§ Mr. Donald Wade (Huddersfield, West)
I beg to move Amendment No. 54, in page 4, line 31, to leave out "Restrictive Practices Court" and to insert "Monopolies Commission".
§ The Temporary Chairman
There are 24 other Amendments which may be discussed with this Amendment. There is a list in the "No" Lobby which hon. Members have probably seen. If any hon. Member wishes me to read out the list, I will do so.
§ Mr. Wade
As you have said, Mr. Blackburn, there are a number of other Amendments which may be discussed with this Amendment. They are Nos. 55, 60, 62, 63, 65, 67, 68, 124, 132, 133, 134, 143, 144, 148, 149, 150, 151, 155, 156, 157, 158, 159, 161 and 165.
Perhaps it is unnecessary for me to read out the Amendment in full. I am not sure whether this is a record, but it is the first occasion on which I have had the task of referring to 25 Amendments at the same time. They deal primarily with one point. The object is to provide that applications for exemptions should be made to a special division of an enlarged Monopolies and Restrictive Practices Commission instead of the Restrictive Practices Court.
The task of drafting these Amendments which involve a major alteration to the Bill has not been very easy and I have no doubt that it would be possible to pick holes in some of the Amendments. I hope that the proposal will be discussed on its merits. Incidentally, it would be interesting to learn whether it is true that the Secretary of State's original intention was to make use of the Monopolies Commission and if that be so why the right hon. Gentleman changed his mind. Be that as it may, I think the issue is worthy of debate.
1192 How one approaches this subject will, I think, depend on the attitude to the Bill of hon. Members as a whole. I think it quite clear that there are some hon. Members who would like to kill the Bill. They wish to destroy it altogether. Other hon. Members are endeavouring to ensure that the Bill is rather more fair and effective. It will be an extremely difficult task to make this Bill fair and effective, but that is my object. I believe that the Amendments would help in that respect and I think that they would meet some of the objections made during earlier debates and also some objections which will be raised in later discussions on Clause 5.
May I, first, make this general comment? I think that the Government have got their priorities wrong. First, the Government should have remedied the flaws which have become only too apparent about the Restrictive Trade Practices Act, 1956. They should have dealt with restrictive practices in industry and the whole subject of monopolies and mergers and enlarged the Monopolies Commission which I think is envisaged in the White Paper on monopolies, mergers and restrictive practices. But I repeat that I think the priorities are wrong. Had the whole subject been dealt with in that way r.p.m. in the retail trades would have been seen in the right perspective.
We have never had an adequate explanation why there has been this determination to go for the shopkeepers first. Some hon. Members, as I say, are against any alteration in the application of r.p.m. They are the defenders of the status quo and, therefore, I suppose they will oppose the Bill as a whole. It is still not clear how many hon. Members opposite are upholders of the status quo. I am not. I summarise my view in this way. I think that the interests of the consumer should 1193 be paramount, but it is a mistake to regard the interests of the consumer and those of the retailer as necessarily conflicting. An unfortunate impression has been created that this is a battle between the shopkeeper and the shopping public. Very often their interests coincide.
I think—and this is an essential point in coming to this question of the Monopolies Commission—that emphasis must be placed on consumer protection. Where that is necessary I do not believe that resale price maintenance under ordinary circumstances is the most effective method. I do not wish to stray too far from the object of the Amendments which I am advocating. Therefore, I cannot outline the alternative and simpler Bill which I should have preferred. Whether one proceeds with the Bill now before the Committee or a simpler Bill, for example by repealing Section 25 of the Restrictive Trade Practices Act, 1956 with certain exemptions, I think that there would have to be some procedure. It is needed for deciding whether certain classes of goods should be granted exemption. That is to say, if I introduced what I think would have been a simpler Bill, or if one has to accept this Bill, in either circumstance I recognise that there must be some procedure for exemption.
The practical question is, what is the best procedure to adopt whereby a decision may be reached whether or not certain classes of goods should be exempted? I think it is clear that an expanded Monopolies Commission is capable of performing this duty. Some hon. Members may prefer a court. I think at any rate it must be accepted that a division of the Monopolies Commission would be capable of carrying out this task. It has already been agreed by the Government that the Monopolies Commission should be enlarged. We now know the intention of the Government as set out in the White Paper. I was one who was strongly opposed to cutting down the size and curtailing the functions of the Monopolies Commission in I956—but that is past history. Now we are to have some enlargement of the Monopolies Commission. I see no practical or administrative objection to placing the duty of considering applica- 1194 tions upon the special commission of the Monopolies Commission.
It may be argued that the Commission is not a judicial body, but surely the issues which this Bill raises are political, social and economic. They are not strictly a subject which requires interpretation by lawyers. I do not speak and I have no reason to speak with any bias against the processes of the law or with any disrespect to the judiciary, but I should have thought that here there might be a danger of there being too narrow a legalistic view and certainly a very real danger that one might be embarking on many years of legal argument arising out of this Bill. I am appalled at the complexity of the provisions which we have already debated in the first four Clauses. I know that it has been contended that these subjects are judicial and that may well be true. Anything is judicial if Parliament so decides, but most of the issues are extremely difficult to decide on the basis of pure legal arguments. They are not really of a nature which one would expect to he decided by a court of law. I have been strengthened in that view after listening to the debates which have taken place so far on the first four Clauses.
I have endeavoured to foresee how the Bill will work out in practice. First, we must consider what exactly it is that the Court, under the Bill as at present worded, will have to decide and what form the decision will take. After all the arguments which we have heard, the Court will surely have to give a simple "Yes" or "No" to the application for exemption, but there are many cases in which a more flexible procedure might be preferable. There may be many cases in which it might be desirable that the body considering the application should make a recommendation to the Government drawing attention to certain considerations which do not come strictly within the purview of the Court's jurisdiction or within the criteria laid down in the Bill. A simple "Yes" or "No" to the application may not be appropriate. This became clear when one listened to the debates on the batch of Amendments to Clause 1. In the debate on 24th March the Lord Privy Seal said—
§ Mr. Wade
Yes, I do. The Minister said,In looking at this problem we must clearly separate questions of safety and health, which are dealt with under existing legislation affecting all these products, from questions of price through resale price maintenance. There are very important differences which we must keep clear all the time in our minds."—[OFFICIAL, REPORT, 24th March, 1964; Vol. 692. c. 374.]I agree with this distinction, but it was this statement which helped to persuade me that the now famous Amendment No. 17 deserved to be supported. It seemed to prove that there were a range of arguments which might come outside the considerations of the gateways contained in the Bill.
If one accepts the view that the subject of price maintenance is closely bound up with such matters as safety and health and yet at the same time that safety and health must be kept quite separate and distinct from the subject of price maintenance, what precisely is the Court to do in dealing with applications in which considerations of safety and health are involved? I think that this is a very important point—and it is important whether the application is to be made to the Court or to the Commission. But it seems to me preferable that the procedure of the Commission should be used, since the Commission would be able to make a recommendation rather than an order and the recommendation could draw attention to these considerations of safety and health.
Perhaps a few illustrations will help to make this point clear. I think that the pharmaceutical industry provides a useful illustration. It may not be the best example—the court may decide in any case that the main classes of goods sold by chemists come within one or other of the existing exemptions—but I will take it as an illustration of what I have in mind.
Let us suppose that the Court considers that the case is not proved and that they should not be allowed to continue to operate r.p.m.—that it does not come within the criteria laid down and therefore that r.p.m. should be abolished for 1196 the chemists. At the same time, the Court may be impressed with the need for strenghening the law relating to the sale of poisons. It may be impressed with the case for having limited outlets for drugs.
Again, let us suppose that, quite apart from questions of price, the Court considers that it may not be in the public interest to encourage competition in the sale of drugs. This is a social question and, as I understand it, the Minister has made a distinction between matters concerned with price maintenance and other matters of safety and health. Again, let us assume that, notwithstanding the statement made by the Minister of Health yesterday, it is considered that the remuneration of dispensing chemists is inadequate to ensure the successful operation of the National Health Service. What would happen then?
It seems to me that on the principle laid down by the Minister, which I have already quoted from HANSARD, these matters of safety and health will not come within the purview of the court. What, then, would the Court be entitled to do? Would the Court be entitled to make a recommendation that these social problems should first be resolved and that the abolition of r.p.m. should be deferred until they have been dealt with? I should have thought not. I have carefully examined the Bill, and I can find no provisions which would enable the Court to do this. Some hon. Members are in favour of adding additional criteria, but I think that that would only make the legal processes even more complicated—and that is the problem.
Let me give another illustration by examining a branch of the retail trade which I do not think so far has been mentioned—the sale of footwear. I have received a long letter, which I have here, from a constituent who points out the importance of giving adequate care to young people's feet and the damage which can be done by fitting growing children with unsuitable shoes. Foot health is certainly important. It may well be that the best answer is to educate the public in foot health rather and to tackle it from the angle of consumer protection. But what would happen if an application were made and the Court thought that r.p.m. should be abolished 1197 but at the same time wished to draw attention to this important subject of foot health? According to the Minister's definition it would seem that the subject would be outside the scope of the Court's deliberations.
In the case of an application to the Commission, there would be no objection, as I see it, to the Commission taking into account these wider considerations, and in making a recommendation and drawing the Government's attention to what is, in effect, Government policy it might recommend that the abolition of r.p.m. be deferred until certain policy is carried out. I do not see how the court could do this. A judge might well express some obiter dicta. I do not know whether "express" is the right word; I believe "let fall" is the normal phrase. But suppose the judge let fall some obiter dicta, there would be no obligation on the Government of the day to take any notice of such observations.
Turning again to the alternative proposal, I should perhaps explain briefly what I envisage as the procedure. If an application were referred to a division of the Monopolies Commission, I think that this would happen: the Bill as it stands provides for lists to be drawn up and applications to be made to the court in respect of certain classes of goods. There are no serious practical objections to following a somewhat similar procedure before an application is heard by the Commission, but obviously I cannot introduce another list of Amendments in the light of what happened on Clauses 3 and 4.
There is another point of some importance. When a case has been heard, the Commission will make a recommendation, not an order. This would require the approval of the President of the Board of Trade before it took effect.
It may be asked whether this would involve bringing the whole issue back to Parliament for further debate on a particular class of goods. I do not think that would necessarily follow. In the Amendments which I have tabled I have not provided that the Minister, before giving approval, should be required to lay on Order or a Regulation for negative or affirmative Resolution by Parliament. All that would be required would be the approval of the Minister to the recommendation in favour of exemption. If 1198 the Commission did not recommend exemption, that would be the end of the matter.
It might be thought desirable that the approval of the President of the Board of Trade should be supported by some action on that of Parliament. Even if that were so, I do not think it would give rise to all those pressures from interested parties about which fears have been expressed. If the Commission had come to the conclusion that the exemption should be granted to a particular class of goods and if the President of the Board of Trade had given his approval, it seems very, unlikely that there would be any very large body of opinion in Parliament rising to object. Most of the speeches so far in these debates have indicated that the pressures come from those who want exemption and not from those who object to exemption. I do not think the point about pressures need be taken unduly seriously.
A question may be asked as to the burden of proof. In my view, it would still be necessary for those applying for exemption to outline their case to the Commission. Once that was done, I think that the point about the burden of proof would not be of very great significance. It would be rather different from a case in a court of law. It would be rather more informal than an appearance in a court of law. Much of the feeling about the stigma falling on suppliers arises from the fact that it is a Court so which the matter has to be taken. It is this association with the idea of a Court which has aroused a good deal of feeling. I am surprised that those who have expressed these feelings have been satisfied with the Government s Amendments introduced earlier, since the burden of proof has remained unaffected. The guilt feeling is associated with a Court.
§ Mr. Shepherd
Do I take it that the Liberal Party is anxious to shift the burden of proof from those who seek to maintain these practices?
§ Mr. Wade
Anyone making an application would naturally have to state the grounds for the application. Once the case has been stated, I do not think that the problem of the burden of proof would be very important, because it 1199 would be considered by the Commission and obviously the case would have to be stated first by the applicant. I do not think that the feeling of guilt would arise. One of the advantages is that there would not be the feeling of the guilty party going to court, being thought to be guilty before he was tried.
One other question which might be raised is as to the time factor. If the Commission were adequately staffed, applications could be dealt with not only fairly but very much more speedily than by the process of litigation before a court. It is true that there have been many delays where subjects have been referred to the Commission in the past, but these have been due partly to the nature of the reference, sometimes roving over a whole industry, partly to the curtailing of the size of the Commission, and often due to delay on the part of the Government after a report has been made by the Commission. I do not think this need arise in the procedure I have outlined.
Finally, I think it fair to say that the Commission has already built up a good deal of background information which could be valuable, whilst the Restrictive Practices Court will start with no precedents on this procedure and with no information on the wider considerations. Moreover, however distinguished and impartial the judges may be, the result of the application may vary according to the attitude of the particular judge. Even with the aid of expert advice, the judges themselves will be placed in a very difficult position in having to decide as a Court matters which are primarily social, political and economic.
It is for all these reasons that I believe that the procedure which I have outlined would be more appropriate from the point of view of the supplier, from the point of view of the retailer and, above all, from the point of view of the general public.
§ Mr. Shepherd
I will not stray into the Second Reading debate, although I, like the hon. Member for Huddersfield, West (Mr. Wade), was not called. I should like to make one or two comments upon the rather remarkable suggestion which is put before the Committee. I will first deal with the question of the feeling of guilt. Surely the hon. Gentleman has 1200 fallen foul of the propaganda which surrounds this issue. The man who goes to the Court, or even to the Monopolies Commission, to contest the view which has been forced upon him by the general presumption in the Bill is not the man who feels guilt. He is the man who believes that what he is doing is right. The man who feels guilt has to slink into a corner and cease from practising what he has done for a long time past. So, in the generally flabby attitude towards anti-monopoly practice which the Liberal Party now takes, let us have no nonsense about a feeling of guilt; that feeling of guilt does not rest on the man who goes to the Court and says, "I can justify what I have been doing in social, moral and economic terms."
I can see no reason for the Amendment except to obstruct the effectiveness of the Bill. Apart from that consideration, I think that the Amendment was played down, to use the expression common in my part of the world, because there is no instrument less likely to secure the purpose that we have in mind than is the Monopolies Commission. It is an effective though a very lengthy and laborious method if we seek to find out a number of details about which we are very uncertain, or do not even know about, but let hon. Members remember that we here have a clear presumption as to where the public interest lies, and we do not want long and devious excursions into the history of trade, or a determination about what constitutes safety in the sale of goods. We want to establish whether or not in the light of the criteria contained in Clause 5 Parliament's presumption has been met in a particular case.
What more unsuitable instrument could we conceive than the Monopolies Commission? It would take endless time—its record is about seven years for one inquiry. An even more serious difficulty, which the hon. Member did not deal with in any shape or form, is that the Commission has no powers. The literature on the subject is littered by recommendations of the Monopolies Commission that have not been carried out.
The only effective instrument to which the House of Commons has ever put its seal was when it said that collective boycotts should finish—stop. Then we 1201 got something done. But here is this wretched Liberal Party trying to fritter away the efforts we are making to improve anti-monopoly legislation by saying that this issue must be determined by a body that has no power to carry out whatever it may wish to carry out.
A further difficulty is even more serious in practical terms than the considerations I have mentioned. When a determination is made by a court, the rest of those similarly affected are much more likely to decide what they will do on the basis of that legal determination. It we get a determination expressed in wholly social, political and economic terms by the Monopolies Commission, people similarly placed in respect of a given trade may say, "These considerations will not apply to us. We will stilt have a go." If it is a determination by a court, the issue is much more clear cut, and it is very likely indeed that the desirable result will be obtained—that people will say, "The Court has decided in those terms; we will cease to press our case." They have done that in many cases under the 1956 Act in respect of collective boycott and other things.
In that way, the suggested instrument is wholly unsatisfactory. It is even more unsatisfactory when we realise that we will be imposing on the Monopolies Commission new and urgent work—and I draw attention to the word "urgent". There is much work to be done in dealing with anti-monopoly legislation of all kinds. In that context the Monopolies Commission will be fully employed, and it would be grossly unfair and improper to those who will be otherwise affected to put further work on them.
A further point I quote with some diffidence, as it is not one that I would necessarily press. Those who have had the opportunity of witnessing the effects of both the Monopolies Commission and the Restrictive Practices Court—from what I might describe as the wrong end—have come to the conclusion that, on the whole, the Restrictive Practices Court is the fairer. There is more satisfaction with the judgments of the Restrictive Practices Court. This is because of the existence of gentlemen with wigs 1202 on their heads, which seems to confer a special brand of wisdom where it would not otherwise apply. Secondly, it applies to the procedures involved. In the case of the Monopolies Commission, one is not quite so sure what the evidence against one is and it is difficult to deal with evidence against one which is not necessarily disclosed.
Therefore, if one wants to be on the side, as the Liberal Party apparently wants to be, of the monopolists and operators of restrictive practices, the case is strongly in favour of letting these matters go before the Restrictive Practices Court rather than the Monopolies Commission.
I hope that my hon. Friend the Minister of State, Board of Trade, will strongly resist this nonsensical Amendment. I cannot conceive of any merit in its favour. The Restrictive Practices Court is obviously the proper instrument when we have made a determination of what we believe to be in the public interest. I urge my hon. Friend not to be led away by Liberal woolliness.
§ Mr. George Darling (Sheffield, Hillsborough)
I intervene not with any intention of restricting the debate, but to try to widen is within the scope of the Amendment. I do so because, in view of the line taken by my hon. Friends in the debates on the 1956 Bill, we should respond to the invitation given to us by the hon. Member for Huddersfield, West (Mr. Wade) to explain our present attitude to the question posed by the Amendment on the choice between the Commission or the Restrictive Practices Court.
The hon. Member for Huddersfield, West apologised for the large number of Amendment, which, he admitted, were put down to deal with a quite small point. Their. purpose is to transfer from the Restrictive Practices Court, as the Bill would provide, to the Monopolies Commission the duty of examining and reporting upon individual price-fixing arrangements and of recommending to the Secretary of State what action should be taken if any is recommended. As the hon. Member for Cheadle (Mr. Shepherd) has said, this has proved in practice to be a slow and laborious procedure.
§ Mr. Wade
If the hon. Member had followed the Amendments—and I recognise that to study them all requires careful thought—he would find that the procedure would be as follows. If the Commission decided that a case was made for the continuance of resale price maintenance, the Commission would so recommend. All that would then be required would be approval by the Minister. It would then be effective.
§ Mr. Darling
That is true, but I am coming to the point, which, I believe, the hon. Member has overlooked, that before the Commission can do any of the things of which he has spoken, we have to bring into the House of Commons a Bill to transform the Monopolies Commission into the body that he wants it to be. We are all in favour of that, but to be practical we must consider the Amendments within the terms of the Bill.
Our approach is expressed in the words that the hon. Member himself used when, in Committee on the 1956 Bill, this issue arose. There was the question whether we should have an extended Monopolies Commission to deal with collective price agreements or whether we should accept the Government's proposals to set up a Restrictive Practices Court. On that occasion, after a great deal of consideration, the hon. Member for Huddersfield, West, in almost breathless words, told us that there were arguments on both sides.
This proposal to give the Monopolies Commission these additional duties is, as far as I can see, the Liberal Party's sole contribution to this Measure.
§ Mr. Darling
I have done. In any case, the hon. Member for Huddersfield, West, has claimed for these proposals the virtue of consistency. He says that they are in line with the attitude which the Liberal Party took in the discussions on the 1956 Act. I hardly think that that is quite correct, and I will come back to that in a moment.
When the present Bill first appeared my hon. and right hon. Friends considered carefully whether, bearing in mind the criticisms which we levelled against the idea of the Restrictive 1204 Practices Court in 1956, investigation of resale price maintenance was still in our view a proper subject for the Monopolies Commission rather than for the Court, and for cogent and practical reasons we rejected the idea of handing over r.p.m. to the Monopolies Commission. We therefore did not put down Amendments similar to those which we put down on collective price fixing to the 1956 Bill.
The first obstacle to what would have been a consistent approach if we followed the 1956 line is the present character of the Monopolies Commission. We all know that the 1956 Act greatly weakened the Commission, as the Government themselves now admit. We know that with its present numerically weak membership and numerically inadequate staff the Commission could not possibly undertake the very wide duties which would be involved in dealing with individual r.p.m. with any hope of success. Indeed, in our view the Commission cannot properly carry out its present limited functions in examining trading monopolies and monopoly practices.
It is true, and we must not overlook it, that the Commission has had put to it a formidable backlog of proposals on which it does not even have any hope of starting for some years at its present rate of progress, unless the Commission is quickly and greatly strengthened and its procedures greatly improved and accelerated. The hon. Member for Huddersfield, West gave some examples of the kind of social questions which he felt could be better dealt with by the Commission than by the Court. Safety and health were mentioned. We have taken the view for a long time that these questions of consumer protection would be better dealt with outside the scope of the Bill altogether. There are many angles of consumer protection which can be and ought to be dealt with by the modernisation of the Sale of Goods Act. There are other measures which need to be taken under the Merchandise Marks Act. I cannot develop them without being out of order.
But when we come to questions of health which involve standards, those standards must be laid down in quite different legislation. Some could be laid down under the 1961 Consumer Protection Act. The hon. Member for Huddersfield, 1205 West gave the example of foot health, with which I thoroughly agree. This would have to apply to all footwear manufacturers and dealers. We think that the standards which would be involved in this matter are inappropriate for this kind of legislation. Even if I am wrong in that argument, and I do not think I am, I would say from experience that the Monopolies Commission could not deal with these questions any better than the Restrictive Practices Court.
§ Mr. Wade
Can the hon. Member deal with a somewhat narrower point? Will he agree that the Restrictive Practices Court presumably can only make an order or not make one? In other words, it can say only "Yes" or "No", whereas the Commission could say, "We recommend the continuance of r.p.m. until certain ancillary matters of health have been dealt with". There would be more discretionary power, which I think the Court would not have.
§ Mr. Darling
I agree with the hon. Member, and he will see that we have tabled Amendments to enable the Court to exercise discretion in precisely the way he asks. I hope that those Amendments will be carried. But to add further duties to the Commission without strengthening it would simply mean that nothing could be done at all. We believe—I answer the point made by the hon. Member—that action is needed against price-fixing arrangements that are clearly not in the public interest. I do not, however, feel that we should gain anything at this stage by handing over the task to a body which has been so weakened by the Government that it could not effectively deal with it.
Although we reject the idea of handing over resale price maintenance to the Monopolies Commission, we do so—let me be perfectly clear about this—only in the terms of this Bill. If it had been possible to amend this Bill drastically so as to enlarge the Commission, increase its staff, improve its procedure and speed up its work, we could then have considered carefully whether the Court or the Commission was the right body to deal with individual resale price maintenance.
As things are we have no choice in the matter, and we strongly criticise the Government for not giving us a choice. 1206 The Secretary of State—I agree again with the hon. Member for Huddersfield, West—has got things the wrong way round. He has his order of priorities wrong. He should have tackled these monopolies and mergers first, and he should have strengthened the Monopolies Commission and given it the wider power we want much on the lines—although we could suggest improvements—of the White Paper. But the Secretary of State found it easier to attack the shopkeeping end of the problem. He has postponed the stronger action against monopolies and left it to another Government to take the action which, for reasons that have still not been explained, he seems reluctant to embark upon.
We have, therefore, in these circumstances, come to the conclusion, for the time being, at any rate, that until we can have a closer look at the experiences of the Restrictive Practices Court, and a strengthened Commission, the Court should be enlarged to deal with individual price fixing as well as collective agreements and practices. If we are accused of lack of consistency in this, because we took a somewhat different line in 1956, I should like to quote what the hon. Member for Huddersfield, West and the hon. Member for Bolton, West (Mr. Holt) said in the debate on the 1956 Bill.
The hon. Member for Huddersfield, West argued the case for tribunals against the Court, or the Court against the tribunals, and on 12th April, 1956, he said, and I quote the final sentence of his summing up:…I think that the right course is to create courts of law rather than tribunals."—[OFFICIAL REPORT, 12th April, 1956; Vol. 551, c. 451.]Later we came to consider, as hon. Members who were then present will remember, the Government's proposal to truncate and weaken the Monopolies Commission. My right hon. Friend the Member for Battersea, North (Mr. Jay) and I were given the job then of trying to explain our views to the House. We did our best to make out a case—which the Government now accept—for extending and not reducing the Commission's work. I think that we made out a pretty, strong case, but it did not convince the Liberals.
1207 The hon. Member for Bolton, West, on the 14th June, commenting on the arguments that we put forward for strengthening the Commission, said:I really think that there is quite enough for the Commission to do in just looking at monopolies for the time being, without having to go into new kinds of practices to which this House has not yet given a great deal of thought."—[OFFICIAL REPORT, 14th June, 1956; Vol. 554, c. 814–5.]Those were the collective price agreements.
Nevertheless, although the hon. Member for Bolton, West did not want the Monopolies Commission to deal with price fixing he and his colleagues thought it untimely then to reduce the scope of the Monopolies Commission, so he and his leader, the Leader of the Liberal Party, moved an Amendment to postpone the reduction of the Monopolies Commission, as proposed by the Government, for three years. Those three years are now over. They were over four years ago. So we assume that the Monopolies Commission is now in the state the Liberal Party wanted.
§ Mr. Darling
Oh, yes. All they were asking for was that the Government should postpone the reduction in the size and scope of the Commission for three years. I do not know how the hon. Member thinks circumstances have changed since then, except that the Commission is now far less capable of dealing with price agreements than it was when the hon. Member argued that the Commission had quite a lot of work to do without being involved in price-fixing practices. The case now for giving the Commission new duties is much weaker and less convincing that it was when it was opposed by the hon. Member eight years ago.
Of course, we are all, the Liberal Party as well as anybody else, entitled to change our minds over a period of eight years—
§ Mr. Darling
—especially on issues which, at the start of the period, were quite clearly experimental.
§ Mr. Darling
The Government have changed their mind about the Monopolies Commission and they now confess their mistakes, and they admit that we were right that the Commission should not have been weakened. Well, we have changed our minds, too, to some degree, about the Restrictive Practices Court.
Our view originally was that it was the duty of Parliament and not of a court of law to decide which trading practices were in the public interest and which were not in the public interest, but we readily admit now that the Court and the registration procedure have worked out far better than we anticipated. I think that that will be generally agreed, even by the Liberal Party. At least the earlier decisions of the Court, in the view of my hon. Friends and myself—many of us, anyhow—were good, and were clearly taken after very careful examination of the facts in the public interest. We are not quite so happy about some of the later and more recent decisions. If I may put the issue in a negative kind of way I would say that we do not see anything in the Court's decisions or in the experience of the procedure of the Court itself which leads us to assert that the Court should not also deal with individual resale price maintenance.
But, of course, if the Court is to deal with individual as well as collective price maintenance the number of lay assessors will have to be increased. We cannot put an Amendment down to ask for an increase in the number of lay assessors because power already resides with the Lord Chancellor to do this, but I hope that we can get an assurance not only when we come to the appropriate Clause but at this stage that the lay assessors will be sufficient in number and good enough in quality to deal with the extra duties which are now by this Bill to be thrown on the Court.
Because in our view the Monopolies Commission in its present weak state cannot undertake these additional duties, we think that the Court is the proper body to which they should be assigned, but there is a reasonable argument for choosing the Court rather than the Monopolies Commission at this stage, and that is that the Court has had experience of examining price-fixing agreements. If it were not for Section 25 of 1209 the 1956 Act the Court would have covered individual resale price maintenance as well. This experience, we think, is something that cannot lightly be thrown aside when we want to extend our attack upon price fixing to take in individual arrangements as well as collective arrangements.
There is a further point, however. Within the terms of the Bill the main duty of the Court as we see it, particularly if our Amendments about the discretion of the Court are accepted, will be to ascertain the facts of the cases which it examines. It is in this examination of the cases and the publication of them that the Court in dealing with collective arrangements has proved to be invaluable. In this assessment and publication of the facts in individual arrangements, the Court will be equally successful and will work for the public interest.
But I repeat that we do not look upon the Bill as a final Measure imposed for all time. The next Government, which will be of a different character from the one we are dealing with today, will have to amend our anti-monopoly legislation and strengthen it. In doing so, it will have to reassess all our procedures and methods for dealing with monopolies and restrictive practices. We can say quite clearly that the next Labour Government will strengthen the Monopolies Commission and, I think, in the light of practical experience, will have to decide whether any complementary changes are needed in the scope of the Restrictive Practices Court. However, for practical purposes within the scope of the Bill and for the reasons that I have given, I am sure that the Committee will agree that we cannot support the Amendment.
§ Mr. Holt
The hon. Member for Sheffield, Hillsborough (Mr. Darling) accused my hon. Friend the Member for Huddersfield, West (Mr. Wade) of saying in an earlier debate that there is much to be said on both sides—or words to that effect—but the hon. Gentleman seemed to do exactly the same thing in the speech that he has just made. I may have misunderstood him, but, to sum it up, it seems to me that the hon. Member is really in favour of what the Liberal Party wishes to do but will not support 1210 the Amendments because there is no provision for increasing the size of the Monopolies Commission. However, if the Government were to accept the spirit of what is contained in the Amendments there would be no difficulty whatever in making the necessary arrangements to increase the size of the Commission so that it could carry out its work.
I do not think that the rest of the hon. Gentleman's remarks deserve any reply from me, but I should now like to say a few words about the remarks of the hon. Member for Cheadle (Mr. Shepherd). The hon. Member for Cheadle cannot see a Liberal without trying to be rude about it. This is quite understandable, because in his constituency the Liberal candidate is breathing very warmly down his neck.
With regard to the hon. Gentleman's comments about the phrase "a feeling of guilt", I would merely say that this is a phrase which has been most widely used by his hon. Friends. He said that the people who would go to the Court to ask for exemption were not people with a feeling of guilt. I feel that people who go to the Court, not having a feeling of guilt, to defend something which is presumed by an Act to be against the national interest go to the Court all the more incensed merely because they have to go to the Court to prove that what they think is perfectly proper procedure is, in fact, in the national interest. I do not think that the hon. Gentleman has a valid point there.
The hon. Gentleman also deplored the idea that the Monopolies Commission has no power and that this in some way interfered with the bringing about of a more competitive climate. But he had the argument upside down. If the Commission has not any power to exempt people—which is to be the job of the Court under the Bill—then competition will be widespread.
The substance of our Amendment is that when a recommendation has been made it mist be approved or otherwise by the Board of Trade. This forces what we consider to be a politico-economic judgment back where it belongs—at the door of the Government. They must take the responsibility. We suggest an enlarged Monopolies Commission. The work which the present Court will take under this Clause will 1211 affect only a very small part of the distributive trade and the suppliers dealing in r.p.m. The philosophy of the Bill as a whole and of this Clause in particular is clear. It is that competition is a good thing in itself and that the Government intend to make it extremely difficult for anyone to obtain exemption.
§ Mr. Winterbottom
Where is it suggested in any of these Amendments that there should be an enlarged Monopolies Commission?
§ Mr. Holt
It is not in this series, but there is no difficulty about that. If the Government accept the Amendment then they can take the necessary further steps.
Under subsection (2) exemption can only be obtained…if it appears to the Court that in default of a system of maintained minimum resale prices applicable to those goods—(a) the quality of the goods available for sale, or the varieties of the goods so available, would be substantially reduced to the detriment of the public as consumers or users of those goods;It has to be shown to be to the detriment of the public. But the end of the subsection states:…and in any such case that the resulting detriment would outweigh any detriment to the public as consumers or users of the goods in question…resulting from the maintenance of minimum resale prices in respect of the goods.That is a difficult hurdle for anyone trying to get exemption. Is it right to ask people to go to the Court to seek exemption when, in the vast majority of cases—perhaps 90 to 95 per cent.—the Court will refuse? I do not think that this is the way in which respect for a judicial system will be increased.
It has to be recognised that the whole tenor of the Bill is in favour of competition and that the number of exemptions will be very small. They may be important, but the number will be small. This kind of decision is far more appropriately left to a commission than to a court, to a commission whose job it is on behalf of the Government, which cannot go into every case, to see that competition rules. The Commission would merely examine special cases in place of the appropriate Government Departments. This is not something which is appropriate for a Court.
§ Mr. Shepherd
Would the hon Gentleman tell the Committee why he feels that there is a justiciable issue in connection with a collective boycott—and there is no dispute that there is a justiciable issue before the Restrictive Practices Court in respect of a collective boycott—but no justiciable issue in respect of individual price maintenance?
§ Mr. Holt
Because of the way in which subsection (2) is drawn. It is difficult to draw up a kind of balance sheet and to make a decision about when competition is good. These are borderline cases and I do not question that this is an extremely difficult subject. It would be simpler and it would save time and money if resale price maintenance were simply banned altogether. However, we know from the cases which have been already examined that there are sometimes special reasons for exemption. But only a very few cases have any likelihood of getting through the hoop, and those few cases can be examined more appropriately by a commission than by a court.
I hope that the Minister of State will be frank with the Committee and will give his own views on the subject and not endeavour to score party points, like the hon. Member for Cheadle. It is widely believed that the Board of Trade originally favoured what we are recommending to the Committee, and we would like to know why, on balance, it came down in favour of a court instead of an enlarged Monopolies Commission.
§ 9.15 p.m.
§ Mr. Bruce Millan (Glasgow, Craigton)
The argument of the two hon. Members of the Liberal Party, the hon. Member for Huddersfield, West (Mr. Wade) and the hon. Member for Bolton, West (Mr. Holt), is not very compelling. I was not in the least surprised when the hon. Member for Bolton, West said that he would not answer the points made by my hon. Friend the Member for Sheffield, Hillsborough (Mr. Darling), because the case made by my hon. Friend was completely unanswerable.
We must start from the position that we have a Restrictive Practices Court in operation. If we were starting with a blank sheet, some of us might have certain reservations about having any kind 1213 of court to deal with matters of this kind. The Restrictive Practices Court has been operating since 1956, and, as my hon. Friend the Member for Hillsborough said, it has operated very much more successfully than many people thought it would when legislation was introduced to set it up.
The kind of issues which that Court has been deciding with regard to collective price maintenance agreements are precisely the kind of issues which it will have to decide with regard to individual price maintenance agreements under the terms of the Bill. I think that the hon. Member for Cheadle (Mr. Shepherd) was right. If it is right that the Restrictive Practices Court should deal with collective price maintenance, why is it not also right that it should deal with individual price maintenance?
If the hon. Member for Bolton had said that it was wrong that the Restrictive Practices Court should deal with collective price maintenance, I could have seen some element of logic in the Liberal Party's argument. The hon. Member for Bolton and the hon. Member for Huddersfield, West have really been arguing for the complete abolition of that Court. It seems to me that we are dealing with parallel cases.
§ Mr. Millan
The net book agreement was dealt with by the Restrictive Practices Court and not by the Monopolies Commission. That seems almost to clinch the issue.
The hon. Member for Huddersfield, West was wrong when he said that the precedents for dealing with these issues were in the hands of the Monopolies Commission and not in the hands of the Restrictive Practices Court. All the precedents are in the hands of the Restrictive Practices Court, and I draw the hon. Gentleman's attention to the differences in the kind of considerations which the Monopolies Commission has to take into account under the 1948 Act, and those which the Restrictive 1214 Practices Court has to take into account under the 1956 Act.
In Section 14 of the 1948 Act public interest is defined in the most general and imprecise terms, but in Section 21 of the 1956 Act the presumptions as to the public interest are defined in terms which, although they are not the same as those in subsection (2) of this Clause, come a great deal nearer to it than do the terms laid down in the 1948 Act for the Monopolies Commission.
Irrespective of what some of us may have thought of the provisions of the 1956 Act, it seems to me that because of what his happened since then the Restrictive Practices Court is the obvious body to deal with questions of individual resale price maintenance. After all, his Clause deals with issues which, although difficult, are suitable to be dealt with by a court. Many of the conditions that have to be determined under subsection (2) are concerned with the establishment of facts. There may be some difficulty in weighing up the importance that one should attach to certain facts, but, after all, that is what courts do all the time. It is part of the function of a court to weigh up facts and deck e which arc the most important.
§ Mr. Eric Lubbock (Orpington)
The hon. Gentleman is repeating something which ought to be corrected. Subsection (2) does not deal with facts at all. It deals with assumptions of what might happen in the event of certain other things happening.
§ Mr. Millan
I do not want to go through all the provisions of subsection (2), but it starts on the firm basis of establishing facts. One has to weigh up the importance and relevance of those facts, but in any case the intention of the Clause is that the Court should be concerned with the establishment of certain facts which are likely to have an effect or the abolition of resale price maintenance in certain circumstances.
This is very much related to the kind of thing which the Court has already been doing in respect of collective price maintenance under Section 21 of the 1956 Act. It may be that we are not all very happy about the exact terms of subsection (2) but, as my hon. Friend the Member for Hillsborough 1215 has said, we intend later to move Amendments to try to improve those terms to include precisely the points of safety and welfare which the hon. Member for Huddersfield, West mentioned.
But even that will not give us an absolutely perfect subsection, because many matters will have to be dealt with in separate consumer protection legislation. If we can secure the acceptance of certain Amendments to the subsection, however, we shall be able to give sufficiently clear guide lines to the Restrictive Practices Court for it to be able to come to just conclusions on matters referred to it.
My final point concerns the question of the time factor and the relative powers of the Monopolies Commission and the Court. If some of us have been pleasantly surprised about the effectiveness of the Court—not only its direct effectiveness but the moral effect of its decisions upon other agreements which have not actually come to it—we have been correspondingly disappointed at the lack of effectiveness of the Commission.
This arises partly because the terms of reference are so general, and cover such a multitude of different factors, that the Commission inevitably takes a long time to come to any conclusions. But it also arises from the fact that the Commission is given not executive powers, but simply power to make recommendations. It is surely this, beyond anything else, which has made the work of the Commission ineffective over the last few years. Even when the Commission has made recommendations the Government have not always accepted them. This happened in the case of the Imperial Tobacco Company shareholding in Gallahers.
To accept the Liberal Party Amendments and replace the Restrictive Practices Court by the Monopolies Commission, with the Commission having power only to make recommendations, as distinct from the Court, with its power to make orders, would simply repeat the mistakes that we have seen occurring in the Commission's work under the 1948 Act.
§ Mr. Holt
The hon. Member misunderstands—as did the hon. Member 1216 for Cheadle—the fact that the recommendation would be a recommendation to the Board of Trade for exemption. If, after hearing a case, the Commission did not make a recommendation for exemption, the practice of r.p.m. in that class of case would automatically have to cease.
§ Mr. Millan
The hon. Member for Bolton, West did not listen to his hon. Friend the Member for Huddersfield, West. His hon. Friend was pointing out that he did not want anybody simply to make a recommendation whether or not individual resale price maintenance should be maintained. The basis of his whole argument was that some of the decisions were so finely balanced, and that so many different qualifying factors had to be taken into account, that be wanted the situation dealt with by a body which would not give a straight "Yes" or "No" answer. That is precisely what he said. He wanted a body that would make recommendations with qualifications, taking account of all the relevant circumstances.
If we simply want the Monopolies Commission to make a recommendation, "Yes", or "No", it seems to me that the whole basis is even flimsier than has appeared so far from the arguments advanced in favour of the Amendments. I am saying that it is precisely because the Monopolies Commission has not had executive power to say "Yes" or "No" and to have an order made on the basis of its decision that there has been the weakness in monopoly legislation as it has worked out under the Commission since 1948. I hope that we shall not repeat that mistake and weakness by accepting the Amendment.
§ Mr. Emlyn Hooson (Montgomery)
I am conscious that in supporting these Amendments I am flying against the interests of my own profession. I cannot think of a more fruitful field for legal cultivation than is provided by this Bill. I deprecate the tendency in present-day legislation to involve the judiciary in what are really political and economic decisions. By what stretch of the imagination can it be said that Clause 5 involves anybody in a judicial decision? It does not. What is asked for under the provisions of Clause 5 is an administrative decision within the ambit of this Bill.
1217 The hon. Member for Sheffield, Hillsborough (Mr. Darling) referred to the fact that earlier decisions of the Restrictive Practices Court had, I gathered, given him a greater pleasure—if that be the right term—or greater satisfaction than the later decisions. The reason may well be that in coming to a decision in the Restrictive Practices Court the judge himself is involved in an assessment of political economic considerations, and judges take different views of them. Some judges think it their duty to interpret political and economic developments in the country; others take the view that it is their duty simply to interpret the words of an Act of Parliament. I object to the continual process of getting judges to take a hard decision, to make a decision which ought to be taken by Parliament. This is what exactly is proposed.
The criteria for consideration here, particularly in subsection (2), are set out and must be interpreted. How are they to be interpreted? Their interpretation will depend largely, once the facts have been assessed, upon the inclination of the individual judge. It involves an assessment of political and economic matters which ought not to be placed on the shoulders of the judiciary.
Once we get the judiciary involved more and more in this kind of work, inevitably we shall get to the stage where the judiciary is far too involved in the political life of the country. It has always been the aim of our judges, so far as possible, to preserve neutrality in the great social and economic battles of our time. That neutrality is much more difficult to maintain the more they become involved by Parliamentary action in decisions of this kind.
The second reason why I think the Monopolies Commission is to be preferred is that it ought to be more effective for this kind of work. It is true that it needs to be enlarged. It has an enormous background of information. It has been involved in inquiries for many years. Proceedings before it can be much more informal and cheaper and they ought to be swifter. The Commission could put forward recommendations, but surely the eventual decision is a political decision and ought to be taken by the Secretary of State. Eventually the responsibility lies on his shoulders 1218 and he ought not to shirk that responsibility by passing it on to a judicial body.
§ 9.30 p.m.
§ Mr. Cyril Bence (Dunbartonshire, East)
I do not always view Liberal proposals with disfavour, but I fail to see how this Committee under any circumstances can accept an Amendment to the Clause which brings in an institution such as the Monopolies Commission. on the assumption that the present Commission is recognised as ineffective but that if the Amendment is accepted we can assume that the Commission will be reformed.
I have known occasions in various Committees when this sort of proposition has been put forward on the assumption that when an institution is brought in there will be a reformation of that institution. The Government's White Paper recognises that the present Monopolies Commission is inadequate. It says:their existing powers to implement recommendations Off the Commission are not adequate for the purposes these powers now have to serve.It goes on to say:The Monopolies Commission was enlarged in 1953 and empowered to work in groups. The size of the Commission was reduced in 1956.Some of those powerswere transferred to the Restrictive Practices Court. It is now proposed to give the Commission new work on mergers and services.The Commission's main function should be to examine the effect of the mergers and restrictive practices in a very wide field. Are we to take it that resale price maintenance is to be an all-embracing form of restrictive practice? I do not believe that it is. I believe it is a particular practice which in some cases is desirable and in some cases undesirable. No doubt there are many cases in which it could be justified.
I have listened to the argument, I hope with an open mind, but the hon. Member for Bolton, West (Mr. Holt) confused me considerably. Unless I misunderstood him—and I am prepared to give way if I did—he said that it was impossible for. a body presided over by a judge to dea1 with hundreds of individual cases. He went on to suggest that those cases should go to the Monopolies. 1219 Commission which, by another Amendment, should have to make recommendations to the Minister. So what the Restrictive Practices Court would find impracticable in judging hundreds of cases the poor Minister would have to do.
I was rather confused by the proposition that it would be almost impossible for the Court to judge hundreds of cases yet if the Monopolies Commission examined those cases and made a recommendation to the Minister it would not be difficult for the Minister to make a thorough examination. The Minister ought to make a further examination; he should not merely accept a recommendation, but should examine it. But the President of the Board of Trade would not only have his normal duties to perform; he would have closely to examine hundreds of cases recommended to him by the Monopolies Commission.
§ Mr. Holt
I am sorry that I did not make myself clear. My point about the large number of cases was that I thought it undesirable for there to come before the Court as distinct from any other body, a large number of cases most of which—it may be 95 per cent.—would inevitably be turned down by the Court. I did not think that that is the kind of thing in which the Court should be involved.
§ Mr. Bence
Whether people take their cases before the Monopolies Commission or the Court, they will do so with trepidation and apprehension. The hon. Member will agree that if a manufacturing institution is achieving certain benefits for itself by a certain practice—and presumably any manufacturer who is pursuing resale price maintenance is doing so for the benefits he gets out of it—then it should justify what it is doing. The Bill provides that the manufacturer shall show that what he is doing for his own economic reward is also in the national interest.
It is common tradition of the establishment for people such as General Motors to say that what is good for General Motors is good for the country. No doubt many people in this country, in all walks of life, believe that what is good for them is good for Britain. We 1220 have had several examples of big businesses taking this view. In one case it was said that it was bad for Britain but good business for them. If manufacturers or traders adopt restrictive practices which are beneficial to them, then the onus is on them to prove—not merely to state, as General Motors did—before an appropriate institution that what they are doing is good for the general public.
I see no objection to that, and I am surprised that the hon. Member gave the impression—perhaps he did not intend to do so—that it would be difficult to get anything registered before the Court. We ought to make it difficult to get products exempted, and before this happens a full case ought to be made out that it is in the best interests of the nation. Surely that is a desirable objective. The hon. Member gave the impression that making it difficult was not desirable.
During the 13 years I have been in the House I have never shown a great affection for lawyers and judges and have never been over-partial to them, but I am not prepared to say that a judge is less competent in his assessments than some of the assessments which I have heard in my life made by professional economists. From 1919 to 1938 I read many papers—all through those dark and dreary years—by professional economists and none was ever right. Every one of their forecasts and estimates was completely wrong. Every year we were told that prosperity was round the corner, but when we got round the corner it was more depressing than ever before. I am not prepared to agree that a judge is less qualified to make a pronouncement on great national issues than is a professional economist.
§ Mr. Bence
This is a free country with a great liberal culture and tradition—with a small "I". It has developed and evolved at a far greater rate since the demise of the Liberal Party. Progress has been far faster in the last 40 years than it was in the previous 100 years. But it is a great tradition that although one may tease a creature when it is down, one may not kick it in the teeth.
§ The Chairman
Order. We seem to be getting rather a long way from the group of Amendments under discussion.
§ Mr. Bence
Yes, Sir William. With my liberal background I am liable to be free in debate.
I was dealing with the proposition of these cases being heard by the Monopolies Commission instead of by the Restrictive Practices Court. The White Paper says that the work of the Commission is already far greater than its constitution permits. It would be unreasonable to give it the extra work of registering exemptions from the Bill's effect.
Hon. Members have asked how the Court is competent to deal with the question of drugs and trading in general. The hon. Member for Orpington (Mr. Lubbock) said that the wording of subsection (2) does not in any way postulate the obtaining of facts, but rather of trends. This is what everyone does all the time. Anyone charged with the task of considering these matters is not considering static facts as they exist. He is considering phenomena, movements, trends. It is splitting hairs to suggest that, because we have not immediate facts to contend with, these cases should go to the Commission.
I do not read the reports of many cases heard in the law courts, particularly reports in the News of the World, because I do not take that newspaper. However, I should imagine that judges have to investigate many matters outside the realm of facts. Many hypothetical postulations are made before judges by many witnesses. Consequently, I should have thought that judges are capable of making judgments on general trends. In view of the Report of the Lloyd Jacob Committee, which is an excellent report on monopolies and restrictive practices, it cannot be said that judges are incapable of making general judgments on the exemption of products, particularly drugs, from the effect of the Bill.
There is no reason why, when it comes to examining the justification of exempting drugs, judges should be any less competent to make such an assessment than professional economists, chartered accountants or engineers. Competency to make a judgment in such matters 1222 depends rather on the character of those employed than on their professional qualifications I should never suggest that an expert in one subject is an expert in every subject, but I am not prepared to support the proposition that an expert in law is a fool in sociology.
That would be nonsense. A person who rises to the top of his profession should acquire as much natural intelligence about other aspects of human endeavour as other professional people. If our education system results in our being experts in one subject and fools in every other subject, there is something very wrong with our education system.
I stress the need to ensure that the Commission is strengthened. I do not say this because I approve of the Amendment, because I believe that it is out of p ace. It is very important to strengthen the Commission so as to get at the monopoly situation which has arisen, to watch the mergers and holding companies which are being created. and so on. There is competition between alternatives—plenty of that competition—but competition between like and like is completely disappearing. Manufacturers of similar products are just not competing with each other in price, and in some cases it is getting near to tin, point where they are not even competing in design.
The strengthening of the Monopolies Commission to deal with mergers and monopolies is far more important than setting up a register of goods exempted from these provisions. There should be such a register, but I think that the Restrictive Practices Court is probably the right institution at this time to compile the register and give reasons for exemptions. Nevertheless, we are not tackling the right thing first. We should examine monopolies first, get at the manufacturers, the distributors, and so on, examine our company laws, the organisations of trade and manufacturing processes. If we had first done something about monopoly, we would probably have peen able to do a better job on price maintenance.
§ Mr. Lubbock
Listening carefully to this debate I have been struck by the fact that no hon. Members on this side of the Committee appear to have read the Bill properly. Nor do they appear 1223 to have read the list of Amendments. The hon. Member for Sheffield, Hillsborough (Mr. Darling) said that we were dealing with the only Amendments in the names of my right hon. Friend, my hon. Friends and myself, but if he were to turn to page 2389 of the Notice Paper he would find that we have another Amendment down. However, I should be out of order if I pursued that point.
I found the hon. Member for Dunbartonshire, East (Mr. Bence) most inconsistent. On the one hand, he wants the Monopolies Commission to perform all the extra duties that will be laid on it when we implement the White Paper on Monopolies, Mergers and Restrictive Practices. That cannot be done soon enough for me. I should like it done in this Session if it were possible, and I hope the hon. Member will support my party in its endeavour to persuade the Government to use the remaining Parliamentary time for this purpose. In the next breath, however, the hon. Member says that it is impossible for the Commission to carry out the duties he would like it to do under the Bill.
It has been said that the Commission has not functioned well in the past. That criticism is entirely irrelevant to the duties we lay on it under the Bill. Of 21 recommendations made by the Commission, only three have been accepted, and it is not fair of hon. Members on this side to criticise the Commission for failing to do something that is really the Government's responsibility. Criticisms of the effectiveness of the Monopolies Commission in carrying out its functions under other Acts are not relevant to this discussion of the Bill or of the duties that would be laid on the Commission if our Amendment were accepted.
I should like to reinforce what I said to the hon. Member for Glasgow, Craigton (Mr. Millan) in an intervention, which is that he and his hon. Friends seem quite incapable of understanding that in Clause 5(2) we are not dealing with facts but with hypotheses. As I obviously did not manage to explain myself to him satisfactorily, I will draw his attention to the paragraphs in subsection (2). Paragraph (a) reads: 1224…the quality of the goods available for sale, or the varieties of the goods so available, would be substantially reduced…We are therefore not talking about the present quality or variety, but about what might happen to quality or variety on the assumption that resale price maintenance were or were not abolished. Similarly, subsection (2,b) uses the wordsthe number of establishments in which the goods are sold by retail would be substantially reduced…We are not talking about the number of establishments in which these goods are sold. We all know that in some retail trades the number of establishments is diminishing without the operation of the Bill. My hon. and learned Friend the Member for Montgomery (Mr. Hooson) has told me of an instance in his constituency where there used to be three chemists in a small town and now there is one. The limitation of the retail outlets has been taking place since the war without the aid of the Bill.
We are talking about how the Court or the Monopolies Commission will view the likely effect of the abolition of r.p.m. in a given area. My point—and I hope that the hon. Member for Craigton has swallowed this now and that his hon. Friend, who also said that we were concerned with facts, has done the same—is that we are concerned not with facts, but with hypotheses. This is one of the main reasons why we think that the Commission, and not the Restrictive Practices Court, is the right body to deal with this matter.
§ The Minister of State, Board of Trade (Mr. Edward du Cann)
We have certainly had an agreeable debate, not least because on four separate occasions we have had no less than six-sevenths of the Liberal Party present. It was not always quite the same six-sevenths, but we are pleased to see them and glad to know of their Russian habit, even as exemplified by the hon. Member for Devon, North (Mr. Thorpe), of applauding themselves.
We have had four speeches in favour of the Amendments from the Liberal Party and four speeches in the contrary sense. We have had an admirable speech from my hon. Friend the Member for Cheadle (Mr. Shepherd) and equally, 1225 from the Liberal point of view, devastating speeches from the hon. Members for Sheffield, Hillsborough (Mr. Darling), Glasgow, Craigton (Mr. Millan) and Dunbartonshire, East (Mr. Bence).
It is plain that the feeling of the Committee is strongly against the Amendments for a substantial variety of reasons Perhaps I would be right in summing up the speeches so far made and the general atmosphere of the debate by saying, to cap something that was said by the hon. Member for Dunbartonshire, East, that it is plain that the opinion of the Committee is that what is right for the Liberal Party is not necessarily right for Great Britain.
As the hon. Member for Hillsborough clearly pointed out, we are accustomed to the Liberal Party changing its mind. Certainly, those of us who travel about the country are accustomed to it, and in relation to the Bill we have certainly seen examples of that. Members of the Liberal Party voted in favour of the Bill on Second Reading and yet the hon. Member for Bolton, West (Mr. Holt) almost Shed crocodile tears in describing the Bill as a hard one. I should like to know what the Liberal Party really wants. I hope that some time—it may be when we come to their other Amendment on the Notice Paper—it will be good enough to make its views plain.
§ Mr. Hooson
Will the hon. Gentleman tell me when the Conservative-Labour coalition is to be sealed?
§ Mr. du Cann
I do not think that it will be sealed at any time. In any event, we shall not need the services of the reverend Liberal Party to assist at any ceremonies which take place. Indeed. to cap something that was said during the debate, if there is a healthy Liberal disgustingly breathing down the neck of my hon. Friend the Member for Cheadle, I hope that when the right moment comes he will turn and with a puff blow that fellow away.
The effect of the Amendment which we are principally discussing would, as the hon. Member for Hillsborough pointed out, be to substitute the Monopolies Commission for the Restrictive Practices Court as the tribunal for dealing with applications concerning exemption. Other Amendments—there are a substantial number of them and we 1226 should take them seriously—tabled by the same hon. Members provide for the Commission only to make recommendations which would have no effect until confirmed by the President of the Board of Trade.
As consequentials, the Amendments which we are discussing include the deletion of Clause 9—not an additional Amendment, but the same part of the same series—which is the Clause permitting the appointment of additional judges. The Liberal Party has tabled the new Clause No. 5 increasing the maximum number of the Monopolies Commission to 25 and permitting them to work it groups. In addition, there are some consequential Amendments on the same scheme. There is a total of 24 Amendments in all.
The hon. Member for Huddersfield, West, said that he hoped that I would not propose to pick holes in the drafting. I certainly would not. I propose to attempt to deal with the argument. He also asked whether the Lord Privy Seal had had a change of mind. As the right hon. Member for Battersea, North (Mr. Jay) so plainly pointed out, it is the Secretary of State for Industry, Trade and Regional Development and President of thy; Board of Trade who is in charge of the Bill. Wrong again! As far as I am aware, there has been no change of mind whatsoever, as I hope to demonstrate shortly.
To answer the points made by those Members of the Liberal Party who entertained us this evening, it is necessary to examine again the principles which the Government had in mind in introducing the Bill. The Government are of the opinion in general, for reasons which my right hon. Friend stated very clearly on Second Reading, that r.p.m. is not in the public interest. The effect of r.p.m. in general is to maintain prices at higher levels than might exist without it and to inhibit competition in the development of new trading methods.
To answer particularly the hon. Member for Huddersfield, West—and I make common cause here with the hon. Member for Hillsborough—the Bill deals with r.p.m. The arguments for and against r.p.m. range widely, as we have learned in the course of these discussions. Essentially, they are economic in character. To bring in completely extraneous 1227 matters relating to social consequences would inevitably make the exemption procedure very much more complex and possibly more lengthy and would not necessarily do full justice to those economic considerations which are basic.
On the point of social legislation to which the hon. Member referred, as the hon. Member for Hillsborough said we have separate social legislation on a very wide range of matters. We are discussing in the House at present a particularly important Measure in connection with consumer protection. We believe that it is right to keep these matters separate. The Government have proposals to bring forward as part of the running tide of these policies which will deal with certain of the ideas that the hon. Member for Huddersfield, West has in mind. I would not promise him that foot health was among them, though I thought it ironic that the hon. Member for Ebbw Vale (Mr. M. Foot) should have come into the Chamber at that moment.
But having come to this basic conclusion about the fact that r.p.m. is not in the public interest, the need thereafter, as I think the hon. Member for Huddersfield, West agrees, is to afford those suppliers who maintain that r.p.m. in respect of particular goods is in the public interest an opportunity if they wish to justify it. I was rather taken by something that the hon. Member was in the course of saying. We take the view, and the official Opposition take the view, that r.p.m. its either right or wrong. It cannot be half-right as the hon. Member suggested.
I am sure that the hon. Member will accept from me that we gave careful consideration to the question of the most appropriate procedure for dealing with this matter. We believe it right that Parliament should lay down the principles which are to be applied. The specific criteria by which applications for exceptions are considered are delineated in Clause 5. We shall have to satisfy ourselves in Committee that we have chosen the right criteria. At hearings before the Restrictive Practices Court all the arguments can be stated on behalf of the interested parties, the suppliers predominantly.
1228 The Court will have in front of it, as the hon. Member for Craigton, and my hon. Friend the Member for Cheadle pointed out, clearly defined justiciable issues. This is the most important answer to the general case which the Liberal Party is advancing. Parliament will not be placing on the Restrictive Practices Court a responsibility for surveying the whole field of resale price maintenance, but considering its operation in relation to particular trades in the fairest way possible.
§ It being Ten o'clock, The CHAIRMAN left the Chair to report Progress and ask leave to sit again.
§ Committee report Progress.