§ (1) Where, prior to the date on which this Act was passed, the Restrictive Practices Court has declared in proceedings under Part I of the Restrictive Trade Practices Act 1956 that a restriction relating to any goods is not contrary to the public interest (the Court having been satisfied in respect of that restriction of any one or more of the circumstances set out in paragraphs (a) to (f) and section 21(1) of the Act of 1956) the Court shall, on application made by any person or association who has duly given notice under section 6 of this Act in respect of goods of that description, make an order directing that the said goods shall be exempted goods for the purposes of this Act if it appears to the Court that in default of a system of maintained minimum resale prices applicable to goods of that description—
- (a) the continued operation of the said restriction would become impracticable or would no longer have the results by reason of which it was declared by the Court to be not contrary to the public interest; or
- (b) the continued operation of any other restriction not materially different from the said restriction and contained in an agreement to which Part I of the Act of 1956 applies would become impracticable or would no longer have such results
§ (2) If on an application made under this section the Court makes an order directing that goods of any description referred to in the application shall be exempted goods for the purposes of this Act, then for the purposes of section 7(3) of this Act the decision in the previous proceedings under Part I of the Act of 1956 shall be treated as the previous decision of the Court.
§ (3) If on an application made under this section the Court refuses to make an order as aforesaid, then no further application may be made under this section in respect of those goods but, subject thereto, goods of that description shall be treated for the purposes of this Act no differently from goods in respect of which no application under this section has been made.—[Mr. Stevens.]
§ Brought up, and read the First time.
§ 4.15 p.m.
§ Mr. Geoffrey Stevens (Portsmouth, Langstone)
I beg to move, That the Clause be read a Second time.
§ Mr. Douglas Jay (Battersea, North)
On a point of order, Mr. Speaker. I would like your guidance about the selection of one or two of these Amendments, which does not appear to us to be wholly to the convenience of the House.
I understand that it is the intention to take together Amendment No. 14, in the name of the Secretary of State, in page 3, line 20, at end insert:(4) For the purposes of this Act a supplier shall not be treated as withholding supplies of goods on any such ground as is mentioned in subsection (1) of this section if, in addition to that ground, he has other grounds which, standing alone, would have led him to withhold those supplies.and Amendment No. 15, in my name and the names of some of my hon. Friends, in page 3, lire 20, at end insert:(4) Nothing in this section shall make it unlawful for a supplier to withhold goods from any dealer to whom he has not previously sold goods or who refuses or fails to comply with a requirement by the supplier that he shall pay cash or the equivalent of cash on order.It appears to us that not only are these two Amendments to be moved from different sides of the House—which is perhaps not a major point—but that they raise separate issues. The Government Amendment refers to the motives a supplier might have for withholding supplies. Our Amendment deals with the different question whether the Bill should prevent a supplier from withholding supplies from a dealer with whom he has never dealt before. I submit that these are separate issues and that it would be inconvenient to take them together.
§ Mr. Speaker
Perhaps I may take these points one by one, so that we may get them sorted out more easily. It appeared to me that the right hon. Gentleman's Amendment, No. 15, was partly met by the Secretary of State's Amendment, No. 14. I think that we can conveniently discuss them together, if that is so, without queering anyone's pitch. I can, if necessary, call No. 15 for a separate Division. It would merely group the discussion but if my suggestion is not convenient I will retreat from it.
§ Mr. Jay
Thank you, Mr. Speaker. We would prefer to take the two separately.
243 My second and more substantial submission concerns Amendment No. 26, in the name of my hon. Friend the Member for Ogmore (Mr. Padley) and the names of others of my hon. Friends, in page 5, line 34, at end insert:orI understand that it is not intended to select this Amendment. However, it is a major Amendment which seeks to ensure that the interests of the retailers and the distributive workers are at least taken into account in deciding on exemptions from the Bill. This would have been the only point at which we could argue that the interests of retailers and distributive workers should at least be considered.(e) there would be serious damage to the livelihood of large numbers of self-employed retailers and distributive workers".
As this issue affects a large number of people, surely we should at least be allowed to argue it on the Report stage, whatever view the House may take in the end. I realise that there was a debate in Committee, but this Amendment is in different terms from the one moved then. Since the interests of shopkeepers and retail workers are concerned, and this Amendment is in different terms from that moved in Committee, we hoped that we would be able to debate it.
§ Mr. Speaker
There is a difficulty about this. The Chair has the unfortunate duty of having to select. One of the purposes of selection, presumably, is to prevent a repetition of matters which, in the view of the Chair, have been adequately discussed in Committee. I realise that there is a slightly different wording in Amendment No. 26, but it is impossible, in my view, to say that there was not adequate discussion of a similar Amendment in Committee. That discussion lasted 1½ hours at least and the issue was carried to a Division. I do not ordinarily declare my reasons. I do so in this case as a matter of courtesy to the right hon. Gentleman. Is that all that he desired to raise with me?
§ Mr. Stevens
I suggest that it might be for the convenience of the House if, with my new Clause, we discuss Amend- 244 ment No. 29, in page 5, line 39, at end insert:(2A) On a reference under this section in respect of goods of any class which have been the subject of proceedings in the Court under Part I of the Restrictive Trade Practices Act 1956 the Court may treat as conclusive, against any person who was party to the proceedings under the said Part I, any finding of fact made in those proceedings, and shall do so unless prima facie evidence is given of a material change in the relevant circumstances since those proceedings;and Amendment No. 47, in page 8, line 20, leave out from beginning to end of line 21 and insert:of the following costs incurred by any other party, that is to say—Though these two Amendments concern different Clauses, they both touch closely upon the subject matter of the new Clause. I should like your guidance on this, Mr. Speaker.
- (a) costs incurred on a reference under section 5 of this Act, or on an application under section 7(1) of this Act, in respect of any issue determined in favour of that party, being an issue which in the opinion of the Court substantially corresponds with an issue so determined in proceedings under Part I of the said Act of 1956; or
- (b) costs incurred on an application under section 7(2) of this Act in respect of an issue determined in favour of that party".
§ Mr. Speaker
I cannot group the Government Amendments without Government consent. In the circumstances they will have to be separately dealt with. I should welcome help.
§ The Secretary of State for Industry, Trade and Regional Development and President of the Board of Trade (Mr. Edward Heath)
I should be quite happy for the Amendments to be discussed with the new Clause.
§ Mr. Speaker
So be it. Let them be discussed together. The Amendments can be called for a Division later, if necessary.
§ Mr. Stevens
The object of the Clause is to ensure that trades which have already been through the hoop of the Restrictive Trade Practices Act, 1956, appeared before the Court and proved that their schemes for price maintenance are in the public interest, should not, in the first instance, under the Bill, be required to go through the hoop again.
In Committee, we had a short but interesting debate on this point. My 245 right hon. Friend accepted that there was substance in it. He could not accept the Amendments then moved, but he undertook to table Amendments to deal with this point on Report. My right hon. Friend has done that by tabling Amendments Nos. 29 and 47. I very much appreciate what he has done. I cannot at this precise moment say that I am entirely satisfied. There are one or two points on which I should like clarification.
I shall not weary the House by going over old and stale ground. In Committee, my right hon. Friend the Member for Thirsk and Malton (Mr. Turton) and I drew attention to the very large sums of money which these companies and trades have spent in preparing their case for presentation to the Court. I do not think that the amount of time involved was referred to. I think that I am right in saying that both the book and the cement trades spent about three years preparing their case. Those trades may be put to the same trouble again, even though their cases may not be taken by the Court if Amendment No. 29 is accepted. The moment the Registrar makes a reference to the Court those trades will have to start marshalling the facts for their case straight away. I should like to hear what my right hon. Friend has to say on that point.
There are two assurances I should like from my right hon. Friend. I rather think that it is what he intends, but I am not sure that the wording of his Amendments is sufficiently clear. First, I should like his assurance that Amendment No. 29 is definitely intended to save in the first instance the three trades—cement, books and window frames—which have already been through the hoop from coming up before the Court again under the Bill. Secondly, I should like from my right hon. Friend an assurance that the intention of Amendment No. 47, dealing with costs which may be incurred, is to insure these same trades against costs which they may incur on a subsequent reference.
I hope that, if my right hon. Friend can give those assurances, it will not be necessary to stage yet another Tory rebellion.
§ Mrs. Eirene White (Flint, East)
I should be glad to hear from the Secre- 246 tary of State just what his Amendments include, particularly Amendment No. 47, dealing with costs. If costs are defined, as one would suppose them to be, in the narrow, legal sense, although it would certainly be a great help to those concerned presumably it would not cover all the work which has to be done in preparing a case—all the work done in the offices of the companies and all the overheads which would be part of the general costs if they had to prepare their case a second time.
It is true that, in accordance with Amendment No. 29, evidence which has previously been placed before the Court under the 1956 Act can be accepted. As I understand, under the right hon. Gentleman's proposals there may still be a considerable amount of labour, to-ing and fro-ing, spending of time, and telephoning involved. I can think of all the ancillary, expenses which might be incurred, which it seems to me would not rank as costs in the legal sense and therefore would not be reimbursed.
If my thinking on this is incorrect, one could accept without too much difficulty the two Amendments in the name of the Secretary of State. On the other hand, if my view is correct, the new Clause would be far more satisfactory. The people concerned—I am much more interested in the books than in the other commodities—have already spent nearly £40,000 and nearly three years on the preparation of their earlier cases. Under the new Clause they would be perfectly clear that they would not have to do all that work again. If the Government Amendments were accepted, I do not think that it would be anything like as clear that they would not have to do a good deal of work again. I should be grateful for clarification.
§ Mr. Graham Page (Crosby)
I think that it is generally agreed that those who have been through the hoop before under Part I of the Restrictive Trade Practices Act, 1956, should not be forced through the hoop again. The new Clause and Amendment No. 29 are alternative ways of achieving this. I shall address my remarks to the difference in practice between the procedure which would follow under the new Clause and that which would follow under Amendment No. 29.
247 My hon. Friend the Member for Portsmouth, Langstone (Mr. Stevens) said that there are three trades which have been through the hoop once—the publishers of books, the makers of cement, and the makers of metal windows. They have already had a decision of the Court that their conditions of sale are not detrimental to the public interest. Those conditions of sale will, as they include a price-fixing agreement, become void when the Bill becomes law and Clause 1 becomes operative.
The first step which those trades will have to take is to give notice under Clause 6 and become registered. They will then, by Clause 6(4), get the usual implied temporary exemption order under Clause 5. This is the point at which the new Clause procedure and the procedure under Government Amendment No. 29 part company. Under the new Clause the trade would be entitled to apply for an exemption order. The trade would take the initiative. Under Amendment No. 29 the trade would have to wait for a reference by the Registrar. The trade would have hanging over its head the possibility of a reference, perhaps not for a very long time, because it would be unlikely that the Registrar would pick on one of these trades at the early stages of the operation of the Bill when enacted.
Under the new Clause, if there were prima facie evidence of a material change in the circumstances, that would merely defeat the initial application and the trade would wait until a reference is made. Under Amendment No. 29, if there were prima facie evidence of a material change, all the facts previously proved and all the issues previously settled would be thrown into the melting pot again.
This is the practical difficulty which will face these trades, for they will face a reference. At the outset the trade may succeed in saying, "There is no material change in the circumstances" and, therefore, that will be the end of the matter. On the other hand, the trade may fail at the outset and the Registrar may satisfy the Court that there is prima facie evidence of a material change in the circumstances. This shows that the trade will have to be ready to proceed in full with a 248 reference. If it succeeds on a preliminary point, there will be no reference—but the trade must be ready at the outset to proceed with the case in full.
I have tried to show that, in the circumstances, the trade will have to go through all the preparation which my hon. Friend the Member for Langstone mentioned. As he said, it took the book trade three years to prepare its case. The procedure of deciding this preliminary point on an application seems far preferable. If my right hon. Friend's Amendment No. 29 is accepted, however, perhaps I might commend to him the procedure which comes into the Bill a little later—of leave of the Court, before proceedings are started. That might be a solution in this case.
If Amendment No. 29 stated that the Registrar should not be entitled to commence a reference with the leave of the Court, without satisfying the Court that there is prima facie evidence of a material change, then the Amendment would embrace the advantages of the new Clause; of that preliminary decision on a short point before embarking on the whole of the case.
The object of the proposed new Clause is to prevent the expense of preparation for this sort of reference all over again, when it has gone through the hoop once. Amendment No. 29 will not entirely achieve that and I would, therefore, urge my right hon. Friend to think again on this issue and consider covering this point, perhaps in another place.
§ Mr. Donald Wade (Huddersfield, West)
Most of my remarks will be in the form of comments on the observations which have already been made. I am, however, not completely clear about the timetable and I am in favour of any Amendments to the Bill which will simplify and speed up the procedure which it lays down.
This procedure may be lengthy and complicated and it is sensible that we should try to shorten it, particularly for trades which have already been before the Restrictive Practices Court. We read, in Amendment No. 29, that…the Court may treat as conclusive, against any person who was party to the pro- 249 ceedings under the said Part I, any finding of fact made in those proceedings, and shall do so unless prima facie evidence is given of a material change in the relevant circumstances since those proceedings.The point which is worrying many hon. Members is when a trade will know that the Court will treat certain evidence as conclusive and when such a trade will know whether or not there is any material evidence going to be brought forward concerning a material change. The timing here is important and I am sure that if a satisfactory answer could be given to these questions we would stand a reasonable chance, apart from simplifying the procedure, of satisfying a number of hon. Members, most of whom are anxious that this procedure should be simplified.
§ Mr. Norman Cole (Bedfordshire, South)
I am sure that hon. Members on both sides of the House are pushing at an open door in our discussion of these Amendments and the new Clause. What we need to know is what is on the other side of that door. I have carefully read the Clause and my right hon. Friend's Amendment No. 29 and I see several differences in them, at least one of which has not been mentioned.
The new Clause deals inter alia with the result of a decision made under the 1956 Act, and because that decision was made at that time an exemption under this Act must now be given. That, in effect, is what the new Clause says and, for that reason, I call it the "result" aspect of our discussion. Amendment No. 29, on the other hand, deals with the actual case and states that, whatever has been proved already, as a matter of fact, that must be taken into account by the Court. Is there not room for both of these considerations? If we call Amendment No. 29 the "actual" aspect of our discussion and the new Clause the "result" part, cannot we say that there is much to commend both aspects?
It seems obvious that if the 1956 Act resulted in a decision having been made, the very same issue over which that decision was made should not have to go before more or less the same Court simply because it is said that something is possibly against the public interest from the supplying or manufacturing point of view. We should not be 250 allowed to invalidate a previous decision by stating something in this Measure.
I am also concerned about the circumstances of a r.p.m. case coming before the Court when a previous statement of fact applicable to that case has already been made. This really covers the "actual "aspects of both matters and I would go so far as to say that the words used in Amendment No. 29 on this issue and those used in the new Clause should be brought together to make a comprehensive whole.
Having read and reread Amendment No. 29 and the new Clause, I cannot find anything in the Amendment which would give an exemption, for it merely states:…the Court may treat as conclusive, against any person who was party to the proceedings under the said Part I, any finding of fact made in those proceedings, and shall do so unless prima facie evidence is given of a material change…It does not say anything about giving an exemption for that reason and we cannot say that if we accept the Amendment such exemption will be given. I have react that Amendment into where it will occur in the Clause, but I cannot find that it would make much difference, from the exemption point of view, to the Clause as already drafted.
I want to make certain that someone who has been through the hoop once will not have to go through it a second time and, where there has not been any change, will not be placed in jeopardy. Although this is not a criminal matter, it is inherent in our criminal legislation that a person should not be put in jeopardy in this way time and again. I go further, because it is not merely a question of jeopardy. We are here concerned with the deployment of a great deal of time and money for people to be ready with their cases.
We should not forget that it is only eight years since these people will have gone through the hoop for the first time. Public interest cannot have changed all that much in that time. Changes do occur over a considerable period, but what we are considering now is like retrospective legislation. It is rather like saying that once the Bill becomes law something which was decided some time ago, when a person or trade was 251 given a clean bill of health, will have to be referred for decision a second time in the public interest merely because someone else has taken a different view. For this reason, this procedure has all the demerits of retrospective legislation and, because of that—apart from other points which I dislike intensely—I hope that my right hon. Friend will have second thoughts on this issue. He should particularly remember that the Clause will suggest that a person who has been before the same kind of court to have the same set of facts considered will need to go before it a second time.
§ Mrs. White
Although the hon. Member mentioned that the first decision was made only eight years ago, he will realise that it could have been given as recently as 1962.
§ Mr. Cole
That reinforces the point which I was making. I was assuming the maximum reason for obliging the organisation to go through this inquiry twice. If it is only a matter of two or three years ago that an inquiry was held, then it becomes nonsense to make people go through it twice. It is like trying an ordinary civil case twice in two or three years. This we would not do.
Quite apart from the general feeling of jeopardy and from the money and time involved, all of which are major considerations, we ought to bear in mind that whenever there is a suggestion that someone must appear before the Court again, even if he has reason to know that he will be cleared as on a previous occasion, there is immediately uncertainty in that trade or industry. That is not good for the country. It may well be an industry involved in exports. Such a practice would be a bad thing both for the industry and for those who deal with it
Nowhere in Amendment No. 29 or the new Clause is there a suggestion of a time limit. I am surprised about this, because there are references to time limits elsewhere in the Bill. Although the Court may make a decision based on new Clause 1 or Amendment No. 29, there is nothing as far as I can see to prevent the Court from reconsidering the matter within 12 months. I am all in favour of the Court reconsidering a matter if material changes in the circumstances 252 have been brought to its notice, but I do not see why someone should be permanently exposed to the glare of the Court under the same circumstances.
If that is not the intention, we should put a provision in the Bill, "Subject to any material change in circumstances, the Court shall not review any trade in a period of less than five years". With all the work which the Court will have to do, that will not be too long a period. I am anxious that an industry or trade should not find the Sword of Damocles hanging over its head all the time. I am in favour of inquiries into industries and trades where things are not going as we think they should; they should be subject to investigation and should be looked at again, but there are large parts of industry which satisfactorily meet these judgments of the court in what they do, and they should not be exposed continually to these investigations.
It can do nothing but harm. It is rather like the period in industry before a major national event. Once the industry has been cleared, then, in the same way as someone found not guilty of a criminal offence, it should be certain that unless circumstances change in its line of country, it will be clear for at least the next five years and probably longer than that.
With new Clause 1 and Amendment No. 29 we probably have the answer to our problem, but it will need very careful wording. This is probably one of the three major parts of the Bill. It may be a little more difficult to solve because we are all after the same thing, but I hope that my right hon. Friend will consider the analytical remarks which I have made, because I am sure that we all want the best result and that we shall get it if we bring our minds to bear on the new Clause and the Amendment and bring them together.
§ 4.45 p.m.
§ Mr. R. T. Paget (Northampton)
I find myself very much preferring the new Clause to the Minister's suggestions. If there is to be a justification for the Bill, it is in promoting efficiency in industry, and to promote complex and difficult legislation and to impose that on an industry is not the best way of making it more efficient.
In the three cases which we have heard—cement, books and metal windows— 253 probably those industries have had imposed on them, directly or indirectly, several hundreds of thousands of pounds worth of totally unproductive expenditure. Nevertheless, I believe that to be very much the least important aspect. What they have had imposed on them and upon their highest directorate is a diversion of energy and thought.
I do not think that the right hon. Gentleman, who takes this doctrinaire attitude about these matters, realises the extent to which a directorate who find themselves involved in major litigation are more and more occupied in consultations, in producing new documents and in the extremely difficult task of trying to make the business which they understand comprehensible to men none of whom understands their business or business generally—and that is a position of a judge.
Here is the appeal from people who know the business, who have created it, who understand it and who have built up its distributive organisation, to a man whose training is not in business, who is in no position to understand it and who is in no position to make economic prognoses of the probable future.
The judge's job is to judge facts and to make findings of fact on existing circumstances; it is not to guess the economic future. He is quite unfitted and inadequate to do so. The job of having to create this state of affairs in the mind of a judge will divert the energies of those companies to an extraordinary degree. Probably the top directorate in these industries over these three years were occupied for nearly all their time in this wretched litigation, which they had continually to be applying their minds to, and in getting new evidence. Surely it is not reasonable to impose it on them again. We ought to have learned the lesson from the Restrictive Trade Practices Act, which produced great advantages to monopolists and great opportunities for take-overs. Quite a few large people found themselves reluctantly having to swallow their smaller competitors. In almost no instance at all can we trace any advantage having been passed to the consumer from these inquiries. We should not impose all this trouble on these industries all over again.
254 Yet they are to have the inquiry hanging over them, and we are told that there is some compensation in the costs provision. The costs provided do nothing to compensate for the diverted energy and, as anybody who has been involved in litigation of this sort knows, they are only a trivial proportion of the actual cost. This seems to be totally unfair, and I very much hope that the Government will reconsider the matter and will accept the new Clause as some mitigation of this litigation situation.
§ Mr. A. Oram (East Ham, South)
We are discussing two distinct approaches to the subject of how to take into account the proceedings of the restrictive Trade Practices Court. I disagree with the hon. Member for Bedfordshire, South (Mr. Cole), who seemed to think that in some way the new Clause and Amendment No. 29 were compatible and that we could have both with some modifications.
§ Mr. Oram
I also disagree with that interpretation of what the hon. Gentleman said.
Unlike my hon. and learned Friend the Member for Northampton (Mr. Paget), I prefer the Government's approach to that of the new Clause. I recall that when my hon. Friend the Member for Wednesbury (Mr. Stonehouse) introduced a Private Member's Bill on this subject, he included a provision somewhat similar to new Clause 1, that is, to exempt goods which had already been through the hoop. In that limited Bill, my horn Friend was trying to legislate for exemptions direct and he was not proposing to adopt procedure of this Bill, sending cases to the Restrictive Practices Court. I was a supporter of my hon. Friend's Bill, but in the context of this Bill we have to reconsider the matter, and I prefer the Government's approach.
It is perfectly reasonable that when a matter has been closely examined by the Court, all those proceedings should be taken into account; but if it is good to do that in the cases in which the practices have been approved by the Court, what about those cases which the Court has not approved? Are they to be set 255 aside and given a completely new approach? If the work of the Court is taken into account on the one hand, it must also be taken into account on the other.
Hon. Members have mentioned the expense involved and the amount of inconvenience suffered, and so on, but let us remember that it is not only the traders and the trade associations which have been put to this bother. The Registrar and his staff have also been involved and public money has been expended in stating the other side of the case. When they have won the case, ought that not to stand in good stead and ought not a repetition of those costs and that inconvenience be avoided just as much as in the case of the booksellers, whose case I largely accept? Hon. Members cannot have it only one way.
The Government's Amendment provides a reasonable formula in that it refers to any goods which have been subject to proceedings. It does not say whether those proceedings have been successful from either point of view. It merely says that when goods have been subject to proceedings the findings of fact shall be taken as conclusive. I think that this reasonably holds the balance between the two sides of the argument and avoids repetition of argument, repetition of evidence and expense, and so on, whatever the case and arguments which were before the Court at the time.
§ Mr. Oram
But the Court will have examined such issues before reaching its decision. What I am saying in support of the Minister's suggestion is that it is six of one and half a dozen of the other, and that what is fair in the one case must be seen to be fair in the other. The new Clause seems to weigh the scales entirely in favour of the traders and trade associations and against the Registrar and his staff, where- 256 as the Government's formula keeps an even balance.
§ Mr. Jay
Having listened carefully to the debate, I am inclined to think that the issue is not quite so simple as it was put by some hon. Members opposite. In the first place, there is a great deal in what my hon. Friend the Member for East Ham, South (Mr. Oram) has said—that if we are to accept the previous decision of the Court in one direction, we are surely bound in fairness also to accept it in the other.
Secondly, we all start with the general desire not to force industries or interests or groups to go through a long and complicated and costly legal procedure twice over in order to reach the same effect. Hon. Members, naturally, ask why people should be forced to go through the hoop twice. The weakness of that argument is that it is not the same hoop. That is the difficulty. It is a different hoop in two respects. First, what is required to be proved is different. Under the 1956 Act, the publishers and the others were seeking the right to retain collective agreements. It was the collective nature which was at issue.
As the hon. Member for Bedfordshire, South (Mr. Cole) correctly said—although this seems to incline against his own argument—at that time resale price maintenance was not illegal, whereas under the Bill it will have to be proved to be in the public interest if it is to be enforced, not collectively, but individually. Therefore, what is required to be proved is different. Whatever gateway we finally reach, the criteria by which that matter will require to be proved will also be different. It therefore seems clear that this is a materially different hoop in two respects.
I cannot believe that it is right to legislate to the effect that any industry or trader who happens to gain exemption, or who has been refused it, on one ground under a previous Act should automatically get if for a different Act when other people who have not been before the Court have to prove their case on new and quite separate grounds. This would give different industries and different traders inequality, because some would be automatically exempted without having to prove what others would be required to prove.
§ Mr. Cole
I am very much taken with this part of the right hon. Gentleman's argument, but the new Clause says that, if something approved by the Court under the 1956 Act was unworkable unless the maintenance of resale price maintenance were allowed, exemption should be given. It does not say that exemption will be automatically given just because the matter has been before the Court.
§ Mr. Jay
But we are now instituting a different criterion, that of the public interest.
However, I think that we want to ensure that traders are not compelled at the cost of great time and expense to prove the same facts over again. As I understand, the Government mean to ensure that, so far as the facts have been proved and so far as there has been no material change, the onus of proof being on the Registrar to say if there has been a material change of facts, the process of proof does not have to be repeated. It seems reasonable that, up to a point, the costs of the whole operation should not be imposed twice over on at any rate those dealers who are able to make their case.
As I understand the right hon. Gentleman's proposal on costs, it is to the effect that in so far as the issues coincide in the judgment of the Court, and in so far as the case is made in the view of the Court, the costs will be borne by the Registrar. If I am right in my interpretation of the Government Amendment in both those respects—and I am sure that the right hon. Gentleman will elucidate them—on the whole I prefer the Government solution to that put forward by hon. Gentlemen opposite in the new Clause.
§ Mr. R. J. Maxwell-Hyslop (Tiverton)
I am afraid that quite a lot of apparent confusion has stemmed from a rather unfortunate speech made by my right hon. Friend the Secretary of State for Industry and Trade when, either accidentally or deliberately, I do not know which, he used the words "price-fixing" in a completely new context. That phrase has consistently been used by the Restrictive Practices Court to describe collusive agreements between manufacturers who ought to be in competition with each other.
258 My right hon. Friend introduced that phrase, and sections of the Press which should have known better, then followed down his faulty lane and applied that distinct and technical term to a completely different situation, namely, resale price maintenance. Without doubt that has confused the public, and it appears to have confused some hon. Members. I think that it is essential that we should distinguish between price-fixing, a term whose meaning is well established by the Court, and resale price maintenance, which is totally different and which governs only the relationship between an individual manufacturer and a supplier of that manufacturer's product. As long as we retain that distinction, confusions of this nature are not likely to arise.
Having said that, I think that the merit of the new Clause is quite clear, because, although these two phenomena are utterly different and distinct, that does not mean that the existence of one may not impinge in some way on the other. This is brought out in paragraphs (a) and (b) of the new Clause. There may be circumstances—and it would be for the Court to decide whether to accept the evidence put before it—where restrictive practices which are found to be in the public interest depend on resale price maintenance being continued.
That is a possible circumstance which the new Clause encompasses. It would obviously frustrate the purpose of the Court if that Court found that a certain arrangement was in the public interest, and that arrangement was then defeated by alternative proceedings under the Bill, because one would then be in the ludicrous position of having one judge in the Court finding that a certain process was against the public interest, although that process was necessary to sustain another process which either the same or a different judge in the Court found to be in the public interest. If we allow a situation like that to obtain, we shall reduce the whole procedure to the contradictory and farcical.
§ Mr. Jay
As the Bill does not repeal the 1956 Act wholesale, it is inevitable that different criteria will apply for collective price-fixing on the one hand, and resale price maintenance on the other. That is true not only of an industry which may wish to practice both at once. 259 That is the inevitable effect of the main principles of the Bill.
§ Mr. Maxwell-Hyslop
I am seized of that point, and I accept that where r.p.m. is not—as, in many cases, it is not—in any way impinging on other forms of restrictive practice there is no reason why the criteria should necessarily be the same, but paragraph (a) of the new Clause deals with cases where one impinges on the other.
It is in cases where the one impinges on the other that this utterly contradictory situation, which I am sure the House would want to avoid, may occur. It would be ridiculous if the same judge, or different judges in the same Court, found that something was in the public interest, or alternatively, found that something else was not in the public interest, but whose existence was essential for something which was found to be in the public interest.
That is the essential point which must be grasped by the House, although I come back to where I started by agreeing with the right hon. Member for Battersea, North (Mr. Jay) that we must not confuse these two totally different situations by using the accurate and restrictive term "price-fixing" to encompass as well a totally different situation—resale price maintenance.
§ Mr. Maxwell-Hyslop
It is that aspect of the matter which particularly recommends the new Clause, because it allows us to escape from that dilemma and it enables us to avoid legislating for a nonsensical situation.
§ Mr. Heath
A very similar Clause to this new Clause was considered in Committee, and at that time I explained some of the difficulties involved in it. I undertook to see whether we could find a way round them, and we have given very careful consideration to all the points which were raised by my right hon. and hon. Friends, in an endeavour to meet the problems which I mentioned.
260 The new Clause which we are now considering is, in fact, a recast version of the original one which we considered in Committee, and I recognise that the sponsors of the new Clause have tried to meet some of the objections which we saw in the new Clause moved in Committee. They have spelt out its intention more clearly, and they have limited its application to cases decided under the 1956 Act before the Bill becomes law.
They have also limited it so that it no longer applies to cases where r.p.m. has been considered by the Restrictive Practices Court simply as a specific restriction supporting another principal restriction in the agreement, in other words, those cases which came under gateway (g) of Section 21(1) of the 1956 Act. That means, in effect, that the new Clause can now relate only to the net book agreement, and one of our objectives in dealing with this matter was to deal with the three cases which had been before the Court—the net book agreement, cement, and metal windows.
As a result of this new Clause, publishers would merely have to show that individual r.p.m. was an essential element of the restriction in the net book agreement which the Court has already approved. That agreement would then be exempted, unless the Registrar could bring prima facie evidence to show that there had been a material change in the relevant circumstances since the previous decision.
When we discussed this before, I think that we were agreed that we were not trying to secure exemptions for those three cases. They were not put forward when we dealt with Clause 1 for specific exemption, as were a number of other goods. My right hon. Friend the Member for Thirsk and Malton (Mr. Turton) and my hon. Friend the Member for Portsmouth, Langstone (Mr. Stevens) said specifically that they were not asking for exemption in perpetuity for those three cases, or even for the net book agreement. They felt that it should be subject to review.
I point out to my hon. Friend the Member for Bedfordshire, South (Mr. Cole) that under the 1956 Act there is provision for review. His anxieties—that in this case the possibility of review 261 would be constantly hanging over the heads of those concerned—are not entirely justified, because this provision already exists in the 1956 Act as it does in the Bill, in circumstances in relation to which I am later proposing an Amendment.
Despite the changes made in the new Clause, one fundamental difficulty remains. It is one to which we have given a good deal of thought, but we have not found a way round it other than in the Amendments that I have proposed. It is concerned with the question that the Court should be free to review an exemption order for books, cement or metal windows, in exactly the same way as if the normal procedure in the Bill had been followed. That is the legal difficulty which faces us in trying to deal with this problem.
My hon. Friend recognises that it is not possible to dispense with the requirement for an exemption order under the Bill if the goods are to be subject to the review procedure under Clause 7. Clause 7 requires the parties to obtain an initial exemption order under the Bill, but under this Clause the exemption order will be automatic, and will not involve any treatment of individual resale price maintenance on its merits under the Bill—that is, by consideration of the gateways under Clause 5.
The whole idea of the review under the Bill is that the merits of the decision will be reconsidered. In that way it is no different from the review under the 1956 Act, so unless the goods go through the gateways in the Bill there is nothing on which the review itself can bite. This is the fundamental problem that faces us if we have automatic exemption. When it comes forward again under review there is nothing which can be reviewed, because there has been an automatic exemption.
§ Mr. Cole
I have listened to what my right hon. Friend has said with great respect, but is it really true? It comes under Clause 7(3). It means that automatically, at the end of two years, it must come up for review. Surely the whole thing then starts again. I am not talking about material changes, but about the application of the gateways under Clause 5.
§ Mr. Heath
With respect, that is the point that I am making. It cannot start again, because it did not start in the first place; there was an automatic exemption. There can be no circumstances for review by the Court, because no circumstances have been put before the Court. This is the fundamental problem which the new formulation of the Clause fails to meet. We have, therefore, had to find other ways of dealing with the question.
The new Clause recognises this difficulty, because it provides for a review not of the order but of the decision on which it was based, namely, the decision under the 1956 Act. Again, the problem is that under the Bill we cannot have a review of a decision which has been taken under another Act. This is the second aspect of the problem with which we have to deal in trying to find a solution.
I hope that I have explained to my hon. Friend the fundamental difficulty with which we have been faced in trying to find a helpful solution to these three cases. I could not accept the Clause in any case, because it is limited to the net book agreement, and we were trying to find an arrangement which would deal with the three cases which were before the Court.
§ Mr. Paget
Surely the 1956 Act itself provides for a review, as the right hon. Gentleman has said. Is not that the answer to the objection that he has just put forward? The correct thing is not to proceed under the Bill while the 1956 Act ruling holds good; it is to apply for a review under the 1956 Act, if the Government no longer like it.
§ Mr. Heath
Not in the least, because the 1956 Act is concerned with collective price maintenance, as the right hon. Member for Battersea, North (Mr. Jay) rightly pointed out. In any case, to follow that procedure would be to take these items completely out of the sphere of the Bill, and that is not what was urged generally in Committee—nor do I think that it is the wish of the House that that should be so. If it had been so, no doubt these items would have been put forward for complete exemption when we were discussing Clause 1. The solution put forward by the hon. 263 and learned Member does not meet the case.
§ Mr. Paget
I am sorry to intervene again, but this is an extremely important point. Surely we cannot have collective price maintenance without resale price maintenance. Those two must go together. Therefore, if we are to upset a decision which has been made, which is that it is in the public interest that there should be collective price maintenance, the way to do it is under the 1956 Act, which provides for the review of what I would call the governing decision, which the net book people have got. It is not to introduce entirely new litigation and put all these people in peril again.
§ 5.15 p.m.
§ Mr. Heath
The hon. and learned Gentleman is restating his fundamental objection to the Bill. I recognise that. But as the House is dealing with the Bill I suggest that he must accommodate these circumstances to the Bill.
We are now trying to find the best way to deal with the situation. I have, therefore, put down two Amendments. The first—Amendment No. 29, in Clause 5, page 5, line 39—provides that any finding of fact in the proceedings under the 1956 Act is to be treated as conclusive in any exemption proceedings unless there has been a material change in the relevant circumstances. The second—Amendment No. 47, in Clause 8, page 8, line 20—enables the parties to get their costs paid if they are successful. Coupled with it, from the point of view of the consideration of these items, is the new gateway on prices—contained in an Amendment which we shall consider later—which is based on the language used by the Court which exempted the net book agreement, and which was to the effect that there should be a rise in prices in general and in the long run.
That was the language specifically used by the Court as its reason for exempting the net book agreement, in respect of individual resale price maintenance. If the House accepts this gateway all three reasons put forward by the Court for exempting the net book agreement will be included in the gateways under the Bill.
264 When my hon. Friends are considering these points I hope that they will look at the three aspects of the Bill—first, the fact that the evidence is to be treated as conclusive in the exemption proceedings unless there has been a material change; secondly, the fact that the parties will get their costs paid if they are successful, and, thirdly, the change in respect of the gateway relating to prices. These Amendments are designed to save the parties trouble and expense. At the same time, they will enable decisions to be made on the merits of the case. This is essential if the review procedure is to operate at a later stage, if there is a material change of circumstances later on and the Court agrees that a case should be brought forward for review.
§ Mr. Maxwell-Hyslop
I am not sure whether this exhausts my right hon. Friend's comments on Amendment No. 47.
§ Mr. Heath
A number of points have been raised by my hon. Friends and other Members in these debates, and perhaps I ought to say something in more detail about Amendment No. 29, dealing with evidence. It means that the suppliers will still go through the normal procedure under the Bill for seeking exemption, but that in those proceedings they will not have to prove the facts which they have already put before the Court under the 1956 Act. I was asked by my hon. Friend the Member for Langstone to give an assurance about saving time, and so on. I am in no doubt that the Amendment will be in the interests of the Court as well as of the parties, because it will save time.
Secondly, the Amendment is not limited to cases where proceedings under the 1956 Act are taken before the Bill becomes law. Even after the Bill comes into operation suppliers of goods which enjoy temporary exemption may be parties to proceedings under the 1956 Act in which the issue of resale price maintenance is involved. In such a case, when a subsequent reference is made to 265 the Court under the Bill, the provisions of the Amendment would apply. This deals very much with the point raised by my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop) as well as by my hon. Friend the Member for Crosby (Mr. Graham Page) about the relationship between the 1956 Act and the Bill. The Amendment that I put down will deal with cases subsequent to the three that I have mentioned and I think also with a saving in time and expense.
The second Amendment in connection with this is purely consequential.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
I have sympathy with the Government's treatment of this problem and with Amendment No. 29. I do not desire to raise any unnecessary difficulties, but is it not a real difficulty that it may be the case that at the end of the proceedings under the 1956 Act it will not be known what are the findings of fact at which the Court has arrived. It is true that the judgment of the Court will in all likelihood reveal extensively the findings of fact by it on which it based its decision on the issue of public interest. In practice, however, it is also likely that the Court will not do that comprehensively, and at the very best it may often be a matter of doubt and difficulty to know what findings of fact have occurred.
§ Mr. Irvine
The right hon. Gentleman would surely agree with me that under this Measure the Court will in all likelihood often be differently constituted. I do not follow the point that it will be for the Court to know what in the other court were the findings of fact. I suggest that there is a real difficulty here which the right hon. Gentleman's latest comments do not meet.
§ Mr. Cole
If I understand the hon. and learned Gentleman opposite and my right hon. Friend, what we are talking about is the statement on the findings of 266 fact, and I do not know that the Court would do that, particularly when the application of the appellant was ruled out as not being in the public interest.
§ On the question of costs—
§ Mr. Paget rose—
§ Mr. Paget
I apologise for interrupting the right hon. Gentleman again, but it is a highly important point with which we are trying to deal. In a case where the applicant is unsuccessful under the 1956 Act there may, and undoubtedly will, be a number of findings of fact. Those findings of fact might or might not be relevant either for or against an application under the Bill. Just how do we ascertain what they were?
§ Mr. Heath
I am advised that they can be ascertained by looking at the judgment of the Court, which the Court is fully entitled to do. It does not seem to me to present any difficulties.
On the third Amendment, the one dealing with costs, I know—indeed, I said as much in Committee—that the publishers in particular and others have spent considerable sums in defending their agreement before the Court. It was represented to us that we should go further than under the Bill to meet the expenses incurred. Therefore, I have put down this Amendment which will enable them, where successful, to have costs granted when the application comes before the Court for the first time and not only for the second time on review.
The hon. Lady the Member for Flint, East (Mrs. White) asked whether it would include the costs of preparation. I am advised that that would be the case and that these costs could be taken into account by the Court in granting costs in these cases. Therefore, I hope that this will reassure her on that point.
Two points were raised by my hon. Friend the Member for Crosby and by the hon. Member for Huddersfield, West (Mr. Wade) which can, I think, be dealt 267 with under the rules of the Court. I think that that would be the best way of dealing with the matter and I will see that they are taken into account when the rules are being drafted. My hon. Friend the Member for Bedfordshire, South, thought that the Amendments which I had put down were smacking of retrospection. I do not think that there is any question of retrospective action about this. We have ben trying to arrange that these matters should come before the Court in order to get the review and should be dealt with with the minimum expenditure of time and money. There is no question of granting retrospection.
§ Mr. Heath
I see the special sense in which my hon. Friend is using the word "retrospection". This returns to the point made by the right hon. Member for Battersea, North.
Then the hon. and learned Member for Northampton (Mr. Paget) and the hon. Member for East Ham, South (Mr. Oram) took opposing views as to which was the best method of dealing with this and which was the best approach. I hope that I have been able to show the House that we have approached this matter with much understanding and sympathy in order to obtain the objectives.
Because of the difficulty of having two separate Acts in the matter, and having to make provision for review, we could not adopt the procedure suggested in the new Clause. We have gone a very long way to meet the special and particular cases by the three Amendments which I have put on the Notice Paper and also by the additional gateway on prices based on the net book agreement judgment which we are to debate later. I hope, therefore, that the House will feel that commensurate with the general principles of the Bill we have gone as far as possible to meet the particular circumstances of these cases.
§ Mr. Maxwell-Hyslop
Before my right hon. Friend sits down, I should like to out this to him. I understand that the 268 actual rules governing the award of costs will be made by the Registrar rather than by an Order in Council. Will the Registrar in making those rules be under the direction of my right hon. Friend, or will there be no power at all in the hands of the House of Commons to control the rules which the Registrar makes? I think that it is most desirable that we should know that in view of the assurance that my right hon. Friend has given to the House.
Under the Restrictive Trade Practices Act the only costs which could be awarded—
§ Mr. Deputy-Speaker (Sir William Anstruther-Gray)
Order. I hope that the hon. Member will bear in mind that he is only entitled to make one speech. A short question is in order, but not a second speech.
§ Mr. Maxwell-Hyslop
Yes, Mr. Deputy-Speaker, but as my right hon. Friend was about to sit down I wanted to make sure how tight was the restriction under the 1956 Act concerning costs that could be awarded and to inquire whether he had power to see that the Registrar carried out the recommendation which he had given to the House.
§ Mr. Heath
I understand that the rules are not drawn by the Registrar. Of course, the arrangements for costs are set out in the Bill. The rules are not brought before Parliament in the normal way, but I will see that these two points and the one which my hon. Friend has mentioned on costs are taken fully into account.
§ 5.30 p.m.
§ Mr. Michael Foot (Ebbw Vale)
I decided to wait for the speech of the right hon. Gentleman to see whether I should be enlightened and whether it would be superfluous for me to speak at all. I am not sure whether I have been encouraged to repeat that experiment by what he has said. I tried to follow carefully the result of the decisions he has made.
It would be quite wrong not to acknowledge that if we take the three Amendments to which the right hon. Gentleman has referred together, including the most important of all—which I think is the widening of the gateway, or the addition of an extra 269 gateway which can affect the net book agreement particularly—it would be quite wrong not to acknowledge that they add up to a concession. It is a concession of importance, and I think that would be acknowledged by hon. Members on both sides of the House. Therefore, what we are discussing in respect of these Amendments is a mitigation of the severity of the Bill, which is bound to be accepted in that sense by those who have been critical of the doctrinaire nature of the Bill—of applying the principle of the need for abolishing resale price maintenance over the whole field. So I certainly welcome this concession.
I do not think, however, that we should exaggerate the concession, not merely because we have no need to, but because it would be wrong to mislead people about the procedure which they will have to follow. I do not think that the right hon. Gentleman was at his happiest when replying to the questions put to him by my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) and by my hon. and learned Friend the Member for Northampton (Mr. Paget) about how a court would decide on which facts were to be excluded or not, or about which facts had been decided. We all know how successfully the right hon. Gentleman can manage this House, but I do not think that he knew the answer. No doubt he will try to find out more detail regarding the precise answer to the question, but I do not think he explained to the House how it would be decided which were the facts on which the Court had already made up its mind and which were not to be taken into account under the new procedure. If the right hon. Gentleman is doubtful about the answer to the questions from my hon. Friends, it throws doubt on the whole conception, because we are uncertain of what are the facts on which Amendment No. 29 is proposed by the right hon. Gentleman and to what extent that is a concession.
With respect to the right hon. Gentleman, I do not think he could answer the question put by my hon. and learned Friends. My hon. and learned Friend the Member for Northampton asked how a new court which had to decide under the provisions of this new Measure 270 could make up its mind which facts had been accepted by another court under another procedure. I do not think that has been explained. I hope that the Attorney-General will assist us in this matter and explain exactly what is the point and exactly what is the nature of the concession which the right hon. Gentleman claims that he is making in respect of Amendment No. 29.
That is what I meant when I said at the beginning of my remarks that I was not sure whether the right hon. Gentleman had enlightened me. His Amendment appeared more attractive before he spoke than afterwards. Before he spoke, I thought that he was carrying out the intention—I am sure that he was trying to do so as honestly as he could—which he announced to hon. Members during the Committee stage discussions. After he had spoken, I thought we were pretty well back to "square one". Therefore, we need the assistance of the Attorney-General to extricate us from the humiliating position to which we have been returned. The more the right hon. Gentleman attacked the Amendment moved by his hon. Friend the more attractive the Amendment appeared to me. What were the two counts which the right hon. Gentleman made against the Amendment, or the two main counts against it? His first charge was that while the net book agreement would get through under the terms of the Amendment moved by his hon. Friend, the cement and metal window industries might not be able to do so. That does not appear to me the most damning objection to that Amendment.
We have had the argument before, but it is perfectly proper that this House, a Minister or anyone else, should say that books should be treated differently from other forms of wording, that the printed word should be treated differently, as it affects the whole question of free speech, debate and argument throughout the land. With respect to the cement makers and those who make metal windows, I do not think they are in the same line of business. Therefore, it is perfectly proper to try to draw a distinction. The right hon. Gentleman said that the Amendment has the demerit that it would let through only the book agreement. But 271 that does not seem to me an overwhelming argument against that Amendment.
His second objection is even less powerful. He says that under the procedure laid down in the Amendment the publishers—since they are the only people who would be able to get through—would have an automatic exemption. I do not object to that either. I do not think that there is anything wrong with it. My right hon. Friend the Member for Battersea, North (Mr. Jay) thought that it would be unjust to treat those who are to come before the Court later differently from those who have had the advantage—as it would be if they could get through under the terms of this Amendment—of appearing before the Restrictive Practices Court earlier. I think that the injustice is the other way round. It is those who have appeared before the Court and had to pay all the money to present their case—and who won in that Court—who will have to go through a second trial, as it is. Even though the right hon. Gentleman proposes to meet some of their costs, I think it has been proved conclusively that he will by no means be meeting all of the costs. It seems to me, therefore, an injustice which is imposed upon—as it happens, and as we understand under the operations of this Amendment—the one trade, the publishing trade. Therefore, from the right hon. Gentleman's own argument I cannot see why he should not accept his hon. Friend's Amendment. He could have had his own Amendment as well. As I understand it, they would not conflict.
According to what the right hon. Gentleman has himself said, if we voted for the Amendment the only trade which would have the possibility of getting through would be the net book agreement. Therefore, we should be voting whether we wish to see the automatic exemption of the book trade from the provisions of this Bill. I should be happy to vote for that, and I think every hon. Member would be happy to do so. As I understand the right hon. Gentleman, it is his intention to try to ensure that the net book agreement shall go through, as it went through before. He wants that, too. So 272 why do not we do so by voting for the Amendment? There are no other major objections to it. The Bill would be made slightly more untidy, but if we can do a good service in the cause of freedom at the expense of a little untidiness, who cares?
§ Mr. Heath
If the hon. Gentleman wishes completely to exempt books on the grounds which he has stated, because they are something completely separate, I suggest that he should have put down an Amendment to Clause 1 of the Bill designed to exempt books and had that Amendment carried; but he did not do so. In these Amendments I am dealing with cases, exempt under the 1956 Act, which came before the Court on a previous occasion. The Amendments which I have put down go as far as it is possible to meet that case commensurate with this being reviewable, which seemed to be the view of the Committee at the time. The view was taken generally by the Committee, that these cases were not to have permanent exemption but should be subject to the normal review procedure. Commensurate with that, we have been as ingenious as we could to meet the case.
§ Mr. Foot
The right hon. Gentleman has no doubt been ingenious. The question is whether he has been right or even wise on the question of making the net book agreement reviewable. My hon. and learned Friend the Member for Northampton asked that question. Under the Restrictive Practices Act it would be reviewable. If we voted for the Amendment we should not be voting to say that never must the book trade prove its case.
§ Mr. Foot
The agreement gone through would be reviewable. The essential part is which of the parts are established.
I accept the reproof of the right hon. Gentleman. I did not put down an Amendment to exclude the book trade altogether. I shall learn better from his strictures. I must be more assiduous in dealing with Bills introduced by the right hon. Gentleman. We shall have 273 to put down more Amendments and examine his methods with greater thoroughness. It will be marked down to my discredit to the day of judgment that I did not put down an Amendment against the right hon. Gentleman's first Clause, but I might manage to get through on that auspicious day by saying that I tried to remedy the matter on Report stage. That is what we are trying to do here and now.
Therefore, the right hon. Gentleman should apply himself to the merits of the argument which, on his own showing, are these: if we vote for this Amendment, we shall have achieved a good deed in a naughty Bill. We shall have excluded books from the operation of the Bill. So far as I can see, on the right hon. Gentleman's own statement, that would be the only result of voting for his Amendment, except to gratify his hon. Friends. The right hon. Gentleman should not be so spiteful to his back benchers. When they propose an Amendment which does something good and which does not do injury to the rest of his Bill, he should be more gracious in accepting what they propose.
I think that the wisest course for the House to take would be to accept this Amendment. I agree that it introduces an anomaly into the Bill, but an anomaly which achieves a good purpose. The Bill is not such a marvellous piece of draftsmanship as all that; it is not something that by touching it one will spoil a wonderful mosaic. It was a pretty good hotchpotch even when taken out of the pigeon hole in the first place. It has had to be rushed through and hacked about in all manner of places which I will not list now, and all that we are suggesting is that we should take a simple measure here for excluding the book trade from its operation.
If we do not do so, as I have said, we shall have the advantage at any rate that the right hon. Gentleman's Amendment will have improved the Bill, but we shall be left with two difficulties, affecting particularly what I would describe as not the most important trade in the country but as one of the most important, and one without which the whole spiritual life of this country would be debased.
274 We are left with the situation that if we merely accept the Amendments of the right hon. Gentleman, even though they are improvements, we are left with the fact that the publishing trade will still have to spend a considerable amount of money in presenting its case afresh to the Court, and when it comes to state its case, if the lawyers advising the publishing industry study the speech delivered by the right hon. Gentleman today, they will not be able to tell their clients what they have to prove and what they have not to prove.
On the basis of clearing up exactly what the right hon. Gentleman intended to say, the Attorney-General should give us an explanation now, or I suppose that the Lord Chancellor could explain the matter in another place, although I would rather our business was conducted in this place. I hope that the Attorney-General will clear up that point, which, I think, everyone on both sides of the House will agree was left in a most uncertain state by the right hon. Gentleman. I am not criticising him severely from that point of view—he has had worse messes to clear up in the Bill than that one. Here we are only criticising him for three Amendments., which are trying to do some good and to mitigate some of the original effects of the Bill, and in that sense we congratulate the right hon. Gentleman, but we cannot understand why he did not take the even simpler course of agreeing to the excellent proposition put forward by his own back benchers.
§ 5.45 p.m.
§ Mr. R. E. Winterbottom (Sheffield, Brightside)
When the right hon. Gentleman rose to answer the problems put to him, I believed completely in the Amendments which had been put down by the Government. I questioned this new Clause, but until the right hon. Gentleman joined issue with my right hon. and learned Friend the Member for Northampton (Mr. Paget) I was fairly clear in my mind that I was in support of the Government on these three issues. It was when the right hon. Gentleman explained to us what would happen as a result of the decisions of the Restrictive Practices Court under the 1956 Act that doubt arose in my 275 mind, and I should like to have some clarification of the issue.
As I understand it, under the 1956 Act the reference to the Court is for the collective agreement. Also, as I understand it, subject to correction by the Attorney-General, the facts on which the Restrictive Practices Court bases its decisions need not be issued but only the decision itself. The right hon. Gentleman said, in effect, that the decision under the 1956 Act of the Restrictive Practices Court would be accepted for the purposes of this Bill. That is to say the fact that a decision had been given in terms of the collective agreement would be sufficient for the purposes of the Bill.
That means that one court must have blind confidence in the decision of another court. If that is so, there is something wrong somewhere. Under this Bill, we are dealing with individual cases as distinct from collective agreements dealt with under the 1956 Act. Because of that, there may be differences in the submissions to the Restrictive Practices Court as between collective agreements and those provided for in the Bill. Some information is due to the House why the right hon. Gentleman is accepting that the decision of one court shall be binding on another court, even though it is under another Measure and for a different purpose, under entirely different circumstances.
That is the only puzzle in my mind at present. Apart from that, I was heartily in sympathy with what the Government were doing. I thought that the right hon. Gentleman had carried out his pledge to the Committee. It is only this matter of uncertainty of interpretation under the 1956 Act that gives me cause for worry.
§ Mr. Harold Lever (Manchester, Cheetham)
My hon. Friend the Member for Brightside (Mr. Winterbottom) was more concerned with the people who will have, or may have, to fight their case again, and he made out a very persuasive case against the injustice involved in trying some one already tried and acquitted of the new crime of monopolistic practice or price maintenance—
§ Mr. Peter Emery (Reading)
It would be quite wrong if the hon. Member were 276 to begin by suggesting that this is a crime. It is not a crime, and that should be made quite plain in the Bill. It is quite wrong at this stage this we should be talking of this as being a crime.
§ Mr. Lever
I was using the word "crime" in a more popular sense than the books of law would use. It is treated as being against public interest, and that is something to be reprobated. I did not mean anything that we could put a man in gaol for. We could only ruin him for any offence against the Bill. We can take away his business, we can take away his assets, we can sue him for unlimited sums of money if he is in breach of any of the Clauses and some one manages to persuade the Court that great damage has resulted from that.
However, I accept the correction that, so far, even this Government have not had the courage in their demagogic exuberance as a pre-election manœuvre to brand as criminals people who try to manage their business in the time-honoured way respected by Governments of every political complexion for long enough. I must confess at once that this Government have not branded those people as actual criminals. They do not threaten them with goal—merely with ruin. If I have been guilty of any hyperbolic use of language, I apologise to the House and to the hon. Member.
I confess that I have not heard the whole of the debate, so I do not want to traverse a matter that has been adequately dealt with, but I am greatly troubled about the Amendment which reads:(2A) On a reference under this section in respect of goods of any class which have been the subject of proceedings in the Court under Part I of the Restrictive Trade Practices Act 1956 the Court may treat as conclusive, against any person who was party to the proceedings under the said Part I, any finding of fact made in those proceedings, and shall do so unless prima facie evidence is given of a material change in the relevant circumstances since those proceedings.The Minister was asked how we were to know what were the findings of fact. He breezily and briskly replied that to get the facts we only had to read the judgment. I am astonished that any one with his training should so lightly attempt to pass off the very serious difficulty that arises in this drafting.
All lawyers who have had experience in the courts in trying to analyse the 277 judgments of learned judges and discover what they meant have always had the greatest difficulty in deciding what were findings of law and what were findings of fact. Does this provision mean that findings of fact, whether relevant to the final decision or not, will be binding on the party when the case comes to be reviewed again?
If the learned judge in giving judgment wandered, as learned judges tend to do, a little from what was directly material and what the parties thought was directly material, in order to animadvert somewhat irrelevantly to the proceedings, and no one bothered to contradict him, or argue with him, or adduce evidence to show that what he was uttering as firmly proved fact was merely idle speculation, does it mean that because of this loose wording what he says will be binding and conclusive against that party on another issue when it comes to be tried?
The law books are full of analyses, right up to the House of Lords—on workmen's compensation cases, for example, as to which findings of the learned judge's findings in the Court below were findings of fact. I do not know what we are supposed to make of this. Of course, we need not worry about this matter as much as we had to with workmen's compensation cases, because these issues can never go to appeal. I do not pretend to speak with any great authority here, but I understand that there is no appeal from the judge's decision. The Minister looks startled, and well he may—and if the public realised just how their rights were being whittled away they would look startled, too. Is it right that there is no appeal from the judgment of the Restrictive Practices Court? Perhaps the right hon. Gentleman will tell the House. He is obviously well versed on this. He does not come here with legislation without knowing the precise—
§ Mr. Heath
I am sure that I was not looking the least startled. It is well known that there is no appeal from the judgment of the Restrictive Practices Court. Perhaps I am better briefed on this than is the hon. Member, who has not been here and has been briefed by his hon. and learned Friend the Member for Northampton (Mr. Paget).
§ Mr. Lever
The Secretary of State is wrong. I came here to exercise my rights 278 as a Member of this House without any briefing from my hon. and learned Friend. The right answer to an argument is a better one—not an attempt to discredit the argument put forward against the Secretary of State by attempting to say that I was a little late in arriving. It is a rather startling development in our debates that the Minister does not seek to answer the argument but says that the man who makes the argument did not have the benefit of hearing the Minister speaking.
As to his statement that it is well known that there is no appeal, it is perfectly obvious to hon. Members that that became well known to the Secretary of State only about three minutes ago in a discussion with his right hon. and learned Friend the Attorney-General—
§ Mr. Lever
A very serious evil is the Government's constant application to High Court judges on political questions, and that is nowhere worse than here, where there is an attempt to fix things for a long time without allowing parties to reopen the question, even though the facts found against the parties were found in a different kind of proceedings where, perhaps, different issues were involved and where the parties were not so concerned to controvert the facts as they would be if the facts were found under this Bill.
There are two evil features in this Amendment. One is that it makes findings of fact conclusive, and we are nowhere told how those findings of fact are to be adduced from lengthy judgments. There is no proper attention given to analysing which findings of facts are to be conclusive. Does the Secretary of State say that any finding of fact is conclusive whether it is relevant or irrelevant to the previous hearing? The Secretary of State laughs as though it were totally unknown for a learned judge to find a fact which was not directly relevant to the proceedings in question. Are those findings of fact conclusive? Judging by the wording of the Amendment, it would look as though those findings of fact were conclusive, too.
279 It seems that by the Secretary of State's Amendment we have typified all the worst evils of the Bill. We have matter that is political matter referred to a High Court judge to be decided as a question of fact. That is bad enough. I think that it was a French writer who once said that if the Almighty spoke he would speak with the words and in the tone of an English High Court judge, though I must confess that the French commentator who alleged that was of another century than this. But the Secretary of State and the Government seemed to be willing to pretend to share that view.
When the High Court judge has spoken, be it relevant or not, be it regarded by the party affected on a totally different issue as vital to them at that time to controvert or not, it will be conclusive against those parties in any future proceedings. This is a great evil, and it typifies the way in which the Bill has been brought before the House of Commons.
It is absolutely wrong that matters affecting the fundamental rights, not the actual liberty of the subject but the freedom of the subject to carry on in the business and to remain in possession of his assets and trade practices, and the position of the subject in relation to any litigation brought because of the Bill, is made dependent upon legislation hastily got together, ill-conceived and ill-defined.
Even now I ask the Secretary of State to try to tell the House, and if he cannot to promise that he will think about tightening the wording to make it clear, how we are to ascertain from previous judgments of the Court what are the findings of fact which will be conclusive at future hearings and how we shall separate irrelevant commentary from findings of fact which are conclusive. Be it noted also that the learned judges whose findings of fact are to be conclusive were not appealable and did not know when they were finding these facts that each fact was a sacred finding, binding upon all future hearings under this Bill and affecting greatly the interests of the parties concerned. It is deplorable that the Amendment in the name of the Secretary of State should appear 280 in this unfair, ambigious and unsatisfactory way.
§ Mr. J. J. Mendelson (Penistone)
I was one of those many hon. Members who saw a good deal of merit in the Government Amendments, and I started out with no bias against them, but I have become more doubtful about their value during the speech of the Secretary of State. I am not so much concerned with the uncertainty which he showed on one or two occasions when he was interrupted. I am much more concerned with the two serious gaps in knowledge with which the right hon. Gentleman left us at the end of his speech.
I join with my hon. Friend the Member for Ebbw Vale (Mr. M. Foot) in saying that where it is revealed that in the opinion of the Secretary of State acceptance of a new Clause would only affect the book trade, and there is a presumption of sympathy towards that trade on the ground of public importance both on the part of the Secretary of State and hon. Members, the attitude of the Secretary of State is difficult to explain. I did not realise on studying the new Clause originally that it would apply only to the book trade and not to any of the other trades which hon. Members had in mind on Second Reading and in Committee, but I accept the case which the right hon. Gentleman has made.
The right hon. Gentleman is right on the analysis which he has given. The case is convincing. It will only affect the book trade. That being so, I cannot see why that should not affect the right hon. Gentleman's mind. I cannot understand, given the presumption of sympathy in favour of the book trade which is regarded as separate and rather different from other kinds of trade, why the right hon. Gentleman does not say, "All right, having discovered conclusively that the Clause will affect only the book trade, I accept it and will do my best to implement the principle in it."
There is another and equally important point which has been raised by a number of hon. Members. It concerns the answer which the right hon. Gentleman gave when he was questioned first by my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) and then by my hon. and learned Friend the Member for 281 Northampton (Mr. Paget) as to the body of fact which will be available from past decisions under previous legislation. The difficulty in which the right hon. Gentleman finds himself is real. Anybody who knows about these decisions knows that there are a number of findings but there is uncertainty about the number of facts which will be normally available to be adduced under Amendment 29 when a new decision is taken. The House has the right to expect that when the right hon. Gentleman puts down an Amendment of this kind there should be available from the Treasury a full and clear answer to the questions put by my hon. and learned Friend the Member for Edge Hill, but such an answer was not forthcoming.
Thirdly, I can well understand, and I think that my hon. Friends who have spoken on the new Clause have pointed out, that there are some difficulties over the new Clause No. 1. I can understand that the Secretary of State may not like to add to the Gothic structure of his Bill the baroque amendment which the new Clause might introduce. If he is unfavourably inclined to accept it in its present form, there is time for a Parliamentary remedy to the situation. If he accepts the argument but dislikes the style and structure of the Clause, all he has to say is that he will appoint himself architect and bring it forward in another place to his satisfaction but embodying the principle of the Clause which will still only affect the book trade.
The Secretary of State ought to add something to the debate even after the legal enlightenment which we may receive from the Attorney-General, because there are also involved in this matter the important principles affecting the book trade which were so ably advanced by my hon. Friend the Member for Ebbw Vale. We are bound to demand explanations on these three questions before we can make up our minds how to treat the new Clause.
§ The Attorney-General (Sir John Hobson)
Perhaps I could assist the House with a few words on the subject raised by a number of hon. Members opposite about the effect of Amendment 29 on the question of how and in what circumstances findings of fact made by 282 the Restrictive Practices Court in a decision given under the 1956 Act will be or may be treated as conclusive for purposes of litigation under the present Bill.
There can be only one method of discovering the previous findings of fact by the Restrictive Practices Court, and that must be from the judgments of the Court. They are all recorded in the reports of the Court. The one in which the hon. Member for Ebbw Vale (Mr. M. Foot) is most interested is the net book agreement judgment. The judgment alone in that case occupies 31 pages. If there is doubt about what is and what is not a finding of fact to be found from that judgment, it would be perfectly proper for the Court to look at the pleadings, which would be records of the same Court, to see what issues of fact emerged in relation to which the Court gave a decision on a previous occasion.
The hon. Member for Manchester, Cheetham (Mr. H. Lever) spoke about judges occasionally dropping irrelevancies and said that one might find oneself bound by obiter dicta. There is no indication that the Court is much given to such disquisitions, but if they are to be found they would not be findings of fact in those proceedings. It would be clear that they had nothing whatever to do with the issues and were not made in the course of the case.
The position is not unusual that as between the same parties—because one can only treat a finding of fact under the Bill as conclusive against a person who was a party under a previous decision—the matter has become res judicata by the same court considering its previous judgment, even if the court was then differently composed. Whilst questions may from time to time arise as to findings of fact and questions of law, this is inevitable if we are to look at the previous findings in order to avoid re-litigating questions previously litigated.
I should have thought that substantially what were questions of fact and what questions of fact were decided by a previous Court could be easily determined by looking at the judgment plus the pleadings.
§ Question put and negatived.