Islington, East (Mr. E. Fletcher) observed, is not only a justiciable issue, but is actually concerned with a point of law because it is the construction of an agreement.
I rather part company with the hon. Member for Edge Hill in his analogies with ex parte applications and interlocutory proceedings in the High Court, because these are not quite that sort of thing. These are substantive questions of law, of construction of agreements, and they will not be made ex parte in five minutes at two o'clock, as the hon. Gentleman seemed to have in mind. They will be matters of substance, but they will be matters of law.
That being so, the next question that arises, it being a question of law, is: what is the most appropriate tribunal to decide it? Normally, questions of law are matters for the judges of the High Court, and that is the pattern which we propose to follow here. The Restrictive Practices Court will, it is true, be presided over by a judge of the High Court, but it will be a mixed court having lay members.
I agree with those hon. Gentlemen who presumed to differ from the hon. Member for Edge Hill that there will not be a useful task for the lay members in this function. This is the construction of agreements, and it would be a waste of time for these eminent laymen with knowledge and experience in commerce, industry, and so on, to be applying themselves to matters for which they are not equipped by training to deal.
§ Mr. Hector Hughes (Aberdeen, North)
What function does the hon. and learned Gentleman say that the lay members will perform? Will they sit there mute? Will they take no intelligent interest in what is going on? Will they leave the construction of the agreements entirely to the judicial member of the court? If so, why should they sit at all?
§ 4.15 p.m.
§ Mr. Walker-Smith
I think that the hon. and learned Member is under a misapprehension as to the side on which I am arguing. It is precisely because I want to save the lay members from the embarrassment of sitting mute and unhelpful that I agree with hon. Members opposite who have suggested that the appropriate tribunal here is the High Court and not the Restrictive Practices Court.
I think that the Committee has in mind an important point which was referred to by the hon. Member for Edge Hill, among others. It is true, as he said, that it is desirable for there to be a certain familiarity of background in the judges dealing with these matters. It is not for me to answer the precise questions raised by the hon. Member for Sheffield, Park (Mr. Mulley) as to the division of the High Court to which these matters should go. That is obviously a matter for the Lord Chancellor to deal with. I would, however, remind the Committee that there are precedents for nominated judges dealing with certain matters, thus ensuring that they have a proper familiarity with the subjects with which they are dealing.
There are, for example, three judges assigned to company duties in the Chancery Division, and there is one judge nominated for war damage cases in the Chancery Division. It would be open to the Lord Chancellor—this is entirely a matter for him—to nominate judges to deal with these matters. It would, in fact, be open to him, if he so desired, to nominate judges who are members of the High Court. He is entitled to do that under Clause 3.
I suggest that this is the best solution to the problem and that it avoids the possibility of loading the Restrictive Practices Court in the early stages with a lot of purely constructional work on agreements, points of law, and so on, 412 which would waste the time of the lay members and possibly retard the functions of the court in dealing with the cases which actually come before it.
There are obviously arguments on both sides, and we have thought very carefully about the matter, but we have come inescapably to the conclusion to which certain hon. Members opposite have come. In these circumstances, I hope that the hon. Member for Hillsborough will be satisfied with the explanations that I have given and will not desire to press his Amendment.
§ Mrs. Castle
Will the hon. and learned Gentleman clarify his answer to me? I am more puzzled than ever. Did I understand him to say that the answer to the dilemma to which I referred is in Clause 8 (1, b)?
§ Mrs. Castle
Would the hon. and learned Gentleman mind explaining that a little more clearly, because I do not see how it deals with the point at all?
§ Mr. Walker-Smith
Clause 8 (5, b) gives power to the Registrar in certain circumstances to treat particulars as if they had been furnished to him. That means that he is then entitled to put them on the register albeit that they will not have been furnished by the party to the agreement. If the party to the agreement then says, "I did not furnish those particulars because I thought, as a matter of law, that the agreement did not come within the provisions of Clause 5," then the method of adjudicating upon that would be under Clause 11 (1).
§ Mrs. Castle
Does that not raise the point that this can only be done upon the authorisation of the High Court? Will it not be a question of the High Court wiping out a decision of the High Court? Will the hon. and learned Gentleman answer that question?
§ Mr. G. Darling
I cannot say that I am satisfied with the Parliamentary Secretary's answer, especially on the last matter. The point raised by my hon. Friend the Member for Blackburn (Mrs. Castle) ought to be answered.
I am concerned to make the procedure as simple as possible for everybody. I would like the situation in relation to 413 the work of the Restrictive Practices Courts to be such that little groups of ordinary firms with agreements which they want to make sure are not against the public interest could go to the Court without the benefit of lawyers. They should be able to express themselves and every facility should be given to them. I cannot pursue that at this stage.
I want to make this as simple as possible. I do not want it to become a complicated piece of legal procedure under which the lawyers alone—and I say this deliberately—will find happiness. I think that, in spite of the explanation we have had, this is an unnecessarily complicated legal procedure. In these circumstances, although I do not think that we ought to press the Amendment to a Division, I hope that the hon. and learned Gentleman will understand me when I say that I cannot withdraw the Amendment.
§ Mr. Jay
I would ask the Parliamentary Secretary to make a little more clear his answer to my hon. Friend the Member for Blackburn (Mrs. Castle). As I understand Clause 8 (5, b), it applies entirely to a case where default has been made in registration. It says that if there is such a default, then the Registrar maytreat as particulars duly furnished to him under this Part of this Act any document or information in his possession relating to the agreement.It appears from that that the Registrar may. in these circumstances, properly enter on the register information which would not normally be registrable under the Bill. If that is so, does it mean that the person who has defaulted may go to the High Court and argue that that information should be removed because it is not in the normal definition of the Act subject to registration? It appears to me as a layman rather odd that if the Registrar is in order in entering information not subject to registration, it can then be immediately removed for that reason.
§ Mr. Walker-Smith
I do not want to go into the technicalities of these matters. Subsection (5) is dealing simply with the default of furnishing particulars, and the application to the High Court then made by the Registrar could, in my judgment, be an ex-parte application of the sort referred to by the hon. Member for Edge Hill (Mr. A. J. Irvine) and then the 414 particulars would be upon the register. If the parties want a question of law argued not ex-parte but with both parties present or represented, the procedure under Clause 10 (1) would arise, or in the more frequent case where the Registrar, having been notified by the parties that a question of law does arise—in other words, they are taking the point that the agreement is not within Clause 5—then it would be argued under subsection (2). I am sorry if I expressed myself in a rather compressed way and did not make the point clear on a former occasion.
§ Amendment negatived.
§ Mr. Peter Remnant (Wokingham)
I beg to move, in page 9, line 17, after the second "the" to insert "variation or".
§ The Chairman
I think it would be convenient if this Amendment and the following Amendment were considered together.
§ Mr. Remnant
Subsection (1) of this Clause is limited in a way that is not only unnecessary, but is unwise as well. First, it obviously appears to be restricted to agreements which are not subject to registration under the Bill. It is not a difficult task to visualise instances in which it may be required, quite rightly, to make alterations in agreements which are registrable.
For instance, a person's name may be included as a party to an agreement which is properly registrable and he himself may claim that he has ceased to be a party to that agreement. It would seem to me right that he should be able to go to the Court and ask for his name to be deleted from the agreement. It may be that wrong particulars have been supplied. I am not suggesting that they would have been registered intentionally wrongly, but the party responsible for sending the agreement to the Registrar may not have had in his possession all the facts, or they may have been included inadvertantly, and in those circumstances also it would seem right that there should be the opportunity of correcting them before they are judged by the Court.
The second thing which strikes one forcibly is that this subsection only gives permission for the removal of particulars, and I should have thought it was plain that there ought to be permission for the particulars to be varied as well as 415 removed. If my right hon. Friend and the Board of Trade are influenced in any way by precedents, there is a precedent for this in the Patents Act, 1949. I do not think I need say any more to explain the object of these two Amendments. The first Amendment cured the ills referred to, and the second one is purely consequential.
§ The President of the Board of Trade (Mr. Peter Thorneycroft)
My hon. Friend the Member for Wokingham (Mr. Remnant) points out what I think are perfectly fair criticisms of the Clause as drafted, and I think that his argument will commend itself to the Committee. If it is reasonable that some procedure should be there for rectifying the register—I think it is plain that we must have procedure for rectifying the register—then it is sensible that the rectification of what is recorded should apply to both the registrable and unregistrable part of any agreement. It would be a gloomy thing if we left it that the only method was to remove it. It may be that what is wanted is some variation in the terms, and these Amendments make it possible to achieve that in this Clause.
§ Amendment agreed to.
§ Further Amendment made: In page 9, line 18, leave out from "agreement" to end of line 19.—[Mr. Remnant.]
§ Mr. Charles Doughty (Surrey, East)
I beg to move, in page 9, to leave out lines 43 and 44 and to insert:shall be served, in accordance with rules of court—As we have heard in the course of the discussion on this Clause, there is power both for the Registrar and for the parties interested to make application to the High Court for the cessation, removal or variation of any particular agreement that has been registered or not registered.
and any party on whom notice is so served.
- (a) in the case of an application by a person other than the Registrar, on the Registrar;
- (b) in the case of an application by the Registrar, on the parties to the agreement or such of them as may be prescribed or determined by or under the rules;
When that application is made, it is only right and proper that all the parties interested should have the power of appearing before the Court and being heard in support of or in opposition to 416 the application. As the Clause is drafted, notice of any application to the Court other than application by the Registrar shall be served on the Registrar. There is no provision in the case of an application by the Registrar of notice being served on the parties interested which must consequently follow upon the application by the Registrar.
The Amendment provides for that particular set of circumstances, and it sets out in full what the procedure should be in either case. In the case of any application by persons other than the Registrar, notice would be served in accordance with the rules of the Court on the Registrar. He will receive an application and will appear, if he thinks fit, to express his views to the Court.
In the case of an application by the Registrar, the question has to be considered on whom that notice of application should be served. In such circumstances, it should be served on such parties interestedas may be prescribed or determined by or under the rules.It is necessary to leave it in that form because there may be a large number of parties every one of whom may not be known to the Registrar, and every one who is known or can reasonably be found out is sufficient for the purposes of this Clause. All such persons should be entitled to be heard and then the Court may have the full facts and submissions before it.
§ Mr. P. Thorneycroft
Again, I hope that the Committee will accept the Amendment, because it is clear that this should be a two-way arrangement. Where the application is by a party he can serve notice on the Registrar, and if the application is by the Registrar he should serve notice on the party. That seems a reasonable arrangement. There are certain complications which arise from the fact that there may be a large number of parties and some may be unknown to the Registrar. That is why, in paragraph (b), my hon. and learned Friend leaves the precise arrangements to be prescribed for under the rules.
§ Amendment agreed to.
§ Further Amendments made: In page 10, line 1, after "Scotland", insert "and Northern Ireland respectively".417
In line 3, at end add:
or the High Court of Northern Ireland ".[Mr. P. Thorneycroft.]
§ Clause, as amended, ordered to stand part of the Bill.