HL Deb 13 July 1948 vol 157 cc797-814

4.27 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Chorley.)

On Question, Motion agreed to.

House in Committee accordingly:

[The VISCOUNT MERSEY in the Chair.]

Clause 1:

Constitution of Commission.

1.—(1) For the purposes of this Act there shall be constituted a Commission, to be called the Monopoly Commission (in this Act referred to as "the Commission").

LORD CHORLEY moved, in subsection (1) to omit "Monopoly" and insert "Monopolies and Restrictive Practices." The noble Lord said: During the consideration of this Bill in another place there was a good deal of discussion about the Title. It was pointed out, with a good deal of force, that the object of the Bill is to deal, not only with monopolies but also with restrictive practices, which in some ways are perhaps more difficult and troublesome than monopolies. It was admitted by my right honourable friend that the Title was defective and he invited suggestions for improvement. I do not know whether it was because he did not offer a prize for the best suggestion, but no suggestions, were forthcoming. The Government themselves have put down this Amendment to include the words "restrictive practices." I beg to move.

Amendment moved—

Page 1, line 7, leave out ("Monopoly") and insert ("Monopolies and Restrictive Practices").—(Lord Chorley.)

VISCOUNT SAMUEL

As I raised this question on Committee stage, and suggested that there should be an alteration, perhaps I may be permitted to express my gratification that the Government are moving this Amendment.

LORD BALFOUR or INCHRYE

May I express the appreciation of the many noble Lords on this side and Members in another place who wished that this change should be made?

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Clauses 2 to 7 agreed to.

Clause 8:

Procedure and powers of Commission on references.

8.—(1) The procedure of the Commission in carrying out any investigation where a matter has been referred to them under the preceding provisions of this Act for investigation and report shall be such as the Commission may determine and in particular the Commission shall have power to determine the extent, if any, to which persons interested or claiming to be interested in the subject matter of the reference are allowed to be present or to be heard, either by themselves or by their representatives, or to cross-examine witnesses or otherwise take part in the investigation of the Commission, and the extent, if any, to which the sittings of the Commission are held in public.

(4) The Commission may pay to any person attending under this section to give evidence or producing documents thereunder such sums in respect of his expenses as they think fit.

4.29 p.m.

LORD CHORLEY moved to add to subsection (1): Provided that where any person appearing to the Commission to be substantially interested, or any body appearing to the Commission to represent substantial numbers of persons substantially interested, submits to the Commission any representations relating to the subject matter of the reference, the Commission shall consider those representations and shall, unless in all the circumstances they consider that it is not reasonably necessary or is not reasonably practicable so to do, permit that person or body to be heard orally by the Commission or by a member of the Commission nominated by the Commission for that purpose. The noble Lord said: This Amendment has also been put down in order to meet criticisms made during the passage of the Bill in another place. The clause deals with references and the procedure which the Commission will lay down for that purpose. It was suggested that the references were not sufficiently well defined. I do not think there is much danger of the Commission, which is going to be very carefully chosen, not being perfectly fair in all their arrangements. Obviously, they cannot be expected to hear everybody who can show some sort of interest. If they were making an inquiry into the tobacco industry, for the sake of argument, they could not be expected to listen to every tobacconist who might claim to come and make representations to them. On the other hand, there is clearly something to be said for substantial interests being entitled to a hearing on these occasions. We think that the Amendment as drafted is fair, in that it will secure that representations of substantial interests are considered, and that it also ensures that in a proper case there should be the right to an oral hearing. I beg to move.

Amendment moved—

Page 8, line 3, at end insert the said proviso.—(Lord Chorley.)

LORD BALFOUR OF INCHRYE

Broadly speaking, we think the Government have met the point by this Amendment.

On Question, Amendment agreed to.

LORD BALFOUR OF INCHRYE moved to add to subsection (4): and may also pay to any body corporate or uncorporated required to supply evidence or to be represented at a hearing under this section such sums in respect of the expenses incurred by that body as the Commission think fit. The noble Lord said: This Amendment is to provide that the Commission may, in certain circumstances, pay expenses incurred by a body corporate or uncorporate required to supply evidence or to be represented at a hearing in front of the Commission. One can visualise a set of circumstances where a body is brought in front of the Commission, and where the result of the investigation by the Commission shows that there was absolutely no case of restrictive practices to be made against the particular body which has been forced to appear. In proving that there is no case, the body may have incurred considerable expense. I know that this is a difficult question for the Government, because, unless one is careful, it opens up the avenue of expenditure in respect of appearances before Government bodies, such as Select Committees, and so on. I submit, however, that this case is somewhat different. This is a statutory body, set up under this Bill, and the principle of no refunding of expenses for appearance in front of a Government Select Committee is not being contravened. However rich or however great the organisation might be, it would not be right for that organisation to be put to unnecessary, and what is, in fact, unfair expenditure. We propose in this Amendment that the Commission should have complete discretion as to whether such an award of expenses should be made. We have tried to draft the Amendment so as to make it as acceptable as possible to the Government. I beg to move.

Amendment moved—

Page 8, line 40, at end insert the said words.—(Lord Balfour of Inchrye.)

VISCOUNT MAUGHAM

May I say one word in reference to this Amendment, to make clear what I, at any rate, want? If your Lordships look at subsection (3), (a) and (b), you will see that the Commission may require people to attend to give evidence, and may require them to produce any documents. As regards those two things, the Commission may under subsection (4), pay to those people such sums in respect of expenses as they think fit. But the draftsman has left out anything in respect of subsection (3) (c), which requires any person carrying on any trade, and so on, to furnish estimates, returns, or other information described in the notice, and specifies the time and manner in which those returns are to be furnished. It occurred to my noble friend who moved the Amendment and to myself that if elaborate returns and estimates of the business of a company which is worldwide in scope, and involves hundreds and thousands of pounds in money in different countries, is asked for, a staff of accountants or people of that sort may be required to work for a fortnight—to take only a moderate time—in order to get the information ready. In such a case, which may involve all sorts of knowledge of the values of stocks, and heaven knows what, the Commission should have power in a proper case—this is only permissive—to say: "You have told us what you have had to do to furnish these estimates and returns. We think you ought to have something towards your expenses, and we will offer you" so much. That seems to me to be the most reasonable thing in the world.

It will not suit the Commission at all to be in a position to say: "We are going to ask you for elaborate estimates and returns; but, mind you, you are not going to get a penny in respect of your expenses for furnishing them, even if you have to get the information from abroad." If they do that, they will find that people will not be very helpful. If, on the other hand, the Commission can say: "We know that this is going to be costly, and we will repay your out-of-pocket expenses in respect of certain things," then they will get what they want done. Against that there is no common-sense argument. I am all for preventing the Government from incurring any more expenses in this year of crisis than we are every week imposing on them in various ways. But this is only a trifle and, I repeat, it is purely permissive, and purely just.

VISCOUNT ADDISON

I am quite sure that what the noble and learned Viscount has just said is correct—namely, that it would be in the interests of the Commission and everybody else for the Commission to be on good terms with the great organisations with which they will deal, and I have no doubt at all that they will act in that spirit and not do unreasonable things.

VISCOUNT MAUGHAM

But they have not power to do so at present.

VISCOUNT ADDISON

The point is, as the noble Lord who moved the Amendment said, that we do not wish to open the door to unnecessary claims for expenses. If everybody could have their costs charged to the taxpayers, we should be opening a very wide door. At the same time, I appreciate the point of the noble Lord's contention—I think it is a good one—in regard to cases that are brought before the Commission where the Act does not apply, or where the reference is ill-founded. I think it is reasonable in cases of that kind that consideration should be given to their expenses. Clearly, the Commission are allowed to pay expenses to persons giving evidence or producing documents, and I should have thought that producing documents would apply to some of the things to which the noble and learned Viscount, Lord Maugham, has just referred. I would ask the noble Lord, Lord Balfour, to withdraw his Amendment now, and to discuss this matter with me between now and the Report stage, to see whether we can frame an Amendment which would empower the Commission to make a contribution to expenses where the conditions of the Act do not apply, or where the reference is found to be ill-founded. If the noble Lord will withdraw his Amendment on that understanding, I shall do my best to meet him.

LORD BALFOUR OF INCHRYE

I respond at once to the invitation of the Leader of the House, and I shall be glad to discuss the matter with him. I only hope that he, with his great organisation for drafting, can bring forward the first suggestion for a draft Amendment. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 8, as amended, shall stand part of the Bill?

THE MARQUESS OF READING

May I ask one question on this clause? I do not ask it in any spirit of criticism, but I am a little puzzled. In several instances in this clause power is given to a sole member of the Commission to take certain action. I do not know whether, in bodies of this kind, it is normal to devolve the authority of the whole Commission upon one member. It is not fixing a quorum below which authority shall not have effect; it is giving them power to delegate the whole of their authority to one member. It strikes me, at first sight, as unusual and, perhaps, not altogether desirable. After all, there is here a Commission with a minimum of four and a maximum of ten members. I am not quite sure what the point of it is and, equally, I am not clear whether it is a usual provision in other bodies. It also appears in subsection (3) (a), which uses the phrase "a member of the Commission nominated by them."

VISCOUNT ADDISON

The point which the noble Marquess has raised is an important one. It is one of which I was not aware and I will certainly look into it. It is not a Committee point, because there is no Amendment, but perhaps I may confer with him upon it. It is entirely new to me.

VISCOUNT SWINTON

I had not noticed this before, and I think it is rather important that we should know. If all that is intended is that one member of the Commission shall be able to hear a witness, ascertain facts and make a report, that is one thing. But a judgment which is given on facts, although the facts may have been ascertained by one or two members, is another. As the noble Marquess himself knows, on a Commission one often delegates one or two members to make a particular inquiry; but the decision as to whether or not mischief is there, what the mischief is and what the remedy should be, should be the decision of the Commission as a whole.

VISCOUNT ADDISON

I am familiar with subsection (3)(b), under which a member of the Commission can obtain evidence or hear somebody, as a matter of convenience, on behalf of the Commission. That is quite a different thing from discharging the powers and duties of the whole Commission, which is what I think the noble Marquess was suggesting. However, I will look into it further.

THE MARQUESS OF READING

I only wanted to know what the limits of the power were.

VISCOUNT SAMUEL

I hope that the reference at the beginning of subsection (3) on page 8 will not be overlooked, where it says: If it appears to the Commission expedient so to do for the purpose of any such investigation as aforesaid, the Commission may, by notice in writing, signed on their behalf by any of their members or by their Secretary— (a) require any person… to do so and so. That, surely, is a very unusual provision.

VISCOUNT MAUGHAM

I am not sure that that is very unreasonable.

VISCOUNT ADDISON

I should have thought not. It seems the ordinary practice.

VISCOUNT MAUGHAM

It would not be unusual for the Commission to say: "John Smith is requested to sign that notice for us." He then has to act upon the authority which is given to him.

Clause 8, as amended, agreed to.

Clause 9:

Publication of reports of Commission.

9. When the Commission report to the Board of Trade on any matter referred to them under the preceding provisions of this Act for investigation and report, the Board may, and, unless the reference was so framed as to limit the investigation and report to the facts, shall lay the report before each House of Parliament:

Provided that if it appears to the Board of Trade to be contrary to the public interest that the report, or some part thereof, should be made public, the Board of Trade shall lay before Parliament only so much, if any, of the report as in their opinion can be made public without injury to the public interest.

4.45 p.m.

VISCOUNT MAUGHAM moved, in the proviso, after "public interest" (where that phrase first occurs) to insert "or to the commercial interests of any of the parties concerned." The noble and learned Viscount said: This may at first sight seem to be a comparatively trivial matter, but I am afraid that I have to say that it seems to me to be very important. It is not clear at first blush that this Bill is almost entirely devoted to a question relating to trade secrets. Secrets are at the bottom of every objection taken to the way in which a company carries on business, whether it be to procure a monopoly or whether it be to have a restrictive arrangement with some other company or person. I think it was very wise to insert a provison by which the Board of Trade have a hint that, in laying a report before the Houses of Parliament, they should exclude from it matters which it might be contrary to the public interest to disclose. They should do that even though it may mean that their report may omit something which would make the report rather clearer, or the reasons for it rather clearer. After all, the Board of Trade are concerned, more than anything else, with assisting the trade of this country. It is not intended that this measure should interfere with the carrying on of business which Is to the advantage of the country, and which will enable us to pay our enormous commitments, whether in respect of national debt or otherwise. Therefore, I think the clause, so far as that goes, is perfectly well worded, and quite right.

My trouble is this. I know very well, from a long experience of advising commercial concerns, that there is nothing about which they are more particular than the disclosure of secrets which will be of great value to a rival in trade. I have known quite a number of cases in which a company having a perfectly good cause of action over something wrongly done by a particular person have declined to go to law, simply because the directors were aware that it would involve the disclosure of secrets which they would do anything honestly to keep from the knowledge of their trade rivals. It is a matter of that sort which I want to have in some way mentioned in this Bill. I want it to be clear that, in performing their duties, the Board of Trade have not only to frame reports so as not to say anything contrary to the public interest, but also that they at not to disclose commercial interests—apart, of course, from my qualification "except so far as may be necessary in order to explain the report."

I do not think this Amendment would hurt anybody. It may be said that the Board of Trade are not likely to do that; but it is not known what future Boards of Trade we may have in this country. They may have at their head people who are not so well acquainted as I am with one section of trading by big concerns, and they may not realise, having regard to this clause—which seems to indicate that all they have to do is to consider the public interest—that in drafting the report they ought not to put in cold print information which would be of the greatest possible use to trade rivals, whether in this country or abroad. I am not going to take up much more time, because I am sure that the point is clear. But may I just say this? You may say: "Give me an illustration." I can remember, from my personal experience two illustrations which have a certain amount of interest, apart from a great many details which would not interest your Lordships at all.

I have known a company which was spending a large amount of money to discover where a particular mineral could be found in different parts of the world. If other companies heard that somebody was investigating the question of minerals in a particular country, they would send mining engineers or other persons there to see whether they could not cut out the company who were hunting for the mineral in question. I remember that in one case they spent a lot of money, and they found what they wanted. But I found that there were also cases where they did not; and a company may spend in the course of years many hundreds of thousands of pounds in that sort of inquiry. Having spent that money, they do not want people publishing to the world that they have recently discovered this commodity in a certain latitude and longitude, probably in a more or less uninhabited country. People in the position of my clients will not spend that money and go in for that sort of venture if they think the secret will be disclosed by the Board of Trade in a report. Moreover, if people know there is a company which is undertaking a venture of that sort, and that company is a trade rival, they will arrange for a complaint to be made against the company in question in the hope that the Board of Trade will direct an inquiry to be made—and the inquiry will let out this information. That is one type of thing that they will be anxious to prevent.

The other is a somewhat similar case. It is that of a company engaged in making a great number of products of a more or less chemical kind. Inquiry of that sort may involve expenditure of the best part of £1,000,000 a year in the case of a big company. Again and again it will be fruitless. I knew a German company, no longer in existence, that used to employ thousands of people in investigating certain methods of producing a particular product, and in one case in a thousand they were successful. They used to take out 1,000 patents a year in England, knowing that 999 would be perfectly useless; but the one repaid them for all this expense. Now suppose it is not a new article but a process—one which is difficult to patent and which very likely it would not pay them to patent. What companies of that sort do, to my certain knowledge, is to have a large number of eminent chemical experts and others investigating processes of the kind of which I am thinking, and when they have got them they keep them secret as long as they can. The same position as that I have indicated will arise if a man discovers a way of making, say, sulphuric acid, or whatever it may be, and finds that as soon as he has discovered the secret it is going to be published to the world. This threat of disclosure would not only be detrimental to the commercial interests of this country; it would discourage the spirit of invention, enterprise and adventure—all the things which have tended to help British industry.

All I want is to make it clear in the Bill that the Board of Trade must regard this matter of trade secrets not merely as a general matter but as an obligation which is imposed upon them in the interests of industry. I am perfectly certain that if this idea is not got into the heads of the Commission and the Board of Trade, and if, as a matter of fact, they do regard trade secrets as of no importance, it will have a perfectly disastrous effect on some of the companies which are carrying on particular kinds of invention and discovery in this country. It is for that reason that I want, so far as I can and so far as public interest does not step in (that is to say, where there is not the obligation which exists in certain cases to make a report reasonably clear) to ensure that these secrets are preserved and not revealed to anybody.

I would add that it is particularly desirable that some such clause should be inserted when one remembers how vague the duties of the Commission necessarily are. There is nothing they cannot look into, nothing they may not think it necessary to consider. I could give your Lordships many illustrations if I were not afraid of unnecessarily taking up time. I beg the noble Viscount in charge of the Bill, if he cannot now make any promise or if he docs not like the terms of this Amendment, at any rate to give it his anxious consideration between now and the Report stage. This is not a trifling matter, and it is not sufficient to say that the Board of Trade will be instructed to act on a particular principle. In a matter of this kind we ought to have it in black and white in the Bill, in the interests of the trade of this country—and, I may add, in the interests of this Bill, because if we are going to start with the feeling that the Board of Trade are going to hurt the public interest by disclosing secrets, all sorts of difficulties will follow and the Bill will not have the function which it ought to have of helping, instead of hindering, the trade of this country. I beg to move.

Amendment moved—

Page 9, line 11, after ("public interest") insert the said words.—(Viscount Maugham.)

LORD BALFOUR OF INCHRYE

As my name is down to this Amendment together with that of the noble Viscount, I should like to support the very important point which he has put so powerfully. I would remind your Lordships that there is no power vested in the Board of Trade to stop the Commission reporting in any way they like. There is no power to prevent the Commission putting into their report all sorts of confidential trade secrets. The only bulwark we have against possible severe injury being caused to commercial interests is reliance on the Board of Trade. It is true that under the Bill the Board of Trade have to judge what is or is not in the public interest. I have no doubt that it is the intention of the Board of Trade to judge the public interest in such a way as to safeguard commercial secrets, because the commercial secrets of a British firm are highly valuable to this nation. Nevertheless this is, I submit, too wide an interpretation of the public interest to rely upon; and it would be an advantage to the commercial life of this country if the words proposed by the noble Viscount, Lord Maugham, were inserted.

VISCOUNT ADDISON

I am quite sure that the noble and learned Viscount who moved this Amendment can be completely reassured so far as the Board of Trade are concerned, and I feel certain that that would be the view of the responsible Commission that will be entrusted with this duty. The last thing they would want would be to damage British trade by disclosing trade secrets. It would never enter the heads of the Board of Trade to injure the public interest by injuring the interests of the firms concerned. The Board of Trade may delete portions of the report if they are so minded. That action, of course, would be related to the expression "public interest." I am advised that the Board of Trade would certainly consider that the undue revelation of trade secrets, affecting the well-being of an important firm, would be a great matter of public interest. I will certainly ask the Board of Trade, in view of what the noble Viscount has said, to see whether they can consider any words which would make it clearer. However, I am quite sure that their intention in the matter is exactly that of the noble Viscount who moved this Amendment.

VISCOUNT MAUGHAM

I am much obliged to my noble friend for his reply. I have no doubt that what he does will be very useful, but I confess that I think that people in the Board of Trade may not always know what is a trade secret. I want them to be considering all the time whether the revelation of some comparatively unimportant little point may not be very detrimental to the company concerned. However, the noble Viscount can do no more than he has promised. I am much obliged. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Clause 10:

5.2 p.m.

VISCOUNT BRIDGEMAN moved, after subsection (4) to insert: (5) Nothing in any order of a competent authority under this section shall have effect so as to restrain the freedom of any person being a shareholder in a body corporate incorporated otherwise than under the law of the United Kingdom or some part thereof to use his rights as such a shareholder in such manner as appears by him to be expedient. The noble Viscount said: I think that this clause will be difficult enough to implement when it deals with matters in the United Kingdom, but it becomes still more difficult to implement properly if and when it has to be made to apply to commercial undertakings in foreign countries. Here I think that we are faced with the choice of evils, and the reason why this Amendment was put down is to explore that choice of evils. On the one hand, it may be argued that, unless there are full powers in the Bill to deal with situations that arise in foreign countries and through the actions of foreign subsidiaries of British companies, it will be possible for those of evil intent to drive a coach and four through the provisions of the Bill and achieve ends which the Bill is designed to frustrate. But there is another side altogether, and that is the extent to which it is right and expedient and in the best interests of this country to attempt to interfere with affairs which concern a company registered under the laws of a foreign county, often with foreigners managing or at least on the board of the company.

This situation arose on the Exchange Control Bill. The same conditions apply in this Bill, though perhaps not in such great measure as they did in the Exchange Control Bill. I would suggest to the noble Viscount opposite that we would be well advised to have an assurance that, when some circumstance arises that involves the conduct of a subsidiary company of a British company in a foreign country, the greatest care will be exercised before steps are taken under this clause, and that, in particular, care will be taken to see that the disadvantages of possible interference with the laws or customs or business practices of any country are not so great as themselves to take away the desirability of action under this clause. I beg to move.

Amendment moved—

Page 11, line 8, at end insert the said subsection.—(Viscount Bridgeman.)

VISCOUNT ADDISON

I agree with the noble Viscount that neither he nor anyone here would wish to enable a person, by operations in a foreign country, to evade the main purposes of this Bill. That is not what he wishes to do. At the same time we have to consider that it might conceivably be possible. The noble Viscount has asked me to give him an assurance that it is the intention of the Board of Trade to safeguard the interests of persons operating in foreign countries, so as not to get them into difficulties in those countries. I asked the Board of Trade to give me that formal assurance for the noble Viscount. I will read what they say: It is the normal practice that British companies should operate in foreign countries through subsidiaries incorporated under the laws of those countries. There is not the least intention of interfering with this practice or in any way embarrassing our nationals in these foreign countries. I hope that the noble Viscount will be satisfied with that assurance. I am sure that his point will be fully met.

VISCOUNT BRIDGEMAN

The assurance given by the noble Viscount opposite meets my point fully. I can do no more than beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD BALFOUR OF INCHRYE moved, in subsection (5), after "patent" (where that word first occurs), to insert "or registered trade mark." The noble Lord said: The Amendment which I move and the consequential Amendment which follows deal with a most complicated matter. I will be frank with the Committee and say that it is largely beyond my comprehension, but I do understand the main point of my Amendment, which is that under the provisions of this Bill trade marks are not protected in the same way as patents. There is nothing in this Bill which in any way restricts the powers of the competent authority—if the noble Viscount will look at Clause 20 (1), he will see the competent authority cited—in dealing with mischiefs alleged to arise out of the use of trade marks. This matter was discussed in Standing Committee in another place, when the Minister piloting the Bill said that he could not see how the question of trade marks could arise, as there was not the machinery of sanctions under the Trade Marks Acts as there was in the case of patents. I am advised that Section 28 of the Trade Marks Act of 1938 introduced for the first time a system under which quasi-licences of trade marks can validly be granted, and it may be alleged that "mischiefs" arising out of the use of trade marks brought before the Commission may include cases arising out of the grant of such quasi-licences pursuant to the terms of Section 28.

Under that Act, the proprietor of a registered trade mark who desires to grant quasi-licences—they are referred to in the Act as "permitted users"—must join with the proposed grantee in making a formal application to the Registrar and must inform the Registrar as to the conditions governing the proposed user. Subsection (5) provides that applicants must satisfy the Registrar that the conditions and restrictions are not contrary to the public interest. The Act, therefore, specifically appoints the Registrar as the guardian of the public interest. If we pass this Bill as at present drafted, and if the conditions governing the grant of the "permitted user" rights may be reviewed by the Monopoly Commission, there will obviously be confusion and duplication, which it is understood that the Minister wished to avoid. It seems to me that we are taking away from the Registrar the powers which he has been granted in another Act, and it would be better to leave the matter as it is and preserve the authority of the Registrar. I beg to move.

Amendment moved—

Page 11, line 11, after ("patent") insert ("or registered trade mark").—(Lord Balfour of Inchrye.)

VISCOUNT MAUGHAM

May I add a word on this subject? I venture to submit for the consideration of the noble Lords opposite that there ought to be a subsection here which safeguards the effects of a validly registered trade mark. A trade mark is a restrictive document. It is intended to restrict during its existence, and it may restrict in all sorts of ways. For instance, you may start, as somebody did years ago, by inventing a new metal, or a new process for a metal, and calling it, if my memory serves me aright, "Magnolia," and then under the Trade Marks Act you obtain a restrictive right to prevent anybody else putting on the market under the name of "Magnolia" not merely that particular metal but anything which is within the same class of trade mark articles. Accordingly, unless you put something into this Bill to the effect that nothing in it is intended to prevent the operation of the Trade Marks Act, you will have confusion, because people will not be sure whether they can still rely upon a trade mark. Of course, it is not the intention of the Government to create that confusion, and my suggestion is that they should consider whether there should not be added to this clause something to safeguard trade marks. We do not want to give them any further rights than they have at present. Obviously there is no intention here—nor was there in another place—in any way to affect the validity of the trade mark.

LORD CHORLEY

I am afraid that we cannot accept this Amendment. The exception which it is proposed to meet under subsection (5) of this clause in respect of patents is thought to be desirable, because in the case of the unfair use of patents remedies already exist or will be provided in the Patents Acts. In regard to trade marks, no such remedies are, in fact, provided. It is quite true that under the Trade Marks Act of 1938, to which the noble Lord referred, there is a right which is much more limited than the right under the Patents Law, and which really does not go very far. In view of the fact that there are these possible limitations in the case of patents, it is thought perfectly reasonable that this provision should be in the Bill. But in regard to trade marks, it might well be thought that some sort of usage was taking place which was against the national interest—indeed, the noble and learned Viscount, Lord Maugham, suggested a type of case where that might happen. Therefore, it would be wrong, as I submit to your Lordships, to put a trade mark in the same position as a patent, as the noble Lord's Amendment seeks to do. It is not for a moment intended that any order should be made providing for the compulsory use of a trade mark by any person other than the registered owner of it, but it is thought right that there should be power to deal with the matter of the use of a trade mark which is contrary to the public interest, and I would be prepared——

VISCOUNT MAUGHAM

Might I add a word there? I am afraid I must tell the noble Lord, with the greatest respect, that he has been misinstructed on the law of trade marks. Trade marks are restrictive, but they are restrictive only as to an infringement of the mark. If you put anything—whether it be a figure of a crowing cock or a name or a phrase or an invented word—on the article which you are producing, although there is nothing in the article which is invented, you are entitled to a monopoly use of the class of goods to which the trade mark refers—a complete and absolute monopoly during the period of subsistence of the trade mark. It is intended to have that effect; it has no other effect at all. My noble friend has been instructed apparently that why people want trade marks is for the purpose of licensing their use. That is not so. That is only an incidental right of a trade mark owner under the recent Act.

The real point about a trade mark is that it prevents others putting the mark, or a passable imitation of the mark, on the goods in question. Of that, there is no doubt at all; it is the A.B.C. of trade mark law. It protects only the mark and nothing else. All I am suggesting is that you should make it perfectly clear in the Bill that you are protecting the mark, just as much as before—or, rather, that you are not saying anything whatever in the Bill to affect the validity of a trade mark. Until my noble friend appreciates that it is a monopoly, but a monopoly use of a particular registered trade mark——

LORD CHORLEY

The remarks of the noble and learned Viscount carry great weight, and in the light of what he has said I should be pleased to have the matter looked at if that Would satisfy the noble Lord who has moved this Amendment.

VISCOUNT MAUGHAM

I was stopped in my little speech with the regret that it was so long but, since my noble friend says that, I am willing to cease a diatribe on this question in regard to trade marks.

LORD CHORLEY

I hope I was not looking so unco-operative that the noble and learned Viscount thought he ought to go on hammering at me.

LORD BALFOUR OF INCHRYE

On the assurance of the Minister, that here is a substantial point which is largely beyond my comprehension, but upon which the noble and learned Viscount with his great experience has added his powerful opinion, and on the assurance that the Minister is going to look into it, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Clauses 11 to 13 agreed to.

House resumed.

House adjourned during pleasure.

House resumed.