Clause 3 (Hansard, 27 June 1968)

§ Mr. Dell
I beg to move Amendment No. 8, in page 3, line 28, at end insert: (2) In the case of an order under section 1 of this Act approving a recommendation made by or on behalf of a trade association, the requirement of subsection (4) of that section as to the giving of notice of intention to revoke the order shall be treated as a requirement to give such notice as is there mentioned to the association; and any notice under that subsection which is required to be given to a trade association or to each of the members of a trade association shall be treated as duly so given if it is given either to the association or to the secretary, manager or other similar officer of the asociation. The Amendment is linked with Amendment No. 4. It clarifies the position about giving notice of intention to revoke an 927 order under Clause 1 in relation to trade association recommendations and agreements to which a trade association is party. Its effect is to require the Board of Trade to give notice to the association, or to its secretary or manager, or to a similar officer of the association, and to make it clear that it does not have to give notice to all the individual members of the association. Membership of some trade associations runs into hundreds.
I hope that hon. Members will agree that it would be unreasonable to expect the Board of Trade to give individual notice to members of an association. The Amendment will avoid any danger that a failure to give notice to an individual member of an association, of whose membership the Board may not be aware, would invalidate the notice.

§ Mr. Hall-Davis
The Amendment is designed to relieve Government Departments of a burdensome administrative chore. Perhaps that is rather colloquial language, but it expresses the intention. The trade associations to which the Minister of State referred represented strongly to us that they were weighed down by a burdensome administrative chore when it came to registering agreements. The hon. Gentleman said in Committee that Clause 8 contains the power to make provisions for the operation of the Bill, when enacted.
The Government having felt that there is great benefit to them from moving the Amendment, I hope that those responsible for administering the Act will realise that exactly the same considerations apply to trade associations when they are confronted with their obligations in administering the Act. The Government's very creditable intention in tabling the Amendment is a reinforcement of the reasonableness of the plea by trade associations that some reasonable administrative provisions should be made.

§ The Solicitor-General (Sir Arthur Irvine)
I beg to move Amendment No. 9, in page 4, line 14, at end insert: (6) No order made by the Court in proceedings under Part I of the Act of 1956 for restraining any person from making an agreement or recommendation, and no corresponding undertaking given to the Court in such proceedings, shall be construed as extending 928 to an agreement or recommendation which is exempt from registration by virtue of an order under section 1 or section 2 of this Act The purpose of the Amendment is to ensure that the intended parties to any proposed agreement exempted by the Board of Trade under Clause 1, or by the Board or a competent authority under Clause 2, can make and carry out that agreement without fear of contempt proceedings, even though they may be subject to an Order of the Restrictive Practices Court precluding them from making any further agreement to the like effect as an agreement previously condemned by the Court.
The Amendment achieves this object by declaring that no order of the court under Part I of the Restrictive Trade Practices Act, 1956, shall be construed as extending to any agreement exempted under Clause 1 or Clause 2. This matter arises because, where the court declares all or any of the restrictions in an agreement to be contrary to the public interest on a reference by the Registrar under Section 20 of the 1956 Act, the court usually makes an order against the parties to the agreement or secures an undertaking from them which precludes them from making any further agreement to the like effect. Breach of the order or undertaking constitutes contempt of court.
Nothing in Clause 1 or Clause 2 inhibits the Board of Trade—or, in the case of Clause 2, any other competent authority—from making an exemption order in relation to a proposed agreement even though one of the intended parties is bound by a court order.
In Committee, my hon. Friend was asked what would be the position of persons who might wish to make an agreement which was or could be exempted under Clause 1 or Clause 2 but which might be regarded as being to the like effect as a previous agreement to which they were party and which had been condemned by the court. Such persons will normally have given an undertaking to the court or been subject to an order of the court requiring them not to make any further agreement to the like effect. They may well feel that to make the further agreement might lead to the institution of contempt proceedings against them even though it was the subject of an exemption order under Clause 1 or Clause 2.
929 The Amendment is proposed to meet that difficulty. We have given careful thought to it. The Amendment is designed to cover this situation by ensuring that the making of the further agreement cannot be regarded as a contravention of any court order made against such a person. The Amendment achieves this purpose by declaring that no court order or corresponding undertaking shall be construed as extending to an agreement exempted under Clause 1 or Clause 2.
I should make clear to the House in this connection that it may be the case, and in my opinion it probably is, that the Amendment is technically unnecessary, because the reference in Section 20 of the 1956 Act to any other agreement to the like effect should be construed as referring to any other registrable agreement, and under Clause 1 and Clause 2 of the Bill exempted agreements are by definition not registrable. Hon. Members will see that the whole construction of Section 20 is on the basis that it is dealing with registered agreements. In the language employed, there is first a reference to registered agreements and then, in later parts of the Section, a reference to agreements. These latter agreements, I feel fairly confident, must be regarded on a true construction of the Section as either registered or registrable agreements.
If that view be right, the Amendment may well be unnecessary. But this seems to us to be one of those instances in which it is right and desirable in the general interest to put the matter beyond doubt. That is what the Amendment seeks to do. If I felt that there was in the slightest degree in the proposal any unwarranted encroachment on the order made by the court I should think it right to make that view clear to the House and warn the House about it. But my assessment is that there is no question of any difficulty of that kind, and I recommend the Amendment to the House.

§ Mr. Hall-Davis
In many respects the Bill is highly technical, certainly to the layman. Whilst we disagree with the Government on some aspects, the Board of Trade has been most helpful to those of us concerned with considering the Bill on questions of technical clarification. I said not long before the Report 930 stage was due to start that I hoped that the Minister would be able to continue the technical explanations that reduce discussion by dealing fully with the matters under consideration. I did not expect that this would be done to such effect that we should have the opportunity of hearing the Solicitor-General on the Clause. I thank him for his very full explanation.
A number of people feel that they may be in this situation, and this is a matter of considerable interest to them. It was for that reason that the question was raised in Committee. I am sure that they will find both the Amendment and the remarks about it by the Solicitor-General very helpful in clarifying the position.