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7. The definition which most of the Committee think is best, from the point of view of narrowing the element of economic judgment as much as possible, is set out in Annex I to this paper. This definition requires the parties to an agreement to show that the restrictive practice in question both serves some positive purpose, as defined therein, and that it does not operate to the detriment of the public to an unreasonable extent. Under this definition, unless the agreement serves one of the purposes specified therein (at (a) to (c) of Annex 1) it cannot qualify for a favourable decision, and the question of whether it is unreasonably detrimental to the public does not arise. Moreover, under this definition (apart from the question of damage to the export trade) a restrictive practice could not be justified on the grounds that the removal of the restraint would cause injury to the industry concerned unless such injury took the form of substantial unemployment (see clause (c) of Annex I).

8. The Attorney-General thinks that this last condition is too narrow, and that there are other forms of injury (e.g., a reduction in earnings which might force an industry to cease research) which may not be covered by the other clauses of the definition, but which should constitute grounds for justifying a restrictive practice, provided that the continuance of the restraint would not cause a greater detriment to the public than its abolition. The Attorney-General would therefore prefer that, to deal with the question of injury to an industry, the definition should be on the following lines: -

"The restraint shall be deemed to be contrary to the national interest unless it is shown that.... the restraint is necessary, in the conditions actually obtaining or reasonably foreseen at the time of the application, to prevent such injury to the industry, trade or business to which the restraint applies as would be likely to cause greater detriment to the public than the maintenance of the restraint."

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The Choice of Tribunal

9. The way in which the justiciable issue is defined is relevant to the choice of tribunal, for, as stated above, it would be required to decide questions not solely of fact and law, but also of economic policy.

In the choice of a tribunal there are three possibilities:--

(a) The High Court.

(b) An Administrative Tribunal whose decisions would require confirmation

by a Minister.

(c) A-Judicial Tribunal independent of the Government and not answerable

to Parliament.

These three alternatives are discussed below.

(a) The High Court.---We do not consider that the High Court itself would be a suitable tribunal. The function of the High Court is to decide questions of fact and law and it ought not to be required to pronounce on questions of economic policy. The justiciable issue defined in Annex I has, as stated above, been so drawn as to narrow as far as possible the economic considerations which the tribunal will have to take into account, but there inevitably remains a field in which it will have to exercise a degree of economic judgment which would be considered to be outside the functions of the High Court and which it is not fitted to exercise. Moreover many cases will be the subject of acute controversy into which it is highly undesirable that the High Court should be drawn.

(b) An Administrative Tribunal.-The second alternative would be to set up an administrative tribunal responsible to a Minister. This would have the effect that Parliament would retain control of important questions of economic policy which ought properly to be decided by Parliament, as some may think, rather than by a Court. The Minister, however, would have to confirm or reverse the tribunal's findings, and undoubtedly his decisions would be the subject of political debate. It is clear, therefore, that this solution would do virtually nothing to remove restrictive practices from the political arena, and there may well be some danger that the responsible Minister would be overwhelmed by the task involved in considering, deciding and defending the application of the Government's policy in a large number of controversial cases. There are also political arguments againsť setting up any new administrative tribunal at the present time.

Details of the way in which an administrative tribunal would work are in Annex II.

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