9. Retailers' price rings-This is a small point which was only just touched on in paragraph 19 of C.P: (51) 37. Briefly it is the question whether the prohibition of collective price maintenance measures should bite only on those measures which involve the participation of suppliers-i.e. those in which the sanction of withholding supplies can be used--or whether it should extend to price-fixing agreements purely among retailers. The Board of Trade view is that price agreements between retailers only, without the sanction of withholding supplies, would be ineffective and inocuous and that to prohibit them without investigation-which would lay us open to a plausible charge of by-passing the Monopolies Commission--would not be worth while. The majority of Ministers on the Distribution and Marketing Committee agreed with this view but it was generally felt that the matter should be further examined. My own view is that the best time to look at this again will be when we get down to drafting the relevant provision; only then in all probability shall we see clearly all the points (and difficulties) bearing on the matter. Paragraph 34 of the draft has therefore been worded in such a way as to leave open both possibilities; and I suggest that we need not go further into the issue at this stage.
10. Discrimination-This problem was set out at length in C.P. (51) 37 (para- graphs 13 to 18) and the Cabinet considered that there was a prima facie case for including in any legislation a provision declaring discrimination unlawful and pro- viding for civil remedies; they asked that the practicability of such a provision should be further explored. As a result there was further correspondence between myself (as Attorney-General) and the Board of Trade Solicitor. We agreed that the best that could be done would be to insert a clause simply declaring discrimination in respect of supplies (or terms of supply) against a trader on the ground only of the prices at which he sells goods to be unlawful; and to add a further clause, similar to that in the Monopolies Act, saying in effect that anybody might bring civil proceedings against a supplier guilty of discrimination but that no criminal proceedings should lie against him.
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11. In considering the draft White Paper we now have to decide whether we should say explicitly that we intend to make discrimination by individual suppliers unlawful in this way. On the one hand much of our party propaganda on this subject has fastened on to this aspect and indeed has decribed the whole operation "action to prevent manufacturers and traders from stopping supplies to retailers who bring down prices" without any qualification to suggest that organised discrimination was primarily intended by this. Consequently our supporters will probably expect an explicit provision against discrimination and if nothing is said we shall get questions about it. On the other hand I must point out that the clause suggested in paragraph 10 for this purpose is not very satisfactory. It is unlikely that many small traders will face the expense of protracted litigation against wealthy manufacturing concerns; and even if they do, it is not clear how they will prove to the Court that the manufacturer has cut off their supplies on grounds of price and not on any one of a hundred other plausible grounds. There may perhaps be some value in declaring discrimination unlawful simply on the ground that most manufacturers in this country would honestly attempt to keep within the law. If, however, we mean by such a clause to confer a legal remedy on the victims of discrimination, we should realise that in all probability it will be a remedy open only to the larger retail organisations, like the chain stores and the Co-ops., and one which will be uncertain even for them.
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12. For these reasons I should be loth to be committed at this stage to including a clause of this kind in the legislation and I recommend that we should make no explicit reference to it in the White Paper. This is another matter in respect of which I think the possibilities will become much clearer when we can see the whole of the legislation in draft and I do not think we should decide finally about a "discrimination" clause until then. Meanwhile in paragraph 42 of the draft White Paper, which explains the effect of the provision against "indicating resale prices other than as maxima, we have said "the trader will not be debarred from making a reduction from the indicated price and the Government will be concerned to see that his freedom in this regard is not impaired." This last phrase is intended to leave the way open for a specific anti-discrimination clause, if we finally decide on one, but not to commit us finally to one now. This is, I think, the right course. If challenged on this topic in a debate on the White Paper, I should propose pasay that the Government is giving further consideration to the question,
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