§ Mr. Jay
I beg to move, in page 13, line 10, at the beginning, to insert:(1) Subject to subsection (3) of this section as from the expiration of eighteen months from the passing of this Act the agreements particulars whereof are registered under Part I of this Act shall be deemed to be contrary to the public interest and unlawful in respect of such of the restrictions mentioned in section five of this Act as are mentioned in subsection (2) of this section and such order may be made in respect of the said restrictions as might be made if the said restrictions were restrictions determined to be contrary to the public interest under the provisions in this Act contained but no criminal proceedings shall lie by reason of the said agreement being made unlawful as hereby provided.455(2) The restrictions referred to in subsection (1) of this section are restrictions which have the effect of requiring that—
- (a) suppliers of any goods shall discriminate in favour of certain buyers whether by an agreement to sell exclusively to the said buyers or to sell to them at a preferential price or otherwise howsoever, or
- (b) buyers of any goods shall discriminate in favour of certain suppliers whether by an agreement to buy exclusively from the said suppliers or otherwise howsoever, or
- (c) suppliers of any goods shall not sell without imposing on the buyer certain conditions whether for the maintenance of prices on resale or for other purposes, or
- (d) suppliers of any goods shall give a rebate to some or all the persons buying from them calculated on their total purchases from some two or more of the said suppliers, or
- (e) a process shall not be applied to the goods of certain persons or that a process shall only be applied to the goods of certain persons on terms or conditions which are less favourable than those applicable in the case of other persons, or
- (f) restrictions offering to any person rebates calculated as rates dependent on the total value of work done for that person by two or more of the parties to any agreement mentioned in subsection (1) of this section.(3) The Court shall have jurisdiction on the application of any party to an agreement under which the said party accepts any restriction mentioned in subsection (2) of this section to declare that such restriction is not contrary to the public interest and the said restriction shall thereupon take effect accordingly.(4) The Board of Trade may at any time by order provide that any restrictions referred to in section five of this Act shall be a restriction to which the provisions of subsection (1) of this section apply and the power of the Board of Trade to make orders under this subsection shall be exercisable by statutory instrument; and an order under this subsection shall be of no effect until it is approved by resolution of each House of Parliament.I am grateful to you, Sir Charles, for calling this Amendment, because it raises one of the major issues which we want to put before the Committee in our discussion of the Bill. It is perhaps a relief to hon. Members to come to a point of substance after dealing, as best we can, with a large number of detailed points.
The purpose of this Amendment is to speed up the procedure of the Bill by making unlawful at a definite date—we suggest 18 months after the passing of the Bill—all those forms of collective discrimination which were examined by the Monopolies Commission in its inquiry on that subject, as defined in paragraph 29 456 of its Report in six categories, except those on collective resale price maintenance, which are included in the Bill.
The Commission recommended that this group of practices should be generally prohibited. In this Amendment we are seeking to carry out the main recommendation of the Commission. Incidentally, I think that this is perhaps our main difference with the President of the Board of Trade over the Bill, apart from the question of the Court and the Commission.
During the Second Reading debate, the right hon. Gentleman was a little inclined to misrepresent what other people were saying on one or two points, although he has not done so since. Therefore, I want to clear up two points straight away. First, the right hon. Gentleman seemed to misrepresent the recommendation of the Commission. He said in his Second Reading speech that the Commissiondid not recommend outright condemnation, but recommended instead an inevitably elaborate procedure for licence and exception."—[OFFICIAL REPORT, 6th March, 1956; Vol. 549, c. 1940.]This carried the implication that what the Commission recommended was more like what the right hon. Gentleman was doing. Yet what the Commission actually said in paragraph 246 was this:We believe it follows logically from the conclusion that these practices operate generally against the public interest that they should be generally prohibited.Again, in paragraph 249, the Commission said about the practices we are dealing with here:…We believe that all the practices falling within our reference should be prohibited by law, provision being made for exceptions on grounds which would be set out in the legislation.Those are the two relevant quotations. Certainly, we agree that there must be some procedure for exceptions, but I submit that it is wrong, in view of those two quotations from the Report, to say that the Commission did not recommend outright condemnation. It did, and we accept that recommendation.
Secondly, the President in the same speech also misrepresented what we on this side of the Committee are putting forward. As far as I could make out, the right hon. Gentleman had so made up his mind that we on this side wanted to make certain restrictive agreements a 457 criminal offence, that no matter how often we told him we did not want to do so, he insisted on continuing to say that we did.
The right hon. Gentleman seemed to me to suffer from the strange delusion that we could not make any practices unlawful by a certain fixed date without making them a criminal offence. Indeed, as I listened to the right hon. Gentleman, I almost wondered whether the reason that he had decided to leave prohibition out of this Bill was because he had somehow been persuaded that it could only be put in by making the corresponding practices a criminal offence. He said a great deal about the odour of criminality.
This was a curious delusion because what we seek to do, though on a different group of practices, is precisely what the President is himself doing in his own Clause 19. That is not with reference to what we are not now discussing, but to collective resale price maintenance. But the Clause states, in subsection (1), that that group of practices shall be "unlawful," and it goes on, in subsection (6), to state thatcompliance with this section shall be enforceable by civil proceedings on behalf of the Crown for an injunction or other appropriate relief.That is precisely what we wish to apply to the wider group of practices, so I can only suppose that the President, in his argument on that point, had not really fully appreciated what was in his own Bill.
Anyway, what we propose, to put it simply, is that, first, the practices condemned by the Report of the Monopolies Commission on collective discrimination should be declared unlawful at a date eighteen months after the passing of the Bill. They should be declared unlawful in the same sense as the President wants to declare collective resale price maintenance unlawful under Clause 19.
Secondly, we say that a prima facie case would have to be made out by that date before the Commission by a party to a practice if the practice was to continue after that date. We agree that the Commission says that that would have to be done. Thirdly, in the case of the wider group of practices which were not covered in the Commission's Report but are covered by Clause 5, we accept the general registration procedure proposed by the President but improved in 458 the way we have been trying to induce him to improve it in recent days.
On the main issue before us as to how to deal with the restrictive practices, there are really two views which are possible. Admittedly, there is a great deal to be said for both of them. The first view is that the best procedure is to declare restrictive practices illegal by a certain date unless, before that date, a case has been made out for exemption. The second possibility is to let all the restrictive practices go on until a case has been made out against one or the other of them individually. That is the dilemma in which we all find ourselves.
My hon. Friends and I take what I submit is the commonsense compromise view, that we should, first, apply the first, and tougher, procedure to the group of practices which has already been generally condemned by the Commission after an inquiry of several years' duration, and, secondly, that we should apply the more protracted and less tough procedure to the wider group which has not yet been examined and condemned. That is a summary of the view that we take.
One thing is perfectly clear whether we proceed on our lines or the lines proposed by the Government, and that is that our proposal must be a speedier way of dealing with the worst practices. It may be too summary, and I will say a word about that in a moment. Whatever the Parliamentary Secretary may have said, I think the Committee must agree that our proposal represents the speedier method. After all, if we say that the worst cases shall be illegal by a certain date—we suggest 18 months after the Bill becomes an Act, but we are not dogmatic about that period; we should be content with a reasonable fixed period after the passing of the Bill—it must be a speedier method of dealing with the matter except perhaps for a very few practices which may have gone through the procedure of registration and condemnation under the President's proposals by the expiration of 18 months from the passing of the Bill, and I should have thought that very few would do that.
I will give one illustration of how the period proposal would apply. The President knows, because he has had evidence of it, that there is a group of restrictive practices operating at present in the retail tobacco trade. Information has been 459 sent to me by one independent firm to show that it is being prevented from marketing its cigarettes in any retail shops because the Imperial Tobacco group, which markets 80–85 per cent. of the cigarettes now sold, takes the view that it does not wish this competitive brand to be sold.
What is happening at the very time we are discussing these matters is that any tobacco retailer who sells the competitive brand finds, after a few hours—in one case it was a few minutes after putting the cigarettes in his window—that certain people, called inspectors, from the Tobacco Trade Association arrive and tell him that if he continues to sell the cigarettes the great bulk of his supplies will be withheld and he will be put out of business. One retailer in the North of England defied this restrictive practice and has been put out of business as a result.
When the managing director of this independent firm first read about the President's Bill, he said, "This is a fine thing. As soon as the Bill is passed, all this will stop." Then he read the speeches from the Opposition side of the House during the Second Reading and he realised that it was not as simple as that at all. He asked me whether I could tell him the date by which the practices of the Tobacco Trade Association would become illegal. I could not tell him. I addressed a Question to the President, but he was unable to tell me any date by which the practices would be stopped. That is the position as the Bill now stands. Under our proposals—I mention this to make the argument concrete—we could say to that firm and to retailers who are threatened with victimisation that the practices would be stopped 18 months after the passage of the Bill.
We have been able to make a little progress, at any rate in the matter of registration. The Parliamentary Secretary has now assured us—at any rate, he has more or less assured us—that within one month of the passing of the Bill he will call for the registration of a wide group of practices, and that three months after he has made the Order, if that is the correct way to describe it, he hopes that registration will take effect.
460 All this means is that we now know, or think we know, that by four months after the passing of the Bill a certain group of practices will have got as far as registration. Of course, nothing will by that time have gone before the courts, unless things move much more speedily than anyone has suggested, and nothing will actually have been prohibited.
Consequently, it is clear that the procedure that we propose, whatever other objections there may be to it, must operate far more speedily than the method that the President has in mind. It may be said, as the Parliamentary Secretary said on Second Reading, that when Henry VIII cut off people's heads, it was speedy but it may not have been just. I agree with him that we have to ask whether the method is not merely summary, but fair.
However, when we get to that stage of the argument we have to remember a vital point which has not been very much emphasised so far in our discussions, and that is that the Commission, when it was faced with precisely this major dilemma and decided to favour our alternative, described the President's alternative as cumbersome, slow and unfair. It thought it unfair for this reason. If we go stage by stage and step by step, inevitably at any given date we have condemned, outlawed and terminated certain restrictive practices in one industry or one type of trade, but those practices may be operating in another trade at the same moment and they may continue to operate there for a long period.
I do not think that the President will disagree that in the case of the match industry the Commission was divided as to what recommendations it should make. Some members of the Commission said, "This ought to be condemned". Other members said, "This is quite wrong, but one cannot condemn it in the match industry because many other people are doing it; it would be quite unfair to stop it in one industry and not in others." For that reason, the Report was not nearly as drastic as it might have been.
It may be said that, in spite of that, the outright prohibition procedure would be bound to be too summary for a certain reason. I agree with the President that, whatever we think, this is the heart of the difficulty. It may be argued that if the Commission, as we would suggest, is 461 to hear all cases proposed for exemption within as short a period as 18 months, either the examination will be perfunctory or, if it is not, the Commission would be snowed under by work and the Minister will be snowed under by applications and appeals.
I mention the Commission here, because we are proposing that it should do the job. According to our whole scheme throughout the Bill, it would be the Commission. I agree that if some of our Amendments were accepted and others were not, it would be the courts which would do it. It is slightly difficult to conduct this argument, but it is our view that the Commission should do the job.
It seems to us that, although it would certainly be a hard job, it would not be unmanageable. Let us remember that we are not proposing to apply this to the whole vast field covered by the Bill and by Clause 5. We are merely proposing to apply it to the much more limited field covered by the Commission's recommendation. That limits the field. Even within that field, I think it is clear that if we were working this more drastic and more speedy procedure, a great many of those responsible for the agreements would do what we agree some of them do even under registration, and that is terminate their agreements and not go through the time and trouble of coming forward and trying to make out a case.
Thirdly, the Commission—we are proposing that the Commission should be doing the job because that is the substance of our case on this point; and surely it would be practicable for it to do so—could rule out all cases as soon as there was a general prohibition where there was not a strong prima facie case for making an exception. That would limit the scope of the work a little further.
Finally, I would have thought that we need not be so frightened here by the President's argument that, in these circumstances and if we try to speed up the procedure by bringing this before an improved and enlarged Commission rather than a Court, there would be continued appeals to the Minister and the whole process would break down at that point. We have already pointed out that the Minister, in these circumstances, does not 462 have to deal with every single case personally. It would, of course, be necessary—I fully grant this to the President—and the Commission said so—under this sort of scheme of things for the Commission, or whatever body was considering the exemptions, to grant interim exemptions in certain cases where a prima facie case had been made out, and some would have to be granted.
It may be argued—and this I think is the point of the argument to which we are all led—that even after all this there may be some residue of hardship, because there will be some traders in some industries who will be compelled to desist from their agreements without a very full and elaborate inquiry having been carried out. I would not deny that it is impossible to say that there may not be some residue of hardship of that kind, but I think that we really get the perspective all wrong if what we ask ourselves here in this Committee is: will there be any hardship at all to the producers involved in this procedure—will there be much, just a little, or absolutely none?
The real issue surely is: does that residue of hardship, if it exists, which falls upon the producers and traders carrying out these agreements, really outweigh the hardship now suffered by the consumers due to the continuance of the agreements? I think that to get this into perspective we must look at it in that way. It seems to me that in this country, due no doubt to the conditions of the 'thirties and of events which we well know, that the producers have had a good run in all these matters and the consumers have had remarkably little say and remarkably little influence on what has been going on. I think that we have to weigh the hardship of those who may suffer from the continuance of these agreements on a large scale against the hypothetical, small hardship to some of the producers and traders who may suffer less.
Do not let us suppose that it is only the final consumer, the housewife, who is suffering from the continuation of these agreements. After all, in the case of the tobacco retail trade conditions which I have described, it is some of the small retailers themselves who are suffering just as much as the public as a result of these restrictive practices. Therefore, we feel that on the final margin of doubt 463 here, it is time that the Committee and the House gave the benefit of the doubt to the consumers and those who have been injured rather than benefited by these restrictive practices.
For that reason, we commend the Amendment to the Committee as likely to do more, I think, to strengthen and make more effective the President's Bill than most of our previous Amendments.
§ Mr. P. Thorneycroft
As the right hon. Member for Battersea, North (Mr. Jay) said, this is an interesting Amendment. It raises a difference in approach to the various methods, not, I think, a difference in aim but a difference in method, as to how these matters should be dealt with.
What I hope to establish about the right hon. Gentleman's method is this. First, that it would be a very difficult method to apply in practice. It would certainly take just as long as the method described and it would, in fact, be putting the cart before the horse inasmuch as it would make certain that the less important things were discussed and considered before the more important things. The whole question of whether it is drastic or not or whether there is more hardship or not so far as hearings are concerned is quite irrelevant, because the provision for hearings under his method—except that he puts in a Commission instead of a Court which, no doubt, we shall discuss when we come to that part of the Bill—despite the nominal 18 months' period would be precisely the same under his arrangement as under the arrangement in the Bill.
I am grateful to the right hon. Gentleman for putting down the Amendment. I am glad that we have an opportunity of discussing it, because it gives me the opportunity of demonstrating the difficulties of any approach to this complex matter other than that outlined in the Bill. The right hon. Gentleman based himself to some extent upon the Report of the Monopolies Commission. Incidentally, the Commission was divided on this issue as well as on the other ones which he mentioned, and the majority Report came down in favour of something rather like that which he has been proposing to the Committee.
464 I say "rather like" it. The Commission was much more specific and definite and approached the matter with rather more clarity than did the right hon. Gentleman. The Commission says—and the right hon. Gentleman mentioned that I had mentioned criminal offences—in paragraph 248:Legislation of the type we propose would create a new criminal offence.The right hon. Gentleman—let me be absolutely fair about this—does not say that. The Commission went on to say:It is important, therefore, that the prohibited practices should be clearly defined, so that the business man would know exactly what he might and might not do.7.0 p.m.
Leaving aside whether prohibiting a practice, and presumably imposing penalties for doing it, is technically a criminal offence—I do not want to draw the Committee into a debate on that matter—I think that what is important is that where we are prohibiting these things, they have to be defined with meticulous accuracy. I wonder whether any hon. Member of the Committee who listened to our debates on Clauses 5 and 6 as to what should precisely be included or excluded even from the field of registration, imagines that we, as a Committee, are at this moment in a position to define clearly and accurately the range of offences which shall be absolutely prohibited? I do not imagine that there is a single hon. Member who believes that such a thing is possible today. If they were to be outlawed tomorrow morning, the debates on Clauses 5 and 6 would have been prolonged for a very long time.
We were there discussing arrangements which should be registrable and subject to examination, but this would go much further. The scheme suggested by the right hon. Gentleman is this. He says, "Legalise the range of these arrangements for 18 months. Say that they can carry on. And then, at the end of 18 months, say that the guillotine must fall and that they are rendered unlawful."
§ Mr. Thorneycroft
I am not saying that they would be. I am talking about what is done by the Amendment. The right hon. Gentleman need not be 465 ashamed of his Amendment. I am not saying that these arrangements should be outlawed tomorrow morning, but we must look at the Amendment and discuss it.
The right hon. Gentleman says that we should render these things lawful for 18 months and that at the end of that period the guillotine would fall and they would become unlawful. But he knows, as I and every hon. Member knows—and as is admitted in the Amendment—that that would be utterly unworkable and unacceptable to any section of the public. Therefore, very properly, the right hon. Gentleman provides a let-out in subsection (3) and says that under that subsection an application may be made to the Court or the Commission—I am not discussing now whether it should be a Court or a Commission—to allow them to carry on.
If we are to have an application of that kind, we must lay down some criteria, or else the process would be interminable. I can only imagine that the criteria which the right hon. Gentleman would lay down would be something—I am not pinning him to a precise definition—on the lines of Clause 16. Perhaps a little narrower or a little wider, but something like that.
Under the Bill, the arrangement is that the practices must be registered and then must be considered by the Court in the order laid down, or which can be laid down by direction of the Board of Trade. Under the right hon. Gentleman's scheme, instead of the registration of particulars, we should have an application to carry on the arrangement, made under the provisions of subsection (3). But it seems to me that the one is the exact equivalent of the other. We may call it something different. It means that if anyone wishes to carry on an arrangement under the Bill, he has to give particulars and register it, or under the scheme he must make his application. There are different procedures, but the effect is the same in both cases.
I am not quarrelling with it. I consider it perfectly right that any man, or body of men, who have an arrangement of this kind which they think ought to be allowed to carry on can come before the Court—or the Commission or whatever it is—to have their case argued on the basis of some criteria which has been laid down. But is it to be assumed that an application to carry on, made 466 under the scheme of the right hon. Gentleman, will ensure that these things will be dealt with any quicker? It cannot be so assumed. What will decide the speed is the speed of the Court—or the Commission or whatever it is—in either case. On that we may have disagreement as to whether it be a lay tribunal or a judicial tribunal, but there is not the slightest difference, so far as speed is concerned, between the suggestion of the right hon. Gentleman and any other suggestion.
§ Mr. Thorneycroft
I give the right hon. Gentleman credit for this. I am quite certain that he is not suggesting to the Committee that he fixes an 18-month period; and that if at the end of that period—because they happened to be lower down in the list by chance—a certain number of cases had not been heard, then, without any hearing whatsoever and irrespective of whether these arrangements are for or against the public interest, they would be outlawed. I know that the right hon. Gentleman is not suggesting that. Nor would it be suggested by the Monopolies Commission or by any sensible person. So, as I say, there is really no difference whatever so far as pace is concerned.
There is a great difficulty, which I think was recognised by the majority of the members of the Commission, but not recognised to the full by the right hon. Gentleman, about the exact definition of practices which would be banned. After all, there is a worse flaw in this Amendment, and this is where I think it is open to rather severe criticism. This Amendment takes the group of practices concerned with collective discrimination and would outlaw them. I put it to the right hon. Gentleman: is not that putting the cart before the horse? The great number of these collective discrimination practices are enforcement practices. Will it not be better to allow us to get on with the examination of the price rings themselves?
This Amendment makes it absolutely sure that, whether it is a Commission or a Court, it will be cluttered up by 467 having to deal with methods of enforcement while the reality is hidden behind. A period of 18 months is referred to, but in my estimation that is "eyewash," because anyone who is not heard within the 18 months must have an opportunity of being heard afterwards. It would make certain that until we have been through the whole range of these practices—which on any definition will be a very large number—a number of practices, not least common prices, are to be allowed to carry on in the ordinary way without any examination or check.
§ Mr. Thorneycroft
When we come to the appropriate Clause, I shall argue the reasons for doing so and the right hon. Gentleman will have the opportunity of advancing any criticism.
I am interested to know from his interjection that this is the purpose of the Amendment, and it seems to me an unfortunate purpose. I hope that the Committee will wish to get on with this job and to tackle the price rings, and the common price-fixing arrangement, and all the rest. I think that we should tackle them at the same time as—certainly not after—the methods of enforcement. I do not think that the right hon. Gentleman has faced the real difficulty of definition in these matters, if it is imagined, after all the intricate arguments on Clauses 5 and 6, that we are really in a position to isolate certain practices and define them with the precision necessary to outlaw them altogether.
For that reason and because, in any event, on any approach to this every member of a mutually restrictive arrangement will at some time have to be given an opportunity for arguing his case, whether for or against the public interest, so that it will take as long; and last, but by no means least, because it fairly and squarely puts the cart before the horse, I hope that the Amendment will be rejected.
§ Mr. Wade
I should like to make one or two observations which are relevant to 468 the Amendment. I wholeheartedly agree with the President in his remarks about price rings. There is no doubt that they should come first. In fact, if price rings were banned, many of the other restrictive practices would fall to the ground. Whether or not one adopts that rather ruthless procedure—I think that it has been adopted in Canada—price rings should come first on the list, or very high on the list.
The problem which faces the Committee is the fact that no one knows how long will elapse before the Court hears and decides upon agreements which are placed on the Register. There is at least a prospect that that might take a very long time. That will be unfortunate for two reasons. In the first place, it will delay the putting into effect of the policy which the President has advocated, and, in the second place, it will create a certain sense of injustice on the part of those who are brought before the Court first.
One has heard similar complaints about procedure before the Monopolies Commission. One is asked why a particular industry should be picked on and not others. That complaint is inevitable in a case-by-case procedure. Our problem is how to be fair, while not at the same time encouraging delay, and by that I mean encouraging lengthy legal procedure, the parties taking part knowing that the longer the case takes, the longer it will be before their friends come before the Court.
It is true that the President has gone some way towards meeting our point of view by agreeing that additional judges should be appointed, but we are still left in a state of uncertainty about how long the Court will take to dispose of a batch of agreements which have been registered—and it may be a very large batch. There is one possible solution. There is no perfect solution which I can see, but I put this forward as a suggestion.
When a batch of agreements is registered, I suggest that by a specified date they should be banned, or no longer permitted; perhaps "made unlawful" is the appropriate term. Hon. Members may say that that is unfair to those who feel that they have good grounds for exemption. One might overcome that difficulty by allowing parties to an agreement which has been registered to file pleadings. That would amount to pleas 469 in which they would give their grounds for applying exemption.
The court would then be entitled to decide whether there was a prima facie case merely on the pleadings. That would not involve a great deal of time or administrative difficulty. That would be fair to those who were waiting to be heard and who were convinced that they had a good case. An order might be made that there was a prima facie case and they would be allowed to continue until their case was heard. That would have a twofold effect. It would overcome injustices which might be suffered by those who want to be heard and happen to be lower down the list, and it might encourage firms to apply to be heard rather than to wish to delay.
§ Sir L. Joynson-Hicks
I have been following the hon. Member's argument very closely, but I cannot see how it applies to the Amendment. I do not see how he is applying his argument to this particularly procedure.
§ 7.15 p.m.
§ Mr. Wade
At the outset I said that I hoped that my observations would be relevant to the discussion on the Amendment. Perhaps it would have been fair to say that I was not entirely satisfied that the Amendment would be workable or practicable. As the discussion has gone rather wide, and as the President discussed the general issues, I hope that I am not too much out of order in putting forward an alternative.
I put this alternative, recognising that it is extremely difficult to find an entirely satisfactory solution which will be fair to the parties while not encouraging delay. I am not satisfied that the President appreciates the dangers of long delays and lengthy proceedings before the Court. I hope that before we leave the Clause he will bring his mind to bear on this possible defect, which may go some way to undermining the effectiveness of the Bill and which arises from the length of the proceedings before the Restrictive Practices Court.
§ Mr. John Cronin (Loughborough)
The President produced some very interesting arguments against the Amendment, but I doubt their validity and I am sure that my hon. Friends will feel very much the same. He quoted paragraph 248 of the Collective Discrimination 470 Report of the Monopolies and Restrictive Practices Commission to suggest that the definition of restrictive practices to which the Amendment refers was rather too loosely drawn. He said, quite rightly, that it is important that prohibited practices should be clearly defined so that a business man might know what he might and might not do.
The President should have continued to read that paragraph, because he would have found in the next sentence:At the same time, the definition should not be too narrowly drawn, or there would be opportunities for the exercise of ingenuity in evading prohibition by arrangements falling technically outside its scope but having the same effect as those prohibited.No doubt it was through inadvertence that the President did not read that sentence.
That is the crux of the matter. The phrase "restrictive practices" as defined in the Amendment is exactly what is required of a definition. It is quite clear and anyone who practises this type of restrictive practice will know clearly whether he is falling within the scope of the Amendment or not. The President made considerable play with the circumstance that within eighteen months from the passing of the Bill, various restrictive practices would become illegal and up to eighteen months they would be legal and that there would therefore be a sudden guillotine effect.
I submit that that must be the case, whatever happens, in any legislation. There must be a given moment when the practice suddenly becomes illegal. Surely, the circumstances suggested by this Amendment—a period of eighteen months—show the maximum leniency and consideration for the convenience of the restrictionists involved? It gives them the opportunity to clear up their affairs and also their restrictive practices, without causing some sudden shock to their businesses or trade, as the case may be.
I thought the President was on a more valid argument when he suggested that the speed of the Court will decide ultimately what happens, and that there is no real difference between his procedure, which is that the Court should take the registered practices in rotation, and the procedure recommended by the Amendment, which is simply that certain practices are to be declared illegal, but there 471 is a right of appeal to the Court. Prima facie, it would seem that that might be exactly the same thing, but, on a comparatively elementary analysis, I think the Committee will agree that there is a very big difference.
The first difference is psychological, and very important, because under the terms of the Amendment every restrictionist will have a clear idea of what is legal and what is illegal, and the chances are that he will abandon that particular form of restrictive practice. Under the Bill as it stands without the Amendment, the restrictionist will always have a hope that the practice, when registered and ultimately considered by the Court, will be able to escape through one of the numerous loopholes.
Here there are no loopholes. There are various types of restrictive practices which are very clearly defined, and the proposal has the very significant advantage that every industrialist and potential restrictionist, every supplier, processer or retailer, will know exactly where he stands, apart from a few very infrequent and rather marginal cases, which will no doubt make use of subsection (2) which permits them to apply to the Court for relief. Therefore, I think that the suggestion that there is a similiarity between the two procedures is not really valid.
The President also made a very emphatic point that we on this side of the Committee were putting the cart before the horse. He pointed out, perfectly correctly in this sense, that the Amendment proposed by my right hon. Friend the Member for Battersea, North (Mr. Jay), outlaws or declares illegal only the enforcement of the practices, and leaves out of consideration for the time being price rings and common price arrangements. I agree with the President, and I think this is a very valid point. Common price rings are much more fundamental and a more serious aspect of the whole subject than merely the manner in which they are enforced.
I cannot see any objection to dealing with the one rather than the other. Here we have a case in which the restrictive practices mentioned in the Amendment have already been tried and considered by a very experienced and effective court—the Monopolies Commission. That 472 makes quite a difference, and if we have effectively disposed of one type or one group or groups of restrictive practices, if they have been carefully tried, why should we ignore the verdict of the tribunal? Why not accept that verdict which, of course, is the purpose of the Amendment?
I suggest to the President that it does not matter very much whether we put the cart before the horse or not when we are putting both the horse and the cart on a train, which is what we are doing here. We are dealing with restrictive practices and eliminating them as far as possible, and the circumstance that some are eliminated before others does not seem to me to be very important.
I think there are other questions which we ought to consider, and one is the danger that is dealt with in this Amendment. One does not want to digress into a Second Reading speech, because if one did not restrain oneself, this Amendment would commend itself to that course. The great difficulty, as the President will agree—indeed, I think he has said so on several occasions—is that there will be considerable delay, and that all these restrictive practices will have to go through a rather slow and tedious mill. They have to be carefully ground by the mills of justice, and in the process it is quite inevitable that the intention behind this Bill will gradually merge into the mists of the past. I think it is quite inevitable that we shall reach a situation in the years to come when judgments will be given on these cases which will be of a type certainly not contemplated by us at the present time.
First, we have a most extraordinary and unusual kind of court, which will have lay members, who will be drawn from industry. They will be people with no legal training, who will have a deciding voice as far as these practices are concerned. There will be a court of appeal, and from there the right of appeal to the Law Lords in another place. All the time, inferior courts will be bound to accept finally the decisions of the superior court, so that it is quite inevitable that a situation will develop completely different from what we now envisage. At least, if we accept the Amendment for a certain section of the subject, we will have absolute control, because the words are quite specific. They will be construed by the judges in their 473 grammatical and literary sense, and everyone concerned will know exactly where they are.
I feel reluctant to talk too much about what happens in other countries, but I should like to mention briefly this point. It is, I think, only reasonable, when we are embarking on something quite new in our legislation, to consider how similar legislation has worked in other countries, and what other countries have done in the same circumstances. In the United States, the situation is absolutely clear. All the types of restrictive practices which are mentioned in subsection (2) of my right hon. Friend's Amendment are absolutely illegal. They are not only illegal under the common law, but they are illegal under the Sherman Act of 1890, which was clarified by the Clayton Act of 1914, which codified the Sherman Act. So that, in the U.S.A., the restrictive practices which we on this side of the Committee wish to see made completely illegal are already recognised as illegal. There is no question about it. It is accepted, and everyone knows where they stand.
The same situation exists in Canada. Under the criminal code all the restrictive practices mentioned in our Amendment are clearly illegal. Even in Sweden, where they have a system of registration, they have found it necessary to make certain restrictive practices completely illegal. Sweden passed legislation in 1953 absolutely prohibiting resale price maintenance and collusive tendering. That is a very similar case to our Amendment. They have not gone quite so far, but the principle is the same. They have absolutely condemned as illegal certain restrictive practices.
In Germany there is at present going through the Bundestag a cartel measure which has a rather similar effect to that of my right hon. Friend's Amendment. That measure, which is admittedly not yet law, will make certain restrictive practices absolutely illegal from a given date. I shall not draw any further analogies from other countries, but, of course, the most important analogy to draw upon is that of the President himself. He insists, in Clause 19, that a certain restrictive practice—collective enforcement of resale price maintenance, for instance—is to be illegal.
He has insisted on that principle in the case of one particular restrictive practice. 474 Why, therefore, does he consider it to be quite out of the question and unreasonable for us to seek to increase the scope to include a series of restrictive practices which have already been very carefully investigated and tried by the Monopolies Commission? I hope that he will have some second thoughts on this, and will give this Amendment some support.
§ Mr. Roy Jenkins (Birmingham, Stechford)
The President of the Board of Trade was very eager to intervene in the debate earlier on and, I admit, made a powerful speech which made a very slight dent in the Amendment. But in doing so he torpedoed a great deal of his restrictive practices policy in this Bill and elsewhere over the last few years. Towards the end of his speech he said that he had now come to the conclusion that these practices which really amount to machinery of enforcement were very much the less important part and what he was concerned about was the basic reality of restrictive practices—common prices or whatever it might be.
I have some sympathy with that point of view, but I think that that argument comes most oddly from the President of the Board of Trade, who has introduced a Bill containing Clauses 19 and 20. Quite apart from the point on Clause 19 already made by my hon. Friend the Member for Loughborough (Mr. Cronin) that here the President is prepared, without there being any right of appeal so far as individual agreements are concerned, to go far further than my right hon. Friend the Member for Battersea, North (Mr. Jay)—whose Amendment the right hon. Gentleman says is most unreasonable—and when he himself tells us that the machinery of enforcement is quite unimportant, he comes with his Bill which says the enforcement machinery is important.
If we are now to be told that this whole range of practices which are referred to in this Amendment—and which are, broadly speaking, the practices which the Monopolies and Restrictive Practices Commission reported on last summer—are comparatively unimportant, why does the President go out of his way to ask the Commission to make a special inquiry into those practices? It is a rather odd way of making progress in an anti-restrictive practices Measure. It seems that first 475 the right hon. Gentleman tells the Commission to devote all its energies for a number of years to investigating a certain set of practices and then, when the Commission reports, he comes to the House and, for the purpose of defeating this Amendment, says, "I think that these are really rather unimportant and we are concerned more with the reality." Whatever may be said about the Amendment, that is a very strong comment on the policy pursued by the President over the last few years and if, by inadvertence, he went rather further than he intended in his reply to my right hon. Friend, perhaps he may address the Committee again and correct the unfortunate impression which he has given in this respect.
I do not think that my right hon. Friend the Member for Battersea, North was being at all unreasonable in suggesting that there should be a time limit of eighteen months, and that what had not secured exemption by then should be automatically banned. One has to take risks in this matter and administer a certain amount of rough justice—there is no question about that, and no reason to be ashamed of it—if we are to make a really effective anti-restrictive practices measure. The Government recognise that by Clause 19. Therefore, there can be no objection in principle so far as the President is concerned in saying that certain things shall be banned without there having been a hearing. As my hon. Friend the Member for Loughborough has pointed out, all these practices that we are discussing have already been very fully considered by the Monopolies and Restrictive Practices Commission.
I think that one of the advantages of having a tribunal or court and saying that those practices which have not secured specific exemption within eighteen months should be banned, whether or not they have been heard, is that it encourages industry to form an effective queue of priorities for itself. One of the difficulties that we have to face is that if we frame legislation in a particular way there is a real danger of the court or tribunal, or whatever it is, being clogged up with a series of unimportant matters; and we have accepted the various proposals put forward by the President to try to overcome that danger.
476 I think that my right hon. Friend's Amendment would be a very important contribution towards solving the difficulty, because, if there is to be a guillotine applied which will fall after eighteen months, I can think of nothing which would more encourage industry not to clutter up the courts with appeals of that nature, but to form its own queue and to bring forward classes of agreements which are important to industry and for which industry considers there is a real chance of getting exemption. I hope that the President will address himself to that point.
§ Sir Leslie Plummer (Deptford)
I gathered from the President's speech that he was not really so much concerned with the kind of restrictive practices which are specified in this Amendment as with price fixing, level tendering and other vices which he has in mind. Of course, he has to have priorities, and if I were in his position I am not certain that I would be able to say at this stage that I had categorically made up my mind which were the most vicious of the practices that I was trying to prevent and which I would now put in the topmost priority of my determination. It did occur to me, however, that what the President was doing was to overlook the size, importance and the character of the restrictive practices which this Amendment seeks to bring rapidly to an end and before a court.
I think that one of the most frustrating things that enterprise has to deal with today is to find that by some chance or another—or some deliberate action or another—one is prevented from following one's competitor on the lines and in the manner which have been followed before. Let me give an example. I have been making some investigations into what goes on in the tobacco trade and the tobacco business. One of the developments of our social life at the moment is that to sell anything it is necessary to offer more than the intrinsic product itself; one has to pay a lot of attention to the packaging. Packaging is what advertising men call the "gimmick," and it is almost as important to the sales staff as the product inside.
I have found that the packaging of cigarettes and the control of the supply of packets is largely covered by a restrictive agreement organised by one of the 477 big tobacco combines in this country. In my constituency is the largest firm of tobacco packaging and filling machinery manufacturers in Great Britain. I learned the other day that it had devised both a new package and a new filling machine to put the cigarettes into the package. This company was prepared to sell the machine which makes the package and the machine which fills the package.
It was clear that as a result of these machines a new kind of package was being marketed by one of the subsidiaries of one of the tobacco combines. Indeed, it was being widely advertised. When an independent company went to the firm and said, "We ourselves can make this packet, but we need your new machinery to fill it; will you please supply us with that machinery?", they were told, "No; we are not selling this machine, except to the tobacco combine, for three years". This means that the combine is able to ensure for itself three years of unrestricted competition. Such a restrictive agreement can continue for a further considerable period under the Bill, unless the Amendment is accepted.
I suggest that we should take the view that the opportunities for enterprise of this kind should be made available to every firm, within reason. Obviously, if a firm is filled with orders it cannot take more, but it should not be in a a position in which it can pretend to be filled with orders, or can arrange to have a fictitious demand as a result of which the company at present getting its product can rely on being the sole beneficiary of the product.
§ Mr. David Ormsby-Gore (Oswestry)
Is this company, which manufactures the machinery, tied up with the big tobacco companies?
§ Sir L. Plummer
Yes. That is the point I am coming to.
The investigation which I made shows clearly that one of the big tobacco companies has a significant investment in the company manufacturing packaging machinery and cigarette-filling machinery. I cannot say that it controls it; all I can say is that it has a significant investment in it. It is careful not to confine the sales of the products of this packaging company to itself or its subsidiaries; it 478 at least gives the appearance that the products of this company are freely available to everybody.
In fact, as I have shown, they are not freely available—at least, not until such a time has elapsed that the novelty of the new device which this company produces has worn off and, therefore, has no particular advantage to the independent trying to obtain it. This case is covered by subsection (2, a) of the Amendment.
I want now to deal with the next subsection to the Amendment, which also demands attention and which defines as within the restrictions circumstances in which buyers of any goodsdiscriminate in favour of certain suppliers whether by an agreement to buy exclusively from the said suppliers or otherwise howsoever …7.45 p.m.
If hon. Members have recently travelled by British European Airways to the Continent they will know that soon after the aircraft takes off a steward comes round and offers to sell cigarettes, which are very acceptable to the smokers because they are duty-free and, therefore, very cheap. The cigarette which is offered more than any other is one comparatively unknown in this country; it is not stocked by most tobacconists or most hotels or restaurants. Yet its sales are the largest of those made by B.E.A. In fact, this comparatively unknown cigarette represents about half of the sales of cigarettes by B.E.A. The other half of the sales is organised on a rota basis in accordance with the popularity of the other branded cigarettes as shown by their sales in this country.
This means, in fact, that a reasonably popular cigarette in this country, but outside the range of those produced by the Imperial Tobacco Company, is carried on the equivalent of one out of 22 B.E.A. flights. Why is this? One discovers that the cigarette which is relatively unknown in this country is manufactured by a firm in which an export tobacco company has a very large financial interest, and that that export company itself is a subsidiary of one of the big tobacco combines. Between the export company, the manufacturing company and B.E.A. there appears to be an agreement which sees to it that the independent manufacturer 479 has only a chance in one out of every 22 flights of having his cigarettes made available to the customer.
These are most important restrictions. They represent a restriction on the man who is trying to get into the market. They represent a denial of freedom of choice to the consumer. We ought to be as much concerned with—as it were—the end product of this Bill—the consumer—as we are with those who are carrying on these restrictive practices.
I want to see these practices stopped quickly, because I think that they are a negation of free enterprise. I cannot understand why hon. Members opposite, who are always arguing about the advantages of free enterprise and free competition, are so ready to retain these restrictive practices. In my view, the Amendment seeks to bring them to an end speedily.
For that reason, I do not understand why the President of the Board of Trade was so passionate in denouncing my right hon. Friend, who very properly, reasonably and lucidly argued his Amendment. Unless we have an alteration in the Bill, such as is suggested here, my fear is that these practices—and the examples which I have given are but two out of hundreds taking place in this country today—will drag on tediously over such a long time that, before we realise it, the Bill will be a dead-letter soon after having been passed and quite useless for its purpose.
§ Mr. G. Darling
I was not greatly impressed by the right hon. Gentleman's attack on the Amendment on matters of principle because, as has been pointed out, in principle it is in line with his Clause 19. That point has been adequately dealt with and I will not develop it again. Nor was I greatly impressed by his attack upon the 12 months' time limit, mentioned in the Amendment. When we are trying to discuss how long it will take different types of procedure to deal with the restrictive practices which we want to see dealt with, we are in difficulty for the simple reason that we do not know how many restrictive agreements the Court will have to deal with. To a very large extent we are working in the dark; therefore to criticise the 18 months' period in this Amendment seems to be completely beside the point.
480 In his Second Reading speech, the right hon. Gentleman said—and he has confirmed it—that it is his intention to submit to registration common pricing, level tendering and the worst forms of discrimination, but, if the Bill is not amended in the way we have suggested, I do not think that the actions which should follow from such registration will be as swift and as satisfactory as he and every hon. Member of the Committee want.
As Clause 15 now reads, the Restrictive Practices Court will have the jurisdiction, the right, to declare whether or not any restrictions contained in registered agreements are contrary to the public interest. The Court may do that, on the application of the Registrar. That itself, I believe, will be a limiting factor. We have already discussed the question of who can make representations to the Court, but as the Clause stands the Registrar will take to the Court agreements which in his view are contrary to the public interest.
We do not know how many agreements will be dealt with, and no one knows how long the procedure on each agreement will take in the Court. From experience of discussion of this Bill and the way in which lawyers can get to work to delay things, it is not suggested that the procedure of the Court will be extraordinarily rapid. It may take, not 18 months, but many years before we get the major restrictive practices which we want to see put out of existence really dealt with.
It is true that under Clause 18 the Court can build up a body of case law which will guide people in deciding whether an agreement should remain in existence and will also guide the Court in its judgment. Under Clause 18, the Court will not need to examine each case; from the body of case law that it builds up it will know how to deal quickly with each case that comes along, but, as we are working completely in the dark about the number of agreements and the manner in which they will be dealt with—at least at first—how the Court will operate, how appeals will operate and how the lawyers' paradise will operate, I suggest that there is a strong case for this Amendment.
In the Amendment, on the lines of the majority Report of the Monopolies Commission, we are defining practices which 481 we think ought to be dealt with and the manner in which we think they can be dealt with speedily. It is no use the President or anyone else in the Committee saying that if we have the procedure as outlined in the Bill we shall be able to deal with these matters fairly quickly, because no one knows about that. Under the procedure suggested in this Amendment we should make a large number of restrictive agreements unlawful by the definitions laid down, and the 18 months period to get the whole business sorted out is, I think, satisfactory. Under this procedure, at the end of 18 months we should be far more ahead with the job which the Bill seeks to accomplish than would be the case if the Amendment were not accepted.
I therefore suggest that on the grounds of speed—there cannot be further argument about matters of principle because in principle this is in line with Clause 19—the Amendment ought to be accepted.
§ Mr. Arthur Holt (Bolton, West)
I should like to say a few words about the Amendment before the President replies to the debate. My party would be only too pleased to support the Amendment if we really felt that it would help to achieve the results which we all desire, which are to bring an early end to any restrictive practices which we can bring to an end and, where any have to go before the Court, to ensure that the effects which we consider most undesirable and which have the greatest effect on the economy should be brought to the Court first.
Although some might think it rather irresponsible, I should, if the Amendment did not contain subsection (3), be personally delighted to support it because it would abolish this type of practice without any appeal. There would be no question of holding up consideration on common prices, price agreements and the like. I think that all the types of practices described there are thoroughly undesirable. I do not accept that there are any conditions under which any of them should be allowed to continue, but that is not what the Amendment says. Many people who at present carry on those practices do not hold my view, but would apply to the Court for consideration and to be allowed to continue those practices in the public interest. That would greatly delay consideration of other forms of 482 restrictive practice, such as common prices and other kinds of price agreements which we consider far worse in their effect on the economy.
Another point which has been mentioned, but which I should like to underline, is that some of these practices will cease—there would be no point in their further continuation—once various forms of price agreement had been declared illegal, as is clearly stated in the Report of the Commission when dealing with discrimination. Under subsection (2, d) rebates are directly associated with supporting price agreements, but if price agreements were declared illegal, there would be no point in trying to have such practices to support them because there would be nothing to support.
As the President said, we should deal with the major matters first. I have no doubt that the hon. Member for Stechford (Mr. Roy Jenkins) is aware of why it was desirable to work up public interest and to choose some of the practices that were taken to the Monopolies Commission first. They were matters which obviously would stir up public interest far more than, for instance, the question of common prices.
§ Mr. Roy Jenkins
Is the hon. Member seriously suggesting that the order in which practices were referred to the Monopolies Commission should be determined by what the President thought would make interesting reading?
§ Mr. Holt
I would not put it quite so crudely as that, but surely, as a politician, the hon. Member for Stechford will realise that if one wants to reverse a trend which has been going on for a long time it is as well to focus public attention on the simple things which will appear to the public as most objectionable before going into those of a more technical nature.
§ 8.0 p.m.
§ Mr. Jenkins
Is the hon. Member now suggesting that common pricing is much more complicated than, for example, aggregate rebates?
§ Mr. Holt
A lot of the economic arguments in connection with it are a great deal more difficult to appreciate.
It is quite apparent to many people, when they hear about what goes on in a secret court, that that kind of thing is thoroughly objectionable. It was the publicity that was given to the secret courts which influenced the public mind to support this kind of legislation. I have made my points on the Amendment, and I regret to say that, for the reasons I have given, my party is unable to support it.
§ Mr. Jay
I am glad to learn that the hon. Member for Bolton. West (Mr. Holt) would be prepared to support our Amendment but for subsection (3). If his objection is that the laying of this work on the Court would hold up the rest of the Court's activities, that could be met by having a separate division of the Court or an arrangement by which that part of the work did not clash with the remainder of the work. We do not want things to work out in the way he suggested, and I hope that the hon. Member may be persuaded to support the Amendment after all, if that is his only objection.
I was not convinced by the President's reply, vigorous though it was, to our proposals. He said, first, that we could not act by way of prohibition because of the extraordinary difficulty of defining the practices which were to be declared unlawful. I fully agree that it is difficult to get an effective definition but I am by no means convinced that it is impossible. The President and the Committee have achieved a definition of a group of restrictive agreements in Clause 5. It may well be that for the purpose of declaring the agreements unlawful, there must be an even more precise definition than we have for the purposes of registration. If, however, we have got as far as we have done already with Clause 5, I am encouraged to think that, if necessary, we could get an even more precise definition of what, after all, would be a more limited class of agreements.
I would point out to the President that the Commission, in its Report, when it said that there must be a very precise definition, based that comment specifically on the proposal to make the agreements criminal offences. If they were not criminal offences the need to have 484 absolute precision might be a little less great.
I would not quite agree with my hon. Friend the Member for Loughborough (Mr. Cronin) that we have achieved perfection in the Amendment as it stands, but the fact that we have got as near to it as we have done without the assistance of the professional draftsmen, who normally we know, are more skilled in these matters than anybody outside the official service, encourages us to think that, with that professional help, it ought to be possible to achieve a definition of this kind.
Has the President of the Board of Trade considered the parallel of the Income Tax? A very large number of offences exist under the heading of Income Tax and some of them are criminal offences. I am sure that the President has looked at the Income Tax Act, 1952, which nobody would suggest is not complicated. Nevertheless, it solves the problem of definition.
Secondly, the right hon. Gentleman said—and in this I could not follow him—that our procedure would be no more speedy than his. We are saying that the group of practices in question would be made unlawful by a certain date unless approval had been given to them before that time, whether prima facie or outright approval. Certainly, if we put forward this type of argument, we must propose that there would be a more speedy procedure than, for example, the complete judicial procedure which the right hon. Gentleman is putting forward. If we are to get the job done more quickly we must have a more speedy way of doing it.
Thirdly, the President said—it was an extraordinary argument for him at this stage—that the objection to this way of tackling the matter was that it would stop only the methods of enforcement and would not get at the realities behind them. Of course, if we prevent these agreements on common prices or whatever they are from being enforced, we have successfully terminated them. If they can be enforced only in certain ways and we prevent those methods of enforcement, we shall have done what we want and shall have brought the agreements to an end.
It was an extraordinary argument from the President because, as I pointed out, what he was objecting to was exactly 485 what he is doing in Clause 19 about collective resale price maintenance. He is not banning the reality; he is banning the methods of enforcement. The very argument used by the Parliamentary Secretary on Second Reading was that if we ban the methods of enforcement—the methods by which agreements are being enforced now, he said—we shall have achieved all that we wish to achieve. We are proposing precisely what the President is doing in Clause 19, but, we think, over the larger field.
It seemed to me that the President proved too little in his earlier arguments and too much in his later arguments, because in the latter he tried to prove that what he proposes is either impossible or not desirable. Nor was I convinced by his use of the words "legalise" and "guillotine". He drew a picture of our "legalising" these agreements during a period when the Bill became law and then bringing down a guillotine after which they would become unlawful. Of course, they would be no more legalised after the passing of the Bill than they are now, and they would be no more "guillotined" in any revolutionary or catastrophic sense than collective resale price maintenance will be guillotined—without exception—under Clause 19 of the right hon. Gentleman's own Bill.
It is very odd that the President, as my hon. Friend the Member for Stechford (Mr. Roy Jenkins) pointed out, should now say that it is no use dealing with frills and superficialities, such as methods of enforcement, but should tackle realities, when it is due entirely to his action over the last three years that we are in the position we are in now. We are selecting this group of methods of collective discrimination to be condemned outright because we are inevitably in the position that those are the practices which have been condemned by the Commission; and the Commission condemned them because the right hon. Gentleman referred them to the Commission for inquiry.
First, therefore, the right hon. Gentleman selects these practices as being presumably the most important. I do not accept the unworthy idea that he has been playing politics with the whole business from beginning to end—that is going 486 too far. I believe that he thought these were important and, therefore, gave priority to them, and that the Commission agreed that they were important and condemned them; and yet the right hon. Gentleman now says they do not matter after all, that they are not the realities and that we should not worry about them. Even stranger than that, the President, in his speech, raised the issue of common prices, and said that that was the really wicked crime which we want to get at. Unless I am wrong, he made a reference also to the Commission about two years ago on the whole subject of common prices, on which the Commission has done some very hard, long and valuable work.
Then the President, in order to introduce a Bill with, we think, a much more dilatory procedure, said to the Commission and told us on Second Reading that the whole of the inquiry was to be abandoned, and that what the Commission proposed on common prices was not to be implemented and, indeed, was not even to be known to the House or to the country.
It is extraordinary that having first given the Commission the reference on collective discrimination, and having then given it a reference on common prices and stopped the latter in mid-passage, the President should now criticise us for wanting to go ahead in regard to collective discrimination on the ground that we are not doing anything about common prices. For these reasons I am still in favour of the Amendment.
§ Mr P. Thorneycroft
We are indebted to the right hon. Member for Battersea, North (Mr. Jay) for having placed the Amendment on the Order Paper and initiating a debate which ought to have taken place on this stage of the Bill, in which some quite tolerable debating points have been made on both sides of the Committee. One of the first points was raised by the hon. Member for Huddersfield, West (Mr. Wade) about how long all this is going to take. Leaving aside any difference of method between us, all of us have a certain amount of anxiety about that.
The hon. Member made one or two constructive suggestions on how we should deal with that point. He suggested that the matter might be dealt 487 with summarily on pleadings without the parties being heard, but that would raise difficulties. We have to carry the public with us in cases of this kind, and it is rather foreign to our system that someone should be condemned unheard just on his pleadings.
§ Mr. Thorneycroft
I appreciate that.
We have included in the Bill certain provisions for summarily dealing with arrangements which appear to fall within some common principles, and it may be that we can make some progress on that type of agreement. But I do not think that it will be possible, in the last resort—and I do not think that it ought to be possible—to rule out the right of a man to have a hearing of a case in which he feels positively he is serving the public interest.
The hon. Member for Loughborough (Mr. Cronin) and a number of other hon. Members said that everyone indulging in a restrictive practice should know quite clearly whether the practice is banned or not. The right hon. Member for Battersea, North has just been saying the same thing. That is true, but it is not quite true to say that there is less need for definition if we do not technically call it a criminal offence. We must define it. I am sure that I carry the hon. Member with me. If we are to say to groups of people who sincerely believe that they are serving the public interest that they must stop something, then the least we ought to do is to tell them what it is they have to stop.
I do not believe that hon. and right hon. Members opposite have really faced the problem of definition here. An hon. Member opposite has been very complimentary to us about the progress which we have made in Clauses 5 and 6, and the skill and precision with which we have defined just what was within and without the rules of legislation. As a Committee, we can be very proud of ourselves, but looking back on those discussions I would not say that we have reached absolute perfection in that sphere at present. I would not say that 488 a little redrafting would not be necessary there on Report. The design there was, after all, to cover only what was registrable but when we come to what precisely must be stopped we are facing rather greater difficulty in definition.
The question of these 18 months has been raised, and I agree very much with the hon. Member for Hillsborough (Mr. G. Darling), who said that we were all in the dark on the subject. Nobody knows, until we have seen the register, how many of these things will be registered. Many feel that there will be a substantial number, but until we know that number it is a little unreal to start inserting figures like 18 months into any Amendment or into the Bill.
Despite everything that hon. and right hon. Members opposite have said, I frankly do not accept the account which they are seeking to give that at the end of 18 months all the agreements that do not happen to have had the luck to have had a hearing will be cast out. I know hon. and right hon. Gentlemen opposite too well: they will not do anything as unfair as that. Hon. Members have talked about gambling. Premium Bonds will be a certainty compared with the gamble here as to where one appears on the list and whether one has the luck to jostle one's way up the queue and be heard within 18 months or not. Therefore, I do not accept that argument.
I know perfectly well that hon. and right hon. Members opposite will give people the opportunity to be heard during the 18 months, and that if somebody had not been heard during that period the right hon. Member for Battersea, North, with his innate sense of fairness, would arrange that the time should be extended periodically so that a hearing would take place. Therefore hon. and right hon. Members opposite would be in precisely the same difficulty as I am in that neither they nor I know how long all this would take.
The hon. Member for Stechford (Mr. Roy Jenkins) made a shrewd debating point. He took the case of retail price maintenance. I do not want to anticipate our debate on that, but the difference is clear. In the case of retail price maintenance I have not sought to outlaw the basic arrangement, the individual right of a manufacturer to maintain his prices. I 489 have not outlawed that, because I think that that right ought to be preserved. We can debate that when we come to it. I have suggested that we should outlaw the methods of enforcement, for reasons which I shall argue when we reach the Clause. I believe I shall be able to adduce support from a number of Reports, such as those of the Lloyd Jacob Committee and the Monopolies Commission, for the consideration of the Committee when we come to that subject.
However, that puts the matter in a rather different category compared with what we are now discussing, because here no one is saying that common prices, as a matter of principle, should continue. There is no doubt whatever that the putting forward of these other matters of enforcement in front of the common price arrangements is in a sense putting the cart before the horse. That is why I think the hon. Member for Stechford was on a shrewder debating point when he turned that argument against me and asked what I was doing in referring collective discrimination to the Monopolies Commission before common prices. If I may say so, that is a rather good point. If a Minister can be allowed to admit it, I am to some extent vulnerable upon it. I did not do it because it would make amusing reading for the public—though I am grateful for that defence which was offered to me.
At the time that I made that reference—and it was some years ago—we all had less experience of these matters. There had been a number of Reports from the Monopolies Commission, all
§ dealing with these particular groups of practices, and under the 1948 Act we require a group of Reports of that kind before we make a reference. Strangely enough, there was not a group of Reports on common prices at all at that time. Whether I was right or wrong I do not know. I admit frankly that it is arguable that I was wrong, but I am not sorry that I made the reference. I think that it was a useful one and that, whether we agree with the Report or not, without that reference we should not be looking at this legislation today. It was no doubt the public inspiration and interest which centred on that Report which made possible the introduction of a Bill of this kind.
§ I have, I think, dealt with most of the points. I recognise there is an honest difference between both sides of the Committee, and there are arguable points which can be made in favour of many schemes to deal with practices of this sort. My own view is that the Amendment does not fully face the difficulties of definition, which I think are very real, and that under any arrangement the length of time will be a substantial problem. Whether I was right or wrong in my order of references to the Monopolies Commission, I am anxious to be right now, and to try to treat all these matters—common prices and methods of enforcement—grouped together in the best order of priority that we can devise.
§ Question put, That those words be there inserted:—
§ The Committee divided: Ayes 177, Noes 217.493
|Division No. 163.]||AYES||[8.20 p.m.|
|Ainsley, J. W.||Champion, A. J.||Evans, Stanley (Wednesbury)|
|Allaun, Frank (Salford, E.)||Chapman, W. D.||Fernyhough, E.|
|Allen, Arthur (Bosworth)||Clunie, J.||Fienburgh, W.|
|Allen, Scholefield (Crewe)||Coldrick, W.||Forman, J. C.|
|Awbery, S. S.||Collick, P. H. (Birkenhead)||Fraser, Thomas (Hamilton)|
|Bacon, Miss Alice||Collins, V. J. (Shoreditch & Finsbury)||Gibson, C. W.|
|Bence, C. R. (Dunbartonshire)||Corbet, Mrs. Freda||Gooch, E. G.|
|Benn, Hn. Wedgwood (Bristol, S.E.)||Cove, W. G.||Grenfell, Rt. Hon. D. R.|
|Benson, G.||Craddock, George (Bradford, S.)||Grey, C. F.|
|Beswick, F.||Cronin, J. D.||Griffiths, David (Rother Valley)|
|Blackburn, P.||Crossman, R. H. S.||Griffiths, Rt. Hon. James (Llanelly)|
|Blenkinsop, A.||Cullen, Mrs. A.||Hale, Leslie|
|Blyton, W. R.||Dalton, Rt. Hon. H.||Hamilton, W. W.|
|Bottomley, Rt. Hon. A. G.||Darling, George (Hillsborough)||Hannan, W.|
|Bowden, H. W. (Leicester, S.W.)||Davies, Stephen (Merthyr)||Hastings, S.|
|Bowles, F. G.||Deer, G.||Hayman, F. H.|
|Boyd, T. C.||Delargy, H. J.||Henderson, Rt. Hn. A. (Rwly Regis)|
|Brockway, A. F.||Dodds, N. N.||Herbison, Miss M.|
|Broughton, Dr. A. D. D.||Donnelly. D. L.||Hobson, C. R.|
|Brown, Thomas (Ince)||Dugdale, Rt. Hn. John (W. Brmwch)||Houghton, Douglas|
|Burton, Miss F. E.||Edelman, M.||Howell, Denis (All Saints)|
|Butler, Herbert (Hackney, C.)||Edwards, Rt. Hon. John (Brighouse)||Hubbard, T. F.|
|Butler, Mrs. Joyce (Wood Green)||Edwards, Rt. Hon. Ness (Caerphilly)||Hughes, Hector (Aberdeen, N.)|
|Castle, Mrs. B. A.||Edwards, Robert (Bilston)||Hunter, A. E.|
|Irvine, A. J. (Edge Hill)||Morris, Percy (Swansea, W.)||Slater, Mrs. H. (Stoke, N.)|
|Irving, S. (Dartford)||Morrison, Rt. Hn. Herbert (Lewis'm, S.)||Smith, Ellis (Stoke, S.)|
|Jay, Rt. Hon. D. P. T.||Mort, D. L.||Sorensen, R. W.|
|Jenkins, Roy (Stechford)||Moss, R.||Steele, T.|
|Johnson, James (Rugby)||Moyle, A.||Stewart, Michael (Fulham)|
|Jones, David (The Hartlepools)||Mulley, F. W.||Stones, W. (Consett)|
|Jones, Jack (Rotherham)||Neal, Harold (Bolsover)||Stross, Dr. Barnett (Stoke-on-Trent, C.)|
|Jones, J. Idwal (Wrexham)||Noel-Baker, Francis (Swindon)||Summerskill, Rt. Hon. E.|
|Jones, T. W. (Merioneth)||Oliver, G. H.||Sylvester, G. O.|
|Key, Rt. Hon. C. W.||Oram, A. E.||Taylor, Bernard (Mansfield)|
|King, Dr. H. M.||Orbach, M.||Taylor, John (West Lothian)|
|Lawson, C. M.||Oswald, T.||Thomson, George (Dundee, E.)|
|Ledger, R. J.||Owen, W. J.||Timmons, J,|
|Lee, Frederick (Newton)||Paling, Rt. Hon. W. (Dearne Valley)||Tomney, F.|
|Lee, Miss Jennie (Cannock)||Paling, Will T. (Dewsbury)||Turner-Samuels, M.|
|Lever, Leslie (Ardwick)||Palmer, A. M. F.||Ungoed-Thomas, Sir Lynn|
|Lewis, Arthur||Parker, J.||Warbey, W. N.|
|Logan, D. G.||Parkin, B. T.||Weitzman, D.|
|Mabon, Dr. J. Dickson||Paton, J.||Wells, Percy (Faversham)|
|McGhee, H. G.||Pearson, A.||Wells, William (Walsall, N.)|
|McGovern, J,||Plummer, Sir Leslie||West, D. G.|
|McInnes, J.||Popplewell, E.||Wheeldon, W. E.|
|McKay, John (Wallsend)||Probert, A. R.||White, Henry (Derbyshire, N.E.)|
|McLeavy, Frank||Proctor, W. T.||Wilkins, W. A.|
|MacMillan, M. K. (Western Isles)||Pryde, D. J.||Willey, Frederick|
|MacPherson, Malcolm (Stirling)||Randall, H. E.||Williams, Rev. Llyewelyn (Ab'tillery)|
|Mahon, Simon||Redhead, E. C.||Williams, W. R. (Openshaw)|
|Mallalieu, E. L. (Brigg)||Reeves, J.||Willis, Eustace (Edinburgh, E.)|
|Mallalieu, J. P. W. (Huddersfd, E.)||Reid, William||Wilson, Rt. Hon. Harold (Huyton)|
|Mason, Roy||Roberts, Albert (Normanton)||Winterbottom, Richard|
|Mayhew, C. P.||Roberts, Goronwy (Caernarvon)||Woodburn, Rt. Hon. A.|
|Messer, Sir F.||Robinson, Kenneth (St. Pancras, N.)||Woof, R. E.|
|Mikardo, Ian||Ross, William||Zilliacus, K.|
|Mitchison, G. R.||Royle, C.|
|Monslow, W.||Silverman, Julius (Aston)||TELLERS FOR THE AYES:|
|Moody, A. S.||Skeffington, A. M.||Mr. J. T. Price and Mr. Short.|
|Agnew, Cmdr. P. G.||Donaldson, Cmdr. C. E. McA.||Hurd, A. R.|
|Aitken, W. T.||Doughty, C. J. A.||Hutchison, Sir Ian Clark (E'b'gh, W.)|
|Allan, R. A. (Paddington, S.)||Drayson, G. B.||Hutchison, Sir James (Scotstoun)|
|Amery, Julian (Preston, N.)||du Cann, E. D. L.||Iremonger, T. L.|
|Arbuthnot, John||Duncan, Capt. J. A. L.||Irvine, Bryant Godman (Rye)|
|Armstrong, C. W.||Duthie, W. S.||Jenkins, Robert (Dulwich)|
|Ashton, H.||Eden, J. B. (Bournemouth, West)||Johnson, Dr. Donald (Carlisle)|
|Baldock, Lt.-Cmdr. J. M.||Emmet, Hon. Mrs. Evelyn||Johnson, Eric (Blackley)|
|Baldwin, A. E.||Errington, Sir Eric||Jones, Rt. Hon. Aubrey (Hail Green)|
|Balniel, Lord||Farey-Jones, F. W.||Joseph, Sir Keith|
|Barlow, Sir John||Finlay, Graeme||Joynson-Hicks, Hon. Sir Lancelot|
|Barter, John||Fisher, Nigel||Kaberry, D.|
|Bell, Philip (Bolton, E.)||Fleetwood-Hesketh, R. F.||Keegan, D.|
|Bell, Ronald (Bucks, S.)||Fletcher-Cooke, C.||Kerr, H. W.|
|Bennett, Dr. Reginald||Fraser, Hon. Hugh (Stone)||Kershaw, J. A.|
|Bevins, J. R. (Toxteth)||George, J. C. (Pollok)||Kimball, M.|
|Biggs-Davidson, J. A.||Gibson-Watt, D.||Kirk, P. M.|
|Bishop, F. P.||Glover, D.||Lagden, G. W.|
|Body, R. F.||Gomme-Duncan, Col. Sir Alan||Leather, E. H. C.|
|Bowen, E. R. (Cardigan)||Gower, H. R.||Leavey, J. A.|
|Boyle, Sir Edward||Grant, W. (Woodside)||Leburn, W. G.|
|Braine, B. R.||Green, A.||Legge-Bourke, Maj. E. A. H.|
|Braithwaite, Sir Albert (Harrow, W.)||Gresham Cooke, R.||Legh, Hon. Peter (Petersfield)|
|Brooke, Rt. Hon. Henry||Grimond, J.||Lindsay, Hon. James (Devon, N.)|
|Brooman-White, R. C.||Grimston, Hon. John (St, Albans)||Linstead, Sir H. N.|
|Bryan, P.||Grimston, Sir Robert (Westbury)||Lloyd, Maj. Sir Guy (Renfrew, E.)|
|Burden, F. F. A.||Grosvenor, Lt.-Col. R. G.||Longden, Gilbert|
|Butcher, Sir Herbert||Gurden, Harold||Lucas, Sir Jocelyn (Portsmouth, S.)|
|Campbell, Sir David||Hall, John (Wycombe)||Lucas, P. B. (Brentford & Chiswick)|
|Carr, Robert||Harris, Frederic (Croydon, N.W.)||Lucas-Tooth, Sir Hugh|
|Cary, Sir Robert||Harris, Reader (Heston)||Macdonald, Sir Peter|
|Chichester-Clark, R.||Harrison, A. B. C. (Maldon)||McKibbin, A. J.|
|Clarke, Brig. Terence (Portsmth, W.)||Harrison, Col. J. H. (Eye)||Mackie, J, H. (Calloway)|
|Cole, Norman||Harvey, Air Cdre. A. V. (Macclesfd)||McLaughlin, Mrs. P.|
|Cordeaux, Lt.-Col. J. K.||Harvey, Ian (Harrow, E.)||Maclean, Fitzroy (Lancaster)|
|Corfield, Capt. F. V.||Harvey, John (Walthamstow, E.)||McLean, Neil (Inverness)|
|Craddock, Beresford (Spelthorne)||Heald, Rt. Hon. Sir Lionel||MacLeod, John (Ross & Cromarty)|
|Crosthwaite-Eyre, Col. O. E.||Heath, Rt. Hon. E. R. G.||Macpherson, Niall (Dumfries)|
|Crowder, Sir John (Finchley)||Hinchingbrooke, Viscount||Maddan, Martin|
|Crowder, Petre (Ruislip—Northwood)||Holt, A. F.||Manningham-Buller, Rt. Hn. Sir R.|
|Cunningham, Knox||Hornsby-Smith, Miss M. P.||Markham, Major Sir Frank|
|Currie, C. B. H.||Horobin, Sir Ian||Marlowe, A. A. H.|
|Dance, J. C. G.||Howard, John (Test)||Marshall, Douglas|
|D'Avigdor-Goldsmid, Sir Henry||Hudson, Sir Austin (Lewisham, N.)||Mathew, R.|
|Deedes, W. F.||Hudson, W. R. A. (Hull, N.)||Maude, Angus|
|Mawby, R. L.||Redmayne, M.||Taylor, William (Bradford, N.)|
|Maydon, Lt.-Comdr. S. L. C.||Rees-Davies, W. R.||Thompson, Kenneth (Walton)|
|Milligan, Rt. Hon. W. B.||Remnant, Hon. P.||Thompson, Lt.-Cdr. R. (Croydon, S.)|
|Moore, Sir Thomas||Renton, D. L. M.||Thorneycroft, Rt. Hon. P.|
|Morrison, John (Salisbury)||Ridsdale, J. E.||Tilney, John (Wavertree)|
|Mott-Radclyffe, C. E.||Rippon, A. G. F.||Touche, Sir Gordon|
|Nairn, D. L. S.||Roberts, Sir Peter (Heeley)||Turner, H. F. L.|
|Neave, Airey||Robertson, Sir David||Tweedsmuir, Lady|
|Nicholson, Godfrey (Farnham)||Roper, Sir Harold||Vane, W. M. F.|
|Nicolson, N. (B'n'm'th, E. & Chr'ch)||Ropner, Col. Sir Leonard||Vaughan-Morgan, J. K.|
|Nield, Basil (Chester)||Russell, R. S.||Vickers, Miss J. H.|
|Oakshott, H. D.||Schofield, Lt.-Col. W.||Wade, D. W.|
|O'Neill, Hn. Phelim (Co. Antrim, N.)||Scott-Miller, Cmdr. R.||Wakefield, Edward (Derbyshire, W.)|
|Ormsby-Gore, Hon. W. D.||Sharpies, R. C.||Wakefield, Sir Wavell (St. M'lebone)|
|Orr, Capt. L. P. S.||Shepherd, William||Walker-Smith, D. C.|
|Osborne, C.||Simon, J. E. S. (Middlesbrough, W.)||Wall, Major Patrick|
|Page, R. G.||Smithers, Peter (Winchester)||Ward, Hon. George (Worcester)|
|Pannell, N. A. (Kirkdale)||Smyth, Brig. Sir John (Norwood)||Ward, Dame Irene (Tynemouth)|
|Partridge, E.||Spearman, A. C. M.||Waterhouse, Capt. Rt. Hon. C.|
|Pickthorn, K. W. M.||Speir, R. M.||Webbe, Sir H.|
|Pilkingon, Capt. R. A.||Spens, Rt. Hn. Sir P. (Kens'gt'n, S.)||Whitelaw, W. S. I.(Penrith & Border)|
|Pitt, Miss E. M.||Stanley, Capt. Hon. Richard||Williams, Paul (Sunderland, S.)|
|Pott, H. P.||Stevens, Geoffrey||Wills, G. (Bridgwater)|
|Powell, J. Enoch||Steward, Harold (Stockport, S.)||Wilson, Geoffrey (Truro)|
|Profumo, J. D.||Stewart, Henderson (Fife, E.)||Wood, Hon. R.|
|Raikes, Sir Victor||Stoddart-Scott, Col. M.||Woollam, John Victor|
|Ramsden, J. E.||Studholme, H. G.|
|Rawlinson, Peter||Summers, G. S. (Aylesbury)||TELLERS FOR THE NOES:|
|Mr. Godber and Mr. Hughes-Young.|
§ 8.30 p.m.
§ Sir L. Joynson-Hicks
I beg to move, in page 13, line 12, after "Act" to insert:or on the application of any of the parties thereto".The purport of this Amendment is to enable a party to the agreement also to have the right of application to the Court. At present, only the Registrar can apply to the Court in the first instance. The Amendment would make the Clause read:The Court shall have jurisdiction on the application of the Registrar in respect of any agreement…or on the application of any of the parties thereto …This is not a very wide provision, but it is rather important. The basic object of the Amendment is to try to bring into the Bill what many of us have been attempting to do from its Second Reading onwards, that is, the appearance and the recognition that the Court is a fair court and not a criminal court. We want to get away from the idea that the parties are being dragged to the Old Bailey; nobody ever voluntarily applies to the Old Bailey in the first instance but, as parties, they apply to the High Court so that they can ascertain their rights and obtain an order for the enforcement of their rights.
I see no reason why a party to an agreement should not equally be entitled to apply to the Court for the ascertainment of his rights and for the enforcement of his rights in the cases under consideration in the Bill. The possibility is cer- 494 tainly recognised in subsequent aspects of the procedure, because if there is need for rectification the parties to the agreement then have the right to apply to the Court. So there is nothing particularly novel in my proposal except the insertion of it in this place. I believe that it will be welcome and it will not be difficult.
I have not the slightest doubt that the answer will be, first, that it might interrupt the administrative nicety with which agreements are brought before the Court. One can visualise the Registrar, with that efficiency which I am sure his staff will enjoy, producing a series of lists of existing agreements tabulated in the order in which they will come before the Court. If he does that, it will upset his routine considerably if a party to the agreement says, "I want my agreement to come before the Court and I shall apply to the Court for its consideration."
I do not think that the nice convenience exercised by the Registrar—which, I agree, would be to the benefit of the majority of parties to the agreement—should be a paramount consideration that should override the right of a party to apply to the Court to obtain justice. One can easily visualise circumstances in which a party deems it desirable, and even necessary, to apply to the Court, and not only in cases in which he may have an agreement which is similar to others that have already been adjudicated upon.
Those, I appreciate, can be dealt with under the summary procedure contained in a subsequent Clause. Under that summary procedure the Registrar can make 495 application to deal with many of these analogous cases expeditiously, so I have no doubt that will meet that point. My point is one which I am sure the Government cannot refrain from granting, because it was made before this Committee by my right hon. Friend the President of the Board of Trade only yesterday.
I would remind my hon. and learned Friend of what the President said yesterday, on Clause 6:… I would ask the Committee to remember that an industry itself may sometimes wish a case to come forward, especially in respect of an agreement which has previously been disapproved. It may even wish to do so in other cases. From time to time, especially when some of the earlier decisions of the court have established a line of precedents, an industry may wish to be cleared in respect of a certain agreement and have a certainty introduced into the matter."—[OFFICIAL REPORT, 1st May, 1956; Vol. 552, c. 256.]I have quoted that because I could not have put it so well. Indeed, I should not expect to be able to do so.
Who is to bring the matter forward? Is it the industry? No pressure can be put upon the Registrar—at all events, I hope not—for him to juggle about with the list of cases to be brought before the Court. It seems to be a matter which can only be dealt with by the parties to the agreement in the industry concerned. I have no doubt that if they sought to make a frivolous application to the Court, the Court would know very well indeed how to deal with it, and I am sure that no second frivolous application would be made. However, none of these considerations is sufficient to deny a party to the agreement the right of applying to the Court.
§ Sir L. Ungoed-Thomas
I hope that the Parliamentary Secretary will not accept the Amendment. The hon. Member for Chichester (Sir L. Joynson-Hicks) said that if there were any frivolous applications, they would be very summarily dealt with. I assume that there would be no frivolous applications. It is difficult to see how there could be any. The applications of those who have the right to have their cases considered would, I imagine, not be frivolous.
Whether an application was frivolous or not could not be decided without the Court going some way into the merits 496 of the matter. Therefore, the hon. Member is not reducing the number of applications that may be made by seeking to exclude frivolous ones. I imagine that every agreement would be one which could rightly be brought before the Court for its consideration. Quite apart from that, the Amendment suggests giving the parties to the agreement as much right as the Registrar himself would have to bring a matter before the Court. Consequently, from the point of view of the operation of the Amendment, what the hon. Gentleman has said about frivolous applications can be disregarded in considering the reasons which he put forward for supporting his Amendment.
The hon. Gentleman said that his motive in advancing his proposal—I quite understand it—was that he wanted to make it clear that here was a fair Court, accessible to all parties. It does not affect the fairness of the Court in the least that one party can bring forward matters for consideration and another party cannot. That has nothing to do with it. The operation of the Court would be immaculate; there is a High Court judge there, and it would be perfectly fair.
I am sure that the hon. Member was addressing himself not so much to the operations within the four corners of the Court as to the operation of the Clause and the procedure for bringing matters before the Court. In dealing with the procedure in bringing it before the Court, the hon. Gentleman made delightful play of the meticulous behaviour of the Registrar who would be drawing up delightful lists in the pigeon-holes of his office—all very pretty—but let us consider the realities of it for a moment.
These agreements are agreements which would be valid until they are declared invalid. No difficulty, on that account, is imposed on the parties to the agreement except, as he said quite rightly, the possibility of uncertainty that may arise. One of the great arguments put forward on behalf of the President during the whole of this Bill—and it has been reiterated time and again—has been over the particular method he has adopted in the Bill. The Registrar will have the control subject to the direction of the President of the Board of Trade about the order in which these matters are, first, to be registered and then about the way in 497 which they are to be brought before the Court.
Once one grants his method of dealing with the contracts, namely, that they are to be valid until they are declared invalid by the Court—I would make it clear that we are opposed to that approach—and once that approach is laid down and it is established that they have these powers, as we decided on previous Clauses, and we have to approach this Clause on the footing, already embodied in the Bill, that the President has a discretion in relation to the procedure for dealing with the cases by ordering the Registrar to bring them forward in the due course of administration. It would be quite chaotic, within the scheme which the President has brought forward, to allow any party to the agreement to raise any of these matters before the Court and to have the matter adjudicated upon.
The residual hardship faced by the party to the agreement—and I do not want to run away from this; I want squarely to face the case which the right hon. Gentleman presented so persuasively—is that in case of uncertainty it may be desirable in his interests that the matter should be brought before the Court. I concede at once that that may arise. Against that one has to face the fact that the agreement is not invalid until it has been declared invalid by the Court. Therefore, he is not prejudiced about the validity of the agreement in any way by reason of his not being able to bring it forward.
If the power which the hon. Gentleman wants in his Amendment is granted, it means that the whole scheme brought forward by the President, as an essential part of the presentation of his scheme before the Committee, is made quite chaotic. It is quite inconsistent with the approach of the President to this Bill to allow the power which the hon. Gentleman wants in his Amendment, and I hope that the Parliamentary Secretary will reject it.
§ Mr. Walker-Smith
My hon. Friend the Member for Chichester (Sir L. Joynson-Hicks) has moved his Amendment in persuasive and felicitous terms, and I have sympathy with the object which he has in view and with the considerations which animated his approach to it. I would say straight away that there is no 498 question but that that this is a fair Court. The parties are not being dragged to it as to the Old Bailey, to use the words which he employed. If there are at this stage still apprehensions in industry or elsewhere outside on this score, I hope that it will take reassurance from what I say tonight that, as has been confirmed by the hon. and learned Gentleman the Member for Leicester, North-East (Sir L. Ungoed-Thomas), this will be a fair Court with fair and judicial proceedings, and that it will be a civil court.
My hon. Friend suggested that administrative niceties might stand in the way of accepting his Amendment. I ask him to believe that it is not just a question of administrative niceties. These no doubt we could overcome without difficulty or jettison them, if need be, in favour of a greater benefit. It is a good deal more than that, because the effect of accepting this Amendment would, although that is not the intention, as I quite appreciate, be disruptive of the general structure upon which this is necessarily based.
As the Bill stands, it is for the Registrar to bring the proceedings before the Court. Were the Amendment of my hon. Friend accepted, it would be possible for any of the parties to the agreement to make the application. Not just all the parties to the agreement, but any of the parties. Suppose, for example, one of the parties wished to bring the case before the Court, and the others did not. Straight away, there would be a very difficult problem for the Court. There are also other problems and I find it very difficult to see on what basis the Court could come to a decision about these applications.
In the normal case, when parties are ready for trial the case is set down for trial and comes up in the list in the ordinary way. But suppose applications were made to vary the order in which the Registrar wished to present the cases to the Court. What would be the criteria by which the Court would be guided? How, for example, would the Court know what weight to give to the wishes of the individual applicants against the more general considerations which the Registrar would have in mind and of which the Court would not necessarily be apprised?
In the Bill we are seeking to bring before the Court at the first possible 499 moment the most important cases which are ready for trial, and also those cases which could build up a body of case law and act as precedents and guidance in subsequent cases; and thereby facilitate the operation of Clause 18, to which my hon. Friend referred, which specifically provides for machinery for dealing with cases quickly where they come within the framework of cases already decided.
My hon. Friend, quite legitimately and properly, quoted what was said yesterday by my right hon. Friend, and which appears in column 256 of the OFFICIAL REPORT. But I must remind him and the Committee of the context in which my right hon. Friend was speaking. He was replying to the proposal that certain agreements should be taken out of the obligation to register under Part I of the Bill at all. He was addressing himself to quite a different proposition from that with which we are faced today. The example he gave of the parties wishing to accelerate the hearing was primarily a case where some of the earlier decisions of the court had established a line of precedents; in other words, the operation of Clause 18.
In those circumstances, while I am sympathetic to what my hon. Friend said about parties being able to get a hearing as soon as possible, I think the Committee will appreciate that to accept this Amendment would create difficulties in the system, as it is envisaged in this Bill, disproportionate to the benefit which would accrue. For the reassurance of my hon. Friend I would say that it will be open to parties to make representations to the Registrar in the proper way as to the order in which cases should be taken. I am satisfied that, in practice, we shall not encounter the difficulties which may be apprehended from what he has said. I hope that that will bring a measure of reassurance to my hon. Friend, and that in those circumstances he will not feel it necessary to press the Amendment.
§ Sir L. Joynson-Hicks
For the sake of the record, may I make it clear, as my hon. and learned Friend the Parliamentary Secretary and the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) will appreciate, that I was not casting any aspersions on the 500 fairness of the Court? What I was trying to do, and what I have been trying to do throughout the consideration of the Bill, was to introduce into the Bill something which will show the public and industry as a whole that the Court can be seen to be fair, as well as our knowing it to be fair.
I appreciated that I should meet with certain difficulties in my proposal. I still feel that it is a great pity that the parties to the agreement must be excluded from the right of initial approach to the Court, but we have something in the assurance which my hon. and learned Friend has given, that they have the right to approach the Registrar, particularly in regard to the order of applications to the Court. With that I will be content for the time being. I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Fienburgh
I beg to move, in page 13, line 14, after "agreement" to insert:or any method of enforcing such restrictions".The Parliamentary Secretary, who is now with us for the night shift, the day shift having gone for its dinner, will realise, from a more than passing acquaintanceship with the Bill, that the Clause restricts the jurisdiction of the Court to matters involving the restrictions which are brought before it. The Restrictive Practices Court can, therefore, say on any restriction brought before it, "This restriction is against the public interest". The converse is also true and it can rule that a restriction brought before it is in the public interest, or, to put it on a lower plane, not against the public interest, and that therefore the restriction as such may continue to be operated.
There is open to the Court a wide variety of reasons for giving a ruling that a restriction may continue in operation. There are some people who would suggest that the variety of reasons available for the continuation of restrictions is so widely drawn that it is possible to drive a coach and horses through the Bill. There are others who suggest that that view is entirely wrong and that it is possible, so widely drawn is the subsequent Clause, to drive the entire rolling stock of British Railways through it at one point or another.
501 Let us for a moment consider some of the lines upon which a restriction may, by ruling of the Restrictive Practices Court, continue in operation. One example is when a restriction operates to the general safety of the public in regard to the purchase, consumption and installation of goods which require the application of skill. A second reason is if the ending of an agreement would deprive the public of certain benefits which flow from that agreement. A third is that the restriction is part of a defence mechanism operated by agreement among a group of people to defend themselves against the application of other restrictive practices applied by other people.
A restriction may be maintained by order of the Court if it is used to establish a firm bargaining base from which a group of people can effectively bargain with, say, a monopolistic supplier. It can be maintained in operation as a restriction if it is part of some form of rationalisation of industrial schemes as laid down in previous Statutes. It can be continued as a restriction by order of the Court, if, in the view of the Court, its removal would have an adverse effect on the level of employment in a particular area.
Of course, as we go on to subsequent Clauses, we shall be offered various other Amendments from the other side of the Committee which will add further reasons, further excuses, for permitting the Restrictive Practices Court to grant the continuance of a restriction which has been brought before it. It is fair to say, to put it at its lowest, that there will be many restrictions which fall within the scope of the Bill which will go before the Restrictive Practices Court and then be adjudged as not being contrary to the public interest for many of the reasons stated and may therefore continue to be in operation.
There always have been, in the public attitude to the whole question of monopoly, two points of condemnation. The first point was the existence of the monopolistic practices themselves. I am sure that in the public eye the economic significance of this was never so pronounced as the second point of condemnation, which was condemnation of the methods whereby the restrictive practices were enforced. I think that the public generally always felt more angry about the 502 existence of snoopers and private courts than it did about the basic monopolistic restrictive practices which lay behind them, and for the enforcement of which they were designed.
Thus, we find ourselves at the moment with a Bill under which, as it is now drafted, it may be said by the Court that a restriction may continue in the public interest, but that Court has no power and no jurisdiction whatever over the methods whereby the permitted restrictive practice is to be enforced. I think we ought to bear in mind responsibly the public attitude to this, because, as I have said, it is not only the existence of a bad practice which the public resents, but it is also the—in some ways—even worse practice whereby the bad practice was originally enforced.
Now, we shall find that, under the Clause, the Court will grant that a restriction may continue and the bad practices whereby it is continued, the bad practices which were so much in public evidence and which aroused so much public anger, can still be continued under this Bill. It may be argued that most of the wicked devices, such as the employment of snoopers and agents provocateurs and the use of the private court, flowed from collective resale price maintenance, and that it was really only in the enforcement of collective resale price maintenance that these various devices were used. If that were so, there would be no substance in our Amendment at all, because by categorically banning collective resale price maintenance, obviously the instrument whereby it was enforced would also fall, and there would be no argument about that at all.
I assume that there are other restrictions than collective resale price maintenance in the support of which various unpleasant devices may still be used. Let us take the first example, to move from precept to example. It is possible for a restriction to be continued in operation if it affects the purchase or installation of equipment which demands skill, as laid down in Clause 16. Surely, it is possible for a case like this to arise when there is amongst manufacturers and installers of electrical equipment a restrictive agreement governing their members, and it is therefore possible that this agreement could be brought before the Court. It is also possible, and I think likely, that the 503 Court would agree that under the terms of Clause 16, it was a perfectly valid restriction and should continue. Therefore, the restriction would continue to operate under Clause 16.
Now, let us assume that someone connected with the installation of this kind of machinery involving the use of skill and the protection of public safety and all the rest decides to break the agreement. How, in the first place, is it discovered that he has broken the agreement? There is the possibility here that the use of the snooper may arise.
If it is discovered that the agreement has been broken, by what means is the association involved or the parties to the agreement to enforce it? Possibly by the use of a secret court. If they bring a man before a secret court, they do not do so just to tell him that he has been a very naughty boy and must not do it again. They intend to apply some sanction to him. The sanction may be a fine imposed by the secret court as a result of the operation of an informer or a snooper based upon a restriction which has been legalised by the Restrictive Practices Court.
Take another example, this time an historical example. In the town of Jarrow in the 1930s, a consortium of steel makers desired to erect a steel works there. I see that the hon. and learned Member for Middlesbrough, West (Mr. Simon) is becoming interested. He did not clash with me on the facts, and I do not think that he will disagree with me now. The desire was to build a steel works, and one of the arguments put forward against the proposal by the steel industry at the time was that the building of a new steel works in Jarrow would have an adverse effect on employment levels in other areas of the country. As it would be a more modern steel works, it would take trade away from other areas.
It is possible under the Bill for an agreement to be ratified by the Restrictive Practices Court if it is designed to maintain the level of employment in a particular area in the light of predictable and current circumstances. Therefore, the position could arise that a group of manufacturers, as in the Jarrow case, might say that their agreement, which 504 had the effect of preventing a works opening somewhere else, was perfectly valid because if that works were opened up it might destroy the level of employment in their own area.
The method by which they prevent the other steel works opening, as happened in Jarrow, is to refuse to supply the works either with certain raw materials needed in its manufacturing processes or to refuse to provide it with the sheet and high tensile steel needed, in the first place, for building the works. Also, by international arrangements, they prevent the works from importing the sheet steel and other materials needed for building the plant. Therefore, under the provisions of the Bill, one can have a whole series of bad practices being continually applied under the sanction of the Restrictive Practices Court.
§ Mr. J. E. S. Simon (Middlesbrough, West)
If the hon. Gentleman was giving a hypothetical or fictional example for the sake of his argument, we are all prepared to accept it, but if it was supposed to be an historical account of whether the steel works should have been established at Jarrow or on Tees-side then it is very far from what happened.
§ Mr. Fienburgh
We can argue about this ad infinitum, as the hon. and learned Gentleman and I argued during the Committee stage of the Iron and Steel Act. I think that on that occasion it ended up with honours being even and with the hon. and learned Gentleman saying that he would like to delete certain arguments from the OFFICIAL REPORT because, on second thoughts, he was not convinced of their validity.
§ Mr. Fienburgh
Therefore, the position in which we find ourselves is that in the Bill the Government are setting their faces against the continuation of the secret court, against the operation of the snooper and against the imposition of fines by the secret court in connection with collective resale price maintenance. In connection with individual resale price maintenance the Government are creating alternative methods whereby a manufacturer can enforce individual resale price maintenance. In the other field of restrictions which can still be validated by the Restrictive Practices Court the practices 505 to which the public object are still possible, and as I think I have shown by the examples I have quoted, can still be continued.
This, of course, is only the old, old moral and ethical argument which has perturbed mankind through the ages—whether an end which is desirable justifies the means employed. It may be arguable that the end for which a particular restriction is designed is perfectly desirable. That is only one half of the argument. One half of the argument is to say that we wish to do a certain thing. The second half is to say whether the means which we seek to employ are worthy of that end or whether they debase that end. This is an argument which has been going on ever since man began to philosophise and to have ethical and moral qualms about anything.
There are people who say that the war with the Japanese had to be ended quickly and smartly, and that the means employed, the dropping of an atom bomb, justified that end. I disagree, but there are others who take the opposite view. Others argue that it is better to try to protect small children by the institution of the National Society for the Prevention of Cruelty to Children—
§ Mr. Fienburgh
A restricting Bill should surely not be employed, Sir Rhys, to restrict argument unduly. I am giving illustrations of the moral predicament in which the Government find themselves—and it is a moral predicament. They agree about certain things and are prepared to legislate for certain things, whereas the community at large objects to the employment of certain means. The end desired is the maintenance of certain restrictive practices for which there could be good motives; the means to which the public objects are those which I have discussed—the secret court, the snooper and informer, the fine by secret court and the operation of many bad practices of that nature in support of perfectly desirable ends.
That is our argument, and that is why, by the Amendment, we seek to give to the Restrictive Practices Court jurisdiction not only over ends but over means, so that that Court can say to the parties who 506 come before it seeking the validation of a restrictive practice, "Yes, we accept that this restrictive practice, this restriction, is proper for any one of a half-dozen reasons laid down in the Bill, but we do not accept that the means by which you apply that restriction are proper, morally or ethically, in the light of public opinion or in the light of any reasonable consideration.
Therefore, having accepted your restriction, we now ask you to go away and find more acceptable means of applying your restriction"—whether that be by contractual relationships between the parties which can be tested at civil law or by any other device—or whether, as I believe a subsequent Amendment suggests, the High Court should be brought in to deal with this problem as it is in the case of individual resale price maintenance. But that I am not prepared to discuss at this stage as it arises subsequently.
I do not see how the Parliamentary Secretary can really resist the argument—which, I am sure, will be endorsed by many hon. Members opposite—that we are doing only half the job if we give the Restrictive Practices Court jurisdiction over the ends without giving it some moral and ethical jurisdiction over the means employed to sustain those ends.
§ Mr. Walker-Smith
The hon. Member for Islington, North (Mr. Fienburgh) has moved his Amendment with eloquence and force, and has sought to make a clear distinction between the agreements which are made containing the restrictions, and the methods of enforcement. Indeed, I think the Committee will appreciate that the whole of his case rested upon the validity of the dichotomy he sought to establish.
It is my submission to the Committee that an analysis of the provisions of the Bill shows that that dichotomy does not exist in the way that the hon. Member suggested. May I follow him in taking the analogy of Clause 19, which is the Clause under which collective enforcement of resale price maintenance is prohibited. The hon. Member was concerned that there might still be a power for fines, private courts, and so on, in respect of an agreement found by the Restrictive Practices Court not to be contrary to the public interest.
If he will look carefully at Clause 19 he will see that there is not in the Clause 507 any express prohibition of the private Court or the fine in the case of resale price maintenance. Nevertheless, we are quite confident, as was said on Second Reading, that the provisions of Clause 19 will indirectly bring those methods of enforcement to an end in regard to resale price maintenance.
§ Mr. Fienburgh
The hon. and learned Member was listening very carefully and, if he misunderstood, I am sure I must not have expressed myself very well, but I made the same point. I said that because we were banning the restriction of collective resale price maintenance, then, obviously, the means of enforcing it would wither away. But I added that where we are leaving a restriction alone, then, of course, nothing will wither away at all, whether it be a system of secret courts or snoopers or fines.
§ Mr. Walker-Smith
If there is a misunderstanding I am sure that it is not due to any lack of lucidity on the hon. Member's part. I do not think there is any misunderstanding, as he will realise if he hears me to the end.
Clause 19, as he agrees—so I understand—does not expressly make unlawful the private court or the fine. Nevertheless, we are satisfied that in the case of resale price maintenance the provisions of Clause 19 will, albeit indirectly, mean the end of those procedures in regard to resale price maintenance. The reason is this: the sanction behind enforcement and acceptance of fines is, of course, the sanction of the withholding of supplies if one does not bow down to the unofficial discipline imposed by those courts and by those fines. In the case of resale price maintenance, Clause 19 prohibits boycott and collective discrimination and thereby strikes away the only basis on which a system of fines and private courts can rest.
It is quite true, as the hon. Member said and as the Committee knows, that there is not an analogous provision in Part I of the Bill doing away with collective enforcement in the shape of collective discrimination and boycott in restrictive agreements other than those of resale price maintenance. But, if I may respectfully say so, this is the flaw in the hon. Member's argument: the provision for collective discrimination or 508 boycott in an ordinary restrictive agreement—that is to say, other than resale price maintenance—is not something out-with the agreement which is registered and which comes under the jurisdiction of the court.
On the contrary, it is one of the things which is specifically provided for among the matters which bring an agreement within the registrable provisions of Clause 5. It is the restriction specified in subsection (1, e) of Clause 5. It is the one which makes an agreement imposing a collective discrimination something which has to be registered and brought before the Court. That is why I say that there is not, in fact, a dichotomy between the agreement and the means of enforcing it, because the method of enforcing it is prescribed in the agreement itself, therefore it comes before the Court and the Court is able to adjudicate upon it.
If the Court thinks that the restriction imposed by way of collective discrimination or boycott is contrary to the public interest, it will say so and prohibit it. If, on the other hand, there is no provision in the agreement for collective discrimination or boycott it cannot be effectively practised and, just as in the case of resale price maintenance, without that basis the superstructure of fines and private courts cannot stand.
Under those circumstances and with that in mind, if we look back to the provisions of Clause 15, the Committee, I hope, will agree that there is a sufficiently wide power in the Court, because the Court can order that powers be provided for restraining the parties to the agreement, or any of them, from giving effect to or enforcing the agreement in respect of the restriction or making any agreement like it. It gives power, if the Court is satisfied that the agreement for collective discrimination or boycott in cases other than resale price maintenance, ought not to go on, to prohibit it and make an order so doing. Any party disobeying that order, or seeking to put the agreement and the procedures of collective discrimination or boycott into force would be acting in contempt of court by reason of disobeying that order. I think that that is a satisfactory provision and should work satisfactorily in practice.
509 I do not want to anticipate by going into the theme, mentioned, in passing, by the hon. Member towards the end of his speech, of the possibility of there being a contractual right of the parties to enforce these restrictive agreements. All I would say on that is, as the hon. Member and the Committee are well aware, that there is no such contractual right in our law as it is at present.
§ Mr. Fienburgh
The hon. and learned Gentleman has arrived satisfactorily at his conclusion because, on the branch line, he has taken a certain course and set the signals at clear all the way to the conclusion he wished to reach.
If we go back along the branch line of his arguments the other way, we find that under Clause 5 (1, e) an agreement has to be registered and, having been registered, can be brought to the Court under Clause 15. The Court has jurisdiction to do one of two things about that agreement. It can say that an agreement in terms of Clause 5, subsection (1, e) is a proper agreement, a proper restriction to continue and not to be ended as the hon. Gentleman suggested, but that it can continue because of the provisions of Clause 16.
In other words, I am setting the signals the other way. Instead of the Court saying. "We do not like this agreement and do not think it is proper, therefore you cannot carry it on", I say it has every right—if not, why is this in the Bill at all?—to say that the agreement must be registered and must come before the Court and that the job of the Court is to say whether the agreement shall stop or go on.
If it says that it shall go on, then, under subsection (1, e) there is power to have the restriction enforced. If it is enforced under a type of agreement we do not like, the Court has no right to say that the agreement may continue, but that other devices must be sought for maintaining it.
§ Mr. Walker-Smith
The hon. Gentleman will appreciate that he accepts, as I understand it now, that the restrictive agreement in respect of the enforcement—that is, by way of collective discrimination or boycott—is provided for in Clause 5 (1, e), and, therefore, is examinable by the Court. If the Court approves that agreement for collective discrimination 510 and boycott, it will have approved it not only because it has got through one or other of the gateways, as they are called, in paragraphs (a) to (g) in Clause 16, but also because under the tailpiece they have been found not to be contrary to the public interest.
Therefore, the Court has examined the impact of the agreement for collective discrimination, for what the hon. Member calls the enforcement part of it, and it has done so against the criterion of the public interest. On the hon. Member's hypothetical case, the Court has approved it. Therefore, one must assume that if the Court did approve such an agreement, it was something which in the public interest ought not to be stopped.
If, on the other hand, the Court considers that it is contrary to the public interest that this collective discrimination should continue—if, that is to say, the Court interprets it in the particular case on the same lines as is provided for in the case of retail price maintenance by Clause 19—the Court will prohibit it and will do so quite successfully and definitely. That is the position.
The hon. Member is apprehensive that the Court may be unduly tender on these things, because there is no contractual method of enforcing them.
§ Mr. Walker-Smith
I do not want to anticipate another debate but I should hardly think that the Court would have that consideration very much in mind, for the Court is there to say whether it is contrary to the public interest and not to suggest means of enforcing the agreements, even if it declares them not to be contrary to the public interest.
§ Mr. E. Fletcher
The Parliamentary Secretary has not answered the point raised by my hon. Friend the Member for Islington, North (Mr. Fienburgh). He has fallen into this difficulty. He has told us what the Court can do if it finds an agreement contrary to the public interest or not contrary to the public interest. What he has not addressed his mind to is the likelihood that there might be all kinds of other cases. He has not exhausted all the possible cases that come before the Court.
All we are dealing with is jurisdiction. We are anxious that the Clause should 511 have the widest possible jurisdiction. We do not want to restrict it. We do not want to confine the Court to the limited choice of saying either that an agreement is all right and can go on or that it must be scrapped, because it by no means follows that everything will fall neatly into one or other of these two categories.
There may well be a whole series of agreements which might be acceptable and not contrary to the public interest if certain conditions in them were eliminated. In fact, towards the end of his earlier remarks the Parliamentary Secretary seemed to suggest that the Amendment was unnecessary. The first part of his speech was directed—I thought, quite unsuccessfully—to trying to demolish the arguments of my hon. Friend, and then towards the end he seemed to suggest that, after all, it did not very much matter, because under subsection (2) the Court could make orders giving effect to enforcing, or purporting to enforce, an agreement or making some other order.
All we are trying to do is to make it clear beyond all possible doubt that the Court has the wide jurisdiction necessary to enable it to look at any agreement and to deal with it, and, if necessary, to deal with it in parts, and to say that it would be all right if such and such objectionable provision were eliminated. It may be that the President will tell us that the Court can do that anyhow, because of subsection (2). If that is the argument there can be no possible reason for resisting the Amendment.
We think it necessary to make this matter clear, for this reason. As the Parliamentary Secretary realises, Clauses 19 and 20 deal with the limited subject of resale price maintenance. They fall under Part II of the Bill and are entirely outside the competence of this Restrictive Practices Court. As I understand, the Court will have no jurisdiction whatever to deal with any matter that falls to be dealt with under Part II of the Bill, because the jurisdiction of the Court is limited to what will happen under Part I.
If, contrary to the provisions of Clause 19, which prohibits the collective enforcement of resale price maintenance, a person were to disobey, proceedings for the enforcement of that Clause will come 512 before the ordinary Court in the ordinary way, by injunction. Therefore, the Restrictive Practices Court will not be concerned with giving effect to Clause 19. But, as the latest Report of the Monopolies Commission shows, the collective enforcement of resale price maintenance is not the only evil which is enforced by collective action, whether by means of stop lists or by secret courts and so forth. There are other devices, not connected with resale price maintenance, such as exclusive dealing and limited markets and all kinds of things, equally capable of enforcement by collective measures, which ought to be stopped.
The secret courts deal with a variety of other matters and, the Parliamentary Secretary realises, secret courts and stop lists are not in any way expressly banned by the Bill. The Parliamentary Secretary relies upon the indirect effect of Clause 19 to put an end to secret courts and stop lists in so far as collective resale price maintenance is concerned, but we are anxious to put an end to secret courts and all other methods of collective enforcement of any type of agreement, whether it relates to resale price maintenance or anything else. Therefore, it is necessary to make sure that the jurisdiction or the Restrictive Practices Court under Clause 15 is sufficiently wide to deal with this matter.
There is no need to remind the Committee that this Court will have no inherent jurisdiction. Any jurisdiction which this Court enjoys will be derived from this Bill, as an Act of Parliament, and I assume that this jurisdiction will be circumscribed by the Bill and will be narrowly interpreted if any question of jurisdiction arises. It is essential, therefore, that in a Clause giving jurisdiction to the Court there should be no doubt about what its powers should be. It is the object of the Amendment to ensure that, and I think that the President of the Board of Trade must tell us why the Government are resisting it. Do they say that it is unnecessary? If they do, I would say that that is an additional reason why a provision of this kind should be inserted in the Bill.
§ Mr. Reader Harris (Heston and Isleworth)
I listened very carefully to the hon. Member for Islington, North (Mr. Fienburgh). He moved the Amendment in open terms, but entirely forgot to 513 relate it to his argument. Could the hon. Member for Islington, East (Mr. E. Fletcher) explain how the Amendment gets over the point?
§ 9.30 p.m.
§ Mr. Fletcher
I am sorry. This is a difficult subject, and I was hoping that between us we had succeeded in putting the point. I will endeavour to put these things in the simplest possible language.
Subsection (1) of Clause 15 is the only provision in this Bill which gives this Court any jurisdiction; in other words, it tells the Court what it can do.
§ Mr. Fletcher
Omitting the superflous words, it says that the Court shall have jurisdiction to declare whether or not any restrictions in an agreement to which Part I applies are contrary to the public interest. We do not want the Court to be confined merely to saying either that a particular agreement is contrary to the public interest or that it is not. We are concerned not merely with the contents of agreements but we are concerned also with the methods by which agreements are enforced.
If the hon. Member for Heston and Isleworth (Mr. R. Harris) has studied the latest Report of the Monopolies Commission—and, after all, it was that which was the genesis, so to speak, of this Bill—he will have in mind that that Report is directed not to saying that agreements of a particular kind are contrary to the public interest, but to saying that the collective enforcement of certain agreements is contrary to the public interest, because certain agreements are enforced by practices, such as secret courts, stop lists, and other methods, which, to say the least, are offensive to public opinion.
Therefore, any Court must consider two things, not only the objects of any agreement, as to whether, if it rid itself of any objectionable provisions, it might serve the public interest, but also whether the methods by which the agreement is going to be enforced are themselves objectionable. I should have thought that this was so plain that we might hope eventually to get the President's concurrence. What we are pressing for is to make it quite clear that the Court should have jurisdiction to deal not only with the parts of the agreement which provide 514 for what the prices shall be and where people shall deal, and so forth, but also with any parts of the agreement, whether written or oral, providing for the enforcement of it.
It seems to me that this Court will, without that power, be paralysed. In, discussing earlier Clauses, it has already been pointed out that unless certain of them are redrafted it will be very easy for a great number of traders to defy this Bill with impunity; and it is because we are so shocked at some of the weaknesses in earlier Clauses that we feel it should be made quite clear that the Court has power to deal with all these matters.
As to whether it is necessary or not, the Parliamentary Secretary referred to subsection (2). I imagine that he will pray that in aid in saying it is not necessary. But we cannot be too careful. Even if the Parliamentary Secretary does not think it necessary, what objection can there be to inserting the words, so as to make it plain to the world that the Court has this power? What we do not want is that, after this Bill has been enacted, a trader can object—contrary to the opinion of the Parliamentary Secretary—and can point out that the Court has not the jurisdiction to do this.
Why take that risk? Why not make it plain? That is the simple object of this Amendment, and I hope that the President, with his good sense and sympathy to our constructive arguments, will now be disposed to accept it.
§ Mr. Simon
There is an important point involved here, and I should like to be certain that it is covered by the terms of the Clause. There are many agreements at present in force whereby restrictions are imposed on the parties. Those restrictions are enforceable not, as has been said, by secret courts but, generally speaking, by private courts set up by the parties themselves, and those courts only have jurisdiction by virtue of the agreements.
It is clear that the restrictions can be declared by the Court to be contrary to public interest. Both hon. Members who have spoken on the Amendment have used the phrase "either the particular agreement is contrary to public interest or not". With great respect, that is not so. The Court can say that specific restrictions within the agreements are 515 contrary to public interest; in other words, the Court has not merely to say that the whole agreement is contrary to the public interest or not.
However, supposing that the Court says that the particular restriction is not against public interest, there still remains the residual question, can it be enforceable through the ordinary courts—presumably it can, since it is not contrary to public interest—or is there still an alternative method of enforcement through the private courts which are established under the agreement? That really comes down to the question whether a stipulation in the agreement establishing the private courts of the parties comes within the words "any restrictions". I should be grateful to hear from my hon. Friend whether in his opinion it does so or not.
§ Mr. A. E. Oram (East Ham, South)
If I understood the Parliamentary Secretary aright, he was arguing at one point that undesirable methods of enforcement would come to an end in those cases where the restrictive agreement is condemned by the Court. The hon. Gentleman reinforced that later in agreeing that this Amendment is unnecessary, but if, in fact, those methods of enforcement would fall to the ground, why not write this Amendment into the Bill? That would at least have the virtue of making the Clause clearer. It would at least have the virtue of making certain that the Court has the power both to condemn the agreement and to condemn the methods used to enforce the agreement. I see no harm in that; on the contrary; I can see much virtue in it.
I want to reinforce the argument of my hon. Friend the Member for Islington, East (Mr. E. Fletcher). He said that so often it is not so much that the agreement is reprehensible in these matters but that the method of enforcement is undesirable. Certainly that is so in the public mind. We can recall that a year or so ago there was a good deal of publicity in the Press about Mr. Mendelssohn and other cases, and I am sure that public indignation over those cases was directed more to the secret courts, more to the snoopers, than to the agreements which we coming under criticism.
516 What the public does not like in these matters is to have agents of trade associations going into shops, perhaps representing themselves to be ordinary customers, and trapping a shopkeeper into breaking an agreement into which he or she had entered. It is that sort of thing that the public find most undesirable and that the Court should have full power to condemn. Secret courts have been mentioned—
§ Mr. Oram
I am sure that the hon. and learned Member for Middlesbrough, West (Mr. Simon) will agree that there are in fact secret courts, and it is those that the Restrictive Practices Court ought particularly to be able to condemn. There are secret courts where the Press and the public are not allowed, and those are the secret courts to which the public very strongly object, for they offend against the public sense of what is fair in these matters. The Press and the public are permitted to enter all our courts and Governmental institutions, which gives them the hallmark of fairness.
Where there is, as there may well be, an agreement which is comparatively harmless combined with a method of enforcement which is offensive, the Restrictive Practices Court ought to have full opportunity to say that the agreement is all right but that the method of enforce-men is wrong. With the Clause worded as it is, I do not think that the Court can have that power. Our Amendment is designed to ensure that it has that power.
§ Mr. R. Harris
I should have thought that the Bill made it clear that the Restrictive Practices Court has that power. One thing that is certain is that unless there is power to enforce an agreement which has been approved by the Court, then the whole Bill becomes nonsense. Clearly, if the Court approves an agreement, there must be power to enforce it.
§ Mr. Harris
I hope that the Court will be able to say, "We do not like this method of enforcement"—
§ Mr. Harris
—and will be able to suggest some other form of enforcement. I would support the Amendment to that extent. I do not disagree with what has been said by the hon. Member for Islington, North (Mr. Fienburgh), for he has stated the situation correctly. There must be some method of enforcing the agreement.
I do not agree that the method of private courts is necessarily bad. The hon. Member for Islington, East (Mr. E. Fletcher) is waving the Commission's Report at me. The Minority Report did not condemn all these methods. It is not true to say that all the so-called secret courts are as bad as some hon. Members opposite and the Press have made them out to be—
§ Mr. Harris
The hon. Member for Islington, North said that they were bad. Surely, Sir Rhys, I am entitled to say that they are not bad.
§ The Deputy-Chairman
The hon. Gentleman is not following the argument. The method of enforcement is not relevant here.
§ Mr. Harris
The method of enforcement has been mentioned. I gather that some hon. Members opposite are against what they describe as the secret court method. I am saying that there is no particular reason why the Restrictive Practices Court should not approve of these so-called secret courts. After all, the only reason why they are secret is that they are not covered by the laws of privilege which apply to the ordinary courts of our land—
§ The Deputy-Chairman
This discussion is irrelevant to the Amendment. The question is wether the method of enforcement is covered by the Clause or not.
§ Mr. Harris
I suppose, Sir Rhys, we cannot discuss the particular method of enforcement. Maybe by so doing we should be anticipating later Amendments.
I have tried to cover in a later amendment the other point raised by the hon. Member for Islington, North, showing how much I am in sympathy with the point of view which he has put forward.
The main point which we must get across is that there must be some method of enforcing these agreements. It would be intolerable if the Court disapproved a particular agreement merely because one particular item of the method of enforcement was not approved by the Court. I am certain that in practice the Court will look at the agreement and say whether or not it is in the public interest, and then look at the method of enforcement and presumably make suggestions on the way in which the agreement can be enforced by a method which is not against the public interest.
§ Mr. Fienburgh
I should like to pick up a point made in the last speech by the Parliamentary Secretary. He sought to prove that the question of enforcement was within the jurisdiction of the Court. I think that that was his final point. Under Clause 15 (1) the jurisdiction of the Court covers the restrictions and the restrictions alone. The Parliamentary Secretary then referred us to the tail end, as he called it, of Clause 16, which, he said, imported considerations of public interest. Therefore, if we added the two together, we should find that the Court would be awarded jurisdiction over the methods of enforcement because that would be a matter of public interest, as set out in Clause 16.
When we look at Clause 16, we see that it is again exclusively related to the restrictions. There is the question of the agreement as a whole, and the agreement as a whole does not come before the Court. The agreement contains two things—the restriction and the means of enforcement of that restriction. Nowhere, in either this Clause or the subsequent Clause, has the Court any jurisdiction over the agreement as a whole. It has jurisdiction only over the restriction, which is only one part of the agreement. The other part of the agreement, which is the method of enforcement, it cannot touch 519 at all. I think that the lawyers might often argue successfully that if the Court tried to say anything at all about the part of the agreement relating to enforcement or if it had anything to say about the agreement other than the part concerning the restriction which it either approved or disapproved that would not stand up to examination.
§ Mr. Walker-Smith
I will try to reply in a few words to the points made since I last addressed myself to this Amendment. The hon. Member for Islington, North (Mr. Fienburgh) is quite right when he says that there is a distinction between a restriction and the agreement that embodies it and that that is of importance in this context, although I am bound to say that it has not the importance which he sought to attribute to it.
If the Committee will bear with me, I will make another attempt to explain why, in my view, this Amendment is unnecessary. The Court has jurisdiction to determine whether restrictions are contrary to the public interest. The hon. Gentleman's Amendment is concerned with what he calls methods of enforcement, and we are agreed that for this purpose methods of enforcement may be such things as private courts with their fines, collective boycott and discrimination, stop lists, and the like.
Taking, first, the case of the private court which is set up by agreement between the parties, which is the case postulated by my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon), the court is seized of jurisdiction in regard to the agreement setting up the private court and the provisions which I have already drawn attention to in subsection (2, a) enables the Court to make an order restraining the parties from enforcing or purporting to enforce the agreement.
It is, therefore, clear that if the private court is constituted on that basis, the Restrictive Practices Court has jurisdiction under this Clause. If the private court does not function on this basis, the other only basis on which it could be erected, is, as I suggested earlier, the basis of collective discrimination, or the boycott, or the stop-list. If there is agreement for that, whereby the parties accept these restrictions implicit in the collective discrimination, that is one of 520 the matters covered in Clause 5 (1, e). Therefore, that is also directly justiciable by the Restrictive Practices Court and an order could be made preventing it from going on.
There is only one other question which remains. Suppose these restrictions are embodied in a single agreement and the Court is minded to approve the restriction, for example, in respect of common minimum prices under Clause 5 (1, a) but it does not wish to approve the restriction in respect of collective discrimination under Clause 5 (1, e) because it does not wish any possibility of a private court. In my submission, the Court is in no difficulty in this matter, because that is what the provisions of subsection (3) are intended to deal with. Those are the provisions—
§ Mr. Walker-Smith
The hon. Member shakes his head, but I am gratified to observe that the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) nods, and I am always glad to have his acquiescence on any matter of law.
Those are the provisions whereby, before the Court makes its order, it is possible for the parties to modify the agreement, that is to say, they can split the agreement and ask the Court to approve—taking my example—of the provisions dealing with common minimum prices; and the Court can prohibit the agreement in respect of collective discrimination. Alternatively, as a matter of precedent the Court could prohibit the original provision entirely and authorise a varied agreement containing only the part which it wished to approve as being not contrary to the public interest and prohibiting the other part.
I think that that is as clear as I can make it. I am satisfied that this provision is not necessary to do what is required and the Committee will appreciate that to write in words which are not necessary will tend only to confuse and not to clarify. I hope that I have succeeded in convincing the Committee. If I have failed, I hope that we may agree to differ and so solve the difficulty in that way.
§ Sir L. Ungoed-Thomas
I am obliged to the Parliamentary Secretary for his very clear exposition. What emerges from it is that it does not meet the sub 521 stance of the points made by my hon. Friends. I will take his answer briefly, point by point. Clause 15 (2) deals only with cases where the restrictions are determined by the Court to be contrary to the public interest. That was not the gravamen of the case made by my hon. Friends the Member for Islington, North (Mr. Fienburgh) and Islington, East (Mr. E. Fletcher).
We are concerned with the case where it is not declared contrary to the public interest and, therefore, Clause 15 (2) does not cover that case. The hon. Gentleman said, rightly, that the method of enforcement by collective boycott or, rather, by the withholding of goods, would be covered by Clause 5 (1. e).
Again, I agree that the method of withholding goods would come within Clause 5 (1, e), but it does not cover other methods. For instance, it does not cover the method of enforcement by fine; it does not cover the method of enforcement by cutting off from membership of an association; it would not cover enforcement by the method of deleting a member from certain privileges of association which may be absolutely vital to him, such as participation in research work.
§ Take the case with which the hon. and learned Member for Middlesbrough, West (Mr. Simon) was so much concerned, namely, the operation of secret and private courts. We can envisage the possibility that the Court might permit as a method of enforcement a private court with safeguards, for instance, representation by counsel, or solicitors—I am prepared to bring them in—and the operation of the Court in public, instead of in secret and with all kinds of safeguards laid down by the Court, as we have, for instance, in the case of the British Medical Council. In those circumstances, a private court might be unobjectionable.
§ All those come within the terms of the Amendment. All those would enable the Court to have discretion—that is all we ask—with regard to the methods of enforcement when none of those methods of enforcement is covered by Clause 15 (2), or Clause 5 (1, e). Although we are very grateful for the Parliamentary Secretary's explanation, we must press the Amendment.
§ Question put, That those words be there inserted:—
§ The Committee divided: Ayes 187, Noes 217.525
|Division No. 164.]||AYES||[9.57 p.m.|
|Ainsley, J. W.||Cullen, Mrs. A.||Howell, Denis (All Saints)|
|Allaun, Frank (Salford, E.)||Dalton, Rt. Hon. H.||Hubbard, T. F.|
|Allen, Arthur (Bosworth)||Darling, George (Hillsborough)||Hughes, Cledwyn (Anglesey)|
|Allen, Scholefield (Crewe)||Davies, Stephen (Merthyr)||Hughes, Hector (Aberdeen, N.)|
|Awbery, S. S.||Deer, G.||Hunter, A. E.|
|Bacon, Miss Alice||Delargy, H. J.||Irvine, A. J. (Edge Hill)|
|Bence, C. R. (Dunbartonshire, E.)||Dodds, N. N.||Irving, S. (Dartford)|
|Benn, Hn. Wedgwood (Bristol, S.E.)||Dugdale, Rt. Hn. John (W. Brmwch)||Jay, Rt. Hon. D. P. T.|
|Benson, G.||Edelman, M.||Jenkins, Roy (Stechford)|
|Beswick, F.||Edwards, Rt. Hon. John (Brighouse)||Johnson, James (Rugby)|
|Blackburn, F.||Edwards, Rt. Hon. Ness (Caerphilly)||Jones, David (The Hartlepools)|
|Blenkinsop, A.||Edwards, Robert (Bilston)||Jones, Jack (Rotherham)|
|Blyton, W. R.||Evans, Stanley (Wednesbury)||Jones, J. Idwal (Wrexham)|
|Bottomley, Rt. Hon. A. C.||Fernyhough, E.||Jones, T. W. (Merioneth)|
|Bowden, H. W. (Leicester, S.W.)||Fienburgh, W.||Key, Rt. Hon. C. W.|
|Bowen, E. R. (Cardigan)||Fletcher, Eric||King, Dr. H. M.|
|Bowles, F. G.||Forman, J. C.||Lawson, G. M.|
|Boyd, T. C.||Fraser, Thomas (Hamilton)||Ledger, R. J.|
|Braddock, Mrs. Elizabeth||Gibson, C. W.||Lee, Frederick (Newton)|
|Brockway, A. F.||Gooch, E. G.||Lee, Miss Jennie (Cannock)|
|Broughton, Dr. A. D. D.||Grenfell, Rt. Hon. D. R.||Lever, Leslie (Ardwick)|
|Brown, Thomas (Ince)||Grey, C. F.||Lewis, Arthur|
|Burton, Miss F. E.|
|Butler, Herbert (Hackney, C.)||Griffiths, David (Rother Valley)||Logan, D. G.|
|Butler, Mrs. Joyce (Wood Green)||Griffiths, Rt. Hon. James (Llanelly)||Mabon, Dr. J. Dickson|
|Callaghan, L. J.||Griffiths, William (Exchange)||McGhee, H. G.|
|Castle, Mrs. B. A.||Hale, Leslie||McGovern, J.|
|Champion, A. J.||Hamilton, W. W.||McInnes, J.|
|Chapman, W. D.||Hannan, W.||McKay, John (Wallsend)|
|Clunie, J.||Hastings, S.||McLeavy, Frank|
|Coldrick, W.||Hayman, F. H.||MacMillan, M. K. (Western Isles)|
|Collick, P. H. (Birkenhead)||Henderson, Rt. Hn. A. (Rwly Regis)||MacPherson, Malcolm (Stirling)|
|Collins, V. J. (Shoreditch & Finsbury)||Harbison, Miss M.||Mahon, Simon|
|Corbet, Mrs. Freda||Hobson, C. R.||Mallalieu, E. L. (Brigg)|
|Craddock, George (Bradford, S.)||Holmes, Horace||Mallalieu, J. P. W. (Huddersfd, E.)|
|Cronin, J. D.||Holt, A. F.||Marquand, Rt. Hon. H. A.|
|Crossman, R. H. S.||Houghton, Douglas||Mason, Roy|
|Mayhew, C. P.||Price, Philips (Gloucestershire, W.)||Thomson, George (Dundee, E.)|
|Messer, Sir F.||Probert, A. R.||Timmons, J.|
|Mikardo, Ian||Proctor, W. T.||Tomney, F.|
|Mitchison, G. R.||Pryde, D. J.||Turner-Samuels, M.|
|Monslow, W.||Randall, H. E.||Ungoed-Thomas, Sir Lynn|
|Moody, A. S.||Redhead, E. C.||Usborne, H. C.|
|Morris, Percy (Swansea, W.)||Reeves, J.||Wade, D. W.|
|Mort, D. L.||Roberts, Albert (Normanton)||Warbey, W. N.|
|Moss, R.||Roberts, Goronwy (Caernarvon)||Weitzman, D.|
|Moyle, A.||Robinson, Kenneth (S. Pancras, N.)||Wells, William (Walsall, N.)|
|Mulley, F. W.||Ross, William||West, D. G.|
|Neal, Harold (Bolsover)||Royle, C.||Wheeldon, W. E.|
|Noel-Baker, Francis (Swindon)||Short, E. W.||White, Henry (Derbyshire, N.E.)|
|Oliver, C. H.||Silverman, Julius (Aston)||Wilkins, W. A.|
|Oram, A. E.||Skeffington, A. M.||Willey, Frederick|
|Or bach, M.||Slater, Mrs. H. (Stoke, N.)||Williams, Rev. Llywelyn (Ab'tillery)|
|Oswald, T.||Slater, J. (Sedgefield)||Williams, W. R. (Openshaw)|
|Owen, W. J.||Smith, Ellis (Stoke, S.)||Willis, Eustace (Edinburgh, E.)|
|Paling, Rt. Hon. W. (Dearne Valley)||Sorensen, R. W.||Wilson, Rt. Hon. Harold (Huyton)|
|Paling, Will T. (Dewsbury)||Steele, T.||Winterbottom, Richard|
|Palmer, A. M. F.||Stewart, Michael (Fulham)||Woodburn, Rt. Hon. A.|
|Pargiter, G. A.||Stones, W. (Consett)||Woof, R. E.|
|Parker, J.||Stross, Dr. Barnett (Stoke-on-Trent, C.)||Yates, V. (Ladywood)|
|Parkin, B. T.||Summerskill, Rt. Hon. E.||Zilliacus, K.|
|Paton, J.||Sylvester, G. O.|
|Plummer, Sir Leslie||Taylor, Bernard (Mansfield)||TELLERS FOR THE AYES:|
|Popplewell, E.||Taylor, John (West Lothian)||Mr. Pearson and Mr. J. T. Price.|
|Agnew, Comdr. P. G.||Fisher, Nigel||Kirk, P. M.|
|Aitken, W. T.||Fleetwood-Hesketh, R. F.||Langford-Holt, J. A.|
|Allan, R. A. (Paddington, S.)||Fletcher-Cooke, C.||Leather, E. H. C.|
|Alport, C. J. M.||Fraser, Hon. Hugh (Stone)||Leavey, J. A.|
|Amery, Julian (Preston, N.)||George, J. C. (Pollok)||Leburn, W. G.|
|Arbuthnot, John||Gibson-Watt, D.||Legge-Bourke, Maj. E. A. H.|
|Armstrong, C. W.||Glover, D.||Legh, Hon. Peter (Petersfield)|
|Ashton, H.||Godber, J. B.||Lindsay, Hon. James (Devon, N.)|
|Baldock, Lt.-Cmdr. J. M.||Gomme-Duncan, Col. Sir Alan||Linstead, Sir H. N.|
|Baldwin, A. E.||Cower, H. R.||Lloyd, Maj. Sir Guy (Renfrew, E.)|
|Balniel, Lord||Graham, Sir Fergus||Longden, Gilbert|
|Barlow, Sir John||Grant, W. (Woodside)||Lucas, Sir Jocelyn (Portsmouth, S.)|
|Barter, John||Green, A.||Lucas, P.B.(Brentford & Chiswick)|
|Bell, Philip (Bolton, E.)||Gresham Cooke, R.||Lucas-Tooth, Sir Hugh|
|Bell, Ronald (Bucks, S.)||Grimston, Hon. John (St. Albans)||Macdonald, Sir Peter|
|Bennett, Dr. Reginald||Grimston, Sir Robert (Westbury)||McKibbin, A. J.|
|Bevins, J. R. (Toxteth)||Grosvenor, Lt.-Col. R. G.||Mackie, J. H. (Galloway)|
|Biggs-Davison, J. A.||Gurden, Harold||McLaughlin, Mrs. P.|
|Bishop, F. P.||Hall, John (Wycombe)||Maclean, Fitzroy (Lancaster)|
|Body, R. F.||Harris, Frederic (Croydon, N.W.)||McLean, Neil (Inverness)|
|Boyle, Sir Edward||Harris, Reader (Heston)||MacLeod, John (Ross & Cromarty)|
|Braine, B. R.||Harrison, A. B. C. (Maldon)||Macpherson, Niall (Dumfries)|
|Braithwaite, Sir Albert (Harrow, W.)||Harrison, Col. J. H. (Eye)||Maddan, Martin|
|Brooke, Rt. Hon. Henry||Harvey, Air Cdre. A. V. (Macclesfd)||Manningham-Buller, Rt. Hn. Sir R.|
|Brooman-White, R. C.||Harvey, Ian (Harrow, E.)||Markham, Major Sir Frank|
|Bryan, P.||Harvey, John (Walthamstow, E.)||Marlowe, A. A. H.|
|Burden, F. F. A.||Hay, John||Marshall, Douglas|
|Butcher, Sir Herbert||Heald, Rt. Hon. Sir Lionel||Mathew, R.|
|Carr, Robert||Heath, Rt. Hon. E. R. G.||Maude, Angus|
|Cary, Sir Robert||Henderson, John (Cathcart)||Mawby, R. L.|
|Chichester-Clark, R.||Hill, Mrs. E. (Wythenshawe)||Maydon, Lt.-Comdr. S. L. C.|
|Clarke, Brig. Terence (Portsmth, W.)||Hinchingbrooke, Viscount||Milligan, Rt. Hon. W. R.|
|Cole, Norman||Hornsby-Smith, Miss M. P.||Moore, Sir Thomas|
|Cordeaux, Lt.-Col. J. K.||Horobin, Sir Ian||Morrison, John (Salisbury)|
|Corfield, Capt. F. V.||Howard, John (Test)||Mott-Radclyffe, C. E.|
|Craddock, Beresford (Spelthorne)||Hudson, Sir Austin (Lewisham, N.)||Nairn, D. L. S.|
|Crosthwaite-Eyre, Col. O. E.||Hudson, W. R. A. (Hull, H.)||Nicholson, Godfrey (Farnham)|
|Crowder, Sir John (Finchley)||Hughes Hallett, Vice-Admiral J.||Nicolson, N. (B'n'm'th, E. & Chr'ch)|
|Cunningham, Knox||Hughes-Young, M. H. C.||Nield, Basil (Chester)|
|Currie, G. B. H.||Kurd, A. R.||Oakshott, H. D.|
|Dance, J. C. G.||Hutchison, Sir Ian Clark (E'b'gh, W.)||O'Neill, Hn. Phelim (Co. Antrim, N.)|
|D'Avigdor-Goldsmid, Sir Henry||Hutchison, Sir James (Scotstoun)||Ormsby-Gore, Hon. W. D.|
|Deedes, W. F.||Iremonger, T. L.||Orr, Capt. L. P. S.|
|Donaldson, Cmdr. C. E. McA.||Irvine, Bryant Godman (Rye)||Osborne, C.|
|Doughty, C. J. A.||Jenkins, Robert (Dulwich)||Page, R. G.|
|Drayson, G. B.||Johnson, Dr. Donald (Carlisle)||Pannell, N. A. (Kirkdale)|
|du Cann, E. D. L.||Johnson, Eric (Blackley)||Partridge, E.|
|Duncan, Capt. J. A. L.||Jones, Rt. Hon. Aubrey (Hall Green)||Pickthorn, K. W. M.|
|Duthie, W. S.||Joseph, Sir Keith||Pilkington, Capt. R. A.|
|Eden, J. B. (Bournemouth, West)||Joynson-Hicks, Hon. Sir Lancelot||Pitt, Miss E. M.|
|Emmet, Hon. Mrs. Evelyn||Keegan, D.||Pott, H. P.|
|Errington, Sir Erie||Kerr, H. W.||Powell, J. Enoch|
|Farey-Jones, F. W.||Kershaw, J. A.||Profumo, J. D.|
|Finlay, Graeme||Kimball, M.||Raikes, Sir Victor|
|Ramsden, J. E.||Smyth, Brig. Sir John (Norwood)||Turton, R. Hon. R. H.|
|Rawlinson, Peter||Spearman, A, C. M.||Tweedsmuir, Lady|
|Redmayne, M.||Speir, R. M.||Vane, W. M. F.|
|Rees-Davies, W. R.||Stanley, Capt. Hon. Richard||Vaughan-Morgan, J. K.|
|Remnant, Hon. P.||Stevens, Geoffrey||Vickers, Miss J. H.|
|Renton, D. L. M.||Steward, Harold (Stockport, S.)||Wakefield, Sir Wavell (St. M'lebone)|
|Ridsdale, J. E.||Stewart, Henderson (Fife, E.)||Walker-Smith, D. C.|
|Rippon, A. G. F.||Stoddart-Scott, Col. M.||Wall, Major Patrick|
|Roberts, Sir Peter (Heeley)||Studholme, H. G.||Ward, Hon. George (Worcester)|
|Robertson, Sir David||Summers, G. S. (Aylesbury)||Ward, Dame Irene (Tynemouth)|
|Roper, Sir Harold||Taylor, William (Bradford, N.)||Waterhouse, Capt. Rt. Hon. C.|
|Ropner, Col. Sir Leonard||Teeling, W.||Webbe, Sir H.|
|Russell, R. S.||Thompson, Kenneth (Walton)||Whitelaw, W.S.I.(Penrith & Border)|
|Schofield, Lt.-Col. W.||Thompson, Lt.-Cdr.R.(Croydon, S.)||Williams, Paul (Sunderland, S.)|
|Scott-Miller, Cmdr. R.||Thorneycroft, Rt. Hon. P.||Wills, G. (Bridgwater)|
|Sharpies, R. C.||Thornton-Kemsley, C. N.||Wilson, Geoffrey (Truro)|
|Shepherd, William||Tilney, John (Wavertree)||Woollam, John Victor|
|Simon, J. E. S. (Middlesbrough, W.)||Touche, Sir Gordon|
|Smithers, Peter (Winchester)||Turner, H. F. L,||TELLERS FOR THE NOES:|
|Mr. Wakefield and Mr Barber.|
§ Amendment made: In page 13, line 16, leave out "determined" and insert "found."—[Mr. P. Thorneycroft.]
§ Mr. Mulley
I beg to move, in page 13, line 18, after "Registrar," to insert "or any interested party."
This is a small Amendment, but, I think, one of some importance because its purpose is to give to any interested party in an agreement the power to apply to the Court for an order where restrictions have already been determined by the Court to be contrary to the public interest.
It seems, as the Committee wends its slow way through the Bill, that the task of the Registrar is going to be extremely difficult, and that he is going to be bogged down in the complexities when some parts of an agreement are held to be contrary to the public interest and other parts of the same agreement are subject to a contrary decision.
It seems to us that if, as may well be the case, an individual trader or a number of traders are being pursued under an agreement that has already been held to be contrary to the public interest, such a trader or traders should, rather than wait and go through all the bureaucracy of getting the Registrar to apply to the Court, have the right to go to the Court and ask for an order to protect their interests in the matter. I hope, therefore, that this simple but important Amendment will commend itself to the President of the Board of Trade and that he will agree to insert it in the Clause.
§ Mr. P. Thorneycroft
I fully appreciate the spirit in which the Amendment has been moved. It is moved in the desire to see that where an arrangement is held to be against the public interest speedy and efficacious methods should be adopted to 526 obtain an order to deal with it. That is the purpose behind the Amendment, and it is a perfectly proper purpose.
I agree with the hon. Member for Sheffield, Park (Mr. Mulley) when he says that the task of the Registrar will be a difficult one. So, also, will be the task of the Court, and we really must take responsible steps to see that neither the Registrar nor the Court have their tasks rendered not only difficult, but quite impossible by a mass of applications from every quarter. The Committee should bear in mind what the ordinary procedure here will be.
The Registrar will be responsible for initiating proceedings before the Court. We have discussed, or are to discuss, whether others should have that right. We have, in fact, discussed it on an Amendment today and we had to refuse it, because if everyone could initiate proceedings there would be chaos in the courts. We discussed earlier the difficulties about getting this large number of cases dealt with under any arrangement. We may have differed about the precise arrangements, but we are all agreed on the magnitude of the task, and we must channel things in their right order and place.
The procedure will be that normally the Registrar will initiate the proceedings, asking the Court to determine whether these particular restrictions are for or against the public interest. The normal thing will be that in the same proceedings the Registrar will ask for an order. That will be the normal process. If these things are found to be against the public interest he will normally ask for an order, and the Court will, I imagine, in ordinary cases, grant it.
527 But supposing that for some reason—on an undertaking by the parties or something of that nature—the Court in its wisdom—and it will be for the Court—decides that it does not wish to issue an order, it would not be tolerable for anybody else, or for some other party to some other agreement, where the Court has failed to issue an order, to ask the Registrar to go through the proceedings all over again. In that case the Court will never get on with its proper job. We are really anxious not to make proceedings interminable. Many hon. Members have spoken of the need to press on and to get clarity and expedition, but to accept this Amendment would be to spin out the proceedings interminably.
I fully appreciate that that was not the intention of the hon. Member for Sheffield, Park. His intention was the perfectly proper one of making quite certain that expeditious arrangements could be made to enforce these particular orders when the agreement was held to be against the public interest, but I hope that on my explanation he will realise—
§ Mr. Mulley
If it is true that, as a matter of course, the Registrar will ask for an order, then the Amendment would not seriously delay proceedings because the case would not arise. I have in mind that some serious, urgent matter might occur in relation to some traders, and that instead of being able to go direct to the Court they will have to go along the circuitous route via the Registrar. From what the President has said, it can only occur in one case in a thousand, but it seems to me that the interested party should have consideration.
§ Mr. Thorneycroft
The Amendment would mean that if the Registrar had asked for an order and had failed to get it anyone else could ask the Court for an order, and I think all hon. Members will agree that that would be an intolerable imposition on the Court.
§ Sir L. Ungoed-Thomas
The substance of the Amendment is as put by my hon. Friend the Member for Sheffield, Park (Mr. Mulley), and the President obviously appreciated the point of substance we are making. I do not say that this wording in the Amendment is the most desirable that could be obtained, but we are dealing with the substance of the point here. 528 The substance of the Amendment is that when there is a party aggrieved, as my hon. Friend pointed out so clearly, there ought to be some remedy available to him, and it should not be just restricted to the Registrar.
I agree, of course, that the course which one would expect to be adopted would be that the Registrar would, at the end of the proceedings, apply for an order—or obtain an undertaking which would have exactly the same effect as an order—restraining the parties to the agreement from giving effect to the restriction. But suppose that that is not done and that a poor retailer, or someone like that, is affected by the restriction. He knows where the shoe pinches—why should he not have a shout straight off and be able to go to the Court and say, "This is what is happening. You had these proceedings; you have made the declaration. These people are, in fact, enforcing this or that contrary to my interests."
He is the person who knows, and not only is he the person who knows, but he is the person who is interested in seeing that the matter is dealt with. He should not have to go to the Registrar, make out the case to him, and then, by the Registrar's leave and if the Registrar decides in his favour, go to the Court. If this matter is decided as being not contrary to the public interest, and the agreement is allowed to continue, there should be access for that person to go to court and seek a remedy immediately.
This is in line with our objection to so much in the Bill. Everything is tied up so much with everything else that these procedural difficulties meet us all the way in getting quick and effective remedies. That is why we have attacked so much in the Bill. I am making no allegations against the President personally; I know that he is anxious to see that the Bill is made effective. But the clash which we have seen right through the Committee with the Government's views on the Bill is illustrated, as I ventured to suggest on Second Reading, in these procedural difficulties which clog up effective action the whole time.
We have a simple remedy which could be made easily available to a party who is aggrieved by a person who attempts to enforce a restriction which has been declared contrary to the public interest. 529 Surely such a party should have immediate access to the Court. I agree that the wording of the Amendment may not be the most desirable wording. I at once accept responsibility for it, as I drafted it. Nevertheless, the substance of it is precisely as I have described it, and we ask the President to consider the substance of it.
§ Mr. Denis Howell (Birmingham, All Saints)
Unlike everyone else who has spoken at various stages of the Bill, I confess at once that I know nothing about it. I intervene only because of the President's speech. It seems to me, as a layman, that this is a matter of some principle, because I gathered from what he said that this is to be the one branch of the law to which the ordinary person is not to have recourse of his own volition. Apparently he can appear before this new branch of the law only if he has the Registrar's approval.
In the limited time since the President sat down, I have had advice from many of my legal hon. Friends, and I gather that this happens in no other branch of the law. Even in the criminal law an individual can take a prosecution, although because of the mechanics of the matter it is very rarely done. We know that in many other branches of the law, particularly in Chancery, there is great congestion. I was indirectly involved in a case which took a very long time before it got before the court, although it got there eventually.
I cannot see, on a matter of principle, why the ordinary person, the man in the street, should be refused, in this one branch of the law, the right—even if it is used in a misguided manner—to appear before the court. This is an absolutely fundamental and new principle and I therefore make this short protest about it. I hope the President or a Law Officer will tell us why this entirely new principle is being introduced into the Bill.
§ Mr. Cronin
At this late hour it is decorous that interventions should be brief and infrequent, but the President made some extraordinary statements which caused such disquiet on this side of the Committee that I feel bound to make some comments on them.
First, he assured us that the courts will be snowed up by applications from private individuals as opposed to applications from the Registrar. Prima facie, that might be a useful point, but I would suggest to him—and I am sure that all hon. and learned Members will agree—that making these applications will be an extremely expensive business and that there is little likelihood of people using this expensive remedy extravagantly.
The important point is that when it is known that an aggrieved person can himself take a case to court, it has a very powerful effect in restraining a potential restrictor. It is the sanction of what the individual might do rather than what he actually will do which will be effective. As my hon. Friend the Member for All Saints (Mr. D. Howell) said, the Bill introduces a new principle in law—that an aggrieved party cannot himself take action. Even in cases which we know in similar types of the law, an aggrieved party can take action. I refer now to the Patents and Designs Act, 1949. That Act gives the Comptroller of Patents wide powers, but under it any aggrieved person can actually make an application. The same applies to the Sherman Act of the United States.
I suggest that we are offering to the President by this Amendment a simple and direct way of achieving the result we want. I suggest to him that the shortest distance between two points is a straight line, even if it does bisect his argument.
§ Question put, That those words be there inserted:—
§ The Committee divided: Ayes 151, Noes 188.533
|Division No. 165.]||AYES||[10.21 p.m.|
|Ainsley, J. W.||Bottomley, Rt. Hon. A. G.||Collick, P. H. (Birkenhead)|
|Allaun, Frank (Salford, E.)||Bowden, H. W. (Leicester, S.W.)||Corbet, Mrs. Freda|
|Awbery, S. S.||Bowen, E. R. (Cardigan)||Craddock, George (Bradford, S.)|
|Bacon, Miss Alice||Bowles, F. G.||Cronin, J. D.|
|Bence, C. R. (Dunbartonshire, E.)||Boyd, T. C.||Crossman, R. H. S.|
|Benn, Hn. Wedgwood (Bristol, S.E.)||Braddock, Mrs. Elizabeth||Cullen, Mrs. A.|
|Benson, G.||Brockway, A. F.||Dalton, Rt. Hon. H.|
|Beswick, F.||Broughton, Or. A. D. D.||Darling, George (Hillsborough)|
|Blackburn, F.||Butler, Herbert (Hackney, C.)||Deer, G.|
|Blenkinsop, A.||Champion, A. J.||Delargy, H. J.|
|Blyton, W. R.||Coldrick, W.||Dodds, N. N.|
|Dugdale, Rt. Hn. John (W. Brmwch)||Ledger, R. J.||Probert, A. R.|
|Edward, Rt. Hon. John (Brighouse)||Lee, Frederick (Newton)||Randall, H. E.|
|Edwards, Robert (Bilston)||Lee, Miss Jennie (Cannock)||Roberts, Albert (Normanton)|
|Evans, Stanley (Wednesbury)||Lever, Leslie (Ardwick)||Robinson, Kenneth (St. Pancras, S.)|
|Fernyhough, E.||Logan, D. G.||Ross, William|
|Fienburgh, W.||Mabon, Dr. J. Dickson||Short, E. W.|
|Fletcher, Eric||McGhee, H. G.||Silverman, Julius (Aston)|
|Forman, J. C.||McInnes, J.||Skeffington, A. M.|
|Fraser, Thomas (Hamilton)||McKay, John (Wallsend)||Slater, Mrs. H. (Stoke, N.)|
|Gibson, C. W.||MacMillan, M. K. (Western Isles)||Slater, J. (Sedgefield)|
|Grenfell, Rt. Hon. D. R.||MacPherson, Malcolm (Stirling)||Sorensen, R. W.|
|Grey, C. F.||Matron, Simon||Steele, T.|
|Griffiths, David (Rother Valley)||Mallalieu, J. P. W. (Huddersfd, E.)||Stewart, Michael (Fulham)|
|Griffiths, Rt. Hon. James (Llanelly)||Marquand, Rt. Hon. H. A.||Stones, W. (Consett)|
|Griffiths, William (Exchange)||Mason, Roy||Summerskill, Rt. Hon. E.|
|Grimond, J.||Mayhew, C. P.||Sylvester, G. O.|
|Hale, Leslie||Mikardo, Ian||Taylor, Bernard (Mansfield)|
|Hannan, W.||Mitchison, G. R.||Taylor, John (West Lothian)|
|Hayman, F. H.||Monslow, W.||Thomas, George (Cardiff)|
|Henderson, Rt. Hn. A. (Rwly Regis)||Moody, A. S.||Thomson, George (Dundee, E.)|
|Herbison, Miss M.||Morris, Percy (Swansea, W.)||Timmons, J.|
|Hobson, C. R.||Moss, R.||Tomney, F.|
|Holt, A. F.||Moyle, A.||Ungoed-Thomas, Sir Lynn|
|Houghton, Douglas||Mulley, F. W.||Usborne, H. C.|
|Howell, Denis (All Saints)||Neal, Harold (Bolsover)||Wade, D. W.|
|Hughes, Cledwyn (Anglesey)||Noel-Baker, Francis (Swindon)||Warbey, W. N.|
|Hughes, Hector (Aberdeen, N.)||Oliver, G. H.||Weitzman, D.|
|Hunter, A. E.||Oram, A. E.||Wells, William (Walsall, N.)|
|Irvine, A. J. (Edge Hill)||Orbach, M.||Wheeldon, W. E.|
|Irving, S. (Dartford)||Oswald, T.||White, Henry (Derbyshire, N.E.)|
|Jay, Rt. Hon. D. P. T.||Paling, Rt. Hon. W. (Dearne Valley)||Willey, Frederick|
|Jenkins, Roy (Stechford)||Paling, Will T. (Dewsbury)||Williams, W. R. (Openshaw)|
|Johnson, James (Rugby)||Palmer, A. M. F.||Willis, Eustace (Edinburgh, E.)|
|Jones, David (The Hartlepools)||Pargiter, G. A.||Wilson, Geoffrey (Truro)|
|Jones, Jack (Rotherham)||Parker, J.||Winterbottom, Richard|
|Jones, J. Idwal (Wrexham)||Parkin, B. T.||Woof, R. E.|
|Jones, T. W. (Merioneth)||Pearson, A.||Yates, V. (Ladywood)|
|Key, Rt. Hon. C. W.||Plummer, Sir Leslie||Zilliacus, K.|
|King, Dr. H. M.||Popplewell, E.|
|Lawson, G. M.||Price, Philips (Gloucestershire, W.)||TELLERS FOR THE AYES:|
|Mr. J. T. Price and Mr. Wilkins.|
|Agnew, Cmdr. P. C.||Doughty, C. J. A.||Jenkins, Robert (Dulwich)|
|Aitken, W. T.||Drayson, G. B.||Johnson, Dr. Donald (Carlisle)|
|Allan, R. A. (Paddington, S.)||du Cann, E. D. L.||Johnson, Eric (Blackley)|
|Alport, C. J. M.||Eden, J, B. (Bournemouth, West)||Joseph, Sir Keith|
|Amery, Julian (Preston, N.)||Emmet, Hon. Mrs. Evelyn||Joynson-Hicks, Hon. Sir Lancelot|
|Arbuthnot, John||Errington, Sir Eric||Keegan, D.|
|Armstrong, C. W.||Farey-Jones, F. W.||Kerby, Capt. H. B.|
|Ashton, H.||Finlay, Graeme||Kerr, H. W.|
|Baldock, Lt.-Cmdr. J. M.||Fisher, Nigel||Kershaw, J. A.|
|Balniel, Lord||Fleetwood-Hesketh, R. F.||Kimball, M.|
|Barber, Anthony||Fletcher-Cooke, C.||Kirk, P. M.|
|Barlow, Sir John||George, J. C. (Pollok)||Langford-Holt, J. A.|
|Barter, John||Gibson-Watt, D.||Leather, E. H. C.|
|Baxter, Sir Beverley||Glover, D.||Leavey, J. A.|
|Bell, Philip (Bolton, E.)||Godber, J. B.||Legge-Bourke, Maj. E. A. H.|
|Bell, Ronald (Bucks, S.)||Gomme-Duncan, Col. Sir Alan||Legh, Hon. Peter (Petersfield)|
|Bennett, Dr. Reginald||Grant, W. (Woodside)||Linstead, Sir H. N.|
|Bevins, J. R. (Toxteth)||Green, A.||Lloyd, Maj. Sir Guy (Renfrew, E.)|
|Biggs-Davison, J. A.||Gresham Cooke, R.||Longden, Gilbert|
|Bishop, F. P.||Grimston, Sir Robert (Westbury)||Lucas-Tooth, Sir Hugh|
|Body, R. F.||Grosvenor, Lt.-Col. R. G.||Macdonald, Sir Peter|
|Boyle, Sir Edward||Gurden, Harold||McKibbin, A. J.|
|Braine, B. R.||Hall, John (Wycombe)||Mackie, J. H. (Galloway)|
|Brooke, Rt. Hon. Henry||Harris, Frederic (Croydon, N.W.)||Maclean, Fitzroy (Lancaster)|
|Burden, F. A. A.||Harris, Reader (Heston)||McLean, Neil (Inverness)|
|Butcher, Sir Herbert||Harrison, A. B. C. (Maldon)||MacLeod, John (Ross & Cromarty)|
|Carr, Robert||Harrison, Col. J. H. (Eye)||Macmillan, Rt. Hn. Harold (Bromley)|
|Cary, Sir Robert||Harvey, Air Cdre. A. V. (Macclesfd)||Macpherson, Niall (Dumfries)|
|Chichester-Clark, R.||Harvey, Ian (Harrow, E.)||Maddan, Martin|
|Clarke, Brig. Terence (Portsmth, W.)||Hay, John||Manningham-Buller, Rt. Hn. Sir R.|
|Cole, Norman||Heald, Rt. Hon. Sir Lionel||Markham, Major Sir Frank|
|Cordeaux, Lt.-Col. J. K.||Heath, Rt. Hon. E. R. G.||Marshall, Douglas|
|Corfield, Capt. F. V.||Hill, Mrs. E. (Wythenshawe)||Mathew, R.|
|Craddock, Beresford (Spelthorne)||Horobin, Sir Ian||Maude, Angus|
|Crosthwaite-Eyre, Col. O. E.||Howard, John (Test)||Mawby, R. L.|
|Cunningham, Knox.||Hudson, Sir Austin (Lewisham, N.)||Maydon, Lt-Comdr. S. L. C.|
|Currie, G. B. H.||Hughes, Hallet, Vice-Admiral J.||Milligan, Rt. Hon. W. R.|
|Dance, J. C, G.||Hughes-Young, M. H. C.||Morrison, John (Salisbury)|
|D'Avigdor-Goldsmid, Sir Henry||Hutchison, Sir James (Scotstoun)||Mott-Radclyffe, C. E.|
|Deedes, W. F.||Iremonger, T. L.||Nairn, D. L. S.|
|Donaldson, Cmdr. C. E. McA.||Irvine, Bryant Godman (Rye)||Nicolson, N. (B'n'm'th, E. & Chr'ch)|
|Nield, Basil (Chester)||Roberts, Sir Peter (Heeley)||Thornton-Kemsley, C. N.|
|Oakshott, H. D.||Robertson, Sir David||Tilney, John (Wavertree)|
|O'Neill, Hn. Phelim (Co. Antrim, N.)||Roper, Sir Harold||Touche, Sir Gordon|
|Ormsby-Core, Hon, W. D.||Ropner, Col. Sir Leonard||Turner, H. F. L.|
|Osborne, C.||Schofield, Lt.-Col. W.||Tweedsmuir, Lady|
|Page, R. G.||Scott-Miller, Cmdr. R.||Vane, W. M. F.|
|Pannell, N. A, (Kirkdale)||Sharpies, R. C.||Vaughan-Morgan, J. K.|
|Partridge, E.||Shepherd, William||Vickers, Miss J. H.|
|Pickthorn, K. W. M.||Simon, J. E. S. (Middlesbrough, W.)||Wakefield, Edward (Derbyshire, W.)|
|Pilkington, Capt. R. A.||Smithers, Peter (Winchester)||Wakefield, Sir Wavell (St. M'lebone)|
|Pitt, Miss E. M.||Speir, R. M.||Walker-Smith, D. C.|
|Pott, H. P.||Stanley, Capt. Hon. Richard||Wall, Major Patrick|
|Powell, J, Enoch||Stevens, Geoffrey||Ward, Hon. George (Worcester)|
|Profumo, J. D.||Steward, Harold (Stockport, S.)||Ward, Dame Irene (Tynemouth)|
|Raikes, Sir Victor||Stewart, Henderson (Fife, E.)||Waterhouse, Capt. Rt. Hon. C.|
|Ramsden, J. E.||Stoddart-Scott, Col. M.||Webbe, Sir H.|
|Rawlinson, Peter||Studholme, H. G.||Whitelaw, W.S.I.(Penrith & Border)|
|Redmayne, M.||Summers, G. S. (Aylesbury)||Williams, Paul (Sunderland, S.)|
|Rees-Davies, W. R.||Taylor, William (Bradford, N.)||Wills, G. (Bridgwater)|
|Remnant, Hon. P.||Teeling, W.||Wilson, Geoffrey (Truro)|
|Renton, D. L. M.||Thomas, Leslie (Canterbury)|
|Ridsdale, J. E.||Thompson, Kenneth (Walton)||TELLERS FOR THE NOES|
|Rippon, A. G. F.||Thorneyoroft, Rt. Hon. P.||Mr. Richard Thompson and|
§ 10.30 p.m.
§ Mr. Wade
I beg to move, in page 13, line 24, to leave out "to the like effect" and insert:which would be subject to registration under Part I of this Act, except by permission of the Court".I move the Amendment with two objects. The first is to ascertain, if possible, the exact meaning of the words "to the like effect". I think there may be misunderstanding in the interpretation of those words. I suggest that it might be advisable if the Court had reasonable powers to make orders under the Clause. I am thinking of the scope of the Court's order. I am not seeking to lay down any rules about what order the Court shall make.
Let us consider a case in which the Court has decided that an agreement is contrary to the public interest. It may want to make a further order forbidding the making by the parties of a further agreement designed to have the same effect as the one which the Court has decided against, and designed to defeat the dictation of the Court. It is only reasonable that the Court should be given power to prevent the parties, as soon as they have been ordered to cease to operate an agreement, from entering into another agreement of the same nature. The question is how to define the powers of the Court and the scope of the order which the Court may make.
I can foresee various possibilities. For example, the parties may enter into an agreement to operate common prices, perhaps to be enforced by some of the methods of enforcement which have been condemned by the Monopolies Commis 534 sion. The Court may decide that the agreement is contrary to the public interest. The parties may then get together and find they can achieve the same object by, for instance, some sharing of the market by a zoning arrangement whereby they can achieve the same object as was achieved by the original agreement. It seems reasonable that the Court should at least have power to order that those parties should not enter into a new agreement of that nature.
The case which I have cited would not, I think, be covered by the words "to the like effect". Some hon. Members may think that I have gone rather too far by the words which I propose as an alternative. I am quite willing to listen to any suggestion which may be made about improving them, any suggestion as to what are the best words to use to achieve the end which I advocate, but I earnestly suggest to the Committee that the words "to the like effect" are open to ambiguity and would tend to restrict unduly the powers of the Court.
§ Mr. P. Thorneycroft
I think we all have the same motive, which is simply that when the Restrictive Practices Court has ruled that an agreement or arrangement is, or the restrictions in it are, against the public interest and has made an order, the parties should not go away and do the same thing again, by slightly altering the form of their agreement, but designing it to have the same effect. I use the words in their ordinary connotation, because I think that that is the test which the Court will apply. Whether or not it does have the same effect is a matter which the Court will have to 535 judge. I think these are the best words to use.
I am grateful to the hon. Member for Huddersfield, West (Mr. Wade) for putting down the Amendment. He was right to seek clarification. As he indicated, his words are rather too wide. Their effect would be that if a man had entered into a restrictive arrangement, and it had been outlawed by the Court, an order could be made and he could never enter into any other kind of restrictive arrangement however far removed it was from the one barred by the Court. The Committee will agree, I am sure, that that would be going too wide. What we want to prevent is another agreement with a different appearance but aimed at having the same effect as the barred agreement. That is what the words in the Clause are intended to cover, and I think they do so.
§ Sir L. Ungoed-Thomas
The President has made clear that the proposed words would cover a colourable imitation of the forbidden agreement. One of the great difficulties about the Bill is that the parties can go on making agreements ad infinitum, and every agreement that they make will be in order and be enforceable until it is condemned by the Restrictive Practices Court. That is clogging up the register and the Court as much as anything possibly could do.
At some stage—earlier we suggested a period of 18 months—there ought to be a limit upon the power of the parties to continue indefinitely propagating a species of agreements. The great virtue of the Amendment is that it helps, in an extremely reasonable form, to apply some limit to that appalling process. Once an agreement came before the Court, the Court could say "You have had your whack. No more agreements except by leave of the Court." That seems to avoid the frightful process of continually devising agreements which are colourable imitations designed to achieve the same purpose as the forbidden agreement. The best way to prevent the interminable process of ingenuity to avoid making an agreement falling within the meaning of "the like effect" is to put the matter under the discretion of the Court. I 536 hope that the hon. Member for Huddersfield, West (Mr. Wade) will press his Amendment.
§ Mr. A. J. Irvine
I support the representations made by my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas). I welcome, and am gratified by, the initiative taken by the Liberal Party on the Bill. The Amendment exactly expresses the objective of my hon. Friends and myself. I hope that it will be accepted or divided upon.
We are dealing with the position reached when the Court has come to the decision that an agreement is contrary to the public interest. I should have thought it was clearly desirable that when that point had been reached the Court should not be troubled any further by the reappearance of the agreement in a mildly varied form. The best way to avoid it is to provide that a new agreement between the parties affected by the decision of the Court shall not be made, if it is registrable, without the Court's permission. The reference of the matter to the discretion of the Court appears to me to be precisely what the situation demands, because if the parties have been told that an agreement arrived at is contrary to the public interest they can go away and between themselves can arrive at another agreement which is registrable. There should be no objection to that, provided that the Court, in its discretion, comes to the conclusion that the registrable agreement is not open to objection as being contrary to the public interest.
I ask the President, who has shown great consideration to representations made to him from this side of the Committee, to say that he will consider this matter. I take the view that the Amendment of the hon. Member for Huddersfield, West (Mr. Wade) meets the point with precision, and I, and I am sure my hon. Friends, would be well content if the President felt able to say that the Amendment would receive careful consideration before the next stage of the Bill is reached.
§ Question put, That the words proposed to be left out stand part of the Clause:—
§ The Committee divided: Ayes, 175; Noes, 141.539
|Division No. 166.]||AYES||[10.40 p.m.|
|Agnew, Cmdr. P. G.||Harris, Frederic (Croydon, N.W.)||Partridge, E.|
|Aitken, W. T.||Harris, Reader (Heston)||Pilkington, Capt. R. A.|
|Allan, R. A. (Paddingtan, S.)||Harrison, A. B. C. (Maldon)||Pitt, Miss E. M.|
|Alport, C. J. M.||Harvey, Air Cdre. A. V. (Macclesfd)||Pott, H. P.|
|Amery, Julian (Preston, N.)||Heald, Rt. Hon. Sir Lionel||Powell, J. Enoch|
|Armstrong, C. W.||Heath, Rt. Hon. E. R. G.||Profumo, J. D.|
|Ashton, H.||Hill, Mrs. E. (Wythenshawe)||Raikes, Sir Victor|
|Baldock, Lt.-Cmdr. J. M.||Horobin, Sir Ian||Ramsden, J. E.|
|Barber, Anthony||Howard, John (Test)||Rawlinson, Peter|
|Barlow, Sir John||Hudson, Sir Austin (Lewisham, N.)||Redmayne, M.|
|Barter, John||Hughes, Hallett, Vice-Admiral J.||Rees-Davies, W. R.|
|Baxter, Sir Beverley||Hutchison, Sir James (Scotstoun)||Renton, D. L. M.|
|Bell, Philip (Bolton, E.)||Iremonger, T. L.||Ridsdale, J. E.|
|Bennett, Dr. Reginald||Irvine, Bryant Godman (Rye)||Rippon, A. G. F.|
|Bevins, J, R. (Toxteth)||Jenkins, Robert (Dulwich)||Roberts, Sir Peter (Heeley)|
|Biggs-Davison, J. A.||Johnson, Dr. Donald (Carlisle)||Roper, Sir Harold|
|Bishop, F. P.||Johnson, Eric (Blackley)||Ropner, Col. Sir Leonard|
|Body, R. F.||Joseph, Sir Keith||Schofield, Lt.-Col. W.|
|Boyle, Sir Edward||Joynson-Hicks, Hon. Sir Lancelot||Scott-Miller, Cmdr. R.|
|Brooke, Rt. Hon. Henry||Keegan, D.||Sharpies, R. C.|
|Bryan, P.||Kerby, Capt. H. B.||Shepherd, William|
|Burden, F. F. A.||Kerr, H. W.||Simon, J. E. S. (Middlesbrough, W.)|
|Butcher, Sir Herbert||Smithers, Peter (Winchester)|
|Cary, Sir Robert||Kershaw, J. A.||Speir, R. M.|
|Chichester-Clark, R.||Kimball, M.||Stanley, Capt. Hon. Richard|
|Clarke, Brig. Terence (Portsmth, W.)||Kirk, P. M.||Stevens, Geoffrey|
|Cole, Norman||Langford-Holt, J. A.||Steward, Harold (Stockport, S.)|
|Conant, Maj. Sir Roger||Leather, E. H. C.||Stewart, Henderson (Fife, E.)|
|Cordeaux, Lt.-Col. J. K.||Leavey, J. A.||Stoddart-Scott, Col. M.|
|Corfield, Capt. F. V.||Legge-Bourke, Maj. E. A. H.||Studholme, H. G.|
|Crosthwaite-Eyre, Col. O. E.||Legh, Hon. Peter (Petersfield)||Summers, G. S. (Aylesbury)|
|Cunningham, Knox||Linstead, Sir H. N.||Taylor, William (Bradford, N.)|
|Currie, G. B. H.||Lloyd, Maj. Sir Guy (Renfrew, E.)||Teeling, W.|
|Dance, J. C. G.||Longden, Gilbert||Thompson, Kenneth (Walton)|
|D'Avigdor-Goldsmid, Sir Henry||Lucas-Tooth, Sir Hugh||Thompson, Lt.-Cdr.R.(Croydon, S.)|
|Deedes, W. F.||Macdonald, Sir Peter||Thorneycroft, Rt. Hon. P.|
|Donaldson, Cmdr. C. E. McA.||McKibbin, A. J.||Thornton-Kemsley, C. N.|
|Doughty, C. J. A.||Mackie, J. H. (Galloway)||Tilney, John (Wavertree)|
|Drayson, G. B.||Maclean, Fitzroy (Lancaster)||Touche, Sir Gordon|
|du Cann, E. D. L.||McLean, Neil (Inverness)||Turner, H. F. L.|
|Eden, J. B. (Bournemouth, West)||MacLeod, John (Ross & Cromarty)||Tweedsmuir, Lady|
|Emmet, Hon. Mrs. Evelyn||Macmillan, Rt. Hn.Harold(Bromley)||Vane, W. M. F.|
|Errington, Sir Eric||Macpherson, Niall (Dumfries)||Vaughan-Morgan, J. K.|
|Farey-Jones, F. W.||Maddan, Martin||Vickers, Miss J. H.|
|Finlay, Graeme||Mathew, R.||Wakefield, Edward (Derbyshire, W.)|
|Fisher, Nigel||Maude, Angus||Wakefield, Sir Wavell (St. M'lebone)|
|Fleetwood-Hesketh, R. F.||Mawby, R. L.||Walker-Smith, D. C.|
|Fletcher-Cooke, C.||Maydon, Lt.-Comdr. S. L. C.||Wall, Major Patrick|
|George, J. C. (Pollok)||Milligan, Rt. Hon. W. R.||Ward, Hon. George (Worcester)|
|Gibson-Watt, D.||Morrison, John (Salisbury)||Ward, Dame Irene (Tynemouth)|
|Glover, D.||Mott-Radclyffe, C. E.||Waterhouse, Capt. Rt. Hon. C.|
|Godber, J. B.||Nairn, D. L. S.||Webbe, Sir H.|
|Gomme-Duncan, Col. Sir Alan||Nicolson, N. (B'n'm'th, E. & Chr'ch)||Whitelaw, W.S.I.(Penrith & Border)|
|Grant, W. (Woodside)||Nield, Basil (Chester)||Williams, Paul (Sunderland, S.)|
|Green, A.||Oakshott, H. D.||Wills, G. (Bridgwater)|
|Gresham Cooke, R.||O'Neill, Hn. Phelim(Co. Antrim, N.)||Wilson, Geoffrey (Truro)|
|Grimston, Sir Robert (Westbury)||Ormsby-Gore, Hon. W. D.|
|Grosvenor, Lt.-Col. R. G.||Osborne, C.||TELLERS FOR THE AYES:|
|Gurden, Harold||Page, R. G.||Colonel J. H. Harrison and|
|Hall, John (Wycombe)||Pannell, N. A. (Kirkdale)||Mr. Hughes-Young.|
|Ainsley, J. W.||Champion, A. J.||Fraser, Thomas (Hamilton)|
|Allaun, Frank (Salford, E.)||Coldrick, W.||Gibson, C. W.|
|Awbery, S. S.||Collick, P. H. (Birkenhead)||Grenfell, Rt. Hon. D. R.|
|Bacon, Miss Alice||Corbet, Mrs. Freda||Grey, C. F.|
|Bence, C. R. (Dunbartonshire, E.)||Craddock, George (Bradford, S.)||Griffiths, David (Rother Valley)|
|Benn, Hn. Wedgwood (Bristol, S.E.)||Cronin, J. D.||Griffiths, Rt. Hon. James (Llanelly)|
|Benson, G.||Crossman, R. H. S.||Griffiths, William (Exchange)|
|Beswick, F.||Cullen, Mrs. A.||Grimond, J.|
|Blackburn, F.||Dalton, Rt. Hon. H.||Hale, Leslie|
|Blenkinsop, A.||Deer, G.||Hannan, W.|
|Blyton, W. R.||Delargy, H. J.||Hayman, F. H.|
|Bottomley, Rt. Hon. A. G.||Dodds, N. N,||Herbison, Miss M.|
|Bowden, H. W. (Leicester, S.W.)||Dugdale, Rt. Hn. John (W. Brmwch)||Hobson, C. R.|
|Bowen, E. R. (Cardigan)||Edwards, Rt. Hon. John (Brighouse)||Howell, Denis (All Saints)|
|Bowles, F. G.||Edwards, Robert (Bilston)||Hughes, Cledwyn (Anglesey)|
|Boyd, T. C.||Evans, Stanley (Wednesbury)||Hughes, Hector (Aberdeen, N.)|
|Braddock, Mrs. Elizabeth||Fernyhough, E.||Irvine, A. J. (Edge Hill)|
|Brookway, A. F.||Fienburgh, W.||Irving, S. (Dartford)|
|Broughton, Dr. A. D. D.||Fletcher, Eric||Jay, Rt. Hon. D. P. T.|
|Butler, Herbert (Hackney, C.)||Forman, J. C.||Jenkins, Roy (Stechford)|
|Johnson, James (Rugby)||Mulley, F. W.||Stewart, Michael (Fulham)|
|Jones, David (The Hartlepools)||Neal, Harold (Bolsover)||Stones, W. (Consett)|
|Jones, J. Idwal (Wrexham)||Oliver, G. H.||Summerskill, Rt. Hon. E.|
|Jones, T. W. (Merioneth)||Oram, A. E.||Sylvester, G. O.|
|King, Dr. H. M.||Orbach, M.||Taylor, Bernard (Mansfield)|
|Lawson, G. M.||Oswald, T.||Taylor, John (West Lothian)|
|Ledger, R. J.||Paling, Rt. Hon. W. (Dearne Valley)||Thomas, George (Cardiff)|
|Lee, Frederick (Newton)||Paling, Will T. (Dewsbury)||Thomson, George (Dundee, E.)|
|Lee, Miss Jennie (Cannock)||Palmer, A. H. F.||Timmons, J.|
|Lever, Leslie (Ardwick)||Pargiter, G. A.||Ungoed-Thomas, Sir Lynn|
|Logan, D. G.||Parker, J.||Usborne, H. C.|
|Mabon, Dr. J. Dickson||Parkin, B. T.||Warbey, W. N.|
|McGhee, H. G.||Pearson, A.||Weitzman, D.|
|McInnes, J.||Plummer, Sir Leslie||Wells, William (Walsall, N.)|
|McKay, John (Wallsend)||Popplewell, E.||Wheeldon, W. E.|
|MacMillan, M. K. (Western Isles)||Price, J. T. (Westhoughton)||White, Henry (Derbyshire, N.E.)|
|MacPherson, Malcolm (Stirling)||Price, Philips (Gloucestershire, W.)||Wilkins, W. A.|
|Mabon, Simon||Probert, A. R.||Willey, Frederick|
|Mallalieu, J. P. W. (Huddersfd, E.)||Randall, H. E.||Williams, W. R. (Openshaw)|
|Marquand, Rt. Hon. H. A.||Roberts, Albert (Normanton)||Willis, Eustace (Edinburgh, E.)|
|Mason, Roy||Robinson, Kenneth (St. Pancras, N.)||Wilson, Rt. Hon. Harold (Huyton)|
|Mikardo, Ian||Ross, William||Winterbottom, Richard|
|Mitchison, G. R.||Short, E. W.||Woof, R. E.|
|Monslow, W.||Silverman, Julius (Aston)||Yates, V. (Ladywood)|
|Moody, A. S.||Skeffington, A. M.||Zilliacus, K.|
|Morris, Percy (Swansea, W.)||Slater, Mrs. H. (Stoke, N.)|
|Moss, R.||Slater, J. (Sedgefield)||TELLERS FOR THE NOES:|
|Moyle, A.||Steele, T.||Mr. Holt and Mr. Wade.|
§ Mr. E. Fletcher
I beg to move in page 13, line 24, at the end to insert:(3) When any such restrictions are determined by the Court not to be contrary to the public interest provided the Agreement containing such restrictions is operated subject to certain safeguards and provisions desired to ensure the protection of persons whose interests might be prejudicially affected by such restrictions, the Court shall make an Order under the preceding subsection hereof subject to such undertakings as the Court may think fit to impose, or such other Order as the Court may think fit.I hope that it will not take many words of mine to persuade the President that this is a reasonable Amendment for him to accept. It is designed to help in the working of this procedure. The object of the Amendment is to enable the Court, if it comes to the conclusion that a particular agreement could be approved, provided certain modifications are made or certain undertakings are given, to say so. Experience in America under the antitrust laws has shown that parties are often willing to agree to a consent decree in order to avoid the expense and trouble of litigation. Undoubtedly much the same situation will arise in this country.
As the President has recognised, there will be a number of cases in which in the earlier stages, the parties will appreciate that provided certain undertakings are given or certain modifications are made and objectionable clauses are cut out of an agreement, it would otherwise be acceptable and approved by the Court as not being contrary to the public interest. To enable that to be done is the object of the Amendment, and I hope that the 540 President will accept it. I hope he will not say that it is unnecessary.
I appreciate that subsection (3) of the Clause enables the parties, after proceedings have begun, to modify an agreement, but I do not think that that goes far enough because there may be various other agreements which will be affected by proceedings, and it will frequently arise that the most convenient method for the approving of an agreement by the Court will be by making approval subject to specific undertakings being given by the parties to the agreement, or to the offending section being cut out and removed or perhaps not being operated and enforced. To enable that to be done is the object of this amendment, and I think it would be welcomed not only on this side of the Committee but by all those traders and members of business communities and companies who will be affected by the Bill. I hope, therefore, that it will be accepted.
§ Mr. P. Thorneycroft
I agree with what the hon. Gentleman the Member for Islington, East (Mr. E. Fletcher) has said, and I think that the whole Committee will also agree. It is true that in a great number of countries where this type of legislation operates the consent judgment is a very useful way of dealing with the matter. It may well emerge, during the hearing, that perhaps the arrangement is acceptable, provided that parts of it are modified or certain safeguards are introduced. If it were not for the fact that I am absolutely satisfied that the Bill as it stands covers that com 541 pletely, I would consider adopting the Amendment. I am absolutely satisfied, however, that under the Bill, the agreement can be modified or varied, and approved as modified or varied, with or without more undertakings, and the old agreement which, in the form in which it was against the public interest, has been abandoned or modified, can itself, if necessary, be banned by the Court, and only the new agreement approved. That is absolutely clear, but I am grateful to the hon. Gentleman for moving his Amendment, because I am entirely in sympathy with the policy that he puts forward.
§ Mr. Jay
Even if the right hon. Gentleman is himself perfectly satisfied that the Bill as it stands would have exactly the same effect as if it were amended in the manner suggested, could he tell us whether the situation, from his point of view, would be made any different if he accepted the Amendment? Might the position not then be clarified in the minds of others who have had some doubts, and might not the position, from the right hon. Gentleman's point of view, be exactly the same? If that is so, is there any objection to accepting the Amendment?
§ Mr. Thorneycroft
I say this in no criticism of the hon. Member for Islington, East, who addresses himself to the Bill in debate with great skill, but drafting is a difficult business, and to get things in the shortest, most concise and clearest way, and in the way least liable to misinterpretation in the courts afterwards, is a difficult and technical task. I am satisfied that there is complete agreement on policy between the two sides of the Committee, and I hope that the hon. Member will have confidence that we have done the drafting in a way which is best calculated to carry out the intention which we share.
§ Sir L. Ungoed-Thomas
I appreciate that we are in agreement on the objectives we have in mind and I have great respect for the Parliamentary draftsmen, but it is desirable not only that Bills should be watertight but also that their meaning should be obvious to people who read them. I am not attacking the drafting of the Bill as a whole; I think it is admirably drafted. It has been a very difficult Bill to draft, and it has been admirably drafted. But it is most desir 542 able that it should be perfectly clear not only to barristers and solicitors but also to businessmen; they should get the right impression of what the Bill affects.
I was by no means convinced, and am still not convinced, despite what the President has said—although I accept from him the statement which he made, with the authority of the Parliamentary draftsmen—that the point is covered by the Bill. In any event, it does not do what legislation should do—make perfectly clear to the man who has to use the Bill what is affected by the Bill. That it certainly does not do.
I presume that the right hon. Gentleman is relying on the words in subsection (3). I was a little puzzled about the exact object of that subsection. I thought it was to prevent people from escaping the consequences of the Bill by some variation made afterwards, and I now gather from the President that it does that, too. The Parliamentary draftsman is killing two birds with one stone. The difficulty is that when that happens it is apt to lead to confusion in ordinary minds like my own.
It would be much clearer to those who have to work the Bill if they could see in precise terms exactly what it achieves. When one imagines that subsection (3) achieves one objective and is then told that it achieves another very different objective at the same time, the position becomes confusing.
The objection is that which is so often made from both sides of the House to Bills which come before us—that it is not clear to the person who has to work the Bill what exactly is achieved by it. One has only to read the extensive and easily accessible observations of various judges on various Acts from time to time to know that even the most astute Parliamentary draftsman cannot be entirely free from criticism. I am glad that we are at one on the intention here, but the Clause is certainly not satisfactory as it stands for the purpose of ordinary day-to-day work.
§ Mr. E. Fletcher
I feel that I must ask my hon. Friends to press the Amendment to a Division. I appreciate what the President has said, but I feel that there is doubt on this point.
If the President looks at the scope of the Clause he will find that, whereas subsection (2) enables the Court to deal with 543 certain things when it finds that an agreement is contrary to the public interest, we are here concerned with the hypothetical case in which we want the Court to declare that a particular agreement, subject to certain undertakings or conditions, is not contrary to the public interest.
If the President has any doubt on the matter, may I draw his attention to a circular I have received, and which probably he has received, since I put this Amendment down? It is a circular sent out by the Federation of British Industries, the Association of British Chambers of Commerce and the National Union of Manufacturers. Obviously they are in doubt, because their comment is:
§ "Provision should be made in the interests of all concerned whereby the parties could modify their agreement during the proceedings and the Court approve them in their new form. This would speed the procedure and reduce the expense. It is believed that Clause 15 is intended to cover this point, but the doubt should be removed."
§ That is what I am proposing and, if the President is not prepared to accept that, I must press the matter to a Division.
§ Mr. Thorneycroft
I cannot press hon. Members not to divide, but I hope that what I have said has removed any doubt whatever.
§ Question put, That those words be there inserted:—
§ The Committee divided: Ayes 133, Noes 174.545
|Division No. 167.]||AYES||[11.1 p.m.|
|Ainsley, J. W.||Hale, Leslie||Paling, Will T. (Dewsbury)|
|Allaun, Frank (Salford, E.)||Hannan, W.||Palmer, A. M. F.|
|Awbery, S. S.||Hayman, F. H.||Pargiter, G. A.|
|Bacon, Miss Alice||Herbison, Miss M.||Parker, J.|
|Bence, C. R. (Dunbartonshire, E.)||Hobson, C. R.||Parkin, B. T.|
|Benn, Hn. Wedgwood (Bristol, S.E.)||Howell, Denis (All Saints)||Pearson, A.|
|Benson, G.||Hughes, Cledwyn (Anglesey)||Plummer, Sir Leslie|
|Blackburn, F.||Hughes, Hector (Aberdeen, N.)||Popplewell, E.|
|Blenkinsop, A.||Irvine, A. J. (Edge Hill)||Price, Philips (Gloucestershire, W.)|
|Blyton, W. R.||Irving, S. (Dartford)||Probert, A. R.|
|Bottomley, Rt. Hon. A. G.||Jay, Rt. Hon. D. P. T.||Randall, H. E.|
|Bowden, H. W. (Leicester, S.W.)||Jenkins, Roy (Stechford)||Roberts, Albert (Normanton)|
|Bowles, F. G.||Johnson, James (Rugby)||Robinson, Kenneth,(St. Pancras, N.)|
|Boyd, T. C.||Jones, David (The Hartlepools)||Ross, William|
|Braddock, Mrs. Elizabeth||Jones, J. Idwal (Wrexham)||Short, E. W.|
|Brockway, A. F.||Jones, T. W. (Merioneth)||Silverman, Julius (Aston)|
|Broughton, Dr. A. D. D.||King, Dr. H. M.||Skeffington, A. M.|
|Butler, Herbert (Hackney, C.)||Lawson, G. M.||Slater, Mrs. H. (Stoke, N.)|
|Champion, A. J.||Ledger, R. J.||Slater, J. (Sedgefield)|
|Coldrick, W.||Lee, Frederick (Newton)||Steele, T.|
|Collick, P. H. (Birkenhead)||Lee, Miss Jennie (Cannock)||Stewart, Michael (Fulham)|
|Corbet, Mrs. Freda||Lever, Leslie (Ardwick)||Stones, W. (Consett)|
|Craddock, George (Bradford, S.)||Logan, D. G.||Summerskill, Rt. Hon. E.|
|Cronin, J. D.||Mabon, Dr. J. Dickson||Sylvester, G. O.|
|Crossman, R. H. S.||McGhee, H. G.||Taylor, Bernard (Mansfield)|
|Cullen, Mrs. A.||McInnes, J.||Taylor, John (West Lothian)|
|Dalton, Rt. Hon. H.||MacMillan, M. K. (Western Isles)||Thomas, George (Cardiff)|
|Deer, G.||Mahon, Simon||Timmons, J.|
|Delargy, H. J.||Mallalieu, J. P. W. (Huddersfd, E.)||Ungoed-Thomas, Sir Lynn|
|Dodds, N. N.||Marquand, Rt. Hon. H. A.||Usborne, H. C.|
|Dugdale, Rt. Hn. John (W. Brmwch)||Mason, Roy||Warbey, W. N.|
|Edwards, Rt. Hon. John (Brighouse)||Mikardo, Ian||Weitzman, D.|
|Edwards, Robert (Bilston)||Mitchison, G. R.||Wells, William (Walsall, N.)|
|Evans, Stanley (Wednesbury)||Monslow, W.||Wheeldon, W. E.|
|Fernyhough, E.||Moody, A. S.||White, Henry (Derbyshire, N.E.)|
|Fienburgh, W.||Morris, Percy (Swansea, W.)||Willey, Frederick|
|Fletcher, Eric||Moss, R.||Williams, W. R. (Openshaw)|
|Willis, Eustace (Edinburgh, E.)|
|Forman, J. C.||Moyle, A.||Wilson, Rt. Hon. Harold (Huyon)|
|Fraser, Thomas (Hamilton)||Mulley, F. W.||Winterbottom, Richard|
|Gibson, C. W.||Neal, Harold (Bolsover)||Woof, R. E.|
|Grenfell, Rt. Hon. D. R.||Oliver, G. H.||Yates, V. (Ladywood)|
|Grey, C. F.||Oram, A. E.||Zilliacus, K.|
|Griffiths, David (Rother Valley)||Or bach, M.|
|Griffiths, Rt. Hon. James (Llanelly)||Oswald, T.||TELLERS FOR THE AYES:|
|Griffiths, William (Exchange)||Paling, Rt. Hn. W. (Dearne Valley)||Mr. J. T. Price and Mr. Wilkins.|
|Agnew, Cmdr. P. G.||Baldock, Lt.-Cmdr. J. M.||Bevins, J. R. (Toxteth)|
|Aitken, W. T.||Barber, Anthony||Biggs-Davison, J. A.|
|Allan, R. A. (Paddington, S.)||Barlow, Sir John||Bishop, F. P.|
|Alport, C. J. M.||Barter, John||Body, R. F.|
|Amery, Julian (Preston, N.)||Baxter, Sir Beverley||Bowen, E. R. (Cardigan)|
|Armstrong, C. W.||Bell, Philip (Bolton, E.)||Boyle, Sir Edward|
|Ashton, H.||Bennett, Dr. Reginald||Brooke, Rt. Hon. Henry|
|Bryan, P.||Hughes Hallett, Vice-Admiral J.||Ramsden, J. E.|
|Burden, F. F. A.||Hughes-Young, M. H. C.||Rawlinson, Peter|
|Butcher, Sir Herbert||Hutchison, Sir James (Scotstoun)||Redmayne, M.|
|Cary, Sir Robert||Iremonger, T. L.||Rees-Davies, W. R.|
|Chichester-Clark, R.||Irvine, Bryant Godman (Rye)||Renton, D. L. M.|
|Clarke, Brig. Terence (Portsmth, W.)||Jenkins, Robert (Dulwich)||Ridsdale, J. E.|
|Cole, Norman||Johnson, Dr. Donald (Carlisle)||Rippon, A. G. F.|
|Conant, Maj. Sir Roger||Johnson, Eric (Blackley)||Roberts, Sir Peter (Heeley)|
|Cordeaux, Lt.-Col. J. K.||Joseph, Sir Keith||Ropner, Col. Sir Leonard|
|Corfield, Capt. F. V.||Joynson-Hicks, Hon. Sir Lancelot||Schofield, Lt.-Col. W.|
|Crosthwaite-Eyre, Col. O. E.||Keegan, D.||Scott-Miller, Cmdr. R.|
|Cunningham, Knox||Kerby, Capt. H. B.||Sharpies, R. C.|
|Currie, G. B. H.||Kerr, H. W.||Shepherd, William|
|Dance, J. C. G.||Kershaw, J. A.||Simon, J. E. S. (Middlesbrough, W.)|
|D'Avigdor-Goldsmid, Sir Henry||Kimball, M.||Smithers, Peter (Winchester)|
|Deedes, W. F.||Kirk, p. M.||Speir, R. M.|
|Donaldson, Cmdr. C. E. McA.||Langford-Holt, J. A.||Stanley, Capt. Hon. Richard|
|Doughty, C. J. A.||Leavey, J. A.||Stevens, Geoffrey|
|Drayson, G. B.||Legge-Bourke, Maj. E. A. H.||Steward, Harold (Stockport, S.)|
|du Cann, E. D. L.||Legh, Hon. Peter (Peterfield)||Stewart, Henderson (Fife, E.)|
|Eden, J. B. (Bournemouth, West)||Linstead, Sir H. N.||Stoddart-Scott, Col. M.|
|Emmet, Hon. Mrs. Evelyn||Lloyd, Maj. Sir Guy (Renfrew, E.)||Studholme, H. G.|
|Errington, Sir Erie||Longden, Gilbert||Summers, G. S. (Aylesbury)|
|Farey-Jones, F. W.||Lucas-Tooth, Sir Hugh||Taylor, William (Bradford, N.)|
|Finlay, Graeme||Macdonald, Sir Peter||Teeling, W.|
|Fisher, Nigel||McKibbin, A. J.||Thompson, Kenneth (Walton)|
|Fleetwood-Hesketh, R. F.||Mackie, J. H. (Galloway)||Thompson, Lt.-Cdr.R.(Croydon, S.)|
|Fletcher-Cooke, C.||Maclean, Fitzroy (Lancaster)||Thorneycroft, Rt. Hon. P.|
|George, J. C. (Pollok)||McLean, Neil (Inverness)||Thornton-Kemsley, C. N.|
|Gibson-Watt, D.||MacLeod, John (Ross & Cromarty)||Tilney, John (Wavertree)|
|Glover, D.||Macmillan, Rt. Hn. Harold (Bromley)||Touche, Sir Charles|
|Gomme-Duncan, Col. Sir Alan||Maddan, Martin||Turner, H. F. L.|
|Grant, W. (Woodside)||Mathew, R.||Tweedsmuir, Lady|
|Green, A.||Maude, Angus||Vane, W. M. F.|
|Gresham Cooke, R.||Mawby, R. L.||Vaughan-Morgan, J. K.|
|Grimond, J.||Maydon, Lt.-Comdr. S. L. C.||Vickers, Miss J. H.|
|Grimston, Sir Robert (Westbury)||Milligan, Rt. Hon. W. R.||Wade, D. W.|
|Grosvenor, Lt.-Col. R. G.||Morrison, John (Salisbury)||Wakefield, Edward (Derbyshire, W.)|
|burden, Harold||Mott-Radclyffe, C. E.||Wakefield, Sir Wavell (St. M'lebone)|
|Hall, John (Wycombe)||Nairn, D. L. S.||Walker-Smith, D. C.|
|Harris, Frederic (Croydon, N.W.)||Nicolson, N. (B'n'm'th & Chr'ch)||Wall, Major Patrick|
|Harris, Reader (Heston)||Nield, Basil (Chester)||Ward, Hon. George (Worcester)|
|Harrison, A. B. C. (Maldon)||Ormsby-Gore, Hon. W. D.||Ward, Dame Irene (Tynemouth)|
|Harrison, Col. J. H. (Eye)||Osborne, C.||Waterhouse, Capt. Rt. Hon. C.|
|Harvey, Air Cdre. A. V. (Macclesfd)||Page, R. G.||Webbe, Sir H.|
|Heald, Rt. Hon. Sir Lionel||Pannell, N. A. (Kirkdale)||Whitelaw, W.S.I.(Penrith & Border)|
|Heath, Rt. Hon. E. R. G.||Partridge, E.||Williams, Paul (Sunderland, S.)|
|Hill, Mrs. E. (Wythenshawe)||Pilkington, Capt. R. A.||Wills, G. (Bridgwater)|
|Holt, A. F.||Pitt, Miss E. M.||Wilson, Geoffrey (Truro)|
|Horobin, Sir Ian||Pott, H. P.|
|Howard, John (Test)||Powell, J. Enoch||TELLERS FOR THE NOES:|
|Hudson, Sir Austin (Lewisham, N.)||Raikes, Sir Victor||Mr. Oakshott and Mr. Godber|
Question put and agreed to.
§ Mr. R. Gresham Cooke (Twickenham)
I beg to move, in page 13, line 24, at the end to insert:(3) Where any such restrictions are determined by the court not to be contrary to the public interest the court shall make an order to that effect and the agreement shall be enforceable by civil proceedings as between any party thereto.
§ The Chairman
I suggest that this Amendment might be discussed together with the last Amendment to the Clause, in the name of the hon. Member for Heston and Isleworth (Mr. R. Harris), in page 13, line 29, at the end to add:(5) Paragraph (1) of section four of the Trade Union Act, 1871 (which prohibits any court entertaining proceedings to enforce certain agreements), shall not apply to any proceedings to enforce any agreement to which this Act applies and which is not declared by an Order of the Restrictive Practices Court for the time being in force to be contrary to the public interest.
§ Mr. Gresham Cooke
Yes, Sir Charles.
There has been a good deal of discussion tonight about the enforcement of restrictive agreements. The object of the Amendment is to lift that enforcement out of the realm of stop lists, fines and secret courts into the clear air of the courts of the land. We have heard a good deal during our debates in Committee about the agreements and arrangements that will not be approved by the Restrictive Practices Court, but we must face the fact that there will be a number of agreements of a quite innocuous character that will be approved by the Court as being in the public interest. The question will then arise of how these agreements will be enforced, whether by stop lists, fines or any other means.
One of the difficulties that has faced anybody who has had anything to do with 547 these restrictive arrangements is that, strangely enough, they cannot be enforced in the courts of the land because of the Trade Union Acts. Under Section 16 of the Trade Union Act, 1876, any combination for imposing restrictive conditions on the conduct of any trade or business becomes a trade union. Whether employers or others who are working this arrangement are aware of it or not, their restrictive action becomes a trade union.
Then, under the Trade Union Act, 1871, Section 4, it is laid down that nothing in that Act shall enable any court to entertain any legal proceedings for the breach of any agreement by the members of a trade union as such concerning the conditions on which members shall or shall not sell their goods. That is why over the years, the secret courts and the rest have been developed. Not being allowed to go to the courts of the land, industries and trades have had to build up their own courts. The reason why they have been secret, as has been said, is that they have received no privilege. The statements made in the courts are not privileged and the members of the courts can be sued for libel. That is why they cannot admit the Press. We therefore come to the conclusion that members of a combination cannot sue other members in the courts of the land, although many of the agreements which they have entered into are perfectly lawful and, I believe, quite innocuous.
Let me give an example. Makers of electric fires might agree together that for the purpose of public safety, bars should be placed in front of electric fires to prevent children from falling into them. That might be an arrangement entered into by all the makers of electric fires. Imposed on the trade, it would become a restrictive arrangement.
Another example, about which I know a little more, is that in the motor trade there is an arrangement known as the distribution scheme, by which garages which enter the trade are required to have certain minimum qualifications in the repair service they offer to the public. They must have a certain amount of workship space and a £50 stock of spare parts; they must have two qualified mechanics, at least one of whom must be certificated or a skilled craftsman under the terms of the national wages agreement, and they must also have certain tools and equip 548 ment, suitable lifting jacks, equipment for chassis repairs etc.
That kind of arrangement will obviously have to come before the Restrictive Practices Court; and if, as I believe, it is in the public interest generally that repair garages should have the proper facilities for the public, the question will arise as to how the 8,000 garages and repairers up and down the country, in the situation which will have been brought about, can keep these facilities going. At present the ultimate sanction on them if they drop below that standard is a fine, or they may be put on the stop list.
I am suggesting here, and I think that I have the support of some of my hon. Friends, that in order to enforce these innocuous agreements which get through the Restrictive Practices Court, members of such arrangements ought to be able to go to the courts of the land. It would make these innocuous restrictive practices much more practical; it would make the Bill more practicable. Therefore I think that the Amendment which I propose is desirable. I ask the President of the Board of Trade to accept it.
§ Mr. R. Harris
The Amendment is being discussed with the later Amendment in my name, in page 13, line 29. It is an Amendment which I do not intend to press. I put it down because, as stated earlier this evening, it is I consider, necessary that if the Court approves any of the agreements there shall be power to enforce them. It would make nonsense of the Bill if there were power to approve agreements, but no method of enforcing them. There are two ways to enforce them, either through ordinary courts of the land or through the so-called secret courts. I am not particularly concerned which way it is done.
The reason we suggest enforcement through the courts is because we recognise that the so-called secret courts are unpopular. Much of the criticism levelled against them is unjustified. At any rate, in the courts with which I have had any connection, every conceivable attempt has been made to ensure that they are fair and just. The only reason they were set up was that the people affected might have some opportunity to make representations against any decision, rather than that the decision should be taken by an executive of a particular 549 firm sitting in his office, against whose decision there might be no appeal.
That would really be a secret decision, because the ground for the decision would not be known. These courts have been described as bad, but I think that that is unjust; because they were set up to ensure that justice was done, and that it was seen to be done, so far as it was permissible for it to be seen to be done. It is difficult to enable people to see justice being done if there is the possibility of a libel action at the end of it. As has been made clear by the Motor Trade Association on more than one occasion, the defendants in these cases are usually keen that there shall be no publicity.
There is no doubt that secret courts, if I may call them such, or private courts, will continue where agreements do not concern retail prices. If we could have had the enforcement of these agreements carried out through the courts it would have been a good thing. On the other hand, I recognise that for enforcement to be carried out by trade associations it would be necessary to pass an Amendment, such as that in my name which would disapply Sections 1 to 4 of the Trade Union Act of 1871, which precludes trade unions taking action against members, and the relevant Section of the 1906 Act.
If that is going too wide, and it is desired that we should not disapply the Trade Union Act—[interruption]—The Trade Disputes Act of 1906 has been disapplied in one respect, in Clause 20. I think it a quite simple word. All it means is that a provision is not applied any longer. Then it will be possible for a trade association to bring actions against its members, if necessary. However, if that would raise the whole question of the legislation relating to trade unions, and the rights of trade unions to sue or to be sued, I am quite willing not to press my Amendment, so long as it is clear that there will be power in a trade association or other body to enforce an agreement which has had the approval of the Court.
§ Mr. A. J. Irvine
These are interesting, but dangerous Amendments. I should not think that my own views of what was in the public interest in this matter were entirely disparate from the views of the hon. Member for Twickenham (Mr. 550 Gresham Cooke). I am not entering into the "disapplication" controversy, which is of secondary importance and a less agreeable subject; but I would accept that in this matter the conception of the public interest held by the hon. Member for Twickenham and that held by myself would be, as I say, not dissimilar.
However, what he is doing by the Amendment is bringing forward in the garb of civil liberties the most cadaverous animal the Committee has seen during its discussions. I would make one point to the Committee in particular. We could have a secret court, and an agreement providing for a stop list and a secret court, held by the Restrictive Practices Court to be contrary to the public interest. The agreement setting up that stop list and constituting that secret court could be held to be a registrable agreement contrary to the public interest, and that having been decided, many agreements entered into by the members of the trade association which had constituted the secret court would be, under the law of the land as it is at present, not enforceable.
One effect of the Amendment, as I understand—this is one of the many results that could ensue—would be that when the agreement entered into by the trade association and creating and constituting a secret court and stop list had thus been held to be contrary to the public interest, that would not prevent a separate ancillary agreement entered into by members of the association being held to be not contrary to the public interest. Without this Amendment such an ancillary agreement would not be enforceable at law. The Amendment makes it enforceable.
§ Mr. Gresham Cooke
The object of my Amendment is to get rid of the means of enforcement, the stop list, and so on, to which the hon. Gentleman is referring. What I said was that any such restrictions determined by the Court not to be contrary to the public interest—in other words, which are allowed as being in the public interest—should be enforceable in the ordinary courts.
§ Mr. Irvine
I appreciate that that is what the hon. Member said his purpose was. The point I am making is that there may be an agreement arrived at which is determined by the Court not to be contrary to the public interest, and, as 551 things are now under the existing law, that agreement can be enforced only by reference to a secret court and a stop list. Once that secret court and stop list procedure is determined by the Court to be contrary to the public interest that same agreement would not be enforceable. That is right, is it not?
Therefore, the proposition which I make to the Committee is that if we have an agreement which is arrived at between parties and which the Restrictive Practices Court holds not to be contrary to the public interest, it should not be made possible for that agreement to be rendered enforceable in a way in which it is not enforceable now. It may be that the Restrictive Practices Court will have determined that the secret court and the processes of the stop list are not in accordance with the public interest and should not continue. The enforceability of the ancillary agreements should cease when the secret court ceases.
I do not expect the Amendment to be acceptable to the President. Again and again he has protected us from the animadversions and persuasions of his hon. Friends, and we look to him to do it again. The right hon. Gentleman does not like the Amendment any more than we do, and in recognition of that we are sure that he will not accept it.
§ Mr. Jay
I hope that the President will not accept the Amendment. The hon. Member for Twickenham (Mr. Gresham Cooke) moved it very plausibly. I have known him for many years, and he always puts his point of view plausibly. No doubt the suggestion is genuinely intended to get rid of secret courts and to substitute respectable legal procedure, but the difficulty that we see about it is as follows.
The hon. Gentleman's Amendment rightly begins by saying:Where any such restrictions are determined by the court not to be contrary to the public interest …It does not say "where they are determined to be in the public interest". This is a clear and material distinction. Under the provisions of Clauses 15 and 16, the Bill considers whether an agreement shall be deemed to be contrary to the public interest, and, if it passes the test, all that has happened is that it is not deemed to be contrary to the public interest. It does not mean that 552 it has been found to be substantially or even materially in the public interest. It does not seem to us to follow that, just because it has not been found to be objectionable, it is clearly and materially in the public interest that it should be enforceable at law.
There are all sorts of agreements that we make in all walks of life, in private societies and associations, and so on, which are in no way contrary to the public interest, which are perfectly innocuous and blameless, but we do not suggest that they ought to be enforceable at law and given the force of law. That is what the hon. Gentleman is arguing.
In several places in its Report the Commission argued that, while it might be that certain agreements and practices might be innocuous and there might be no serious objection to them, it did not think that it ought to be possible to enforce them on parties who did not wish to carry them out. The Commission's view was that, in those circumstances, if the agreement was desirable, the parties which wished to carry it out should do so, but there was no reason why there should be any enforcement on unwilling parties either by economic boycott or by invoking the law.
In these circumstances, we think that, even though it has been found that the practice is not contrary to the public interest, it is going too far to suggest that the whole machinery of the law should automatically be invoked to this effect.
§ 11.30 p.m.
§ Mr. P. Thorneycroft
My hon. Friends the Members for Twickenham (Mr. Gresham Cooke) and Heston and Isle-worth (Mr. R. Harris) intimated that they moved and supported the Amendments to point a moral, and it is quite a good one to follow; namely, that these private court enforcement methods are there because in the development of the law of this country there is no other kind of enforcement. That is something which I think is too little understood, and it is useful that Amendments should be put down to show it. They suggest that the best way out of this difficulty might be by abolishing these various private arrangements for enforcement and substituting the right of legal enforcement in the courts.
553 It is an argument which might be expected to appeal to me, because at a later stage of the Bill, and on a very much narrower front and having a very different context, I shall show that we rely on individual rights of enforcement through the courts. This goes very much further and deals with a whole range of restrictive arrangements many of which would be quite irrelevant to the courts; such as whether there should be an after-sales service, or whether there should be exclusive dealing with a particular range of people to preserve the safety of the public.
These are difficult things, in any event, to refer to a court. They are much better dealt with, if approved, by various private arrangements. Moreover, in the case of a common price ring it often happens that there are no enforcement methods at all. To invoke or import into the Bill words whereby, though the court ruled that a common price ring was not contrary to the public interest, yet automatically each individual member had the right of action against another individual member who sold below the price, would be to fortify these restrictive arrangements. While I appreciate the intent of my hon. Friends, I hope that we shall be able to leave the Bill in its present form.
§ Mr. Gresham Cooke
I am, of course, disappointed that the President is not able to accept my Amendment, as I consider that it might have improved the Bill. I used the wordsnot to be contrary to the public interestbecause they were opposite to the wordscontrary to the public interestin Clause 15 (2). But I appreciate what has been said by the President, that this Amendment, if accepted, might have to go a great deal further than I had envisaged, and that there might be difficulty in bringing it into the Bill. I therefore beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause, as amended, ordered to stand part of the Bill.
§ To report Progress, and ask leave to sit again.—[Mr. P. Thorneycroft.]
§ Committee report Progress; to sit again Tomorrow.