RESTRICTIVE TRADE PRACTICES BILL

HL Deb 11 July 1956 vol 198 cc852-940

3.0 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.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD TERRINGTON in the Chair]

Clause 1 [Appointment and functions of Registrar]:

THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR THE HOME DEPARTMENT (LORD MANCROFT)

I am glad to say that we start off our progress on this Bill with a largely uncontroversial Amendment. The effect of this Amendment is to extend the provisions of the Documentary Evidence Act, 1868, to enable prima facie evidence of any document issued by the Registrar to be given in all courts of justice by the production of a copy of the document certified by an assistant registrar or other officer authorised by the Registrar. This provision is merely a further lubrication of the registration machinery. I beg to move.

Amendment moved— Page 2, line 16, at end insert ("and as if the regulations referred to in that Act included any document issued by the Registrar.")—(Lord Maticroft.)

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Cause 2 [Establishment of Restrictive Practices Court]:

LORD MANCROFT

The effect of this Amendment is to make the Restrictive Practices Court a superior court of record. The court will thus have the same status as the High Court; although it will not be a division of the High Court. An effect of the Amendment is to prevent the High Court from restraining, removing or otherwise controlling the orders and proceedings of the Restrictive Practices Court by prohibition, certiorari or mandamus. I am prepared to give a long, inaccurate and confused lecture on the use of prerogative writs, but I think that at this stage that will hardly be necessary. I beg to move.

Amendment moved— Page 2, line 41, after ("a") insert ("superior").—(Lord Mancroft.)

VISCOUNT ALEXANDER OF HILLSBOROUGH

I entirely agree with this Amendment. I hope that what the noble Lord said about being prepared to be inaccurate is not going to apply to the general conduct of the Bill.

LORD MANCROFT

I hope that I know a little more about the Bill than I do about prerogative writs.

On Question, Amendment agreed to.

Clause 2, as amended, agreed to.

Clauses 3 to 5 agreed to.

Clause 6:

Agreements to which Part I applies

(7) Where specific recommendations (whether express or implied) are made by or on behalf of a trade association to its members or to any class of its members, as to the action to be taken or not taken by them in relation to any particular class of goods or process of manufacture in respect of any such matters as are described in paragraphs (a) to (e) of the said subsection (1), this Part of this Act shall apply in relation to the agreement for the constitution of the association as if each such member and any person represented on the association by any such member were thereby required to comply with the recommendations, notwithstanding that the agreement does not so provide or expressly provides to the contrary.

LORD MANCROFT

The purpose of this Amendment is to make it clear that an obligation which is expressed in positive terms, but which is negative by implication, is to be regarded as a restriction for the purposes of Part I of the Bill. A case in point would be where a group of manufacturers agree to sell 90 per cent. of their output to a particular customer. This implies an obligation not to sell more than 10 per cent. to any other customer and is therefore a restriction. I beg to move.

Amendment moved— Page 5, line 29, after ("obligation") insert ("whether express or implied and").—(Lord Mancroft.)

VISCOUNT HAILSHAM

I should like to say a word to my noble friend Lord Mancroft about this definition. I am distinctly unhappy about the description of a "negative obligation." I think fiat all obligations are both negative and positive, and I do not believe that in practice this will prove a satisfactory definition of a restrictive practice. Take, for instance, one of the negative obligations contained in the Decalogue: "Thou shalt not commit adultery." That is negative enough you would think, but to translate it into a positive obligation and say, "Thou shalt commit adultery" would be equally restrictive. It would restrict one from proper conduct. I cannot conceive of any obligation which is not both negative and positive. I do not think that a definition is so easily achieved by the insertion of the words "whether express or implied". My own feeling is that the definition of restrictive practice ought to be referred; not to the express negative but to the limitation of the trading activities of traders by reference to the matters contained in paragraphs (a) to (e) of subsection (1) of Clause 6. This definition referring to a "negative obligation" is one which in practice will prove meaningless and difficult to apply, and I am wondering whether the Government will not consider it again.

LORD MANCROFT

I cannot answer the noble and learned Viscount on the question of the Decalogue without taking advice from the Lords Spiritual on the Benches on my right, or I shall get into very deep water. In regard to the other point, I will certainly consult my draftsmen and advisers and, if I can do anything to meet this difficulty, I shall be happy to do so.

On Question, Amendment agreed to.

VISCOUNT ALEXANDER OF HILLSBOROUGH moved, in subsection (7), after "members," where that word occurs a second dine, to insert "or to any other person or persons". The noble Viscount aid: In dealing with this part of the Bill, I think that, in view of the general provisions of the clause, it is important hat we should call attention to certain trading practices, restrictive in their character, which exist at the present time though to all intents and purposes no written agreement exists. Where such practices exist and no formal agreement is apparent, I suppose that it should be presumed that such an agreement exists. As I am not clear about what view the Government take about this matter. I shall be glad to have some information. In my long experience of dealing with these matters I find that those who have been subject as much as anybody to these practices, the members of industrial and provident societies, have encountered a great variety of restrictions, some under formal agreements and some under arrangements which are made by people who desire to back restrictive practices but do no more than maintain an information service among themselves about what sort of restriction they want to observe.

The societies I have mentioned have had extensive experience of this form of restriction. If noble Lords would be kind enough to remember the strong speech I made last year in dealing with the report of the Monopolies Commission, they will remember that I referred to the lengthy efforts that have been made by the organisation with which I was then officially connected to get into the gramophone and wireless trade, as it ought to have every right to do as an ordinary and efficient trading organisation. There is no apparent trade association in the gramophone and wireless trade, but we came up against the most rigid restriction, a restriction which exists very largely to-day. I want to put this point to the Government, because they are so fond of supporting private enterprise. This sort of thing is not always in the best interests of the general economy of the country. If free competition is allowed to move into specially restricted channels, then in the long run the only alternative for those who have to meet these restrictions is to enter into new production themselves and thereby incur an expenditure which, in our present economic position, is not well directed and well placed in the national interest.

If you have an efficient industry producing at the peak of line production something that is really wanted by the public in a time of restricted capital, why should it not be possible to have that product distributed through any one of the efficient and economic distributive channels in the country, without driving any of them into new capitalising and production? That, it seems to me, is a matter for general consideration by the Government. We, at any rate, have had to do that on more than one occasion—perhaps it has been, in one sense, a good thing for the industrial provident associations, but it is not necessarily the best in the general capitalisation position of the country at large.

The same position applies with regard to petrol. The suppliers of petrol prohibit the payment of any dividend on retail sales of petrol. It is interesting to note that in this country the distributive oil companies, without having a formal agreement, can get agreed action in all these matters, whilst even in a great capitalist country like the United States of America, there is now a whole chain of what they call "gas stations"—but which are, in fact, petrol stations—owned by co-operative organisations, which have backed their business there by even going into the actual oil production business as well as that of stations. In America there is no restriction of this kind exercised by the very companies who, through their British counterparts in this country, have this control and restriction of advantage to the consumer of petrol in this country. Up to September, 1948, the Petroleum Board were responsible for seeing that co-operative societies did not pay dividend upon petrol sales. Since this date there has been no written agreement, but the companies continue to prohibit the payment of dividend. It is obvious, therefore, that these companies are following a declared policy, although no trade association is now responsible for recommending such action.

If we take the case of newspapers—and it is a case of great substance, in my view—we find that newspapers are gradually being excluded from being sold in any co-operative establishment. There is an understanding between Fleet Street, as well as certain provincial newspaper headquarters, and an organisation called the Retail Newsagents' Association, not only that no co-operative society shall be supplied but that no one shall carry on a business in any part of the country, other than an existing business, which is reckoned to be covered for newspaper distribution by the Retail Newsagents' Association. And the newspaper proprietors collaborate with them in refusing supplies to any shop to be opened in the district which is to receive (shall I call it?) the "black ball" from the Retail Newsagents' Association. There is, apparently, no connection between the two; nor do we know of any formal written agreement. But it is a somewhat heavy restrictive practice. These cases make me draw attention to the matter upon this clause, and to move this Amendment in order that we may have some statement from the Government as to exactly how they view these matters, and how they can reconcile this kind of practice with their assumed support of individual enterprise in the country. I beg to move.

Amendment moved— Page 6, line 18, after the second ("members") insert ("or to any other person or persons").—(Viscount Alexander of Hillsborough.)

3.16 p.m.

THE LORD CHANCELLOR (VISCOUNT KILMUIR)

I am grateful to the noble Viscount for putting this point. I should like to say, on the general aspect of the matter, that I feel strongly that the registration provisions can have the effect of compelling the light to be let in with regard to a number of agreements; and this is a most important aspect of the method of dealing with restrictive practices. It had some success in our previous proceedings and in fact, as I said on Second Reading, the success that it had is one of the reasons for this Bill. As I am sure the noble Viscount is aware, in Sweden, if my memory is right, the fact of registration was responsible for the cessation of 36 per cent. of the practices and a variation of another 16 per cent., bringing over half the practices into a very different state. Therefore, on the general point the noble Viscount made by way of introduction to his speech, I do not think there is anything between us.

With regard to this special provision of subsection (7) of Clause 6, that was introduced to deal with informal methods, and a particularly obvious informal method where the trade association passes a resolution and the members, without any specific agreement, adopt the recommendation which the resolution contains. The noble Viscount will appreciate that, if these recommendations relate to any particular class of goods, and are in respect of the matters that are described in paragraphs (a) to (e) of subsection (1) of the clause, they will come within the scope of Part I of the Bill. The Amendment seeks to extend this provision to such recommendations when made to non-members of the trade association.

We had been considering this matter before we heard the speech of the noble Viscount, of course, but I am told that it roust be rare that trade associations make recommendations of this kind to nonmembers; and where they do, the nonmembers could not be regarded as being party to the constitution of the association. As the noble Viscount will appreciate, that is the basic document on which the case provided in the subsection is dealt with. There is the constitution of the association, and, therefore, the constitution and the action on the recommendations provides something on which one can work and which can be registered. It will be the constitution of the association which is the basic document that is to be registered in the case of recommendations to members; indeed, it is difficult to see what other document could be proper. In the cases where non-members have to observe the recommendations, I think there would almost certainly be some basic document which one could get hold of and could register. However, perhaps the noble Viscount will allow me to study his speech, and particularly to study, with the help of those who assist me in these matters, the specific cases which he gives. At the moment I do not see how his Amendment would make the subsection work more efficaciously. Therefore, I should like to look into it and perhaps the noble Viscount will not press the Amendment at this stage.

LORD LUCAS OF CHILWORTH

I am glad the noble and learned Viscount has suggested that course, because it hits at the heart and matter of what this Bill purports to do—that is, to do away with discrimination. When the noble and learned Viscount reads my noble friend's speech and applies his mind to it he will find it an interesting study because he may find it difficult to find any specific recommendations emanating from a particular trade organisation; and yet discrimination is rampant. I do not know whether, in the newsagents' world, the noble and, learned Viscount will be able to find any specific recommendation that the Newsagents' Association, or the Newspaper Proprietors' Association via the Newsagents' Association, should prohibit the supply of newspapers for distribution to various classes of business. But it does happen, and that is one of the mysterious things. Whether there is a "bush telegraph" or a secret underground organisation I do not know, but it happens in all too many cases. I feel certain that my noble friend will supply the Lord Chancellor with any other facts he requires, so that he can look into this point to see whether he can strengthen this clause so that evasion of the intent of the Government does not take place—an intent which, as I read it, is to do away with these practices of trade discrimination.

THE LORD CHANCELLOR

I am grateful to the noble Lord, Lord Lucas of Chilworth, and I want to make the position quite clear. I was dealing with the Amendment to subsection (7) of Clause 6, and I am anxious to know if that particular aspect of the matter—namely, the recommendations of trade associations—needs further consideration. Of course, both noble Lords will appreciate that subsection (3) of the same clause says that "agreement" includes any—I stress "any"—agreement or arrangement. That means that it does not matter for the purpose of the Bill whether the agreement is written or not. The point that was in my mind was that it might be that the cases quoted by the noble Viscount were not recommendations of a trade association to non-members but an informal arrangement between groups of traders. They would then, of course, be caught as an informal arrangement under subsection (3) of Clause 6, though they might not be actually recommendations of a trade association. As I said, I want to show the noble Viscount that we are not trying to avoid catching informal arrangements—we want to catch them under subsection (3). But if this subsection needs tightening, I shall be happy to look at it.

VISCOUNT ALEXANDER OF HILLSBOROUGH

I am obliged to the noble and learned Viscount. What I should like to know is whether, when we come to a further statement on the Report stage of the Bill, the noble and learned Viscount will be able to tell us that if such a practice is found and is not registered at a given date, it will be possible for those who are being discriminated against to approach the Court and bring evidence showing why such a practice should be registered.

THE LORD CHANCELLOR

I shall be glad to include that in the statement. It is an important matter, and I should like to be able to tell the noble Viscount and his friends the machinery with complete exactitude.

VISCOUNT ALEXANDER OF HILLSBOROUGH

With that assurance. I am glad to withdraw the Amendment.

Amendment, by leave, withdrawn.

3.25 p.m.

LORD MANCROFT moved, in subsection (7), to leave out "such matters as are described in paragraphs (a) to (e) of "and to insert" matter described in ". The noble Lord said: The next two Amendments, Nos. 5 and 6. together with Amendments Nos. 20 and 31, are designed to improve the procedure for the registration and examination by the Court of recommendations by trade associations. Subsection (7) of the clause we are now discussing brings within the scope of Part I of this Bill cases where a specific recommendation is made by, or on behalf of, a trade association to its members as to the action to be taken, or not taken, by them in relation to any particular class of goods or process of manufacture in respect of any of the matters described in subsection (1) of this clause. The use of the word "specific" indicates that general exhortations by associations of industrialists to their members—for example to keep prices stable—would not come within the provisions of the subsection. It is, however, the Government's intention that recommendations directed to the actual prices or conditions of sale, for instance, of particular classes of goods, should be covered by the Bill, since it is quite common, as your Lordships know, for action between traders to be concerted by the observance of recommendations rather than by compliance with firmer undertaking.

VISCOUNT ALEXANDER OF HILLSBOROUGH

May I ask the noble Lord a question? I am much obliged for the explanation he is giving, but when he refers to the issue of a statement as to keeping prices stable what does he mean exactly? Does he mean that prices must be maintained at a high level; that the minimum must be high, or has he any idea that we might, later in the Bill, get some success with making this a matter for fixing a maximum price? I understood that the Government wanted to see prices come down. What does the noble Lord mean by "stable" in this case? Does he mean keeping prices high?

LORD MANCROFT

I do not want to be pinned down too much to what I gave as an example of the general exhortation which might be given in these particular cases. I could give other general examples for the purpose of my argument, although I grasp the purpose of the noble Viscount's intervention. I am only stating that that is the principle which underlies this particular subsection. These present Amendments, Nos. 5 and 6, do not involve any departure from it.

However, the Bill, as it stands, does not secure that the particulars of the restrictive recommendations are put on the register. At present, where a trade association makes a specific recommendation to its members the agreement for the constitution of the association—that is its rules—is to be registered. This document may not in itself, however, give any indication that the association makes recommendations to its members about trading conditions. It will, in fact, normally he a perfectly innocuous document. It would, on the other hand, be equally unsatisfactory if the Bill were to provide that every document containing a recommendation had to be furnished to the Registrar under Clause 9. This might mean, for example, in any case where a trade association circulated to its members lists of recommended prices, that each price list would have to be furnished for registration. What we now propose, therefore, is that, where such recommendations as are described in the first part of subsection (7) are concerned, the agreement for the constitution of the association is to be treated as if it contains an implied term, under which each of the members to whom the recommendation is made agrees to comply with the recommendation and any subsequent recommendations in the same field.

The scene now shifts to Clause 9. Your Lordships will see, when we come to deal with Amendment No. 20, that it is proposed to provide in that clause that the parties, when furnishing for registration particulars of an agreement such as that which is described in subsection (7) of the present clause—that is, an agreement for the constitution of a trade association—must include in the particulars of the implied term that members will comply with a certain type of recommendation. I think it is a correct Amendment that we are making here for clarification, and it will be fulfilling the purpose of this particular clause. I beg to move.

Amendment moved— Page 6, line 20, leave out from ("any") to ("the") in line 21 and insert ("matter described in").—(Lord Mancroft.)

3.30 p.m.

LORD LUCAS OF CHILWORTH

I have tried hard to follow what the noble Lord says, but I must confess I am not very much enlightened. Does he really think that the mere registration of an association (call it what you will) will be any correction of some of the practices in which they can indulge when they issue recommendations to their members? When Clause 23 becomes operative, there will be a lot of squirming and wriggling to sidetrack it. I take it that this is one of the efforts of The Government to prevent that, but I am afraid that it will not be clone in the way the noble Lord has just outlined. Toe Government have to face up to this fact—and I think this will arise more and more as we go through this Bill: that the office of the Registrar, which is the Restrictive Trade Practices Court, will be a gigantic business organisation. I cannot see any way other than that every single agreement will have to be scrutinised. I do not think it will be done as the noble Lord is now trying to do it. His intentions, I am quite prepared to say, are honest, but it is impossible, by a "blanket" method of registering the detail; of an association, to cover every recommendation that that association can make to its members.

The noble Lord should know better than I do that there are some very clever lawyers in existence, and during the Second Reading of this Bill I made a remark upon which the noble Lord rather took me to task. I said that I thought the Government were creating by this Bill a lawyers' paradise; and every time I read the Bill I think it is going to be something more than a paradise. I ant afraid that I should want more evidence than the noble Lord has given at the present time that we are not going to see a large number of attempts to evade the consequences of Clause 23. I do net think the noble Lord's provision is sufficiently watertight. I see no alternative to calling for registration of every single restrictive practice or every single recommendation of any association that might be thought to be restrictive. I cannot see any other way—I am sorry. I shall propose an Amendment soon which seeks to do precisely the same as the noble Lord is trying to do, but in another direction. I think this is a hopeless kind of thing to try because, as soon as you try to do that your net is full of holes. I hope the noble Lord will have another "think" about this.

VISCOUNT HAILSHAM

But most nets are full of holes.

LORD MANCROFT

As my noble friend Lord Hailsham points out, most nets are full of holes. I quite see the noble Lord's difficulty, but I think he is meeting troubles more than halfway. I hope that I am right and he is wrong, because clearly we are both trying to do the same thing. The noble Lord says there will be much squirming and wriggling over this. I hope not, but, as I say, we are both at the present moment trying to do the same thing. This is our attempt, and I think it is a much better one than that of the noble Lord. However, he will not convince me and I shall not convince him, and we could go on with this point for some considerable time. He may have more to say on this when we come to the wider development of this matter later in the Bill. In the meantime, I hope he will bless my Amendment.

VISCOUNT ALEXANDER OF HILLSBOROUGH

I agree with my noble friend on this matter, but I will not prolong the discussion now for it would not be profitable. When the noble Viscount says that all nets are full of holes, our complaint with the Government on the Bill in general is that, compared with the recommendations of the Monopolies Commission, they have designed in this Bill a net with so many holes that so many people can get through with the continuation of the doctrine of discrimination. The Bill makes no real attack upon an ill in the body politic. That is why we complain about the Government's policy. However, I shall not oppose this particular Amendment because it would be taking up the time of the Committee; but we ask noble Lords to keep in mind that that is the core and burden of our complaint. We look at all the Government's proposals in this Bill from that point of view.

On Question, Amendment agreed to.

LORD MANCROFT

This Amendment is consequential on the previous Amendment. I beg to move.

Amendment moved— Page 6, line 23, leave out from ("association") to end of line 27 and insert ("notwithstanding any provision to the contrary therein, as if it contained a term by which each such member and any person represented on the association by any such member agreed to comply with those recommendations and any subsequent recommendations made to them by or on behalf of the association as to the action to be taken by them in relation to the same class of goods or process of manufacture and in respect of the same matter.")—(Lord Mancroft.)

On Question, Amendment agreed to.

On Question, Whether Clause 6, as amended, shall stand part of the Bill?

LORD LUCAS OF CHILWORTH

On the Question whether Clause 6 shall stand part of the Bill, I want to ask the noble and learned Viscount who is in charge of the Bill one or two questions. I feel that I should know the answers, but he must forgive my ignorance; I cannot find them here. Clause 6 deals with the registration of agreements. In the Monopolies Commission Report—I call to mind vividly the exhaustive speech from the noble and learned Viscount to which we listened with great interest when we discussed the White Paper—I think it was Category 6 of the Restrictive Practices which the Monopolies Commission said should be disallowed; that was the system of aggregated rebates. Am I right in assuming that paragraph (a) of subsection (1) of Clause 6 covers aggregated rebates among the prices to be charged, quoted or paid for goods supplied, offered or acquired"? And am I right in saying that aggregated rebates are covered under paragraph (b), which refers to the terms or conditions (other than terms as to prices)"? What befogs me is that, when I turn to Clause 25 I find these words: For the purposes of this Part of this Act a condition as to the amount of discount which may be allowed on the resale of any goods … shall be treated as a condition as to the price at which goods may he resold. Is a discount a rebate? Is a rebate a discount? Is it cancelled out by Clause 25 if it is included in this clause?

Noble Lords will remember that this matter was dealt with by the Monopolies Commission under the Report on the Supply of Electric Lamps and also under the Report on the Export of Pneumatic Tyres. At page 118, the Monopolies Commission deal with what they call ancillary practices and they give a long paragraph on what they call "the user discount scheme." In paragraph 501 they say: We cannot overlook the fact that the scheme is in effect an aggregated rebate scheme. I will not read it all they say: For this reason we the scheme at present public interest. Then, at the end of paragraph 105, they say: We assume, therefore, that if our recommendations are implemented, the user discount scheme will be abandoned. I have not a copy of the speech of the noble and learned Viscount before me but, as I understood him, he had accepted as restrictive practices all the six categories that were put in the Monopolies Commission's Report. He would not accept them as practices to be outlawed straightaway, but they were to be registered. Any agreement of an aggregated rebate kind was to be registered with the Registrar of the Restrictive Trade Practices Court. I cannot find any specific mention of that in the Bill. Am I right in assuming that it is covered by paragraphs (a) and (b) of Clause 6 (1)? A rebate can be called anything. It may be a price, it may be a discount or it may be a rebate; but the word "rebate" does not appear in the whole of the Bill. Has it been forgotten? Has it been wilfully left out? Is it included? That is what I want to know.

May I now go on to the second question that I wish to ask the noble and learned Viscount? This point is only an illustration of agreements to be registered. With regard to monopoly agreements, I have in mind the function of the Fatstock Marketing Corporation—this private and irresponsible monopoly which the Government have, I will not say sponsored, but in some ways have underwritten.

VISCOUNT ALEXANDER OF HILLSBOROUGH

Connived at.

LORD LUCAS OF CHILWORTH

I am much obliged to my noble friend—connived at. As I say, it is a private and irresponsible monopoly as opposed to the public and responsible monopoly that was once the subject of a certain Report which I need not mention now. But when one comes to study the activities of the Fatstock Marketing Corporation one finds that between 80 and 90 per cent. of the bacon pig industry of this country is in the hands of this Fatstock Corporation under exclusive agreement. That is a monopoly. The farmers cannot sell their pigs to anybody else for bacon. I take it that that is an agreement which will have to he registered, because that is the biggest part of the Corporation's activities. The subsidy is paid via this Corporation. I am not going to spend any of the time of the Committee in criticising the working of this Corporation. All I want to know is whether, as a monopoly, it does not; escape through the hole in the net which says that any monopoly set up by a Statute does not have to be registered. Will this be registered as an agreement to which Part I of this Bill applies? Those were the two questions that I wanted to ask the noble and learned Viscount on the Motion that the clause stand part of the Bill.

VISCOUNT HAILSHAM

As I have a question to put to the noble and learned Viscount, perhaps I might, in addition to putting my own question, have a shot at answering the two which have just been posed to him, in order that one good turn may subsequently deserve another. I think the noble Lord on the Front Bench opposite is making extremely heavy weather of this matter. As regards his first question, the difficulty largely arises—I had to consider this point myself quite recently—from the fact that in their Report the Monopolies Commission nowhere exactly or precisely define what they mean by "an aggregated rebate", nor have I heard the noble Lord exactly define what he means by it either. Therefore it is rather difficult to answer the question as to what particular clause the aggregated rebate comes under, because one has not yet been told, either by the Monopolies Commission in their Report or by the noble Lord opposite, exactly what is meant by the phrase.

But I think the point is this: that it clearly is the fact that a rebate of any kind is an agreement relating to the price to be charged. It becomes registrable under Clause 6 only if, in addition to being related to that particular matter, it is a restriction, because, oddly enough, this is a Bill relating to restrictive trade practices. But the fact that it is a rebate would, I should have thought, of itself ordinarily have brought it within the terms of Clause 6 (1) (a). The second point, about the Fatstock Marketing Corporation, I think illustrates the fact that the noble Lord opposite has still got it into his head that this is a Bill dealing with monopolies; it is not. It is a Bill dealing with restrictive trade practices. The noble Lord opposite likes the Monopolies Commission. Well, monopolies are dealt with by the Monopolies Commission, and will continue to be dealt with by them after this Bill becomes law, if it does.

LORD LUCAS OF CHILWORTH

I do not know to whom I should address my questions, whether to the noble and learned Viscount who is in charge of the Bill or to the noble Viscount, Lord Hailsham. I was not so much talking about the monopoly aspect. A restrictive practice has arisen in regard to the Fat-stock Marketing Corporation and its activities in regard to pigs for bacon. I do not know why it is that when anybody on this side of the House, in an attempt to improve the Bill, tries to elicit information and to make himself precise and accurate, he is always accused of making heavy weather. I do not know why that should be. Perhaps the noble Viscount is used to making heavy weather. But I want to know about an aggregated rebate. There is no explanation as to what is an aggregated rebate.

VISCOUNT HAILSHAM

I was actually addressing the Committee when this second speech was commenced. I thought the noble Lord was intending to put to me a question; that is why I gave way. Since he has raised the question, may I say that Back Benchers on both sides of this House have just as much right to take part in the consultations of this Committee as the noble Lord himself or the noble and learned Viscount of the Woolsack. I was proposing to address myself to Clause 6 in general, and I thought perhaps it was a matter of courtesy to the noble Lord on the Front Bench opposite if I sought to answer the two points that he made. But he really must not seek to confine debates in this House to a sort of dialogue between the two Front Benches. I was venturing to say, and I venture to say now, that if he reads his speech he will see that he was making very heavy weather of the matter.

This is not a Monopolies Bill. I was pointing out to the noble Lord that this Bill does not deal with monopolies; it deals with restrictive trade practices. It may be that an individual, unnamed agreement is not within the terms of this clause. Until one knows the terms of the agreement, whether it concerns the Fatstock Marketing Corporation or any other body, one cannot very well give an answer to the question. I should think that my noble and learned friend on the Front Bench would be extremely foolish to attempt to do so, because one thing that a lawyer knows is that if you are going to advise as to the effect of an agreement you must first look at the agreement.

The first point I wanted to ask my noble and learned friend below me was this—it is a matter of which I have given notice, and I know that it has exercised some people who are interested in this Bill. He has privately told me what the answer is, but I think we should have it in public. At first sight there appears to be a drafting error in Clause 6 (1) (b). Since the second of the two matters to which this restriction may relate is defined as the terms or conditions (other than terms as to prices), at first sight it would seem that there is the deliberate omission of the word "conditions" where the word "terms" occurs for the second time in that line. It might appear at first sight as if it was intended that conditions as to prices do not come within either of the two paragraphs. My own feeling about it is that this is, if anything, purely inadvertent, and that either the word "conditions" ought to be inserted or the noble and learned Viscount the Lord Chancellor should tell us that it would make no difference if it were inserted. I should have thought the clause would have been more clear if it said "otherwise than as to prices", so as to make it perfectly plain; but I think the public should be told whether the apparent misdrafting was done deliberately, with sonic legal effect, or whether it was done inadvertently with no legal intent.

LORD SALTOUN

If I may interrupt this "Midshipman Easy" duel with two questions on this clause, may I point out that my first question was precisely that formulated by my noble friend Lord Hailsham. Friends of mine were also anxious on that precise point, and they enquired of the Board of Trade. The explanation given by the Board of Trade is that the expression "the prices to be charged" in Clause 6 (1) (a) must be regarded as "terms as to prices", and that is why in Clause 6 (1) (b) one finds the expression "terms or conditions (other than terms as to prices)". I am bound to say that even that answer, like most answers from Departments, leaves me still scratching my head, and I want to know whether there is any difference between "terms" and "conditions" and, if so, whether the expression "prices to be charged" does not include conditions. If the noble and learned Viscount could be explicit on that point, my friends would be grateful.

The second question arises out of the Amendment of Lord Alexander of Hillsborough. I have sympathy with his complaint, but the noble and learned Viscount the Lord Chancellor undertook to look into agreements for which the only evidence would appear to be that the course of events would justify the supposition that the agreement existed. May I give an example that occurs to me? Supposing that one were watching a cricket match and a team consistently cut every off-side ball, would that be sufficient evidence to argue an agreement between members of the team always to cut off-side balls? Or if you introduce a kind of spot stroke rule that every fifth off-side ball was driven, would that be sufficient to defeat the evidence? Is that the kind of thing that will be looked into under this undertaking? Because it seems to me that if one tried to legislate for that kind of thing, one would get into very deep water.

LORD ARCHIBALD

May I try to amplify the question regarding the Fat-stock Marketing Corporation put by my noble friend Lord Lucas of Chilworth? I should say for the benefit of the noble Viscount, Lord Hailsham, that I am not concerned with it in its capacity as a monopoly, if it is a monopoly, but with regard to the nature of the agreements which it enters into. I may say I am a supporter of the Fatstock Marketing Corporation, so I do not raise the matter critically but to elicit information. As I understand it, that Corporation enters into agreements with big factories throughout the country, covering about 80 or 90 per cent. of the total bacon-producing capacity, and these agreements provide that the Corporation becomes the exclusive supplier of bacon pigs to those factories. Do those agreements between the Corporation and the bacon factories which have that exclusive element in them come within the scope of the Bill, and would those agreements be registrable?

THE LORD CHANCELLOR

May I take the points in the order in which they were put to me? I am glad to be able to reassure the noble Lord, Lord Lucas of Chilworth, that aggregated rebates have not fallen by the wayside and have certainly not been dropped. In our view, the system is registrable under subsection (1) of Clause 6. I do not tie myself either to paragraph (a) or paragraph (b), because, as the noble Lord is aware, there are different ways of providing for aggregated rebates and it depends on the form of the agreement. But, so far as we can see, they will be caught by either paragraph (a) or paragraph (b).

VISCOUNT ALEXANDER OF HILLSBOROUGH

Would the noble and learned Viscount give us his definition of an aggregated rebate?

THE LORD CHANCELLOR

I cannot improve on the one in the Monopolies Commission Report on Collective Discrimination. I have not gone beyond that and II have used it as my bible in this matter. I throw myself on the mercy of the noble Viscount. I am using it in the sense in which it is used in that Report, and that is the sense in which we have dealt with it. There was one matter with regard to Clause 5 about which the noble Lord was worried, and I wanted to reassure him on that point. Clause 25 deals only with Part II of the Bill and does not have any effect on Part I. There is no escape there.

LORD LUCAS OF CHILWORTH

May I be perfectly certain? A rebate which falls within paragraph (a) or paragraph (b) of Clause 6 (1) is not covered as a discount in Clause 25?

THE LORD CHANCELLOR

That is so. I agree with the noble Lord and I just wanted to give him it as clearly as I could. Clause 25 contains supplementary provisions dealing with the application of Clauses 23 and 24 to conditions as to discounts, allowances for goods taken in part exchange, and hire purchase charges, and includes certain modifications in their application to Scotland and Northern Ireland. It contains a condition as to the amount of discount which may be allowed on resale of goods. For the purposes of Clauses 23 and 24, that condition is to be treated as a condition as to the price at which the goods may be resold.

That deals with the first point, and then we move into the mellifluous climate of pigs and bacon. I am not absolutely clear about the agreements which the noble Lords, Lord Lucas of Chilworth and Lord Archibald, have in mind, but I should like, first of all, to state the general principles, so that the noble Lords can consider the position. Under subsection (1) of Clause 7, agreements and arrangements entered into by the nationalised industries and the agricultural marketing boards would not be subject to registration in so far as they have been expressly authorised by or under any enactment. On the other hand, an agreement which is not expressly authorised will be subject to registration. I quote that, because I think it is good to have the dividing line clearly stated; and, of course, one would have to consider the various agreements which have been made under the marketing schemes with which your Lordships are familiar. Therefore I accept the caution of my noble and learned friend Lord Hailsham against attempting to construe an agreement which I have not seen. If there is a registrable agreement—for instance, if farmers agreed to sell only to the Corporation—it will not be exempted by subsection (1) of Clause 7, to which I have just referred, as it is not authorise by Statute.

My noble friends, Lord Hailsham and Lord Saltoun, raised points in connection with the terms of paragraph (b) of subsection (1) of Clause 6. The reason why the draftsman has not included a reference to conditions against the words in brackets in that paragraph is that provisions relating to prices are comprehended exclusively under the expression "terms", so that "conditions" relates to provisions concerned with something other than prices. There is no doubt that that is the reason for the drafting; but I will gladly have a look at it, if my noble friends are still in some doubt, although I do not think there is any drafting difficulty. I should also point out that, in any event, there is no legislative weight on the words in brackets, although there is good reason for having them there—to prevent any overlapping between paragraphs (a) and (b). As there appears to be some difficulty, I shall be glad to go into it with Parliamentary counsel, however, and I am grateful to the noble Lords for bringing these points to my attention. I have done my best to answer them, and I hope noble Lords will now accept the Amendments.

LORD LUCAS OF CHILWORTH

My Lords, may I thank the noble Viscount for his very helpful exposition. The matter is now quite clear.

LORD SALTOUN

My Lords, I think my friends will now be satisfied with the reply of the noble and learned Viscount.

Clause 6, as amended, agreed to.

Clause 7:

Excepted agreements

7.—(1) This Part of this Act does not apply to any agreement which is expressly authorised by any enactment, or by any scheme, order or other instrument made under any enactment, or to any agreement to which the only parties are interconnected bodies corporate or individuals carrying on business in partnership with each other.

(3) No account shall be taken for the purposes of this Part of this Act of any term of an agreement for the supply of goods, or for the application of any process of manufacture to goods, which relates exclusively to the goods supplied, or to which the process is applied, in pursuance of the agreement:

Provided that where any such restrictions as are described in subsection (1) of section six of this Act are accepted as between two or more persons by whom, or two or more persons to or for whom, goods are to be supplied, or the process applied, in pursuance of the agreement, this subsection shall not apply to those restrictions unless accepted in pursuance of a previous agreement in respect of which particulars have been registered under this Part of this Act.

(10) No account shall be taken for the purposes of this Part of this Act of any agreement to comply with or apply, in respect of the production of any goods or the application to goods of any process of manufacture, standards of dimensions, design or quality for the time being approved by the British Standards Institution.

4.3 p.m.

LORD GRANTCHESTER moved to add to subsection (1): Provided that this subsection shall not apply to any agreement registered or subject to registration under this Part of this Act by the parties or some of them which have subsequently become interconnected bodies corporate or individuals carrying on business in partnership with each other. The noble Lord said: One of the purposes of this Bill is to discourage any trend to monopoly or undue concentration of power. I am sure that Her Her Majesty's Government do not wish, in consequence, to encourage any firm to move in this direction for the purpose of bringing them outside the Bill. I suggest that the Amendment which stands in my name is a suitable precaution and I beg to move.

Amendment moved— Page 6, line 37, at end insert the said proviso.—(Lord Grantchester.)

LORD MANCROFT

The noble Lord, Lord Grantchester, has not told us a great deal about his Amendment. Perhaps he is hoping that we shall take it at its face value and consider that his name is enough to guarantee its virtues. I believe that we should look at it a little more carefully. Clause 7 (1) exempts from Part I of the Act agreements to which the only parties are inter-connected bodies corporate or individuals carrying on business in partnership with each other, If I have correctly understood this Amendment, its effect would be that any such agreement would not be exempt if the inter-connected bodies corporate or partnerships had been formed after the Act came into operation. While the intention of the noble Lord is to prevent the formation of inter-connected bodies corporate and partnerships simply for the purpose of evading the Act, I am afraid that the Amendment lie proposes would not be in any way practicable. The formation of such trading units is part of the ordinary machinery for running the commerce of the country. Participants in them may make restrictive agreements among themselves as a consequence of the way in which relations between different parts of the business are organized but to make such agreements subject to the Bill would be to put an entirely unreasonable obstacle in the way of trading in this country.

There is another point. It is highly improbable that, with all the financial implications involved, inter-connected bodies corporate or partnerships would be formed simply in order to evade the Bill. Again, inter-connected bodies incorporate which controlled at least one-third of the supply of any particular kind of goods in the United Kingdom, could, of course, be referred to the Monopolies Commission under the Monopolies Act, 1948. The second point is that partnerships are exempt only if they consist of individuals and where none of the partners is a company. For those reasons I should like the noble Lard to be good enough to consider this matter again, as Her Majesty's Government cannot see their way to accept the Amendment.

VISCOUNT ALEXANDER OF HILLSBOROUGH

I am sorry to hear that answer, for, whatever one may think of the merits of the drafting, the Amendment has a very good object in view. We are exceedingly doubtful of some of the provisions of Clause 7, with regard to excepting altogether certain operations from this Part of the Bill. If your Lordships will look at subsection (1), the people there represented are, in our view, those who commonly and generally discriminate. It does not seem to matter much whether they are a particular formation as set out in subsection (1) or some other formation if they are permitted under British law to discriminate. We think that is shocking. I know that this provision refers especially to collective agreements, and I do not know why this particular form should be put into subsection (1).

I have a great deal of sympathy with the obvious object of the noble Lord, Lord Grantchester, in his Amendment, and if there is any way in which it can be improved, through the collective wisdom of the Front Bench lawyers, so much the better. But those of us who have had to contend against discrimination feel that where there is a body corporate or a partnership, although one may have all the names, titles and articles of association, there may also be, in effect, different kinds of separate commodities, and, therefore, subsidiary trade channels which are affected and become an absolute part of a collective agreement. It would be in the interest of all those who would like to return to the righteousness of mediæval law to decree that we should have something to prevent wrongful happenings. I should even welcome the partial restoration of a decent attitude in trade and distribution, such as was sought to be obtained in the Middle Ages and which has been so sadly interfered with by modern practice.

THE LORD CHANCELLOR

May I first state a ground of agreement with the noble Viscount, Lord Alexander of Hillsborough, on the almost perfect draftsmanship of that medieval Bill which he and I, in our time, have both studied. It is an interesting point, though it may have no great relevance, that it is difficult to find on the Statute Book a better or clearer piece of drafting than that. With regard to the noble Viscount's general doubts on subsection (1) of Clause 7, may I, again speaking from memory, give him my experience of this matter? This subsection, first of all, covers an agreement which is expressly authorised by any enactment or statutory scheme. When the Bill produced by the Government of which the noble Viscount was so distinguished a member came before another place—I refer to the Monopolies and Restrictive Practices moved an Amendment that that Bill should cover nationalised industries and statutory schemes. The Amendment was rejected by the other place, and the noble Viscount. by his agents in that place, told me that it was highly unsuitable that I should apply monopolies practice to schemes which were the result either of the nationalisation policy of the Government or of the statutory controls by which they stood. The noble Viscount has now come full-circle and the first part of subsection (1) is the result of his rejecting my Amendment eight years ago.

VISCOUNT ALEXANDER OF HILLSBOROUGH

I really cannot accept that. A monopoly, of course, may be applied in terms of nationalised industry, but in fact it has none of the evils of a monopoly such as those which have been so much inveighed against by all sections of the communities in many countries. A harmful monopoly is one which restricts the benefits of the monopoly to a limited number of partners or shareholders. That is one of the evil effects. But where the whole of the population of the country have equal rights in the ownership of a State industry that is a very different state of affairs indeed, so I do not accept the noble and learned Viscount's interpretation of the matter of which he has just spoken.

LORD SALTOUN

Would the noble Viscount, Lord Alexander of Hillsborough, include as benefit shared by all those occasions when the whole public has the pleasure of paying for the support of the monopoly?

THE LORD CHANCELLOR

Perhaps I may continue my speech in this most interesting discussion. I do not want to keep on the general point for too long a time. I wish to say that I am a "wholehogger" on this matter. I believe that all monopolies have the essential evil that those who participate in them may sit back on the monopoly and, in reliance on the monopoly, fail to exert themselves in order to get the utmost of their production for the benefit of the community or to pass on to the community lower prices. My view is that every form of monopoly cannot avoid that vice—indeed, I go a bit further. But let us say no more now, because the noble Viscount and I can find a considerable field where we see the vices, though we may not agree as to its extent. I put it seriously that once statutory monopolies—if I may speak of them in that way—have been excluded from the purview of the legislation we have to provide for them in subsection (1), and I need not put my argument any further.

On the second point, I want to limit the field of argument to this: that, so far as there is anything sinister in interconnected bodies corporate, it would be sinister only where, as Lord Mancroft has said, it is to be an instrument for getting a third, or whatever the figure may be, which brings one within the scale of monopoly. In that sense, this clause will not alter the ability of the community to deal with that point. But inter-connected bodies corporate are, in essence, an entity; and, similarly, partnerships are an entity in which two or more people agree to trade together. Although for purposes of drafting they may sound long, these are entities, and I do not think one can stop arbitrarily the period at which they operate, which is what the noble Lord, Lord Grantchester—I agree with the best intention—is trying to do. Our point is that this arbitrary moment of time will not help us. If the noble Viscount, Lord Alexander of Hillsborough, has another approach—namely, if he has in view an inter-connected body corporate used as a means to avoid the Act—that is a matter which I will consider at once. But I do not think that this arbitrary moment of time helps us.

LORD LUCAS OF CHILWORTH

I think we are on a very important point. I am not much afraid of this particular subsection in Clause 7, but the menace assumes substantial proportions when we find precisely the same subsection in Clause 23. I have an Amendment on the Marshalled List to leave out that subsection. The noble and learned Viscount says that that is dealing with a different set of circumstances. I agree with him. I raised this point on Second Reading of the Bill. I can see the reason for this subsection in this clause, because manufacturing arrangements of inter-connected bodies corporate are a very convenient way of producing things cheaply—and maybe, as my noble friend Lord Alexander of Hillsborough says, of charging a high price. When we get to Clause 23 then I think there is a case to be made against the subsection.

I can give instances straight away. Take Unilever. I think I am right—though I speak with some reserve—when I say that the whole mass of companies tied up in the Unilever organisation from those which manufacture sausages and ice cream to those which make detergents, could operate a collective price maintenance scheme because they could contract out by having an inter-connected body corporated which would come under Clause 23. I should like to wait until we get to Clause 23 before saying more on this point, because I do not want to confuse the two issues. I have my doubts whether a registrable agreement should necessarily be outlawed, if it is made after the date of the coming into law of this Bill. I should rather like to leave the argument on the other side until we get to clause 23. I think that Lord Grantchester's only object was to prevent someone forming a ring—which is the vulgar name for an inter-connected body corporate—for the purpose of evading the Act. If the noble and learned Viscount would allow me, I will deal with the noble Lord's point later.

LORD GRANTCHESTER

I am sorry if I did not give a sufficiently full explanation of the Amendment. I thought that the wording was quite clear and I wanted to save time. My object was, as Lord Lucas of Chilworth has said, not to stop any amalgamations but to prevent their being used as a device to prevent registration. If the noble and learned Viscount will look at this matter again I shall be pleased to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.20 p.m.

LORD MANCROFT moved, after subsection (2) to insert:

"(3) In determining whether an agreement to which iron and steel producers as defined by the Iron and Steel Act, 1952, are party, whether with or without other parties, is an agreement to which this part of this Act applies, no account shall be taken of any term whether expressed or implied—

1. (a) by which those producers agree to acquire raw materials or other iron and steel products as so defined exclusively from a person who undertakes the importation or distribution of those materials or products as a common service for the iron and steel industry in pursuance of arrangements approved by the Iron and Steel Board and by the President of the Board of Trade, or from any person nominated by such a person; or
2. (b) by which any such person agrees to supply such materials or products exclusively to those producers."

The noble Lord said: This is really an important Amendment. Its purpose is to prevent a possible clash of jurisdiction between the provisions of this Bill and Section 11 of the Iron and Steel Act, 1953. I do not know whether your Lordships have that Act at your fingertips, but under Section 11 of the Act, the Iron and Steel Board and the Board of Trade are givers certain functions as regards imported raw materials for the iron and steel industry and as regards imported iron and steel products. If the Steel Board is satisfied that the importation and distribution of these raw materials can with advantage be carried out as a common service for the industry, and if, in the Board's view, satisfactory arrangements to this end do not exist, then the Board must itself arrange for the common service to be undertaken. The Steel Board may make similar arrangements as regards finished steel products, and must make them if the President of the Board of Trade so directs, if either the Steel Board or the President, as the case may be, considers that the supply of these products is or may be inadequate. In the case of both raw materials and finished steel products any arrangements made by the Steel Board under Section 11 cannot provide for the sale of imports below cost except with the consent of the President of the Board of Trade.

If, in fact, the Steel Board, under these provisions, made arrangements itself for the importation and distribution of raw materials and steel products, these activities would not be subject to the Restrictive Trade Practices Bill, since they would fall under subsection (1) of Clause 7, which exempts from Part I of the Bill agreements expressly authorised by an enactment or by any scheme, order or other instrument made under any enactment. This subsection would not, however, cover agreements made by the industry with the approval of the Steel Board. So far as the generality of the restrictive trade agreements in the steel industry are concerned, of course, these will be subject to the Bill like those of any other private industry; and it is not proposed to alter this. However, it will be seen that the common services for importation of raw materials and steel products are in a different position, since, in certain circumstances, and subject in certain matters to the approval of the Board of Trade, these services could be the responsibility of the Steel Board. I think that your Lordships will agree that it would be somewhat anomalous if such arrangements were outside the Bill if operated by the Steel Board but came within the Bill if operated by the industry with the approval of the Board. This Amendment, therefore, eliminates this anomaly. Of course, if the Steel Board and the Board of Trade did not approve the arrangements, but none the less these continued in operation, they would then come within Part I of the Bill.

Your Lordships will see that the agreements which will be excluded from the Bill by this Amendment are those under which steel producers bind themselves to buy exclusively from a particular person. Such agreements are a usual feature of common service arrangements and therefore must be excluded if the intention of Section 11 of the Iron and Steel Act is not to come into conflict with the present Bill. The Amendment makes approval of the arrangements dependent not only upon the Iron and Steel Board but also upon the President of the Board of Trade.

Your Lordships will see from the wording of Section 11 of the Iron and Steel Act, 1953, that ministerial approval is provided for on certain aspects of the arrangements for which that section provides. Furthermore, the general principle followed in these matters is, I believe, a sound one—namely, that, unless Parliament has expressly authorised a restrictive practice, it must be justified under the terms and provisions of this Bill. If, in the particular and rather special circumstances affecting the purchase of raw materials and steel products for the steel industry, an exception is to be made, then it seems reasonable that Parliament should have the right to question the responsible Minister as to what has been approved and why. I beg to move.

Amendment moved— Page 6, line 42, at end insert the said new subsection.—(Lord Mancroft.)

VISCOUNT ALEXANDER OF HILLSBOROUGH

I have tried to follow the noble Lord's explanation. The most reasonable thing I heard was at the end, when he said that it was going to be possible to question the Minister. Whether any of the rest of it is reasonable, I do not know. When I look at the terms of this Amendment and see, for example, that this exemption is to include distribution as well as the acquiring of raw materials for the industry, I ask: where are those agreements going to begin and end? In the light of this Amendment it seems to be difficult to establish whether they are discriminatory or not.

What is the real object of the Government in this Amendment with regard to the arrangements made for the distribution of the products of the iron and steel industry? The Government have taken away this industry from nationalised ownership, under which it was doing exceedingly well. It was being capitalised at a rate at which it had never been capitalised before, and the foundations had been laid for a greater output and for great prosperity for the limited number of shareholders who got it back. I think that under this Amendment we might be subject to an unreasonable amount of discrimination in the distribution of iron and steel products. What is the object here? I may be looking at this through double glasses. I may be a little more suspicious of this matter than some other people might be, but I should like to know what it means when it refers to distribution as well as to the buying and importation of raw materials. In the distribution of the finished product why should these producers not be subject, like the firms of the so-called free iron and steel industry, to the registration of any agreement by which they are prepared or not prepared to supply those anxious for their products?

THE LORD CHANCELLOR

I think it is perfectly comprehensible that the noble Viscount should have issued that warning. But, rightly or wrongly—and that is res judicata so far as our discussion is concerned—we have decided to adopt the plan of controlled freedom of the steel industry under the Steel Board. Obviously, the noble Viscount does not agree with that plan, which was discussed at length at the time. That being so, Section 11 of the Act of 1953, as my noble friend said, lays duties on the Steel Board which broadly cover the point the noble Viscount has in mind. We must allow the Steel Board, a body operating on behalf of the community as a whole, to have the right to see that these common service agreements are properly carried on. Although the noble Viscount does not like our scheme, in a sense this is the Part of the scheme which I should suppose he dislikes least, as it is the part in which the community imposes control on the operation of the industry through the Steel Board, a highly respected body operating on behalf of the public good. What we have done in addition—and I notice, that this attracted the noble Viscount's approval—is to bring in the Minister, so that if there are any questions that trouble the noble Viscount, it will be possible to put down a Question to the Minister, or whoever answers for him, so that there cannot be any misuse of these powers. I can see the difficulty of the noble Viscount.

VISCOUNT ALEXANDER OF HILLSBOROUGH

The difficulty I have very much in mind is that with the distribution of steel the difficulty is not always a question of price, as it is in other commodities; it is a question of priority in distribution to the general users of steel. On that point we have had considerable difficulties in the past. While all controls can be onerous at sonic time to some part of the community affected, nevertheless, when it comes to a body of this kind, it can be discriminatory as well as onerous.

THE LORD CHANCELLOR

I will, of course, examine carefully what has been said, but I should have thought that a common service under the Steel Board, which is acting in the general public interest, would be the least likely machinery of discrimination. What I was saying—and I think the noble Viscount agrees with this—is that it is right that in these circumstances, where there is any doubt at all, there should be an approach to the Minister so that the matter can be dealt with in a Parliamentary way.

It is a difficult matter. I think the noble Viscount and I would agree this far: that where there are two parallel pieces of policy—even if it is the policy of the noble Viscount, of nationalisation, or if it is our policy, of controlled private enterprise—on the one hand, and an anti-trade restriction policy, on the other, there are bound to be difficulties where the two policies advance, if not exactly parallel, but covering the same country, so to speak. That is the problem that we have to deal with, and I hope that, on reflection, the noble Viscount will feel that we have dealt with it fairly and properly. If he has any doubts, of course, he has only to write to me about them.

On Question, Amendment agreed to.

LORD MANCROFT

This is a drafting Amendment. I beg to move.

Amendment moved— Page 6, line 43, leave out from beginning to ("an") in line 44 and insert ("In determining whether").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

This, too, is a drafting Amendment. I beg to move.

Amendment moved— Page 6, line 45, at end insert ("is an agreement to which this Part of this Act applies no account shall be taken of any term ").(Lord Mancroft.)

On Question, Amendment agreed to.

LORD LUCAS OF CHILWORTH moved, in the proviso to subsection (3), after "accepted" to insert "or imposed". The noble Lord said: This is the Amendment that I referred to previously.

THE LORD CHANCELLOR

Could we discuss Amendments Nos. 11 and 12 together?

LORD LUCAS OF CHILWORTH

Yes I will speak on the two together. In a number of industries the distribution is carried on by a network where there are tripartite agreements. There is agreement between the manufacturer and the wholesaler, and the manufacturer and the retailer, to which the wholesaler is attached. Sometimes the goods physically go through the wholesaler, and sometimes they go straight to the retailer. As I see it, under this subsection the whole of the network—that is to say, every agreement, even if it is an agreement from the original supplier to the retailer, to which the wholesaler is a party—will have to be registered. I should have thought that the registration of the root agreement would have been all that was desired, and that this would save the registration of thousands of agreements. As I said to the noble Lord, Lord Mancroft, just now, I am afraid the Registrar is going to have a superhuman task in sorting out these agreements and registering them. This is an effort to help the Government to simplify their procedure in all the mass of agreements that must come in from thousands upon thousands of those who sign agreements with manufacturers for the sale of their goods. I think it is self-explanatory.

Amendment No. 11 is really a drafting Amendment, because if you have a condition in the future imposed upon you that is a little different from having an agreement which is accepted by you. I am afraid the noble and learned Viscount is going to say that he cannot accept this Amendment because technically every agreement will need to be registered Frankly, I think they will have to be registered. I am trying to give the Government a blank coverage, but I think I shall fail, because for technical reasons they will have to be registered. I think the "blanket" which the noble and learned Viscount tried to put out in the first substantial Amendment we discussed will fail for the same reason. I have spoken on Amendments Nos. 11 and 12 so that I may receive a reply, but I now move Amendment No. 11.

Amendment moved— Page 7, line 8, after ("accepted") insert ("or imposed").—(Lord Lucas of Chilworth.)

THE LORD CHANCELLOR

The noble Lord has raised a difficulty here. I should like to give him my views, and then perhaps he will consider whether there is any hopeful line which we might discuss before the next stage of the Bill. I think it would be useful if I put my views so that the noble Lord may have them in mind. He will have observed that subsection (3) of Clause 7 exempts from Part I of the Bill agreements for the supply of goods, provided that the terms of the agreement relate exclusively to the goods supplied, and that, if restrictions are accepted between two or more of the parties selling, or two or more of the parties buying, these restrictions stem directly from an agreement between these parties which is already on the register, which the noble Lord has termed the "root" agreement.

It is clear, I think, that the intention of the Amendment is that this exemption should be extended to cases in which a manufacturer supplies his goods to a dealer through a wholesales, and all three are parties to an agreement in which restrictions are accepted by them all. That is the problem. The noble Lord has argued that this agreement relates exclusively to the goods supplied, but is not covered by subsection (3) of Clause 7 because there are two suppliers who are party to it, the manufacturer and the wholesaler, who do not accept restrictions under a root agreement. There is one difficulty. This kind of agreement may not, in fact, be an agreement for supply, because the manufacturer may accept restrictions vis-à-vis the dealer, although not supplying the goods to him direct. The agreement would not, therefore, be affected at all by subsection (3). In addition, it seems unlikely that the restrictions in the agreement would relate exclusively to the goods supplied, as they might include, for example, an undertaking by the manufacturer that he would not sell his goods to any other distributor in the area. It seems that the kind of agreement which is in mind could not, in any case, stem from a root agreement which is on the register, because it would contain restrictions other than those accepted by the manufacturer in any root agreement with his fellow manufacturers. I think one must face that difficulty.

The conclusion is that no extension of the terms of subsection (3) could exclude the type of agreement which has been described, and, on the information available to the Government, we should not be willing to make a special exception in the Bill for this type of agreement. Although the exemption might be directed to the circumstances of a particular industry, the noble Lord will see that it has to be a general provision. We cannot say that this will apply to motor distribution and not to any other. That is a difficulty which we feel. The Amendment would have to be cast in general terms and might, therefore, cover a much wider range of restriction of competition than was intended. I do not think I have taught the noble Lord anything, because he frankly admitted that a difficulty existed; but I thought he would like to see how my mind moved on the matter. If he can give us more particulars of the agreements which he has in mind, I shall be pleased to consider them. I do not think I can go further than that—I do not think anyone would want me to, especially the noble Lord himself. But I should be perfectly happy to do that, and if we can find something narrow which would meet his point without having evil repercussive effects, nobody would be happier than I.

LORD LUCAS OF CHILWORTH

I was afraid that the noble and learned Viscount would say precisely what he did say—he could not say anything else. I will accept his offer, and if I can suggest anything I will, although I do not think I can. This is the inherent weakness of this Bill, in going about it in this way. There may have been a weakness the other way, but you will have thousands upon thousands of agreements sent in before you finish. I appreciate the point that you have to cover all these things and that you cannot find one blanket agreement or one blanket clause. Therefore, the work will be stupendous. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD MANCROFT

The effect of this Amendment is to limit somewhat the exemption from the scope of the Bill which is given to certain types of agreements by subsection (4) of the clause which we are now considering. The exemption is designed to cover sole agency arrangements—that is, arrangements under which a manufacturer appoints one particular trader to handle his goods in a particular area. This kind of arrangement world not in all cases necessarily come within the scope of the Bill, since both the parties may not accept restrictions in the terms of subsection (1) of Clause 6. If, however, a registrable agreement is involved, it is the intention to exclude it from the Bill since sole agency arrangements are a common and useful piece of the machinery of commerce. However, subsection (4) of Clause 7, as drafted, makes the exemption rather wider than is necessary to achieve the Government's purpose. The result of my Amendment will be that exemption will apply only where, first, there are no mere than two parties to the agreement, neither of them being a trade association and, secondly, all the restrictions relate to goods of the same description. I am sure that that arrangement will commend itself to your Lord5hips, and I beg to move.

Amendment moved— Page 7, line 11, leave out from ("sub-section") to ("restrictions") in line 14 and insert ("this Part of this Act does not apply to any agreement between two persons, neither of whom is a trade association within the meaning of section six of this Act, being an agreement to which no other person is party and under which no such restrictions as are described in subsection (1) of section six of this Act are accepted other than").—(Lord Mancroft.)

LORD LUCAS OF CHILWORTH

Again, I have my doubts about this Amendment. I do not know how the noble Lord is going to treat an Amendment I have later on. The object of my Amendment is to ensure that exclusive agreements do not come within the scope of this Bill. I have sought to bring them within the scope of inquiry by the Monopoly Commission. Listening to the noble Lord, I feel that I should like his assurance that what he has said does not prejudice anything that I want to do later on. I do not think it does, but perhaps he would let me know.

LORD MANCROFT

I do not think it does, but I will look at it carefully.

On Question, Amendment agreed to.

LORD MANCROFT

This is a drafting Amendment. I beg to move.

Amendment moved— Page 7, line 45, leave out from ("applied") to end of line 2 on page 8.—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

This is also a drafting Amendment. I beg to move.

Amendment moved— Page 8, line 37, leave out from beginning to ("to") in line 38 and insert ("In determining whether an agreement is an agreement to which this Part of this Act applies, no account shall be taken of any term by which the parties or any of them agree").—(Lord Mancroft.)

On Question, Amendment agreed to.

4.46 p.m.

LORD LUCAS OF CHILWORTH moved to add to subsection (10): or of standards prepared by any other institution or by a trade association for the guidance of its members in relation to the following matters, that is to say, government regulations, public safety, dimensions, design, technical specifications, performance and test procedure.

The noble Lord said, I am afraid that I shall have the same reply to this Amendment as I had from the noble and learned Viscount on the last Amendment on tripartite agreements. This again is an effort to assist the Government. Subsection (10) of Clause 7 reads as follows: No account shall be taken for the purposes of this Part of this Act of any agreement to comply with or apply, in respect of the production of any goods or the application to goods of any process of manufacture, standard of dimensions, design or quality for the time being approved by the British Standards Institution. In other words, the British Standards Institution are being given a monopoly of freedom. What I seek to do is to bring into subsection (10) standards connected with motor vehicles, some of which are drawn up in conjunction with the Government, some for safety purposes, and others through the Construction and Use Regulations, of which, in time, they become part. I should have thought they could have been taken out of this Bill. In other words; all the standards that are applicable to motor vehicles, or the standards section of the manufacturing industry which sets up these standards, will have to be registered as a restrictive practice because they restrict certain things and circumscribe the liberty of people to do so. I think this is a bit hard, but I quite understand why it is done. I suppose the Government will tell me that they have a job to discriminate in favour of any one particular banch of industry which sets up a standards organisation. I will move the Amendment to hear what the Government have to say.

Amendment moved— Page 8, line 42, at end insert the said words.—(Lord Lucas of Chilworth.)

THE LORD CHANCELLOR

I appreciate two things in the drafting of this Amendment—first, the attempt to follow subsection (10) and, secondly, the attempt to limit the proposed exemption to standards which are meant to be used for technical purposes and not for restriction of competition. I note that quality has not been quoted as a matter which is regulated by the standard. As the noble Lord anticipated, I am afraid that the objective has not been achieved, and I am also afraid that it cannot be achieved. However, I have some crumbs of comfort for the noble Lord in a moment, and so I will just put my points to him.

Our difficulty is to regard such words as, "technical specifications" and "performance" as in practice relating to something other than quality, and an Amendment which, in effect, exempted from the Bill any agreements about quality is unacceptable because it would be tantamount to removing from the scope of Part I of the Bill any agreements about the "descriptions of the goods to be produced, supplied or acquired." That is one of the restrictions set out in subsection (1) of Clause 6. But in the case of the kind of standard which the noble Lord no doubt has in mind, it will be open to the Restrictive Practices Court to declare that recommendations by trade associations to their members about such standards are not contrary to the public interest. In making their judgment, the circumstances in which the standards were drawn up in relation to any Government regulations would no doubt be taken into account by the Court, because the British Standards Institution standards are in a different position, in that they are drawn up by an independent institution in which all interests are represented and which are easily identifiable. For these reasons, the Government cannot accept the argument that standards drawn up by industries are prima facie in the public interest and should not therefore be subject to the Bill.

I have another point which I hope will, to some extent, meet the noble Lord's anxieties, because, on the question of whether registering these standards may be cumbersome—and I know that that is in his mind—I think the answer is that it will be open to the Registrar to direct, in his regulation under paragraph (b) of subsection (1) of Clause 18, that individual standards need not be sent to him for registration, provided that the constitution of the association has been registered, together with particulars of an implied term that members will comply with a certain type of recommendation—that is, in this case the recommendation to observe the standard. When he has that, he can take the course I have suggested. That is the first stage where it will be possible to get rid of a lot of the cumbersome elements which the noble Lord feared. Then there is the second stage which has also been mentioned, but which I do not think I need go into. I know I have not met him entirely, but I think I have given the noble Lord some crumbs of help.

LORD LUCAS OF CHILWORTH

The noble and learned Viscount has gone as far as I could reasonably expect. I am most grateful to him. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD MANCROFT

This Amendment is consequential. I beg to move.

Amendment moved—

Page 9, line 3, at end insert— ("(12) For the purposes of this section two or more persons being inter-connected bodies corporate or individuals carrying on business in partnership with each other shall be treated as a single person").—(Lord Mancroft.)

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

Clause 8 [Classes of agreements to be registered]:

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

LORD JESSEL

On the Question whether Clause 8 shall stand part of the Bill, may I say a word or two about the procedure for the timing of the registration? Under Clause 8 (2) it is for the Board of Trade to appoint the date on which the agreements become registrable. There have been several statements in another place about this matter, but I think it is fair to say that there is still a good deal of uncertainty in industry about exactly what is going to happen. What is not clear is whether agreements in force at the date of the making of the order will have to be registered or whether it will be only those running when the period for registration comes to an end. I understand that Her Majesty's Government hope that industry will modify or put an end to existing restrictive agreements on its own initiative, for the more this is done, the fewer restrictive agreements will have to be registered. But this result which I think we all desire, cannot possibly come about unless there is a reasonable interlude between the date on which the order is made public and the date upon which the agreements in question become legally subject to registration. The Lord Chancellor's Amendment to Clause 36 (2) may have some bearing on this point.

If an order for registration of some types of agreement is to be made immediately the Act comes into force—which may be before the end of July—I hope that industry will be given proper time in which to study the Act and make its arrangements. We have the summer holidays approaching when legal advice is notoriously difficult to obtain. I suggest that January 1 would be the earliest practical date for registration; otherwise, the Register will be cluttered up with unnecessary agreements which may be well out of date a few months afterwards and which need not have been there at all. Her Majesty's Government have said that voluntary alteration of agreements is what is wanted. All I am asking for is some assurance that industry will be given a reasonable period of time to consider the provisions of this Act and to do what is necessary.

4.57 p.m.

LORD MANCROFT

I think I can put the noble Lord's mind at rest on this very reasonable point. I can give him an assurance that it is our intention, on Report stage, to introduce an Amendment to provide that particulars of an agreement made before a registration order comes into force and which is determined or varied before the end of the registration period need not be furnished to the Registrar, although particulars will, of course, have to be furnished of the varied agreement. On the assumption that this Bill passes into law at the end of this month, it is our intention to lay and publish the first registration order before Parliament adjourns for the Summer Recess. This means that industry will have about three months before Parliament approves the order, together with the actual period of registration, in which to consider whether or not to abandon or modify the agreement.

I ought perhaps to add that the Amendment will not apply to agreements made after the Registrar's order comes into force; otherwise the parties could have a series of agreements lasting just under three months, none of which would be registrable. I hope that this has set Lord Jessel's mind at rest. I can assure him that his views about the activities of my fellow members at the Bar during the Summer Recess are greatly exaggerated.

LORD JESSEL

I thank the noble Lord very much for his reply. I am sure that it will give great satisfaction to industry.

Clause 8 agreed to.

Clause 9 [Particulars to be furnished for registration]:

LORD MANCROFT

This Amendment removes the provision in Clause 9 of the Bill as it stands that, in the case of an agreement made by a trade association, the names of all the members of the association must be furnished to the Registrar. The clause as printed would mean that the names of members would have to be furnished, even if they were not carrying on business in the United Kingdom in the production or supply of goods. This, I understand, would conflict with Clause 6 (6), which makes party to a registrable agreement made by a trade association only such of the members of the association as so carry on business. When the Bill has been amended in the way I propose, Clause 9 (1) will say simply that the particulars to be furnished for registration must include the names of the persons who are parties to the agreement. I beg to move.

Amendment moved— Page 9, line 31, leave out from first ("agreement") to ("and") in line 34.—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

This is a drafting Amendment. I beg to move.

Amendment moved— Page 10, line 9, leave out ("party") and insert ("person").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT moved to add to the clause the following subsection: (6) In relation to an agreement to which this Part of this Act applies by virtue of subsection (6) of section six of this Act as if it were an agreement made between members of a trade association, or persons represented on the association by such members, references in this section to the parties to the agreement include references to those members or persons; and in relation to an agreement in which a term is implied by virtue of subsection (7) of the said section six, the reference in this section to the terms of the agreement includes a reference to that term, and references in this section to an agreement shall be construed accordingly.

The noble Lord said: The first part of this proposed new subsection removes what I understand is a defect in the Bill by requiring registration of the names of persons who, although not themselves members of a trade association which operates a registrable agreement, are represented on the association by other persons. The second part of the new subsection links up with the Amendments Nos. 5 and 6. The Committee will remember that I explained that where a trade association makes specific recommendations to its members on one of the matters described in paragraphs (a) to (e) of subsection (1) of Clause 6, the agreement for the constitution of the association will be regarded as containing an implied term that the members to whom it is addressed will comply with the recommendation. This present Amendment to Clause 9 makes provision for furnishing to the Registrar the particulars of such a recommendation, and not just the terms of the constitution of the Association.

The Committee may note that, since a fresh recommendation on the same sort of matter as the first will not have the effect of producing a new registrable agreement, particulars of such a fresh recommendation will be capable of exclusion from the obligation to register under regulations made by the Registrar under paragraph (b) of subsection (1) of Clause 18, which allows the Registrar to exclude from the particulars to be furnished to him particulars of such things as prices, which are merely applications of continuing restrictions accepted under agreements which have been registered. If, however, a fresh recommendation is made relating to some entirely different matter, this would have to be registered as a variation of the original agreement by the inclusion of a further implied term. I think the Committee will regard that as reasonable. I beg to move.

Amendment moved— Page 10, line 25, at end insert the said subsection.(Lord Mancroft.)

On Question, Amendment agreed to.

Clause 9, as amended, agreed to.

Clause 10:

General provisions as to the register

(3) Regulations made as aforesaid shall provide for the maintenance of a special section of the register, and for the entry or filing in that section of such particulars as the Board of Trade may direct, being—

1. (a) particulars containing information the publication of which would in the opinion of the Board be contrary to the public interest;
2. (b) particulars containing information as to any secret process of manufacture or as to the presence, absence or situation of any mineral or other deposits or as to any other similar matter, being information the publication of which, in the opinion of the Board would substantially damage the legitimate business interests of any person.

5.4 p.m.

LORD MANCROFT moved, in subsection (2), to leave out "may be prescribed by regulations made under section eighteen of this Act", and to insert "the Registrar thinks fit". The noble Lord said: This is a slightly different subject matter. The first of Amendments Nos. 21 and 22, enables the Registrar to keep the register in any form that appears to him to be most convenient. As the Bill stands, the Registrar is obliged to make regulations about the form in which the register is to be kept—that is, particulars of agreements must be trans-scribed in bound volumes or the original documents must be contained in individual volumes. As these details would have to be laid down by the Registrar in his regulations under Clause 18 in advance of registration, it would mean that he was tying himself down before experience had shown him what was the most convenient form that the register may take. The Amendment that I am now moving removes this provision and leaves this detailed matter to the discretion of the Registrar. I beg to move.

Amendment moved— Page 10, line 29, leave out from ("as") to end of line 30 and insert ("the Registrar thinks fit").(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

This Amendment is consequential. I beg to move.

Amendment moved— Page 10, line 32, leave out ("so prescribed") and insert ("prescribed by regulations made under section eighteen of this Act").—(Lord Mancroft.)

On Question, Amendment agreed to.

5.6 p.m.

VISCOUNT ALEXANDER OF HILLSBOROUGH moved to add to subsection (3): Provided that where an entry is made in the special section of the register an indication to that effect shall be given in that part of the register which is open to public inspection. The noble Viscount said: I beg to move the Amendment standing in my name. In view of one of the matters which the noble and learned Viscount is going to look at again before the Report stage, we think it is fundamental, if there is going to be a reasonable opportunity for those who are being discriminated against to proceed to the special Court dealing with agreements, oral or otherwise, which they think ought to be registered, that anything of the kind we are providing for here in the special section should be open to public examination. That is the reason for this Amendment. I am hoping that it is such a just and reasonable suggestion that the Government will find no difficulty in accepting it.

I am a little concerned about the general application of some of these provisions relating to the Registrar—whether, I when the Bill is enacted, they are going to be fair to all the parties concerned in possible litigation. If any of these things is kept from inspection by the public, how can the case be properly conducted? If the information recorded in the special section of the register will be quotable by the Registrar before the tribunal or in other proceedings—if it is not going to be quotable, perhaps the noble and learned Viscount will tell us—I cannot for the life of me see how anything will be gained by keeping it private from the public at that stage before the proceedings. If the matter goes to the tribunal, unless some noble Lords are successful later on in the course of this discussion in arranging that certain matters should be discussed in camera. I do not see how these matters are going to be kept private.

From the point of view of the protection of the community, it seems to me that the information should be open to the public so that they may prepare their case properly, and that certainly entries or special provisions or rulings by the Registrar in these matters, if they are going to be quotable in the tribunal, should be available to the public before the hearing. I hope that the Government will be able to accept this Amendment. I beg to move.

Amendment moved— Page 11, line 5, at end insert the said proviso.—(Viscount Alexander of Hillsborough.)

THE LORD CHANCELLOR

The noble Viscount has raised a very difficult point. The Committee will see that subsection (3) of Clause 10 provides for a special section of the register on which certain types of information that are mentioned in the clause can be kept. I would ask the Committee to look at them and to see what they are. Paragraph (a) refers to particulars containing information the publication of which would, in the opinion of the Board, be contrary to the public interest;"— the Board is the Board of Trade. Paragraph (b) refers to particulars containing information as to any secret process of manufacture or as to the presence, absence or situation of any mineral or other deposits or as to any similar matter, being information the publication of which, in the opinion of the Board would substantially damage the legitimate business interests of any person. The object of that provision is to prevent public disclosure of these particulars, and it is a matter on which the Board of Trade are to be the judge. I think that in these circumstances everyone would say that they are a suitable judge of a point of that kind.

The purpose would be defeated if the Amendment were accepted, since the public register would show what kinds of agreements were in the special section. An indication that there was an agreement would, in many cases, be almost as bad as disclosing the agreement itself. In fact, in some cases I can well imagine—and I am sure the noble Viscount could, if he looked back over his long experience in dealing with Service affairs, because that gave him such an insight into the supply side of secret processes—that the mere fact that there was an agreement between A and B would not only set tongues wagging but set brains thinking on exactly the lines which the public interest might not desire.

The noble Viscount added to his general point, very properly, the specific point: what would be the good of this prohibition on disclosure if such an agreement came before the Court, unless I accept an Amendment that the Court should sit in camera? Broadly, there is an inherent right in the Court to order a sitting in camera where the Court thinks that public interest in that limited and proper sense is involved. Therefore, provided that an agreement was on the secret part of the list, that secrecy could be maintained. At the moment, that is as far as I am inclined to go but I will listen to what noble Lords have to say.

I now come to the other side of the noble Viscount's approach, with which I have great sympathy, and that is: will there be any abuse, or is there likely to be any abuse, of the special register? This is a point one should always consider in legislation. I wanted to tell him, first of all, that the Government do not envisage that an extensive use will be made of the special section. I am told, and I have discussed this matter with the Board of Trade, that applications for entry in this part of the register will be closely scrutinised, and it would not, for instance, be the present Government's policy to relegate automatically to the special section particulars of agreements concerned with exports. Each case will be judged on its merits, to see whether the international relations of the country as a whole would be embarrassed by publication.

While I have not actually discussed the matter with my right honourable friend the President of the Board of Trade, at the moment I can see no objection to the President making a report as to the number of agreements. Parliament would then be able to see whether the numbers are growing unreasonably. These two points should, I think, provide satisfactory protection. Therefore, I would ask the noble Viscount at any rate to reconsider the matter and, if necessary, raise it again on Report, I hope he will accept my assurance that the provisions will not be used by the Board of Trade as a method of "side-stepping" the purposes of the Bill.

LORD MILNER OF LEEDS

The Lord Chancellor will forgive me. He seems to make rather heavy weather—I do not use the term offensively—of what is a simple point. I should have thought it was perfectly simple (and it could be done with perfect propriety) to enter all agreements in the register and where particular agreements had to do with "information the publication of which would in the opinion of the Board be contrary to the public interest" or "information as to any secret process of manufacture," to put opposite them "special section" or words to that effect. That, as I understand it, is the plain meaning of the words of my noble friend's Amendment. I should have thought it essential in the public interest that not only should all agreements be registered but that it should be clear to the public in which section they are in fact registered. If they are open for public inspection that is all right. That will apply, no doubt, to far and away the majority of the agreements. There are, on the other hand, the special type of which the President of the Board of Trade is the sole judge. I am not altogether happy about that. He is not, apparently, to be advised by any consultative or advisory committee, or anything of that sort, and at his own sweet will can say that this or the other agreement should not be published.

But the main point is to give an indication to the public that there is, in fact, an agreement, and that it is one of those agreements which, for one of the reasons set out in Clause 10, is not open to public inspection. That can be done perfectly simply. The public interest will be served thereby; and, with every respect to the noble and learned Viscount, I cannot think that all the contentions he made have any great validity, as one knows that the word of a Minister (in this case the President of the Board of Trade), as to what might or might not be done, is not binding in any sense of the word. Something should be put in the Act of Parliament to indicate that there is an agreement and that it is an agreement of this particular character which, for the reasons set out in the clause, is not available for public inspection. I hope, therefore, that the Committee may think fit to accept the Amendment.

THE LORD CHANCELLOR

I am sorry; I cannot give way on this Amendment. I have considered it very carefully and I should like to show the noble Lord, Lord Milner of Leeds, the sort of difficulty we have had to deal with very often and with which I am sure he is familiar. With regard to Crown privilege, that very difficult and much-discussed subject, one of the difficulties when you claim, as you are bound to claim, Crown privilege for a document is that nobody knows what is in the document, and everyone at once draws the conclusion that the Crown is suppressing a most important piece of evidence of the other side. I hope the noble Lord will take it from me that in my experience the immense majority of the documents for which I have had to claim Crown privilege would have been of very great help to the Crown if these principles did not apply.

What really worries me is this. Suppose there is an agreement between company A and company B. All informed opinion knows that company A and company B have been producing certain secret processes—and probably they know they are working along certain lines. If these two lines meet, certain conclusions are drawn. They may be right; on the other hand, they may be entirely wrong and set up a train of speculation. I attach very great importance to the views of the noble Viscount, Lord Alexander of Hillsborough, especially as he has been First Lord of the Admiralty and Minister of Defence. If he has doubts on this point, I will look at it again and speak to my right honourable friend, the President. I am not "stonewalling" on the Amendment. At the moment, I am convinced about the difficulty, but if the noble Viscount, with all his experience, thinks I should have another look at it, I will certainly do so.

VISCOUNT ALEXANDER OF HILLSBOROUGH

I should be much obliged if the noble Viscount would do so. I am moving this Amendment to a clause which is dealing principally with the power to remove insignificant agreements from the register. We want to ensure that if any agreements are put into the special section of the register which records these things, the public shall know that they have been put into that special section. Then, if there are any matters to be raised afterwards, it will not be a question of immediately getting publicity for what was in the agreement registered in that section but of seeing whether there was any connection between that special agreement and any particular discrimination from which citizen was suffering in consequence thereof. He would then have a chance to make his representations to the Board of Trade. Unless an indication can be provided in the public register that a particular agreement (the agreement about which one may be worried) has been put into the special section, it will be difficult for the ordinary citizen to find out what he can do to avoid trade discrimination against him. That is all that we are seeking.

As the noble Viscount suggests, I have been far too long in charge of matters concerning the safety of the State, with the necessity for complete security in guarding things implicitly required for the safety of the State, to want anything of that kind to drift into publicity. Certainly not: I should not dream of that. But I am concerned about the position of the citizen who is suffering discrimination and who goes to the public register provided by the Registrar to find out whether A, B, C or D has been included in the public section. It is then for the citizen, if he is not satisfied, to make representations to the Board of Trade as to what should be done to remove the discrimination against him.

THE LORD CHANCELLOR

Does the noble Viscount withdraw his Amendment on my undertaking to look into it?

VISCOUNT ALEXANDER OF HILLSBOROUGH

I am much obliged. On that undertaking I certainly withdraw my Amendment.

Amendment, by leave, withdrawn.

THE LORD CHANCELLOR

This is another lubricating Amendment designed to facilitate detailed execution by the Registrar of his functions. Its effect is to admit as evidence in legal process a copy of or extract from a document entered or filed in the register, if it is certified by an assistant registrar or any other authority authorised to act on behalf of the Registrar. As the Bill now stands, only the Registrar could certify a copy, and this is likely to be very inconvenient as the number of copies may prove to be considerable. I beg to move.

Amendment moved— Page 11, line 21, after ("Registrar") insert ("or any assistant registrar or other officer authorised to act on behalf of the Registrar").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 10, as amended, agreed to.

Clause 11 agreed to.

Cause 12 [Rectification of the register, etc.]:

LORD JESSEL moved, after subsection (2), to insert: (3) Any application made under the last foregoing subsection shall be heard in camera if any party to the agreement the subject of the application so requests and gives such notice of his request as may be required by Rules of Court.

The noble Lord said: Subsection (2) of this clause authorises the High Court to declare that a particular agreement is registrable under Clause 6. The parties to an agreement are usually anxious that the terms should not become private property, and especially should not become available to their competitors. If the proceedings are in open court, even if the Court's decision is that the agreement is not registrable, it is too late and publicity is given to the terms of the agreement. It is clear that the Court has discretion to hear an application in camera if it so wishes. Perhaps the noble and learned Viscount the Lord Chancellor will confirm this later, when he replies. I submit that this should not be a matter for discretion but that the parties should have the right to have the case heard in secret until it has been established by law that the agreement is restrictive. Then, naturally, the agreement would be published in the register and the same publicity would be given to it as to any other agreement about which any dispute has arisen. I believe it is only right that until it has been so established, the parties should have the right to make their agreements in private. I beg to move.

Amendment moved— After subsection (2) insert the said new subsection.—(Lord Jessel.)

THE LORD CHANCELLOR

I hope my noble friend will not press this Amendment, because it would make it obligatory for all such proceedings to be heard in camera. First, I think it would be a very undesirable precedent to fetter the discretion of a superior court by Statute in this way. I have refreshed my memory on the point about which my noble friend asked me. The broad principle is that hearings in camera can be held where a public hearing would defeat the ends of justice, as, for example, where particulars of a secret process have to be disclosed. There are numerous other cases—infancy and lunacy cases and the like. But may I put to your Lordships far better words than I could use? I quote my noble predecessor, Lord Haldane: I think that to justify an order for a hearing in camera, it must be shown that the paramount object of securing that justice is done would really he rendered doubtful of obtaining if the order were not made. I believe that that would cover the case which worries my noble friend where the hypothesis is the double one: first, that a secret process is involved, and secondly, that at the end of the day, if it is found that the agreement is not registrable, as my noble friend says, the people concerned ought not to be put in a less dangerous position. I believe that is covered by the present law and that it should be left to the discretion of the Court.

I believe this to be right for two reasons: it is in the general interest of industry as much as anyone else that the arguments for and against the registration of a particular agreement should be heard in public. They should know and be guided by the arguments which eventually have been upheld or rejected by the Court. And, on the other view, if an agreement was suddenly found on the list of registered agreements, no one would know who had objected or why the Court had turned down the objections. My noble friend will take it that the High Court will be open to argument by the parties to an agreement that the case should be heard in camera, and no doubt, in considering their decision, the High Court will have regard to the provisions of subsection (3) of Clause 12, which deals with the kind of agreements that may be filed in the special section of the register which will not be open to the public. With that guidance, I do not think that my noble friend need fear that the High Court will lean against the case which really worries him—namely, the case in which a secret process is involved. I hope that on that assurance the noble Lord will feel able to withdraw his Amendment.

LORD JESSEL

I thank the noble and learned Viscount, the Lord Chancellor, for his extremely interesting and detailed reply. I must confess that I am reassured to know that the discretion of the High Court will be available when they think it right to hear the cases in camera. Therefore I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Clause 13 agreed to.

Clause 14 [Power of High Court to order examination on oath]:

5.32 p.m.

LORD MANCROFT moved, after subsection (2) to insert:

"(3) Where notice under section thirteen of this Act has been given to a body corporate, an order may be made under this section for the attendance and examination of any director, manager, secretary or other officer of that body corporate; and in any such case—

1. (a) the reference in paragraph (a) of the last foregoing subsection to matters in respect of which the Registrar has given notice to the person examined shall be construed as a reference to matters in respect of which notice was given to the body corporate; and
2. (b) in paragraph (a) of that subsection, and in paragraph (d) so far as it relates evidence, references to the person examined shall include references to the body corporate."

The noble Lord said: This Amendment is a little important. Under Clause 14, the Registrar has power to apply to the High Court for an order requiring any person, to whom he has given notice under Clause 13, to attend and be examined on oath. He may give notice under Clause 13 to any person whom he has reason to believe may be a party to a registrable agreement requiring that person to notify him whether or not be is a party and, if so, to furnish him with particulars of the agreement. In many cases, the parties to these agreements will be bodies corporate, and the Registrar must, in these cases, serve notices under Clause 13 on the bodies corporate. It is, in the nature of things, impossible, however, to examine a body corporate on oath, and there is no power in Clause 14, as it stands, for the High Court to order the examination on oath of an officer of a body corporate which is a party to a registrable agreement. This Amendment is designed to put these matters right. I beg to move.

Amendment moved— Page 14, line 18, at end insert the said new subsection.—(Lord Mancroft.)

On Question, Amendment agreed to.

Clause 14, as amended, agreed to.

Clause 15 [Offences in connection with registration]:

LORD MANCROFT

My Lords, this is a purely drafting Amendment. I beg to move.

Amendment moved— Page 14, line 24, leave out ("the last foregoing section") and insert ("section thirteen of this Act").—(Lord Mancroft.)

On Question, Amendment agreed to.

Clause 15, as amended, agreed to.

Clause 16 agreed to.

Clause 17 [Powers of High Court in case of default in furnishing particulars]:

LORD MANCROFT

This Amendment and Amendment No. 29, which marches with it, are intended only to clarify the existing draft. I beg to move.

Amendment moved— Page 16, line 28, leave out from ("an") to ("and") in line 29 and insert ("application under the foregoing subsection is made against any person party to an agreement").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

I beg to move the next Amendment, which is consequential.

Amendment moved— Page 16, line 32, leave out ("such an order") and insert ("an order giving an authorisation under that subsection").—(Lord Mancroft.)

On Question, Amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18 agreed to.

Clause 19 [Jurisdiction and powers of Restrictive Practices Court]:

5.37 p.m.

LORD JESSEL moved in subsection (1), to leave out "(b)" and insert "(a)". The noble Lord said: This is a small Amendment but I think it deals with quite an important point. I should like an explanation of the reason for the omission from this subsection of any reference to Clause 7 (9) (a). As the Committee are aware, paragraph (a), refers to direct exports. I am puzzled as to why this paragraph has been left out in this particular place, as the agreements covered relate exclusively to exports and these agreements are exempted from Part I of the Bill. I beg to move.

Amendment moved— Page 17, line 43, leave out ("(b)") and insert ("(a)").—(Lord Jessel.)

THE LORD CHANCELLOR

This Amendment would exclude from the jurisdiction of the Restrictive Practices Court any restrictions which relate exclusively to the supply of goods by export from the United Kingdom. As the Bill is drafted, the Court has no jurisdiction over agreements the restrictions in which relate only—I repeat "only"—to exports from this country. Such agreements come under Clause 29 of the Bill and would be subject to notification to the Board of Trade, which could refer them to the Monopolies Commission. It might be that the agreement contained, in addition to export restrictions, restrictions which relate to the supply of goods on the home market in this country. In that case, when the agreement comes before the Restrictive Practices Court all the restrictions in it, including the export restrictions, can be judged upon by the Court. I think your Lordships, on consideration, will see that the reason for this is perfectly plain and simple. It can reasonably be assumed that, if an agreement contains both export restrictions and restrictions affecting the home market, there must be some link between the two. For example, export restrictions may be accepted by British suppliers as a quid pro quo for restrictions accepted by foreign suppliers on imports into this country. In such circumstances, the restrictions cannot be judged separately. If, on the other hand, export restrictions stand on their own, there should be no difficulty in their forming part of a separate agreement which would then be exempt from Part I of the Bill, although subject to Clause 29. For these reasons I cannot accept the Amendment. I think that on consideration my noble friend will see that I must deal with a situation which is a very common one. I am not going to mention names of particular agreements or particular firms, but I am sure that everyone in the Chamber will know one or two of them.

LORD JESSEL

I thank the noble and learned Viscount for his explanation, which satisfies me. I make no apology for raising the point, because it has puzzled many people. I now beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD MANCROFT

This Amendment is consequential to the Amendments to Clause 6 and Clause 9 dealing with the recommendations of trade associations. I beg to move.

Amendment moved—

Page 18, line 21, at end insert: (4) Where any restrictions accepted under a term implied by virtue of subsection (7) of section six of this Act in an agreement for the constitution of a trade association are found by the Court to be contrary to the public interest, the Court may, without prejudice to its powers under the last foregoing subsection, make such order as appears to the Court to be proper for restraining the association or any person acting on its behalf from making any recommendation to which that terns would apply."—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

This Amendment is purely drafting. I beg to move.

Amendment moved— Page 18, line 27, leave out ("subsection (2)") and insert ("subsection (3) or subsection (4)").—(Lord Mancroft.)

On Question, Amendment agreed to.

On Question, Whether Clause 19, as amended, shall stand part of the Bill?

LORD LUCAS OF CHILWORTH

Perhaps this is a convenient place to put a question to the noble and learned Viscount the Lord Chancellor. In setting up this Restrictive Practices Court we are departing from judicial practice in this country. It is a quasi-judicial Court, because it will contain laymen sitting with a judge; but I understand that, as it is a judicial court, the only people who will have audience before it will be barristers and solicitors. I wonder whether the noble and learned Viscount would think of varying that. We have taken one step away from precedent here, and I see no reason why we should not take a further step. I think that it would be convenient and save a considerable amount of money if we could extend audience before the Court to secretaries of companies, who may or may not be lawyers, and to accountants. They would know better than some barristers the language to use in explaining matters to lay members of the Court. I think that it would save much expense, and would help smaller firms who may have to appear before the Court, not as delinquents but for interrogation, if the noble and learned Viscount would extend this right of audience to accountants and secretaries—if he likes, with qualifications. Would the noble and learned Viscount be good enough to give the Committee his opinion?

THE LORD CHANCELLOR

I almost see the shades of Lord Eldon and Lord Ellenborough clustering round me and throwing doubt on what I say. I am grateful to the noble Lord for raising this point. He will see the right of audience laid down in paragraphs (10) and (11) of the Schedule. These say: In relation to the attendance and examination of witnesses, the production and inspection of documents, the enforcement of its orders, and all other matters incidental to its jurisdiction under this Act, the Court shall, subject to the provisions of this Schedule, have the like powers, rights, privileges and authority—

1. (a) in England and Wales, as the High Court;
2. (b) in Scotland as the Court of Session;
3. (c) in Northern Ireland, as the High Court of Northern Ireland."

Then come the material words: Every person who has the right of audience at the trial of an action in the High Court or in the Court of Session, or in proceedings preliminary to such a trial, shall have the like right at the hearing of any application to the Court, whether sitting in England and Wales or in Scotland, or in proceedings preliminary to such a hearing, as the case may be; There follow then the words with regard to Northern Ireland. That is to say, the right of audience is restricted to members of the Bar, but not restricted geographically.

I am most anxious that the problem of dealing with restrictive practices and agreements should be taken out of politics. I came to the conclusion that it would be physically and mentally impossible for any President of the Board of Trade to deal with these agreements and give personal attention to them all. Others may disagree, but I gave careful consideration to this before coming to a decision. From twenty years' experience in another place, I simply do not see how a modern Member of Parliament, with all the calls upon him, would have time to get up all the documents which would come before such a tribunal. I am also anxious that the law should play a dynamic part in the modern State. It is my belief that the law is not a static thing. It must enlarge its scope as new problems arise, with many new facets, in this most complex organism, the modern scientific and Welfare State. I believe that the law can provide the best machinery for obtaining a just result on a specific issue. So this Bill has been drafted to try, in an economic field, to find, so far as is possible, a justiciable issue which will be meet and suitable for a court to consider and to pronounce upon. That is the construction of the Bill.

So far as I can see, not only from my own conversations but from what has appeared in the Press, those who are concerned with the Bill, who will be largely those in industry, wanted a court procedure in order to be sure that the matters with which they are involved were determined in the way I have mentioned. In looking for something to work on, I took, as a model, the Railway and Canal Commission, a court which included lay members, because, in its narrower field, it had to consider problems which had an economic flavour. The noble Lord will remember that the Commission had to deal with the special rates which are given by railway companies to different parts of our national economy, and the like. In this Bill, we have produced a Court which will have like powers and authority as a High Court of England, the Court of Session in Scotland and the High Court of Northern Ireland.

I am sorry to have taken so long, but the noble Lord raised an important point. I think that it is vital to this Court that it should have the prestige of the High Court, which comes from the fact that its machinery works along lines that are well known and through persons who are familiar with it. I should be sorry to see that machinery, which is a well-tried method of arriving at the truth and justice, interfered with in the way noble Lords have suggested. That is the reason why I have come to these conclusions and agree with the conclusions embodied in the Bill. I would ask noble Lords not to think that I am old-fashioned in the reform of the application of the law; in fact, noble Lords will appreciate that since I became Lord Chancellor I have already put before your Lordships three Bills for improving the functioning of justice in this country, covering the country courts, the criminal courts in the North of England, the whole of the Admiralty practice and many other points. I believe intensely that the law must continuously adapt itself and prepare itself to deal with these modern problems. However, I should be sorry to take away from something which I believe gives great confidence—namely, a court of like power and authority as the High Court. Therefore, I think we should maintain the procedure.

VISCOUNT ALEXANDER OF HILLSBOROUGH

I am grateful to my noble friend Lord Lucas of Chilworth for having raised this point. I appreciate what the noble and learned Viscount has said about the need for making the law as efficient as possible—but law as law. I do not for a moment agree that a Court such as this can be efficient only if it is made impossible for pleadings or representations to be made except by counsel on the basis usually followed in the High Court. I think that is an undue restriction upon the citizen. It is an assumption that in these modern days of education an ordinary citizen is not capable of presenting a case under the law; that when it comes to actual gatherings of people who want to be defended against discrimination, and have joined together through their own association to be defended against discrimination, they may not employ the best representative they can get. He need not be a Silk; he need not even have been called to the Bar: he may be the man best informed on the subject, either an accountant or secretary. But he will now first have to instruct solicitors and a barrister—and the latter very often on his feet near the case—as to what case he wants to put.

I have had a great deal of experience of this sort of thing, and I have had to conduct many cases before various tribunals under various Statutes. I agree with what was said by my noble friend earlier in the day, that this Bill may well become a lawyers' paradise. Indeed, I think it is much more hard and fast than that: I think it will become a great banker's deposit for their interest. They will be able to draw upon it increasingly; the cases will be numerous and the fees substantial. The Government have thought fit to set up a tribunal composed in part of laymen, and not only a judge or lawyers, to deal with Part I of the Bill; and to say that the rules followed in the High Court must be followed rigidly and that the free citizen is not to be given the right to defend his own point of view rather "gets my hackles up." I do not consider that it is good practice in the general interest of the citizen. It is very good practice in defence of the Bar, and could no doubt be argued for by way of efficiency in certain cases which may come before the Court. But I think it is not a step forward for the ordinary citizen, rather is it a step in retirement.

LORD SALTOUN

I sympathise with what the noble Viscount, Lord Alexander of Hillsborough, has said. I have been almost infuriated at the reluctance of my counsel to say to the court before which I was appearing exactly what I wanted to say. However, I must admit that, if counsel had done so, it would not have advanced my case one jot.

LORD LUCAS OF CHILWORTH

When the noble and learned Viscount the Lord Chancellor said that he hoped your Lordships would not think he was old-fashioned I thought I saw a blush start to spread over his face. If we are doing one thing in this Bill, we are protecting the monopoly of the law—I will not call it a restrictive practice. I should not want to extend the suggestion past the Restrictive Practices Court into the High Court, from which there is an appeal to the High Court. But perhaps the Lord Chancellor will think about this point. I am not going to press him unduly. I appreciate the first part of his remarks, about the dignity and prestige of the Court—I think that is a good thing. In my view, these things want lifting on to a high level. But I was thinking about the matter of expense, and the fact that, where there is a company secretary or company accountant with professional qualifications, it might save a lot of money if he could conduct his case. Going to law and employing barristers, as the Lord Chancellor will admit, is not a cheap pastime. It is only to save money, and perhaps to have the case represented equally, that I put forward this suggestion. However, as I say, I am not going to press it now, although I may return to it at sonic other time.

VISCOUNT ALEXANDER OF HILLSBOROUGH

I am sure that friends of mine will be interested in the procedure of this Court from a trade point of view, and I should like to know whether it will be possible for a secretary of a body being discriminated against, who is a solicitor, to appear before the Court. Has he to employ counsel under High Court rules?

THE LORD CHANCELLOR

I do not understand what the noble Viscount means by "a body being discriminated against", because what happens here is that the Registrar calls up parties to an agreement; the parties have then to satisfy the Court that they come within paragraphs (a) to (g) and the tailpiece of subsection (1) of Clause 20. Unless they satisfy the Court, then the agreement is ruled against, and the parties to it may be enjoined to stop it. There is no question of people complaining about being debarred from a hearing. If you had a party to the alleged restrictive agreement, and he was brought before the Court as a party to the agreement, I cannot see anything that would prevent him from appearing in person. But that is the man on the other side of the hill from the one referred to by the noble Viscount. The representation of complainants does not conic into this matter.

VISCOUNT ALEXANDER OF HILLSBOROUGH

Why not? I am learning as I go along. I understood that the question or how we were to deal with actual restrictions that were taking place against certain sections of the public would be dealt with if they did not come at first sight under the control of the tribunal and would not be banned under this Court procedure. I understood earlier that the Lord Chancellor would take that into consideration between now and the Report stage. It seems to me to be impossible to have a powerful Court on this high level, ruling whether or not an agreement should be banned, without giving those who are being discriminated against an opportunity of submitting to the Court that the practice operating, although it has not been registered, ought to be registered. They should therefore be represented if they are presenting such a case to the Court. Surely we are not going to ban that.

THE LORD CHANCELLOR

I do not think the noble Viscount has the procedure under this Part of the Bill clear. The procedure is that every agreement which is registrable is prima facie against the public interest. Then, if anyone who is party to that agreement wants the agreement to go on, he has to show that it comes within paragraphs (a) to (g) and the tailpiece of Clause 20 (1), otherwise the agreement must end. As I have said, the Registrar will call up, and no doubt he and the President of the Board of Trade, who has the right to order him to call up in a certain order, will take first what he considers are, to put it bluntly, the worst agreements. When the agreements are called up, those who are supporting the agreement will seek to come within paragraphs (a) to (g). The Registrar will see that all relevant facts are put before the Court.

Let me explain it ad hunc for the moment—the noble Viscount will not take me wrongly. Supposing the Wholesale Co-operative Society were affected by an agreement, they would have submitted to the Registrar that they were adversely affected, and, if necessary, the Registrar would call their evidence if he thought it was relevant. That is the way it would come up. This is a procedure in respect of which there is only one way out. The only way out for a registered agreement is under Clause 20 (1). That is the procedure by which I stand, because I think it is most important that it should be put that way.

VISCOUNT ALEXANDER OF HILLSBOROUGH

This is an interesting development in my education on the Bill. I have been looking at this matter with some care and trying to find out what would happen. I gather from the noble and learned Viscount that, however large the organisation may be which is being discriminated against—say, for example, the Co-operative Wholesale Society—and whatever width of interest it may have, it has no method of approach to this matter unless it goes to the President of the Board of Trade, who will then report certain facts to the Registrar. It is left entirely to the Registrar to bring before the Court the evidence against the people complained about, and the Co-operative Wholesale Society can do no more than be called as a witness. Am I clear on that point?

THE LORD CHANCELLOR

Certainly.

VISCOUNT ALEXANDER OF HILLSBOROUGH

I think that is an amazing situation, in view of some of the later provisions in another Part of the Bill: that people who are being discriminated against cannot themselves appear before a Court whose decision is final, and against whom there is no appeal, except on a point of law. All they can do, apparently, is to go first to the Minister; then their complaint is represented second-hand, through the Minister to the Registrar, and the Registrar may kindly call them as witnesses. I think that is a most extraordinary way to treat people who want justice.

THE LORD CHANCELLOR

The noble Viscount is learning gradually. May I impress this point upon him? This is what is going to be objected to in the Amendments which are coming. This Bill says that all these agreements are contrary to the public interest unless it is proved that they come within paragraphs (a) to (g). The noble Viscount cannot have it both ways. He cannot proclaim—which is what this Bill does—agreements to be prima facie contrary to the public interest and then ask for an opportunity to prove what is already assumed. That is the point which I do not think he has grasped. There is no need for the Co-operative Wholesale Society to prove it. It is presumed and the only way is under Clause 20 (1).

LORD LUCAS OF CHILWORTH

Perhaps I can help to clear the air. Perhaps the noble and learned Viscount will take his mind back to the discussion we had on Amendment No. 4. I said then that in many cases there were arrangements, but that I doubted whether anybody would find a written agreement or an instruction by a trade association. Prima facie evidence is submitted—I will use the Co-operative Wholesale Society, if you like—and a complaint is made to the Registrar. Now the Registrar, I take it, can consult whom he likes—that is nothing to do with me at the present time. If the Registrar does not think that that is an agreement, it dies there. Or must be bring before the Court, as a registrable agreement or arrangement, every and any complaint? How does the complainee, if he thinks he has a bona fide case, get past the Registrar? Is the Registrar's word final? My noble friend thinks that they should be able to get past the Registrar to the Court itself. Is there an appeal against the decision of the Registrar on the complaint that there is a discriminatory arrangement, or is the last word with the Registrar? If the noble and learned Viscount could answer that question, it should clear the air.

THE LORD CHANCELLOR

The noble Lord, Lord Lucas of Chilworth, has, of course, gone back to an earlier stage. Logically, he is quite right, because what I said in answer to the noble Viscount, Lord Alexander of Hillsborough, refers to the later stage, when there is a registered agreement. But there is the first stage. It is the duty of the Registrar to register agreements, and in doing that he must act and carry out his duty on the information that is given to him. As I pointed out to the noble Lord earlier this afternoon, if there is not an agreement in writing, he can proceed on an informal agreement. If he contends that there is no agreement in law, he can go to the High Court If he has not sufficient information, he can follow the procedure which I set out above and have people examined on oath to see that he has the information. If information is refused, then the person refusing it runs the risk that not only will the agreement be registered but that for two years at least it will be impossible for him to go to the High Court and try to show that it comes within the exception.

So there is a heavy duty on the Registrar, where any information is given to him—and more especially if informa- tion comes from the responsible quarters which have been mentioned—to have that agreement registered, and these are the methods by which he can ensure that it is done. Once the agreement is registered, there is no need for anyone else to prove that it is contrary to the public interest, because that is assumed. That is what the complaint is. Having been "shot at" in the front by noble Lords, I shall be "shot at" in the back by my noble friends who may say that I have gone too far. However, that is the procedure—and I do ask the noble Viscount to consider it. The presumption in law has been male in the Bill that it is unnecessary for anyone to prove what is established by any rule of law contained in a Statute.

6.11 p.m.

Viscount ALEXANDER OF HILLSBOROUGH

I shall read most carefully what the noble and learned Viscount has said on every one of our interventions in the debate on this particular clause and consider whether or not we must return to it on Report stage. In the meantime, I shall also have certain consultations with regard to the matter, because at present I do not feel satisfied that, if there is a very big case of discrimination which does not get by the Registrar, we can get a proper process of law. It is open to the other side to go to the Court and argue and, if possible, get a decision that their agreement is not one that ought to be banned. There ought to be equal access to the Court for the other side if they are not getting a proper channel through which to get an agreement registered.

LORD MILNER OF LEEDS

A good deal has been said about the constitution of the Court. May I ask a question on that matter, because I am personally interested? I observe that the Schedule, to which the noble and learned Viscount has referred, says: Every person who has the right of audience at the trial of an action in the High Court or in the Court of Session, or in proceedings preliminary to such a trial, shall have the like right at the hearing of any application to the Court.… That would appear to imply that only the individual or a member of the Bar will have that right?

THE LORD CHANCELLOR

Yes, certainly.

LORD MILNER OF LEEDS

And that there will be no right of audience for a solicitor in the High Court?

THE LORD CHANCELLOR

Yes.

LORD MILNER OF LEEDS

There would not be?

THE LORD CHANCELLOR

Yes.

LORD MILNER OF LEEDS

Can the noble and learned Viscount tell me why that should be so? This court is not, in fact, a High Court; it is a specially set up tribunal for a particular purpose. Why should the lower branch of the legal profession be debarred from representing a client, who perhaps cannot afford the services of the Bar? Secondly, may I ask the noble and learned Viscount this question—he may be able to give me an immediate reply: Will the assistance of the legal aid scheme be available to anyone under this procedure?

THE LORD CHANCELLOR

Legal aid?

LORD MILNER OF LEEDS

Yes.

THE LORD CHANCELLOR

It is now twenty-five years since I first heard the noble Lord, Lord Milner of Leeds, as an advocate and that was at a coroner's inquest in an accident that took place at Garaby Hill. Therefore, I have every reason to know that any client would be grateful for the noble Lord's assistance. On the other hand, this is a Court which is equivalent to the High Court and it is in no derogation of the great qualities of the solicitors' branch of the profession that the right of audience has been maintained in the same way as it is in the High Court. That is the short point. This is a Court of equal standing with the High Court, to be presided over by a High Court Judge, and therefore the right of audience has been kept the same. I hope that no solicitor will think that there is any reflection upon him. It is a matter for argument whether it should be altered, but I have tried to give reasons for keeping it the same.

LORD MILNER OF LEEDS

There are, of course, ten other members but only five judges, so it would appear that the hymen would be in the majority.

Clause 19, as amended, agreed to.

Clause 20:

Presumption as to the public interest

20.—(1) For the purposes of any proceedings before the Court under the last foregoing section, a restriction accepted in pursuance of any agreement shall be deemed to be contrary to the public interest unless the Court is satisfied of any one or more of the following circumstances, that is to say— (a) that the restriction is reasonably necessary having regard to the character of the goods to which it applies, to protect the public against injury in connection with the consumption, installation or use of those goods; (b) that the removal of the restriction would deny to the public as purchasers, consumers or users of any goods other specific and substantial benefits or advantages enjoyed or likely to be enjoyed by them as such, whether by virtue of the restriction itself or of any arrangements or operations resulting therefrom; (e) that, having regard to the conditions actually obtaining or reasonably foreseen at the time of the application, the removal of the restriction would be likely to have a serious and persistent adverse effect on the general level of unemployment in an area, or in areas taken together, in which a substantial proportion of the trade or industry to which the agreement relates is situated; (f) that, having regard to the conditions actually obtaining or reasonably foreseen at the time of the application, the removal of the restriction would be likely to cause a reduction in the volume or earnings of the export business which is substantial either in relation to the whole export business of the United Kingdom or in relation to the whole business (including export business) of the said trade or industry; or and is further satisfied (in any such case) that the restriction is not unreasonable having regard to the balance between those circumstances and any detriment to the public or to persons not parties to the agreement (being purchasers, consumers or users of goods produced or sold by such parties, or persons engaged or seeking to become engaged in the trade or business of selling such goods or of producing or selling similar goods) resulting or likely to result from the operation of the restriction.

6.15 p.m.

LORD BAILLIEU had given notice of two Amendments in subsection (1), the first being after the word "shall", in the opening paragraph, to insert "not" and the second to leave out "unless" in the same paragraph and insert "if". The noble Lord said: I beg to move the Amendments standing in my name and that of my noble friend Lord McCorquodale. Here the attack from the rear starts. I was reminded of a certain famous poem when the Lord Chancellor was heading off a vigorous onslaught from noble Lords opposite: Stormed at with shot and shell, Boldly they rode, and well. It falls to my responsibility to direct the attention of the noble and learned Viscount to what industry regards as a fundamental weakness in this Bill and one to which we take grave exception. The present clause states that a restriction accepted in pursuance of any agreement shall be deemed to be contrary to the public interest unless the Court is satisfied of any one or more defined circumstances—there are seven in all— and is further satisfied … that the restriction is not unreasonable having regard to the balance between those circumstances and any detriment to the public or to persons not parties to the agreement.…

The noble and learned Viscount, in the statement he has just made, and the noble Lord, Lord Mancroft, in his statement on Second Reading, have made it clear that the presumption underlying this Bill is that restrictive practices between traders are prima facie against the public interest. The assumption is, therefore, that industry is doing something wrong. Without specific charge or proof, activities carried on for years by industry, often at the instigation of Government, are labelled as contrary to the public interest. To this industry strongly demurs. I ask noble Lords to realise what we seek in this Amendment—what it does and what it does not do. It does remove, or seeks to remove, from the Bill the stigma placed on industry. It does leave an issue coming before the court to be decided without overriding presumptions and after a full and fair trial. It does not remove the onus of proof from industry. It does not make non-justiciable the circumstances set out in Clause 20 (1), paragraphs (a) to (g).

We do not say that all restrictions are, good. We do not say that this clause treats industry as guilty unless they prove their innocence. We do not say that this clause imputes criminality. We do not object to these restrictions being challenged as being against the public interest and being brought under fair trial. We do object—and object strongly—to the presumption that in any trial of any issue affecting any restriction, the Court should start with the presumption against the industry that any restriction is contrary to the public interest. We say that, so far as we know, this is unprecedented in British law; that it is inequitable, and that if it is good law—which we question—it is poor psychology and will set a dangerous precedent for the future. It savours to some of us of too much of the droit administratif of France and not enough of the traditional regard for the freedom of the subject which it should be our constant duty to safeguard. We further say that it is unnecessary.

Why should the clause be framed in this way? In the course of the debate, we have heard reference to the need for "objective criteria" and for placing on industry the onus of proof. Industry is quite willing to justify its case. Where, I ask, is the onus shifted from industry by the proposed Amendment? How, I ask, does the proposed Amendment make the criteria less objective than that already embodied in the Bill? And if, as I am told, the argument against wording the clause in the way in which industry would like appears to be because if, in a particular case, an industry is unable to satisfy the Court that what it has done, or intends to do, is in the public interest, then the Court has by inference to find that the activity is contrary to the public interest, then why cannot the Court do that? Would the noble and learned Viscount tell me what the real difficulties are? Could he please explain in clear and precise terms so that those in industry can understand it? If it be said that, when put in the form of the Amendment, it does not present a justiciable issue, then I would ask, why is it not a justiciable issue, and who is the person or persons who have prejudged this question as to whether it is, or is not, a justiciable issue?

It may be argued that the Amendment makes very little difference to the effect of the clause, in that its effect is virtually the same. Then, I ask, why should not the Government accept it, if in doing so they remove a presumption which is totally unjustified and to which industry takes such great exception? If the argument is that the form in which the issue is placed before the Court by this Amendment is one for which there may be no precedent, then we must remember that this legislation is itself also unprecedented.

The noble Lord, Lord Mancroft, in dealing with the question of onus of proof in the debate on the Second Reading said [OFFICIAL REPORT, Vol. 198 (No. 107), col. 79]: The object is to define when it is in the public interest that the freedom of the individual to trade should be limited. It is not unreasonable, I should have thought, that the parties to an agreement which limits their own freedom in this respect, and in so doing limits the choice of other people as to the price they pay for the goods they make, should be asked to show that this is justified. We do not cavil at that conclusion. Industry, as I have insisted, is quite prepared to justify its case in full and fair trial of any issue. My noble friend goes on to say: That is the reason for this admittedly controversial decision to place the onus of proof where it now lies. May I say here that we have no wish to shift the onus of proof from where it now lies. What we wish to do, with the help of noble Lords and for the reasons that I have given, is to remove from this Bill the overriding presumption that each and every restriction which is in issue before the Restrictive Practices Court is to be deemed by that Court, by direction of Parliament, as contrary to the public interest.

I wonder what noble Lords opposite would say if it were sought to introduce legislation resting upon a similar presumption in regard to the restrictive trade practices which operate in the trade union field. As we know, these restrictions have a good historical justification; and the noble Lord, Lord Mancroft, rightly I think, pointed out that legislation appropriate to one case might not be appropriate to the other. I personally think the approach to the problem of restrictive labour practices through the machinery of the National Joint Advisory Committee is much more likely to achieve early and practical results than attempts at legislation along the lines of an Act of Parliament. I submit that in neither case, so far as labour is concerned, would we get very far by insisting that the trade unions should be asked to accept as a major premise that any of their practices having a restrictive content should be deemed to be contrary to the public interest.

I believe that there are many restrictions imposed by trade unions which some people would claim were adequately justified and others that they were against the public interest. Among many which would be quoted is the agreement which is common to many industries and with which many of us are familiar, under which is determined the ratio of apprentices to journeymen. Trade unions argue that the limit is necessary to ensure proper training and to maintain a level of craft skill. In certain trades since the war, however, this limitation has imposed a heavy burden owing to the restriction of intake in a time of great expansion. Another instance is the position of the bummarees in Smithfield Market. There the handling of meat is confined to a certain type of worker. When there was insufficient work to provide a living for the large pool of labour available, there was certainly a reasonable cause; but in a time when there is a shortage of labour the enforcement of the rule might well be said to operate against the freedom of the individual.

But what if these and all other restrictive practices in the labour field were to be generally proscribed as being against the public interest? What would noble Lords opposite think and say, and what would the trade unions think and say? I think they would think and say pretty well what I have thought and said to-day. For I think a Britisher's reaction to anything he regards as unfair and unwarranted is likely to be the same wherever we work in industry. So I would ask the Government if they would consider carefully the Amendment I have submitted. In doing so, I can assure the Committee and the wider public beyond us that industry seeks neither to evade its responsibilities nor to shift the onus of proof which has now been placed upon us. I beg to move.

Amendment moved— Page 18, line 34, after ("shall") insert ("not").—(Lord Baillieu.)

6.27 p.m.

LORD MCCORQUODALE OF NEWTON

I should like humbly to support the noble Lord, Lord Baillieu, in what he has said. I think the Government will agree—indeed, I think it is on record—that they regard organised industry as having been most helpful in the preparation of this Bill. Although many restrictions and new terms are being placed upon it, industry has not been obstructive in any way. I am particularly anxious that that situation should continue. The working of this measure will depend largely upon the good sense of all handling it, as do most of our industrial practices in this country, and I am particularly anxious that industry's cordiality towards this Bill, which has been evinced in many cases and at many times in another House and here, should be maintained. I believe that this intangible point is one which can have a tremendous effect to keep industry in that frame of mind, for I have been surprised at the strength of feeling which I have found in the industrial circles in which I move at this measure.

As my noble friend Lord Baillieu said, it may be argued that the Amendment that he has moved makes little difference to the effect of the clause as guidance to the Court. I believe I can claim that what is not specifically stated to be not contrary to the public interest may, by inference, be regarded as being contrary to that interest; but there is little difference in fact in saying as the Bill says now, a restriction, except in pursuance of any agreement, shall be deemed to be contrary to the public interest unless the court is satisfied, and in saying, a restriction, except in pursuance of any agreement, shall not be deemed to be contrary to public interest if the court is satisfied … Psychologically however, there is all the difference in the world between those two points of view. This Amendment, I think, is deserving of the most serious consideration if we want this Bill to be a success—and, believe me, I do want it to be a success. Surely, it is of the greatest importance to continue to obtain the closest co-operation from industry. I suggest to Her Majesty's Government that if they can see their way to accept this Amendment, simple as it is—it may merely be a change in the form of words—it will in the eyes of many industrialists remove the offensiveness of the present statement and will be doing a good day's work for the carrying out of this measure to which the Government has lent its hand.

LORD SALTOUN

I think we all agreed on Second Reading that if this Bill was to be a success it must have the real co-operation of industry. Passing Bills in our House is not like the National Health Service; you are allowed to have a little "jam on your pill," and I think this is one of those cases where a little "jam on the pill" would be very nice.

LORD ROCHDALE

I should like to support strongly my noble friends who moved this Amendment. Lord McCorquodale of Newton, referred to something which he described as intangible—the fact of antagonising industry, which the clause as it now stands undoubtedly does and, if it is allowed to stand, will continue to do. But there is another, more practical, reason I should like to put forward for this Amendment. As the clause stands now, the discretion that is given to the Court is limited to the seven conditions laid down in paragraphs (a) to (g). Those paragraphs are limited and may, as time goes on, become inadequate and out of date; new conditions may occur. We in industry are constantly being told of the importance of adapting ourselves to change, and we try to do that as best we can. But if this Amendment is agreed to it will surely widen considerably the discretion of the Court, and, that being so, the Amendment is not only something which is desirable from an intangible point of view but is for industry highly important from a practical point of view. If we are going to attempt to change with the times so that we are in the forefront in the world's industries, the conditions under which we operate must have sufficient latitude to enable us to adjust ourselves to them, and I hope that the noble and learned Viscount, the Lord Chancellor, will bear that point in mind when considering this Amendment.

LORD BENNETT OF EDGBASTON

I rise on only one point. I entirely agree with what has been said. This change would be very much welcomed in industry. I hear a great deal of grumbling suggestions that we have been criminals. It does not affect my own industry, but during the period between the two wars, we were asked by the Government of the day to institute certain of these practices with other industries that were in trouble, and to advise them. It is a little hard when you have been asked and have helped to establish practices, to be told, "We are not suggesting you are criminals, but"—as they say in the Black Country—"you didn't ought to have". It seems to me that industry might be helped in facing these changes, which they are willing to face quite voluntarily and helpfully, if any suggestion that they have been very bad boys in the past and they have got to be better in the future were dropped. Actually, what they were doing was at the request of the Government, and they carried over to days when the position was easier. But I am not so sure that the easy days we have been having in the last ten years are going on for ever. I am a little concerned that some of the schemes worked out to-day are to be condemned, as we may need something of the sort in the days to come.

LORD GRIDLEY

?: I feel that I cannot allow this Amendment to be put without giving a word or two of my own support. I think it is hardly to the credit of any Government, of whatever Party, to introduce clauses in Bills which suggest that those responsible for industry have done something for which they are to be blamed and found guilty unless they can prove themselves to be innocent. There were cases in Bills promoted a few years back in which various reflections were made upon directors, and I well remember, in winding up the debate on the Third Reading of the Bill which nationalised the electricity supply industry, that I said to the House that I resented most strongly the aspersions cast upon those with whom I had worked for so many years, and that they were all honourable men. I think that was not without its impression upon the House.

Here, the point is, what do we gain if this Amendment is passed? Certainly I can see nothing which the Government can lose by accepting the Amendment, but it will make a great deal of difference when these matters have to be argued before the courts if this unhappy feeling is wiped out of existence altogether. If you want to discuss fresh arrangements with somebody you do not start by saying, "I do not care what you say; you have been guilty of these things in the past". You sit down together, without any aspersions of any kind attached to the business in front of you. Therefore, I would appeal to the noble and learned Viscount the Lord Chancellor not to rebut this suggested Amendment. For the sake of industry in general, I hope that the Government will be prepared to accept it.

LORD BARNBY

I suspect the noble and learned Viscount in charge of the Bill is under no illusion as to the strength of feeling in industry about this Bill. In speaking of this Bill now, I feel I must support the Amendment which has been so clearly put by my noble friend, Lord Baillieu. We all had the opportunity on Second Reading, and it is normal practice, to express our view; and having myself, with others, taken that opportunity and set out the reasons for my concern, I think it is only natural that I should wish to support this Amendment now. There is no purpose in going over it, because the reasons for it were so clearly put by my noble friend, Lord Baillieu. Therefore, it comes down to the balance of expediency.

The noble and learned Viscount has indeed a difficult task, because he is faced with those on the other side who suspect that anything that is put forward in opposition to this Bill may well be from motives of resistance to what is considered necessary. I am fully conscious that the Bill contains many provisions to which circumstances have called attention. I feel it is imperative to urge the noble and learned Viscount to have very careful thought about this particular part of the Bill. We want to look forward, not to go back, and it may well be, as Lord Gridley has just said, that the future will call for arrangements which may be contrary to the provisions of the Bill as it is now drawn. We might well then be thrown back to circumstances in which undoubtedly the denial of the opportunities of action along the lines earnestly recommended by Her Majesty's Government in difficult periods in the past will place us in difficulty. It is in that belief that we ought to take careful thought against throwing the net too wide. Let us hope, therefore, that the noble and learned Viscount will feel that the wording of the Amendment of the noble Lord, Lord Baillieu, is right.

VISCOUNT ALEXANDER OF HILLSBOROUGH

Perhaps it would be convenient if I spoke now rather than followed the noble and learned Viscount. I am somewhat surprised at the speeches we have heard from noble Lords on the opposite Benches, not because I at all resent their defending what they think is a particular industrial interest, but rather at their ingratitude to Her Majesty's Government, who have taken the decision on the general formation of this Statute. Two noble Lords, at any rate, said they had helped the Government in the construction of the Bill by their advice and consultation. It is noticeable that we, on our side, have not been consulted very much about it. The Government, in what they have done, have been very kind to those noble Lords. In dealing with the implementation of their general conclusions, the Monopolies Commission state, in paragraph 242, two courses which could be adopted. They say: One would be to ensure a measure of publicity and supervision by requiring all agreements falling within the scope of our reference to he registered, and then to prohibit such of them as after individual scrutiny were not found to be in the public interest, whereas the second recommendation, the one which we, on our side, would certainly have desired, was very different: to prohibit generally by Statute all agreements covered by our reference, with provision for exceptions in particular cases. Seeing how Her Majesty's Government have constructed their draft Statute and come down on the side of less penal treatment of these collective agreements, out of the two alternatives stated in the Report of the Commission, I should have thought that nearly all noble Lords opposite would be falling over themselves in gratitude to Her Majesty's Government for not having gone to the full and proper extent recommended by the Majority Report of the Monopolies Commission.

I thought I had better make clear to the noble and learned Viscount where we stand in the matter. We are grateful to Her Majesty's Government for the measure of control which is yet being brought into this Statute in respect of collective agreements. It is no good to say that that does not help the public interest; though it does not help as much as we should have liked, it is a big step forward. When it comes to asking that the whole position should practically be reversed by leaving out the two words in question and putting in the exact opposite, I should very much regret it if Her Majesty's Government gave way, for I am sure that that would only be creating delay in the progress of the Bill through another place.

LORD BARNBY

Does the noble Viscount attach no importance to the difference between restrictive practices for price maintenance as against collective trade agreements which can very effectively go to the advantage of the employment of labour?

VISCOUNT ALEXANDER OF HILLSBOROUGH

Believe me, I know all about collective agreements of the kind with which the noble and learned Viscount is dealing—say an agreement in regard to the iron and steel industry. But collective agreements operated discriminatingly against the public for price maintenance are still collective agreements, and fall within this Statute.

LORD JESSEL

I believe I heard the noble Viscount the Leader of the Opposition say he had heard two noble Lords on this side of the House say in their speeches that their firms, or they themselves, had assisted the present Government in the preparation of this Bill, while nobody on his side of the House had been so lucky. I listened carefully to the debate and nothing of the kind was said. The noble Viscount misunderstood what was said: that during the war those firms, at the request of the Government of the day, had advised on such practices. I feel that that should be put on record, because the noble Viscount the Leader of the Opposition has given a quite wrong impression.

VISCOUNT ALEXANDER OF HILLSBOROUGH

I shall be quite content to examine the speech of the noble Lord, Lord McCorquodale of Newton, in Hansard in regard to helping Her Majesty's Government in the construction of this measure.

LORD McCORQUODALE OF NEWTON

I am not aware that I used the words "in constructing the measure". I said that they had helped, but everybody was asked for guidance and there was unlimited opportunity for all to express their views. The Leader of the Opposition in another place and the President of the Board both expressed the view that, as a result of that co-operation, the Bill had been improved. I am therefore surprised that the Leader of the Opposition should suggest that his Party had not been consulted in any way.

VISCOUNT ALEXANDER OF HILLSBOROUGH

I did not speak of my Party; I said our side of the industry.

LORD GRANTCHESTER

I support the drafting of Her Majesty's Government. After all, the purpose of the Bill is to secure flexibility of the economy, and slow adaptation to change is in the interest of industry and not against that interest. It is through building up restrictions and preventing changes which normally would come about that damage is done. I should like to support Her Majesty's Government in their drafting of this measure.

THE LORD CHANCELLOR

I appreciate the emotional point which my friends have put, and in saying that, I do not mean anything derogatory. My noble friend Lord Baillieu will understand what I mean. He feels that this method of attack is a reflection on industry, because it says that the restriction will be deemed to be contrary to the public interest unless certain matters are proved. May I first point out to my noble friend Lord Baillieu that this is not dealing with industry but with certain agreements defined in Clause 6 of the Bill. The method by which we deal with it is by saying that certain agreements, defined in Clause 6, with the exceptions mentioned in Clause 7, shall be registered; and it is only agreements that come within the provisions of Clause 6 that must be registered. It is to these agreements that this onus applies. It is therefore only to those who are parties to the agreements which I have mentioned that the procedure applies.

I will put it to my noble friends on a much wider and deeper basis. That becomes clear from the perfectly comprehensible attitude which has been taken by both the Parties opposite. Her Majesty's Government have tried here to find their own solution. As the noble Viscount the Leader of the Opposition has pointed out, they did not take the solution suggested by the majority of the Monopolies Commission. I ask my noble friend Lord Baillieu to remember what that solution was. That solution was that any agreements which came within the classes set out in the Report of the Majority of the Monopolies Commission should, subject to certain much less extensive exceptions, be prohibited. That is the other solution. My noble friends must consider it from that point of view.

If the legislation had been that the agreement was to be prohibited, it is plainly absurd to say that it did not state that it was against public interest, because the reason the Monopolies Commission suggested that it should be prohibited was that they thought it was against public interest. We tried to work out our own solution. We said that agreements will not be prohibited ipso facto but that they will be deemed to be contrary to the public interest unless the parti[...] can come within certain exceptions, and we took, in paragraphs (a) to (g), exceptions which I am not going to justify from one side of the House or the other. I am going to justify them on the ground that they are matters which any Government, looking after the position of the people of the country, ought to take into account.

Paragraph (a) deals with service. Servicing of the goods that are the subject of an agreement is an important matter. Paragraph (b) concerns research. Paragraphs (c) and (d) deal with measures that have to be taken in order to face the position of a dominant seller or a dominant buyer. Paragraph (e) relates to unemployment, which is something that we hope will never again cast on our life the shadows that we have seen in the lifetime of everyone here. But it is something that we must have in mind, and this meets the point of the noble Lord, Lord Barnby, who told us frankly that, though he tries to look forward, he cannot help looking back to those days of the 'thirties, when some of these agreements came into operation.

Then there is the tailpiece that the Court must further be satisfied that the restriction is not unreasonable having regard to the balance between those circumstances and any detriment to the public that may ensue. I dealt with that point in my speech on Second Reading. Let me put to my noble friends the other points which our solution involves. I said, in answer to a question a short time ago, that we have tried to bring into the Bill—and I think we have succeeded—a Court that will decide these issues which I have just mentioned and which I think are properly justiciable issues. We have given to industry, as I believe, the advantage of the best possible machinery for arriving at justice and truth. That is no small matter for them, and again I withdraw nothing of the praise that I gave on Second Reading, and a year ago, to the work of the Monopolies Commission. But the noble Lord, Lord Baillieu, knows that industry had, in many public utterances, complained about the Monopolies Commission, for this reason: they said that it was an inquisitorial procedure which was contrary to British traditions. Here we have substituted justiciable procedure, which is in accordance with British traditions.

Now I come to the point which the noble Lord, Lord Baillieu, put: that is, the specific question of the onus of proof. I have given your Lordships its origin, and I must remind my noble friends that this is not a matter which was inserted late into the Bill. A year ago my right honourable friend the President of the Board of Trade stated in the House of Commons—and I have stated in your Lordships' House—that in our view, as we were rejecting prohibition, we thought the onus should be placed fairly and squarely on the industry, association or firm to show that they came within the exceptions. It is not a new matter, and it has always been part of the solution which we have put forward. But I point out again to my noble friends that, when there are a general rule and exceptions to it, it is not contrary to British justice, but is a perfectly ordinary and usual method, to say that, if anyone wants to come within an exception to a general liability, or anything else you like, the onus is on him to prove it. That is what we have done here.

My noble friend Lord Baillieu mentioned the question of the justiciable issue. I have always said that my approach has always been, in any share I have had in the drafting of this clause, to see that its provisions would provide an issue which could properly be dealt with by a court of justice. I have always said that if anyone can help me—I care not who it is—in improving the justiciable issue, we are willing to have improvement. My right honourable friend the President of the Board of Trade has said the same. But that is not what has been asked here. What has been asked here is the making of a change that goes to the root of the special solution which we have put forward. And I do ask my noble friends to consider this. I said a moment ago, and I hope that the Committee will bear with me in repeating it now, that one of my ideas in putting forward this Bill has been to try to take one of the most difficult questions of our time out of politics. I do not believe it is a question that can profitably be discussed between political Parties and made the subject of the political battledore and shuttlecock. As I have said, there is a very simple reason for that. I do not believe that modern Ministers have the rime to examine all these various agreements. I do not believe that modern Members of Parliament could possibly acquaint themselves with enough to be able to deal with this in a political way.

I ask my noble friends to weigh this matter, because if to-night they undermine this solution and throw this back into the welter of unsolved political problems, they may well find that it becomes, may be forced to become, a political issue; which will mean that not only their views but the position of industry as a whole is returned into political strife. And that every one of us will regret. I am not ashamed to make an appeal to my noble friends not to press this opinion to-night. I ask them to consider gravely what I have tried to put before them and what has been said from every quarter of the Committee. They have made their point and I have tried to show them what has operated our minds, is ask them not to endanger the solution to one of the gravest problems of the twentieth century, which every country has had to face, and to prejudice and endanger the solution of their friends. I suggest to them that it would be a risk too grave to be taken at the present time.

LORD McCORQUODALE OF NEWTON

I wonder if the noble and learned Viscount could answer this question, for clarity's sake. I do not disagree with anything he has said, but it seems to me that what we are asking for is exactly the same as what he said, but in a slightly less impolite form of words, suggesting that any agreement shall not be deemed to be contrary to the public interest if… and so or, instead of shall be deemed to be contrary to the public interest unless". The rest stands. To my mind there is no difference in the result. It is merely a more polite way of putting it. I wonder whether the noble and learned Viscount would apply himself to that point.

7.2 p.m.

THE LORD CHANCELLOR

I am sorry that I cannot see it from the point of view of my noble friend. I say that with great sorrow, because there are few occasions in our long political and personal friendship where we have ever disagreed. I want to put the difference. With his Amendments the clause would read For the purposes of any proceedings before the Court under the last foregoing section, a restriction accepted in pursuance of any agreement shall not be deemed to be contrary to the public interest if the Court is satisfied of any one or more of the following circumstances … But the basis of what we are saying is that the agreements are contrary to the public interest unless the parties to the agreement come within the seven specific categories that are mentioned in paragraphs (a) or (g). That is a completely different approach, and it is that approach which has justified us in rejecting the views of the majority of the Commission. We have taken the middle line between prohibition and doing nothing about it, as the Minority suggested. Unless we come out as a private enterprise Party, saying that restrictions are contrary to the public interest unless they have one of these seven provisos, then we are whatever you like but we are not putting forward the solution that my right honourable friend the President of the Board of Trade and I suggested a year ago. I am asking my friends to deal with the real point: whether they are prepared to undermine that solution or not?

LORD BARNBY

Could the noble and learned Viscount put at rest the concern of many about what is likely to be the situation, when this proposed Bill has become law, if by a combination of misfortunes, this country is ever faced again with the situation that faced it in 1931? The circumstances to which I refer affected many trades and brought about rapid unemployment, accelerated by the devaluation in France. As your Lordships will know, the condition of unemployment was corrected only by the operation of what was then known as rationalisation. Many moves were recommended by the Government, and industry was urged, with the full agreement of organised labour—because organised labour needed it so badly at that time—to carry them out. What would be the situation under this Bill if any such situation returned? Presumably special legislation would be required to make possible the kind of rationalisation needed, which was agreed to by the Government in 1931 and contributed largely to rapidly reducing the grave unemployment at that time.

THE LORD CHANCELLOR

My noble friend Lord Barnby has asked me what would happen under this Bill. That is perfectly simple. Paragraph (e) says: … having regard to the conditions actually obtaining or reasonably foreseen at the time of the application, the removal of the restriction would be likely to have a serious and persistent adverse effect on the general level of unemployment in an area … That is one of the reasons that can be urged in justification of this, and if it were necessary to have restrictive agreements in order to rationalise that is covered. But I do not want my noble friend, or anyone else, to misunderstand me on this point. I do not think we can consider the situation to-day through the spectacles of the 'thirties. If we are going to deal with the major problem of the balance of payments and the recreation of our reserves, we have to get rid of restrictions in all parts of industry. This is the Bill which gets rid of restrictions on one side. Co-operation, working together on the National Joint Advisory Council will, I hope, get rid of restrictions on the other side. But if we do not regard our economic position to-day through expansionist eyes, which means getting rid of restrictions, increasing productivity and ultimately reducing prices in that way, then we are not taking the proper steps to deal with the economic situation as I see it, a position with which I should have thought all Parties would agree.

LORD LUCAS OF CHILWORTH

The noble and learned Viscount could not have stated the case for the Opposition better than he has by his last few words. We have always maintained that to do precisely what the Lord Chancellor has said should be the objective of the Government. We have always said that the Majority Report of the Monopolies Commission should have been accepted, and, as my noble Leader has pointed out, these arrangements should be outlawed straight away. As the noble and learned Viscount has said, the Government thought otherwise. We did not agree with the judicial approach, but thought otherwise. We argued that case on Second Reading. Now, I must say frankly that we could not accept the weakening of one word in this clause. This is the heart of the Bill, and that is why we did not put down any Amendments on the first and second clauses, upon which we feel strongly. We thought we should give the Government the opportunity of doing precisely what the noble and learned Viscount has said they will do, and in that he has our support. We may think that he is going to have a hard row to do it, but he certainly would not stand a chance if he weakened upon one item of what are the justiciable issues to be put before this Court.

THE LORD CHANCELLOR

I have tried to think out the answer to my noble friend Lord McCorquodale of Newton, and I now have it in writing, so that I may give it to him clearly. The cardinal issue is that, under the Amendment, if the parties did not satisfy the Court on paragraphs (a) to (g) and the tailpiece, there would still be no grounds on which the Court could declare them to be against the public interest unless the Registrar satisfied the Court to that effect. The presumption about the public interest and the onus of proof hang together.

LORD BAILLIEU

I am grateful to the noble and learned Viscount, the Lord Chancellor, for his patience and for the clearness with which he has stated his view. He has spoken feelingly on this matter, of which he is a master. He has permitted us to speak with equal frankness in a cause on which we feel deeply ourselves. He will forgive me if. I say that I am not yet clear in my own mind why this Amendment cannot be made. I am probably very obtuse. I agree with the noble and learned Viscount on everything he said about the character of the Bill and the substitution of a judicial procedure, which has just the qualities of fairness that appeal to us, and I need not go over the point I made about the onus of proof. Those things we accept unreservedly. What we are still intensely concerned about is the point that I attempted to make: why, in fact, it was necessary to frame this opening clause in this way. The noble Lord, Lord Lucas of Chilworth, has told us why noble Lords opposite want to retain it, and that is perhaps a reason why some of us here would like to see it amended. I will withdraw the Amendment now, but, if it is desired, I will raise it again on the Report stage.

Amendment, by leave, withdrawn.

LORD JESSEL moved, in subsection (1) (a), after "injury" to insert: "whether to person, goods or premises". The noble Lord said: The purpose of this Amendment is to make it quite clear that the words in line 39, page 18 of the Bill, "to protect the public against injury" do not limit the application of the subsection to personal injury only. Especially in connection with the installation of goods, I suggest that not only personal injury should be covered, but danger from fire due to faulty electrical work, which could cause damage or destruction of property. My argument is that restrictions which are imposed to ensure skilled service in installation or operation of potentially dangerous plant and equipment should be justifiable, whatever the nature of the injury done, whether to persons or to property. I think the word "public" in line 39 is probably a term that is wide enough to cover everybody; that is to say, not merely the man in the street, but also an industry using the goods concerned, or a shopkeeper. The injury inflicted on industry or a shopkeeper may well in some cases be greater to property than to the person. That is why I am asking that both types of injury should be specifically included. I beg to move.

Amendment moved— Page 18, line 39, after ("injury") insert the said words.—(Lord Jessel.)

THE LORD CHANCELLOR

Under paragraph (a) of subsection (1) of Clause 20, as it stands, the parties to an agreement can plead that a restriction is reasonably necessary, having regard to the character of the goods to which it applies, to protect the public against injury in connection with the consumption of goods. As my noble friend has said, the Amendment would mean that injury to persons, goods or premises could all be taken into account under this paragraph. This would be to extend the arguments allowed under the paragraph more widely than is acceptable to the Government. The intention is to allow a ground for pleading in those probably rather rare cases where a restrictive arrangement protects people, whether users of the goods or a member of the general public, from personal injury. It will be remembered that this was one of the reasons which the Monopolies Comsion, in their Report on collective discrimination, considered could justify a restrictive practice. It may be remarked that where, for example, goods are highly inflammable and the buildings in which they are stored might catch fire, it would seem that this could reasonably be regarded as threatening injury to the public.

The result of the Amendment would be tantamount to allowing under this paragraph any plea that a restriction was necessary for safeguarding the quality of the goods. It would, of course, be open to the parties under paragraph (b) of the subsection to argue that the removal of a restriction would deny to the purchasers of the goods concerned the specific and substantial advantage of the maintenance of certain standards of quality. I suggest that this makes a difficult enlargement, and I would ask my noble friend Lord Jessel—because this is not a major point in the Bill; as he said, it is a minor point—not to press his Amendment to-day, but to consider, as I will, whether there is any intermediate stage one can find which would enlarge it to some extent but not enlarge it too far. If I cannot find any way of doing this, I will let him know, and he can put an Amendment down again on Report.

LORD SALTOUN

Does the word "public" include employees of any firm concerned?

THE LORD CHANCELLOR

I should like to consider that point and give my noble friend Lord Saltoun a considered answer. Whenever I am asked to construe a set of circumstances, I think it is worth while to do it carefully.

LORD JESSEL

In view of what the noble and learned Viscount has said, I am pleased to withdraw my Amendment on the lines he has suggested.

Amendment, by leave, withdrawn.

LORD JESSEL moved in subsection (1) (b), to leave out "the public as". The noble Lord said: This is an even smaller Amendment. It appears to me that in this paragraph the intention is that the benefit of the restrictions shall apply to purchasers, consumers or users. The addition of the words, "the public as" do not appear to add anything to the paragraph. I am told that it is possible they might be interpreted as unduly limiting the class of beneficiaries. It might be argued, for instance, that public authorities, or national or area utilities, would not be covered by the description. Therefore, I suggest that, in order to remove any doubt, these words should be omitted. I beg to move.

Amendment moved— Page 18, line 41, leave out ("the public as").—(Lord Jessel.)

LORD MANCROFT

I think I may be able to give the noble Lord, Lord Jessel, a little help. His Amendment would enable the parties to an agreement to plead, under paragraph (b) of subsection (1) of Clause 20, that the removal of the restrictions would deny specific and substantial benefits to purchasers, consumers or users of the goods concerned. In the Bill as it is at present drafted, the removal of the restrictions must affect "the public as purchasers, consumers or users." I agree that there is possibly room for doubt whether the use of the word "public" would mean that the benefits to intermediate purchasers rather than final consumers—that is, purchasers of plant rather than purchasers of consumption goods—could not be put forward under the paragraph.

Furthermore, the argument has been put forward that purchasers such as the nationalised industries and Government Departments would not be regarded as "the public," although in fact that seems to be just what they are. There is no intention on the part of the Government to exclude such purchasers from the scope of the paragraph, and they are prepared, therefore, if the noble Lord, Lord Jessel, is agreeable, to consider tabling an Amendment at the Report stage to make it clear that "public" has this wide connotation. I am afraid that I cannot accept the Amendment of my noble friend Lord Jessel as he has drafted it, because it might mean that benefits to particular groups of purchasers, as compared with other groups, could be argued under the paragraph. In other words, it could be used to justify discriminatory trading by rings. If the noble Lord is prepared to withdraw his Amendment, I will see if I can do something by the next stage of the Bill to meet the point he has put forward.

VISCOUNT ALEXANDER OF HILLSBOROUGH

Before the Amendment is withdrawn, I should like a careful examination of what the noble Lord seems to indicate he is going to do. I do not want to pass judgment on this point until I see his draft, but I think it is fundamental—as I think he recognised in the course of his speech—to retain the reference to the "public." There may be all sorts of private agreements passing through because they are of benefit to certain purchasers, consumers and the like, yet they may ignore all the other poor consumers who are still subject to discrimination. That would be fatal to the whole purpose of the Bill, and I assume that the noble Lord is going to keep the public in view in this Amendment.

LORD JESSEL

I thank the noble Lord, Lord Mancroft, for his reply. I am glad that he appreciates my point about public utilities, and on his assurance that he will look into this matter I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD GRANTCHESTER moved, in subsection (1), to omit paragraph (e). The noble Lord said: I think we should all agree that any provisions for exemption should be as precisely defined as possible, and should not bring in too remote considerations. I submit that this clause is not the way to deal with unemployment, should we be unfortunate enough to experience it. Her Majesty's Government have been continually emphasising that, in order to keep the economy efficient and strong, flexibility in movement is essential when conditions change in industry. To keep anyone employed in uneconomic conditions can lead only to increasing unemployment and not to diminishing it. It is no cure for unemployment. This clause, therefore, appears to me to be undesirable in principle and likely in practice to lead to argument and difficulty in interpretation. And I suggest it is not an issue upon which the Court should pronounce. I beg to move.

Amendment moved— Page 19, line 19, leave out paragraph (e).—(Lord Grantchester.)

LORD BARNBY

I hope that this paragraph will not be omitted. I wanted to avoid a protracted discussion with the Lord Chancellor on the former Amendment of my noble friend, but I would remind your Lordships that the Lord Chancellor laid emphasis on the fact that his grounds for allaying our concern were that paragraph (e) was adequate and covered our point. Any suggestion that it should be withdrawn would entirely torpedo his proposals. The point I wish to emphasise to the noble Lord, Lord Grantchester, is this. I am particularly concerned with the wool textile industry. You might, in a large area like the West Riding have fairly good employment, and you might have severe unemployment, as indeed occurred a few years ago, in one particular industry. It is doubtful whether the wording, as it is now, without any modification, would cover the circumstances which would arise in the particular instance which I have indicated —at least, so I am advised. Therefore, I would urge most strongly that the noble Lord's Amendment be not accepted.

LORD GRANTCHESTER

I should like to ask the noble Lord whether he thinks that this paragraph, as drafted, would deal with any unemployment we might have. If it does not, it is much better omitted, in order not to hamper the proceedings before the Court.

LORD BARNBY

That is not my understanding of it, as I have been advised. I would assure the noble Lord that my concern is based only upon the memories of difficulties that occurred in the past—and that applies to many of our feelings in regard to this Bill. It is our concern that in providing against abuses we may be casting the net too wide. In our enthusiasm, we may land ourselves in a position based on the experience of the past, which may not apply in the future and which would make difficulties for ourselves. I strongly urge the rejection of this Amendment.

7.31 p.m.

LORD MANCROFT

May I begin by apologising to the noble Lord, Lord Grantchester, if I appeared to reprove him when dealing with his last Amendment, for not having explained it adequately. I was doing nothing of the sort. I was merely apologising to him because the speed with which he moved the Amendment took me slightly by surprise and I had not gathered myself to answer him as I should have liked to do. On this Amendment, I can give the noble Lord no more comfort than I could before. It could be a very controversial subject, but I want to keep my remarks as uncontroversial as I can. What the Amendment would do is this. It would eliminate as a ground for pleading the argument that the removal of a restriction would have a serious and persistent adverse effect on the general level of unemployment in an area or areas in which a substantial proportion of the trade or industry to which the agreement relates is situated. This would be to remove from the purview of the Court one of the justifications for a restrictive practice which is most sincerely argued. If, in fact, the removal of a restriction would have the effect in question, this is a factor which, in the Government's view, is relevant to the Court's judgment as to whether or not the restriction is contrary to the public interest.

Your Lordships may argue that, because it is the function of the Government so to guide the economy that there will not be large-scale unemployment or even large pockets of unemployment, therefore it is wrong to allow justification for the continuation of a restriction on the grounds that there is fear of unemployment. It is, I need hardly say, the Government's policy to maintain a state of full employment. But this does not mean that in special circumstances there may not be serious unemployment, unfortunately, in a particular locality. In spite of a general condition of full employment, there have, in fact, been considerable differences in the level of unemployment in the various parts of the United Kingdom since the war. In the light of these considerations, I am afraid we cannot accept the noble Lord's Amendment.

I hope that the noble Lord will note that the test in paragraph (e) is quite a severe one—I bring that to the attention of the noble Lord, Lord Barnby, as well. The parties must show that the general level of unemployment, and not just the level of unemployment in the industry or trade in question, would be likely to be adversely affected to a serious degree by the removal of the restriction. They must also show that the unemployment would be likely to persist over a long period. If they succeed in satisfying the Court on this point, they must still, of course, meet the condition in the tailpiece of subsection (1) of this clause. In view of the explanation which I have given the noble Lord, I hope he will at least think again about the matter.

LORD LUCAS OF CHILWORTH

I am getting rather hardened to the idiosyncracies of Parliamentary draftsmen. Am I right here? At the third line of paragraph (e), we read: … the removal of the restriction would be likely to have a serious and persistent adverse effect on the general level of unemployment … Surely that is what we all desire, is it not?—an "adverse effect on the level of unemployment"?

LORD MANCROFT

I see what the noble Lord means.

LORD LUCAS OF CHILWORTH

Surely that should be an "adverse effect upon the level of employment". Have I caught the Parliamentary draftsman? Because he has often caught me.

LORD MANCROFT

I grasp the noble Lord's point more quickly than I grasp most of his points. He has caught me, certainly. Whether he has caught the Parliamentary draftsman or not is a different matter, and I should be quite prepared to lay six to four on the Parliamentary draftsman, for some reason which has not yet occurred to me. I see exactly the point the noble Lord is making and will have the matter looked at.

LORD GRANTCHESTER

I thank the noble Lord for his remarks. Although I still think that the clause is quite impracticable and useless for the purpose for which it is put in, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.