A Prospect of Restrictions
By J. S. NAPIER THE world of monopolies and restrictive trade practices—unlike the rest of the world—is under- going a period of frantic lull. The Act which occupied so much parliamentary time during the summer was finally given the Royal Assent on August 2; on November 2 Part 11 of the Act, which forbids collective but facilitates individual enforcement of resale prices, came into force, and on November 30 an Order making registrable (and so open to scrutiny by the new Restrictive Practices Court) a wide range of restrictive trad- ing agreements, including price rings, collusive tendering, and collective discrimination, started to operate.
Thus, while all the paraphernalia of private courts, fines and blacklists in support of resale prices have been swept away (the similar systems used to enforce trade union practices of course remain, their notoriety enhanced by solitude), the big companies have had a few months only to consider three urgent problems: which of their agreements are registrable; can those which are be adapted so as to make it unnecessary for them to be registered; is it worth registering, and defending before the Restrictive Practices Court, those which are not adaptable, or should they be dropped?
The last question is partly, but the first two are entirely, matters of interpretation of the Act, and much more difficult to answer than might be supposed. This is really because the field is not only wide, but almost entirely virgin ground (the only other Statute in force on precisely the same subject is apparently the dormant Ordinances of Corporations Act, 1503), and consequently the Act has had to be drafted in largely non-technical language which cries for judicial interpretation only less piteously than the Rent Acts. How far is a bipartite agreement registrable? What is a 'process of manufacture'? What is meant by the Act's definition of 'Trade Association'? What, if anything, is a 'negative obligation'?
To assist the eager businessman and his legal adviser in their speculations on these and a multi- tude of other thorny questions, no fewer than three books* have been issued on the subject since the Act was passed, one, rather unexpectedly, by the First Lord of the Admiralty, who has since projected his restrictive experience to a wider sphere. None of the books, it must be confessed, make particularly entertaining reading, nor can they, under the circumstances, provide the clear and authoritative solutions to his problems for which the reader yearns, though they can and do raise further problems which had probably not occurred to him. It may be cautiously asserted, however, that the book by Messrs. Albery, Tatham and Fletcher-Cooke is the most
• THE LAW RELATING TO MONOPOLIES, RESTRIC- TIVE PRACTICES AND RESALE PRICE MAINTENANCE.
By Lord Hailsham and R. McEwen. (Butterworth, 22s. 6d.)
MONOPOLIES AND RESTRICTIVE TRADE PRACTICES.
By Michael Albery, B. S. Tatham and Charles F. Fletcher-Cooke. (Stevens, 27s. 6d.) THE LAWS OF RESTRICTIVE TRADE PRACTICES AND MONOPOLIES. By H. Heathcote-Williams, Emrys Roberts and Ronald Bernstein. (Eyre and Spottis- woode, 36s.) adventurous, but the least reliable, and that by Lord Hailsham and Mr. McEwen, besides being the cheapest, is the most businesslike. The one by Mr. Hcathcote-Williams and company is scholarly and contains a résumé of similar legis- lation in other countries. It will be interesting to see how far, if at all, the Court takes notice of this; it can hardly do so as a strict matter of interpretation.
There are, of course, many restrictive agree- ments in force which are undoubtedly registrable, and the only question is whether or not to fight for them. It is more difficult than ever to foresee the attitude of the Court towards these; the onus of proof, however, remains on the persons who seek to justify them. It is rumoured that, whether from fear of publicity or distrust of legal pro- cesfes generally, a large number of such agree- ments were quietly dropped before the Order came into force. This is, of course, exactly what the Government intended, and indeed if every- one had decided to fight, the Court might well have been choked with work, like the old Monopolies Commission.
So far, only two—both suitably high-powered —appointments to the new Court have been made: Mr. Justice Devlin and Mr. Justice Upjohn, the former of whom is to be President. Normally, a court will consist of one High Court Judge and two lay members (full members, not 'assessors); there was some debate in Parliament whether these members should necessarily be qualified by 'experience' as well as by 'know- ledge' of industry, commerce or public affairs. In the event the disjunctive was preferred, leading to the dubious prospect—especially for those familiar with academic witnesses—of academic judges as well. Mr. Sich from the Treasury Solicitor's department has been appointed to the important post of Registrar of Restrictive Trad- ing Agreements—a sort of cross between the Registrar of Companies and the Director of Public Prosecutions. (Incidentally, it is interesting to note that the people who probably feel most strongly that X's agreements are registrable and against the public interest—namely X's com- petitors—are given no express right of audience to argue either of these points, which appear to be left wholly to the Registrar. Possibly this may be cleared up in the Rules of Court.) Sir David Cairns, QC, Chairman of the old Monopolies Commission, has stepped down into the fray, and has been succeeded by Mr. R. F. Levy, QC.
Clearly the lawyers are in for some protracted, lucrative, but inevitable, battles. Meanwhile, cer- tain critical comments on the Act as a whole are still valid. Firstly, there is still no power to make 'divesting orders' splitting up the Monopoly of Scale (as can be done in America); this con- trasts with the wide powers of prohibition of agreements between independent firms, and must favour the single mammoth firm, or 'inter- connected body corporate,' against whom only limited powers are provided under the 1948 Act.
Secondly, the extension of individual, at the expense of collective,, resale price maintenance must again favour the large and powerful firm who can in all senses `go it alone,' as against the smaller firm which was formerly protected by its trade association.
Thirdly, whatever may be said of restrictive practices among employers, it is at least arguable whether or not they operate against the public interest. The Act itself recognises this. The same cannot be said, in the present state of the country's economy, of restrictive practices among workers: from the public's point of view, they are at the moment wholly bad. Nobody indeed has sought to defend them on the grounds that they aren't. The query therefore remains : what is the Government going to do about them, and when?
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