HC Deb 21 April 1964 vol 693 cc1228-62

Again considered in Committee

Question again proposed.

Mr. Holt

I was in the middle of asking the Minister, who was talking about the Restrictive Practices Court having a justiciable issue in front of it, how he makes out that, when the Court considers, as it will have to under subsection (2,a,b,c), the detriment of the public as consumers or users it can then, before arriving at a decision, compare that detriment with in any such case that the resulting detriment would outweigh any detriment to the public as consumers or users …resulting from the maintenance of minimum resale prices… Surely that is not a justiciable issue at all.

Mr. du Cann

I am myself entirely clear that there is no difficulty, and I can assure the hon. Gentleman that I am so advised. Indeed, in our view not only does the Restrictive Practices Court offer the most satisfactory method of procedure, but, as my hon. Friend the Member for Cheadle so rightly said, it is also the fairest method of procedure.

The application of specific criteria to the particular facts of any case is primarily a legal exercise for those judges of the Court assisted by the lay members▀× and I will say a word about them in just a moment. That is to say, a hearing before a judicial tribunal with opportunities for retailers to be represented either singly or collectively will provide, we believe, the most satisfactory procedure.

On the point of lay assessors, the comment of the hon. Gentleman the Member for Hillsborough is noted. I certainly agree that they should be or a sufficient number and of a sufficient quality. We are in no doubt about that in our minds whatsoever. I should like to make that clear to him.

Mr. Darling

It is perfectly clear, is it not, that under the 1956 Act the powers are there for the increase in the numbers, and that nothing more needs to he done in this Bill—provided we gel an assurance, which the hon. Gentleman has given us?

Mr. du Cann

Yes. To be entirely clear, and I wish to be as clear as possible, we are certainly clear that additional lay members will have to be appointed to the Court when it is given responsibility, if Parliament in its wisdom sees fit to pass this legislation, to deal with r.p.m. As the Committee knows, and as the hon. Member indicated, both in his intervention and earlier in his speech, this does not require legislation. It can be done by Order. So we see no problem there, and we certainly have his point in mind.

I am sure that the Committee will feel it is of the highest importance that suppliers who seek to justify r.p.m. as being in the public interest before any tribunal should be entirely clear as to the criteria by which they are judged—again, a point which the hon. Gentleman the Member for Craigton was making. This is certainly what the Bill provides. It must be right that legal argument as to whether or not the circumstances of an individual trade fall within the criteria to be heard and judged by an impartial judicial tribunal. In a word, if there is substance in the arguments for keeping r.p.m. they can be put to the Court appointed properly and fairly to assess them.

The Government, therefore, as will be understood from what I have been saying, deliberately chose the judicial procedure embodied in the Bill so as to remove price resale maintenance from the political arena. What I was unable to understand was the remark by the hon. Member for Bolton, West during the Second. Reading debate, in column 334, that basically, under the provisions of the Bill the ultimate decision will still be a politico-economic decision. He repeated that this evening. It was also said by the hon. Member for Huddersfield, West, and repeated by the hon. and learned Member for Montgomery (Mr. Hooson), whose speeches we always enjoy.

The answer to that point, and that outlook, as it were, is surely this. We believe it would be most unsatisfactory if applicants who had failed to satisfy the tribunal could then have, as it were, a second opportunity to argue the case by appealing to the Minister not to confirm the tribunal's recommendation. That would I turn it into a highly politico-economic matter, if not an entirely political one.

I appreciate what the hon. Member for Huddersfield, West said, that he is not proposing that a separate Order should be laid before the House on each occasion. But that would not necessarily avoid Questions or debates in Parliament. If we adopted the procedure which the Liberal Party is suggesting, the atmosphere about decisions would be infinitely more highly politically charged. The whole purpose which the Liberals are seeking to achieve is negatived by the effect of their own Amendments.

Mr. Wade

I do not think that the hon. Gen leman appreciates the procedure at all. If the Commission decided that a case was not made out, that would be the end of the matter. If it recommended that resale price maintenance should be allowed to continue, it would require the approval of the Minister. It is not a question of a second opportunity, now do I think that it would raise political issues.

Mr. du Cann

With great respect to the hon. Gentleman, he may be right in attempting, so to speak, to narrow the total number of cases—I do not deny what he is saying—but to suggest that Ministers would not be bombarded with letters and Questions in the House of Commons is to be more naive than usual.

At all events, for these reasons the Government were satisfied in 1956 that it was right to adopt the judicial procedure for dealing with restrictive agreements. "Invaluable" was the word used by the hon. Member for Hillsborough in respect of the work that has been carried out so far. Although I appreciate that the hon. Gentleman has some reservations about the whole structure, nevertheless he has been led to use that term, which is correct.

We are satisfied that the same procedure is now necessary for resale price maintenance. Now, as then, we think it right that the general principles by which the tribunal will be guided should be debated in Parliament, and thoroughly debated, before legislation is passed. But the application of the principles to the facts of particular situations is an entirely different matter. This is the point the Liberal Party has not begun to get hold of even as the debate has proceeded.

This, in our opinion, should be committed to an independent judicial body in a position, as my hon. Friend the Member for Cheadle so clearly and rightly pointed out, to make its decisions effective. That is what will count ultimately. It certainly would be true to say that experience of the Court's operations since 1956 shows that issues of the sort that it will have to determine under the Bill—this is the answer to the whole argument of the Liberal Party—are highly susceptible to judicial decision.

In those circumstances, and for the reasons which have been advanced by hon. Gentlemen on both sides of the Committee as well as by myself in concluding this debate, I hope that, unless the Liberal Party, in its wisdom and good sense, sees fit to withdraw this series of Amendments, the Committee will not accept them.

I have one final point to make. It is not strictly relevant to the Amendment, bat it is something which has been raised during the debate on more than one occasion, particularly by the hon. Members of the Liberal Party—the ques- tion of making what one might almost call Second Reading speeches. We have been asked why we put shopkeepers first. It is not a question of our having put them first. The Bill is part of a whole package of Measures. We legislated on monopolies years before this Bill came up. If the Liberal Party has not got hold of that it has not got hold of anything—which I suspect to be the case.

Mr. Jeremy Thorpe (Devon, North)

I remember years ago when Oscar Wilde, faced by Carson in cross-examination—[Laughter.]—there are some hon. Members who remember things they have read and do not physically have to seek things in order to remember them. Wilde told Carson, "You will cross-examine with all the bitterness of a former friend." The Minister of State speaks with all the bitterness of the son of an unsuccessful Liberal candidate and I can sympathise with him in his predicament [Interruption.] At least that appears to have woken up the party opposite.

Mr. du Cann

The hon. Gentleman has made a somewhat unjustified personal reference to my father. He is as well aware as I am that my father left the Liberal Party, for good reasons which I can particularise if the hon. Gentleman wishes, many years ago. My father stood as a Conservative Parliamentary candidate. He has been a member of the Conservative Party for many years and is now, although well over 70, a Conservative councillor. He is also a former Conservative mayor. I hope that the hon. Gentleman will not take the matter too far. He is quite wrong, as usual.

Hon. Members


Mr. Thorpe

Such is my respect for the Minister of State's father that I am sorry that the hon. Gentleman should have pushed all the opprobrium, specifically and rightly, in my view, directed at him, on to his father's shoulders. That, coming from the hon. Gentleman, is like Satan rebuking sin.

It is a new departure to see a formidable and closely knit Conservative—Labour coalition on this matter. It is hardly the first time that the Liberals have found themselves opposed by both the major parties in this House, although usually, after a time-lag of a year or 18 months, we find one of them coming to our point of view. [Interruption.] I remember one occasion when my eardrums were nearly split by the horror of the party opposite at my suggestion that we should apply to join the Common Market.

The Minister of State is anxious to have clarity in our arguments. He asked why the Liberal Party voted for Second Reading and why my hon. Friend the Member for Bolton, West (Mr. Holt) criticises certain of the Bill's general principles. This constituted, in the hon. Gentleman's view, a change in the views of the Liberal Party, the implication being that to change is something wholly wrong in politics and to be deplored.

We voted for Second Reading because we wanted to make it plain—unlike the Labour Party, which abstained, like a collection, of political eunuchs—that we wished to place on record that we were in favour of the Bill and its general principles. But in voting for Second Reading obviously we reserved our right to try to amend the Bill as we saw fit in Committee.

There is nothing illogical about that. What was illogical was the attitude of the Labour Party in abstaining, although it was, in general principle, in favour of the abolition of r.p.m. It hoped thereby to gain some backwash of support from those flagrantly opposed to abolition. The action of the Liberal Party is not only far more logical than that of die Labour Party, it is decidedly more honest.

10.15 p.m.

The reason why we are proposing this Amendment is that on this occasion we support to the full the speech of the Leader of the Opposition on the subject of judges being employed by the Government to carry out purely political decisions. So strongly did the Government react to this, that they had to send the Lord Chancellor—which in itself is quite a task of dispatch—all the way to Germany to answer the Leader of the Opposition. It was an interesting experience to see that when he was outside territorial waters, he saw fit to suggest that the Leader of the Opposition had made an attack on the judiciary. In fact, the Leader of the Opposition had done no such thing. What he had said was that the judiciary ought to be allowed to decide exclusively judicial and legal matters and should not be drawn into the maelstrom of politics.

That was why many of us in the House of Commons, particularly those of us who are lawyers, have been horrified to see the growing practice of appointing distinguished High Court judges and words of Appeal in Ordinary to sit in judgment on matters which did not implied legal points, which did not involve legal decisions, but which are purely political and which are matters which should more appropriately be within the jurisdiction and discretion of Ministers, who would thereby have Ministerial responsibility for their decisions.

That is why we take the view that when one is assessing the quality of goods available for sale, or the variety of goods available for sale, or the number of establishments in which those goods are sold, or any necessary services which are provided in connection with them, it is not a legal matter, not a matter for judges sitting in court.

As my hon. Friends have said, this is a political-economic argument. It is these arguments which must be canvassed by those who seek to benefit from the excepting powers of the Bill. If and in so far as it is a political-economic argument, it is for the Minister to take the final decision. It is not a question which the Minister can duck. There is a great proclivity in the present Government to push off unpopular decisions on to the judges of the day.

Therefore, those who are in favour of the Amendment—and I understand that the Labour-Conservative coalition will be solidly united in this matter, so that one cannot hope for much progress in that quarter—those who remain, have before them the clear argument as to whether a political-economic decision should be placed on the shoulders of judges, or on the shoulders of the Commission with the ultimate responsibility resting on the Minister of the day. There is no doubt whatever which is the more correct course.

I hope that, apart from the hon. Member for Taunton (Mr. du Cann)—that would be too much to hope—the Committee will deal with the argument seriously and on its merits and not treat it as if it were some odd, trumped-up idea of the Liberal Party which suddenly decided that it must put down some Amendments to the Bill. Our Amendments were the first to be tabled and certainly the most detailed in number to come before the Committee.

The logical extension of rejecting the Amendment is that all political, quasilegal, but chiefly political, decisions would be pushed off to a judicial authority. This would be like submitting planning appeals to a High Court or county court judge, whereas they are political-economic decisions and therefore more properly appropriate to the Minister of the day. We are delighted—and I say this quite genuinely—to see the Prime Minister in his place showing his interest in the Bill. The Liberal Party will continue to move Amendments if this desired effect can be repeated.

The Amendment seeks not only to protect the integrity of the judiciary who have been asked to do some wrong and inappropriate jobs—and usually dirty jobs—by the Government, but to maintain their independence and integrity. Its purpose is also to ensure that the citizen, in trying to gain an exception for what is essentially an economic and political decision, shall be able to appear before the correct forum, and that ultimately the Minister will be there as a court of appeal because it is the Minister and his Government who have brought in this Measure, and it is the Government of the day who should give their final sanction and enforce this Clause.

Mr. Wade

What is right for the Liberal Party evidently is not right for

a coalition of Conservatives and Socialists.

In 1956, there was a debate on the proposal to set up an administrative tribunal. I recollect that very well, but I regard it as completely irrelevant. I am not advocating a new administrative tribunal, and I think that the arguments put forward at that time do not apply to the case that I have been making tonight.

The Minister of State referred to the danger of bringing in extraneous matters, but I think that he has missed the point. The Court may be faced with a real dilemma, and the fact that hon. Gentlemen opposite have tabled Amendments to the Clause is evidence of that. Having heard all the arguments, the Court may well consider that there are questions of safety and health which should be taken into account, but it may not be able so to do. It will have to say "Yes" or "No" to the application. It will have no discretionary powers. It will not be able to make a recommendation deferring abolition until these questions of health and safety have been dealt with.

That is an extremely unsatisfactory state of affairs, and it could have been overcome by accepting the proposals in these Amendments. I think that it would be a great mistake to add to the number of criteria. The Bill is complicated enough already. Our proposals would provide a reasonable solution to the problem, which is a very real one, and I am sorry that they have not been accepted.

Question put, That "Restrictive Practices Court" stand part of the Clause:—

The Committee divided: Ayes 211, Noes 5.

Division No. 78.] AYES [10.24 p.m.
Agnew, Sir Peter Bingham, R. M. Butcher, Sir Herbert
Allason, James Bishop, Sir Patrick Campbelt, Cordon
Amery, Rt. Hon. JuNan Blaok, Sir Cyril Carr, Rt. Hon. Robert (Mitcham)
Atking, Humphrey Bossom, Hon. Clive Cary, Sir Robert
Awdry, Daniel (Chippenham) Bourne-Arton, A. Chataway, Christopher
Barber, Rt. Hon. Anthony Box, Donald Chichester-Clark, R.
Barlow, Sir John Boyd-Carpenter, Rt. Hon. John Clark, William (Nottingham, S.)
Barter, John Boyle, Rt. Hon. Sir Edward Cleaver, Leonard
Batsford, Brian Braine, Bernard Cooke, Robert
Berkeley, Humphry Brewis, John Cordeaux, Lt. Col. J. K.
Bevins, Rt. Hon. Reginald Bromley-Davenport, Lt.-Col. Sir Walter Corfield, F. V.
Bidgood, John C. Brown, Alan (Tottenham) Coulson, Mlohael
Biffen, John Buok, Antony Courtney, Cdr. Anthony
Biggs-Davison, John Billiard, Denys Critohley, Julian
Crowder, F. P. Hutchison, Michael Clark Prior-Palmer, Brig. Sir Otho
Curran, Charles Iremonger, T. L, Proudtoot, Wilfred
Cumie, G, B. H. Irvine, Bryant Godman (Rye) Ramsden, Rt. Hon. James
Dalkeith, Earl of Johnson, Eric (Blackiey) Rawlinson, Rt. Hon Sir Peter
Deedes, Rt. Hon. W. F. Jones, Arthur (Northants, 8.) Redmayne, Rt. Hon. Martin
Doughty, Charles Joseph, Rt. Hon. Sir Keith Rees, Hugh (Swansea, W.)
Douglas-Home, Rt. Hon. Sir Alec Kaberry, Sir Donald Renton, Rt. Hon. David
Drayson, G. B. Kershaw, Anthony Ridsdale, Julian
du Cann, Edward Kirk, Peter Rippon, Rt. Hon. Geoffrey
Eden, Sir John Kitson, Timothy Roberts, Sir Peter (Heeley)
Elliot, Capt. Walter (Carshatton) Legge-Bourke, Sir Harry Roots, William
Eiliott, R.W. (Newc'tle-upon-Tyne, N.) Lilley, F. J. P. Ropner, Col. Sir Leonard
Farey-Jones, F. W. Linstead, Sir Hugh Scott-Hopkins, James
Farr, John Lloyd, Rt. Hon. Selwyn (wirral) Sharpies, Richard
Fell, Anthony Longden, Gilbert Shaw, M.
Finlay, Graeme Loveys, Walter H. Shepherd, William
Fisher, Nigel Lucas, Sir Jocelyn Smith, Dudley (Br'nt'd A Chiswick)
Fletcher-Cooke, Charles Lucas-Tooth, Sir Hugh Soamess, Rt. Hon. Christopher
Fraser, Rt. Hn. Hugh (Stafford & Stone) McAdden, Sir Stephen Spearman, Sir Alexander
Galbraith, Hon. T. G. D. McLaren, Martin Stainton, Keith
Gammans, Lady Maciay, Rt. Hon. John Stanley, Hon Richard
Gardner, Edward Maclean, Sir Fitzroy (Bute & N. Ayrs) Stodart, J. A.
Gibson-Watt, David MacLeod, Sir John (Ross & Cromarty) Stoddart-Scott, Col. Sir Malcolm
Gilmour, Ian (Norfolk, Central) McMaster, Stanley R. Storey, Sir Samuel
Gilmour, Sir John (East Fife) Macmillan, Maurice (Halifax) Srudholme, Sir Henry
Glover, Sir Douglas Maddan, Martin Summers, Sir Spencer
Godber, Rt. Hon. J. B. Maginnis, John E. Tapsell, Peter
Goodhew, Victor Mahon, Simon Temple, John M.
Gower, Raymond Maltland, Sir John Thatcher, Mrs. Margaret
Grant-Ferris, R. Marpies, Rt. Hon. Ernest Thomas, Sir Leslie (Cantertbury)
Green, Alan Marshall, Sir Douglas Thomas, Peter (Conway)
Grosvenor, Lord Robert Marten, Neil Thompson, Sir Richard (Croydon, S.)
Gurden, Harold Matthews, Gordon (Merlden) Thorneyoroft, Rt. Hon. Peter
Hall, John (Wycombe) Maude, Angus (Stnatford-on-Avon) Tiley, Arthur (Bradford, W.)
Hamilton, Michael (Wellingborough) Mawby, Ray Tilney, John (Wavertree)
Harris, Reader (Heston) Maxwell-Hyslop, R. J. Touche, Rt. Hon. Sir Gordon
Harrison, Brian (Maldon) Maydon, Lt.-Cmdr. S. L. C. Turner, Colin
Harrison, Col. Sir Harwood (Eye) Mills, Stratton Turton, Rt. Hon. R. H.
Harvey, John (Walthamstow, E.) Miscampbell, Norman Tweedsmuir, Lady
Harvle Anderson, Miss Montgomery, Fergus van Straubenzee, W. R.
Hastings, Stephen Morgan, William Vane, W, M. F.
Hay, John Mott-Radclyffe, Sir Charles Vaughan-Morgan, Rt. Hon. Sir John
Heald, Rt. Hon. Sir Lionel Neave, Airey Walker, Peter
Heath, Rt. Hon. Edward Noble, Rt. Hon. Michael Wall, Patrick
Hendry, Forbes Oakshott, Sir Hendrie Wells, John (Maidstone)
Hiley, Joseph Orr, Capt. L, P. S. Whlbetaw, William
Hill, Mrs. Eveline (Wythenshawe) Orr-Ewing, Sir Ian (Hendon, North) Williams, Dudley (Exeter)
Hill, J. E. B. (S. Norfolk) Osborn, John (Hallam) Wilson, Geoffrey (Truro)
Hirst, Geoffrey Page, Graham (Crosby) Wise, A. R.
Hohson, Rt. Hon Sir John Page, John (Harrow, West) Wolrige-Gordon, Patrick
Hocking, Philip N. Panned, Norman (Kirkdale) Wood, Rt. Hon. Richard
Holland, Philip Partridge, E. Woodhouse, C. M.
HollingWorth, John Pearson, Frank (Clicheroe) Woodnutt, Mark
Hopkins, Alan Percival, Ian Woollam, John
Hornby, R. P. Pickthorn, Sir Kenneth
Hughes Hallett. Vice-Admiral John Pike, Miss Mervyn TELLERS FOR THE AYES:
Hughes-Young, Michael Pitman, Sir James Mr. Pym and Mr. More.
Hurd, Sir Anthony Pounder, Rafton
Bowen, Roderio (Cardigan) Hooson, H. E. TELLERS FOR THE NOES:
Grimond, Rt. Hon. J. Thorpe, Jeremy Mr. Wade and Mr. Lubbock.
Holt, Arthur
The Chairman

In calling the hon. Member for Putney (Sir H. Linstead) to move Amendment No. 56, may I say that it will also be possible to discuss Amendments Nos. 57, 58, 59, 64 and 66.

Sir Hugh Linstead (Putney)

I beg to move Amendment No. 56, in page 4, line 34, after "class", to insert "or any goods".

This Amendment echoes part of the discussion which we have just had on the preceding Amendment, to the extent that it seeks to give a discretion to the Restrictive Practices Court in coming to its decisions, which the Bill as at present drafted would not seem to grant to the Court.

What is involved in the Amendment can probably best be followed by the Committee if reference is made to Clause 6, which describes the procedure which is to be followed to bring applications for exemption before the Court. It will be seen that Clause 6(1) provides that a supplier may give notice to the Registrar in respect of goods of any description that he wishes to have them referred to the Court.

Under subsection (3) of Clause 6 it becomes the duty of the Registrar to publish lists of the classes of goods in respect of which he has had notices. It will be seen in subsection (4): the Registrar may combine or divide the goods in respect of which notice is given to him under this section into such classes as appear to him to be appropriate for that purpose, and may refer classes of goods to the Court in such order as he may determine. We shall, therefore, have the possibility of a number of applications for the same type of goods coming to the Registrar and the Registrar grouping those goods into classes which seem to be him appropriate. The Court will then consider each of those classes in turn as they come before it.

The object of this Amendment is to provide that if the Court, having heard the applications in respect of a class of goods, comes to the conclusion that part of the goods in that class could properly be exempted whereas other goods put temporarily into that class by the Registrar could not qualify for exemption, it will be possible for the Court, instead of making a decision in relation to the whole class, to give a decision in relation to the goods in that section of the class which in the opinion of the Court should have that exemption.

It seems proper that the Court should have this discretion because it is possible to conceive of two manufacturers of goods of the same class having their cases brought together before the Court by the Registrar yet the cases of the two manufacturers being different. One example might be of a manufacturer in a virtually monopoly position. The Court might well decide in his case that it would not be desirable to grant him and his goods exemption whereas there might be other cases coming before the Court at the same time in respect of which the Court might feel it desirable to grant exemption.

I have put this Amendment down to clarify this point and in the hope that my hon. Friend the Economic Secretary to the Treasury can say that the power resides in the Court at the moment, as may well be the case, or otherwise that it is desirable power to give to the Court and that he would be prepared to accept the Amendment.

Mr. Charles Doughty (Surrey East)

I wish to support what my hon. Friend the Member for Putney (Sir H. Linstead) has said, because I think it very necessary to have made clear what this Clause means.

If it is the duty of the Registrar to band a particular type or class of goods together, the Court should have the power to deal with those goods separately if it so desires. If the present wording of the Bill is that once the Registrar has decided that a particular class of goods has to go before the Court together and the Court has to make its decision one way or the other on that class, it is giving to the Registrar a duty which should properly fall on the Court. If that, in fact, be the wording of the Bill, I support the Amendment so that the goods could be divided into different classes and one manufacturer could be exempted while another was not. I ask my hon. Friend the Economic Secretary to give an explanation.

Mr. du Cann

I am obliged, as I am sure is the Committee, both to my hon. Friend the Member for Putney (Sir H. Linstead) and to my hon. and learned Friend the Member for Surrey, East (Sir C. Doughty) for drawing our attention to this point, and I am glad to have the opportunity to afford the Committee a short explanation If we could divide these Amendments from the point of view of explanation into two groups, I hope that that might be convenient to the Committee.

The point which my hon. Friend the Member for Putney made and which my hon. and learned Friend endorsed related to the first three—No. 56, in the name of my hon. Friend the Member for Putney, No. 57, in the name of my hon. Friend the Member for Tottenham (Mr. A. Brown) and No. 58, in the name of my hon. Friend the Member for Meriden (Mr. Matthews). Their object, as explained, is simply to enable the Court to grant exemption to goods of a more limited class than that to which the reference relates. My hon. Friend the Member for Putney said that that power ought to reside in the Court; he hoped that his Amendment was unnecessary and that the Bill provided for this.

I am advised that the words in Clause 5(1), in line 33 of page 4: by order direct that goods of any class specified in the order are quite appropriate for enabling the Court to do this. I can give my hon. Friends a categorical assurance that the three Amendments which they have been good enough to put down on this point are unnecessary and that no further provision whatever is needed. I am entirely clear about the matter.

Reference has not been made to Amendments Nos. 59, 64 and 66, but I should say a short word about them. They are designed to add the words "or classes" after references to "a class" in Clause 5. Similarly, I owe an explanation to my hon. Friend the Member for Crosby (Mr. Graham Page), although he has been good enough not to go into the matter in detail. I am advised that these Amendments are equally unnecessary and that under the Interpretation Act, 1889, with which I suspect my hon. Friends are more familiar than I am, the singular includes the plural unless the context otherwise requires. I am further advised that there is no thing in the context here which would "otherwise require" and that when tie Clause refers to a class it includes, by implication, references to classes.

I am in the uniquely happy position, I hope, of thoroughly satisfying my hon. Friends, which I always wish to do. A little earlier we may all, among ourselves, have discomfited the Liberals, which is always a worthy thing to do. I hope that my hon. Friends will be good enough to accept my assurance and that their will see their way to taking a certain course, in which case the Committee can pass to other matters.

Mr. Graham Page

I am grateful to my hon. Friend for his very courteous and clear explanation of our Amendments as well as of what the Clause means as it stands, but I still have a little doubt about the matter. Under Clause 6(4) the Registrar fixes the class, and the doubt is whether he fixes it once and for all and it has to go on as that clans throughout the proceedings. It is true that in Clause 5(1) there is a reference to "goods of any class", but the doubt which we had was whether that "any class" was a class already fixed by the Registrar under Clause 6(4) which could not be altered by the Court as the proceedings went on.

I understand my hon. Friend to say that it could be altered by virtue of these words, but I wonder whether, on consideration, he might feel that it could be made yet clearer, in Clause 5, that the Court has the power to change the class which has already been fixed by the registrar.

10.45 p.m.

Mr. du Cann

I will certainly look closely at what my hon. Friend has said. I do not think that this is a point of dificulty, but if I thought that it might prove to be so I would certainly propose putting down an Amendment on Report to resolve the difficulty. However, I do not think that the difficulty exists.

Sir H. Linstead

In the light of the very clear explanation my hon. Friend has given, and particularly of his offer to look at the whole point again between now and the Report stage, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Amendment made: In page 4, line 34, after "order", insert: (being goods of which particulars are entered in the register kept in accordance with those provisions)".—[Sir J. Vaughan-Morgan.]

Mr. R. H. Turton (Thirsk and Malton)

I beg to move, Amendment No. 69, in page 5, line 7, at the end to insert: (a) the public as purchasers, consumers or users of any goods would be deprived of some specific and substantial benefit or advantage enjoyed or likely to be enjoyed by them as such, whether by virtue of the system of maintained minimum resale prices applicable to the goods of the class in question or by virtue of any arrangements or operations resulting there from; or

The Chairman

With this Amendment may be taken Amendments Nos. 75, 80, 85, 94, 101, 111, 112, 113 and 191.

Mr. Graham Page

On a point of order, Sir William. I understand that Amendment No. 71 has also been selected. Its principle is very much the same as that in Amendment No. 69, so I wonder whether it would be convenient for the Committee to discuss it at the same time?

The Chairman

If the Committee is so agreeable, I have no objection to that course being taken.

Mr. Turton

In the Second Reading debate, Sir William, I said: It seems essential that the same criteria used in the 1956 Act should be here in this Measure. At least they should not be narrower than they are in the 1956 Act.—[OFF1cLAL REPORT, 10th March, 1964; Vol. 691, c. 337.] That is my purpose in moving this Amendment.

When my right hon. Friend the Prime Minister was speaking on the Bill at Swansea on 20th January, he said: We have now decided to end resale price maintenance where it acts against the public interest. There may be cases—there probably are—where resale price maintenance can be shown to be in the national interest. Our legislation will provide machinery so that when this is proved to be so the practice can go on. My right hon. Friend the Secretary of State for Industry, Trade and Regional Development, in his statement to the House on 15th January on this subject, said: The Government believe that this practice is, in general, incompatible with their objective of encouraging effective competition and keeping down costs and prices. They have reached the conclusion that resale price maintenance should be presumed to be against the public interest unless in any particular case it is proved to the contrary to the satisfaction of a judicial tribunal."—[OFFICIAL REPORT, 15th January, 1964; Vol. 687, c. 225.] Yet, in the Bill as at present drafted, there is no criterion that is the broad public interest.

The Amendment seeks to put into the Bill the definition of what is in the public interest as laid down by the Government in the 1956 Act. At that time, the present Minister of Defence, in dealing with the criterion quoted in my Amendment from Section 21(1,b) of the 1956 Act, said: Whether they are common prices or collective discrimination or the rest of it, they are presumed to be against the public interest. It is important to realise that these separate paragraphs are not a final answer in this matter. They define an argument which could be admitted before the Court, and what paragraph (b) says is that someone who is engaged in a restrictive practice may go to the Court, not to say that it benefits him—that is not permitted in this paragraph at all—but that the removal of the restriction would deny to the public, not even the general public, but 'to the public as purchasers, consumers or users of any goods other specific and substantial benefits or advantages enjoyed or likely to be enjoyed by them as such, whether by virtue of the restriction itself or of any arrangements or operations resulting therefrom'. To deny that argument to someone who has a restriction would be an extraordinary state of affairs. I cannot imagine any tribunal, whether a court, a lay tribunal or a commission, or anything else, which would not at least admit the man to place in front of it an argument in support of that contention."—(OFFICIAL REPORT, 3rd May, 1956; Vol. 552, c. 623.] It is important that those who wish to argue the case that their resale price system is in the public interest should have full liberty to do so before the Restrictive Practices Court. As the Bill is drafted, that is not done.

In the Bill, my right hon. Friend has no broad general gateway of defining the public interest. What he has done is to define three narrow gateways of specific public interest dealing with quality or variety, the number of establishments and the reduction of necessary services. That does not deal with the kind of arguments that will be adduced before the Court by many interests. Two specific arguments which are left out and which are of great importance are price and, secondly, the general service which is given—not necessarily services, but the general service given by a dealer to a customer.

To see how the 1956 gateway has been applied, I should like to refer to the net book agreement. The proceedings on that agreement under the 1956 Act were the one case in which it had to be judged whether a resale price system was or was not in the public interest. The judgment of Mr. Justice Buckley, as reported in the Weekly Law Reports, 1962, was to the effect that the consequences of the condemnation of resale price maintenance in the net book agreement would he three. First, there would be fewer and less-equipped stockholding bookshops. Secondly, there would be more expensive books. Thirdly, there would be fewer published titles.

Mr. Justice Buckley went on to say: In out judgment, each of these heads is sufficiently explicit, definable and distinct in character to justify the description 'specific' and the avoidance of these disadvantageous consequences can properly be termed a specific benefit or advantage… We do not consider that the Association has established that the services rendered to their customers by surviving stockholding booksellers, would deteriorate in consequence of condemnation of the Agreement to such a degree that avoiding this would amount to a substantial benefit. It would appear from that judgment that if the same argument was adduced by the booksellers under this Bill they could only argue the case about the number of book-selling establishments and the variety of the titles. They would be debarred from arguing that books would be more expensive.

I would remind the Committee of what the present Minister of Defence said when he was justifying in debate the wording of Section 21(1,b): Without this Clause the net book agreement would be banned. It would be presumed to be contrary to the public interest.… It is absolutely essential, for the reasons which I have mentioned, that we should have a Clause of this kind and that a proper opportunity should be given to people to argue that the removal of the restriction would cause specific and substantial damage to the consumer."—[OFFICIAL REPORT, 3rd May, 1956; Vol. 552, c. 650.] I should like to go from the net book agreement to the argument about the Cement Asociation. There again the argument put before the Court was that prices were lower than they would be in the absence of a resale price agreement. The cement manufacturers will be precluded from putting up that argument unless we have a wider gateway than the three specific; gateways which my right hon. Friend has put in the Bill.

Mr. Justice Diplock in his judgment in that case, in the 1961 Report of Restrictive Practices Cases, said: The common price agreement has been so operated is to keep down the overall price of cement to a level substantially lower than under tree competition. I therefore again suggest to my right hon. Friend that he has not a sufficiently wide gateway in the Bill to deal with the major argument of public interest, because in my view price must be the major argument for the public interest and price is. not included in the three gateways in the Bill.

Again, to look at the arguments put before the Monopolies Commission on the cigarette and tobacco industry, the third finding, was that resale price maintenance in the industry would benefit the public because the public would like a standard price. That again would be an argument which could not be put before the Court on the basis of the gateways now in the Bill although it would be if the Court could look at it under Section 21(1,b) of the 1956 Act.

11.0 p.m.

I suggest to my right hon. Friend that this Amendment, although it has been so described in the newspapers, is not a wrecking Amendment. It is a renovating Amendment. In other words, it is asking the Government to define public interest as they did in the 1956 Act. It is true—I admit it at once—that the whole of Section 21 of the 1956 Act was dealing with the wide position of restrictive agreements. But the paragraph that I have quoted from Section 21(1,b) is directed particularly to the problem of resale price agreements and has been so applied by successive judges in the Restrictive Practices Court.

I do not expect on the Amendment any support from the Labour Party. We had the Bill of the hon. Member for Wednesbury (Mr. Stonehouse). He proposed to abolish resale price maintenance without any consideration of what was or was not in the public interest. If his Bill had gone through, there would have been no gateway at all.

Again, I realise perfectly well that on the 1956 Act it was the right hon. Member for Battersea, North (Mr. Jay) and the hon. Lady the Member for Blackburn (Mrs. Castle) who tried to destroy the form of words that I am trying to insert into the Bill. They tried to remove the words from that Act. Sir Lynn Ungoed Thomas, who wound up for the Opposition, said that paragraph (b) was a wide provision which would enable a horse and cart to be driven through the Bill. We have had that paragraph in the 1956 Act for eight years, and no horse and cart has been driven through the Measure. There have been 27 cases to which the paragraph has been applied; in seven cases it was found that the applicant had made his case within the public interest, and in the other 20 the applicant had not.

Mr. Jay

Our attitude to the right hon. Gentleman's Amendment will depend on what it means. To be quite clear, since we have all to decide how to vote on it, may I ask him whether the effect of the Amendment would be that a good case would be made out for exemption of some class of goods if it could be shown that without resale price maintenance certain services—after-sales services, or whatever they might be—which were not necessary but were perhaps desirable, would disappear, and that the resale price maintenance and the maintenance of those services went together? Is that what the right hon. Gentleman is arguing?

Mr. Turton

I am sorry. I thought I had made it clear when I read out the judgment of Mr. Justice Buckley in connection with the net book Agreement that these are the considerations which he had to look at under Section 21 (1,b). He had to see how in general the public would gain or would lose by the disappearance of the resale price agreement in that case. He said that, in his view, the public would lose because the price of books could go up, there would be fewer outlets for books and there would be fewer varieties of title. I went on to tell the Committee that Mr. Justice Buckley had considered the whole question of services, in particular of the net book agreement, and he said that he could not hold that the public would lose on the question of services but he found three specific advantages and, of course, he had to weigh them one against the other.

At the same time, I was making the point that, although the Opposition in 1956 made this great chatter through one of their leading spokesmen about driving a coach and horses through the Bill, in fact, the Restrictive Practices Court has applied this form of words to, I think, the general satisfaction of everyone in this Committee at the present time. From that it appears that we who are today selecting the Restrictive Practices Court as the adjudicating body on what is, or is not, in the public interest, should give it the same wide powers it has had in the past.

The Court understands what is in the public interest and what we are really doing in this Clause as drafted is to provide three narrow gateways. We have the gateways in subsection (2) which I have already mentioned, but then we go on to the tailpiece where we ask about the general advantage on one side or the other. What we are doing in the Bill as drafted is to provide these three narrow and, I submit, inadequate gateways, and then ask that they be set overall with the tailpiece which is drafted on similar lines to Section 21 (1,b) of the 1956 Act which, I advocate should be inserted into this Bill.

Without this Amendment every applicant will be at the disadvantage of being able to put forward only certain arguments and then have them counter-weighed with this tailpiece of "general consideration". This will not be presenting a balanced argument to the Court and it will not be fair to the applicant. I hope that the Minister will consider this matter very carefully, because I know that he has tried in his specific gateways to deal with certain goods and manufactures; but I feel sure that, looking at these gateways again, he will say that he has thought of certain ones like, perhaps, tobacconists and the smaller outlets, and the stationers but has not, I submit, dealt with the very complex nature of the differing goods subject at the moment to resale price maintenance agreements.

In particular I hope that I have shown that the net book agreement could not succeed unless we widen the gateways. The Minister has not really dealt with the question of safety, and the present gateways mean that pharmaceutical goods, for instance, would not really be covered by the existing three narrow gateways. I beg the Committee to consider whether it is really right for us to try to draft specific, narrow, gateways. Should we not, rather, look again at what we did in 1956 and put in a broad gateway and then leave it to the Court to decide what, in fact, is in the public interest? I support this Bill and I want to see that where resale price maintenance is against the public interest it is made illegal; but where the Court, with due argument and evidence can find that it is in the public interest, then it should be allowed to continue when the whole balance of advantage has been put in. It is in that spirit that I move the Amendment.

Mr. M. Foot

The right hon. Member for Thirsk and Malton (Mr. Turton) made an extremely formidable case. He presented it with great power, but it is a pity that he was not able to present it at the beginning of our debates tomorrow afternoon when more hon. Members might have been here to listen to what he had to say. I am not attaching any blame in this matter. Indeed, the fault might be mine for not moving to report Progress earlier.

However, it would have been better if the discussion of what must be regarded as an extremely important Amendment had started at half-past three or four o'clock in the afternoon. That would have been better than having the argument truncated tonight and continued tomorrow. That is my own personal opinion. Everybody does not have to agree with me about everything, and if hon. Members do not agree with me about this, I cannot altogether blame them.

The right hon. Member's case was extremely powerful and I shall be interested to know whether there is a full answer to it. If it is true, as the right hon. Gentleman said, that without the Amendment, or similar words, the net book agreement would not go through, that is one of the main arguments which the Secretary of State will have to answer. It would be extremely damaging to the country as a whole if the Bill resulted in a general disruption of the book trade, which is one of the most important in the country.

The same thing applies in a somewhat lesser degree to the newspaper trade and to newsagents. The right hon. Member's attempt to widen the gateways is made all fie more important by what the Secretary of State admitted about newsagents in our discussions on Clause 4, when he clearly indicated that he envisaged more newsagents being able to get a franchise to set up shop. There may be a case for it and it is what he thought the Bill would assist in some respects, and in that sense it would be dangerous it the gateways were not widened.

It is true that resale price maintenance as it is applied to newspapers is not enforced by law or by action of the newspaper proprietors. It is enforced by a kind of suspended threat in the sense that if a newsagent started to sell newspapers at less than the maintained resale price, the newspaper proprietors might start to withhold supplies from him. Under the Bill, they might be guilty of unlawful action on that account. It is conceivable that under the Bill as it stands, if no widening of the gateway; takes place, resale price maintenance with newspapers might be abolished. I t would be most damaging to the country if that were to happen, because what we might very well do by abolishing resale price maintenance in practice for newspapers—whether it is enforced or not, and however it is enforced does not affect the question—is to destroy he whole system whereby newspapers are distributed in this country.

11.15 p.m.

If we could have a situation in which new newsagents were encouraged to set up in particular areas for a short spell of time, to knock others out of business, then once they succeeded in doing that they would hold part of the market and would try to, build up their business on that basis. of they succeeded they might disrupt the whole system whereby newspapers are distributed by newsagents at present.

As I understand, in most other countries of the world—I do not say all of them—the distribution of newspapers by newsagents which happens in this country does not occur. It may be that one of the reasons why newsagents in this country are able to distribute the newspapers is because they have an ordered system of distribution, and if we disrupted that ordered system of distribution by breaking up resale price maintenance we could do great damage to the distribution of newspapers in this country which, after all, is an extremely important matter not only from the point of view of the newspaper proprietors or those who sell newspapers but from the point of view of the dissemination of news and opinion in this country.

Sir P. Bishop

The hon. Gentleman will, of course, bear in mind that there is no such thing as a newsagent pure and simple. The whole marvellous system of the distribution of newspapers in this country depends not only on the direct arrangements between the newspaper proprietors and the agents but on the other business which they all conduct and which may be dependent to some extent on resale price maintenance in respect of books, cigarettes and other things too.

Mr. Foot

I entirely agree with the hon. Gentleman, and I am most grateful for his interruption. Indeed, his speech on an earlier Clause reinforced what I am now saying. He said on one of the Amendments to Clause 4 that there was no legal enforcement of resale price maintenance for newspapers but that it worked in practice. The question before us, as far as newspapers go, is whether we are going to disrupt that system by the Bill. The lion. Gentleman has supported my case by saying that if we interfere with the rest of the business of the newsagents we shall injure the business, and I agree. Therefore, from the point of view of the newsagents we must look at how the resale price maintenance system is affected by other commodities.

I am discussing the question of how it affects the distribution of newspapers and whether the gateway should be widened as the right hon. Gentleman has urged in his Amendment, apparently in order to protect the distribution of newspapers. I, of course, have an interest in the matter which I am happy to declare, although I do not get any money out of it. I am a journalist, and I am, of course, anxious to see the widest distribution of news- papers, but I am interested not only as a journalist who writes and gets paid for writing in newspapers but because I believe that the distribution of newspapers in this country is a matter in which all people who are interested in free opinion should be concerned.

If, therefore, the right hon. Gentleman proposes to interfere with the present system of the distribution of newspapers he ought to tell us quite clearly what he thinks is going to happen and what he envisages. If he says that in his opinion there will be no interference whatsoever with the present system of distributing newspapers it will comfort us very much. It does not mean that we shall agree with everything in the Bill on that account. The right hon. Gentleman's opinion does not make law; it is just his opinion, but it may influence us. At any rate we should like to know what he thinks will be the result of the Bill on the present system of distributing newspapers.

If the right hon. Gentleman says that there will be no change, or that he does not think that there will be a change, that will influence our opinion as to what we would think of the right hon. Gentleman's suggestion about widening the gateway. There may not be so much need to widen the gateway if the right hon. Gentleman says that there will be no change, but I think that it will be very difficult for the right hon. Gentleman to tell the Committee that there will be no change, in view of what he said on Clause 4.

I am not quoting the right hon. Gentleman's exact words, but when speaking on Clause 4 he said that we have to ensure that we do not prevent new people from entering the industry, or the job, of distributing newspapers. That is a reasonable point of view, but the right hon. Gentleman envisaged that the Bill might assist new entrants into the newsagents business—new entrants who might conceivably be cutting prices and selling newspapers at below present prices.

I hope that the right hon. Gentleman will explain why he knows that, and why he knows that resale price maintenance will be suspended in the case of newspapers. I hope that he will explain why he is so convinced of that. It may be that his explanation will be convincing—and he can be very convincing when he wants to be. If the right hon. Gentleman convinces the Committee that newspapers are not going to be affected at all in this sense—leaving aside what happens to the other commodities that they sell in their shops—it will be a powerful case, but I think that it will conflict with the hint that he gave on a previous Clause.

I hope that the right hon. Gentleman will explain all these matters very clearly, because I believe that it would be very damaging to the House of Commons if we were to pass this Bill without knowing what would be its consequences on, to take just two examples, the book trade and the newspaper trade. I am not saying that they are the most important trades in the country, but I am very interested in them, and we have to do our best to look after them.

I think that the right hon. Gentleman will be able to argue that the gateways are wide enough to ensure that the book trade will not be interfered with, although the right hon. Member for Thirsk and Malton does not take the same view. We want to know the answer to that. I am sure that if the right hon. Gentleman says that he is convinced that the book trade will enjoy the same position as it has today, even though it has to go to the Court and prove it, it will be a certain load off our minds.

I also want to know what the right hon. Gentleman thinks about the future of the newspaper trade in that respect, but in any case, particularly as we have discussed these matters at great length, it would be wrong for the House of Commons to pass this Measure, and in particular this Clause, without knowing exactly what is the Government's view of the effect of their Measure on these two trades, and, secondly, whether their view is correct.

Mr. Heath

I shall deal with the points which the hon. Gentleman has raised, together with others that will be raised, when I reply to the debate, but he will not expect me to undertake the task of a court. My purpose, surely, is to explain what the opportunities are for stating a case, and it would be inappropriate for me to try to foretell what the judgment of the Court should be, because that is the task of the Court itself. It would be presumptuous of me to try to foretell what the decision is going to be.

I think that the hon. Gentleman misunderstood what I said during our discussion on Clause 4. I was talking in general about protecting the situation in which newcomers to trades generally can establish themselves. I was dealing with the onus of proof. When I was dealing with newspapers, in answer to the hon. Member for Sheffield, Brightside (Mr. Winterbottort) I said that there were other arrangements for dealing with these, and these I understand were dealt with by my hon. Friend the Member for Harrow, Central (Sir P. Bishop) later in the debate.

Mr. Foot

On the second point, about newcomers in the trade I accept what the right hon. Gentleman says. But it is certainly my understanding that he was indicating that he thought it was a good thing that there should be newcomers in the business of distributing newspapers. The implication was that some of the newcomers would be able to reduce their prices under the Bill. If that consequence followed it could be extremely dangerous. If newcomers forced their way into the business of distributing newspapers by price cutting they could destroy the general services which newsagents give their customers, unless the gateways of the right hon. Gentleman's proposals are widened.

Mr. Heath

That is not the argument that I was eating with under Clause 4, but I am quite prepared to deal with it under this Amendment.

Mr. Foot

I accept what the right hon. Gentleman says. But he has also said, "It would be quite improper for me to indicate what should be the decision of the Court. These matters will be refer-ed to the Court." What we are discussing under the Clause is what gateways at e to be allowed if these matters are reported to the Court. We can discuss such matters only in practical terms—in terms of who is likely to get through the gateways. What is the use of his saying that he does not want to prejudice what the Court will say? Apparently we will decide what the gateways are but we will not even look to see who is likely to get through them.

That is art absurd way of going about the whole business. I would have hoped that the whole Committee would be absolutely opposed to the abolition of the system of resale price maintenance for books. If we are agreed upon that, it is one of the tests of the effectiveness of the gateways, and if under that test it still has to be said, "We will still leave it doubtful what will happen to books", in my opinion there is something wrong with the gateways.

That is part of the argument of the right hon. Gentleman for Thirsk and Mahon. We consider that the Committee should decide these matters only in practical terms, and we must make up our minds in general who is likely to get through the gateways and who is not. The idea that we can do this on a theoretical basis, without any consideration of the kind of commodity or article involved, is an absurdity. The right hon. Gentleman has been very clever in intervening. It makes it unnecessary for him to answer the argument at the end of the debate, if his intervention is accepted, because he will say, "I should prejudice the case if I said what would be the effect when this went to the Court."

I submit that before we vote on the matter we should be told who is likely to get through the gateways. He will not be able to tell us every trade which will succeed, but if he says that he cannot give us any examples, and no indication whether resale price maintenance will be abolished on books, he will be treating the matter in a most trivial manner. Because he has failed to think his Bill out carefully enough, what he will be doing then will be to try to carry through a Measure which in many respects is beneficial, but which could be damaging to some trades which are of primary importance to the dissemination of free opinion and free thought. If the Government were to take any action which injured the book trade they would be committing an even greater error than most of the others they have committed. The case for newspapers is not so high, but it comes into the same category. We are entitled to know what the Government think will be the consequence of this Measure on these two trades.

No doubt hon. Members will produce arguments to say that they want to know how the industry or trade with which they are concerned will be affected by the gateways. That is how we will be able to judge whether the gateways are wide enough or not.

11.30 p.m.

There is another matter that I want to put to the right hon. Gentleman. Earlier in the day I had some argument with him—or he had some argument with me, whichever way he likes to put it—about agreements made before these debates took place. It affects in particular this Amendment moved by the right hon. Gentleman. The Secretary of State repudiated any suggestion that in his meetings with his back benchers he had been engaged in any discussions which were in any way improper. He laughed at the suggestion and treated it as a derisory hint on my part. He said that he was engaged in perfectly normal procedure. He also smiled at the suggestions in The Times that he had made any hard and fast agreements with his back benchers.

I should like to read to the right hon. Gentleman a further paragraph to the paragraph that I read earlier today, and ask him whether it is correct or not. Then we can make up our minds whether it is a proper thing for him to have done. It affects the debate that we are having now. It affects the question whether the debate that we are now having is a fraud or not.

This is what The Times political correspondent writes about the meeting which the right hon. Gentleman had with a group of his back benchers last night: It is headed: Mr. Heath stands firm on prices. The article says: He appears to he prepared to accept only minor changes which will not affect the main principle of the Bill and others relating to the sale of drugs. That is the paragraph that I quoted earlier to the right hon. Gentleman. The right hon. Gentleman defends that paragraph on the ground that "These are the same minor changes that I hinted in my Second Reading speech I might be prepared to make, and therefore nobody should be worried about it." Apparently, the only people who should be worried about such a statement are those who claim that the right hon. Gentleman has made major changes.

The next paragraph is the crucial one. The Times political correspondent says: The key amendment tabled by Mr. Robin Turton, Mr. Geoffrey Hirst and other Conservatives which would provide a wide 'gateway' in clause five was rejected completely by Mr. Heath. I should like to know whether that statement is true or not. If the right hon. Gentleman says to me that it is not true, that the report in The Times is completely inaccurate and misleading, that he did not reject this Amendment last night, I will accept his word, of course. The whole Committee will accept his word. But if what The Times political correspondent says is generally correct, that that is what the right hon. Gentleman did last night when he met his back benchers, then I say that my charge against him of having behaved improperly is fully substantiated.

The right hon. Gentleman smiles about it, and appears to think that these matters are of secondary importance. I got into quite a lot of trouble in my own party on many occasions for arguing that it is improper for Members of this House to settle in private meetings outside what should be settled on the Floor of the House of Commons.

What the right hon. Gentleman has done, if The Times correspondent is correct, is to carry this process much further because, according to The Times, the right hon. Gentleman has gone to the length of saying to his back benchers which Amendments he will accept and which he will reject, in private the night before the debate. That is absolutely improper because, if it is true, it makes a farce of these proceedings and every hon. Member knows it. If what The Times political correspondent says, that the right hon. Gentleman, the night before this debate, went to his back benchers and completely rejected the Amendment which is before the Committee, he behaved most improperly and he should apologise to the House. [HON. MEMBERS: "Oh."] Yes, certainly.

If, on the other hand, the right hon. Gentleman will say that the report in The Times is completely inaccurate, I will accept it and I am sure the rest of the Committee will accept it, but the right hon. Gentleman must answer it. [Interruption.] I quite understand that some hon. Members opposite wish to divert this argument. They want to divert it to some other question, but I still maintain—and I do not care how many support me or how many oppose me—that if it is the claim of hon. Members that they want to sustain the authority of the House of Commons decisions must be made in debates in the House of Commons Ministers must make up their minds at the end of discussions in the House of Commons.

I began my remarks by saying that the right hon. Gentleman had made an extremely formidable speech, but what is the use of his making a formidable speech if the night before he had said he completely rejected the Amendment anyhow? Are we going through a great charade? Is it all fixed and do hon. Members opposite all know what is to happen? Quite a number of hon. Members opposite were at the meeting last night, at this hugger-mugger affair. [Interruption.] The hon. Member who interrupted may not have been there, but quite a number were there. [AN HON. MEMBER: "Who was there?"] I do not know if the right hon. Gentleman is used to raking speeches to himself. I am sure that he likes to have a slightly larger audience.

The right hon. Gentleman laughs now, but I assure him that this is quite contrary to general practice in the House of Commons. I know that the practice has grown up in recent years, and is accepted move and more by hon. Members opposite., that these matters can be settled outside the House of Commons and the Government can indicate which Amendments they will accept and which they will reject, but that is absolutely improper. What is the purpose of moving an Amendment if it has been rejected the night before?

Mr. Doughty

Can the hon. Member go so far as to say that if his party had a private meeting to decide whether or not to vote against this or any other Amendment it would be wrong or improper?

Mr. Foot

No, I do not say that. What I say I have said earlier today. I remember very well when we had a Labour Government in power, but I cannot recall any instance during that period when Ministers went to their back benchers and said to them which Amendments they would accept or reject in the debate the next day. [Laughter.] Hon. Members think this is a laughing matter, but what they do by their laughter and derision is to laugh at the House of Commons. [HON. MEMBERS: "Non-sense."] I advocate the rights of the House of Commons. Quite rightly people listen to the right hon. Gentleman seriously, but what is the use of that if he rejected the Amendment the night before? The right hon. Gentleman should not laugh because he denied it, or half-denied it, before. Is the report in The Times correct?

Mr. Geoffrey Wilson (Truro)


Mr. Foot

I said earlier that if the right hon. Gentleman says that the report in The Times is absolutely incorrect, I shall accept his word but that if the report is correct, then the case which I have made against him is ineradicable.

Mr. Angus Maude (Stratford-upon-Avon)

It is very difficult to know whether the hon. Member for Ebbw Vale (Mr. M. Foot) means to be as outrageous as he sometimes appears, although it is usually a fair bet that he does.

I do not want to say much about his second point, but he must know well that in the days of the Labour Government these things happened, not necessarily in respect of minor Amendments to Bills but on major matters of policy, which were discussed in party meetings, as they always are. But the point is surely much more trivial than that. I know nothing about the meeting to which he and The Times correspondent refer. I was not at it. But even if it were true, my right hon. Friend the Member for Thirsk and Malton (Mr. Turton) has moved his Amendment, and there is nothing whatever to prevent him and his hon. and right hon. Friends from voting for that Amendment if they are dissatisfied with the answer given by my right hon. Friend the Secretary of State, no matter what he said at the private meeting. It is quite absurd for him to pretend that anyone is bound, or that the rules or spirit of the House of Commons are breached, by discussions which take place, wherever they take place. What is more, the hon. Member knows it.

I think I can deal very briefly with his first point. He cannot believe that he is not trying to turn the Bill completely on its head by the order in which he proposes that these matters should be dealt with. On Clause 2 we dealt with the question whether specific trades and practices should be written into the Bill as exceptions from the general principle. We agreed that they should not. Now he goes further and says that it does not matter; that we should not look at this from the point of view of which gateways we should lay down but from the point of view of every industry separately to see what difference the Bill will make to it.

Because he approves of the net book agreement, because I may approve of it, and because my hon. Friend the Member for Bath (Sir J. Pitman) may approve of it, therefore, he says, the gateways must be so drawn as to assure that the net book agreement scrapes through. Then no doubt someone else will say that they must be so drawn that clothes pegs get through or motor cars or any other trade, industry or commodity which he likes to mention. This is to turn the whole Bill as we have agreed it so far on its head, and he must know that this is so.

My right hon. Friend is correct in saying that it is for the Court to decide which practices are or are not in the public interest. That is very good. Let us decide which general principles are in the general interest and then let the Court see whether a particular commodity, trade or practice gets through the gateway. But let us not go through the ridiculous farce of pretending that we can take one commodity or one trade and see whether we can find a collective voice about every single industry, commodity or trade and then draw the gateway to suit it. We must remember that there are many different voices about the net book agreement, about motor cars, about cigarettes and about anything else. If we were to follow that procedure we should be here for ever, as the hon. Member well knows.

Mr. M. Foot

I am not suggesting that we should write into the Bill each commodity which should be exempt. I am suggesting—and this was also put by his right hon. Friend the Member for Thirsk and Malton (Mr. Turton), so he need not get so angry with me about it—that a good way to judge whether the gateway is wide enough is to see whether a cow can get through it. That is a test. If it is so narrow that only a chicken can get through, then it is a different kind of gateway. We can judge the width or narrowness of the gateway only by what kind of animal can get through. Therefore, when I ask whether this particular kind of animal can get through, that is a good way of testing what kind of gateway it is.

11.45 p.m.

Mr. Maude

With respect, of course, it is not, because once we have had it in respect of one industry or commodity the way is open to discuss it in respect of every other single commodity or trade one may care to think of, and that makes a nonsense of the whole proceedings. The test is not whether the net book agreement would scrape through; the test, and the only test, is whether, in the last resort, a practice is in the public interest or not. Any other test or discussion is ridiculous.

Mr. Foot

In that case, the hon. Gentleman should support his right hon. Friend's Amendment, because the right hon. Gentleman wants to make sure that the public interest is preserved and protected, and one of the only ways in which we can judge whether the public interest is protected is by seeing which particular kinds of trades will manage to secure and maintain their system of operation under the Bill. One cannot test it in any way except by practical example.

Mr. Maude

The fallacy in the hon. Gentleman's argument, as he knows perfectly well, is that he is assuming that we are all agreed from the start that the net book agreement, for example, is in the public interest. If there are among my hon. Friends and among hon. Members opposite people who do not believe that the net book agreement is in the public interest, the test the hon. Gentleman proposes is a farce, obviously, and he is bound to come back solely to the public interest as the only test in the last resort, not by measuring whether the net book agreement is in the public interest—or resale price maintenance on clothes pegs. These may be adduced in argument as examples but cannot in themselves be to As. The hon. Gentleman is prejudging the true issue for which Parliament at the moment trying to lay down criteria, and he is not entitled to prejudge that issue. The whole thing is absurd.

Nor is the hon. Gentleman right in saying that because of my views I am necessarily bound to support my right hon. Friend's Amendment. I happen to believe that the criteria of the public interest are adequately catered for by the three gateways already in existence, taken in conjunction with the tailpiece to the Clause. Therefore, the whole of the hon. Gentleman's argument, which was ingenious and, as usual, amusingly put forward, is, in fact, a gigantic fraud.

Mr. Heath

I beg to move, That the Chairman do report Progress and ask leave to sit again. Sir Robert, we have made progress with Clause 4 and have started this major debate on Clause 5. I think that this would be a suitable moment to report Progress.

Question put and agreed to.

Committee report Progress; to sit again Tomorrow.