New Clause C

HC Deb 13 June 1968 vol 766 cc566-70

MODIFICATION OF RESTRICTIVE TRADE PRACTICES ACT 1956 IN RELATION TO AGRICULTURAL MARKETING BOARDS

Lords Amendment No. 30: After Clause 43, in page 38, line 39, at end insert new Clause "C": C.—(1) For the purposes of the Restrictive Trade Practices Act 1956, the definition of "trade association" in section 6(8) of that Act shall not include, and shall be deemed never to have included, a board within the meaning of this section. (2) Where a board enter into an agreement on or after the commencement date in the exercise only of such powers as are mentioned in subsection (1) of section 20 of the Agricultural Marketing Act 1958 (which section provides, amongst other things, that certain of a board's powers with respect to products must be exercised in accordance with any directions given by the Minister for the purpose of safeguarding the public interest) or of such powers as are mentioned in section 36 of that Act (under which a board are empowered, subject to the directions of the Minister, to provide artificial insemination services), Part I of the said Act of 1956 shall not apply to the agreement if—

1. (a) the board have served notice of the terms of the agreement on the Minister before entering into it; and
2. (b) either the period of twenty-eight days beginning with the date of service of the board's notice on the Minister has expired and the Minister has not during that period served notice on the board that he objects to those terms for the purposes of this subsection or the Minister has served on the board during that period notice that he does not so object; and
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3. (c) the board have furnished a copy of the agreement to the Minister within the period of twenty-eight days beginning with the date on which they entered into it or within such longer period as the Minister may allow in any particular case.

(3)Where a board have entered into an agreement before the commencement date wholly or partly in the exercise of any of the powers mentioned in subsection (2) of this section and either the board served on the Minister, before they entered into the agreement, notice of its terms in pursuance of a requirement to do so contained in a scheme administered by them or the board furnish a copy of the agreement to the Minister within the eriod of three months beginning with the commencement date, Part I of the said Act of 1956 shall not apply to the agreement—

1. (a) subject to paragraph (c) below, as respects the period of fifteen months beginning with the commencement date;
2. (b) if during the said period of fifteen months or that period as previously extended under this paragraph the Minister serves notice on the board extending or further extending that period in relation to the agreement, then, subject to paragraph
3. (c) below, as respects the extended period;
4. (c) if during the said period or extended period the Minister serves notice on the board that he objects to the agreement for the purposes of this subsection, only as respects the period beginning with the commencement date and ending with the date of service of the notice;
5. (d) if during the said period or extended period the Minister serves notice on the board that he does not so object, as respects any period after the commencement date;
• and the said Part I shall, as respects any period before the commencement date, be deemed not to have applied to an agreement to which it does not apply by virtue of this subsection as respects a subsequent period.

(4)Subsections (2) and (3) of this section shall have effect in relation to a Northern Ireland board as if for any reference to the powers mentioned in subsection (2) of this section there were substituted a reference to the powers mentioned in subsection (1) of section 14 of the Agricultural Marketing Act (Northern Ireland) 1964 (which section corresponds to the said section 20). (5)Where by virtue of any of the provisions of subsections (2) to (4) of this section Part I of the said Act of 1956 does not apply, or does not apply or is deemed not to have applied as respects any period, to an agreement made between a board and a trade association within the meaning of section 6 of that Act, being an agreement as to the terms for other agreements between the board and persons who are members of the association or are represented thereon by such members, the said Part I shall not apply or, as the case may be, shall not apply or shall be deemed not to have applied as respects that period—

1. (a) to any such other agreement containing only terms contemplated by the agreement made between the board and the association;
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2. (b) to any agreement made between two or more of those persons of which the purpose is confined to promoting the agreements mentioned in paragraph (a) of this subsection or any of them.

(6)Nothing in this section shall be construed as derogating from the powers of the Minister to give directions at any time under the provisions of the said Acts of 1958 and 1964 which are mentioned in subsections (2) and (4) of this section. (7)In this section— agreement " means an agreement within the meaning of Part I of the Restrictive Trade Practices Act 1956 to which, apart from this section, the said Part I applies; board " means a board constituted by a scheme made or having effect as if made under the Agricultural Marketing Act 1958 and includes a Northern Ireland board; the commencement'date " means the date of the passing of this Act; the Minister", except in relation to a Northern Ireland board, has the same meaning as in the said Act of 1958 and, in relation to a Northern Ireland board, has the same meaning as in the Agricultural Marketing Act (Northern Ireland) 1964; and Northern Ireland board " means a board constituted by a scheme made or having effect as if made under the said Act of 1964; and for the purposes of subsection (2) of this section an agreement shall be treated as entered into by a board in the exercise only of the powers mentioned in that subsection, or that subsection as modified by subsection (4) of this section, notwithstanding that the agreement contains provisions entered into by the board in the exercise of other powers if the Minister is of opinion that those provisions are incidental provisions only.

Mr. Cledwyn Hughes

I beg to move, That this House doth agree with the Lords in the said Amendment.

Mr. Speaker

I suggest that it would be convenient if we also took Amendments Nos. 31, 33 and 34.

Mr. Hughes

As my noble Friend explained in another place, the purpose of this new clause is to clarify the position of agricultural marketing boards in relation to the Restrictive Trade Practices Act, 1956. Section 8(1) of that Act provides that any agreement " expressly authorised " by statute shall be exempt. Marketing boards have of course been set up under schemes approved by Parliament and provided with certain powers, including powers to make agreements, and it had therefore been thought that they were by virtue of that section, very largely at least, exempt. But it appears that this may not be so, because legal advice is that the word "expressly " must be interpreted in a rather narrow way.

Moreover, it appears that they may be held to be " trade associations" as defined in the Restrictive Trade Practices Act. This interpretation could make their life very difficult, because they have many agreements between themselves and individual producers, and if they are held to be trade associations each of these agreements (in so far as they contain restrictive terms) might be held to be registrable.

These, then, are the two problems which this clause is designed to deal with. It was essential to introduce it at this time because of the new Restrictive Trade Practices Bill, which had its second reading on 30th April. Clause 7 of that Bill makes unlawful the operation of any agreement which should have been registered but which has not been. Persons damaged by the operation of such an agreement will be able to seek civil remedies. The marketing boards must therefore know where they stand.

Subsection (1) provides that marketing boards shall be deemed not to be, nor ever to have been, trade associations for the purposes of the Restrictive Trade Practices Act.

The remainder of the clause deals with those agreements relating to the products regulated under the various marketing schemes which will not be exempted either by this new provision or else by the existing provisions of the Restrictive Trade Practices Act. Essentially these subsections provide the mechanism whereby boards will be able to come to the Minister with such agreements, so that he can consider them in the light of the provisions contained in the Agricultural Marketing Act for safeguarding the public interest and say whether he is prepared to exempt them or not. There is provision for dealing with new agreements made after this Bill becomes law, and also with existing agreements.

The Clause, together with the existing provisions of the Restrictive Trade Practices Act, should suffice to put the position of marketing boards beyond doubt. This is what we want to do. It will avoid the obvious difficulties which would arise if the activities of the marketing boards, which are already subject to the jurisdiction of the Minister under the Agricultural Marketing Act, were, in addition, subject to the jurisdiction of the Restrictive Trade Practices Court. It is, therefore, with complete confidence that I commend the new Clause to the House.

Mr. Godber

We are relieved to know that the Minister commends the new Clause with complete confidence. I wish that I could say with complete confidence that I understand every word of it. It is extremely complicated and while the right hon. Gentleman sought to explain it succinctly, it is still a difficult matter to grasp in relation to the problems that affect us.

I am sure that the right hon. Gentleman's intentions are honourable in this respect. I appreciate that in the past, even under existing legislation, the marketing boards have been acutely worried, to put it no higher, about some of the effects of the Restrictive Trade Practices Act on certain of their activities. There have been a number of cases about which they have felt that the perfectly legitimate purposes for which they were set up have in some respects been jeopardised by some of the legislation that has been passed.

If it is true that this Measure will tighten up the position still further, I agree that it is essential that the position should be clarified. The right hon. Gentleman assures us that the wording of the new Clause clarifies the position in a way which should satisfy the boards, and presumably they have had ample opportunity of considering the provision. As this was introduced in another place some weeks ago and as I have had no intimation or reason to believe that they are not so satisfied with it, my hon. Friends and I see no reason to disagree with the purposes which the Minister put forward.

Question put and agreed to.

Remaining Lords Amendments agreed to.—[Special Entries.]

Committee appointed to draw up a Reason to be assigned to the Lords for disagreeing to one of their Amendments to the Bill: Mr. Buchan, Mr. Godber, Mr. Cledwyn Hughes, Mr. Ross, and Mr. Stodart: Three to be the quorum.—[Mr. Ross.]

To withdraw immediately.

Reason for disagreeing to one of the-Lords Amendments reported, and agreed to; To be communicated to the Lords.