HC Deb 17 May 1956 vol 552 cc2273-85
Mr. G. Darling

I beg to move, in page 20, line 15, to leave out subsection (1).

To show that we wish to get on with the Bill I propose to be extremely brief. I remember that when I was a reporter I attended industrial conferences year after year, and that so long as certain gentlemen were opening and closing their mouths I could take down their remarks without listening to what they were saying; and I was always accurate.

Division No 189.] AYES (6.47 p.m.
Agnew, Cmdr. P. G. Biggs-Davison, J. A. Cole, Norman
Aitken, w. T. Birch, Rt. Hon. Nigel Cordeaux, Lt.-Col. J. K.
Allan, R. A. (Paddlngton, S ) Bishop, F. P. Corfield, Capt. F. V.
Alport, C. J. M. Black, C. W. Craddook, Beresford (Spelthorne)
Amory, Rt. Hn. Heathcoat Body, R. F. Crouch, R. F.
Arbuthnot, John (Tiverton) Boothby, Sir Robert Crowder, Petre (Ruislip—Northwood)
Armstrong, C. W. Bossom, Sir A. C. Cunningham, Knox
Ashton, H. Braine, B. R. Currie, G. B. H.
Atkins, H. E. Brooke, Rt. Hon. Henry Dance, J. C. G.
Balniel, Lord Brooman-White, R. C. Deedes, W. F.
Barter, John Bullus, Wing Commander E. E. Donaldson, Cmdr. C. E. McA.
Baxter, Sir Beverley Butler, Rt. Hn. R.A. (Saffron Walden) Doughty, C. J. A.
Bell, Philip (Bolton, E.) Campbell, Sir David du Cann, E. D. L.

I am sure that the President has anticipated our misgivings about this Clause and this subsection. We do not want to see any loopholes where agreements can slip between the Court and the Commission. Therefore, knowing that the right hon. Gentleman has a reply prepared, I will sit down and listen to it.

6.45 p.m.

Mr. P. Thorneycroft

I do not wish to repeat all the arguments which were debated in some detail earlier. It is the desire of hon. Members on both sides of the Committee to see that we do not have a clash of jurisdiction between the Commission and the Court. In these circumstances, a subsection such as this is necessary; otherwise, we should be retaining the power to make orders under Section 10 of the 1948 Act in respect of matters which, by a decision of the House of Commons, whether we agree with it or not. have been put under the jurisdiction of the Court. That is the reason for this subsection. While I appreciate that there are differences about this which we have discussed on an earlier Amendment, I hope that the matter will not be pressed further.

Sir L. Ungoed-Thomas

The President is aware of the attitude of hon. Members on this side of the Committee. We have divided on an earlier Amendment. We are opposed to the whole of the approach of the President to this part of the Bill. This is one of the main Amendments to this part of the Bill and, therefore, we shall press it. But I shall not take up more time in discussing the matter because we have debated the principle, and the position has been outlined by my hon. Friend.

Question put, That the words proposed to be left out stand part of the Clause—

The Committee divided Ayes 177, Noes 140.

Eden, J. B. (Bournemouth, West) Lancaster, Col. C. G. Profumo, J. D.
Errington, Sir Eric Langford-Holt, J. A. Raikes, Sir Victor
Erroll, F. J. Leather, E. H. C. Rawlinson, Peter
Farey-Jones, F. W. Leavey, J. A. Redmayne, M.
Fell, A. Leburn, W. G. Renton, D. L. M.
Finlay, Graeme Legh, Hon. Peter (Petersfield) Ridsdale, J. E.
Fleetwood-Hesketh, R. F. Lindsay, Hon. James (Devon, N.) Rippon, A. G. F.
Fletcher-Cooke, C. Linstead, Sir H. N. Roberts, Sir Peter (Heeley)
Foster, John Lloyd, Maj. Sir Guy (Renfrew, E.) Russell, R. S.
Fraser, Sir Ian (M'cmbe & Lonsdale) Lloyd-George, Maj. Rt. Hon. G. Sharpies, R. C.
Freeth, D. K. Longden, Gilbert Shepherd, William
Garner-Evans, E. H. Lucas, Sir Jocelyn (Portsmouth, S.) Simon, J. E. S. (Middlesbrough, W.)
George, J. C. (Pollok) Lucas-Tooth, Sir Hugh Smithers, Peter (Winchester)
Gibson-Watt, D. McAdden, S. J. Spens, Rt. Hn. Sir P. (Kens'gt'n, S.)
Godber, J. B. Mackeson, Brig. Sir Harry Stevens, Geoffrey
Gomme-Duncan, Col. Sir Alan Mackie, J. H. (Galloway) Steward, Sir William (Woolwich, W.)
Graham, Sir Fergus Maclay, Rt. Hon. John Stuart, Rt. Hon. James (Moray)
Grant, W. (Woodside) Maddan, Martin Studholme, H. G.
Green, A. Maitland, Cdr. J. F. W.(Horncastle) Summers, G. S. (Aylesbury)
Gresham Cooke, R. Maitland, Hon. Patrick (Lanark) Sumner, W. D. M. (Orpington)
Harris, Frederic (Croydon, N.W.) Markham, Major Sir Frank Taylor, Sir Charles (Eastbourne)
Harvey, John (Walthamstow, E.) Marlowe, A. A. H. Teeling, W.
Harvie-Watt, Sir George Marples, A. E. Thomas, Leslie (Canterbury)
Hay, John Marshall, Douglas Thorneycroft, Rt. Hon. P.
Heald, Rt. Hon. Sir Lionel Mathew, R. Thornton-Kemsley, C. N.
Heath, R. Hon. E. R. G. Maude, Angus Tilney, John (Wavertree)
Hicks-Beach, Maj. W. W. Mawby, R. L. Touche, Sir Gordon
Hill, John (S. Norfolk) Maydon, Lt.-Comdr. S. L. C. Turner, H. F. L.
Hinchingbrooke, Viscount Medlicott, Sir Frank Turton, Rt. Hon. R. H.
Hope, Lord John Milligan, Rt. Hon. W. R. Vickers, Miss J. H.
Hornsby-Smith, Miss M. P. Molson, A. H. E. Vosper, D. F.
Horobin, Sir Ian Morrison, John (Salisbury) Wakefield, Edward (Derbyshire, W.)
Howard, John (Test) Mott-Radclyffe, C. E. Walker-Smith, D. C.
Hudson, Sir Austin (Lewisham, N.) Nairn, D. L. S. Wall, Major Patrick
Hughes Hallett, Vice-Admiral J. Neave, Airey Ward, Hon. George (Worcester)
Hughes-Young, M. H. C. Nicolson, N. (B'n'm'th & Chr'ch) Ward, Dame Irene (Tynemouth)
Hutchison, Sir Ian Clark(E'b'gh, W.) Oakshott, H. D. Watkinson, Rt. Hon. Harold
Hylton-Foster, Sir H. B. H. Ormsby-Gore, Hon. W. D. Whitelaw, W. S. I.(Penrith & Border)
Iremongcr, T. L. Orr, Capt. L. P. S. Williams, Paul (Sunderland, S.)
Jenkins, Robert (Dulwich) Pannell, N. A. (Kirkdale) Wills, G. (Bridgwater)
Johnson, Howard (Kemptown) Wilson, Geoffrey (Truro)
Jones, Rt. Hon. Aubrey (Hall Green) Partridge, E. Woollam, John Victor
Joseph, Sir Keith Pickthorn, K. W. M. Yates, William (The Wrekin)
Joynson-Hicks, Hon. Sir Lancelot Pilkington, Capt. R. A.
Keegan, D. Pitman, I. J. TELLERS FOR THE AYES:
Kerby, Capt. H. B. Pott, H. P. Colonel J. H. Harrison and
Kerr, H. W. Powell J. Enoch Mr. Barber.
Kirk, P. M. Prior-Palmer, Brig. O. L.
NOES
Ainsley, J. W. de Freitas, Geoffrey King, Dr. H. M.
Albu, A. H. Delargy, H. J. Lawson, G. M.
Allen, Scholefield (Crewe) Dugdale, Rt. Hn. John (W. Brmwch) Lee, Miss Jennie (Cannock)
Anderson, Frank Ede, Rt. Hon. J. C. Lever, Harold (Cheetham)
Awbery, S. S. Edwards, Rt. Hon. John (Brighouse) Lever, Leslie (Ardwick)
Bacon, Miss Alice Edwards, Robert (Bilston) Lewis, Arthur
Benn, Hn. Wedgwood (Bristol, S.E.) Evans, Albert (Islington, S. W.) Lindgreen, G. S.
Benson, G. Fletcher, Eric Lipton, Lt. -Col. M.
Beswick, F. Forman, J. C. Maccoll, J. E.
Bevan, Rt. Hon. A. (Ebbw Vale) Fraser, Thomas (Hamilton) McInness, J
Blackburn, F. Gibson, C. W. McLeavy, Frank
Blenkinsop, A. Gordon Walker, Rt. Hon. P. C. MacPherson, Malcolm (Stirling)
Bottomley, Rt. Hon. A. G. Griffiths, Rt. Hon. James (Llanelly) Mallalieu, E. L. (Brigg)
Bowden, H. W. (Leicester, S. W.) Grimond, J. Mallalieu, J. P. W. (Huddersfd, E.)
Bowen, E. R. (Cardigan) Hamilton, W. W. Marquand, Rt. Hon. H. A.
Boyd T. C. Hannan, W. Mellish, R. J.
Brockway, A. F. Hastings, S. Messer, Sir F.
Brown, Rt. Hon. George (Belper) Hayman, F. H. Mitchison, G. R.
Butler, Mrs. Joyce (Wood Green) Healey, Denis Monslow, W.
Castle, Mrs. B. A. Henderson, Rt. Hn. A. (Rwly Regis) Moody, A. S.
Chapman, W. D. Herbison, Miss M. Morrison, Rt. Hn. Herbert (Lewis m, S.)
Chetwynd, G. R. Houghton, Douglas Moyle, A.
Clunie J. Hubbard, T. F. Mulley, F. W.
Collick, P. H. (Birkenhead) Hughes, Emrys (S. Ayrshire) Noel-Baker, Francis (Swindon)
Collins, V. J. (Shoreditch & Finsbury) Hughes, Hector (Aberdeen, N.) Oliver, G. H.
Corbet, Mrs. Freda Hunter, A. E. Oram, A. E.
Cove, W. G. Irvine, A. J. (Edge Hill) Orbach, M.
Craddock, George (Bradford, S.) Irving, S. (Dartford) Oswald, T.
Cronin, J. D. Jay, Rt. Hon. D. P. T. Owen, W. J.
Darling, George (Hillsborough) Jenkins, Roy (Stechford) Palmer, A. M. F.
Davies, Rt. Hn. Clement (Montgomery) Johnson, James (Rugby) Pargiter, G. A.
Davies, Ernest (Enfield, E.) Jones, David (The Hartlepools) Parker, J.
Davies, Harold (Leek) Jones, Elwyn (W. Ham, S.) Parkin, B. T.
Deer, C. Key, Rt. Hon. C. W. Paton, J.
Plummer, Sir Leslie Silverman, Julius (Aston) Warbey, W. N.
Popplewell, E. Silverman, Sydney (Nelson) Weitzman, D.
Price, J. T. (Westhoughton) Skeffington, A. M. Wells, Percy (Faversham)
Price, Philips (Gloucestershire, W.) Sorensen, R. W. Wells, William (Walsall, N.)
Probert, A. R, Sparks, J. A. Wilkins, W. A.
Proctor, W. T. Steele, T. Willey, Frederick
Pryde, D. J. Stewart, Michael (Fulham) Willis, Eustace (Edinburgh, E.)
Redhead, E. C. Strauss, Rt. Hon. George (Vauxhall) Yates, V. (Ladywood)
Reeves, J. Summerskill, Rt. Hon. E. Younger, Rt. Hon. K.
Roberts, Coronwy (Caernarvon) Taylor, John (West Lothian) Zilliacus, K.
Robinson, Kenneth (St. Pancras, N.) Tomney, F.
Ross, William Turner-Samuels, M. TELLERS FOR THE NOES:
Short, E. W. Ungoed-Thomas, Sir Lynn Mr. Holmes and Mr. Simmons.
Shurmer, P, L. E. Viant, S. P.
Mr. P. Thorneycroft

I beg to move, in page 21, line 6, at the beginning to insert " Except with the consent of the Board of Trade,. As drafted, subsection (5) says: No application shall be made under this Section. That is, application to have one of these undertakings reviewed— "…until the expiration of a period of three years beginning with the date of the commencement of this Act. The Amendment will enable the Board of Trade, if it wishes to do so, to give consent to one of these cases being dealt with earlier. I think that that is a wise and prudent decision. We decided earlier in the Bill that the Board of Trade shall have power to give orders as to the timing of these various cases coming before the Court, and it might be—I do not say that it would be—felt that one of these matters which some years ago had been considered by the Commission was something which suitably fitted in to the pattern of work being done by the Court at that time.

It would be a pity to take away from ourselves the power to have any consideration of a matter of that sort. I do not think that we should do so. I hope very much that the Committee will accept the Amendment and give us this rather wider power than we possess at present.

Sir L. Ungoed-Thomas

This proposal helps the person who exercises a restrictive practice. It is an Amendment which goes in the direction favourable to him. Time and again during our debates we have heard it being preached from the opposite side of the Committee that the Board of Trade must not be dragged in, it must be kept out, and all the rest of it. Yet here we have a proposal which drags in the Board of Trade when it comes down in favour of the restrictive practitioner.

It really makes slightly "humbuguous" —if there were such a word—the arguments which have been put forward from the other side of the Committee, but I agree that in itself it is not an unreasonable provision. For that reason, while commenting on the attitude adopted by the Board of Trade, we nevertheless will not oppose the Amendment.

Amendment agreed to.

Mr. John Cronin (Loughborough)

I beg to move, in page 21, line 7, to leave out "three" and to insert "five".

This Amendment is of such a simple and obviously clear nature that I will try to compete with my hon. Friend the Member for Deptford (Sir L. Plummer) and say no more in its favour.

Mr. P. Thorneycroft

This is one of those very difficult Amendments to answer, because it is a matter of opinion upon which reasonable people can hold differing views about whether it ought to be three or five years. This is what we have in mind: we did not want a situation to arise where, on the passing of the Bill into law, all the undertakings would fall and all the practices which had been examined by the Commission would be revived. I am sure that the whole Committee would agree with that. That is at one end of the scale.

7.0 p.m.

At the other end, we do not want to put it out of the power of industries to have their cases heard at a reasonable period thereafter, and the compromise —for compromise it is, and must be in a matter of this kind—that we have struck is that they should be held or fixed, as we may say, for a period of three years, but that they do have an opportunity of being heard after that period. Unless some very powerful case can be made out for altering it, I suggest to the Committee that that is a reasonable arrangement.

Sir L. Ungoed-Thomas

I agree that this is a question of balance and of deciding on which side one comes down. I should have had some sympathy with the observations of the President but for what he said on the previous Amendment. I hope that the right hon. Gentleman will reconsider this. It is a matter of balancing advantage and disadvantage, but, in a proper case, he has now taken to himself power as President of the Board of Trade to allow a case within the period of years set out within the subsection, whatever it may be—whether three years or five years. It is not a matter to press to a Division, but it is one which is not unimportant, and I therefore hope that the right hon. Gentleman will reconsider it before the Report stage.

Mr. Turner-Samuels

May I point out to the President that there really is a safeguarding provision in the final words of subsection (2) of this Clause; which provide that it has to be shown, or the court has to be satisfied, that " no restrictions proposed to be accepted under the agreement would be contrary to the public interest. Perhaps the President will take these two elements into consideration. First, there is the question of his intercession in the matter, which is the first safeguard, and then there is the second one, which is provided by the final words of the subsection, and which I have just quoted. In these circumstances, perhaps the President would consider that five years would not be a disadvantage in this particular matter.

Mr. P. Thorneycroft

I will bear all these matters in mind. If I may give a forecast of my behaviour, I am going to use the Amendment which I moved on the last occasion—to give to the Board of Trade power to vary—for the purpose of resisting an Amendment which is to be moved by one of my hon. Friends behind me. I have pressure from both sides, but I think we have come to a reasonable compromise, and that the proposal is the best one that we can arrive at. I will, however, bear in mind the arguments that have been used.

Mr. Cronin

We are not entirely satisfied with the President's reassurance on this matter. In fact, were we engaged in more commercial circles, I should suggest splitting the difference and making it Four However, not wishing to take up time I beg to ask leave to withdrew the amendment

Amendment, by leave with drawn

Mr. Charles Doughty (Surrey, East)

I beg to move in page 21,line 8,to leave out "the commencement of this Act and to insert: any order made under section ten of the monopolies and restrictive practices (Inquiry and control) Act, 1948,or any other under-taking given to a competent authority by the person or persons in reference to whom a report has been made by the commission

The Chairman:

I understand that it will be for the convenience of the committee if this Amendment and the next one in the name of the hon. Member for Hillsborough (Mr. G Darling),also in page 21, line 8 are taken together

Mr. Doughty

It would seem that the provision for appealing or having under-takings or orders made under section 10 of the 1948 Act are too arbitrary; that it is an arbitrary date of three years from the date of the commencement of the operation of this Bill some industries got an undertaking or had an inquiry made a great many years after that they are therefore, in a much worse position than those industries which have not been before the monopolies commission or before it at a later date

That may mean hardship for some and they think rightly or wrongly, that they should have their orders or undertakings inquired into now it is also a hardship for those who gave an undertaking not to carry on particular practices when similar practices court to be in the public interest and these people then want to get their undertakings or orders revoked

Until my right hon friend moved the Amendment which the committee has just accepted, inserting the words: Except with the consent of consent of the Board of Trade, They were in the position of being completely debarred until three years after the beginning of the operation of this Bill when it becomes law If we look at clause 17, we find that those who go before the Restrictive practices court may apply to have an order or undertaking varied by leave of the court that application for such discharge has to be made under Clause 17 with the leave of the Court, and that such leave shall not be granted— except upon prima facie evidence of a material change in the relevant circumstances. What they really ask is that they should go before the Court, if necessary, and say that there has been a material change in the relevant circumstances since the order or undertaking was made under the original Act. If the Court finds that a prima facie case has been made out, they should be able to go at any time before the Court and have the original undertaking or Order suspended or varied.

Mr. G. Darling

The time factor can also work on the assurances that are given about the references to the Monopolies Commission after the Bill is passed, and that was really the point in our minds. We may have assurances or undertakings given by industries which have been examined by the Monopolies Commission after the Act has been passed, and it may be worth while to allow that to stand, because the period of three years is not to be sacrosanct. We would like the views of the President on that matter, because it will help us to determine our position.

Mr. Walker-Smith

The two Amendments which the Committee is now discussing rather illustrate the point which my right hon. Friend made about conflicting pressures in this matter. It is, of course, obvious that there must be a fixed time limit, to prevent the Court spending the first period of its existence simply reconsidering matters which have been dealt with under previous procedures. Just what the time limit should be nobody can be dogmatic about, because on that there can be no exactitude.

If the Amendment moved by my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) were accepted as it stands and the three-year period ran from the date of the undertaking or order, instead of from the date of the commencement of the operation of the Act, it would make a very considerable subtraction from the period, because no Orders will have been made or undertakings given since the end of 1955, and most of them a long time before. Therefore, in the case of a good many, there would be no time limit period if the Amendment was accepted as it stands.

I do not think that the Amendment of the hon. Member for Hillsborough (Mr. Darling) would have much practical effect, because after the commencement of the operation of the Act no assurances or undertakings will, in fact, be required in respect of registrable agreements, which is what we are concerned with here. Though the Amendment would make a legal difference it would not have a practical effect. All things considered, the suggestion that was put out by the hon. Member for Loughborough (Mr. Cronin) was attractive, because when an hon. Member who is skilled in science talks about splitting the difference it is very difficult to resist his argument. It may be that the appropriate solution would be to consider making the period four years, with an undertaking that the Board of Trade would use the power given by the previous Amendment to examine any case of hardship. That sort of solution might commend itself on Report.

Mr. Doughty

I would ask my right hon. Friend to consider bringing the Clause more into line with Clause 17 so that the application is not made to the Board of Trade but, in accordance with the practice laid down by that Clause, can be made to the court which can keep its practice in similarity in these two procedures. In view of my right hon. Friend's Amendment, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Motion made, and Question proposed, That the Clause, as amended, stand part of the Bill.

Mr. Jay

Since we are now making speeches in an interrogatory form, may I ask the President whether he is happy about Clause 24 (2)? Does he think it right to give the Restrictive Practices Court the power to set aside or vary an Order made by Parliament? An Order made by Parliament is a form of legislation. Is it not going very far in the direction of taking authority away from the House and giving it to the Court when he gives to the Court power to cancel legislation passed by Parliament without any reference back to Parliament?

Mr. P. Thorneycroft

The reason for the broad provision is that these various arrangements have been examined over a period of years by the Monopolies Commission. They have been found to be either for or against the public interest. Now new criteria are laid down and new provisions are made, and it seems right, not immediately but at some stage, that these matters should be judged in the light of the provisions laid down by Parliament

This arises in only one case; it arises in the case of the Dental Goods Order. All the others were undertakings. I will look at the point which the right hon. Member for Battersea, North (Mr. Jay) has made. This is a serious point, but I do not think that any constitutional problem arises on it. I will, however, examine the matter.

Mr. Ede (South Shields)

I hope that the right hon. Gentleman will carry out that pledge, because it seems to me to be a complete departure that anything done by the House should be set aside by some other body. One hon. Member frequently reminds us that this is an omnicompetent Assembly and points out how different we are from the Congress of the United States, for the Supreme Court in America can set aside a Bill altogether on the ground that it is unconstitutional.

No matter how defective our legislation may be, and how much delight noble and learned Members of another place may get from pointing out how defective our proceedings are, at any rate the law of the land stands until this House alters it. It is true that it may be interpreted by the judges and others, but as far as I know it would be a complete innovation that some other body—a body which is very much a creature of this House, under the Bill—should have the power to set aside something which we have done.

I sincerely hope that the right hon. Gentleman will realise that, although this may be a small matter in itself, it appears to be so astonishing an innovation that it ought to be considered seriously before the House is asked to adopt it.

Mr. P. Thorneycroft

I have said that I will look into any point of that kind. There can be no question of a court overruling a decision of the House of Commons. All that could happen is that the House of Commons, of its own free will, would relinquish a decision to some other body. I want to make it absolutely clear that it is a decision, whichever way it may be taken, of the House and not something imposed upon it.

7.15 p.m.

Mr. Turner-Samuels

I am not saying whether I agree with my right hon. Friend the Member for South Shields (Mr. Ede) or whether I disagree with him, but it occurs to me that the test here, when the matter comes before the Restrictive Practices Court. will be, is this agreement for or against the public interest? The Court may come to a certain decision on such an agreement. But there may already be a matter which has already been dealt with by the Monopolies Commission where the decision might be contrary to the decision of the Court. It would be unfair to the person or combine concerned if that decision should stand in a contrary sense to the Court's decision.

A situation would arise in which one person would be ruled against by the Monopolies Commission while another person would have a decision in his favour, by the Court, on exactly the same ground. That is most undesirable. I should have thought that the Clause might serve a useful purpose in dealing with that difficulty and in seeing that equal justice is done.

I quite agree with my right hon. Friend that if Parliament lays down a decision it ought not to be right for that decision to be reversed by someone else. but a principle arises here which must underlie the whole situation. The test will be what is in the public interest. For the court to decide that a certain agreement is not against the public interest, and yet to allow a decision by the Monopolies Commission to the contrary, on a similar agreement, to stand. would, in my opinion, be unjust.

Mr. Ede

After listening to my hon. and learned Friend, may I say that not for the first time he has added fresh terrors to my existence?

Question put and agreed to

Clause, as amended, ordered to stand part of the Bill.